Jacksonville Criminal Lawyer Blog

In a recent criminal case south of Jacksonville, Florida, the defendant was charged with burglary of an occupied dwelling and other charges after the victim reported she was sleeping in an apartment and the defendant broke in and assaulted her. The victim had been staying at the apartment with a friend. The defendant had also been staying at the apartment as he and his girlfriend's names were on the lease. The defendant and his girlfriend were in the process of moving out, but they still had the keys and the lease had not expired.

In order to convict a person of burglary, the state must prove the defendant does not own or have rightful possession of the property. However, where both the defendant and victim had a possessory interest in the property, the state must prove the victim's possessory interest was greater than the defendant's possessory interest. If their possessory interests are equal, the crime of burglary is not committed. Some of the factors a court will look at include: whose name(s) is on the lease, who is staying where, did either person already move out or abandon the property, who is paying the bills?

In this case, the defendant was in the process of moving out, but had not yet done so. He was on the lease and still paying some of the bills. He had a key to the property. The victim was just a guest at the property, her name was not on the lease and she was not paying the bills. As a result, the defendant had a greater possessory interest in the property and could not be convicted of burglary for entering the property to commit a crime.

In Florida, a battery where no weapon is used is normally a misdemeanor crime, which means the maximum penalty is one year in jail. A battery against someone not related to the defendant is a serious charge but not normally as serious as a domestic battery charge and certainly not as serious as a felony battery charge. Using a weapon during a battery can certainly raise the stakes for a battery charge and make it a felony punishable by years in prison. Outside of the domestic battery context where a defendant has a prior domestic battery conviction, battery charges are typically going to remain misdemeanors if no weapon or serious injury is involved.

However, there is one type of battery that we see charged fairly often that does not involve a weapon and often does not result in any, let alone serious, injuries to the alleged victim. Battery by strangulation is a third degree felony in Florida punishable by a maximum of five years in prison. One might expect that the battery by strangulation charge requires forceful strangulation and evidence of the victim's inability to breathe for the state to bring those charges. That is not always the case. As criminal defense lawyers working in the Jacksonville, Florida area, we have see quite a few battery by strangulation arrests where, at worst, the defendant merely puts his/her hands on or near the victim's neck. This is not sufficient to maintain a battery by strangulation charge in Florida. The Florida law requires the defendant to impede the normal breathing of the victim or the circulation of the blood of the victim by applying pressure on the neck, nose or mouth and creating a risk of great bodily harm.

The Florida law, as written, seems to require a significant effort to choke, or strangle, the victim. However, we often see police officers arresting a person for battery by strangulation where there is just an allegation that the defendant merely put his/her hands on the victim's neck without evidence of a restricted airway or blood flow or a risk of serious bodily harm. In many cases where battery by strangulation is charged, the state may have overcharged the case and the misdemeanor is much more appropriate than the more serious felony charge, and this type of case must be defended appropriately.

In Florida, a DUI charge (driving under the influence of alcohol or drugs) is normally going to be charged as a misdemeanor crime. While the Florida legislature continues to make minimum penalties for DUI harsher, jail time for a misdemeanor crime is limited to a maximum of one year and most people charged with any misdemeanor are not facing anywhere near that amount of jail time, if any. However, if a person has three prior DUI convictions, the state does have the option of charging the fourth DUI as a third degree felony. Third degree felonies carry a maximum penalty of 5 years in prison, and it is not uncommon for someone to go to jail or prison when charged with a third degree felony if he/she has a prior record.

In a recent DUI case south of Jacksonville, Florida, the state charged the defendant with felony DUI because the defendant had three prior DUI convictions. However, the state cannot use just any prior DUI conviction to justify the three prior DUI convictions necessary to charge felony DUI for the fourth DUI. There are restrictions with the use of prior DUI convictions. For instance, if the defendant was facing jail time, could not afford a lawyer and did not have adequate legal representation during the prior DUI case, that prior DUI conviction cannot be used as one of the three prior DUI's necessary to make the fourth DUI a felony.

In this case, one of the defendant's prior DUI convictions went all the way to the mid-1980's. The criminal defense lawyer filed a motion to dismiss the felony DUI charge because the defendant indicated he did not have enough money to hire a criminal defense attorney back then, did not waive his right to a criminal defense lawyer and was not appointed a criminal defense attorney by the court for the prior DUI in the 1980's. Because the prior DUI case was so old, the files were destroyed, and the state was not able to prove that the defendant either had a criminal defense lawyer when he was convicted of the prior DUI or waived his right to a criminal defense attorney in that case. Because the state could not prove the necessary requirements to use one of the the prior DUI convictions, the State was not permitted to charge the fourth DUI as a felony.

