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In Florida, once a person has been convicted of a felony crime (whether the prior conviction was in Florida or another state), that person is not allowed to possess a firearm. That person is also not allowed to possess ammunition. It is a serious felony crime in Florida to be charged with possession a firearm or ammunition as a convicted felon. But what happens when a convicted felon is found in possession of a firearm and ammunition at the same time?

In a recent case near Jacksonville, Florida, the defendant was searched and found to have a handgun near his seat and bullets in his pocket. The state charged him with two separate felony counts- possession of a firearm by a convicted felon and possession of ammunition by a convicted felon. The criminal defense lawyer did not argue that the defendant was not guilty of each charge; he argued that the state was not permitted to charge him with both charges when the defendant possessed the firearm and the ammunition at the same time. This violated double jeopardy.

The court agreed. Because of the wording of the statute, which prohibits the possession of any firearm or ammunition, the law does not allow the state to charge and convict a defendant of separate charges for possessing a firearm and ammunition at the same time.

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The use, and often abuse, of taxpayer money by government officials is a popular topic in discussions about politics. All too often, it seems like politicians scream and shout about how conservative they are yet when they get elected, they treat taxpayer funds like they have won the lottery. In any case, here is an article discussing a speech by Lasnetski Gihon Law partner Harry Shorstein to the Jacksonville Downtown Rotary group about some past and present issues facing jacksonville, Florida and the use of taxpayer funds.

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In Florida, burglary of a dwelling is a serious felony crime. The crime of burglary of a dwelling is committed when a person enters or remains in a dwelling with the intent to commit a crime therein. Burglary of a dwelling is normally considered much more serious than burglary of other structures because a burglary involving a dwelling carries the risk that unsuspecting occupants will be present which raises the risk of violence and other serious issues. However, the Florida legal definition of a dwelling is fairly broad and includes places where people are not likely to be present. A dwelling is defined as basically any building with a roof over it that was designed to be occupied by people. It can also include an attached porch and the immediate area surrounding the main structure.

In a recent case near Jacksonville, Florida, a defendant was charged with burglary of a dwelling after he entered a home that was being renovated and robbed the guy who was putting up the drywall. The criminal defense lawyer argued that it could not be a burglary of a dwelling because the home was being renovated and clearly was not being inhabited by anyone at the time. The court disagreed and allowed the conviction. The law states that whether the building is occupied is not the critical element. Rather, it is the design of the building, and if it is a structure designed to be lived in by someone and it has not been drastically changed to make lodging unsuitable, it qualifies as a dwelling even if no one is occupying it at the time or intends to occupy it in the near future. So, the bottom line here is that if a person enters with intent to commit a crime any place that appears to be inhabited by people, inhabitable by people or originally designed to be inhabited by people, the state can charge that person with burglary of a dwelling.

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it is rarely used, but people who commit a crime in Florida can use a necessity defense to avoid charges or be found not guilty of the crime. The defense is rarely used because it basically requires a defendant to establish that he/she needed to commit the crime to avoid the threat of harm or serious bodily injury to him/herself or others. That is not all. In addition to establishing that the crime needed to be committed, the defendant must also show that the defendant did not intentionally or recklessly put him/herself in a position where he needed to commit this crime, the defendant had no other reasonable option but to commit the crime, the harm the defendant was trying to avoid was worse than the crime committed and the defendant stopped the criminal conduct once the necessity was over. As you might expect, outside of a self defense type of scenario, which is its own specific defense, it is very rare for those factors to come together and work for a defendant.

However, when those factors can be argued, a defendant can use a necessity defense to all kinds of criminal charges, including driving under the influence of alcohol or drugs (DUI). In a recent DUI case near Jacksonville, Florida, a defendant attempted to use the necessity defense. A police officer saw him driving at a high rate of speed and driving erratically. The officer conducted a DUI investigation and arrested him for DUI. This was also the defendant’s third DUI in 10 years which comes with enhanced penalties and can be charged as a felony DUI, which is punishable by up to 5 years in prison. At the trial, the defendant admitted that he was driving while impaired from alcohol but argued that he needed to drive in that condition.

The defendant’s story, however, could use some work. He argued that his friend’s cat was sick and he was the only person who could take it to the 24 hour veterinarian’s office. The defendant had the right idea, but this excuse was not nearly sufficient for a necessity defense. As a result, he was convicted of DUI.

