Jacksonville Criminal Defense Lawyer Blog

This question stems from the recent Jacksonville Criminal Law case where Tyler Woody Willis, 18, has been arrested and charged with the attempted manslaughter, using a firearm under the influence of drugs, and use or possession with intent to use drug paraphernalia. These charges come from an incident between Willis and his friend, the victim, William Brandon Hodge, 17. However, my question is "what is using a firearm while under the influence of a controlled substance?"

Using a firearm while under the influence of a controlled substance is defined by Florida Statute § 790.151. The Statute states the offense is a second-degree misdemeanor punishable by up to 60 days in jail and a fine not to exceed $500. Furthermore, this offense is defined as "discharging a firearm or to have a firearm readily accessible for immediate discharge, [the gun being] loaded and in a person's hand, and for [such] person [to be] under the influence or alcoholic beverages or any controlled substance."

But what does all this mean for a Jacksonville Criminal Defendant? First, if you are drinking, using drugs, or under the influence of a controlled substance and a firearm is near; you could be charged with this offense. Second, although just a second-degree misdemeanor, the penalties are still severe, but the crime is not absolute, there are possible defenses and mitigating circumstances. Was the act in self-defense or protection of one's property? Did the Defendant have the gun in his possession? These and more are all aspects that a Jacksonville Criminal Defense Lawyer will take into consideration while reviewing your case and making the best determination in protecting your rights.

When facing Jacksonville Criminal charges, the advise and counsel of a Jacksonville Criminal Defense Lawyer will be advantageous to a Jacksonville Criminal Defendant. The legal process is complicated, complex, and not always favorable to unrepresented Jacksonville Criminal Defendants. If you or a loved one have Jacksonville Criminal Charges pending, contact a Jacksonville Criminal Defense Lawyer to discuss your case and make a determination as to the best approach in moving forward.

As a Jacksonville Criminal Defense Lawyer many Jacksonville Criminal Defendants are out on bail. Bail comes in many forms and is determined by the judge during the initial appearances of the defendant. Furthermore, a bail can be set in a monetary amount, ROR, or surety. But, what happens if bail is paid and subsequently the Jacksonville Criminal Defendant does not appear at the required court hearing?

Florida Statutes Chapter 903 specifically deals with all matters relating to Bail. The Statute of particular importance in this blog is § 903.26 "Forfeiture of the bond..." According to the Statute, a bond can be forfeited for a breach of the conditions set forth in the bond and/or failure of the Defendant to appear at a required Court hearing. Failure of a Defendant to appear at a required Court hearing can have serious adverse consequences in your pending Jacksonville Criminal case. Additionally, up failure to appear the Court will issue a capias or a bench warrant for your arrest. A warrant will only compound the Criminal issues that are presently before you.

What about the person who paid the bond for your release? They will not have criminal or civil charges brought against them, unless they aided or assisted in your bail jumping. However, they will have lost the amount of money given to the Courts guaranteeing your return. This can be a substantial loss for some. It could mean the loss of your home, car, or a large sum of money. My advise for those who decide to post bail for another, make sure the Jacksonville Criminal Defendant is going to return to court before deciding to post their bail. It will not benefit either party if the Defendant does not return to Court.

If you have pending criminal charges against you and your out on bail, it is in your best interest to consult a Jacksonville Criminal Defense Lawyer. They will be able to evaluate your case and determine the best avenue in which to proceed.

Anyone who has watched crime dramas on TV or heard a Jacksonville Criminal Defense Lawyer speak have heard a multitude of Latin words throughout their discussions, but some are not always completely understood. One such word is "corpus delicti." Corpus delicti generally means the physical evidence of a crime, (i.e. the dead body in a murder). Recently, the 2nd District court dealt with an issue pertaining to corpus delicti in Reinlein v. State of Florida.

In this case, the Court had to determine whether the trial court erred in allowing the defendant's post-Miranda testimony regarding his consumption of an illegal substance before the State established the corpus delicti of tampering with physical evidence.

