Jacksonville Criminal Defense Lawyer Blog

October 5, 2018

New Federal Decision Regarding DUI and Second Amendment Gun Rights

In a U.S. District Court decision issued on September 28, 2018 by Chief Judge Christopher C. Conner from the Middle District of Pennsylvania, the Court ruled that the felon-in-possession ban of 18 U.S.C. §922(g)(1) is unconstitutional as to Raymond Holloway, Jr. in violation of the Second Amendment to the United States Constitution.

18 U.S.C. §922(g)(1) states that “it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Raymond Holloway, Jr. was charged with DUI and speeding in December 2002 in violation of Pennsylvania law, but he completed a diversion program and the charges were dismissed. In January 2005, he was again arrested and convicted for DUI at the highest rate of alcohol and it was a misdemeanor in the first degree. He completed his sentence in March 2006. In September 2016, Holloway tried to purchase a firearm and his application was denied following an instant background check. Upon appeal, Pennsylvania State Police stated that pursuant to 18 U.S.C. §922(g), the DUI conviction prohibited him from buying a firearm. Holloway filed suit challenging the Code under the Second Amendment of the United States Constitution.

August 9, 2018

Everything You Wanted to Know About Florida Conceal Carry Licenses

by Holli Dean

The Florida Department of Agriculture and Consumer Services (the Department) issues licenses to carry concealed weapons or concealed firearms in the State of Florida and they are good for 7 years. Concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but does not include a machine gun. You must carry the license at all times you have possession of the weapon or firearm and must display the license and valid I.D. upon demand by a law enforcement officer or be assessed a $25 fine for a violation.

According to section 790.06, Florida Statutes, the Department shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department shall revoke a license if the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding 3 years.

The Department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement (FDLE) and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license until final disposition of the case. The Department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence.

August 9, 2018

Florida Domestic Violence Accusations in the Wake of the Urban Meyer-Zach Smith Scandal

by Holli Dean

By Adam Glanzman (Flickr: asg.fbc.vsOSU.11.30.131225 copy) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

The sports world was rocked when journalist Brett McMurphy recently published an article about Ohio State former assistant coach Zach Smith and domestic violence with his wife, Courtney Smith. Despite indications that Head Coach Urban Meyer knew about the abuse between the Smiths, Meyer denied knowledge of the 2015 incident between them in a Big Ten media days press conference. Apparently, Zach Smith was arrested in 2009 on suspicion of aggravated battery against his pregnant wife in Florida when Meyer was coaching at the University of Florida. Meyer knew of the 2009 incident and hired him to be Ohio State’s wide receivers coach anyway. Zach Smith was then charged with criminal trespassing in May 2018 at his now ex-wife’s home and his ex-wife was granted a protective order. There were nine police reports involving the Smiths between 2012 and 2018. The story with Urban Meyer has yet to play out—but it is agreed Zach Smith has a serious issue with domestic violence.

If you are accused of domestic violence in Florida, the number one thing you must remember is to REMAIN SILENT. Ask for an attorney and do not give any statement to police, written or otherwise. Also remember that you cannot contact the victim! There may be protective orders in place and anything you say or do to the victim can be used against you. It is difficult when there are children involved but contact your lawyer for advice on how to deal with timesharing. Courts treat domestic violence very seriously and you can find yourself in jail for quite a while if you are not careful to follow orders in place. As in Zach Smith’s case, you could find yourself with additional charges like trespassing and stalking.

Under Florida law, Domestic Violence Battery is defined as any actual and intentional touching or striking of another person without consent, or the intentional causing of bodily harm to another person, when the person struck is a family or household member. Penalties can include up to one year in jail or 12 months probation and up to a $1,000.00 fine. You may also face completion of a 26 week Batterer’s Intervention Program (BIP), additional community service hours, loss of concealed carry rights, and 5 days required jail if you are adjudicated guilty and there is bodily injury.