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Kidnapping is a serious felony crime in Florida that comes with potentially serious penalties. When most people think of kidnapping, they probably assume it requires a suspect to take a person against his/her will, transport them somewhere and hold them without letting them leave for some period of time. That would be kidnapping, but the Florida law requires less than that for a conviction. In Florida, the crime of kidnapping is committed when a person confines or abducts a person against his/her will by force, threat of force or secretly for an illegal purpose such as holding for ransom, to commit a felony or to harm the person. Kidnapping is a first degree felony in Florida punishable by up to life in prison.

Notwithstanding what most people think kidnapping is, that definition is fairly broad and can include a lot of conduct that does not last very long. For instance, in a recent kidnapping case south of Jacksonville, Florida, the defendant committed an armed robbery of a liquor store. Armed robbery, in and of itself, is a serious felony crime in Florida, but in addition to robbing the store with a gun, the defendant also tied the cashier’s hands behind his back and left him that way as he robbed and left the store. The cashier had to seek help to get untied.

Because he tied up the cashier and left him there, the state charged him with kidnapping in addition to armed robbery which resulted in an extra 20 years in prison. The criminal defense lawyer argued that tying the cashier up was just part of the armed robbery and not sufficient for an entirely separate charge of kidnapping. This is a valid argument, but the court determined that it can also be kidnapping under certain circumstances. The test for whether a kidnapping charge can be added is whether the conduct was a slight part of the crime and inconsequential, whether the conduct was inherent in the underlying crime and whether the conduct has some significance independent of the underlying crime, such as making it easier to commit the crime or decreasing the risk of being caught. In this case, the court noted that armed robbery can be committed without tying up the victim. By doing so, the defendant committed a separate and significant act that helped him commit the crime and was designed to help him get away with it. As a result, tying the cashier up was found to be significant and independent of the underlying armed robbery so that an additional charge of kidnapping was valid.

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In Florida, there are two types of possession of drugs cases. There are actual possession cases where the defendant is actually holding or carrying the drugs, and there are constructive possession cases where the defendant is not actually holding the drugs but knows they are there and has some ability to control the drugs. Most constructive possession cases occur when the police find drugs in a vehicle or residence that either belongs to the defendant or in which the defendant is located. In those cases, the state needs to present evidence that establishes a legitimate connection between the defendant and the drugs. The strength of these cases is highly dependent on the particular facts. The more evidence the state has that the drugs belonged to the defendant (although the state does not have to prove ownership), the stronger the state’s drug case is.

In a possession of cocaine and marijuana case south of Jacksonville, Florida, the police located the marijuana and cocaine in an apartment. The defendant was arrested going to the apartment because the defendant had a key to the apartment. However, the defendant was arrested before he could enter the apartment. There was no other evidence that the defendant lived in the apartment or had any other connection to the drugs inside.

The court ultimately threw out this case. The criminal defense lawyer noted that a person can have the key to an apartment without living there or having any knowledge of what is inside at the time, i.e. a friend, neighbor, relative, landlord. Therefore, having a key to a residence is not sufficient to attribute drugs in the residence to that person. The state needed to prove much more of a connection between the defendant and the drugs. For instance, if the state could prove the defendant lived in the apartment and the drugs were found in the defendant’s room, perhaps through personal items, electric bills, etc, then the state would have more of a constructive possession case. However, without such evidence, the state’s possession case was thrown out.

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Normally, for a police officer to stop or detain a person in Florida, the officer needs consent from the person or specific evidence that the person is involved in criminal activity. However, there are exceptions to the search and seizure laws, and one of them involves a situation where it appears to the police officer that a person’s welfare may be in danger. This often occurs when a person is asleep in the driver’s seat of a vehicle. The police officer will normally anticipate a DUI arrest in this situation, but he/she can use the welfare check exception as a reason to further investigate when the presence of alcohol and/or drugs are initially not apparent. In these cases, if the police officer reasonably believes the person may be at risk or need medical attention, the police officer can take steps to assist the person or investigate further to determine if there is in fact some kind of health risk or medical emergency. And if the police officer discovers a crime while doing this welfare check, then the officer can investigate that crime and make an arrest.

In a case near Jacksonville, Florida, a police officer was patrolling a mall parking lot and saw a vehicle parked behind one of the businesses where customers do not normally park. The officer approached the vehicle and noticed the defendant squatted down in the vehicle. The vehicle was running. The police officer knocked on the window and told the defendant to roll the window down. When the defendant complied, the police officer saw a bag of marijuana in the vehicle and arrested the defendant for possession of marijuana.