There are approximately 300,000 deportation cases currently pending in immigration courts across the country. The United States government has recently signaled a change in the way it intends to handle those cases. The government has indicated that it will focus primarily on those illegal immigrants who have criminal records or are otherwise considered a threat to national security. Those illegal immigrants with pending deportation cases who do not have criminal records or pending criminal cases will likely be allowed to remain in the country and apply for a work permit. Other factors to be considered in a deportation case will be how long the person has been in the country and whether the person has relatives who are U.S. citizens.

If you are not a United States citizen and have a deportation or immigration issue, or have been arrested and are facing deportation, the law firm of Shorstein & Lasnetski, LLC handles all criminal and immigration matters in state and federal courts. Feel free to contact us for a consultation about your rights within the criminal justice system and the immigration process.

In a recent criminal case in Jacksonville, Florida, the police were executing a search warrant at the defendant's home and found several guns throughout the house along with ammunition for some of the guns. The defendant had previously been convicted of a felony. In Florida, a convicted felon is not permitted to own or possess a firearm. Possession of a firearm by a convicted felon is a serious felony crime for which the state often recommends jail or prison time.

In this case, all of the guns and the ammunition were found in the same home (although in different places within the home) and during the same search. The state charged the defendant with multiple counts of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon- one count of possession of a firearm by a convicted felon for each firearm and one count of possession of ammunition by a convicted felon for all of the ammunition.

A motion to dismiss the charges was filed alleging that the state was only permitted to charge the defendant with one count of possession of a firearm or ammunition by a convicted felon for all of the items found in the home. Based on the wording of this criminal statute, the state was not allowed to file multiple charges for the multiple firearms or even separate charges for the firearms and ammunition. The judge's ruling was mixed, and we eventually appealed to the appellate court.

The appellate court ruled for the defendant. The statute making it a crime to possess a firearm(s) or ammunition after having been convicted of a felony was written in such a way that the state is limited to charging just one count of either possession of a firearm by a convicted felon or possession of ammunition by a convicted felon in a situation where the polcie find multiple firearms and/or ammunition during a single incident.

This has at least two significant benefits for the defendant. The crimes of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon are serious charges and carry maximum penalties of 5 years in prison for each count. Limiting the state to a single charge obviously limits the defendants exposure to a greater prison sentence. Also, when the state presents the jury with several gun and ammunition charges, it has the effect of prejudicing the jury and making the case and the defendant look worse than they really are. Therefore, limiting the state to one charge does not unfairly prejudice the defendant before the jury hears the evidence.

In Florida, a battery crime is defined as intentionally striking, or even touching, another person against his/her will. This is obviously a very broad definition of criminal activity that can include a lot of conduct, and even harmless conduct. Slightly pushing someone with no injury whatsoever can come under the definition of battery. Domestic battery is a battery against a relative, someone with whom the defendant shares a child or someone with whom the defendant lives or used to live.

A person's first domestic battery or regular battery crime is a misdemeanor in Florida punishable by up to a year in jail. Battery and domestic battery are two of the most serious misdemeanor charges depending on the circumstances of the case and any injuries caused. However, they are still misdemeanors so the severity of the potential punishments are limited.

If a person has a prior conviction for battery, whether it is a regular battery, domestic battery, battery against a law enforcement officer or aggravated battery, another battery charge of any kind can be charged as a third degree felony. The second battery does not need to be of the same kind as the first. In other words, if a person is convicted of a battery against a stranger and then commits a domestic battery, the second battery crime can be charged as a felony.

Felony crimes are often much more serious than misdemeanor crimes, particularly when the state sees that the defendant has a prior record of a similar nature. For third degree felonies, the maximum penalty is five years in prison.

In a recent felony driving with a suspended license case in Florida, the charge was thrown out because the court determined that the police officer illegally seized the defendant before he learned the defendant's license was suspended. This is an important case because we see the same situation arise in DUI cases.

