Jacksonville Criminal Lawyer Blog

Evidence Issues in Dealing in Stolen Property Cases

Published on: April 28, 2012 | by Lasnetski Gihon Law

In Florida, the crime of dealing in stolen property is committed when a person “deals” in property that he/she knows or should know is stolen. This is a second degree felony that is punishable by up to 15 years in prison.

So how does the state prove that a person knew or should have known the property was stolen? Obviously the defendant can make it easy on the state and admit that he/she knew the property was stolen. However, absent a confession by the defendant, the state must rely on circumstantial evidence to prove the defendant knew or should have known the property was stolen. One way the state endeavors to prove this crime is by showing that the defendant was in possession of the stolen property shortly after it was stolen. If a burglary happened at noon and the defendant is seen pawning one of the stolen items at 2:00 pm, the state is entitled to argue that the defendant was involved in the burglary and knew the property was stolen.

What about when the defendant is selling the stolen property days or weeks after the theft? The defendant can argue that he/she obtained the property in any number of legitimate ways during that time. One way the state can try to circumstantially prove the defendant knew or should have known the property was stolen when the defendant sold it at a later date is the price for which the defendant sold the property. If the defendant sold the property for a price that is much lower than the value of the property, than the state will argue the defendant knew or should have known the property was stolen. In fact, the state may be entitled to an instruction from the judge to the jury in the dealing in stolen property case that instructs the jury that they can infer that the defendant knew or should have known the property was stolen based on the sale price. The defendant can provide an explanation for why he/she sold the property for substantially less than its value, but evidence of such a sale may be enough to prove that the defendant knew or should have known the property was stolen and a conviction for dealing in stolen property.

The Crime of False Imprisonment May Require Less Than You Think

Published on: April 25, 2012 | by Lasnetski Gihon Law

In Florida, false imprisonment is a felony crime. False imprisonment is normally a third degree felony that carries a maximum penalty of five years in prison. However, the charge can become much more serious if the victim is under 13 years of age and the child is seriously injured or sexually abused.

In Florida, false imprisonment is defined as restraining another person against his/her will by force, threat or secretly confining him/her. This can cover a lot of different scenarios. Another important thing to note is that the false imprisonment does not need to involve a confined space, such as a locked room. Additionally, the false imprisonment does not need to take place over a long period of time. There is no set time limit for a false imprisonment crime to be complete.

In a recent case west of Jacksonville, Florida, a defendant was convicted of false imprisonment after he got into an argument with his girlfriend and ultimately knocked her to the floor and using his weight to pin her down.

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.

Urine Test Thrown Out in DUI Case After Police Coercion

Published on: April 19, 2012 | by Lasnetski Gihon Law

In Florida, when a person receives a driver’s license, he/she is consenting to take a blood alcohol test if the police have a legal basis to request one during a proper DUI investigation and the police follow proper legal procedures. A person can refuse a breathalyzer, urine or blood test to check his/her alcohol level, but he/she may face a driver’s license suspension as a result of that refusal. If a person refuses a breathalyzer, urine or blood alcohol test, the police officer may not use any coercive tactics to administer the test.

In a recent DUI case near Jacksonville, Florida, the defendant was stopped for failure to maintain his lane. After a DUI investigation, he was arrested and taken to the police station. The police officer asked if he would submit to the breathalyzer test. The defendant agreed, and the results were 0.00 both times the breathalyzer test was administered. The police officer still believed the defendant was impaired from alcohol and then asked for a urine test. The defendant initially refused the urine test, but the police officer asked repeatedly. Ultimately, the police officer threatened to take him to the hospital to get his urine with a catheter or to take a blood sample. The defendant finally agreed to the urine test.

The criminal defense lawyer filed a motion to suppress the results of the urine test alleging that the police officer used coercive tactics in obtaining the urine sample. The court agreed and threw out the evidence of the urine test. If a defendant under arrest for DUI refuses a breathalyzer or urine test, the police may be able to get a blood sample from the defendant but only with a proper search warrant. In this case, the police officer threatened the blood test to get the defendant to consent to the urine test. However, the police officer did not properly inform the defendant that he would need to get a search warrant for the blood first.

Another Florida Stand Your Ground Law Example

Published on: April 16, 2012 | by Lasnetski Gihon Law

With the Trayvon Martin/George Zimmerman case getting so much attention along with the Florida Stand Your Ground law, we thought we would provide some examples of how the law works in practice. This is the second example we have discussed of a case where the Florida Stand Your Ground law was applied to give a defendant immunity from prosecution for a violent crime. The Florida Stand Your Ground law, when it applies, is a defense to a violent crime charge and gives the defendant immunity from prosecution. This means that the criminal defense lawyer can raise this issue in a motion with the judge and if successful, have the judge throw the case out so it never gets to a jury trial.

In this recent case near Jacksonville, Florida, the defendant was charged with aggravated battery, but the criminal defense lawyer was able to have the judge throw the case out based on immunity from the Florida Stand Your Ground law. In this case, the defendant and the alleged victim were arguing and ultimately got into a fight with each other. At some point during the fight, the defendant stopped fighting and retreated. At the defendant retreated, the alleged victim attempted to forcibly take a briefcase belonging to the defendant’s friend. The two began fighting over the briefcase again, and the defendant stabbed the alleged victim with a knife.

