Orlando Criminal Defense Attorney Blog

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" »

How many of you out there having had a shady friend at one time or another? None of you? I find that hard to believe. Let me share first.

I know a girl that is a habitual cheater, but its the way in which she 'hooks up' that adds insult to injury. She will call her girlfriend on speaker phone just so that her current boyfriend hears the girlfriend's voice. After the phone is taken off speaker, the girlfriend on the other line places a three-way call to her "man on the side". Thus, she makes her rendezvous plans right in front of her boyfriend under the guise of planning to hang with her girlfriend. Women.

And, there's also those shady friends who are criminal. What, you don't have a friend in Orlando that smokes weed (possession of cannabis charge, technically)? That sells weed (sale and delivery charge, technically)? How about a friend that offers you a hydrocodone pill to ease your pain (possession of prescription drug, delivery, etc)? Well, for those that do have such friends, what happens when you're hanging out and the police close in. What now?

This unfortunate scenario has happened quite a few times here in Orlando. Today's real life example comes from the case of Byers v. State of Florida. 17 So.3d 825 (Fla. 2nd DCA 2009). Byers was convicted of trafficking in a controlled substance (methamphetamine) and carrying a concealed weapon. He went to a jury trial, and lost. On appeal, he argued what most folks argue on appeal--that the trial court should have thrown the case out for lack of evidence.

Here's how it went down. Police responded to a motel. Byers was standing outside one of the rooms. For no apparent reason, the police approached Byers and asked if he had any weapons. He stated yes, as his front pocket contained a pair of brass knuckles. Kind of old school, but still enough for these cops to arrest Byers on the spot for carrying a concealed weapon.

Continue reading "Can Knowing About Drugs = Conviction for Possession?" »

As a kid, Christmas was a big deal. I couldn't wait for those gifts. Sure, I was guilty of a little house snooping, Nancy Drew style. But my parents were always one step ahead, and I never caught a glimpse of the unwrapped packages.

Even as adults, we can get a little anxious for packages to arrive. That's especially true of our friends that await drug shipments. To them, it's like Christmas, all over again. No, I don't know this from personal experience, but after defending criminal cases for 20 years, you start to see patterns in behavior.

Today we're going to review one of my favorite cases involving the possession of a controlled substance. The principles of law we're reviewing today apply to all drug cases in the State of Florida, fyi.

In the case of State v. Snyder, Snyder knew his friend Parker had some drugs being delivered via the postal service, so he decided to join in the fun. 635 So.2d 1057 (Fla. 2nd DCA 1994). Like giddy little kids, Snyder and Parker went to pick up Parker's package full of drugs from the post office. They couldn't wait to do some lines of, in this case, methamphetamines. So, why wait till you get home? They took the package back to their car, butsted it open, and Parker created a few lines for the friends to share...The reason Snyder is a "favorite" case of mine is because the case clarifies many points that prosecutors don't want to hear. [Yes, this is the second time I've mentioned this case, but we're coming at it from a slightly different angle today.]

Back to the story. So, Snyder is ready to do a line of Parker's drugs, but the cops show up before the two friends ever have a chance to snort the drugs up their noses. Now, because Parker offered a hit of his drugs, Snyder admitted to police that he was ready to do a line of meth. The problem is, Snyder never got his chance. You see, his friend Parker was the owner of the drugs. His friend Parker was the recipient of the package full of meth. So, Snyder was only going to get to "possess" the meth so long as his friend Parker would let him. As chance would have it, the police arrived before he ever got his chance. Thus, Snyder's criminal defense attorney filed a Motion to Dismiss based upon lack of facts to establish constructive possession (more on what that means later).

Continue reading "Package Arrives Containing Drugs, Now What?" »

Ever been under a lot of pressure and emotion, so much so that you said something you shouldn't have said? It happens.

What happens when a couple's night of drinking turns ugly? Ever known an ugly, mean drunk? They exist, believe me. To see what happens when we bring two such people together, take a look at the equations below:

[alcohol] + [arguing] + [anger] = [arrest]

Or, how about this equally valid equation:

[early morning hours] + [yelling and screaming] = [neighbors calling police] = [arrest]

As our community caretakers, the police are in an awful position, as they can't leave the drunk couple together, for fear of escalating troubles. Most police departments have a policy of taking someone--anyone--to jail just to separate and cool off the situation. Thus, the police find a reason to arrest either the man, or the woman, and make a domestic violence battery case out of the situation.

However, once the tempers calm down, and the alcohol metabolizes, some folks regret their drunken sworn statements to police.

In the midst of an often emotional, alcohol soaked domestic dispute, cops fight hard to get a "sworn" statement from an alleged victim of domestic violence battery. Once clearheaded, can the sober witness now tell the truth of the evening's events without fear of perjury or an arrest for filing a false police report? If they do, this is what we call "recantation".

