Jacksonville Criminal Defense Lawyer Blog

May 8, 2009

Innocent Man Released After Intense Investigation

“Thirty-year-old convicted murderer, Thaddeus Jimenez, was released from prison after serving only sixteen years on a fifty-year prison sentence.” When people here something like this, they can’t believe it. Why are we letting violent criminals out of prison? The answer: he is innocent. That being said, let’s rephrase the headline: “Wrongfully convicted man is exonerated after serving sixteen years in prison for a murder that he did not commit.” Mr. Jimenez was arrested for the murder at age 13 and spent the last 16 years trying to prove his innocence.

How does this happen? The facts did not change. Mr. Jimenez did not jump into a time machine and stop the murder from occurring. The reason this case was overturned was due to the hard work of many criminal defense attorneys. Criminal defense attorneys that dedicated many hours to further investigating this case, so they would be able to support a motion to vacate the conviction. After several years, these attorneys were able to succeed.

While Mr. Jimenez has been vindicated, there is one thing that he can never get back. The 16 years of incarceration he has served. The time away from his family and society. The lost of education and experience. When Mr. Jimenez was incarcerated, cell phones were not the norm, self-check out at the grocery store did not exist, and “who is this Britney Spears?” He has to learn about a new culture and changed society.

May 7, 2009

Florida Bomb Threat at a St. Augustine High School

by David M. Goldman

In St. John’s County, Florida, students attending St. Augustine High School had to evacuate their school due to a bomb threat. The students were sent to Sebastian Middle School. Later, the middle school also received a bomb threat, and all students were evacuated. While bomb threats at a local school may seem like a childish hoax, it is a serious criminal offense in Florida. According to Florida Statute Section 790.163 and 790.164, a person that makes a bomb threat will be charged with a second-degree felony. Second-degree felonies are punishable by up to 15 years in the Florida State Prison. Also, these Florida bomb threat statutes specifically state that a judge may not withhold adjudication of guilt. Therefore, this charge will result in a criminal conviction that can follow a person for the rest of his life.

If you have any questions about bomb threats in Jacksonville or the surrounding areas, contact a Jacksonville Criminal Defense Attorney.

May 4, 2009

Jacksonville Possession of a Firearm by a Convicted Felon: What About Antique Firearms?

by David M. Goldman

Can a convicted felon possess an antique firearm in Jacksonville, Florida? It appears that the Florida Supreme Court has not directly answered this question. According to Florida Statute Section 790.23, a convicted felon is prohibited from possessing a firearm. This crime is known as Jacksonville Possession of a Firearm by a Convicted Felon. Florida Statute Section 790.001(6) defines “firearm” and specifically exempts antique firearms, unless it is used in the commission of a crime. From the plain language of these Florida laws, it would seem obvious that a Jacksonville convicted felon may possess an antique firearm since it is not prohibited by the statute. However, Florida case law does not support this rationale.

In Williams v. State, 492 So. 2d 1051 (Fla. 1986), the Florida Supreme Court ruled that Section 790.23 could not be construed to allow a convicted felon to possess a concealed firearm, even an antique firearm. Florida’s 5th District Court of Appeals addressed this issue in Bostic v. State, 902 So. 2d 225 (Fla. 5th DCA 2005). In Bostic, the court stated that “the firearm a convicted felon is prohibited from possessing excludes an antique firearm.” However, the court did not grant the defendant’s motion to dismiss, because the trial court ruled that the firearm in question was not an antique.

After reading these Florida cases, it appears that the law is unsettled on the issue of whether a convicted felon can possess an antique firearm in Jacksonville. I agree with Judge Sharpe’s dissent in Bostic. He stated that the law either (1) clearly permits possession of the antique firearm or (2) is unconstitutionally vague.