The defendant was witnessed by police officers exchanging something in a high crime area. Because the actual transaction was not witnessed, they put a patrol car on the defendant's vehicle to follow him; hoping he would commit a traffic violation and initiate a traffic stop. Several blocks from the drug transaction, the defendant was being pulled over when the officer saw the defendant make a motion as if placing an object in his mouth. The defendant exited the vehicle and was arrested. The only evidence the prosecution presented was the post-Miranda statement from the defendant that he purchased drugs and consumed the drugs before being stopped. The State charged the defendant with tampering with physical evidence.

The statute under which the defendant was charged is Fla. Stat. § 918.13(1)(a). The statute reads, in relevant part: No person, knowing that a criminal trial or proceeding or an investigation...shall: Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation. Additionally, Florida Courts have required defendant to known of an impending investigation and have destroyed the evidence to hinder that investigation.

In this case the defendant was pulled over several blocks from where the alleged drug buy took place. The State failed to provide substantial evidence that the defendant destroyed the drugs for the purpose of hindering the investigation. Furthermore, the exact drug transaction was not witnessed, the item eaten could not be determined, and no evidence of the drugs located in the vehicle.

This case demonstrates how every aspect of the criminal act must be proven before a conviction can be upheld. A Jacksonville Criminal Defense Lawyer knows the law and the applicable standards the State must overcome to have a conviction. If you have been charged with a criminal offence or have criminal charges pending against you, contact a Jacksonville Criminal Defense Lawyer to discuss your case and to determine what the best course of action for moving forward.

In a recent case, Rozzo v. State of Florida, the 4th District Court heard an appeal from the Circuit Court for the 17th Judicial Circuit in Broward County. The issue presented before the court was whether the consent given by the homeowners after and unlawful warrantless entry and protective sweep of the home was valid and therefore the defendant's motion to suppress should be denied.

The issue arose after the trial court denied the defendant's motion to suppress the evidence discovered inside the house following his arrest. In this case, the defendant sold drugs to an undercover officer on the street by his house. The officers arrested the defendant on the street. The officers then moved to the house, owned by the defendant's parents. The officers proceeded to order the parents to stay outside during the "protective sweep." Then the officers got a signed Consent form to search the house. The search revealed other drug related items in the defendant's bedroom.

The U.S. Constitution, 4th Amendment has established a high reasonable expectation of privacy regarding one's home. Furthermore, Florida Courts have established absent consent or exigent circumstances, police may not enter a home without a warrant. Additionally, Florida Courts have only permitted a "protective sweep" if the officers have reasonable, articulable suspicion to protect the safety of the officers or to prevent the destruction of evidence.

In this case, the defendant was arrested outside the home and the officers had no suspicion that evidence was being destroyed or officer safety. This fact was even testified to by one officer who stated the protective sweep was "routine and of generalized concern." Therefore the trial court erred in denying the defendant's motion to suppress. Since the protective sweep was illegal, the subsequent consent to search the home given by the father was tainted. Therefore, the evidence seized during the illegal search was fruit from the poisonous tree and therefore inadmissible.

This is just one of many legal nuances that a Jacksonville Criminal Defense Lawyer can investigate and potentially advance in your criminal case. If you have been charged with a criminal offence or have criminal charges pending against you, contact a Jacksonville Criminal Defense Lawyer to discuss your case and to determine what the best course of action for moving forward.

As a Jacksonville Criminal Defense Lawyer I scour the local, national, and world news to stay informed on current Criminal legal issues. Just recently a news article by Foxnews.com sparked my interest. The article titled "Cocaine Bust Lands Curvy Model in Italian Jail," was a colorfully written article.

The article states a Spanish model attempted to smuggle Cocaine into Italy via prosthetic breasts and buttocks. The model's plan was to distract the TSA by wearing tight-fitting clothes and her attractiveness would take suspicion away from the real task at hand. However, her "extra-large bosom and derriere" caught the attention of TSA and they investigated. After failing to provide sufficient answers to their questions, they conducted a strip search. The search revealed the model was attempting to smuggle 5.5 pounds of cocaine.

