Orlando Criminal Defense Attorney Blog

I know we lawyers are always saying, "Get It In Writing". Sometimes, this can be a bad thing. Especially in a criminal case, when it comes to scientific evidence, we defense attorneys do not want everything in writing. Why, you ask?

In the State of Florida, someone accused of a crime may elect to "participate in discovery". This is a fancy term meaning that the defense attorney files something with the prosecutor saying "show me everything you got". Once a defense attorney files a demand for discovery, the prosecution turns over everything they've got. Every police report. Every written statement. Every lab report. The names and addresses of every witness. Every picture taken in the case. Every video. Every fingerprint card. Every photo line-up. Everything. But, the problem with electing to participate in discovery is that it's a two way street--now the defense must also turn over every document they have as well.

In my experience, 99% of all Florida criminal defense attorneys "participate in discovery". I know one local guy who never has, and never will. That means, he has never conducted a deposition of a state witness (because doing a deposition counts as "participating in discovery"). The reason he doesn't participate is: (1) he must then turn over everything he has to the state, and (2) he can usually obtain documents regarding the case from a public records request. Remember also, when a defense attorney opts out of discovery, he is not obligated to list the witnesses he will call at trial. So, the state has no idea what witnesses he may have, or what experts he may have because providing witness names is only required as part of discovery participation. Ah yes, the sweet element of surprise.

So, now you know how 1% of the criminal defense attorneys out there do not participate in discovery, let's get back to the 99% who do participate in discovery.

Continue reading "Please, Don't Put It In Writing" »

Way back in the day, I had the pleasure of practicing law before the Honorable Judge Richard Conrad in Orange County. This was in the early nineties, in my days at Joe DuRocher's public defender's office. An assignment to Conrad was not an easy one, but everyone who truly knew Judge Conrad loved him. Myself included. Anyway, a plea in front of Judge Conrad was so fast, you might miss it if you turned away for a second. Basically, it went something like this:

"Sir, is this your signature on this plea form? Did you read it and understand it? Good, your sentence is XYZ. Next case...".

Bam, that fast. He could do 20 pleas in 15 minutes, no kidding. Of course, we were done with court everyday by 10:45, which gave us more time to work on defending our clients. No afternoon court. There was a certain synergy in Conrad's division brought about by the speed at which he ran his courtroom, thus returning prosecutors and defense attorneys back to their desks for the rest of the day to work, rather than waiting around in court. Yea, the good old days.

So today, we're going to discuss what can happen on a "quick plea". With all the violations of probation (vop) out there, it's important to address what happens procedurally. First off, every probationer who has been violated has a right to written notice of his violation. Often, this is called an "affidavit of violation of probation", and it must include the conditions of probation alleged to have been violated. Second, every probationer has a right to an attorney. And, the probationer should be told of this right. So, let's take a look at what happens when two basic vop procedures are violated.

In the recent case of Speckhardt v. State, the defendant pled to two years probation on burglary and grand theft charges. 110 So.3d 85 (Fla. 2nd DCA 2013). Just after the halfway point of his two year probation term, Speckhardt was arrested on a new charge of possession of marijuana. [CRIMINAL DEFENSE PRACTICE TIP: I don't understand why he didn't apply for an early termination of probation once half of the probationary period was completed. This is what happens when probation is not terminated early....]

Continue reading "Efficient Judges Sometimes Go Too Far" »

Don't we have enough laws already? Aren't there, already, enough reasons to stop a citizen legally driving down the road, minding their own business? Apparently not.

You've probably heard all the crime rate statistics, so you know that Florida is a hot bed for traffic stops, and drug charges--the two go hand in hand. Basically, people keep drugs in their cars. They then get pulled over with these drugs in the car. It's just that simple. Its safe to say that the vast majority of all drug possession charges come from a search of someone's vehicle after a traffic stop.

