Jacksonville Criminal Lawyer Blog

I Entered a Plea of Guilty or No Contest in Criminal Court in Jacksonville, Florida, Can I Now Withdraw or Reverse That Plea and Fight My Charges?

Published on: July 18, 2009 | by Lasnetski Gihon Law

As a criminal defense law firm practicing in the Jacksonville, Florida area, we get this question quite often. Sometimes, a person pleads guilty or no contest to a crime in Jacksonville the morning after the arrest without really knowing the consequences of the guilty or no contest plea, without really understanding the nature of the charges and evidence against him/her and without any meaningful discussion with a criminal defense attorney. Later, they may contact us and ask if there is a way to withdraw or reverse the guilty or no contest plea to the criminal charge.

There often is a way for a person who plead guilty or no contest to reverse or withdraw the plea. This is especially true for those people who plead guilty or no contest at their first appearance hearing the next day. In Jacksonville, Florida, the first appearance hearing takes place at J1, which is a courtroom attached to the jail. When a person gets arrested in Jacksonville, Florida, he/she will go in front of the judge the next morning or afternoon in J1. Many people plead guilty or no contest to their criminal charges in J1 on their own and later want to reconsider that decision or at least confer with a criminal defense attorney to find out if the guilty or no contest plea was the right thing to do.

In order for a plea of guilty or no contest to a charge to be legal and valid, the defendant must enter the plea voluntarily, knowingly and intelligently. At the first appearance hearing the next day, the defendant does not really have an opportunity to thoroughly go over the case, the charges, the evidence and the ramifications of the sentence with a criminal defense lawyer. The judge is supposed to ask each defendant who is pleading guilty about his/her age, education, mental and physical conditions and prior experience with the criminal justice systems. The purpose of these questions is to get some assurance that the defendant who is pleading guilty without having spoken to a criminal defense lawyer knows what he/she is doing and what effects that decision may have. If those questions are not asked of the defendant when he/she pleads guilty or no contest to a criminal charge, the plea may not be valid. In that case, the defendant may be able to file a motion to withdraw the plea and have a chance to fight the charges.

Describe the Process for Sealing or Expunging a Criminal Record in Florida and How Long Does it Take

Published on: July 15, 2009 | by Lasnetski Gihon Law

We get a lot of calls from people in the Jacksonville, Florida area and throughout Florida who want to know about sealing or expunging a criminal record. Sealing or expunging a criminal record can be a powerful tool for people who are concerned that a past mistake that shows up on their criminal record may affect their ability to get a good job or further their education.

When we get calls from people who want to know if their criminal record can be sealed or expunged, the first thing we usually discuss is whether they are eligible to have the particular criminal record sealed or expunged. Florida law dictates whether or not a person is eligible to have a criminal record sealed or expunged. Unfortunately, not everyone is eligible to have a criminal record sealed or expunged. The circumstances that determine whether a person can have a criminal record sealed or expunged are too in-depth to go over in this post. If you have a question as to whether you are eligible to have a criminal record sealed or expunged, feel free to contact us for a free consultation, and we can answer that question for you.

Once it is determined that you are eligible to have a criminal record expunged or sealed, it is important to understand that the process can take a few months. If you have a job interview or school application coming up and want to have a criminal record sealed or expunged, it is important to start the process quickly so the order to have your criminal record sealed or expunged can be signed by a judge and disseminated to the proper entities in plenty of time. The first step is to get fingerprinted and have the fingerprint form filled out. There is also an Application for Certificate of Eligibility that you need to sign and have notarized. With those documents, we can obtain the other information, signatures and court documents needed to send a package to the Florida Department of Law Enforcement (FDLE) so you can be certified as eligible. The FDLE charges $75 for the certification process and takes 6 – 8 weeks to respond once they receive the package. Once the FDLE certifies that you are eligible to have the particular criminal record sealed or expunged, we prepare and file a motion and proposed order for the judge. Once the judge signs the order to seal or expunge your record, several copies go to the clerk’s office in the county where the criminal record is kept. For a fee, the clerk’s office distributes the signed order to the FDLE and local police agency who then seals or expunges your record. The entire process necessarily takes a few months.

