Felony Crimes

Leaving the Scene of an Accident in Florida

Published on: June 3, 2012 | by Lasnetski Gihon Law

In Florida, if a person is involved in a traffic accident that results in property damage, an injury to someone or a death, that person must remain at the scene and provide the proper identification and insurance information. Failure to do so is a crime, referred to as leaving the scene of a crash or hit and run. If the accident merely results in property damage to the other vehicle, leaving the scene is a misdemeanor crime. However, if another person is injured as a result of the crash, leaving the scene of the accident is a third degree felony punishable by up to five years in prison. If someone dies as a result of the accident, leaving the scene is a first degree felony punishable by up to thirty years in prison.

What constitutes a crash after which the driver must remain at the scene is usually straightforward- any crash with any property damage, injury or death. But what happens when a person is injured or dies without an actual crash?

In a recent hit and run case near Jacksonville, Florida, the defendant was driving when somehow his passenger got separated from the vehicle, struck the road and died. The defendant kept on driving. The defendant was ultimately arrested and charged with leaving the scene of a crash involving death. The criminal defense lawyer filed a motion to dismiss arguing that there was no “crash” under the criminal statute because there was no evidence that the car crashed into the victim. The terms “involved” and “crash” are not defined in the criminal statute, and the criminal defense attorney made the clever argument that a person exiting a vehicle without making contact with it is not being “involved” in a “crash.”

It is a Crime to Access Confidential Data From a Computer Without Permission in Florida.

Published on: April 22, 2012 | by Lasnetski Gihon Law

A crime that is not commonly charged but still exists in Florida deals with a person accessing a computer without authorization to take trade secrets or other confidential data. This came up in a recent criminal case after the defendant was charged with accessing her company’s client list, downloading it to her private computer and then using the client list for purposes not permitted by the company.

The defendant was actually charged with two crimes: 1) unlawfully accessing a computer database, and 2) obtaining trade secret or confidential data. Both charges are third degree felonies and are punishable by up to five years in prison. The first charge, unlawfully accessing a computer database, involves knowingly accessing, disrupting or destroying a computer or computer network without authorization. This obviously includes hacking into a computer system without authorization to view or take computer data. The second charge, obtaining trade secret or confidential data, involves knowingly taking or disclosing data that are considered trade secrets or confidential under Florida law that exists on a computer or computer network without authorization.

In this case, the defendant was not convicted of unlawfully accessing a computer database since she was an employee and had the right to access the information. However, she was convicted of obtaining trade secret or confidential data because she was not entitled to take the data and transfer it to her own computer for her own use.

Failing to Appear in Court is a Separate Crime in Florida

Published on: April 1, 2012 | by Lasnetski Gihon Law

When a person gets arrested and charged with a crime in Florida, whether for a misdemeanor or felony, that person will likely have multiple, periodic court dates until the case is finally resolved. At each court date, the defendant is told when to appear at his/her next court date. If the defendant fails to appear in court, most people understand that the judge will issue a capias, or warrant, for that person’s arrest.

However, in Florida, willfully failing to appear in court is also a separate criminal charge. If the pending case for which the defendant missed court is a misdemeanor, missing court is also a misdemeanor. If the pending case is any felony, missing court on that case is also a felony.

Prosecutors may use this new charge of missing court as leverage. If the state has a weak case against a defendant but the defendant misses court, the state can add a new charge of willfully missing court that may be much easier to prove and also carries significant potential penalties.

Operating as a Pawnbroker Without a License is a Felony in Florida

Published on: March 4, 2012 | by Lasnetski Gihon Law

Anyone who wants to own a pawn shop or operate as a pawnbroker must obtain the proper license in Florida from the Department of Agriculture and Consumer Services. A separate license is required for each pawnshop. If a pawnshop changes locations, the pawnshop owner must give 30 days’ written notice to the Department so the license can be amended to reflect the new address. A pawnshop license is valid for one year and must be renewed upon expiration.

There are certain requirements which must be met before the Department will issue a pawnbroker’s license. Those requirements can be found in the statute here. One requirement is that the pawnshop applicant must not have been convicted of or entered a plea of guilty or no ciontest to a felony or other crime involving theft, fraud or stolen property within the previous ten years.

