Articles Posted in Sex Crimes

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.

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.

Florida Statutes § 775.21, also known as the Florida Sexual Predators Act, was established by the Florida Legislature to implement a strategy on how to deal with repeat sexual offenders, sexual offenders who use violence, and sexual offenders who prey on children.  Essentially, this strategy includes ensuring decisions to release sexual predators due to prison overcrowding are not made, providing for specialized supervision of sexual predators who are in the community by specially trained probation officers with low caseloads, requiring the registration of sexual predators with the Florida Department of Law Enforcement, providing for public notification concerning the presence of sexual predators, and prohibiting sexual predators from working with children.

Courtroom1-300x225Offenders that must be designated as “sexual predator” include offenders convicted of:

  1. A capital, life or first-degree felony violation of kidnapping, kidnapping of a child under 13, false imprisonment, false imprisonment of a child under 13 where the victims is a minor or sexual battery, lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, or selling or buying of minors, or something similar from another jurisdiction.

sex criminalWilliam Kuckuck v. State of Florida, 43 Fla.L.Weekly D80b (5th DCA 2017) involves a defendant, William Kuckuck, who was convicted of violating Florida Statutes section 847.0135(3)(b), by knowingly using a computer on-line service, internet service, or other similar device to solicit a person believed to be a parent of a minor child to obtain their consent to engage in unlawful sexual conduct with the child and of violating section 847.0135(4)(b) for traveling to meet the minor child to engage in unlawful sexual conduct after solicitation.

The arrest came about after an FBI Agent posed as the father of 11 and 9 year old daughters and posted an ad on Craigslist seeking “taboo” experiences for his “daughters.”  Kuckuck responded by email and engaged in explicit communication regarding sexual conduct that Kuckuck sought to engage in with the “daughters” on July 14, 2016 and sought consent from the “father” on July 15, 2016.  On July 15, 2016, Kuckuck traveled to have sex with the “daughters” and was arrested.

There were two counts filed by the State of Florida; for his solicitation on July 14, 2016 and his traveling after solicitation on July 15, 2016.  Kuckuck argued that double jeopardy applied and prohibited a conviction on the solicitation count because the conviction would be based upon the same acts as the traveling charge and was subsumed in the traveling count.

Jacksonville sex offenderThe Jacksonville city council, in February,  approved changes to a city ordinance that addressed issues of registered sex offenders and holiday celebration.  The purpose of the ordinance is to protect the public.  The idea is the same as the registration requirement for convicted sex offenders; putting the public on notice and allowing sex offenders to be identified.  Failing to register is a crime on its own, and the new changes to Jacksonville’s ordinance have created the possibility of further criminal prosecution for certain actions.  According to FirstCoastNews.com, the changes to Jacksonville’s ordinance were aimed at closing loopholes sex offenders were using to get around certain prohibitions related to holiday celebration.   For instance, the previous version of the ordinance would not allow sex offenders to wear masks for Halloween.  The law did not address the issue of face paint, so registered sex offenders were using face paint to avoid trouble with the law.  Face painting is now prohibited also.

Another gap that was closed was one that allowed sex offenders to, for instance, put up Halloween decorations early on, then remove the decorations by Halloween.  The new amendments enacted in February closed this loophole as well.  Parents are advised to stay vigilant this holiday season while children are trick-or-treating.  The Florida Department of Law Enforcement’s (FDLE) sex offender and sexual predator website can be found by clicking here.

Stay safe and have fun.  Happy Halloween!

150902_sex-1485587States, including Florida, often pass laws to protect children.  Statutory rape laws are intended to protect children from being victims of sexual advances by older people.  Florida Statute 794.05, entitled Unlawful Sexual Activity with Certain Minors, makes it a felony for any person 24 years old or older to have have sex with a child that is 16 or 17 years old.  The consent of the minor is disregarded by the law when the defendant 24 or older.  NoBullying.com gives insight into the thought process behind the rule that the minor cannot give consent in the eyes of the law.  Jacksonville criminal defense lawyers can sometimes be a bit flustered by this fact.  Especially when lack of knowledge of the victim’s age is not a defense to prosecution, according to Florida Statute 794.021.

Jacksonville criminal defense lawyers know that sex crimes, like statutory rape, are serious.  Most of the time, a defendant will be required to register as a sex offender.  In certain situations, your Jacksonville criminal defense lawyer may be able to argue that under the facts in your case, registration as a sex offender isn’t required.  One the most common arguments is referred to as the “Romeo and Juliet exception”.  When the defendant and the victim are no more than four years apart in age, the defendant can avoid the registration requirement.

When the victim is under 16, Florida Statute 800.04, which governs lewd or lascivious offenses, comes into play.  Sexual intercourse is not a requirement under this statute. It can be used to prosecute inappropriate touching of children under 16, as well sexual intercourse with children under 16.  The Law Office of David M. Goldman, PLLC has experienced Jacksonville criminal defense lawyers on staff that can help you or a loved one  in your time of need.  Whether you’re looking to simply speak with a Jacksonville criminal defense lawyer to know what your legal rights are or if you need a Jacksonville criminal defense lawyer to defend you in a criminal case, case us today at (904) 685-1200.  We can help.  Click here to view our Jacksonville Criminal Defense Lawyer Blog for more helpful information.

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