Jacksonville Criminal Defense Lawyer Blog

April 20, 2018

Controlled Substance Classifications under Florida Law

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.

April 11, 2018

Basics of Burglary in Florida

by Holli Dean

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.

F.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.

April 2, 2018

Probation Violations and the Florida Anti-Murder Act

by Holli Dean

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:

February 26, 2018

The 411 About Plea Agreements in Florida

by Holli Dean

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.

The 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;

February 2, 2018

UPDATE: Certain Convicted Felons in Florida Could Have Another Option for Civil Right Restoration

by Holli Dean

Recently, I wrote about new House Bill 903, the Economic Redemption and Restoration of Constitutional Rights Act. If passed, this law would authorize certain convicted felons to petition for constitutional or civil rights to be restored in the circuit court of the county in which the felon resides or in the county where the felon was convicted. At that time, a class-action lawsuit, Hand v. Scott, was pending against Gov. Rick Scott, the Clemency Board, and six other state officials, including the Secretary of State and the Department of Corrections Head. The lawsuit was filed by the Fair Elections Legal Network “FELN,” on behalf of nine former felons.

According to the FELN, Florida is one of four states that denies the right to vote to all former felons until they petition for rights restoration, and 1.68 million Floridians currently do not have the right to vote due to a felony conviction (the highest state total in the nation). Over 10,000 are waiting for a hearing on their restoration applications. If no new applications were submitted, it would take the Clemency Board almost 51 years to hear the entire backlog of applicants.

As cited from a FELN press release:

January 26, 2018

Eyewitness Identification Procedures in Criminal Cases Must Be Closely Examined

by Holli Dean

Recently, a new law went into effect in Florida regarding eyewitness identification in criminal cases. Florida Statutes section 92.70 is called the Eyewitness Identification Reform Act “EIRA.” If you have a criminal case where an eyewitness has identified you, it is very important that these procedures were followed or the identification can be thrown out of court. The statute contemplates eyewitness identification procedures being more uniform and fair with the revisions.

F.S. 92.70 specifies that the lineup in a criminal case must be conducted by an independent administrator. The statute defines independent administrator as “a person who is not participating in the investigation of a criminal offense and is unaware of which person in the lineup is the suspect.” The police may use a neutral alternative method of identification if there is no independent administrator. One alternative method listed in the statute is a photo lineup. An automated computer program that can automatically administer the photo lineup to the eyewitness and prevent the lineup administrator from knowing which photo is being viewed until the end can be used for identification. Or the photographs can be placed in folders, randomly numbered and shuffled and then presented to the eyewitness so the lineup administrator cannot see or track which photo is being viewed until the end.

Under the EIRA, before the lineup, the eyewitness must be told and acknowledge in writing:

January 18, 2018

Can Law Enforcement Obtain a Blood Sample Without Your Consent in a DUI Case?

by Holli Dean

In certain circumstances, the answer may be yes. In Aguilar v. State, 43 Fla.L.Weekly D179a (3^rd DCA 2018), Juan Aguilar appeals a conviction for DUI crimes DUI Manslaughter, DUI with person or property damage, and DUI causing serious bodily injury, along with two counts of DUI, the lesser included offense. These charges arose out of a three car accident that occurred at around 3:00 a.m. one evening. Aguilar lost control of his car and struck one person who died, two who suffered serious bodily injuries, and one who suffered minor injuries. A state trooper observed Aguilar was “somewhat unresponsive, incoherent” and had “blood shot watery eyes,” “slurred speech,” and “had odor of alcohol” coming from his person and car.

The state trooper indicated that because there were “significant indicators” that Aguilar was displaying an “alcohol related impairment,” he came to the trauma center where Aguilar was taken to get a “blood draw.” He indicated that he made no effort to get a warrant to obtain the blood because of “time restraints.” He indicated that he again smelled an odor of alcohol and noticed his face was “flushed” and his eyes were “bloodshot and watery.” The blood sample taken, without consent or a warrant, showed a blood alcohol level of 0.112. Aguilar filed a motion to suppress the blood test results due to a lack of probable cause and lack of warrant. The State introduced evidence that it would have taken at least four hours to obtain a warrant and that “because of the natural metabolization of alcohol in the bloodstream, there were time constraints creating exigent circumstances to justify an exception to the warrant requirement.” The trial court denied the motion to suppress.

