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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;

alibi crimeYou may find yourself arrested for a crime that occurred at a time you were somewhere else completely at the same time the crime was being committed!  There is a special procedure to handle this situation in Florida criminal courts and its important that those procedures are followed or it could result in your evidence not being used at trial.

In Florida pursuant to Rule 3.200, Florida Rules of Criminal Procedure, upon the written demand of the prosecuting attorney, a defendant in a criminal case who intends to offer evidence of an alibi in their defense must file a Notice of Alibi with the Court and serve it on the prosecutor no less than 10 days before trial.

The demand from the prosecutor will include the place, date and time of the commission of the crime charged as is known to the prosecutor.

negligence_500-288x300Second chances are a precious commodity in the world. Second chances in the criminal justice system are even more precious. Oftentimes, the opportunity to be given a break in the criminal justice system comes in the form of diversion programs.  They give people the opportunity to say, “oops”, and try again.  Diversion programs can be referred to by different names, but in general will give a person a chance not to be prosecuted as a result the offender’s participation in a program, typically aimed at addressing some sort of issue.  For instance, a person that is caught shoplifting may be required to attend a theft class as part of diversion.  Community service and fines are also common, since there is normally a fee attached to participating in the program.  Some other terms used are Pre-trial Intervention (PTI) or Deferred Prosecution (DP).

Florida Statute 948.08 gives state prosecutors discretion to use PTI programs.  In the case of  State of Florida vs. Michael Board, the defendant complained after the State revoked the PTI program due to alleged violations of the agreement by Mr. Board.  The trial court agreed with Mr. Board and required to the State to request permission from the trial court before being allowed to revoke PTI.  The State appealed and the appellate court sided with the State, pointing out that Florida law gives all discretion regarding PTI to the prosecution agency.

In many cases where the defendant has no prior record and the case does not involve a violent offense, the State will use its discretion to send the defendant to PTI.  The benefits of PTI lie primarily in the fact that the case will be dropped upon successful completion of the program.  Being able to apply to have your record sealed or expunged after completion is another nice benefit of PTI.  The programs may involve things from community service on the one hand, to classes being taken on the other hand.  In many cases, there are multiple requirements, but having the case dropped usually makes the program worth any trouble associated.  In many cases, the sooner you can have an attorney working on your behalf to convince the State that PTI is appropriate, then the better your chances of getting into PTI.  To speak an experienced Jacksonville criminal lawyer about your case, call us today to schedule a free consultation.

Things that you don’t know can, and oftentimes, will hurt you.  Under Florida’s criminal law, it appears to not be widely known by the average person that crimes committed by another person can get you into trouble under some circumstances.  Florida Statute 777.011, entitled Principal in the first degree, states “Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.”  In short, you can be charged if you commit the crime or if you help or assist in anyway.

Jacksonville criminal defense lawyerAs a Jacksonville criminal defense lawyer, I have encountered the surprise of clients and family members, typically parents, who are puzzled how a person who was not present ends up being charged with a crime.  For example, let’s say Jon Doe is a seventeen year old you man just a few weeks away from his eighteenth birthday.  John knows of a house where there is a gun collection.   John tells his friend, who has a history of burglarizing houses, where the house is located and how to find the guns inside the house.  The friend later breaks into the home and steals the guns while John is at work.  The friend has committed an Armed Burglary, which is a burglary committed when an offender is armed or becomes armed during the commission of a burglary.  Here, John’s friend becomes armed when he steals the guns from the house.  Can John be charged with Armed Burglary?  The answer is “yes”.  The horrible news for John is that Armed Burglary is an offense that is punishable by a maximum of life in prison.  John’s age makes it likely that he will be charged as an adult under these circumstances.

Remember when a person aids or counsels another regarding the commission of a criminal offense, the person may be charged whether or not the person was present at the time the offense is committed.  In the example used here John has certainly aided his friend with the Armed Burglary.  At the Law Office of David M. Goldman, PLLC, we have experienced Jacksonville criminal defense lawyers that can help you or a loved one in your time of need.  We can help protect your rights and help you reach the best outcome under the circumstances in your case.  Initial consultations are free.  Call us today to schedule your consultation with a qualified Jacksonville criminal defense lawyer.

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