Articles Posted in Uncategorized

The rules surrounding Restoration of Gun Rights can be confusing.  It is a very detailed process and having the help of an experienced attorney who knows how to navigate the system can help!  Restoration of Gun Rights requires an application to the Florida Clemency Board to begin the process. The application requires certified court documents; specifically, a copy of the charging instrument (indictment, information, or warrant with supporting affidavit) for each felony or misdemeanor conviction (if needed), and a certified copy of the judgment and sentence for each felony or misdemeanor conviction.  Pursuant to Florida Statute, those documents should be provided free of charge for the purpose of a clemency application.  When the Clemency Board receives an application, it is screened for eligibility regarding time frames and all documents are reviewed.  If the Applicant is eligible, the application is forwarded for investigation by the Office of Clemency Investigations.  Cases are assigned on a first-come, first-serve basis and the process can be lengthy.  If the application meets requirements, a report is prepared, and the application is forwarded to the Clemency Board for a decision.

  • The Specific Authority to Own, Possess, or Use Firearms restores to Applicants the right to own, possess, or use firearms, which were lost as a result of a felony conviction.
  • The Clemency Board will not consider requests for firearm authority from individuals convicted in federal, military, or out-of-state courts.

So you went to court and fought a domestic violence injunction, but the Court found grounds to enter the injunction anyway.  What does that mean for you and your rights?  The following is a list of consequences that may be imposed upon you as a result of the injunction:

  • May be ordered to complete a 26-week Batterer’s Intervention Program (BIP)
  • Loss of concealed carry rights

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

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.

Domestic Violence

By Adam Glanzman (Flickr: asg.fbc.vsOSU.11.30.131225 copy) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

The sports world was rocked when journalist Brett McMurphy recently published an article about Ohio State former assistant coach Zach Smith and domestic violence with his wife, Courtney Smith.  Despite indications that Head Coach Urban Meyer knew about the abuse between the Smiths, Meyer denied knowledge of the 2015 incident between them in a Big Ten media days press conference.  Apparently, Zach Smith was arrested in 2009 on suspicion of aggravated battery against his pregnant wife in Florida when Meyer was coaching at the University of Florida.  Meyer knew of the 2009 incident and hired him to be Ohio State’s wide receivers coach anyway. Zach Smith was then charged with criminal trespassing in May 2018 at his now ex-wife’s home and his ex-wife was granted a protective order.  There were nine police reports involving the Smiths between 2012 and 2018.  The story with Urban Meyer has yet to play out—but it is agreed Zach Smith has a serious issue with domestic violence.

If you are accused of domestic violence in Florida, the number one thing you must remember is to REMAIN SILENT.  Ask for an attorney and do not give any statement to police, written or otherwise.  Also remember that you cannot contact the victim! There may be protective orders in place and anything you say or do to the victim can be used against you.  It is difficult when there are children involved but contact your lawyer for advice on how to deal with timesharing. Courts treat domestic violence very seriously and you can find yourself in jail for quite a while if you are not careful to follow orders in place.  As in Zach Smith’s case, you could find yourself with additional charges like trespassing and stalking.

Under Florida law, Domestic Violence Battery is defined as any actual and intentional touching or striking of another person without consent, or the intentional causing of bodily harm to another person, when the person struck is a family or household member.  Penalties can include up to one year in jail or 12 months probation and up to a $1,000.00 fine.  You may also face completion of a 26 week Batterer’s Intervention Program (BIP), additional community service hours, loss of concealed carry rights, and 5 days required jail if you are adjudicated guilty and there is bodily injury.

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)).”

A recent United States Supreme Court case, Byrd v. U.S., No. 16-1371 (2018) discussed the parameters of expectation of privacy under the Fourth Amendment of the U.S. Constitution. There was a circuit split about whether an unlisted driver of a rental car has a reasonable expectation of privacy in the rental vehicle.  The question certified was does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?

rental carIn the case, Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility.  Reed listed no other drivers on her rental agreement and the agreement warned that permitting an unauthorized driver would violate the agreement.  Reed gave the keys to Byrd upon leaving the building and he stored his personal belongings in the trunk and left by himself to drive to Pennsylvania.

Byrd was stopped in Pennsylvania for a traffic infraction whereupon the police learned it was a rental car and he was not the authorized driver.  Byrd had prior drug and weapons convictions.  The police searched the car, stating they did not actually need his consent because he was not listed on the rental agreement.  They found 49 bricks of heroin in the trunk and body armor and the evidence was turned over to federal authorities.  Byrd was charged with federal drug and other crimes.  The District Court denied a motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed because Byrd was not listed on the rental agreement and he lacked a reasonable expectation of privacy in the car.

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.

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.

question criminal issueThe 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;

Contact Information