Jacksonville Criminal Defense Lawyer Blog

June 11, 2019

Duty to Protect Children: The Scot Peterson Case

February 14, 2018 is a day that will never be forgotten when a gunman by the name of Nikolas Cruz opened fire devasting Marjory Stoneman Douglas High School in Parkland, Florida killing 17 students and injuring multiple staff members. Scot Peterson was an armed officer at the school at the time of the shooting. Peterson found himself caught in the middle when he was criminally charged with the inability to take action in the protection of students and staff members.

Peterson was admitted into Broward County Jail and was charged with eleven counts of second- and third-degree felony neglect of a child (F.S 827.03) and a second-degree misdemeanor of culpable negligence (F.S. 784.05). As to neglect of a child, the State must prove failure or omission to provide a child with care, supervision, and services necessary to maintain the child’s physical and mental health as well as the failure of reasonable effort to protect a child from abuse, neglect, or exploitation by another person. To convict on misdemeanor culpable negligence, the State must prove exposure to personal injury. During the school shooting, Peterson allegedly retreated to safety instead of taking action against the gunman when shots were fired. Shortly after the incident, Peterson obtained a bad reputation and was nicknamed “the Coward of Broward,” leaving families in an uproar about his failed negligence. Mr. Peterson stated that he continuously replays the shooting over in his head and is quoted as saying, “There wasn’t even time to think, it was my job and I couldn’t find him (the gunman).”

The charges that were filed against Mr. Peterson are not typical; it is very unusual for law enforcement to be held criminally liable for not protecting the public. Constitutional law, as interpreted by the Supreme Court, does not generally provide for the public to have the right to expect the police to protect against harm. The charges against Peterson in regard to the neglect of a child and culpable negligence is not specifically for law enforcement and is usually applied to parents. This case brings into question what this may mean for other officers and how school officers may need to re-evaluate how to respond in these situations. The critical question that still stands is whether Peterson had a constitutional duty to protect the children from the actions of Cruz.

November 7, 2018

Restoring Gun Rights In Florida After A Felony Conviction

by Holli Dean

The rules surrounding Restoration of Gun Rights can be confusing. It is a very detailed process and having the help of an experienced attorney who knows how to navigate the system can help! Restoration of Gun Rights requires an application to the Florida Clemency Board to begin the process. The application requires certified court documents; specifically, a copy of the charging instrument (indictment, information, or warrant with supporting affidavit) for each felony or misdemeanor conviction (if needed), and a certified copy of the judgment and sentence for each felony or misdemeanor conviction. Pursuant to Florida Statute, those documents should be provided free of charge for the purpose of a clemency application. When the Clemency Board receives an application, it is screened for eligibility regarding time frames and all documents are reviewed. If the Applicant is eligible, the application is forwarded for investigation by the Office of Clemency Investigations. Cases are assigned on a first-come, first-serve basis and the process can be lengthy. If the application meets requirements, a report is prepared, and the application is forwarded to the Clemency Board for a decision.

The Specific Authority to Own, Possess, or Use Firearms restores to Applicants the right to own, possess, or use firearms, which were lost as a result of a felony conviction.
The Clemency Board will not consider requests for firearm authority from individuals convicted in federal, military, or out-of-state courts.

November 7, 2018

Consequences of a Permanent Domestic Violence Injunction in Florida

by Holli Dean

So you went to court and fought a domestic violence injunction, but the Court found grounds to enter the injunction anyway. What does that mean for you and your rights? The following is a list of consequences that may be imposed upon you as a result of the injunction:

May be ordered to complete a 26-week Batterer’s Intervention Program (BIP)
Loss of concealed carry rights

November 5, 2018

Do’s and Don’ts After Being Served With an Injunction in Florida

by Holli Dean

You have been served with a domestic violence injunction in Florida. Now what? Though you have been served with an injunction, most people don’t understand what you should and should not do to abide by an injunction. See below some handy rules of thumb:

DO hire an attorney to represent you as soon as possible
DON’T contact the petitioner and/or ask the petitioner to drop the injunction

October 5, 2018

New Federal Decision Regarding DUI and Second Amendment Gun Rights

by Holli Dean

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)).”