The criminal defense lawyer filed a motion to suppress arguing that the police officer did not have the legal authority to order the defendant to roll down his window so he could see into the vehicle. The criminal defense attorney argued that the police officer had no evidence that the defendant was involved in any criminal activity when he ordered the defendant to roll down his window. However, the court disagreed. The court found that the police officer had a legitimate reason to have the defendant roll down the window to make sure there was no medical problem. Since the police officer discovered the marijuana as soon as the window was rolled down, according to the police officer, he was within his rights to investigate the marijuana and make the arrest for possession of marijuana.

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Offering to engage a person for prostitution is a misdemeanor crime in Florida. It is not the most serious crime, but it is one that people do not generally want to see on their record. It can be charged as a felony crime for a third violation. However, to be convicted of offering for prostitution in Florida, the state does not have to prove that the defendant actually had sex with the person or even paid any money. It is sufficient if the state can prove the defendant agreed to engage the other person in prostitution.

In a recent prostitution case near jacksonville, Florida, undercover detectives were dressed as prostitutes and trying to entice people to solicit them. This is how most prostitution arrests are made. The defendant approached one of the undercover detectives, and they negotiated a price and the terms of the transaction. Before any money changed hands, the defendant said he needed to go to the bank to get the money to pay the undercover detective. The defendant was then arrested for offering for prostitution at that time. Basically, the defendant was arrested based on a conversation alone.

The criminal defense lawyer argued that the defendant could not be charged and convicted of offering for prostitution because the crime could not be completed if the defendant had no money and did not have the ability to pay as of the time of his arrest. However, the law in Florida makes it illegal to offer to engage in prostitution. The state does not necessarily have to prove the defendant actually actually completed the sexual act or even paid for it. If the state can prove that the defendant intended to enter into an agreement to engage in prostitution, then the defendant can be convicted of offering for prostitution in Florida. On the other hand, the defendant could argue that he did not have any money and never really intended to follow through with the apparent prostitute. In any case, the judge would not throw the case out, and it would be up to a jury to determine if the state could prove the defendant actually intended to engage the undercover detective for prostitution based on the facts of the case.

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It seems obvious, but to prove a theft case in Florida, the state has to prove that the defendant intended to steal the property at the time he/she took the property. This is fairly obvious in most theft cases, but it can become a problem for the state when a defendant is charged with theft in a commercial context. For instance, consider a case where the alleged victim hires a defendant to renovate his home and pays the defendant a certain amount in advance. If the defendant starts the project but fails to complete it and refuses to return the money, is this a crime of theft in Florida?

It depends. There are situations where a person pays another to do something in advance and the work does not get done but for reasons beyond the defendant’s control, or at least for reasons not anticipated when the money was taken. The defendant’s materials could have been stolen, the price of materials could have gone up so that the original terms were no longer feasible or any other unforeseen problem could arise. In those cases, if the work was not done due to unanticipated circumstances, it would not be a theft. The victim would have to seek recourse in the civil courts.

A person can be charged and convicted of theft for taking money and promising to do something in the future, but the state would have to prove that the defendant did not intend to perform the service at the time he/she took the money. This can be difficult in a business context. These cases are often best left up to the civil courts where the victim can sue the defendant for breach of contract. In a criminal case, if the defendant started the work or has a valid excuse as to why he/she could not perform the work, it is likely not a criminal theft case.

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In drug cases in Florida, the police are not allowed to stop a person and investigate him/her for drugs or other illegal activity without probable cause to believe the person is committing a crime. The police can always approach a person and ask to talk to him/her and/or search him/her, but that person also has a right to refuse the police. Many times, a drug arrest is the result of a vehicle traffic stop where a police officer observes a person violate a traffic law, conducts a traffic stop and either gets consent to search the vehicle and finds drugs or allegedly develops probable cause and searches the vehicle, perhaps after smelling the odor of marijuana and having a drug dog alert to the vehicle.

Stopping pedestrians is more rare because the police do not normally have a traffic violation that can be used to initiate the encounter with the suspect. However, it can still happen that way. In a possession of cocaine case south of Jacksonville, Florida, a police officer observed the defendant walking down the middle of a street. He was not in danger and he was not bothering anyone but it is against the law for a pedestrian to walk in the middle of the street. This became a valid basis to stop the defendant. After the stop, the defendant agreed to let the police officer pat him down. Upon doing so, a pill bottle fell from his pants, they found crack cocaine inside and he was arrested for possession of cocaine.

The criminal defense lawyer tried to suppress the evidence of the drugs, but between the pedestrian violation, the consent to the pat down and the pill bottle falling to the ground, the state was able to proceed with the possession of crack cocaine charge. Had the defendant stayed on the sidewalk or refused consent to pat him down, it is unlikely he would have been arrested.

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