Jacksonville Criminal Lawyer Blog

Florida Man Arrested for Felony Child Neglect After Instructing Child to Call Mother Rather Than 911

Published on: March 3, 2014 | by Lasnetski Gihon Law

In Florida, the crime of child neglect is committed when a person described under the law as a caregiver fails to provide care or supervision to a child that is necessary to maintain the child’s health or to protect a child from abuse or neglect. Child neglect is a felony, and the seriousness of the charge is largely based on the extent of the injury to the child, if any. However, even if the child is not injured, child neglect is still a felony charge in Florida.

In a recent child neglect case near Jacksonville, Florida, the defendant was babysitting his girlfriend’s children. Under these circumstances, the defendant is likely to be considered a caregiver under Florida law. While the mother was away, her youngest child apparently fell out of his crib and lay on the floor unresponsive. The defendant told the oldest child to call the mother rather than 911. The mother came home, and she called 911. The child went to the hospital with serious injuries. The police arrested the defendant for child abuse claiming that the defendant neglected the injured child by having the older child call her mother rather than 911.

One problem with a child neglect charge is the more injured the child is and the younger the child is, the angrier police, prosecutors and jurors get and the more they may want to hold someone accountable. This can result in police, prosecutors and/or jurors making decisions based on emotion rather than the facts and the law. The law says that negligence in this context must be a gross and flagrant failure to act reasonably with regard to others. The defendant must have an utter disregard for the safety of the child. Child neglect cannot merely be a mistake or a bad decision on the part of the defendant that either places a child at risk or seriously injures a child.

Gun Possession Charge Thrown Out in Florida After Illegal Detention

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

In Florida, if police obtain evidence of a crime after an illegal detention, the criminal defense lawyer can get that evidence thrown out. In a recent case near Jacksonville, Florida, the police saw some people smoking cigarettes in a public park. Smoking was prohibited in the park so the police officers approached the group. The police learned the group came to the park in a vehicle, but none of them had licenses to drive. The police officers told them not to drive the car. The defendant went to the car to retrieve some property. The police officer then approached the defendant and asked him if he could pat him down, but the defendant refused. The police officer then detained the defendant who later admitted he had a gun in his pocket. The defendant was arrested for possession of a firearm by a convicted felon.

The criminal defense lawyer filed a motion to suppress the evidence of the gun arguing that the police had no legal basis to stop and detain the defendant. The police officer cannot stop and detain someone based on suspicion that the person is involved in criminal activity. The fact that the defendant went to the car to retrieve something is not specific evidence of criminal activity. The police officer may have assumed the defendant got something illegal out of the car, but a bare assumption is no basis to detain someone. While the defendant did ultimately admit that he had a gun, which was illegal since he was a convicted felon, that admission only came during an illegal detention. Since the illegal detention preceded the admission and prompted the admission, the admission does not rectify the illegal detention.

Of course, a police officer is always allowed to approach a person in a public place and ask questions and even ask to search that person. Likewise, that person is free to refuse. In this case, the difference was that the defendant initially refused the officer’s request to pat him down. The officer learned of the gun only after a detention that was not based on any evidence. Had the defendant initially agreed to a patdown and had officer found the gun initially, the possession of a firearm by a convicted felon charge probably would be been allowed to proceed. But since the defendant was smart enough to refuse the patdown, the police did not legally obtain the evidence of the handgun and the charge was ultimately thrown out.

For a Leaving the Scene of a Crash Charge in Florida, Does There Need to be an Actual Crash?

Published on: February 23, 2014 | by Lasnetski Gihon Law

In Florida, it is illegal to get into a traffic crash and then leave the scene without waiting for the police and providing identification and insurance information. For crashes that involve minor impacts, there must be some property damage or injury to trigger the requirement to remain at the scene. Therefore, if you slightly hit another vehicle and verify there was no damage or injuries, you are free to leave. However, if there is any property damage, or any injury, you are not free to leave.

