Articles Posted in Criminal Procedure

In Florida, when a defendant has a trial and gets convicted, he/she has a right to appeal the conviction to have a higher court determine if there were any significant errors committed in the trial that detrimentally affected the defendant’s right to a fair trial. While some appeals are successful, their success rate is very low.

In other cases, the defendant learns of new evidence after the trial that he/she claims would have proven the defendant innocent if such information was presented to the jury. However, a defendant cannot automatically have a new trial just because he/she or someone else claims to have uncovered new evidence beneficial to the defendant after the initial trial is over. If a defendant claims to have new evidence after the trial, the criminal defense lawyer can file a motion for post-conviction relief under Rule 3.850.

The newly discovered evidence often comes in the form of a new witness who says he/she saw or heard something that helps the defendant’s defense. After the criminal defense attorney files a motion for a new trial, the court must determine if the newly discovered evidence is inherently incredible. If it is, then the motion fails. If the newly discovered evidence is not inherently incredible, then the trial judge is supposed to have a hearing to determine if the evidence is in fact newly discovered evidence (since the trial) and whether the new evidence would probably result in a not guilty verdict at a new trial. These motions are not often successful, but if a defendant can produce some new, reliable and substantial evidence after a trial, there is a way to get a second chance under the criminal procedure rules in Florida.

In what are referred to as shaken baby cases, the state will almost always have an expert testify that the child’s injuries must have been caused by someone forcibly shaking the baby rather than whatever explanation the defendant or defense lawyer provides. The State will always have someone on hand ready to testify that the only explanation for the baby’s injuries is that he/she was shaken and that all other explanations for the baby’s injuries are implausible. However, the defendant has a right to obtain his/her own medical expert to testify that the baby could have been, or likely was, injured by some other mechanism that is consistent with the defendant’s innocence on child abuse charges.

But doctors are expensive, and what happens if the defendant cannot afford to have a doctor spend time looking at the records and come to court to testify on his/her behalf? In a recent child abuse case south of Jacksonville, Florida, the defendant was arrested for child abuse when the state alleged that he shook the child and injured him. The state’s case relied almost entirely on the testimony of experts who testified that the child’s injuries must have come from being forcibly shaken by someone. The defendant wanted to have an out of state neurologist testify that the shaken baby testimony from the state’s experts was flawed and there were multiple other possible explanations for the child’s injuries. The problem was that the defendant’s expert was charging $10,000 per day to testify in court. The defendant clearly could not afford this expert. The defendant did not get his expert to testify, and he was convicted of child abuse at trial.

A defendant who is indigent, or without the ability to pay, has a right to a lawyer at the state’s expense. That defendant also has a right to an expert at the state’s expense under certain circumstances. If the expert is important enough to the defendant’s case and not too expensive, the court should order the state to pay for the defendant’s expert. In this case, because the state had its own experts and there was apparently no less expensive expert with similar qualifications, the defendant’s conviction was reversed so that the defendant could have an opportunity to have his own expert testify at the state’s expense.

When two people get divorced in Florida, they are generally required to file sworn financial affidavits with the court. These financial affidavits contain information about the party’s income, liabilities and assets. Each party in a divorce has a right to know the financial situation of the other party. Since the financial documents are affidavits, they are sworn to under oath.

In a recent divorce case near Jacksonville, Florida, the husband filed his financial affidavit but lied about his income. The wife learned that the husband lied on his financial affidavit and filed a motion for indirect contempt. Indirect contempt can be found when a person violates a clear court order. If there is no court order, a party can still be found in contempt if he/she does something designed to embarrass or obstruct the court’s administration or authority. Although a divorce case is a civil case, filing a false sworn affidavit is similar to committing perjuring while testifying. As a result, the court could find the husband in contempt, and 10 days in jail was an appropriate penalty.

As criminal defense lawyers here in Jacksonville, Florida, we get a lot of calls from people who learn they have a warrant or a capias from a charge filed against them many years ago in Florida. When we get those calls about old, pending criminal cases, the first thing we do is look to see if the case should be dismissed based on the statute of limitations.

The purpose of the statute of limitations in a criminal case is to force the state to prosecute their case quickly so that a defendant does not have to defend his/her case after a long period of time when memories fade, evidence is lost and witnesses are difficult to find. The courts are supposed to interpret the statute of limitations laws in favor of the defendant.

In Florida, the statute of limitations starts on the day of the alleged offense and ends on the day the prosecution begins. The time period can toll, or stop, based on certain intervening events. The time limits under the various Florida criminal laws are as follows: first degree felonies – 4 years, other felonies- 3 years, first degree misdemeanors- 2 years and other misdemeanors- 1 year.

In Florida, many guilty or no contest pleas result in the defendant getting a sentence of probation either instead of jail or prison time or in addition to jail or prison time. When a person is on probation, he/she usually has certain conditions to fulfill such as community service, paying fines and/or restitution, going to certain classes and other conditions. The defendant might have a curfew, might have to stay away from certain people or places and/or might have to avoid alcohol and non-prescribed drugs. If the defendant violates one or more of these conditions while on probation, the judge can violate the defendant’s probation and re-sentence him/her to jail or prison time.

