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.

GavelThe 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.

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

House arrestThe 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.

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?

window tint duiIn State v. Coley, 157 So.3d 542 (Fla. 4thDCA 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)).”

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

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?

rental carIn 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.

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.

Courtroom1-300x225Offenders that must be designated as “sexual predator” include offenders convicted of:

  1. 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.

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.

drugsF.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.

Burglary in Florida is defined as entering a dwelling, structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter.

F.S. § 810.02(2) indicates that burglary is a felony of the first degree if the offender assaults or batters another person or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon.  It can also be a first-degree felony to use a motor vehicle as an instrument to assist in committing the offense and damaging the dwelling or structure or to cause damage in excess of $1,000.00.

BurglaryF.S. § 810.02(3) indicates that burglary is a felony of the second degree if, during the offense, the offender does not assault or batter a person and is not or does not become armed with a dangerous weapon or explosive.  It will also be a second-degree felony if the offender enters or remains in a dwelling and there is or is not another person in the dwelling and the offender enters or remains.

The Anti-Murder Act in Florida requires violent felony offenders or other certain types of offenders who violate probation or community control to remain in jail until the court determines whether the individual poses a danger to the community.  This law was established in March 2007.  The Florida Department of Corrections will designate those offenders as Violent Felony Offenders of Special Concern or “VFO” on the violation of probation or community control affidavit.

Florida Rules of Criminal Procedure 3.790(b)(3) indicates that except when the alleged violation of probation is based solely on the defendant’s failure to pay costs, fines, or restitution, the defendant shall not be granted bail or any other form of pretrial release prior to the resolution of the probation or community control violation hearing.  The court shall not dismiss the probation violation warrant pending against a defendant without holding a recorded violation hearing at which both the state and the accused are represented.  At that hearing, the court shall make a written finding as to whether the defendant poses a danger to the community.

The court bases its findings on one or more of the following factors:

The majority of criminal cases in Florida get resolved by plea agreements.  In the Florida Rules of Criminal Procedure, Rule 3.171 governs plea agreements.  The prosecutor has broad discretion in plea agreements.  The prosecutor may engage in discussions with the defendant’s attorney or, if the defendant is unrepresented, with the defendant himself as long as a record is made of the discussions.

question criminal issueThe prosecutor may ask the defendant to enter a plea of guilty or no contest (nolo contendere) to a charged crime or to a lesser or related offense in exchange for the prosecutor agreeing to any of the following:

1)  abandon other charges;

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