Under the Florida Stand Your Ground law, a person has a right to use deadly force if he/she reasonably believes the other person is about to cause death or bodily injury to him/her or to prevent the other person from committing a forcible felony. It did not appear that the alleged victim was about to use deadly force against the defendant, but the alleged victim was in the process of committing a forcible felony- a robbery. As a result, the defendant was authorized to use deadly force against the alleged victim to prevent the alleged victim from committing the robbery, which is considered a forcible felony in Florida.

Can a Police Officer in Florida Search You if He Sees Part of a Concealed Handgun?

Published on: April 13, 2012 | by Lasnetski Gihon Law

In Florida, possession of a firearm is not illegal unless the person is a convicted felon. Possession of a concealed firearm is illegal unless the person has a concealed firearm permit. If a police officer sees a person in possession of what appears to be a handgun and does not have evidence that the person is a convicted felon and does not know if the person has a concealed firearms permit, does that police officer have probable cause to search the person? The Florida courts have disagreed on this issue, but the answer in Jacksonville appears to be yes.

In Florida, a police officer cannot search a person without probable cause to believe the person is involved in criminal activity or consent. Since merely possessing a gun, without more evidence, is not necessarily evidence of a crime, how can a police officer search a person if all the police officer knows is the person may be in possession of a firearm?

In a recent carrying a concealed weapon case near Jacksonville, Florida, the police were on patrol and saw the defendant with what appeared to be part of the handle to a handgun sticking out of his pants. When they approached the defendant, they could not see the handle but saw a bulge in his pants consistent with a handgun. The police officer asked to search the defendant, but he refused. The police officer then searched him anyway and found a handgun. At the time of the search, the police officer did not know if the defendant was a convicted felon, did not know if he had a concealed weapons permit and did not see the defendant commit any other crimes. After obtaining the concealed handgun, the police learned that defendant was a convicted felon and did not have a concealed weapons permit. The defendant was arrested for carrying a concealed weapon and possession of a firearm by a convicted felon.

Battery and the Stand Your Ground Law in Florida

Published on: April 10, 2012 | by Lasnetski Gihon Law

The Florida Stand Your Ground law is getting a lot of national attention recently as a result of the Trayvon Martin/George Zimmerman case. The Florida Stand Your Ground law and justifiable use of force laws provide as follows: 1) a person can use nondeadly force when he/she reasonably believes it is necessary to defend him/herself against another’s imminent use of unlawful force, and 2) A person can use deadly force is he/she reasonably believes it is necessary to prevent imminent death or great bodily harm to him/herself or another person or to prevent the commission of a forcible felony. In these cases, the person does not have to retreat before using deadly force.

In other words, if a person reasonably thinks he/she is about to be the victim of nondeadly violence, he can use nondeadly violence against the other person. If a person reasonably thinks he/she is about to get killed or seriously injured by another, he/she can use deadly force against that other person to prevent it.

A person has greater protection if the incident occurs in his/her own home. Florida law provides that a person in his/her home is presumed to be in reasonable fear and in a position to legally defend him/herself if the other person is unlawfully entering his/her home.

Florida Police Still Cracking Down on Pain Clinics

Published on: April 7, 2012 | by Lasnetski Gihon Law

We have written several posts about state and federal law enforcement agencies focusing on what they call “pill mills” throughout Florida. We have represented many people in state and federal court who are charged with having some association with an illegal pain clinic ,or pill mill, in Florida or Georgia. The targets of the police investigations range from pain clinic employees to doctors to owners. Some of the factors police look for are as follows: pain clinics that have lines out the front door or lines early in the morning when the clinic opens, vehicles in the parking lot with out of state license plates and pain clinics where doctors see patients for a very short period of time and then write prescriptions for pain pills.

Over the last several years, we have seen many cases of the police going after these pain clinics. Many of these criminal cases have been successful, but some of them have targeted legitimate pain clinics that provide a much needed medical service to people who do not have good, or any, insurance coverage.

According to a recent Jacksonville news article, Florida police are still cracking down on pain clinics. The Florida Attorney General has called the prevalence of pain clinics and prescription drug abuse a health crisis in Florida. The Attorney General’s office claimed that more than 2,000 arrests in pain clinic related cases have been made, including 34 doctors. The Attorney General’s office and other law enforcement agencies throughout the state intend to continue to make arrests of people they consider to be involved in illegal pain clinics.

Possession of Recently Stolen Items is Evidence of a Burglary in Florida

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

In Florida, a burglary is committed when a person enters a residence, vehicle or other structure with the intent to commit certain crimes therein. Most of the time, the crime that the person intends to commit is a theft. Burglary is a serious felony crime in Florida.

One obvious way the state attempts to prove a burglary is by showing that the defendant was in possession of the stolen property shortly after the alleged burglary. In fact, there is a jury instruction the judge will give telling the jury they can infer that the defendant committed the burglary if he/she was found in possession of the recently stolen items. However, there are two issues that often come up with this jury instruction in a burglary case.

First, the defendant must be in possession of the stolen items shortly after the burglary. If the police find the defendant with the stolen items weeks or months later, this inference would likely not apply. In a recent burglary case near Jacksonville, Florida, the defendant was found in possession of the stolen items three months after the burglary. The court found that three months was not recent possession of stolen property so the state was not entitled to a jury instruction telling the jury they could infer he was guilty of the burglary because he was in recent possession of the stolen items.

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.