Criminal Procedure

Florida Statute of Limitations Does Not Run While Defendant is Continually Absent from the State

Published on: November 26, 2014 | by Lasnetski Gihon Law

In Florida, if the state believes a person has committed a crime, there is going to be a statute of limitations attached to that case. The statute of limitations in Florida means that the state has a certain period of time from the date the crime was committed to prosecute the case. With some exceptions, if the state does not prosecute the case within the required period of time, the criminal defense lawyer can file a motion to dismiss the charges. The number of years required by the Florida statute of limitations varies depending on the criminal charge, but two to four years is fairly common.

For instance, if the state believes a person committed a misdemeanor crime and four years passes before the state arrests the suspect, that would likely be a statute of limitations issue if the suspect has been living in the state of Florida for all or most of that time. The state is obligated to conduct a diligent search to find the suspect and bring charges against him in a timely manner. The state can check driver’s license records, utility records, traffic tickets and other methods to locate a suspect living in Florida. The reason behind the statute of limitations is that a suspect has a constitutional right to defend him/herself against criminal charges. If the state delays and takes too long to prosecute a suspect, witnesses may disappear or forget what happened which could compromise a defendant’s ability to present a defense.

There are exceptions to the statute of limitations, however. Another way to say this is that certain events may toll the statute of limitations, or stop the time from running. For instance, the state is not required to search for a person who is out of the state of Florida for an extended period of time. Therefore, if a suspect allegedly commits a misdemeanor crime in 2010 and then leaves Florida for three years and is ultimately arrested for the crime in 2014. The defendant may not be able to use the statute of limitations to dismiss the case.

Florida Child Molestation Conviction Reversed Due to Potential Juror Intimidation

Published on: November 7, 2014 | by Lasnetski Gihon Law

In a recent lewd and lascivious child molestation case in Jacksonville, Florida some unorthodox activity in the courtroom caused the appellate court to reverse the jury’s guilty verdict on those child molestation charges. Apparently, a biker gang wearing “Bikers Against Child Abuse” jackets congregated outside the courtroom in the presence of the jury before and during the trial and also attended the trial, although without the jackets. After the defendant was convicted of child molestation, the criminal defense lawyer appealed the verdict alleging that the presence of the bikers with the obvious anti-defendant message was designed to intimidate, and had the effect of intimidating, the jury into finding the defendant guilty. The appellate court agreed this conduct deprived the defendant of a fair trial, reversed the conviction and gave him a new trial.

One of the protections afforded to defendants by the Constitution is the right to a fair trial. This means that, in order to convict a defendant of criminal charges, the state has to prove its case beyond a reasonable doubt. The state must meet that burden by presenting evidence that proves the defendant committed the crime. The state cannot rely on any extraneous factors to help it win the case. For instance, any outside influences that might sway the jury are not permitted in court or anywhere that might have an affect on the jury. This includes people in or near the courtroom that might intimidate the jury or influence them with messages of any kind. A trial is like a closed laboratory. The jury can only rely upon those things the law allows a jury to rely upon to make its decision. Those things are the witnesses testifying under oath, any exhibits admitted into evidence, the law provided by the judge and the arguments of the attorneys. The jury cannot go home at night and investigate on the internet or in any other manner. The jury cannot resort to any outside influences at all. And no outside influences can do or say anything during the trial that might affect the jury’s decision. If there is an outside influence that is likely to affect the jury, either side can ask the judge for a mistrial so the defendant can have new trial with a new jury.

Florida City Noise Ordinance Found to be Unconstitutional

Published on: July 25, 2014 | by Lasnetski Gihon Law

Ocala, Florida, a city near Jacksonville, Florida, enacted a city ordinance that prohibited “unnecessary or disturbing noises”. Normally, this comes up when a person is playing loud music in his/her vehicle. An individual was cited in Ocala, Florida for violating this noise ordinance and appealed his case claiming that the law is unconstitutional.

More specifically, the ordinance prohibits loud, jarring, raucous or unusual noise which annoys, disturbs, injures or endangers the comfort, health, safety or peace or reasonable people within the city limits. A law, whether it is a city ordinance that can normally only result in a fine, or a criminal law that can result in jail time, is unconstitutional if it is vague and overbroad. A law is overbroad if it addresses constitutionally protected activities as well as unprotected activities. In other words, if the law is worded to broadly so that it covers too much conduct, more than necessary, it will be unconstitutional.