If a person is in a crash that involves serious injury or death and leaves the scene, it is a serious felony crime in Florida. The main idea is that if a person causes a serious injury or death, the police want to be able to investigate that person to see if he/she is following the law. If a person leaves the scene without waiting for police, the state assumes the person is involved in criminal activity such as driving while intoxicated, driving with a suspended license or recklessly caused the crash.

However, there have been “accidents” with serious injuries or death that do not involve actual crashes. In a recent case near Jacksonville, Florida, the passenger somehow exited the moving vehicle, hit the pavement and died. The driver, however, just kept driving. After the driver was found and charged with leaving the scene of a crash involving death, the criminal defense lawyer argued the case should be dismissed because there was actually no “crash”. The evidence showed that the vehicle never hit the passenger or anything else to cause the passenger to exit the vehicle. While this is a good argument, the court rejected it.

Florida Armed Robbery Conviction Reversed Where State Provided Evidence of Guns Not Used in Robbery

Published on: February 21, 2014 | by Lasnetski Gihon Law

In any criminal case, the state has the burden of proving beyond a reasonable doubt that the defendant committed the crime by establishing all of the particular elements of the crime as defined by Florida law. However, the state is not allowed to present irrelevant evidence or evidence that is highly prejudicial to the jury to attempt to prove its case. In a case involved a violent crime, that means that state cannot present evidence hat the defendant has a propensity for violence that is not otherwise specifically relevant to whether the defendant committed the crime for which he/she is on trial.

In a recent armed robbery case south of Jacksonville, Florida, the defendant was charged with committing a robbery with a handgun. When the police went to arrest the defendant, they found four guns in his home. The defendant was not charged with any crime relating to those guns, and there was no evidence that any of the guns found in his home were used in the armed robbery. For some reason, at the armed robbery trial, the state had a police officer testify to the fact that they found four guns in his home when they arrested the defendant. Although it is unclear what those guns had to do with the armed robbery charge, the judge allowed the testimony.

The defendant was convicted of armed robbery, and the criminal defense lawyer appealed. The armed robbery conviction was reversed because the evidence of the guns was prejudicial to the defendant and had no relevance to the specific crime that was the basis for the trial. The state can present evidence to the jury that is prejudicial to the defendant. That is their job. However, the state cannot present evidence that is prejudicial to the defendant that is either irrelevant to the crime charged, as it was here, or so much more prejudicial to the defendant than it is relevant to the case that it is unfair. When this happens and the admitted evidence is considered harmful to the defendant’s case, the conviction should be reversed.

State Attempts to Forfeit Real Property Allegedly Related to Gambling Operation in Florida

Published on: February 17, 2014 | by Lasnetski Gihon Law

In a recent case that was well publicized in Jacksonville and throughout Florida, state law enforcement officials made many arrests of people the state alleged were involved in illegal gambling operations. According to the state, the gambling operations involved internet cafes in cities across Florida and brought in millions in revenue. When the state attempts to make a case like this, it is almost certain that the state has its eye on the seizure and forfeiture of the property belonging to the suspects. This can mean cash, vehicles, bank accounts and even real property.

In this case, the state attempted to seize and forfeit all real property that was purchased with the proceeds of the allegedly illegal gambling activity. If the state can establish that property, such as cash, is the direct result of illegal activity, the state may be able to forfeit that property. Additionally, if the state can establish that property was purchased with money that was the direct result of certain criminal activity, the state may be able to forfeit that property as well. However, the state cannot merely claim that a person was involved in criminal activity that made money over a period of time and then start seizing property owned by that person or even purchased during that time frame. The state has the burden to establishing a connection between the illegal activity and the property, and only certain illegal activity can be the basis for a seizure and forfeiture based on proceeds of illegal activity.

In this case, the attorneys for the defendants and the claimants of the properties alleged that the state did not have sufficient probable cause to seize the properties. The Florida forfeiture laws do not allow the state to seize real properties if the basis is that the real properties were purchased as a result of a violation of gambling laws. The state may seize real properties they can prove were purchased using proceeds from other crimes, such as drug trafficking, but not gambling crimes. If the seizure and forfeiture attempt is based on the gambling laws, the state would have to prove that the real properties were actually used to commit the crimes. For instance, the state might be able to seize a building where illegal gambling took place, but the state could not seize a house that was allegedly purchased with the proceeds of illegal gambling operations.

