Articles Posted in Felony Crimes

In Florida, any person who sends a written or electronic communication threatening to kill or cause serious bodily harm to another or a family member of that person or threatens some other act of terrorism commits a serious crime in Florida. Under the Florida statutes, that conduct constitutes a second degree felony which is punishable by up to 15 years in prison. Obviously, one would hope that the police are certain the communication is serious before arresting someone for a crime of this nature as people send jokes or ridiculous texts and other communications all of the time. Having a crime like this with such a serious potential penalty creates a lot of room for abuse by law enforcement.  However, if a person is dangerous and sends a serious threat to another, this is the crime to deal with it.

These days, there are many different ways to communicate and many different social media avenues to send information. In a case just south of Jacksonville, Florida, a high school student sent a Snapchat picture to another student which was a picture of a rifle and a message that there will be show and tell the following school day. As expected, the student showed it to others and school officials learned of the communication. Ultimately, the student who sent the picture over Snapchat was arrested for sending a written threat to kill or do bodily injury.

The criminal defense lawyer filed a motion to dismiss the charge. He argued that the defendant was joking and the photo did not specifically threaten the victim in any case. The state responded that the victim did not believe it to be a joke and was worried the defendant would come up to the school with a gun and cause serious harm. The court agreed with the criminal defense attorney and dismissed the case because there was no specific threat to kill or cause harm. The state appealed the dismissal. The appellate court focused on what constitutes a threat under the Florida statute. Should the focus be on whether the person sending the threat was serious or joking, or should the court look at whether the victim reasonably believed the threat was serious? The appellate court determined that the reasonable reaction of the victim should determine whether a crime was committed. In this case, the victim testified that he was scared and believed the threat to be serious. The fact that there was a recent school shooting prior to the threat was also relevant to the victim’s interpretation of the communication. Because the threat was sufficient to cause alarm in a reasonable person, the appellate court reversed the dismissal and allowed the state to proceed with the case.

In Florida, driving with a suspended or revoked license is not a particularly serious charge, as a first time charge, but it can lead to more serious charges and more serious penalties. A driving with a suspended or revoked license (DWLS) charge can also quickly snowball into a situation where a person has a longer suspension which leads to more DWLS charges which leads to longer suspensions. If things get out of hand, a person can face five years or more of a license suspension and fines and costs to pay with no way to drive to work to pay those costs.  Prosecutors and judges handle a lot of DWLS cases. It may be the most common type of case in county (misdemeanor) court in Florida. And while judges and prosecutors do not care much about them when a person has a minimal record, multiple DWLS charges can result in serious penalties. In fact, if a person has a few DWLS convictions in his/her past, that person can be charged with a felony for the next DWLS violation. Once a person is in circuit (felony) court, it’s not uncommon to face months in jail for the less serious offenses those prosecutors and judges see.

In order for the state to prove that a defendant is guilty of a DWLS crime, the state normally has to prove three things – that the defendant was seen driving, that his/her license was suspended or revoked at the time and that he/she knew or was given notice that his/her license was suspended or revoked at the time.  Usually, parts one and two are easy, but not everyone knows their license is suspended.  A person may have received a traffic ticket and thought it was paid or thought a driving course took care of it, but for some reason, the ticket was not resolved. If a traffic ticket is not paid, the DHSMV will eventually suspend the driver’s license. They should send notice to the driver in the mail, but a person might move or otherwise not receive it.

A habitual traffic offender in Florida is someone with three serious driving violations within five years. A serious driving violation is a DUI, a driving with a suspended license criminal violation (or civil violation with a conviction) and/or two many points from regular traffic violations. If a person becomes a habitual traffic offender, his/her driver’s license will be suspended for five years. As you can see, getting multiple DWLS charges or citations can lead to longer suspensions. It can also lead to felony charges and jail time for future violations.

In Florida, a person or business may not engage in the money services business unless the person or business is licensed or exempt from being licensed by the state of Florida. A violation of this law involving more than $300 is a felony crime. A money services business is defined by Florida statutes as a person or business that acts as a payment instrument seller. A payment instrument is a check, money order, electronic instrument or similar instruments to exchange tor goods and services. Basically, it is anything of monetary value.

In a case south of Jacksonville, Florida, the police identified a person who would buy and sell bitcoin for cash. Presumably, the police targeted this person because they believed he would accept stolen credit cards and other forms of illicit payment in exchange for bitcoin. Bitcoin is an anonymous form of currency so law enforcement may be concerned about people who transact business with this digital currency. A police officer made a few undercover purchases of bitcoin from the subject for cash. They subsequently arrested him because he was not licensed to do business as a money transmitter. Clearly, someone cashing checks or changing foreign currency for US currency would fit within the definition of a money transmitter and need a state license.  In this case, the criminal defense attorney argued the defendant was not subject to this law and did not need to obtain a money transmitter license because bitcoin did not fall under the definition of a payment instrument. Bitcoin was not invented when the Florida money transmitter statute was created so the statute could not have contemplated the inclusion of bitcoin.