April 22, 2009

U.S. Supreme Court Limits Vehicle Searches

by David M. Goldman

In the recent United States Supreme Court decision, Arizona v. Gant, the Court limited a police officer’s ability to search a criminal defendant’s vehicle. Prior to this ruling, there was a debate as to whether police officers may search the passenger compartment of a vehicle when an occupant of the vehicle is arrested. This is known as a search incident to arrest, which allows police officers to search a vehicle without a warrant. In Gant, the Supreme Court ruled that law enforcement may conduct a search of a vehicle incident to arrest only in two situations:

At the time of the search, the defendant is within reaching distance of the interior of the vehicle, or
the officers have a reasonable belief that the vehicle contains evidence of the offense for which the defendant is being arrested.

The Gant case is a push in the right direction to protect everyone’s 4th amendment rights as applied to the State of Florida via the 14th amendment. As a Jacksonville Criminal Defense Attorney, I have seen many cases that were dismissed due to unlawful searches and seizures. When a Jacksonville police officer conducts an unlawful search of a defendant’s vehicle, he is violating the defendant’s constitutional rights. The proper remedy is to suppress any evidence that the Jacksonville police officer found in violation of the such rights.

The Gant case will be extremely favorable to any Jacksonville criminal defendant that was subject to a search incident to arrest of his vehicle. For more information about Jacksonville searches and seizures contact a Jacksonville Criminal Defense Lawyer at (904) 685-1200.

April 16, 2009

Jacksonville Constructive Possession of a Controlled Substance in a Jointly-Occupied Vehicle

by David M. Goldman

As a Jacksonville Criminal Defense Lawyer, I have handled numerous possession of a controlled substances cases. Arrests for possession of a controlled substance, such as marijuana or cocaine, occur every day in Jacksonville, Florida. A person can be in actual or constructive possession of cocaine. Actual possession occurs when the drug is physically “on” or extremely close to the person. Constructive possession occurs when the drug is in a location where the person concealed it or has control over it.

In Jacksonville, in order for a criminal defendant to be convicted of constructive possession, the prosecutor must show the defendant had

knowledge of the presence of the controlled substance and
the ability to exercise dominion and control over it.

Jacksonville constructive possession is difficult to do if the defendant is in a car occupied by more than one person. In fact, in a recent Florida case, Brown v. State, 34 Fla. L. Weekly D773a (Fla. 4th DCA 2009), ruled that the State of Florida did not prove that the driver of a vehicle was in constructive possession of Xanax which was located in the center console of the vehicle. The driver and a passenger were in the vehicle, and either one of them could have been in possession of this drug. The court ruled this way, because the prosecutor failed to present sufficient, independent evidence that the defendant knew about the presence of the Xanax and had the ability to control it.

April 15, 2009

Alcohol Found on Boat Involved in Jacksonville Area Crash

by David M. Goldman

The Florida Fish and Wildlife Commission (FWC) have been investigating the boat crash that occurred on the Intracoastal Waterway in Palm Valley between Jacksonville and St. Augustine, Florida. The FWC discovered alcoholic beverages in the boat and are investigating whether the driver of the boat was under the influence of alcohol. In the Jacksonville area, it is not illegal to have open containers of alcoholic beverages in a vessel. However, it is illegal to drive a vessel if you are impaired by alcohol. This is known as boating under the influence (BUI). Thus far, no one involved in Sunday’s Intercoastal boating accident has been charged with BUI, but the FWC is still looking into it. Even if the FWC can show that the driver did consume alcohol, this is not enough to charge a person with BUI. It is not illegal to have a drink or two and drive a boat. However, it is illegal too drink too much, or be drunk, and operate a boat.

To learn more about Jacksonville Boating Under the Influence, contact a Jacksonville BUI Lawyer.

April 14, 2009

Florida Boating Accident Claims Five Lives

by David M. Goldman

On Sunday, a 22-foot boat crashed into a tug that was docked in Palm Valley, Florida. The boat was traveling from St. Augustine to Jacksonville, Florida. Five people were killed and several others were injured. Witnesses claim that the boat was traveling at a high rate of speed. Moreover, the Florida Fish and Wildlife Conservation Commission is investigating the circumstances surrounding the crash, including boating under the influence.