The U.S. Supreme Court has addressed the exigency exception to blood testing in DUI cases several times. It held that an exception to the Fourth Amendment for searches conducted outside the approval of a judge applies when “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” The U.S. Supreme Court has held that natural dissipation of alcohol in the bloodstream was not a per se exigency, but one factor to consider in the totality of the circumstances test.

January 3, 2018

House Bill 903: Certain Convicted Felons in Florida Could Have Another Option for Civil Right Restoration

by Holli Dean

Civil Right Restoration in Florida currently takes decades for the state Board of Executive Clemency to process because they have 4 clemency hearings a year where the Governor and the Cabinet consider requests by fewer than 100 people at a time to restore their right to vote, run for office or own a gun. See Miami Herald, “Thousands of Florida Felons Wait Decades to Regain the Right to Vote,” published July 13, 2017, by Steve Bousquet. There are more than 20,000 clemency applications pending at the moment. This has been a long-standing issue in the State of Florida and there are numerous options being considered. One of these options is House Bill 903.

Rep. Cord Byrd, of Jacksonville Beach, has introduced House Bill 903, entitled the Economic Redemption and Restoration of Constitutional Rights Act. If passed, this law would authorize certain convicted felons to petition for constitutional or civil rights to be restored in the circuit court of the county in which the felon resides or in the county where the felon was convicted. The petition must contain the following:

Documentation showing the conviction, the sentence imposed and served, and any release granted or other disposition of each case

January 2, 2018

Kuckuck v. State: An Examination of Double Jeopardy With Solicitation and Traveling After Solicitation

by Holli Dean

William Kuckuck v. State of Florida, 43 Fla.L.Weekly D80b (5^th DCA 2017) involves a defendant, William Kuckuck, who was convicted of violating Florida Statutes section 847.0135(3)(b), by knowingly using a computer on-line service, internet service, or other similar device to solicit a person believed to be a parent of a minor child to obtain their consent to engage in unlawful sexual conduct with the child and of violating section 847.0135(4)(b) for traveling to meet the minor child to engage in unlawful sexual conduct after solicitation.

The arrest came about after an FBI Agent posed as the father of 11 and 9 year old daughters and posted an ad on Craigslist seeking “taboo” experiences for his “daughters.” Kuckuck responded by email and engaged in explicit communication regarding sexual conduct that Kuckuck sought to engage in with the “daughters” on July 14, 2016 and sought consent from the “father” on July 15, 2016. On July 15, 2016, Kuckuck traveled to have sex with the “daughters” and was arrested.

There were two counts filed by the State of Florida; for his solicitation on July 14, 2016 and his traveling after solicitation on July 15, 2016. Kuckuck argued that double jeopardy applied and prohibited a conviction on the solicitation count because the conviction would be based upon the same acts as the traveling charge and was subsumed in the traveling count.

December 21, 2017

Can You Refuse a Test Given by Law Enforcement When Stopped for DUI in Florida?

by Holli Dean

If you are ever stopped for DUI, you may not trust the breath test and want to refuse to take the test or you may even want to ask for a separate blood test or breath test by a lab of your choosing. In Florida, your license can be suspended for refusal to submit to a breath, blood, or urine test. You can ask for a review of your license suspension, but a hearing officer will be looking at certain factors under the statute at the review hearing. Florida courts have determined that a law enforcement officer may select the initial test; and refusal will result in license suspension.

In the case of Dept. of Highway Safety and Motor Vehicles v. Green, 702 So.2d 584 (2^nd DCA 1997), Mr. Green declined to take a breath test after being stopped for DUI. He was observed to be weaving his vehicle and to have bloodshot eyes, alcohol on his breath, and to be unsteady on his feet. He failed a standard set of roadside sobriety tests. He was arrested and taken to the breath testing unit. The officer provided the “implied consent” warning indicating a refusal to take the breath test would result in a suspension of his driving privileges. Mr. Green refused. He, instead, offered to take a blood test and requested assistance from the arresting officer by bringing him a telephone book or a telephone to contact a laboratory.

Mr. Green argued that he had the right to select the test of his choice and the officer was obligated to assist him in obtaining that test. The Court held that the officer has the right to select the initial test, and it can be “an approved chemical test or physical test.” Only after a driver has complied with the initial law enforcement selected test does an officer have to assist a driver in obtaining a blood test or secondary test.