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?

When someone gets arrested it is one of the most stressful things that can happen to you. Especially if you are not familiar with the legal system and process. Many people think that their Miranda Rights must be read to them simply because they have been arrested. That is not what the Miranda rights provide. If the police are not questioning you beyond basic information such as what is your name, address, and phone number, they are not required to read your Miranda rights to you even if you are arrested. Miranda rights do not kick in until you are being interrogated by police and not permitted to leave. A suspect is being “interrogated” when police officers begin asking him or her questions that could implicate him or her in a crime. While Miranda warnings are extremely important, an officer’s failure to read them in and of itself does not result in a dismissal of criminal charges. Simply put, Miranda warnings themselves are not constitutional rights; rather, they are safeguards against the Fifth Amendment privilege against self-incrimination. If you have been arrested, consulting with an experienced Jacksonville criminal attorney is advised.

Miranda rights or Miranda warnings get their name from the 1966 United States Supreme Court case, Miranda v. Arizona. In that case, the Supreme Court held the United States Constitution’s Fifth Amendment prohibition against self-incrimination applies to an individual who is in police custody. In order to safeguard that right, the Court ruled that before questioning suspects in custody, law enforcement officials must inform suspects of the following rights:

1. They have the right to remain silent;

Under both federal and state laws, the willful possession of illegal controlled substances is a crime.

If you ever get arrested for drug possession, know that you are facing a serious charge that carries penalties that include fines and jail time. However, if authorities ever find evidence that you had the intent to distribute or sell the drugs found in your possession, then you are liable to face drug distribution charges, whose consequences are more severe than those for simple drug possession.

Whether you’re facing drug possession or drug distribution charges, you are going to need the services of an experienced drug lawyer to represent you in court.

Let’s take a look at some facts about drug possession and see how it could turn into a more serious drug distribution charge.

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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.

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

In a U.S. District Court decision issued on September 28, 2018 by Chief Judge Christopher C. Conner from the Middle District of Pennsylvania, the Court ruled that the felon-in-possession ban of 18 U.S.C. §922(g)(1) is unconstitutional as to Raymond Holloway, Jr. in violation of the Second Amendment to the United States Constitution.Conceal Carry

18 U.S.C. §922(g)(1) states that “it is unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

Raymond Holloway, Jr. was charged with DUI and speeding in December 2002 in violation of Pennsylvania law, but he completed a diversion program and the charges were dismissed.  In January 2005, he was again arrested and convicted for DUI at the highest rate of alcohol and it was a misdemeanor in the first degree.  He completed his sentence in March 2006.  In September 2016, Holloway tried to purchase a firearm and his application was denied following an instant background check.  Upon appeal, Pennsylvania State Police stated that pursuant to 18 U.S.C. §922(g), the DUI conviction prohibited him from buying a firearm.  Holloway filed suit challenging the Code under the Second Amendment of the United States Constitution.

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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