So if traffic stops lead to vehicle searches, and these searches lead to drug arrests, let's review some common traffic stop scenarios. The most common (bogus) reason for a traffic stop is failing to stop at a stop sign. Yep. Rolling thru a stop sign is a favorite of drug enforcement units who have no desire to enforce traffic laws, but merely have a quota of drug arrests to meet in order to justify their employment. And, another favorite reason for a stop is illegal window tint. Of course, we criminal defense attorneys have our ways of demonstrating to judges the fabricated nature of such stops, but that's a discussion for another day. Today, let's talk about those instances in which the police are mistaken as to the traffic laws.

There's a long list of drug possession convictions which have been overturned due to illegal traffic stops. The illegality of a traffic stop comes in many forms, and sometimes its simply due to an officer's mistaken ideas of law. For example, one driver was pulled over for not having a center rearview mirror in his car. News Flash: the absence of a center review mirror does not constitute a reason to stop a vehicle. Why, you ask? Because center rearview mirrors are not required under Florida law. In such stops, all drugs found after the stop will be suppressed. See Leslie v. State, 108 So.3d 722 (Fla. 5th DCA 2013). By the way, one rearview mirror is required, but it may be located on either side of the vehicle, so long as it permits the driver to see 200 feet behind the car (don't need two mirrors, just one). The stop in the Leslie case is what is commonly referred to as a "mistake of law". And, under no circumstances can an officer's mistake of law justify a traffic stop.

Continue reading "Changing the Color of Your Car Can Cause Trouble with the Law" »

It seems like the government can search just about anything these days, as long as they can find a judge to sign a search warrant. But, the police may also search a citizen's belongings without a warrant, under certain conditions. Today, we're going briefly discuss one exception to the Fourth Amendment's warrant requirement, searches incident to arrest.

It makes sense that the police should be able to search a person before he is placed into to county jail. After all, they don't want folks bringing guns or drugs into the jail. But what is not so obvious is, how far can a search go once the person is arrested and we know they're on their way to jail? May they search your entire car? May they search your cell phone? Let's find out.

Historically, the most common search incident to an arrest was the search of a defendant's car. Basically, if you were arrested for something as simple as driving on a suspended license, the police were permitted to search your entire vehicle after the arrest. Now you may ask yourself, why? Is it physically possible for a person who is handcuffed, sitting in the back of a patrol car, to access their potentially dangerous belongings within their car? Nope. It's not.

Continue reading "Search Incident to Arrest" »

Yes, there are probably more important questions in life other than the definition of a deadly weapon, right? But, because we have devoted this space in the Universe to a public discourse on the inner-workings of Florida's criminal justice system, the answer to this question will shed some light on the kinds of proof required of our government in order to convict a citizen of crimes using "deadly" weapons. Seems like just about anything can be considered "deadly" these days.

When no one is injured, how do you prove something is "deadly"? Some objects, such as "firearms", are automatically--by definition within Florida's statutes--considered deadly. But, there's a whole bunch of stuff out there that has yet to be defined by our legislature. One such item is a BB gun.

Today's analysis begins with the recent case of M.J. v. State, 100 So.3d 1286 (Fla. 4th DCA 2012). M.J. was convicted of a misdemeanor "exhibiting a firearm or other deadly weapon in a rude, careless, angry or threatening manner". The fact is, M.J. admits that he had a BB gun, and he concedes that he exhibited the BB gun in a threatening manner. Now, that ought to be a crime, right? Well, it can be, depending upon the evidence presented by the state.

The lesson here: read the charging documents carefully and make the prosecutor PROVE every element. Here, we admit M.J. was rude. We admit M.J. was threatening. We admit M.J. was all of this with a "weapon". But, a close reading of the charge reveals that M.J. can only be found guilty if the weapon he exhibited was (1) a firearm, or (2) a deadly weapon.