A law is vague if it does not precisely indicate to people what conduct the law defines as illegal. The Due Process Clause of the Constitution requires the government to make laws that specifically and clearly warn people what actual conduct is being criminalized. If the law is poorly written so that it is not clear what people should do and not do to avoid criminal activity, the law is unconstitutionally vague. With vague laws, the police and the state have a greater opportunity to arbitrarily or discriminately apply the law, and the Constitution specifically prohibits that kind of application of the laws. For instance, with a law like this, one might guess that the police in Ocala would be more likely to pull over a young person playing rap music than an older person playing Beethoven, if both were played at the same noise level.

In Florida, There is a Key Difference Between Being Present for a Crime and Helping The Criminal Activity

Published on: June 19, 2014 | by Lasnetski Gihon Law

In Florida, a person does not commit a crime by being present when someone else commits the crime and knowing the crime was committed. However, a person can be guilty of a crime if he/she did not actually commit the crime but assisted the perpetrator during or after the crime. That is called being an accessory to the crime and can result in serious felony penalties.

For instance, if two people go to a park and Person A robs the victim. Person B is there when the robbery took place and ran with Person A after the robbery. That alone does not make Person B guilty of robbery or accessory to robbery. If the state cannot prove that Person B knew Person A was going to commit the robbery, Person B had no involvement in facilitating the robbery and Peron B did nothing to help Person A escape from the robbery, Person B would not be guilty of a crime. Of course, the state might still charge Person B for the crime and it may ultimately come down to what the jury believes, but mere presence at a crime is not sufficient to prove commission of the crime.

Add one more fact, and Person B would be guilty of a crime. Assume Person A planned to commit the robbery without Person B’s prior knowledge, Person B sees it happen and after the robbery both Person A and Person B run away. They both run to a car, and Person B drives Person A away from the scene of the robbery. This now becomes a situation where Peron B helps Person A get away from the scene of the crime knowing a crime was committed. Now, Person B would be guilty of accessory after the fact of the robbery. If Person A and Person B ran away separately and went to different destinations, Person B would not be accessory. But if Person B assisted Person A in any way to escape the crime, Person B would then be guilty of a crime him/herself.

Subsequent Miranda Warnings May Not Cure Prior Police Failure to Mirandize Suspect in Florida

Published on: June 14, 2014 | by Lasnetski Gihon Law

From TV shows, the news and other sources, most people have heard the term Miranda warnings. Unlike just about every legal issue seen on TV, the Miranda warnings that are read on TV are usually somewhat similar to what is read to suspects in real life. Miranda warnings are something that are required both in the Florida and United States constitutions based on the premise that no one shall ever be compelled to make any statement incriminating him/herself.

Police in Florida are not always required to give a suspect Miranda warnings when they talk to a suspect. Miranda warnings are required when a suspect is being questioned after having been taken into custody. This does not necessarily mean the suspect was handcuffed and taken to the police station. If the police create a situation where the suspect does not reasonably believe he/she is free to leave as he/she is being interrogated, Miranda warnings should be given. Those warnings tell the suspect, among other things, that the suspect has a right to a lawyer and has a right to remain silent. Most of the time, exercising both of those rights is a very good idea.

If the police interrogate a suspect in custody and do not recite the Miranda warnings, any subsequent statement given by the suspect may be inadmissible in court. That is the penalty for failing to provide Miranda warnings when required. The charges do not automatically get dropped, and the defendant is not automatically released. However, a statement that was taken from a defendant can be suppressed which may be a significant blow to the state’s case.

Interstate Agreement on Detainers Applies in Florida

Published on: September 7, 2013 | by Lasnetski Gihon Law

The laws regarding when the state has to take a person to trial and statutes of limitation can be very complicated depending on the charge, when the crime was committed, where the defendant was residing and other factors. There is a law that applies in Florida that addresses a situation where a defendant has a pending case in Florida but is currently in jail in another state. In these cases, the defendant can petition the Florida court to have his/her trial, or otherwise have his/her case resolved, here in Florida, and the Florida case could be dismissed if the state does not act accordingly.

