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Articles Posted in Battery

don-julios-e1598486690892-300x124This may come as a shock to some of you, or sound like a bit of shameless self-promotion–but as a criminal defense attorney, I solve problems. Dig deeper into most legal problems, and you’ll find a few addiction issues and mental health issues.

The question that keeps coming up is: do you want to get better, or do you want to feel better?

When it comes to solving addition problems or mental health problems, feeling better is always a good thing.  It doesn’t last. The hard work comes in trying to get better, and this takes time. Unfortunately, I’ve had clients in counseling hoping to fix their underlying issues, only to discover that these counselors are more interested in making my clients feel better than they are in making them get better.

Anyway, most of our resisting an officer charges, and most of our domestic violence cases begin with a somewhat vague call to 911.  The 911 caller has no idea what’s going on, except that they can see and hear a “disturbance.”  And, that’s what happened in our real-life case for today.   In Brown v. Statethe police were called to a motel due to a disturbance.  2020 Fla.App. LEXIS 9420 (Fla. 2d DCA 2020). Continue Reading

question-mark-231x300Are our courts just paying lip service to alleged victims?

As of January 8th of this year, we Floridians enacted Marsy’s Law, which requires our court system to keep alleged victims informed.  It gives a voice to victims.

But sometimes, nobody listens.

And that’s the case we have today.  An alleged victim that was utterly ignored by the prosecutor, by the judge, by the jury, and eventually–even the appellate judges ignored her.

In the recent case of Daniels v. State, Daniels was convicted of aggravated assault with a firearm. 45 Fla. L. Weekly D 1380 (Fla. 1st DCA 2020).  The facts brought out at the trial were pretty similar to many, “he said, she said” cases.

We’ve seen this movie a thousand times.  A couple gets into a heated argument.  Things were said in the heat of the moment that, upon sober reflection, may have not been entirely accurate.  Later, nobody believes the alleged victim lied the first time, they think she is lying the second time.

Where does the truth lie?  Well, we don’t have to decide that.  This is about proof beyond every single reasonable doubt.  If the alleged victim claims she lied–that should constitute instant reasonable doubt.  Case closed. Continue Reading

Memory is a funny thing.  It is not as accurate as we think.Photo_092808_0061-300x225

My mom had a better memory of my childhood than I.  She told stories that I believe happened, and I was there (obviously), but I don’t remember.  Some of these stories I’ve adopted, and I don’t remember whether I’m remembering what actually happened, or I’m just remembering the story my mom told me.

Other times, I remember parts of an experience.  A few days ago, it was cold in Orlando.   And, every time I walked outside “in the cold”, it reminded me of my trip to Berlin a few years ago.  The air felt just like Berlin.  It’s funny how something as simple as the temperature has a way of transporting you to places and memories.

Some songs are attached to memories.  I heard a great obscure song the other day, and it reminded me of my days as a college DJ at KSLU.  Five seconds into this song, I’m back in a DJ booth with turntables and carts everywhere (song, Postcards from Paradise by Flesh For Lulu–told you it was obscure–yes, a  shameless display of my alternative credentials, almost as unauthentic as telling people to be authentic…).

There are plenty of things I want to remember, but I just can’t.  Here’s an odd one, and maybe you can answer this question.  First, some background.

My significant other and I were big fans of Pleasure Island (PI).  For those of you unfamiliar, think back to a time when Disney was at the peak of their powers, no competition in sight.  They decided to create an adult playground full of dance clubs, beach bars, and comedy clubs.  At midnight, they celebrated New Year’s.  Fireworks.  Dancers.  Every night.  It was a sight to behold.

But parties aren’t meant to last. Continue Reading


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?

Continue Reading

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”.
Continue Reading