One common condition of probation is to not use alcohol to excess and avoid using any drugs that are not prescribed by a doctor. Using alcohol to excess is a very subjective standard. It can be easily proven if a person gets arrested for DUI and the police officer testifies that the defendant was drunk. It can also be proven if the probation officer visits the person at home and observes that the defendant is drunk. In probation violation cases, the state’s standard of proof is much lower than a regular criminal case. The state just has to prove that it is more likely than not that the defendant committed the violation (rather than beyond a reasonable doubt). Many of these probation violation allegations involve a he said/she said situation where the judge will often side with the polcie officer or probation officer. If that is the case, a simple violation could result in the person going to jail, or back to jail, for a lengthy period of time.

When a person is in jail while his/her criminal case is pending, he/she will be permitted to make phone calls to people on the outside and have periodic visits with them. In Jacksonville, Florida, there is a recording before each phone call which tells the inmate that the conversation is being recorded and anything he/she says can be used against him/her in court. As a result, anyone who has been charged with a crime and has a pending case should be very careful what is said on a jail call because it could come back to haunt him/her if the recording of the conversation is played at the trial to the jury. Incriminating admissions and inconsistent statements on a jail call could make a significant difference in the outcome of a criminal case.

Sometimes, it is not as clear that the police are listening in. In a recent case near Jacksonville, Florida, the defendant was arrested for aggravated battery, After his arrest, his mother came to the police station to speak with him. The police let the defendant and his mother talk alone in a room. Prior to putting the defendant and his mother in the room, the police hid a tape recorder in the room to record their conversation. During the secretly taped conversation, the defendant made some incriminating admissions to his mother. These recorded statements were used against the defendant at his trial.

The criminal defense lawyer filed a motion to keep the recorded conversation out of the trial. The issue as to whether a secretly recorded statement of the defendant could be used against him depends on whether the defendant had a reasonable expectation of privacy when he was in the room with his mother. If the defendant could reasonably expect that the conversation was private and no one could hear it, then the conversation would not be admissible. However, if the defendant did not have a reasonable expectation of privacy, then the conversation could be used at trial even though it was secretly recorded.

When a person is charged with a crime in Florida and either pleads guilty or no contest or has a trial and is found guilty, he/she may get sentenced to a term of probation. When a person is on probation, he/she usually has to complete certain conditions of probation. Examples include: a domestic violence course, a DUI class, paying restitution, community service and a variety of other obligations. If the defendant fails to complete the terms of his/her probation within the allotted time frame, he/she risks getting probation violated and being sentenced to jail or prison time as a result.

In some cases, the criminal defense lawyer can negotiate with the state for early termination of probation as part of the sentence. This can be a significant benefit. As long as person is on probation, he/she is at risk of being violated for any number of reasons which can result in severe punishments. A defendant does not have a right to a jury trial on a violation of probation charge and is often at the mercy of the judge. Therefore, the best strategy for a defendant on probation is to finish all of the requirements of probation and then get off probation as soon as possible.

Even if the state does not negotiate early termination as part of probation during plea negotiations, sometimes the state will not object and the criminal defense lawyer can ask the judge to make early termination of probation part of the sentence. If it does not come up at sentencing, the defendant can ask his/her criminal defense attorney at a later date to file a motion to end probation early once the defendant has completed all of the terms of probation.

As criminal defense attorneys in Florida, we handle a lot of cases where a person who is not a United States citizen has been arrested on criminal charges. When a person who is not a U.S. citizen has been arrested for a crime, it is crucial that he/she be properly advised as to any immigration or deportation consequences of the various choices to be made in the criminal case. Even a relatively minor misdemeanor criminal charge can have very serious immigration consequences. Florida law provides that the criminal defense lawyer thoroughly advise the defendant of the potential immigration consequences that can happen in a criminal case before the defendant decides to enter a guilty plea, a no contest plea or a not guilty plea and request a trial.

The problem is that most criminal defense lawyers in the Jacksonville, Florida area, where our law firm is located, do not know the immigration laws and are not qualified to provide the necessary and critical immigration advice. The immigration laws in this country are vast and complicated. A criminal defense attorney with a casual understanding of immigration law can be dangerous in offering advice and opinions to people charged with crimes in Florida who are not United States citizens.

A person who has pled guilty or no contest to a charge in Florida may be able to withdraw that plea if the judge agrees that he/she was not properly informed of the immigration consequences, but the defendant will still have a criminal case to deal with and will still need to know what might happen from an immigration standpoint.

When a person is arrested for a criminal case in Florida, he/she has a right to speak with an attorney prior to giving any statement to police and have an attorney present during questioning if he/she wants to talk to the police. We feel it is very important that everyone understand their Constitutional rights before talking to the police about a crime and potentially drastically changing the way their criminal case will proceed. The best thing for a defendant to do is be clear and firm about his/her desire to speak to an attorney prior to giving any statement to the police. A vague or qualified request to speak to a criminal defense lawyer may not be sufficient to trigger one’s Constitutional rights.

In a recent murder case south of Jacksonville, Florida, when the defendant was being arrested, he called his mother to tell her to contact his criminal defense attorney. His mother did and relayed a message from the criminal defense lawyer back to the defendant to remain silent and he would meet with him as soon as possible. The criminal defense lawyer immediately contacted the police department by phone and fax indicating that he was invoking his client’s Sixth Amendment right to remain silent.

The police officers took the defendant into an interrogation room and started to question him. The defendant did not invoke his Sixth Amendment right to remain silent and made an incriminating statement. The criminal defense attorney went to the police station where his client was being interrogated, but the police would not let him in to see his client.