Currently the charges are pending and dependent upon Italian and international law, the charges could be quite severe. This article intrigued my legal mind because it shows the diminished expectation of privacy one holds while traveling through airports. At airports all the authorities need is reasonable suspicion before they can investigate. In contrast, inside one's own home the expectation of privacy is very high. Police are required to have a warrant before entering your home, absent exigent circumstances.

Even with this diminished REP, you still have rights! If the authorities violate these rights, the evidence collected against could be inadmissible in court or the charges could be dropped all together. A Jacksonville Criminal Defense Lawyer can review your case and determine if the authorities have violated your rights and take the appropriate action to rectify the situation. Criminal drug possession and trafficking charges carry serious penalties and jail time. It is in your best interest if you have Jacksonville Criminal charges pending against you to contact a Jacksonville Criminal Defense Lawyer to discuss your case and determine the best course of action moving forward.

If you are charged with a misdemeanor drug crime in Jacksonville, Florida, there are somethings that you should know. Although the crime is a misdemeanor, a drug crime is not a minor crime. For instance, possession of less than 20 grams of marijuana is a misdemeanor in Florida. However, it carries serious ramifications. You can receive up to one year in jail for the charge. Even if you do not receive a jail sentence for possession of marijuana, it is still on your criminal record. Schools, potential employers, and the general public will be able to see your Florida criminal record and the misdemeanor drug charge. If you are convicted of the Jacksonville drug crime, you will not be able to seal or expunge the arrest. Therefore, discussing your case with a Jacksonville Criminal Lawyer before you enter a plea to the drug crime is crucial.

Under Florida Statute Section 322.055, your Florida Drivers License will be suspended for two years in you are convicted of certain drug offenses. While the court may direct the Florida Department of Highway Safety and Motor Vehicles to issue a hardship license, a hardship license is not available until at least six months of the revocation or suspension has expired. For most people, their Florida drivers license is crucial to maintaining employment, so even six months without a license can result in job losses. Also, if you get caught driving on a suspended license, you are looking at another Jacksonville criminal charge, Florida Driving with a License Suspended or Revoked.

As a Jacksonville Criminal lawyer, I have sealed and expunged many Florida criminal records. Often, people ask me if they are eligible to have a felony drug charge sealed or expunged, in Jacksonville, Florida. The answer is "it depends." It depends on the charge and the disposition. If you have ever been convicted of any crime, you cannot have your recorded sealed or expunged.  Therefore, if you were convicted of the drug charge, you cannot get it expunged.  Even if you were convicted of an unrelated criminal offense, you cannot get the drug charge expunged.  

It also depends on the crime. If you have pled guilty or no contest to certain drug offenses, such as manufacturing any substances in violation of chapter 893, you cannot get your record sealed, even if the adjudication was withheld. Section 907.041(4)(a) of the Florida Statutes gives a list of all the crimes that cannot be sealed in Jacksonville, Florida (See Florida Crimes that Cannot be Sealed by Cynthia Veintemillas). However, if the charge was dropped, you may be able to get the Jacksonville arrest expunged, even if it is listed in Section 907.041(4)(a), because you did not plea guilty or no contest to the Jacksonville criminal charge.

The Florida Supreme Court has ruled on the standards and training required for automobile searches using drug detection dogs (Harris v. Florida, 36 Fla. L Weekly S163a (2011). This case has been applied by another Florida appellate court. In Sarasota County, the Florida Second District Court of Appeals addressed the drug detection dog's reliability standards in Wiggs v. Florida, 36 Fla. L. Weekly D1688a (Fla. 2nd DCA 2011). In Wiggs, the drug detection dog, Zuul, gave a positive indication at criminal defendant Wiggs' vehicle during a Florida traffic stop. The police officer searched the vehicle and found cocaine.

