Articles Posted in Battery


You’re about to hear some strange goings-on, and because so much strange stuff tends to come out of Florida, let’s start with a true story from out West.

Earlier this year, a nursing home in Phoenix discovered that a patient of theirs was pregnant.  Eventually, this nursing home patient gave birth.  Now, a woman giving birth isn’t odd by itself.  Even a woman giving birth in a nursing home isn’t the craziest thing ever, but this particular woman has been a vegetative state for 14 years.   Even after giving birth, this woman is still in a vegetative state.

The police department didn’t need to call in the FBI to help solve this one.  The local cops just obtained DNA samples from all the male nurses working at the assisted living facility and moments later–crime solved.  To no one’s surprise, the father of the child was a licensed nurse in charge of taking care of the woman.  [See Also the film “Kill Bill Vol. 1”, the intro scene entitled “My Name is Buck”, its art imitating reality, and as Greg Graffin once sang, Sometimes Truth is Stranger than Fiction (my web optimizer people discourage obscure punk rock references, sorry web people)].

A similar strange thing happened in an Osceola hospital recently.

A seventeen-year-old girl gave birth to a child.  Sure, she’s a bit young to be giving birth.  In this case, the oddity was the fact that her baby had a brain defect, a chromosomal abnormality.  This abnormality tells the doctors that, basically, the crime of incest is afoot.  Continue Reading

IMG_4911-1-e1532203537762-300x112TV shows are everywhere now.  How do you know what to watch?

Years ago, things were a bit easier.  You had three major networks.  NBC, ABC, and CBS.   The most watched show in human history was not the last episode of Seinfeld or MASH, it was the moon landing in 1969.  It is said that the moon landing had a 93% share, meaning, 93% of  Americans who were watching TV that night were watching this historic event (Credit: AJ Jacobs broke this down recently on James Altucher’s podcast).   The Super Bowl is, basically, the most watched television event of recent decades, and it consistently runs a 48% share, just to add some perspective.

AJ Jacobs points adds an interesting twist to this analysis. If 93% of all American’s were watching the moon landing–what were the other 7% of the population watching?  Back in 1969, there were only two other channels to watch.  The other 7% watched The Three Stooges.  True story.  While mankind was making one giant leap, 7% of us decided to watch Larry, Moe, & Curly.

The point is, there are quite a few idiots out there, possibly 7% of the population.  And just so we’re clear, watching The Three Stooges doesn’t makes you an idiot–but if you ignored the moon landing and opted for the Stooges, you at least qualify.

It should come as no surprise that the legal profession contains quite a few Seven Percenters.   Unfortunately, some of these folks are wasting your hard earned tax payer dollars by prosecuting cases with no evidence.  Let’s take a look at some questionable trial practices, as found in the case of Baker v. State959 So.2d 1250 (Fla. 2d DCA 2007).

First, a few true cliches.  There is no such thing as normal.  And, you never know what goes on behind closed doors. Continue Reading

IMG_4236-e1530542832691-225x300We Americans can be a rebellious group.

I’ll go out on a limb here and claim that we’re more rambunctious than most countries.  To prove my point, take the following example.

Think back to the 1970’s.  The whole world is converting to the metric system.  Two north american governments decide to make a big change.    You know, Kilometers instead of Miles.  The whole nine yards.    Canada and the United States agree that its time for North America to catch up with the rest of the world, so both countries pass a law making the metric system “official”.

Now, if you travel to Canada, their signs will say “Ontario — 10 Kilometers”.

If you travel here in the US, you’ll see “Miami — 10 Miles”.

Both countries passed the law.  Both countries agreed to convert.  Why did Canadians follow their law, and we ignored it?

Because, we’re Americans.  We don’t like being told by some Supreme Authority how to measure things.  We don’t like being told what to do.  And this brings me to the topic of the day.

When a letter comes in the mail telling you to show up for court, must we citizens drop everything, fly back into town from our vacation,  and appear in court?  All because a piece of paper lands in our mailbox?

More importantly, what happens if you don’t show up to court?

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Here are some facts, straight from CNN:theft-300x225

“At the World Trade Center (WTC) site in Lower Manhattan, 2,753 people were killed when hijacked American Airlines Flight 11 and United Airlines Flight 175 were intentionally crashed into the north and south towers or as a result of the crashed.  Of those who perished during the initial attacks and the subsequent collapses of the towers, 343 were New York City firefighters, 23 were New York City police officers and 37 were officers at the Port Authority.  The victims ranged in age from two to 85 years.  Approximately 75-80% of the victims were men.”  (, accessed August 13, 2017).

So, now you know some facts.   Do the words above give you any sense of the meaning of 9/11?   You can memorize the “facts” about 9/11, but completely miss the meaning of 9/11.