Protecting Your Rights When the State Seizes Your Property for Forfeiturein Florida

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

As we have discussed multiple times in the past, the Florida forfeiture laws give the state a lot of power to take property from people suspected of crimes and then institute forfeiture proceedings to keep that property. We have seen many cases where the state takes a person’s property, usually cash, based on mere suspicion of criminal activity. In some cases, even when a lot of money is taken by the state, criminal charges are never even brought. That appears to be a statement from the government that while we do not think we have sufficient evidence to charge you with a crime, we are still taking your money because we think it is related to criminal activity, or they jsut really want the money. There is an obvious disconnect, but the Florida forfeiture laws allow the state to do that.

Of course, if the state does take your property under those or any other circumstances, you have a right to make a claim for that property and fight to get it back. In that case, it is critical to speak to a law firm that is familiar with the Florida forfeiture laws and handles forfeiture cases in Florida. While there is not much that can be done when the police want to take, or seize, your property at the beginning, there are laws and procedures the state must follow in order to keep, or forfeit, your property thereafter. That is where an experienced Florida forfeiture lawyer can come in. It is important to speak to a Florida forfeiture attorney early in the process because there are certain documents that may need to be filed and certain hearings that should be scheduled to protect your claim. If you wait too long or do not get the proper paperwork filed, it could damage your claim for your property or even prevent you from making a claim altogether.

If you have had property taken from any law enforcement agency and want to protect your rights to get your property back, feel free to contact us for a free consultation.

Federal Sentencing Reform Bill Going Through Congress

Published on: February 8, 2014 | by Lasnetski Gihon Law

In order to address federal prison overcrowding issues, among other issues, the Senate is working on a bill that would reduce the federal prison population and also address racial disparities among federal inmates. The law would be called the Smarter Sentencing Act. Notwithstanding the obvious pessimism regarding anything considered “Smarter” successfully coming out of Congress these days, the bill does appear to be designed to address some of the serious problems that result in unnecessary and unnecessarily long prison sentences. For instance, the bill would cut some mandatory minimum sentences and give judges greater discretion to sentence defendants under the mandatory minimums. Mandatory minimum sentences, created by legislators who have no knowledge of the circumstances of a particular case and a particular defendant, may be the worst policies that contribute to unnecessarily long prison sentences.

The bill would also make more egalitarian crack cocaine sentencing reforms retroactive so people who were sentenced under the much harsher crack cocaine guidelines of the past may be able to petition the court to get a more fair and lighter sentence that people charged with crack cocaine charges today are eligible for. As we have discussed on this blog in the past, defendants charged with crack cocaine crimes were often exposed to much higher sentences under the federal guidelines than similarly situated defendants charged with powder cocaine crimes. The huge sentencing disparity was changed several years ago to make crack cocaine and powder cocaine crimes more similar, although there is still a fairly significant difference in the sentencing guidelines between the two types of cocaine crimes.

While the bill is still working its way through the process, it does seem to have fairly broad support from legislators who believe the current laws, particularly minimum mandatory sentences, are too harsh to others who appreciate the significant and wasteful taxpayer expenses that go along with imprisoning so many people in the United States, particularly for nonviolent drug offenses.

Police Could Not Stop Suspect For Drugs Based on Alleged Hand to Hand Transaction in Florida

Published on: February 5, 2014 | by Lasnetski Gihon Law

When the police approach someone and stop him/her to ask questions about a crime, it is typically considered a detention in Florida. The police are not allowed to detain someone for investigation without consent or specific evidence that the person is involved in criminal activity. It is very common for police to be patrolling what they call high crime or high drug areas and watch what they believe to be drug transactions. The most common suspected drug transaction that results in a detention is the hand to hand transaction. However, when a police officer observes a suspected hand to hand transaction, that does not necessarily give the police the right to stop the people involved.