Continue reading "What's the Difference between a "Weapon" and a "Deadly Weapon?"" »

Every criminal defense attorney runs into this issue at one time or another--an alleged victim to a domestic violence battery that decides to "not" press charges. Now, we all know that it's not really the alleged victim's decision to press charges--the State of Florida that decides whether or not to file a criminal law suit against a defendant. However, some prosecutors, in their zeal to bolster conviction stats, may attempt to prosecute a battery case without a victim. What, you say? Am I speaking of prosecutors in China, or the good old U.S. of A? Sorry to say, I'm talking about Orlando, Sanford, Kissimmee, all over the State of Florida prosecutors are attempting to convict citizens without a victim in the courtroom. Can it be done? Let's see.

The case is Holborough v. State of Florida, 103 So.3d 221 (Fla. 4th DCA 2012). Holborough was convicted at trial of felony battery. Felony battery in this case was simply a misdemeanor battery with one prior conviction for misdemeanor battery. In Orlando, we call this "Battery - Prior Conviction", but it's the same idea statewide. Anyway, Holborough was seen by a police officer "straddling a woman who was face down and covering her face...repeatedly hitting the woman." Id. at 222. Holborough was initially arrested for domestic violence battery, but it was later upgraded to a felony charge once the prosecutors found a prior misdemeanor battery conviction.

News flash: some prosecutors just love when they have an "independent witness" to a battery charge. Why? Because typically, their alleged victims fail to appear for trial on domestic violence cases, so having an independent witness gives the prosecution a false sense of security that, maybe, they'll be able to prove the case without a victim. Not so fast. Watch how this plays out.

Continue reading "Can You Prove Battery Without a Victim?" »

Here's a statistical fact: every prosecutor thinks stealing is a crime. But it's not. The act of "theft" may be either civil or criminal. Both acts are immoral, both acts are unethical. And, our Florida Statutes provide remedies for both behaviors, but the problem is often deciding where to draw the line between a civil theft and a criminal theft. A civil theft provides a punishment of triple the damages incurred.

For a criminal theft, punishment increases (length of prison term, for example) depending upon the item stolen, and/or it's worth. For example, it's a third degree felony (Grand Theft, 3rd Degree) to steal something with a value over $300, but less than $20,000. Thefts over $20,000 become a second degree felony (Grand Theft 2nd Degree), and theft over $100,000 becomes a first degree felony. However, stealing a firearm that's worth $95 is still a third degree felony, as is stealing a fire extinguisher (and the list goes on, and on). Stealing something under $300 is usually a misdemeanor petit theft.

Section 812.014 of the Florida Statutes states that (1) a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property, or (b) appropriate the property to his or her own use or to the use of any person not entitled to the use of the property. Got it? Good, now for a real life example of how this law plays out in court.

Continue reading "Is Stealing Always a Crime?" »

Have you read our Constitution? In case you haven't recently, there's nothing within it that requires American citizens to open their door when somebody knocks. Opening your door to a stranger is optional. Why people feel compelled to answer the door is beyond me. And to add insult to injury, I'm not sure why folks running illegal grow house operations would be so eager to answer their door either. And since we're discussing grow houses, a little explanation could be helpful here.

Grow Housesare simply residential homes in which every room is converted for marijuana cultivation. The operation lasts 4 months, and vacant home owners are offered $10-20,000+ dollars for the temporary use of their residence. The residence is left in shambles following the harvest--holes are cut in many walls for irrigation pipes, dirt everywhere. The operation requires extra air conditioners to cool down all the hot grow lights. The energy usage can throw up red flags to the electric company, as energy usage far exceeds normal usage--thus many operators 'steal' power by altering power feeds to the home so as to mask their high power consumption, etc.