Bitcoin is fairly complicated, but it can be described as a system that allows payments to be made through a decentralized process that does not involve a bank. It is a digital currency that is produced electronically by computers. All bitcoin transactions are recorded on a ledger, and each block in this chain of transactions is encrypted. Bitcoin can be stored or exchanged on this ledger that is completely open so all transactions can be verified. So, it is certainly not money or currency in the traditional sense. However, the court did not limit its analysis to whether this digital currency was “money”. The court looked at the fact that bitcoin can be exchanged like money and had monetary value.  In fact, there are many businesses who accept bitcoin, although not as many as before when bitcoin had much higher value. While the criminal defense lawyer wanted the court to focus on the fact that bitcoin does not resemble actual money, perhaps making an argument about the tangible nature of money, the fact that bitcoin can be and is used to pay for goods and services and a market exists to exchange bitcoin for traditional currency doomed that argument.

In Florida, as in other states, police are generally not permitted to enter a person’s property with a valid search warrant or explicit consent from the owner or resident of the property.  There are limited exceptions that do permit the police to come into a person’s home without a search warrant or consent.  Exigent circumstances can be an exception to the general rule if the police have specific evidence of an emergency situation that requires immediate police attention, and it is not feasible to take time to get a search warrant or consent. For instance, if the police receive a legitimate call of shots fired inside a house and show up hear indications of a fight or an injured party, they would likely be permitted to enter the house to address that issue. However, these exceptional searches are limited in time and scope.  The police are only permitted to enter the home for the purpose of investigating and handling the emergency situation. They are not allowed to roam around the property searching for things unrelated to the emergency. On the other hand, if the police see evidence in plain view as they deal with the emergency situation (i.e. illegal drugs out in the open), they are not required to ignore that. In those cases, the police would normally be required to obtain a search warrant based on the evidence they observed while in the home addressing the emergency.

What constitutes valid exigent circumstances depends on the particular case. In an animal cruelty case just south of Jacksonville, Florida, the police received a call about a suspect beating his dog. When the police arrived, they saw the suspect in the back yard and heard what sounded like strikes against someone or some thing. The suspect admitted to hitting his dog but said he did it because the dog bit him. The suspect refused to allow the police inside, but they went in anyway. The police found that the dog was dead and evidence the dog had been abused. The suspect was charged with felony animal cruelty.

His criminal defense lawyer filed a motion to suppress evidence of the dog, other evidence found in the house and the defendant’s statements because the police did not have a right to enter his home without a search warrant or consent. He argued the medical emergency exception to the general rule did not apply to animals. The court disagreed. In Florida, a medical emergency involving an animal is sufficient to allow the police to enter a home under exigent circumstances if the police have enough evidence to establish an immediate need to check on the animal.  Because the police had a right to check on the dog, once they saw the dog was dead and the suspect admitting to killing the dog, they had sufficient, admissible evidence for an animal cruelty case.

In Florida, it is illegal for a person who has been convicted of a felony crime in any state to carry a concealed weapon.  There is a Florida criminal statute that addresses possessing a firearm and carrying a weapon, but they prohibit different things.  The law says that person who has previously been convicted of a felony may not possess a firearm.  The same statute says a person who has been convicted of a felony may not carry a concealed weapon.  The key difference, of course, is with the words carry and possess.  Regarding firearms, they may not be possessed.  Of course, if a convicted felon is carrying a firearm, he is also possessing it. However, the concept of possession is much broader than what a person is carrying.  A person can constructively possess things that are miles away.  For instance, you may be in California but also be in possession of a firearm in your house in Florida if the state can prove you knew the firearm was there and had sufficient control over its existence there. Proximity to a firearm may be sufficient to prove possession.  More than one person can be in possession of the same firearm. Many factors may be sufficient for the state to prove a person is in possession of a firearm, and if that person is a convicted felon, the penalty for such an offense can be severe.

Carrying a weapon is much more narrow. A convicted felon may not carry a concealed weapon. Carrying is generally interpreted as one would expect. As a result, if the police find a knife in a driver’s glove compartment of his car, the state may be able to prove the driver is in possession of the knife, but he is not carrying it, and therefore would not be in violation of this criminal statute. However, while the action required for criminal liability is more narrow, the definition of a weapon is broad. A weapon can include any potentially deadly weapon that can be concealed from another person. For instance, brass knuckles can cause a lot of damage, but they are generally not a weapon that is used to cause death. However, they are specifically listed in the statute as a potentially deadly weapon that a convicted felon cannot carry while concealed.

In conclusion, no person who has been convicted of a felony in any state may carry or possess a firearm. Also, that person may not carry any concealed weapon that has the potential to cause a deadly injury. That person may carry a potentially deadly weapon that is not a firearm openly so that it is not concealed.  However, it is still dangerous for a convicted felon to carry a deadly weapon that is not a firearm openly because if someone reports it as concealed and/or the police officer believes the weapon is concealed, the suspect may be facing a felony charge that is a credibility contest where a jury would know he or she is a convicted felon.