Articles Posted in Evidence

What is probable cause?

When a police officer conducts an arrest, probable cause is the standard used to justify a search by police.  It simply is the legal basis upon which a legal search by a policeman or police agency can be based.  The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

How does a warrant get issued?

In short, the cause of action of Civil Theft involves the taking of another person’s property without their consent with the intention to deprive the person of their property.  There is no distinction in terms of the act of theft between criminal and civil theft.  However, the consequences are different and the proof required is also different.

772.11 Civil remedy for theft or exploitation.

(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

Police frequently conduct searches of individuals based on a reasonable suspicion.  A brief investigative detention based on a reasonable suspicion is called a “Terry Stop”.

What is Reasonable Suspicion?

Reasonable suspicion is a term that is used to refer to a police officer’s reasonably justifiable suspicion that a person had committed a crime or was in the process of committing one, or was about to commit one.  Where the officer believes that a crime may have been committed or is about to be committed, he or she may make a temporary detention of the suspect and may proceed to pat them down.

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.

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?

The United States Supreme Court handed down a decision that has been historic in a case entitled the Miranda v. Arizona, in 1966Essentially, 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:

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

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:

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

What Are the Potential Costs?

When an individual is charged with theft or shoplifting in Florida, he or she faces potentially serious penalties.  This can affect one’s ability to secure a job because such a crime is classified as a crime of dishonesty.  This is significant even though a misdemeanor is typically considered relatively insignificant.  When a potential employer performs a background check and finds a conviction for such a crime in a candidate’s history, it may disqualify the candidate depending on the type of job.  The penalties for shoplifting or retail theft include jail, fines, civil penalties, restitution, court costs, and attorney’s fees.  In the event one is convicted a Grand Theft in Florida, they may be sentenced a prison.

How Does Florida Law Define Retail Theft?

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

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.

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