Our discussion of grow houses centers on the case of State of Florida v. Roman, 103 So.3d 922 (Fla. 2nd DCA 2012). Roman is accused of running a grow house. She was charged with trafficking in cannabis, possession of a prescription drug (alprazolam), possession of drug paraphernalia, and larceny with relation to a utility--just to name a few. You might wonder to yourself, how did the police find all these drugs? A good old fashioned illegal search, and a supposedly legal search warrant. It all started as many grow house cases start, with a tip to law enforcement. Based on this tip, the police began running surveillance on the property. Once the police notice a person showing up to the home, they will (eventually) knock on the front door. No exception here. The police eventually notice Ms. Roman pull up to the home and enter it, so they approach the front door.

Continue reading "Don't Answer the Door" »

Can people really read minds? Do paranormal abilities exist within human nature? Believe it or not, these questions tie into a recent Orlando violation of probation (VOP) case. Yea, it's kind of a stretch, but bear with me, I'll get around to it.

Before we dive in, it will be helpful to sum up the standard conditions of probation: (1) do what probation tells you to do, (2) stay out of trouble, (3) stay away from people who are in trouble. Easy enough, right? The same stuff your mom told you as a child, only your mom won't throw you in jail with no bond should you violate her conditions. Today's glimpse into the inner workings of Florida's criminal courts involves the standard condition of probation which states that "You will not associate with any person engaged in criminal activity".

Let's take a look at the violation of probation filed in Clayton v. State, 100 So.3d 725 (Fla. 5th DCA 2012). Clayton was on probation for robbery with a firearm. So, how do you get probation on such a serious charge? Well, you start with prison time, and back it up with probation. [Criminal Defense Attorney Practice Note] don't follow a prison sentence with probation, unless the discount up front is too good to pass up. Anyway.

Clayton's violation comes by way of a new possession of marijuana charge, and an allegation of hanging out with the wrong crowd. Clayton's probation conditions mandate that he "not associate with any person engaged in criminal activity". The problem is, Clayton is not a mind reader. Clayton does not possess paranormal abilities which would permit him to determine whether or not the people he associates with are engaged in criminal activity. Bernie Madoff hung out all the time with all sorts of people. For those on probation, that would have been a violation, right? After all, Madoff is one of the biggest criminals of our time, so he should have caused an avalanche of probation violations for those probationers caught hanging with him. And, that's sort of what happened to Clayton. Sort of.

Continue reading "Hanging with the Wrong Crowd Can Cause a VOP" »

Jury trials are an important part of our legal system. The courtrooms in which these lawsuits play out rarely have an audience. Maybe a few family members at most. But today, we're not going to discuss how 99% of jury trials are conducted, we're going to discuss those rare cases in which the courtroom is filled to capacity. Imagine a capacity crowd, but not filled with "citizens" per se, but rather uniformed police officers. You think a defendant can get a fair trial under those conditions?

Our case of the day involves the murder of a police officer, with a packed courtroom of officers showing their support for a fallen comrade. Nothing wrong with that, right? It's a free country, courtrooms and jury trials are open to the public. And, this isn't China, so anyone should be able to watch a trial dressed any way they choose, right? Well, sometimes the audience may only serve to hinder an accused's right to a fair trial. Let's see how this works.

In Ward v. State of Florida, 105 So.3d 3 (Fla. 2nd DCA 2012), Ward was convicted of second-degree felony murder, resisting an officer with violence, resisting an officer without violence, and two counts of battery on a law enforcement officer. After these convictions, Ward filed a motion claiming that his defense attorney was ineffective at trial because he failed to object to the overbearing presence of numerous uniformed police officers in the audience during his trial. It was his claim that he was denied a right to a fair trial, and his defense attorney should have called this to the judge's attention.

Doesn't this seem a bit un-American? How can we deny law enforcement their right to be present for a public trial, dressed any way they want? Wouldn't firefighters do the same thing? Wouldn't Catholic priests do the same thing? Well, the courts recognize that our juries are not perfect human beings, capable of ignoring outside influences. There have been several Florida cases which have held that the "presence of uniformed officers in the audience may constitute denial of the right to a fair trial if it resulted in actual or inherent prejudice to the defendant". Id. Ok, how do you prove 'actual or inherent' prejudice?

