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.

Much has been made of the Florida Stand Your Ground law since it made national news with the George Zimmerman/Trayvon Martin case. The Florida Stand Your Ground law generally stands for the idea that a person can use force to protect him/herself or another from the imminent threat of unlawful force by another person. A person can use deadly force to protect him/herself or another if he/she reasonably believes the other person is going to use imminent deadly force or commit a forcible felony. Essentially, it is a self defense law that allows a person to protect him/herself or another in situations where the law indicates it is reasonable and necessary. One difference between the Stand Your Ground law in Florida and self defense claims is that the Stand Your Ground law is an immunity from prosecution rather than a defense at trial. This means if a defendant has a successful Stand Your Ground law claim, the judge should throw the case out and it would never go to trial.

However, there are some cases where a defendant does not have the right to assert the Florida Stand Your Ground law immunity. In a recent case south of Jacksonville, Florida, the defendant was charged with aggravated battery with a firearm. The defendant claimed that two men rushed at him in a threatening manner while he was on his front porch so he pulled a gun and shot one of them.

The criminal defense lawyer filed a motion to dismiss the charges under the Stand Your Ground law because the defendant was in reasonable fear of serious injury from these two men. However, the Florida Stand Your Ground law contemplates a person who is “not engaged in an unlawful activity.” This defendant was a convicted felon, and he had a gun on him prior to shooting the alleged attacker. Possessing a gun as a convicted felon is considered “unlawful activity” under the Stand Your Ground law. As a result, the defendant’s unlawful possession of a firearm by a convicted felon precluded him from asserting the Stand Your Ground law immunity claim. The defendant could still assert a defense at trial that he was justified in shooting the other person, but that defense must be made at trial to be decided upon by a jury. It cannot be made before the trial in an attempt to dismiss the charges in a Stand Your Ground law motion.

In addition to the regular crimes of violence from a misdemeanor like battery to a more serious felony like aggravated assault, there is a specific crime in Florida that deals with injuries to an elderly person. What would normally be a misdemeanor battery could become a more serious felony charge if the victim is considered an “elderly person” under the Florida law.

Abuse of an elderly person occurs when a person intentionally causes a physical or psychological injury to an elderly person. The crime can occur even where no injury takes place if the suspect commits an act that could reasonably be expected to result in a physical or psychological injury to an elderly person. In either case, the suspect can be charged with a third degree felony which carries a maximum sentence of five years in prison. If the suspect’s act causes a serious injury to an elderly person, the crime becomes a first degree felony which can carry a maximum penalty of up to thirty years in prison.

An elderly person is defined as a person 60 years of age or older who is suffering from the infirmities of aging or other physical or mental problems to the extent that the person’s ability to take care of, or protect, him/herself is impaired. If the state files an abuse of the elderly charge, the state must prove more than the fact that the victim was at least 60 years old. The state must also prove that the victim was impaired in his/her ability to take care of himself. There was a recent case of a 75 year old man who was robbed and beaten but the charge against the defendant was dropped because the state merely provided evidence of the victim’s age without any evidence of the victim’s health and ability to take care of himself.

In Florida, if the police want to search a person’s home for drugs or other incriminating evidence, they would normally need a search warrant that can only be validly obtained if the police have probable cause to believe drugs or other evidence is in the home. The police can always go to the house and ask for consent to search it, but without that consent, a search warrant is typically required.

However, there can be exceptions. In a recent manufacture of marijuana and possession of marijuana case near Jacksonville, Florida, the police got an anonymous tip that the defendant was growing marijuana in his house. An anonymous tip alone is never going to be sufficient to get a valid search warrant for a house so the police did what is called a knock and talk where they walk up to the front door, knock and talk to the occupant. When the defendant opened the door, the police indicated they smelled marijuana in the home. The police officer went into the house and saw marijuana in plan view. They then got consent to search the home from the defendant. The police found more marijuana and marijuana plants and arrested the defendant for the marijuana charges.

The criminal defense lawyer filed a motion to suppress evidence of the marijuana arguing that the police did not have a right to enter the home where they saw the marijuana. The police should have obtained a search warrant or consent to search before entering the home. Since they got consent to search only after entering the home illegally, the consent to search the home was invalid.

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.

In a recent case south of Jacksonville, Florida, police arrested the defendant for offering to engage in prostitution for money. In this case, an undercover police officer contacted the defendant to engage her for prostitution over the phone. They met in a hotel room where the police had set up a hidden camera. The defendant arrived and agreed to engage in sexual intercourse for $200 as indicated over the phone. The undercover police officer paid her $200. At this point, the crime of offering to engage in prostitution for money was complete, and the police officer should have arrested her. However, the police officer did not arrest her and allowed her to get naked, rub lotion on herself and masturbate in front of him and on camera. After that sequence of events, the police officer arrested her.