In a recent criminal case west of Jacksonville, Florida, a pawnshop owner was charged with operationg as a pawnbroker without a license after failing to renew their pawnbroker’s license. The pawnbroker did get an initial license for the pawnshop but failed to renew it while still operating the pawnshop. The pawnshop owner was convicted of the charge, which is a third degree felony in Florida, punishable by up to five years in prison.

State Cannot Charge Someone With Burglary if They Have a Sufficient Interest in the Property

Published on: December 9, 2011 | by Lasnetski Gihon Law

In a recent criminal case south of Jacksonville, Florida, the defendant was charged with burglary of an occupied dwelling and other charges after the victim reported she was sleeping in an apartment and the defendant broke in and assaulted her. The victim had been staying at the apartment with a friend. The defendant had also been staying at the apartment as he and his girlfriend’s names were on the lease. The defendant and his girlfriend were in the process of moving out, but they still had the keys and the lease had not expired.

In order to convict a person of burglary, the state must prove the defendant does not own or have rightful possession of the property. However, where both the defendant and victim had a possessory interest in the property, the state must prove the victim’s possessory interest was greater than the defendant’s possessory interest. If their possessory interests are equal, the crime of burglary is not committed. Some of the factors a court will look at include: whose name(s) is on the lease, who is staying where, did either person already move out or abandon the property, who is paying the bills?

In this case, the defendant was in the process of moving out, but had not yet done so. He was on the lease and still paying some of the bills. He had a key to the property. The victim was just a guest at the property, her name was not on the lease and she was not paying the bills. As a result, the defendant had a greater possessory interest in the property and could not be convicted of burglary for entering the property to commit a crime.

A Battery Charge Can Be a Felony in Florida if Alleged Strangulation is Involved

Published on: September 9, 2011 | by Lasnetski Gihon Law

In Florida, a battery where no weapon is used is normally a misdemeanor crime, which means the maximum penalty is one year in jail. A battery against someone not related to the defendant is a serious charge but not normally as serious as a domestic battery charge and certainly not as serious as a felony battery charge. Using a weapon during a battery can certainly raise the stakes for a battery charge and make it a felony punishable by years in prison. Outside of the domestic battery context where a defendant has a prior domestic battery conviction, battery charges are typically going to remain misdemeanors if no weapon or serious injury is involved.

However, there is one type of battery that we see charged fairly often that does not involve a weapon and often does not result in any, let alone serious, injuries to the alleged victim. Battery by strangulation is a third degree felony in Florida punishable by a maximum of five years in prison. One might expect that the battery by strangulation charge requires forceful strangulation and evidence of the victim’s inability to breathe for the state to bring those charges. That is not always the case. As criminal defense lawyers working in the Jacksonville, Florida area, we have see quite a few battery by strangulation arrests where, at worst, the defendant merely puts his/her hands on or near the victim’s neck. This is not sufficient to maintain a battery by strangulation charge in Florida. The Florida law requires the defendant to impede the normal breathing of the victim or the circulation of the blood of the victim by applying pressure on the neck, nose or mouth and creating a risk of great bodily harm.

The Florida law, as written, seems to require a significant effort to choke, or strangle, the victim. However, we often see police officers arresting a person for battery by strangulation where there is just an allegation that the defendant merely put his/her hands on the victim’s neck without evidence of a restricted airway or blood flow or a risk of serious bodily harm. In many cases where battery by strangulation is charged, the state may have overcharged the case and the misdemeanor is much more appropriate than the more serious felony charge, and this type of case must be defended appropriately.

State Charges Defendant With Felony DUI, But Felony Case is Dismissed

Published on: September 2, 2011 | by Lasnetski Gihon Law

In Florida, a DUI charge (driving under the influence of alcohol or drugs) is normally going to be charged as a misdemeanor crime. While the Florida legislature continues to make minimum penalties for DUI harsher, jail time for a misdemeanor crime is limited to a maximum of one year and most people charged with any misdemeanor are not facing anywhere near that amount of jail time, if any. However, if a person has three prior DUI convictions, the state does have the option of charging the fourth DUI as a third degree felony. Third degree felonies carry a maximum penalty of 5 years in prison, and it is not uncommon for someone to go to jail or prison when charged with a third degree felony if he/she has a prior record.