Wiggs challenged the Florida K9 search on the basis that "Zuul's alert to the exterior of Wiggs' vehicle provided probable cause to support a warrantless search of the vehicle's interior." Although Zuul went through over 400 hours of training and did quite well, Zuul was not so effective in the field. He only had a 29% accuracy rate. Zuul had many false positives, including several instances of identifying drugs in areas where drugs had once been but no longer were.

In Harris v. Florida, 36 Fla. L. Weekly S163 (Fla. Apr. 21, 2011), the rule established by the Florida Supreme Court states "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person." The Florida Supreme Court adopted a "totality of the circumstances approach" that places the burden of producing evidence to establish the dog's reliability on the state." In this case, Zuul's detection rate was too low for the court to consider "probable cause." Therefore, the cocaine in this case should have been suppressed.

If you have been arrested in Northeast Florida (Jacksonville and the surrounding counties) and have been subject to an automobile search, contact a Jacksonville Criminal Attorney.

In Jacksonville, police often use trained drug detection dogs to detect illegal drugs in vehicles. Usually, the canine (K9) walks around the vehicle and signals if it senses the illegal substance. Then, the Jacksonville Sheriff's Office will search the vehicle. When a Jacksonville drug detection dog search is conducted, police officers must comply with certain procedures and standards.

Jacksonville Florida is in the First District. In April of 2011, the Florida Supreme Court addressed a First District Court case regarding K9 searches (See Harris v. Florida, 36 Fla. L. Weekly S163a). The Florida Supreme Court stated:

"The issue of when a dog's alert provides probable cause for a search hinges on the dog's reliability as a detector of illegal substances within the vehicle. We hold that the State may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances. Because a dog cannot be cross-examined like a police officer on the scene whose observations often provide the basis for probable cause to search a vehicle, the State must introduce evidence concerning the dog's reliability. In this case, we specifically address the question of what evidence the State must introduce in order to establish the reasonableness of the officer's belief -- in other words, what evidence must be introduced in order for the trial court to adequately undertake an objective evaluation of the officer's belief in the dog's reliability as a predicate for determining probable cause."

The Florida Supreme Court held that:

"the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances."

Recently, this issue came before another Florida Appellate Court in Wiggs v. Florida, 36 Fla. L. Weekly D1688a (Fla. 2nd DCA 2011).

The Florida Law Weekly published an opinion from the Florida Fourth District Court of Appeals. The Florida Court had to decide "whether the trial court committed reversible error by answering a question from the jury without first consulting the defense attorney and prosecuting attorney." Pearson v. State, 36 Fla. L. Weekly D1156a.pdfThe Florida Criminal Defendant was on trial for sale of cocaine within 1000 feet of a park and possession of cocaine. While deliberating, the jury asking for a definition for "abiding conviction of guilt" which was a phrase used in the standard jury instructions. The Florida judge went into a lengthy discussion about this phrase and the reasonable doubt standard without first discussing it with counsel for the Florida Criminal Defense Attorney and the State Attorney. Afterwards, he asked the attorneys if they had any objection, and the Florida Criminal Defense Attorney objected.

Rule 3.410, Florida Rule of Criminal Procedure, states that jury instructions "shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant." The Florida trial court gave clarification to the jury without affording defense counsel a meaningful opportunity to have input. It was not sufficient that the court later asked if the defense attorney had any objections to the trial court's statements. Therefore, the Florida Criminal Defendant is entitled to a new trial.

Recently, the Florida Fourth District Court of Appeals ruled on a protective-sweep search of a Florida residence in a Florida Possession of Cocaine, Marijuana, and Paraphernalia case. The Florida Court held that the search of a bedroom was unlawful which occurred during an arrest of a woman, Mary Rogers, in her residence.

In Rogers v. State, the police went to the defendant's house, because a neighbor heard yelling and fighting. Police officers also heard the dispute and knocked on the door. A woman peaked through the window and police heard a man yelling not to open the door. The front door was unlocked, so the police entered, because they were concerned about the safety of the woman.