Continue reading "Who Gets to Watch a Public Jury Trial? " »

Let's face it, Americans like their drugs. Especially weed. For some folks, their entire existence revolves around the substance. So, it can be tough to throw it away when the cops are approaching. And, that's just what happened in our real life example of the day, F.Q. v. State of Florida, 98 So.3d 783 (Fla. 4th DCA 2012). (fyi, if someone is underage in juvenile court, they use the defendant's initials, rather than the actual name).

Here's the facts: F.Q. and his friend were chilling at an abandoned house, as young kids tend to do. Abandon houses are just magnets for kids, and cops. All of the sudden, the cops show up out of nowhere. F.Q. throws down one baggie that appears to contain marijuana, and F.Q.'s friend throws down another two baggies of marijuana. So, three baggies are recovered. F.Q. is arrested and charged with possession of marijuana. He takes the case to trial. At trial, the prosecution only admitted into evidence one of the three baggies. You see the problem here?

The State successfully proved that the one baggie admitted into evidence was, indeed, weed. But, there was no testimony at trial regarding which baggie was dropped by F.Q. Furthermore, there was no testimony linking F.Q. to the baggie admitted into evidence. As such, the appeals court threw out F.Q.'s conviction for possession of marijuana for several reasons, including the fact that "the State did not prove that the baggie that was admitted into evidence was the same baggie that F.Q. dropped. Further, the circumstantial evidence of actual possession 'created nothing more than a strong suspicion ... of guilt', requiring the State to prove constructive possession." Id. at 785. Ouch.

Continue reading "Throw Down Cases Are Tough to Prove" »

You've heard the sayings about Orlando: come here on vacation, leave on probation, come back on a violation. This old saying sounds like the truth, in part because it rhymes so well [Jesse Jackson could have come up with this line, but don't quote me on that].

Violations of probation (VOP, for short) come from issues found within the standard conditions of probation, but today's analysis will focus on those violations that arise from failing to uphold a special condition of probation laid out by the judge. In Ezra Maddox v. State of Florida, Maddox was sentenced to five years prison on his violation of probation on an aggravated battery charge. 97 So.3d 332 (Fla 2nd DCA 2012). Let's see why an appeals court set him free.

Initially, Maddox was sentenced to a year in jail, followed by probation. The jail term was to terminate early once bed space became available at a local drug treatment facility. Maddox entered the drug treatment center, but was discharged before completion. Like clockwork, a violation of probation was filed based upon the unsuccessful completion of treatment. Fortunately, that vop was dismissed. Now, here's where things got a little strange. The judge that dismissed the first vop then ordered Maddox to complete a different treatment program, and ordered Maddox to abide by a curfew. And there's the problem. Where did this curfew thing come from? Sure, the initial sentence provided for drug treatment--but no deal was ever cut that involved a curfew. A curfew was not part of the original probation, it was added after the first violation was dismissed.

Continue reading "Illegal Conditions of Probation Can't Support a VOP" »

The police have a job to do. Part of their job is to ask questions, to talk with people. That being said, part of our Constitutional rights as Americans is to politely refuse to answer said questions. As a matter of fact, we may simply continue going about our busy lives, even in the face of police questioning.

So, that's the law. But in reality, the police don't like it when you refuse to talk with them. Sure, you've got a busy life, things to do, places to be. Deciding to continue about your day, rather than answering police questions, can transform an innocent situation into an arrest for Resisting an Officer Without Violence. Let's take a look at just such a case, and how it turned out on appeal.