In a recent DUI case south of Jacksonville, Florida, the state charged the defendant with felony DUI because the defendant had three prior DUI convictions. However, the state cannot use just any prior DUI conviction to justify the three prior DUI convictions necessary to charge felony DUI for the fourth DUI. There are restrictions with the use of prior DUI convictions. For instance, if the defendant was facing jail time, could not afford a lawyer and did not have adequate legal representation during the prior DUI case, that prior DUI conviction cannot be used as one of the three prior DUI’s necessary to make the fourth DUI a felony.

In this case, one of the defendant’s prior DUI convictions went all the way to the mid-1980’s. The criminal defense lawyer filed a motion to dismiss the felony DUI charge because the defendant indicated he did not have enough money to hire a criminal defense attorney back then, did not waive his right to a criminal defense lawyer and was not appointed a criminal defense attorney by the court for the prior DUI in the 1980’s. Because the prior DUI case was so old, the files were destroyed, and the state was not able to prove that the defendant either had a criminal defense lawyer when he was convicted of the prior DUI or waived his right to a criminal defense attorney in that case. Because the state could not prove the necessary requirements to use one of the the prior DUI convictions, the State was not permitted to charge the fourth DUI as a felony.

Government Focused on Deporting Illegal Immigrants With Criminal Records

Published on: August 27, 2011 | by Lasnetski Gihon Law

There are approximately 300,000 deportation cases currently pending in immigration courts across the country. The United States government has recently signaled a change in the way it intends to handle those cases. The government has indicated that it will focus primarily on those illegal immigrants who have criminal records or are otherwise considered a threat to national security. Those illegal immigrants with pending deportation cases who do not have criminal records or pending criminal cases will likely be allowed to remain in the country and apply for a work permit. Other factors to be considered in a deportation case will be how long the person has been in the country and whether the person has relatives who are U.S. citizens.

If you are not a United States citizen and have a deportation or immigration issue, or have been arrested and are facing deportation, the law firm of Lasnetski Gihon Law handles all criminal and immigration matters in state and federal courts. Feel free to contact us for a consultation about your rights within the criminal justice system and the immigration process.

State Limited to One Possession of Firearm/Ammunition by Convicted Felon Charge Per Transaction

Published on: August 3, 2011 | by Lasnetski Gihon Law

In a recent criminal case in Jacksonville, Florida, the police were executing a search warrant at the defendant’s home and found several guns throughout the house along with ammunition for some of the guns. The defendant had previously been convicted of a felony. In Florida, a convicted felon is not permitted to own or possess a firearm. Possession of a firearm by a convicted felon is a serious felony crime for which the state often recommends jail or prison time.

In this case, all of the guns and the ammunition were found in the same home (although in different places within the home) and during the same search. The state charged the defendant with multiple counts of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon- one count of possession of a firearm by a convicted felon for each firearm and one count of possession of ammunition by a convicted felon for all of the ammunition.

A motion to dismiss the charges was filed alleging that the state was only permitted to charge the defendant with one count of possession of a firearm or ammunition by a convicted felon for all of the items found in the home. Based on the wording of this criminal statute, the state was not allowed to file multiple charges for the multiple firearms or even separate charges for the firearms and ammunition. The judge’s ruling was mixed, and we eventually appealed to the appellate court.

In Florida, a Second Battery Conviction is a Felony

Published on: July 28, 2011 | by Lasnetski Gihon Law

In Florida, a battery crime is defined as intentionally striking, or even touching, another person against his/her will. This is obviously a very broad definition of criminal activity that can include a lot of conduct, and even harmless conduct. Slightly pushing someone with no injury whatsoever can come under the definition of battery. Domestic battery is a battery against a relative, someone with whom the defendant shares a child or someone with whom the defendant lives or used to live.

A person’s first domestic battery or regular battery crime is a misdemeanor in Florida punishable by up to a year in jail. Battery and domestic battery are two of the most serious misdemeanor charges depending on the circumstances of the case and any injuries caused. However, they are still misdemeanors so the severity of the potential punishments are limited.

If a person has a prior conviction for battery, whether it is a regular battery, domestic battery, battery against a law enforcement officer or aggravated battery, another battery charge of any kind can be charged as a third degree felony. The second battery does not need to be of the same kind as the first. In other words, if a person is convicted of a battery against a stranger and then commits a domestic battery, the second battery crime can be charged as a felony.