Articles Posted in Gun Crimes

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.

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.

What is Petit Theft?

Petit Theft is defined in the Florida Statutes under F.S. 812.014(2)-(3)(c).  Where property that is involved in a theft is valued at less than $750, petit theft is usually the correct charge.

In order to prove the crime of Petit Theft, the following must be proven:

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).

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.

            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.

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.

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.

Police protectPeterson 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.

Conceal CarryThe 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.

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