In a recent crack cocaine case south of Jacksonville, Florida, the police were watching an apartment complex that they said was in an area known for street level drug activity. The police observed the defendant walk up to another person receive some amount of cash and then give something to the other person. The police assumed this was a drug sale. The police then stopped the defendant and found money and crack cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the money and crack cocaine because the police did not have a legal basis to stop the defendant and search him. The police can stop and investigate a person they reasonably believe is committing a crime. In the context of a street level drug sale, the police would need to show more than a hand to hand transaction. The police would need to establish how often drugs are sold in the area, more specifics about the particular transaction and/or possibly something about the individuals involved in the transaction. In this case, the police said it was a high crime area, but apparently the police had not made a drug arrest in the area in more than a month. The police also knew nothing about the two people involved in the transaction (i.e. did one or both of them have a criminal background).

Marijuana Case Gets Thrown Out After State Loses Important GPS Evidence

Published on: February 2, 2014 | by Lasnetski Gihon Law

In a possession of marijuana with intent to distribute case west of Jacksonville, Florida, the police suspected that the defendant was selling drugs. During their investigation, they placed a GPS device on his vehicle without obtaining a search warrant. Later, the police learned that a package containing marijuana was being shipped to a warehouse. They used the GPS device to track the defendant to the warehouse where he was arrested with the marijuana.

During the discovery phase of the case, the criminal defense lawyer requested all of the records related to the GPS device from the state. The criminal defense attorney believed that some of the GPS evidence would be helpful in their defense. However, the state indicated that they lost the GPS information that might be helpful to the defendant (while retaining the GPS information that was helpful to the state). The state said the GPS information sought by the criminal defense lawyer was accidentally deleted when they were updating the software. The state also said there was no backup source and no central database storage.

The criminal defense lawyer filed a motion to dismiss the marijuana charges claiming the defendant’s due process rights were violated by the state’s loss of possibly exculpatory evidence. A criminal case can be dismissed if potentially critical evidence is lost or destroyed by the state. The defendant has to show that the evidence could help show he is not guilty and also that he has no other way to get such evidence. The criminal defense attorney does not have to show that the state intentionally lost or destroyed the evidence or did so negligently. Because the GPS evidence had significant gaps in it at a critical time in the case, the court agreed that the lost evidence was sufficiently important. Additionally, because it involved GPS evidence that was deleted, there was no other way for the defendant to obtain similar evidence.

There is a Constitutional Right to Privacy in Hotel Rooms in Florida

Published on: January 30, 2014 | by Lasnetski Gihon Law

In Florida, there is a well-protected Constitutional right to privacy and to be free from unreasonable searches and seizures in one’s home. While the privacy right is not as strong, one also has a similar Constitutional right in his/her hotel room. The police cannot just barge into a hotel room because they think it contains drugs or other evidence just because the occupant does not own the room. The police need to have one of the standard legal bases to enter the hotel room such as consent from one of the occupants of the room, a search warrant or an emergency situation.

In a recent case near Jacksonville, Florida, police received a call of a home invasion robbery. Earlier that day, the police had stopped two people in a vehicle that appeared suspicious. After the call, the police believed they had something to do with the robbery. During the previous stop, the police learned that they were staying at a nearby hotel. The police went to the hotel room and walked inside without consent or a search warrant. Only after they entered the hotel room did the police obtain consent to search from the occupants. After obtaining consent to search, they discovered evidence related to the robbery in the hotel room.

The criminal defense lawyer filed a motion to suppress the evidence found in the hotel room. He argued that it was unlawful for the police to enter the room without a search warrant, consent to enter or an emergency. The court agreed. It was clear that the police cannot just walk into an occupied hotel room just because they think there may be evidence of a crime inside. The police did obtain consent to search the hotel room after entering the hotel room, but by then, the Constitutional violation had already occurred. The police cannot rectify a Constitutional violation by getting retroactive consent to search after they have illegally entered the hotel room.