Criminal Procedure

The Law on Self Defense in Florida

Published on: August 13, 2008 | by Lasnetski Gihon Law

The Jacksonville State Attorney’s Office recently decided to take another look at an incident where a Jacksonville Beach suspect (Theodore Gersdorf) cut off another person’s finger with a machete, according to an article at Jacksonville.com. Apparently, when Jacksonville police originally investigated the incident, the suspect claimed that he used the machete in self defense, and charges of aggravated battery against him were not pursued. However, according to the article, witnesses to the incident said that the suspect said he was going to his car to get “something that would take care of” the alleged victim and then left and returned with the machete. This, according to Jacksonville police, calls into question the suspect’s initial claim of self defense.

In Florida, the law pertaining to self defense allows a person to use deadly force to reasonably protect him/herself or another person from death or serious bodily harm and/or to prevent the occurrence of a forcible felony such as rape, robbery, burglary or kidnapping. In 2005, the law regarding self defense was changed to allow a person to use deadly force in public in one of the situations described above even if they could have fled the scene to avoid the threat. Prior to the change, a person who used deadly force in such a situation in public would have to show that he/she could not have otherwise escaped the threat. People in Florida were already permitted to use deadly force without fleeing in such a situation in their homes, vehicles or businesses.

Many Convicted Felons in Florida Had Their Right to Vote Restored Automatically

Published on: August 7, 2008 | by Lasnetski Gihon Law

In Florida, the law used to provide that any person convicted of any felony crime lost his/her right to vote. The only way to restore the right to vote was to go through a difficult and lengthy process involving an investigation, the parole commission and the clemency board with no guarantee of success. This law goes back to the Civil War era and was enacted in response to the 15th Amendment, which gave African-Americans the right to vote.

However, in 2007, the law changed to make it much easier for Florida residents to vote after having been convicted of many felonies. According to the new law, if you have been convicted of a nonviolent felony, have fully completed your sentence and have paid all restitution, if ordered, your right to vote has been restored automatically. You do not have to do anything to restore your right to vote. However, in order to vote, you do have to register, which can be done at the Supervisor of Elections office or the local public library branch. Additionally, you have to register to vote at least 29 days prior to the election in which you intend to vote.

According to one recent report, only 10% of the people who fall into the category of nonviolent convicted felons who have completed their sentences have registered to vote. Whether this is because people do not know of the new law or just have not taken advantage of their restored rights, that percentage is alarmingly low. As important as the right to vote is, everyone in Florida who has been convicted of a nonviolent felony and has completed his/her sentence should become registered and consider voting in future elections.

Criminal Defense Lawyer Wants Police Officers to Prove They Can Smell Marijuana in Car

Published on: July 29, 2008 | by Lasnetski Gihon Law

During a drug investigation after a traffic stop in Jacksonville, Florida, it is not uncommon for a police officer to allege that he/she smells an odor or marijuana which is used as a basis for a search of a person and/or a vehicle. Or, what a Jacksonville police officer may do is briefly detain the suspect for a relatively short period of time while the officer calls for a drug dog. The police drug dog, or K9, has likely been trained to walk around the vehicle or the area where drugs are suspected to be present, detect the odor of marijuana (and/or other drugs like cocaine, heroine, crystal meth, etc.) and give certain signals to the K9 officer when the K9 believes the odor of drugs is present. The K9 officer is also trained to decipher a positive signal from the K9. At that point, the officer will likely proceed with a search of the area, or seek a search warrant, based on the alleged probable cause provided by the drug dog.

A criminal lawyer in a recent drug possession case is asking two police officers who arrested his client if they can detect the smell of marijuana in a car in a random test, according to an article on www.Jacksonville.com. Apparently, the two police officers stopped the defendant, who was driving with a tag light out, and claimed to have smelled an odor of marijuana coming from the vehicle. A subsequent search of the vehicle revealed 10 pounds of marijuana in trash bags in the trunk. The criminal defense lawyer is asking the two police officers to display their ability to smell marijuana by detecting marijuana in a random vehicle in the local courthouse parking lot.