In Jacksonville, Florida, Boating Under the Influence (BUI) is treated very similar to Driving Under the Influence (DUI). Florida Statute Section 327.35 prohibits a person from operating a vessel if the person is:

under the influence of alcohol or a chemical substance to the extent that the person’s normal faculties are impaired or
the person has a blood or breath alcohol level of 0.08 or higher.

The penalties for Jacksonville Boating Under the Influence are similar to Jacksonville DUI penalties with some minor differences. The most significant difference is that a Jacksonville Boating Under the Influence conviction will not result in a Florida driver’s license suspension. However, it will suspend your boating privileges.

March 30, 2009

Jacksonville Hardship Licenses for Driver’s with Prior DUI Convictions

by David M. Goldman

When a Jacksonville driver receives a Driving Under the Influence (DUI) conviction, his driver’s license is suspended. The more prior Jacksonville DUI charges that a driver has, the longer the suspension. However, most people are eligible for a Florida hardship license, even if they have prior Jacksonville DUI convictions.

According to Florida Statute Section 322.271(2)(a), a hardship driver’s license cannot be granted to a person that has:

been convicted of DUI two times or
had his license suspended for refusal two or more times.

This Florida law does not make an exception for Florida drivers with a refusal suspension. However, Florida Statute Section 322.271(2)(b) allows a Jacksonville driver that has been previously convicted of DUI to petition for a hardship license, but there is a waiting period. A Jacksonville DUI that resulted in a five year license suspension has a 12 month waiting period, and a Jacksonville DUI with a ten year license suspension has a 24 month waiting period. After the waiting period has expired, a Jacksonville DUI lawyer can petition the department of motor vehicles and establish the basis for granting a hardship license.

March 11, 2009

Get a Florida Hardship Driver’s License after a Jacksonville DUI

by David M. Goldman

After a Jacksonville DUI arrest, normally, the driver receives a 10 day temporary driving permit. During this time period, his Jacksonville DUI Attorney should request a DMV hearing which will occur within 30 days of such request. During this 30 day period, the Jacksonville DMV will issue a temporary driving permit. After the hearing, the DMV will either reverse the Jacksonville DUI suspension or uphold it. If the DMV upholds the Florida driver’s license suspension, you may be eligible for a hardship license.

With Jacksonville DUI driver’s license suspensions, a driver normally falls under one of two categories.

Jacksonville DUI will a blood or breath alcohol level or .08 or higher: In this scenario, a driver must wait 30 days, after the suspension occurred, before he can obtain a hardship license. The clock does not begin to run until the Florida driver’s license is actually suspended, so you must wait until after the temporary driving permit expires.
Jacksonville DUI where the driver refused the chemical test: In this scenario, the driver must wait 90 days, instead of the 30 days stated above.

March 11, 2009

Jacksonville Abuse of the Elderly Creates Civil and Criminal Liability

by David M. Goldman

As a Jacksonville Criminal Lawyer, I have represented criminal defendants charged with abusing and exploiting the elderly in accordance with Chapter 825 of the Florida Statutes. Since I began practicing with Law Office of David M. Goldman PLLC, I have also experienced the civil liability associated with Jacksonville Elder Abuse. Pursuant to Florida Statute Section 415.1111, the victim of elder abuse can recover actual and punitive damages from his or her abuser. Additionally, Florida Statute Section 772.11 allows an elderly person that has been exploited under Chapter 825 to obtain up to three times his actual damages.

Jacksonville criminal defendants charged with elder abuse should be aware that a civil suit may follow a criminal suit. Therefore, pleading guilty to Jacksonville abuse of an elderly person would make it difficult to defend a law suit based on such abuse, so a plea bargain may not be the best route. On the other hand, victims of Jacksonville elder abuse have at least two avenues. They can take their case to the state attorney office and/or file a civil law suit.

To learn more about abuse, neglect, or exploitation of the elderly, contact a Jacksonville Criminal Lawyer. You can also contact a Jacksonville Elder Abuse Lawyer or www.floridaestateplanninglawyer.com.