The criminal defense lawyer filed a motion to dismiss based on the police officer’s improper conduct. A rarely used and rarely successful strategy for getting a case dropped is to file a motion to dismiss the charge claiming the methods used by the police, or the government, were so unfair and unjust that they violated the defendant’s Due Process rights. In this case, the judge denied the criminal defense attorney’s motion because there was probable cause to arrest the defendant before the improper conduct, and the police officer’s conduct was not so egregious that her Due Process rights were violated.

It is rare for a case to be dismissed based on the outrageously improper conduct of the police. One example where it has occurred was in a case where the police officer manufactured crack cocaine, sold it to the defendant and then charged him with possession of cocaine. Entrapment cases can also result in dropped charges, but again, those cases are extremely rare.

The Florida Stand Your Ground Law has received national attention over the last several months because of the George Zimmerman case. The Florida Stand Your Ground Law was enacted in 2005 and provides immunity for defendants who qualify under the law. This immunity is not a defense at trial, but rather it is a way to avoid prosecution for a crime. The criminal defense lawyer representing a defendant who is asserting the Stand Your Ground Law immunity can file a motion with the judge and if successful, the case against him/her is dropped. The case never gets to a jury. At that hearing, the standard of proof is less than the beyond a reasonable doubt standard people are familiar with in criminal cases that go to a jury.

The Florida Stand Your Ground Law gives immunity from prosecution to a defendant who used force in a legally justifiable manner. Generally, a person is allowed to use force if he/she reasonably believes it is necessary to defend himself or another against the alleged victim’s unlawful and imminent use of force.

One factor that would disqualify a person from attempting the Stand Your Ground Law immunity is if the defendant was doing something unlawful to begin with. For example, if the defendant was burglarizing someone’s home and the homeowner came out and threatened his life, the defendant could not assert the Stand Your Ground immunity if the defendant used force against the homeowner.

In Florida, the police have a right to expect a person to submit to a breath alcohol test, or breathalyzer test, when they make a valid arrest for DUI. The law of informed consent means that a person agrees that he/she will submit to a breathalyzer test after a valid DUI arrest. Of course, the police will not force a person to submit to a breathalyzer test, and a person can refuse to take the breathalyzer test, but theoretically, a person legitimately arrested for DUI is supposed to take the breathalyzer test.

On the other hand, a breathalyzer test after a valid DUI arrest may be thrown out of court if the police officer uses misinformation, incorrect statements of the law or false promises to get the person to submit to a breathalyzer test. In Florida, not everyone understands how the breathalyzer test is done in the context of a DUI investigation and arrest. The police do not use the breathalyzer test as a factor to determine whether they will arrest you for DUI. They only administer the breathalyzer test after they have arrested you and taken you to the jail. If the breathalyzer test is favorable to the defendant, they do not “unarrest” you at that point and let you go home. It is just one factor in the DUI prosecution to follow. If the breathalyzer test is high, they use that against you to prove you were drunk. If the breathalyzer test is low, they downplay it and try to use other evidence to prove you were drunk. Because the breathalyzer test is done after the DUI arrest and after the person is taken to jail, many people refuse to take the breathalyzer test, failing to see how it will help them if the police officer has already decided to arrest him/her.

In a recent DUI case near Jacksonville, Florida, the defendant was arrested for DUI and taken to the jail. At the jail, the police officer asked the defendant if he would submit to a breathalyzer test. The defendant asked the police officer if there was anything he could do to get out of jail. The police officer indicated that the defendant could leave the jail if his blood alcohol level got below 0.08, the legal limit. The defendant then took the breathalyzer test.

The general rule in Florida is that a police officer cannot search a person’s belongings unless an established legal exception applies. Examples include: consent, a search warrant, a search incident to an arrest and probable cause to believe incriminating evidence is present and exigent circumstances. However, if a person abandons the property, he/she may no longer have standing to challenge an alleged improper search of that property.

In a recent drug case south of Jacksonville, Florida, police officers were investigating a complaint that some individuals were selling cocaine and marijuana. The police officers arrived and saw three individuals standing near the street. The police officers saw one of the individuals pass a bag to another who then dropped it behind some bushes. A police officer then went behind the bushes, grabbed the bag and opened it. He found marijuana and cocaine inside and arrested the first individual who had the drugs.

The defendant’s criminal defense lawyer filed a motion to suppress the drugs arguing that the police officer did not have a legal basis to seize the bag and search it for illegal drugs. The issue was whether the defendant abandoned the property so that the officer was free to search it. In the search and seizure context, abandonment of property occurs when a person relinquishes his/her reasonable expectation of privacy in the property. The issue is not whether the person gave up his/her right to the property so that another person can take ownership of it.

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