Florida Possession of Cocaine Case Dropped After Police Enter Home Without a Search Warrant

Published on: July 13, 2009 | by Lasnetski Gihon Law

A recent possession of cocaine case was dismissed after a judge ruled that the police did not have a right to enter the defendant’s apartment and search the defendant for drugs without a search warrant. In this case, the police received a tip that drug activity was taking place at a specific apartment. When police officers responded to the tip, they saw that the apartment door was open. The police officers were able to see the defendant in the kitchen wiping off the counter. They noticed a digital scale on the counter along with a white, powdery substance that appeared to be cocaine and a straw. The police officers entered the apartment, handcuffed the defendant, searched him and found two bags of cocaine in his pocket.

The criminal defense lawyer for the defendant filed a motion to suppress alleging that the police did not have a right to enter the defendant’s apartment and arrest and search him. As a result, all evidence of cocaine possession should be thrown out.

Everyone has a Fourth Amendment right to be free from unreasonable searches and seizures. This Constitutional protection is strongest in one’s home. As a result, a police officer typically needs a search warrant if he/she is going to lawfully search someone’s home. There are exceptions to the search warrant requirement if the police officer can prove that he/she could see the illegal drugs from a place the police officer had a legitimate right to be, it is immediately clear that the item seen is illegal or incriminating and the officer had a lawful right to access the drugs or other incriminating item. If all of those factors are not present, the police officer can only enter someone’s home to conduct a search if there are urgent, or exigent, circumstances or the owner of the home consents to the search.

Prosecutors May Be Wrongly Charging Conspiracy in Drug Cases

Published on: July 10, 2009 | by Lasnetski Gihon Law

In drug cases, the police are often involved in the planning stages of the drug transaction, whether by using an undercover detective who poses as a buyer or seller, by using a confidential informant or by using surveillance to record the discussions between the parties involved in the drug transaction. With that kind of evidence, prosecutors often bring conspiracy charges in addition to the drug sale and/or purchase charges once the transaction has been completed.

However, police and prosecutors will sometimes assume the elements of a drug conspiracy are in place just because there were preliminary discussions about the drug transaction and the drug transaction took place. Conspiracy is a crime completely separate from the actual drug sale and purchase crimes. In order to prove a conspiracy, the state has to prove that there was an agreement between two or more people to commit the same offense. Therefore, if the state only has evidence that two people met at a certain location at the same time and completed a drug deal, they can assume there was an agreement to buy and sell drugs but without proof of the actual agreement, there is insufficient evidence to prove a conspiracy. In other words, proof of the drug deal, even where it appears to be elaborately planned, is not sufficient evidence to prove and agreement an a conspiracy.

Finally, where the state has evidence that two people agreed to a drug deal, it still may not be sufficient to prove a conspiracy. The proof of the agreement has to establish that the parties agreed to commit the same offense. So, if the state has recordings or other evidence that a buyer and a seller agreed to a drug transaction and actually went through with it, this is not a conspiracy because the two parties did not agree to the same offense. The two parties agreed to, and committed, separate offenses, i.e. sale of drugs and purchase of drugs. There is no common goal because one is selling and the other is buying and those are separate drug crimes.

Three People in Jacksonville, Florida Arrested for Stealing From ATM’s

Published on: July 7, 2009 | by Lasnetski Gihon Law

Three people were arrested by federal law enforcement officials for allegedly setting up a scheme where they would steal money from local banks in Jacksonville, Florida using bad checks and ATM cards, according to an article on News4jax.com. According to federal officials, the scheme involved depositing a bad check into an existing account with an ATM machine and then using an ATM card to withdraw the money before the bank realized the check was bad. In order to complete this type of fraud, the person would have to have a legitimate ATM card that could access a real account and the bank would have to credit the bad check to the account before checking to make sure it was a good check with funds available. According to federal officials, the suspects were able to get people to sell their ATM cards allowing them to quickly access the accounts where the bad checks where deposited.