The Interstate Agreement on Detainers provides that when a person has been sentenced to incarceration in another state and has a pending case in Florida (or any other state where this law applies), and Florida has a detainer on the defendant in that other state, the defendant can force a trial or resolution in Florida within 180 days. The defendant has to send a letter to the court and the prosecutor’s office in the county in Florida where the case is pending which tells them where he is incarcerated and makes a written request to have his Florida case disposed of. The letter must also be certified by an official where he is currently incacerated indicating certain facts about his sentence and the time he has served.

if the defendant follows those rules and the prosecutor in Florida does not resolve his case either through a trial or a plea (or get a continuance from the judge) within 180 days, the judge should dismiss the Florida charges. These days, with state attorneys offices having serious budget issues, they may not be inclined to bring a defendant to Florida for certain types of cases. Other prosecutors may not be aware of this law and might let a letter like this fall through the cracks. For someone who is in prison in another state and has a pending case in Florida, it might make a lot of sense to have a crinminal defense lawyer utilize the Interstate Agreement on Detainers for the Florida case and get the Florida charges dropped or at least force a favorable resolution in the Florida case.

Florida Minimum Mandatory Sentence Laws are Unfair and Unnecessary

Published on: July 4, 2013 | by Lasnetski Gihon Law

As we have discussed several times on this site in the past, minimum mandatory sentences are among the most counterproductive and just plain stupid ideas our government has come up with, and that is saying a lot given the state of our government these days. Among other problems, they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.

For instance, if a person is charged with committing certain crimes in Florida and fires a gun in the process, without hitting or injuring anyone, that person can face a minimum mandatory sentence of twenty years in prison. There are numerous cases, perhaps most cases, involving conflicts between people where there is a real gray area as to whether the suspect is guilty of a crime, fired a gun in self defense or did nothing wrong at all. Even where a person is guuilty of such a crime, there are often mitigating factors in the case that make it very clear that twenty years is way too harsh of a sentence. However, in these cases, the state can charge the twenty year mandatory minimum crime and because that gives the state so much leverage, it forces the defendant to agree to a deal and enter a plea, often receiving a lighter sentence. The state can always waive the minimum mandatory sentence. So, in many cases where the defendant has a valid self defense claim or other defense, the defendant may end up taking a year or two in prison or probation and become a convicted felon even though he/she may not be guilty. But because you never know what a jury would do, and you do know there is a twenty year mandatory minimum penalty if the jury finds you guilty, it is way too risky to fight it in court. In that sense, which is fairly common, the mandatory minimum law severely compromises, or even eliminates, a person’s constitutional right to trial.

Another case we see often where this is a serious problem is in prescription pill cases. The laws in Florida are very harsh for possession of pills such as Hydrocodone without a prescription. It does not take many pills to qualify for a trafficking charge. The low level trafficking charges come with a three year mandatory minimum prison sentence. And the mandatory minimum prison sentences go up from there. There are many people out there who have pain pills without a prescription who are not criminals and do not deserve a felony conviction and years in prison. In many cases, the only difference between a drug trafficker (under Florida law) and a law-abiding person with a legitimate medical prescription is being born to a rich family or having a job that offers decent health insurance. In other words, a lot of people have a need for prescription drugs due to auto accidents, workplace injuries and other problems. Not everyone has health insurance to pay for those drugs. However, because of the Florida drug laws and mandatory minimum prison laws, the less fortunate go to prison while the more fortunate are popping pills with impunity.

When a Suspect’s Silence Can Be Used Against Him/Her in Criminal Court

Published on: July 1, 2013 | by Lasnetski Gihon Law

Under the Florida and United States constitutions, people who have been arrested or are otherwise considered to be in police custody have a right to remain silent. This means that the police cannot force them to make any statements that might incriminate them in a criminal case. As part of that right, if a person chooses to invoke his/her right to remain silent and refuse to answer any questions from the police, the state cannot use that person’s silence against him/her in court. In other words, the prosecutor cannot argue that the police arrested the defendant, asked him/’her about the crime, the defendant did not deny it so he/she must be guilty.

However, the United States Supreme Court recently decided a case where the state was allowed to use the defendant’s silence against him in a criminal trial. In this case, the defendant was not technically under arrest, and he started answering questions about a murder. However, during the questioning, the police asked certain questions about what the suspect thought the results would be from ballistics tests the police might run on shell casings. In response to those questions, the suspect remained silent. The suspect was ultimately arrested and put on trial for murder. At the trial, the state used the defendant’s silence in response to the ballistics questions against him arguing that he failed to answer those questions because the defendant knew his answers would incriminate him.