June 28, 2018

Florida Supreme Court to Rule on Retroactive Application of Stand Your Ground Law

by Holli Dean

The Florida Supreme Court will take up a question about whether a 2017 change to Florida’s “Stand Your Ground” self-defense law should apply to older cases. The 2017 change shifted the burden of proof from the defense to the prosecution. Two appellate courts have split about whether the change in 2017 should apply retroactively to defendants who were arrested before the law took effect but whose cases were pending.

The case is Tashara Love v. The State of Florida, 3D17-2112 (Fla. 3d DCA May 11, 2018) a case that was heard by the Third District Court of Appeal. Love’s writ of prohibition was denied, essentially denying her statutory immunity under the Florida Stand Your Ground Law, F.S. 776.032. On November 26, 2015, Love and a group of women were involved in an altercation outside a Miami-Dade nightclub. Love shot the victim, Thomas Lane, as he was about to hit her daughter. Love was charged with one count of attempted second degree murder with a firearm and Love invoked the Stand Your Ground Law because she committed the crime while defending her daughter.

Before the date the immunity hearing was held, the Florida Legislature amended F.S. 776.032. Prior to the amendment, the Florida Supreme Court held that defendants had the burden of proof in pretrial immunity hearings and they had to prove by a preponderance of the evidence their use of force was justified. The amendment provided that once a self-defense claim of immunity from criminal prosecution was raised by the defendant, the burden of proof by clear and convincing evidence is on the prosecution seeking to overcome the immunity. The State argued at her immunity hearing that the statute did not apply retroactively, and the trial court agreed and applied the preponderance of the evidence standard of proof. The Third DCA ruled that the statute did not apply retroactively, and Love was not entitled to the shift in burden of proof.

June 28, 2018

Community Control Sentence In Florida: What Is It and How Does It Work?

by Holli Dean

Community Control in Florida is a supervision program that is an alternative to incarceration only used in felony cases. If you are sentenced to Community Control, you are confined to your home unless you are working, attending school, doing public service hours, participating in treatment, or any activity that has been approved by your Community Control officer. It’s a benefit because you are home with your family and not in prison, but it can be very hard to follow the conditions. Frequently, probation

The Department of Corrections will supervise you and assign you a Community Control officer (think probation officer). Offenders will be required to report weekly to the Community Control officer and complete a daily activity log each week and a Community Control Offender Schedule to have preapproved regarding your whereabouts for the upcoming week. You will also be required to provide an hourly accounting of your whereabouts for the prior week to ensure you did not deviate from your preapproved schedule.

One thing to note is while you may be approved for your residence, common areas such as recreational facilities, swimming pool area, business office, laundry facilities, or the mail area are not included in areas you may be during Community Control.

June 8, 2018

Traffic Stops for Window Tinting and How it Affects Your DUI Case

by Holli Dean

Florida Statute 316.2953 provides the law on window tinting and what is legal in the State of Florida. It states that “a person shall not operate any motor vehicle on any road on which vehicle the side wings and side windows on either side forward of or adjacent to the operator’s seat are composed of, covered by, or treated with any sunscreening material or other product or covering which has the effect of making the window nontransparent or which would alter the window’s color, increase its reflectivity, or reduce its light transmittance.” The statute provides that “a sunscreening material is authorized for such windows if, when applied to and tested on the glass of such windows on the specific motor vehicle, the material has a total solar reflectance of visible light of not more than 25 percent as measured on the nonfilm side and a light transmittance of at least 28 percent in the visible light range.” What happens if a police officer sees your window tint and pulls you over, resulting in DUI arrest?

In State v. Coley, 157 So.3d 542 (Fla. 4^thDCA 2015), Gary Coley was stopped by police for an illegal window tint. He was charged with possession of cocaine and cannabis and he moved to suppress any and all contraband seized, and statements made, arguing that there was not probable cause for the stop. The police officer testified that he had issued many citations for illegal tints of side windows during the hearing. He stated that in his experience, the tint is illegal where the driver of the vehicle cannot be seen. The officer correctly stated that per statutory regulation, a tint measurement of less than 28 % is illegal. The officer indicated that he stopped Coley because he could not see the driver of the vehicle through the tint of its side windows, thereby giving him probable cause to conduct the traffic stop. The defense argued that the traffic stop was illegal due to the officer’s mistake of law because the law does not state that if a driver cannot be seen through it, then the tint is illegal. The trial court granted the motion to suppress.