From a criminal procedure standpoint in drug cases, this is a fairly unique request, but this random drug smelling test will likely never happen. The police officers are not required to verify their ability to smell marijuana in this manner. Likewise, drug dogs, who have a much higher sense of smell than humans, are not required to prove their smelling ability in post-arrest random tests of the criminal defense lawyer’s choosing, although they are required to prove their drug odor detection ability in order to become properly trained and certified drug dogs. However, the criminal defense lawyer can and should cross-examine the arresting police officers at trial to determine the officers’ qualifications and abilities in detecting marijuana and also whether there was a Constitutionally sufficient basis to stop the defendant and search his vehicle.

If You Have Been Charged with a Crime, Be Careful What you Put on Facebook or Myspace. It Can Come Back to Haunt You.

Published on: July 24, 2008 | by Lasnetski Gihon Law

Social networking sites like Facebook and Myspace have become extremely popular, not just among high school and college students, but for people of all age groups, but the information that is posted on these sites is also being used as a tool by prosecutors to obtain evidence against defendants to prove their cases and support harsher sentences. These sites are a great way for people to stay in touch with friends and family members and keep people updated about their lives. However, users of Facebook, Myspace and similar sites need to be aware that what they post on those websites can be used against them in court in a criminal or other type of case.

For example, in Rhode Island, a college student who was facing drunk driving charges after crashing into another person and sending her to the hospital attended a party wearing a prison inmate outfit shortly after his DUI arrest, according to an article on Foxnews.com. Pictures of him at the party were posted on Facebook. The prosecutors saw the pictures, printed them and presented them to the judge at the sentencing hearing. Those pictures helped the prosecutors get an enhanced sentence of two years in prison. This is not an isolated example, and the article goes on to provide other situations where a criminal defendant received a higher sentence as a result of prosecutors showing the judge Facebook or Myspace postings that undercut any claim that the defendant was remorseful for the crime.

The pictures in the Rhode Island DUI case would almost certainly not be admissible in trial if the defendant had plead not guilty and requested a trial since they do not tend to show that the defendant committed the DUI crime with which he was charged. However, once the defendant pleads guilty, the judge can consider such pictures as they arguably do tend to show whether or not the defendant was remorseful for committing the DUI and injuring the victim.

In Florida, Right to Remain Silent Starts at Arrest

Published on: June 29, 2008 | by Lasnetski Gihon Law

A person who has been arrested for a crime in Florida and elsewhere has the right to remain silent. Most people have heard of the Miranda warnings that are read to a person pursuant to an arrest, which includes the right to remain silent. However, the right to remain silent is a right afforded by the Constitution and begins as soon as a person is arrested even if the police officer has not yet read the Miranda warnings.

Another aspect of the right to remain silent after an arrest is the fact that, in the subsequent criminal trial, the prosecutor is not allowed to make a comment to the jury about the defendant’s silence after the arrest or the defendant’s exercise of his/her right to remain silent for the time period before, during and after the Miranda warnings are read after the arrest. An improper comment by the prosecutor about a criminal defendant’s silence after an arrest can take several forms, and most of them are improper.

For instance, consider a recent Florida criminal case where a person in an airport consented to a search of his luggage in which the police found two bricks of cocaine. The subject remained silent when he and the officer saw the cocaine in his bag and was arrested. At the trial, the defendant testified, and the criminal defense attorney argued, that the defendant did not know the drugs were in his bag. The prosecutor commented that if that was the case, the defendant should have said something about how he was surprised the cocaine was in his bag and that he did not put them there as soon as he and the police officer saw the bricks of cocaine. This was found to be an improper comment on the defendant’s silence after his arrest and his conviction for drug trafficking was reversed.

Florida Residents Convicted of a Felony Retain the Right to Vote

Published on: June 16, 2008 | by Lasnetski Gihon Law

Previously, if you lived in Florida and were convicted of a felony crime, you lost your right to vote. With the presidential election approaching along with several local Jacksonville, Florida elections, it is important for people who have been convicted of a felony crime to be aware that you now can have your right to vote restored.

If you have been convicted of a felony in Florida and would like to restore your voting rights, you can visit the website for the Duval County Supervisor of Elections or find your local Florida Supervisor of Elections website here or go to www.Restoremyvote.org.