Having accurate facts won’t guarantee any sort of understanding.  Often, words have more power as they move away from factual descriptions.  For example, the words found in your favorite song may remind you more of an event than any factual description.  I can’t tell you how many times I’ve heard a song from the 80’s, and the song instantly transports me back, in a way that words on a page just can’t. Often, words in a song can convey more meaning than the words alone.

Songs work, in part, because we believe a phrase more if it rhymes. Kind of silly, right?  It is said that “a man armed with a rhyming dictionary is a dangerous man.” (Bruce Springsteen).  Rhyme works in criminal defense trials as well.  Who can forget this classic: “If it doesn’t fit, you must acquit.”  Or, how about this one: “Sticks & stones may break my bones, but words will never hurt me.”

Words may not hurt you–but words can get you arrested, among other things.   (I’m going somewhere with this, so please tolerate the cliches for a another three sentences)  Here are some dangerous words: telling a TSA agent that you’ve got a bomb, or asking a 16 year old girl to have sex (unless, of course, you’re 16 years old, but even then, its a tad young, don’t ya think?).  Our focus today will be the all too common threat to kill.

Now, if you do threaten to kill someone (hire me…), any threat to do harm is called an assault (a battery charge is physical, assaults are just words or actions).  A basic threat gets upgraded to “aggravated” when the person is using a gun or weapon to make the threat more believable.

The question is, can you be convicted of assaulting someone who doesn’t understand what a gun is, or even understand the English language?   To see how an assault plays out with a victim who does not understand what the heck is going on, we’re going to examine the real life case of Davis v. State, 2017 Fla. App. LEXIS 9415 (Fla. 4th DCA 2017). Continue Reading

“The smallest deed is better than the greatest intention.”  — John Burroughspunch3

“All that counts in life is intention.” — Andrea Bucelli

There’s plenty of opinions out there on what, exactly, we mean by the word “intention”.  A new age guru may give you one answer, and folks who deny humans have any sort of free will may tell you the word is meaningless.  Scientists are late comers to the “intention” game.   Experiments conducted at Princeton, Cambridge, and the University of Arizona all point to the fact that our intentions can physically affect the outside world (See Lynne McTaggart’s book “The Intention Experiment”).  How can our intentions affect physical things?  No one really knows the mechanism, but the effects can be measured,  much in the way Newton had no idea how gravity pulls an apple from a tree, yet he could still observe and measure the effect. Intention has even crept into physics.  Quantum physicists have analyzed the role our conscious intentions play in the behavior of entangled particles, and how our intentions effect the double-slit experiment (Richard Feynman calls this experiment the greatest physics experiment ever).  Still, no one is really sure why things work this way–but quantum mechanics does work, with amazing accuracy.  That being said, I cringe whenever QM (sounds like I know more when I abbreviate, right?) is brought up because it’s become such a cliche.

It is odd to see human “intention” influence the outcome of a scientific experiment.  Such intervention defies common sense.  Common sense dictates that people will not be sent to prison for bad acts they did not intend to commit.  Makes sense, right?  Well, common sense also tells us that the earth isn’t moving through space (the ground doesn’t feel like it’s moving, does it?).  Common sense can betray you, and that’s particularly true of the law.  Don’t apply common sense to a collection of laws written by people that, on average, have little common sense.  I have numerous examples of how your tax payer dollars have been wasted on crimes never intended to be committed.  For example, years ago I had a client that was waiting tables at a local restaurant.  He went to his co-worker’s 19th birthday party.  Cute girl.  Single guy.  Co-workers.  Yes, after the birthday party, they had sex.  Some time later, he was arrested for lewd act on a minor.  Yes, the girl just turned 16.  We call this statutory rape.  Turns out, she was lying about her age so she could serve alcohol as part of her waitress duties.  The big candles on her cake announcing a “HAPPY NINETEENTH!” were no defense to the charge.  Same goes for child porn.  Should you be unlucky enough to click on “Grannies Gone Wild” yet somehow find yourself diverted to much younger folks–you may go to prison for something you never intended to view.  Technically, you don’t even have to view it, if the 0’s & 1’s show up somewhere on your hard drive, you can land in prison.   Now, should we punish acts void of criminal intent?  Are there some criminal accusations for which our good intentions can provide a defense? Continue Reading

At times, criminal defense work requires we attorneys to keep our mouths shut.  This is against our nature–we like to talk.  But sometimes, saying too much may get your client in trouble.  As a practical matter, should a defense attorney tell the prosecutor “Hey, you can’t prove that”  when such a statement will permit the prosecutor to cure the defect rather quickly?     In the case below, the defense attorney decided to keep quiet about a defect in the prosecutor’s case, and eventually, that silence paid off.