In the dining room, the officers saw pot in plain view. Upon doing a protective sweep, the cops realized the bedroom door was locked. The defendant, Mary Rogers, refused to open the door. By this time, Ms. Rogers and the other occupants of two other people were either handcuffed or seated at the dining room table. Thereafter, the police jimmied the lock and saw cocaine in an open dresser drawer, along with drug paraphernalia.

At the Motion to Suppress hearing, officers admitted that the bedroom was beyond the reach of the occupants of the residence, and they never asked the people in the house if there was anybody else in the residence before prying open the door. The State Attorney failed to present any evidence that indicated a need for the search of the locked bedroom. Therefore, the marijuana that police discovered in the dining room was lawfully admitted, because police discovered it in a location in which they were permitted. However, the cocaine and paraphernalia discovered in the bedroom should have been suppressed, because police were not permitted to enter the bedroom.

In general, Jacksonville police officers cannot search a house without a warrant. However, there are exceptions to the rule. On exception to the Jacksonville Florida requirement that a warrant is need for a search is the "protective sweep."
When police officers make an arrest in a house, they "may as a 'precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.'" Rogers v. State, 36 Fla. L. Weekly D725b (Fla. 4th DCA 2011)(citing Maryland v. Buie, 494 U.S. 325, 3341990)). This is known as a protective sweep and cannot go any further than necessary to protect the officers from harm. For a protective sweep to go further, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 334

When the Jacksonville Sheriff's Office conducts a search of a house using the protective sweep exception, it must follow the law as set forth in Florida cases such as Rogers v. State.

In Kilburn v. State, 36 Fla. L. Weekly D394b (Fla. 1st DCA 2011), the Florida First District Court of Appeals ruled that a Florida inventory vehicle search of a vehicle was invalid and declared an unlawful search. The defendant, Kilburn, was arrested for Florida DUI (driving under the influence). The police officer towed Kilburn's car, because it was in an unsafe location. As part of the process, officers conducted an inventory search, but they did not have any standardized criteria or procedures for such a search. During the search, they found marijuana, alprazolam, and hydrocodone inside of a pill bottle. Kilburn was also charged with possession of these drugs.

The Florida appellate court ruled that while inventory searches are permitted, in order for this warrant exception to apply, "the inventory search must be 'conducted according to standardized criteria.' State v. Wells, 539 So. 2d 464, 468 (Fla. 1989)... The requirement for standardized criteria serves to limit police discretion in determining the scope of the search and ensures that the police will not abuse the exception and use the inventory search as a subterfuge for a criminal investigatory search. Id. at 469; see also Rolling v. State, 695 So. 2d 278, 294 (Fla. 1997)."

As a Jacksonville Criminal Lawyer, I have seen hundreds of Jacksonville criminal cases involving illegal drugs and controlled substances. Jacksonville Florida is no stranger to drug crimes, such as arrests related to methamphetamine (Jacksonville Meth Lab Article). Florida Statute Section 893.13 makes it illegal to manufacture, possess, deliver, or sell controlled substances in Jacksonville. This law includes possession of methamphetamine (meth). 

According to a recent study, "More high school seniors this year used marijuana than smoked cigarettes in the past 30 days," USA Today reports. Teenagers need to understand the ramifications involved with marijuana use. In Jacksonville, Florida, possession of less than 20 grams of marijuana is a misdemeanor. While possession of 20 grams or more of marijuana is a felony offense. A plea to a marijuana charge will also result in a driver's license suspension. Jacksonville juveniles charged with possession of marijuana should be given the opportunity to get their charges dropped, whether through a pretrial intervention program or other source. Even though a Jacksonville juvenile may try marijuana as a teenager, he or she should not have to live with that criminal record as an adult. By entering a program and getting the charges dropped, the Jacksonville juvenile would get any needed assistance and be able to avoid a plea to Jacksonville possession of marijuana.

If you are facing Possession of Marijuana (Cannabis) charges in Jacksonville, Florida or the surrounding counties, contact a Jacksonville Possession of Marijuana Lawyer.