In Florida, Watch the Speedy Trial Issue When Misdemeanor DUI Turns Into Felony DUI

Published on: June 4, 2008 | by Lasnetski Gihon Law

In Jacksonville and throughout Florida, a DUI can be bumped from a misdemeanor crime to a felony crime if the offender has three prior misdemeanor DUI convictions. If the state prosecutors can prove that the person committed the fourth DUI after three prior misdemeanor DUI’s, that fourth DUI can be classified as felony DUI conviction, which carries greater penalties than a misdemeanor DUI conviction.

However, as a recent Florida criminal case illustrates, there is a speedy trial issue that can affect how and when the felony DUI can be prosecuted. When a person is charged with a misdemeanor crime, the state has 90 days to bring the case to trial. Failure to try the case within that time period means the misdemeanor charge must be dismissed. For felony crimes, the speedy trial period is 175 days.

How does this work in Florida when a DUI starts out as a misdemeanor and then the prosecutor bumps the charge up to a felony? Which speedy trial period applies? It depends on how the transition of the DUI charge from misdemeanor to felony is done. If the state dismisses, or nolle prosses, the misdemeanor DUI charge, the felony court has sole jurisdiction of the DUI charge and the 175 day speedy trial period applies. The same is true if the state files a motion to consolidate the misdemeanor DUI charge into the felony DUI charge. However, if the state merely transfers the case to the Circuit Court (the felony court) then the County Court (the misdemeanor court) keeps jurisdiction of the misdemeanor DUI charge, and the 90 day speedy trial period is still in effect for that charge. As a result, if the DUI case is not tried within 90 days, the misdemeanor DUI charge must be dismissed. Then, the felony DUI charge must also be dismissed because the felony DUI charge depends on a conviction of the current misdemeanor DUI charge, which is impossible since it has been dismissed in misdemeanor court.

Duval County Proposal Would Make it Easier to Bond Out of Jail

Published on: May 24, 2008 | by Lasnetski Gihon Law

Jacksonville, Duval County, Florida criminal judges will be considering a new proposal that would make it easier for people who have recently been arrested for certain crimes in Jacksonville to bail out of jail. Bail/bond is the money or other collateral that needs to be paid to get a person out of jail after an arrest and to secure that person’s presence at subsequent court dates. Under the current system in Duval County, people who have been arrested for crimes such as DUI (driving under the influence of alcohol or drugs aka drunk driving), domestic battery, petit theft, offering prostitution and all felonies must see a judge (within 24 hours) to have their bail amount set. For other lesser crimes such as first and second degree misdemeanors, those arrested can be directly released by officers at the Duval County Jail for bond amounts of $2,500 (1st degree misdemeanor) or $1,500 (2nd degree misdemeanor).

The new Duval County proposal to expedite the bond process for people arrested for various crimes would enlarge the number of people arrested who could be released from the Duval County Jail without having to wait to see a judge. Under the proposal, people arrested for most misdemeanors, less serious felonies ($1,000 bond for people arrested for third degree felonies) and municipal ordinance violations would be eligible for release from jail with no bond or a small bond amount. Of course, certain factors related to where a person resides and a person’s criminal record might make a person ineligible for expedited release from jail at a lower bond amount.

Supporters of the new Duval County Jail proposal note that this new process would alleviate the Duval County Jail overcrowding and reduce the costs associated with that problem. Others have expressed concern that the new system would make the bail process, which is supposed to be based on the particular facts and circumstances of each case, too systematic and may remove too much discretion from the judges.

Florida Law Proposed to Deport Illegal Immigrants in Prison Voluntarily

Published on: April 30, 2008 | by Lasnetski Gihon Law

The Florida Legislature is considering a law (Senate Bill 1086) that would allow illegal immigrants serving prison sentences to be deported under certain circumstances.

According to the proposed Florida law, prison inmates in Florida who have been convicted of a crime, have served at least half of their prison sentence and agree to be deported to their country of origin would be eligible for deportation. This proposed law would not result in any forced deportations of illegal immigrants. According to a recent article, there are approximately 5,000 illegal immigrants in Florida prisons.

The purpose of the Florida law is more for saving money and reducing overcrowding in prisons as opposed to addressing issues directly related to illegal immigrants. A similar law saved approximately $13 million in Arizona in 2007.