Every so often, I’m retained to defend a misdemeanor battery case, only to discover later that the IMG_1061charge has been upgraded to a felony.  This doesn’t happen that often, because law enforcement typically has quite a bit of enthusiasm up front in their attempts to charge citizens with the highest offense humanly possible.  Should a felony slip thru the cracks, prosecutors also have the ability to upgrade a misdemeanor into a felony, and there are plenty of reasons to do this.  I’m here to tell you that upgraded cases are difficult to prove.  To explore a real life upgrade scenario, we’re going to delve into the case of Dolan v. State, 2016 Fla. App. LEXIS 2183 (Fla. 2d DCA 2016).

First, let’s discuss what a felony battery is, versus a misdemeanor battery.  In this case, there is no difference, but for the fact that the state accused Dolan of having a prior battery conviction.  One prior battery conviction, regardless of whether or not the person was adjudicated guilty or received a withhold of adjudication, and the second battery accusation will be upgraded to a felony (under Section 784.03(2) of the Florida Statutes, there are other ways to get a felony battery, fyi).  Ok, so how hard can it be for a prosecutor to prove up a prior conviction?

Dolan’s jury trial was broken into two separate trials, all without the jury’s knowledge.  The first part of the trial was dedicated to the prosecutor’s proof of the battery itself.  Should the jury return a guilty verdict for battery, the judge would then conduct a second mini-trial for the jury to determine whether or not Dolan had a prior battery conviction.  Obviously, this is done so as to not taint the jury’s decision on the facts of the battery case itself.  But, when it came time for the state to prove the prior case, a few weird (but common) things happened. Continue Reading

rocks.jpgLawyers play games with words, it’s in the job description. Don’t hate the player, hate the game. Sure, we lawyers are easy targets for any number of legitimate complaints, but it becomes about as tiresome as hearing new comedians telling dick jokes for 30 minutes. Yes, I’ve seen plenty of stand-up comics grab their crotch, and I’m even tired of women comics doing it (I admit, it was funny for a little while to see the ladies join in the fun, but they all owe Joan Rivers a royalty for paving the way for crude lady humor).

So, getting back to my first sentence, “games with words”. The reason we lawyers play word games is because the legislature writes crappy vague laws. Now, without vague laws, attorneys would have less to argue about–and hence, make less money. So, the ambiguity found in our laws is just fine with me. But, it’s annoying when prosecutors use this vagueness to enhance criminal charges. So, let’s talk about the term “deadly weapon”. The term is used to transform a variety of misdemeanors into felonies. To an intellectually lazy prosecutor, this term could mean just about anything. Today we’re going to examine a misdemeanor assault case which was upgraded to a felony aggravated assault with a deadly weapon.

In J.P. v. State, 2013 Fla. App. LEXIS 10095 (Fla. 3rd DCA 2013), J.P. appealed his conviction for aggravated assault with a deadly weapon. At trial, testimony revealed that J.P. was throwing rocks at the alleged victim. Now, you may be asking yourself, not all rocks are created equal, right? I mean, if J.P. was throwing rocks off a bridge on the turnpike into oncoming traffic that could get him a felony, right? Well, probably. But, J.P. was simply “tossing [rocks] softly with one hand”, and the rocks were “quarter-sized”. Id. Accordingly, issue on appeal revolved around whether or not quarter sized rocks softly thrown constitute deadly weapons. Yes, leave it to the mind of a prosecutor to think that such small rocks constitute a “deadly weapon”.
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hospital.jpgRude behavior is everywhere these days. I wish things were different, and such changes start with me, but I’ll save you my broadway renditions of ‘the man in the mirror’ and ‘I’d like to teach the world to sing’.

Before we delve into the legal analysis of the day, let me mention one of my many brushes with rudeness. Years ago, I had a police officer yelling at me while his face was only three inches from mine. Kind of a Full Metal Jacket marine drill instructor moment. Yes, he was invading my personal space. But the worst part about it is the fact that–basically–he was spitting in my face. I scrubbed my face for hours (it seemed) then found a black light to make sure there was no DNA in hard to reach places. Anyway, I know you could care less about my problems, so let’s move on to the case of the day, involving the same type of battery for which I was not permitted to file charges.

In Spurgeon v. State, 114 So. 3d 1042 (5th DCA 2013), Spurgeon was convicted of battery on an emergency medical care provider for spitting in the face of a hospital security officer (essentially, an aggravated battery of sorts). Spurgeon had to be restrained by South Seminole Hospital’s security several times due to his aggressive behavior (may have been intoxicated). In some odd way, he agreed to be restrained the first couple of times, and then calmed down. But after calming down, he decided to leave the hospital (who wants to pay those high ER bills, anyway?). This time, the hospital threw four security guards in his way, and Spurgeon spat in one of their faces.
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fight kick.jpgEvery 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.
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mathematics.jpgEver 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.).
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