The Fourth District Court of Appeals held that a traffic stop is permissible under the Fourth Amendment where an officer has probable cause to believe that a traffic infraction occurred. The court provided: “As we have previously recognized, the probable cause standarddoes not demand any showing that such belief be correct or more likely true than false. A ‘practical, nontechnical’ probability … is all that is required…. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. State v. Neumann, 567 So.2d 950, 952 (Fla. 4th DCA 1990) (citations omitted) (quoting Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983)).”

May 22, 2018

Golfer Lucas Glover’s Wife Arrested in Florida: Possible Criminal Implications

by Holli Dean

National headlines were made when the wife of former U.S. Open champion Lucas Glover was arrested for domestic violence battery and resisting arrest in St. Johns County, Florida on May 13, 2018. The altercation allegedly occurred after Lucas Glover missed the 54-hole cut at The Players Championship. Lucas Glover told authorities that his wife gets violent every time he does not play well in a major PGA Tournament. There were allegedly visible injuries on Lucas Glover and his mother. Krista Glover faces a court date on May 31, 2018 and was released on a $2,500 bond.

Krista Glover is charged under F.S. 784.03 which states the offense of battery occurs when a person:

1) actually and intentionally touches or strikes another person against the will of the other; or

May 17, 2018

Byrd v. United States: An Examination of Expectation of Privacy in Rental Cars

by Holli Dean

A recent United States Supreme Court case, Byrd v. U.S., No. 16-1371 (2018) discussed the parameters of expectation of privacy under the Fourth Amendment of the U.S. Constitution. There was a circuit split about whether an unlisted driver of a rental car has a reasonable expectation of privacy in the rental vehicle. The question certified was does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?

In the case, Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Reed listed no other drivers on her rental agreement and the agreement warned that permitting an unauthorized driver would violate the agreement. Reed gave the keys to Byrd upon leaving the building and he stored his personal belongings in the trunk and left by himself to drive to Pennsylvania.

Byrd was stopped in Pennsylvania for a traffic infraction whereupon the police learned it was a rental car and he was not the authorized driver. Byrd had prior drug and weapons convictions. The police searched the car, stating they did not actually need his consent because he was not listed on the rental agreement. They found 49 bricks of heroin in the trunk and body armor and the evidence was turned over to federal authorities. Byrd was charged with federal drug and other crimes. The District Court denied a motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed because Byrd was not listed on the rental agreement and he lacked a reasonable expectation of privacy in the car.

May 11, 2018

Understanding the Florida Sexual Predator Designation

by Holli Dean

Florida Statutes § 775.21, also known as the Florida Sexual Predators Act, was established by the Florida Legislature to implement a strategy on how to deal with repeat sexual offenders, sexual offenders who use violence, and sexual offenders who prey on children. Essentially, this strategy includes ensuring decisions to release sexual predators due to prison overcrowding are not made, providing for specialized supervision of sexual predators who are in the community by specially trained probation officers with low caseloads, requiring the registration of sexual predators with the Florida Department of Law Enforcement, providing for public notification concerning the presence of sexual predators, and prohibiting sexual predators from working with children.

Offenders that must be designated as “sexual predator” include offenders convicted of:

A capital, life or first-degree felony violation of kidnapping, kidnapping of a child under 13, false imprisonment, false imprisonment of a child under 13 where the victims is a minor or sexual battery, lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, or selling or buying of minors, or something similar from another jurisdiction.

April 20, 2018

Controlled Substance Classifications under Florida Law

by Holli Dean

F.S. § 893.13 provides that a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. The penalties can be a felony or misdemeanor depending on the type and quantity of controlled substance you possess, among other things such as selling on a school, church, or nursing home grounds.

F.S. § 893.03 lists the controlled substances and how they are classified under Florida law.

Schedule I: Drugs that have a high potential for abuse and have not currently accepted medical use. Some examples include Heroin, LSD, Peyote, PCP, and MDA.