Senator Jim Webb Discusses Needed Changes to Our Criminal Justice System

Published on: July 4, 2009 | by Lasnetski Gihon Law

Senator Jim Webb of Virginia published a short article on The Charlottesville Center for peace and Justice website about problems with the criminal justice system and some suggested reforms. He highlights some pretty disturbing figures which make it difficult to argue that the criminal justice system is functioning fairly and smoothly. In his article, he cites the following: 1 out of every 31 adults in the United States is either incarcerated or on parole or probation and the number of incarcerated drug offenders has increased by 1200% since 1980. Most of the people in the U.S. are incarcerated for non-violent offenses.

When we consider the level of violence that pervades cities in the United States, including Jacksonville, Florida, one obvious implication is that criminal justice resources are not being allocated towards violent offenders to the extent they should be. Something is clearly wrong when the jails and prisons are full on drug and other nonviolent offenders at an increasing rate, yet violent crimes are more and more prevalent. Senator Webb points to reforms which would direct law enforcement attention more towards violent offenders while also developing rehabilitory strategies for drug and other nonvioolent offenders who can use the help to get back on their feet once through the criminal justice system.

Be Careful of DUI Stops in the Jacksonville, Florida Area This July 4th, 2009 Weekend. Know Your Rights During a DUI Stop.

Published on: July 2, 2009 | by Lasnetski Gihon Law

Last year we posted a blog article about DUI checkpoints in the Jacksonville, Florida area as police come out in force on a holiday weekend like this one to try and make arrests for driving under the influence of alcohol or drugs (also referred to as DUI, DWI and drunk driving). Because July 4th falls on a Saturday this year and the holiday is taken on the Friday before July 4th, we expect Jacksonville area police officers to be all over the place looking for potential DUI arrests. At Jacksonville Beach and the main roads leading to and from Jacksonville Beach like J. Turner Butler Boulevard (JTB), Beach Boulevard and Atlantic Boulevard, Jacksonville police are out in higher concentrations looking to make DUI arrests.

More and more recently, we have spoken with clients and read DUI arrest reports where it appears that police officers make the decision early on that a person is driving under the influence of alcohol or drugs and the DUI investigation is just a formality leading to a certain arrest. In other words, police officers put the same information on every DUI arrest report (odor of alcohol, slurred speech, swaying, mumbling or stuttering, and failed field sobriety exams) and decide to arrest a person for DUI regardless of whether or not there are any actual signs of impairment. As a result, it is important to know your rights if a police officer stops you and asks questions about alcohol or drugs. Ideally, you would call a DUI lawyer who is available at all times and ask questions immediately. If you are unable to speak to a DUI lawyer when stopped, understand that you do not have to answer the question about whether you have had any alcohol or drugs or how much you have had. You can also refuse the field sobriety exams. Keep in mind that if a police officer has it in his/her head that you are guilty of DUI, he/she will request that you submit to a field sobriety exam for the sole purpose of giving him/her and the State more evidence to convict you of DUI. Very few people, if any, get out of a DUI arrest by submitting to the field sobriety exams, even if they are perfectly sober.

Many people do not know their rights, or do not exercise their rights, during a DUI stop. If you have been arrested for DUI in the Jacksonville, Florida area or have any questions about how to handle a DUI stop, feel free to contact us any day, any time for a free consultation.

DUI Case Thrown Out After Officer Does Not Use In-Vehicle Camera During DUI Stop

Published on: June 30, 2009 | by Lasnetski Gihon Law

In a recent Florida DUI case (not in Jacksonville), a defendant charged with driving under the influence of alcohol had his case thrown out of court because the police officer failed to turn on the camera in his police car during the DUI stop, in violation of police department policy.

Like many police officers do, particularly specialized DUI police officers, this officer had a video camera in his vehicle designed to record encounters with suspects. In DUI cases, the cameras are particularly helpful to judges and juries because the evidence supporting a DUI arrest is so subjective and based on the observations of alleged impairment by the police officer. In just about every DUI arrest since the history of time, police officers say that the defendant had slurred speech, had bloodshot eyes, was swaying and failed the field sobriety exams. In-vehicle cameras can help a judge or jury determine whether those routine claims by police officers that appear in every arrest report are true in a particular case.

