Articles Posted in Evidence

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.

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)).”

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