Assault / Battery

August 27, 2021

How Can You Appeal a Criminal Conviction?

In Florida, someone who has been convicted of a crime can consider appealing a conviction to obtain relief from the conviction and sentence. The criminal court system allows appeal. However, most lower court decisions are upheld. Therefore, attempting to appeal a case may be a significant challenge. Some appeals are a matter of right and some are discretionary on the part of the appellate court. Generally, the party the files the appeal attempts to show a material error on the part of the trial court.

What Type of Error is Substantial?

The appellate courts distinguish between harmless error and a material error. Where an appellate court reviews an error as harmless, it is not considered to have a substantial impact on the disposition and eventual result of the case. Where an error by a trial court does not show that it affects the substantial rights of a party, it may be difficult to prove that a material mistake was made by the trial court and obtain relief.

July 9, 2021

If You Have Been Charged with a Crime, Do You Know What Mens Rea Means?

by Neil Weinreb

What is Mens Rea?

Mens Rea is the mental element of an individual’s intent to commit a crime. It can also be expressed as the knowledge that a particular act would result in a crime being committed.

Why is Mens Rea significant if I have been accused of a crime?

June 11, 2021

DO YOU UNDERSTAND YOUR MIRANDA RIGHTS?

by Neil Weinreb

The United States Supreme Court handed down a decision that has been historic in a case entitled the Miranda v. Arizona, in 1966. Essentially, four cases made it to the United States Supreme Court with similar issues. All cases involved interrogation by police in a closed room where the putative Defendant was cut off from the outside world. In three of these cases, the Defendant signed statements that were admitted at trial and one of the cases involved oral statements admitted at trial. Following the Miranda Case, whenever a person is taken into detention, that individual must be advised of their Fifth Amendment right against making any self-incriminating statements. When the police question someone in custody, they must advise:

You have the right to remain silent.
Anything that you say can and will be used against you.

June 3, 2021

What is the Speedy Trial Rule?

by Neil Weinreb

The Sixth Amendment to the U.S. Constitution is what Florida’s Speedy Trial Rules are based upon. The right to a Speedy Trial is a fundamental right. It is designed to eliminate incarceration for long periods of time when one is accused of a crime. The Florida Rules of Criminal Procedure provide that persons charged with a crime will be brought to trial within 90 days of arrest where the crime charged is a misdemeanor and within 175 days where the crime charged is a felony. Rule 3.191(b) provides for a Defendant to demand a speedy trial in writing and when this occurs, he or she is entitled to trial within 50 days. Under this rule, such a demand signifies that the Defendant is prepared to proceed to trial within 5 days.

What happens if the state fails to conduct a trial within the statutory time periods?

Where the state fails too bring the accused to trial within the above referenced time periods, the Defendant is discharged (except for exceptions to the tolling of these time periods).

April 26, 2021

When Do Arrest Warrants Expire in Florida?

by Neil Weinreb

Is There a Warrant Issued in My Name?

There are numerous warrants issued for almost every type of crime that occurs in Florida. The warrant system is used to apprehend criminals and those accused of a crime. Despite the belief that warrants expire, they do not. Additionally, warrants can be executed at anytime. Just because you may not be located within the territory of the state that issued a warrant, you are not safe from exposure to arrest. It is common for warrants to be issued for both felonies and misdemeanors in Florida. A warrant will be active until it is served, the individual dies, or the judge recalls the warrant. It is important to resolve a warrant promptly, so one does not have to deal with a multitude of problems unexpectedly. Your arrest could result from the most minor traffic stop for a tailgate light.

The FDLE has a database which usually lists active warrants and may be found online at http://www.fdle.state.fl.us/. You can select “search wanted persons” and you will be taken to a search screen.

March 15, 2021

SPEEDY TRIAL RULE: WHAT IS IT AND HOW IS IT BEING IMPLEMENTED DURING THE PANDEMIC?

by B. Elaine Jones

The Sixth Amendment to the Constitution of the United States provides that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Constitution does not define what a speedy trial means. There is a Speedy Trial Act governing federal criminal charges and in Florida state trials there is a criminal rule of procedure that addresses speedy trial. The Florida rule provides for Speedy Trial without Demand which requires defendants to be brought to trial within 90 days from the arrest on a misdemeanor, or 175 days from the arrest for a felony. There is also a provision for Speedy Trial Upon Demand this provides that every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days by filing a pleading entitled “Demand for Speedy Trial”. These provisions can be found in Florida Rules of Criminal Procedure Rule 3.191.

March 15, 2021

Who Should File a Rule 3.850 Post Conviction Relief Motion?

by Neil Weinreb

When Should You File a Post Conviction Relief Motion in Florida?

A motion for post conviction relief is a motion that is filed after an individual is convicted of a crime where the court is being asked to relieve a person from their conviction. The following grounds may be used as the reason for filing:

The sentence imposed was illegal or violates the Florida or United States Constitution.

May 22, 2018

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

by David M. Goldman

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

February 26, 2018

The 411 About Plea Agreements in Florida

by David M. Goldman

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;

December 4, 2017

Arrested for Assault or Battery of a Law Enforcement Officer? Penalties in Florida are More Severe than Normal

by David M. Goldman

Florida law makes penalties stricter for assault or battery of a law enforcement officer. Under Florida Statutes 784.07(2), when you are charged with knowingly committing an assault or battery upon a law enforcement officer, the charge will be reclassified as follows:

(a) Second degree misdemeanor assault will be a first degree misdemeanor

(b) First degree misdemeanor battery will be a third degree felony