When an alleged victim of domestic violence decides to "recant", this can spell trouble for the prosecution. Why? Because the prosecution may be barred from calling the alleged victim as a witness. A recantation may limit the alleged victim to testifying only about the "new story". Prosecutors are not permitted to call the alleged victim merely to impeach her about what she initially told the police when they know the story has changed. But, the prosecution will attempt to admit the prior statement as a "past recollection recorded". Such a move is often considered abusive where the state has been put on notice that their victim has recanted (and, that's why it's so important for you criminal defense attorneys out there to file a Motion in Limine & Motion to Exclude the victim as a witness, etc. etc.).

Continue reading "Recanted Testimony in Battery Cases" »

Guns are a hot topic right now. Actually, guns have been a hot topic for quite some time. In case you care to know (I doubt you do), my job as a criminal defense attorney involves defending our beloved Constitution. I enjoy my job. I'd be a hypocrite to seek enforcement of the Fourth, Fifth, or Sixth Amendment--but ignore our rights found in the Second Amendment [2nd Amendment: "a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."].

Before we get into our criminal defense analysis, here's an interesting view on gun violence, coming from a man who has experienced it first hand. Twelve years ago, Darrell Scott's daughter was killed by kid with a firearm at Columbine High School. Horrible. He testified before our Congress regarding gun control, and here's part of what he said:

"Since the dawn of creation there has been both good & evil in the hearts of men and women. We all contain the seeds of kindness or the seeds of violence. The death of my wonderful daughter, Rachel Joy Scott, and the deaths of that heroic teacher, and the other eleven children who died must not be in vain. Their blood cries out for answers.

"The first recorded act of violence was when Cain slew his brother Abel out in the field. The villain was not the club he used. Neither was it the NCA, the National Club Association. The true killer was Cain, and the reason for the murder could only be found in Cain's heart.

"In the days that followed the Columbine tragedy, I was amazed at how quickly fingers began to be pointed at groups such as the NRA. I am not a member of the NRA. I am not a hunter. I do not even own a gun. I am not here to represent or defend the NRA - because I don't believe that they are responsible for my daughter's death. Therefore I do not believe that they need to be defended. If I believed they had anything to do with Rachel's murder I would be their strongest opponent."

Continue reading "Criminals Possessing Lots of Guns" »

There are over 3,000 arrests in Orange County every month. Add to that number the arrests in Seminole County and Osceola County, and it's easy to see why Central Florida's criminal court system is so congested. So, what happens after all of these cases are resolved?

For some citizens, the closing of a criminal case is just the beginning of the battle to get their life back. Even with a not guilty verdict, there's still a damaged reputation that needs repair. This war is fought on two fronts--first, sealing or expunging the criminal records. Once that is completed, the second fight involves repairing any traces of the criminal incident from various websites and search engines. Let's take a closer look at what must be done first, sealing and expunging.

For those unfortunate souls who are arrested, it should come as no surprise that there are several government agencies disseminating their arrest info all day, every day. For that favor, you can thank technology (specifically, the internet). When I started defending criminal cases back in 1993, sealing or expunging a case was more effective than it is today because most of the world could not access criminal records via the internet. But now, the clerks of court permit public access to criminal records. Arrest information slowly seeps out into search engines like Google, allowing the rest of the world to view embarrassing incident details. That's where a seal or expunge can really help out. A sealing forces the clerk of court to remove all information from their public database (it forces other government agencies to do so as well). But, you've got to get a judge to grant the seal or expunge first. That is done by filing a "Petition to Seal" or a "Petition to Expunge" with the clerk, prosecutor, arresting agency, and judge (four copies must always be sent out). These petitions can be denied, but only under certain circumstances. So, let's take a look at how this sort of thing plays out in real life.

Continue reading "Judge's Denial of an Expunge / Seal Gets Overturned" »

Let's face it, being arrested is quite the invasion of privacy. First off, the cops will be going thru your wallet and purse. The police will pat down your entire body for drugs or weapons. The police will search thru your cell phone pictures (unless, of course, you have a code on your phone, which I highly recommend). The police may then even search your entire home or car. But the invasion of privacy doesn't stop there. Once you arrive at the jail, a friendly strip search is in order. And, the toilets at the jail aren't exactly private. Neither are the showers. So, if you don't know by now that the jail phones are being recorded, you probably deserve whatever you have coming.

I've been defending criminal accusations here in Orlando for 20 years now (my web optimizers are always happy with such sentences!). I've learned a lot. Lesson #256: you cannot save people from themselves. As hard as we try, we just can't save everybody. So, it's bad enough getting arrested. It's even worse to be formally charged with a crime. And to add insult to injury, some folks just can't help themselves, so they start blabbing on the jail phones.

Ok, I know what you're thinking--what if I "talk in code", "they" won't know what I'm talking about, right? Wrong. Don't believe me? Let's review a real life example of jail phone stupidity.

Continue reading "Jail Privacy Alert--The Phones Are Being Recorded" »