In this DUI case, the officer had a camera in his vehicle but did not turn it on to record his DUI investigation and subsequent arrest. When asked, the police officer merely said he chose not to turn it on. No other reason was given. The policy of his police department provided that the camera should have been turned on. Because the police officer failed to comply with the department policy for no apparent reason, and the defendant was deprived of video evidence of the DUI, which is often a good source of information for the defense, the judge dismissed the DUI charge.

State Has to Prove Defendant’s Knowledge in Failing to Register as a Sex Offender Cases

Published on: June 28, 2009 | by Lasnetski Gihon Law

After a criminal conviction for certain sex crimes in Florida, the defendant will be forced to register with the local police department initially, and then periodically thereafter, as a sex offender. The registration process involves providing the police with identification and contact information about the person so the police know where he/she can be found at all times. If a person fails to register the first time, or fails to re-register thereafter, he/she may be charged with the crime of failing to register as a sex offender, which is a felony crime in Florida.

However, it is not clear from reading the failure to register as a sex offender statute whether the State has to prove that the defendant knew he/she was obligated to register. In other words, at trial, can the State simply present evidence that the defendant was a sex offender required to register and did not, or does the defendant’s state of mind come into play? In some cases, the defendant can argue that he/she did not know he/she had to register or that he/she thought he/she did register. In most cases, when a defendant pleads guilty or no contest to a sex offense that requires registration, he/she will be forced to read and sign paperwork that explains the registration requirement. The probation officer will also explain it to him/her. However, if that is not done, the defendant can argue that he/she did not know about the registration requirement. Likewise, we read of one case where the defendant’s probation officer came to see the defendant around the time he was required to re-register. Based on the comments of the probation officer during that visit, the defendant thought his re-registration requirement for that year was satisfied, and he did not go to the registration office. He was charged with failing to register as a sex offender and was able to use the evidence of the visit from his probation officer and those discussions as a defense to the charge based on his impression that his registration requirement was satisfied.

We believe that the prosecution of a failure to register as a sex offender case is not as simple as proving that the defendant was required to register and failed to do so. Where those elements are proven but there is an argument that the defendant did not know either that he/she had to register or that he/she did not register, there is a valid defense to the crime.

Jacksonville Police Use Reverse Sting to Make Cocaine Trafficking Arrests

Published on: June 26, 2009 | by Lasnetski Gihon Law

Police officers in Jacksonville arrested several people at a WalMart on Philips Highway for trafficking in cocaine after setting up a reverse sting at the store, according to an article on News4jax.com. The article indicates that the five people were arrested after an undercover Drug Enforcement Agency (DEA) agent posed as a cocaine dealer who was going to sell five kilograms of cocaine to the buyers. After meeting at the WalMart, the suspected cocaine buyers were arrested and the $50,000 in cash they brought and their vehicle were seized.

Police in Jacksonville and other areas of Florida use the reverse sting technique to make various drug arrests involving cocaine, marijuana and other illegal narcotics. The plan often begins when police make an arrest of someone who provides information on another suspect and then work undercover to make a drug purchase, ior in the case of a reverse sting, make a drug sale. When the suspect arrives to buy or sell the illegal drugs, the undercover officer makes an arrest of uniform officers staioned nearby come to make the arrest.

However, these cases are not always as open and shuit as they seem. Although the police are in control of setting up the sting, criminal drug cases that result from these incidents are often lacking in evidence. One might expect to hear audio recordings of conversations between the undercover police officer and alleged drug buyers or sellers. One would also expect to see video of the actual drug deal since the police set up the meeting in advance. However, this evidence is often missing for some reason. In a case where the police set up a drug buy or sale in advance, it is not always clear to everyone the purpose of the meeting and who is involved. Without the proper evidence of criminal activity, one should not assume that each person arrested was involved in a drug deal.