For a suspect being questioned about a crime, the safest course of action is to remain silent and clearly ask for a lawyer. If a suspect starts answering questions and then is silent in response to other questions, the state might be able to use that silence against the defendant at trial. Additionally, if the suspect is not clear and assertive about his/her desire to remain silent and speak with a lawyer rather than answer questions, it may not be sufficient to invoke his/her constitutional right to remain silent. Until the suspect knows exactly where the police are coming from and has spoken to a criminal defense lawyer who understands the laws and the suspect’s rights, it is very important to clearly request an attorney and remain silent. A vague or halfhearted request for a criminal defense attorney will not be good enough. A lot of people are spending a lot of time in prison because they thought they could talk their way out of a criminal case in a situation whwere the police are holding all of the cards.

Suspects in Florida Need to be Clear About Asserting a Right to a Criminal Lawyer

Published on: May 2, 2013 | by Lasnetski Gihon Law

Legal shows on television do not normally have much association with reality, but one thing you often see on there is true. When a person gets arrested and the polic say he/she has a right to remain silent, a right to a lawyer and anything he/she says can and will be used against him/her, that is definitely true. Anyone who has been arrested has a Constitutional right to remain silent. Anyone who has been arrested has a right to speak to a criminal defense lawyer before he/she gives any sort of statement to the police. For some reason, a lot of people ignore those Constitutional rights and freely speak to the police after an arrest. Almost invariably, that person does severe damage to his/her case by doing so. Criminal defense attorneys sometimes say, one way to solve the jail overcrowding problem would be if people shut up when they were arrested by the police.

It cannot be stressed enough how important it is for someone arrested for a crime or suspected of having committed a crime to understand that he/she has an absolute right to not talk to the police and to talk to a criminal defense lawyer. However, the police are not going to ask you twice, and they are not going to hold your hand during this process. The police have a job to do and that is to arrest you and put you in jail if they think you have committed a crime. The whole idea of them getting a statement from you is to help them do that. You telling them you did not do the crime is not likely to change their minds. They did not go to the trouble of arresting you and bringing you in for a statement just to apologize and send you on your way if you tell them you are innocent. In all likelihood, you will only dig yourself a much deeper hole by giving a statement under those circumstances when you do not even know what evidence they have, if any.

In order to assert your Constitutional rights to remain silent and speak to a lawyer, you must be clear that is what you want to do. An equivocal or half-hearted request to stop talking or see if you can call someone will not get the job done. You must be very clear and assertive that you want to speak to a criminal defense lawyer before making any statements. You cannot say you want to go home or you want to call a friend or family member. You have to clearly express a desire to speak to an attorney in lieu of giving any sort of statement. Anything short of that may not be a sufficient assertion of your Constitutional rights. However, if you do make a clear statement that you want to speak with a criminal lawyer, the police are supposed to stop all questioning at that point. You can always resume speaking to the police at a later time, but if you do, you will likely be doing so with the benefit of knowing much more about the case, the laws the penalties you face and whether you have anything to gain by making a statement. The police always have something to gain by you making a statement after an arrest, you, on the other hand, may not.

Convicted Felon in Possession of a Firearm May Be Able to Use Florida Stand Your Ground Law

Published on: April 29, 2013 | by Lasnetski Gihon Law

The Florida Stand Your Ground Law, as it is commonly known, received a lot of popularity, or perhaps notoriety, as a result of the pending Trayvon Martin/George Zimmerman case. The law, which really is not very extraordinary, is basically a self defense law that says a person can use force if he/she reasonably believes he/she is about to be the victim of force. The force used by the defendant has to be reasonable under the circumstances and in consideration of the kind of force used or threatened by the alleged victim. In simple terms, if someone is in the process of doing, or is about to do, something violent to you, you can do something violent to him/her as long as you do not go overboard, and there is no duty to retreat from the situation.

One benefit of the Florida Stand Your Ground law is that a defendant charged with a violent crime can have the criminal defense lawyer file a Stand Your Ground motion and have a hearing prior to a trial. If it is established that the defendant meets the parameters of the Florida Stand Your Ground law, the defendant is immune from prosecution. This means that the judge must throw the charges out, and the defendant does not have to take his/her chances with a jury.

One exception to the Florida Stand Your Ground law is that the defendant cannot benefit from the law if the defendant is engaged in an unlawful activity. An obvious example would be a person burglarizing a home, the homeowner comes out with a gun and threatens to shoot the defendant so the defendant shoots the homeowner first. That would clearly fall within a Stand Your Ground situation as a person would have a right to shoot another to avoid being shot him/herself. However, the exception would apply and the defendant would not be allowed to succeed on a Stand Your Ground claim because he/she was engaged in an unlawful activity (burglary) at the time.