Javarous Peterson was convicted of possession of a firearm and resisting an officer without violence. Peterson v. State, 101 So.3d 860 (Fla.App. 2nd DCA 2012). Here's the facts: police received an urgent anonymous tip in a high-crime area that a person wearing a white shirt and green pants had a gun. An officer was in the area, and Javarous matched the description, so the officer moved towards the young man and asked to speak with him. Mr. Peterson refused, telling the cop "no, I have to go home." Id. Mr. Peterson was on his bike, so he slowly peddled away from the officer, at which time the officer then ordered him to stop. He did not stop, but he was eventually stopped by another officer. As the old saying goes, you can't outrun the police radio. Radio waves simply travel too fast. A physics lesson learned many times by those charged with resisting, and fleeing or attempting to elude.

Continue reading "Being in a Hurry Can Get You Arrested" »

Everybody is entitled to their opinion. But, not everybody is entitled to have that opinion heard by a jury. Judges limit testimony of witnesses based upon their expertise of a subject, or lack thereof. More often than not, its law enforcement testimony that reaches beyond the scope of their "criminal justice degree". Nothing wrong with a bachelor's degree in criminal justice, nothing wrong with the training at the police academy. That being said, such training does not make a police officer an expert in everything under the sun. Let's take a look at a recent real life example of how opinion testimony can get a conviction overturned.

In Proctor v. State, Eric Proctor took his case to a jury trial in Osceola County. 97 So.3d 313 (Fla. 5th DCA 2012). He had two counts of grand theft, and two counts of worthless checks. Here's what happen: two fraudulent checks were written out to Eric Proctor, and cashed by "him" at a SunTrust bank. The lead detective pulled the bank video, and testified at trial that the person on the video was, in fact, Eric Proctor. Furthermore, the detective then pulled a copy of Proctor's driver's license, and testified that the signature on Proctor's driver's license matched the signature on the worthless checks. Obviously, the lead detective was not an expert in either category.

SPECIAL CRIMINAL DEFENSE NOTE: Hats off to Proctor's criminal defense attorney, a public defender from Bob Wesley's office (according to the clerk's website). They did a great job on this, from my reading of the 5th DCA's opinion. Why do I say that? Well, it is obvious that the public defender looked at the state's witness list and noticed a glaring absence: no expert witness listed for handwriting analysis, and no expert witness listed on eyewitness identification. After all, how can anyone say the person on the bank video is Eric Proctor, or testify that the signatures match--but an expert in that field? (or, somebody that is personally familiar with either). So, Proctor's attorney then filed a "Motion in Limine to Exclude Hearsay Evidence and Improper Inferences Drawn From Hearsay Evidence". Bam, right there on Osceola's Clerk of Court website, this PD is telling everyone that the state doesn't have a case, and that the court must not permit the detective to testify about stuff that he has no business testifying to.

Continue reading "A Cop's Opinion Gets a Case Overturned" »

Theft cases can be pretty simple, when it comes to shoplifting. The loss prevention officers claim to observe someone concealing an item, pass the cash registers without paying, and bam!--you've got yourself a petit theft charge. But, theft charges are not so clear when they're between people that actually know each other, and are doing business together.

Many grand theft charges involve folks that know each other. Today's real life example involves the case of John Capiro v. State of Florida, 97 So.3d 298 (Fla. 4th DCA 2012). Capiro was convicted of grand theft over $100,000. In case you didn't know, Florida considers that a first degree felony. So, stabbing someone may get you a second degree felony of aggravated battery with a deadly weapon punishable by up to 15 years prison--but stealing over a $100,000 will get you up to 30 years prison. Yea, kind of strange.

Anyway, Capiro's friends loaned him $250,000 to start a business. But, their written agreement was vague, only requiring interest payments monthly plus a payoff within 3 years. The documents contained no other restrictions on how this money was to be spent, though testimony from the alleged victims indicated that the money was not for personal use, only for business purposes. Eventually, Capiro stopped making his required monthly interest payments. When Capiro told the alleged victims all the money was gone, they sued, also arguing that Capiro used the funds for personal gain. In addition to suing, they contacted the sheriff's office, and Capiro was charged with grand theft over $100,000.

Continue reading "Good Faith Can Defeat a Grand Theft Charge" »