In this case, the police officer saw the defendant sleeping in the driver's seat of his vehicle in a parking lot with the car running. It was early in the morning, and the parking lot was otherwise empty. The police officer approached the vehicle and saw the defendant apparently asleep in the car. The police officer knocked on the driver's side window and woke him up. The police officer did not notice anything illegal going on or any cause to be concerned for the driver's safety. After waking him up, the police officer ordered the driver to turn off the car. The police officer then asked the driver for his license and learned he had a suspended license. Because he had several prior driving with a suspended license convictions, the driver was charged with felony driving with a suspended license, which carries a maximum penalty of five years in prison in Florida.

The criminal defense attorney for the driver filed a motion alleging that the police officer illegally seized the driver before learning he had a suspended license. The police are not allowed to detain, or seize, a person so that he/she is under the impression that he/she cannot leave without reasonable suspicion of criminal activity, or specific evidence that the person needs assistance. In this case, the police officer did not have any specific reason to believe the driver was committing a crime when he approached the vehicle. When the police officer ordered the driver to turn off his car, the driver was under the impression that he could not leave and was being detained. Because the police officer did not have any specific legal reason to make that demand of the driver, it was an illegal seizure. As a result, any evidence the police officer uncovered (such as the evidence that his driver's license was suspended) was a result of an illegal search and seizure and was thrown out. The charge of driving with a suspended license was thrown out with that evidence.

As criminal defense lawyers in the Jacksonville, Florida area, we have seen several cases that start out this way. Many times, they are DUI cases that begin when a police officer sees someone resting or sleeping in his/her parked vehicle and approaches to investigate. There is nothing illegal about sleeping in one's car parked in a parking lot. If the police officer does not have reasonable suspicion that the person is committing a crime, the police officer may not order the person to turn off the car, get out of the car or do anything else that constitutes a detention.

Last year, we posted about how violent crimes and property crimes have decreased despite the recession and difficult financial times for many people. The common thinking was that as times get tough for people, more people would commit crimes. That was not the case in 2009, and it does not appear to be the case in 2010. According to a recent article citing FBI statistics, violent crimes and property crimes have continued to decline in 2010 even though the economy has arguably improved very little. Violent crimes have actually dropped 6.2% in the first half of 2010, and property crimes dropped 2.8%. The 2010 numbers are part of a three year trend of fewer crimes across the country. Experts have not been able to come up with many reasons why crime has been consistently dropping as the economy has declined. However, the trend appears to be pretty clear after three years.

One area where crime has increased is in the area of illegal pills. As criminal defense lawyers in the Jacksonville, Florida area, we have seen many more cases involving people arrested for illegally possessing various pills (such as Oxycontin, Oxycodone, Hydrocodone, Xanax and others) without a prescription and distributing such pills illegally. The police are also vigorously going after pain clinics and other medical providers whom they allege are dispensing these narcotic pills improperly. While overall crime may be trending downward, the police are still focusing on particular areas where they allege crime is still going strong. Based upon our observations, there is little doubt that the distribution and possession of illegal pills is an area on which the police are currently focusing.

A man in St. Augustine, St. Johns County, Florida was arrested after he allegedly hit and killed a pedestrian with his vehicle and fled the scene of the accident according to an article on News4Jax.com. The article indicates the suspect struck Brian Stevenot near U.S. 1 and killed him. The suspect then allegedly drove away from the scene to try and remove the evidence of the accident from his vehicle. A friend later went to the police and reported the fact that the suspect hit the man and then was attempting to clean his vehicle and remove the parts that showed damage from the crash. Based on the friend's statement to police, the suspect was arrested for vehicular homicide and tampering with evidence.

In Florida, it is illegal to be involved in any sort of traffic accident that results in property damage or injury and then fail to remain at the scene for the police to investigate the crash and provide information. If a person does leave the scene after such an accident, he/she can be charged with anything from a misdemeanor to a serious felony depending on the severity of the crash. The purpose of the law, of course, is to avoid situations like this where it becomes very difficult for police to determine how the accident occurred if the person involved in the accident does not stay around to speak with police. Additionally, breath and blood tests to determine if the driver was impaired are not effective if they are done too long after the crash.

The tampering with evidence charge addresses a person who attempts to conceal or alter evidence that would be helpful to the police in proving the crime. If a person commits a crime and then takes steps to conceal or alter evidence of the crime, he/she can be charged with the additional crime of tampering with evidence. Of course, the tampering with evidence charge also serves to help the state prove the underlying crime. It is easier for the state to prove a person committed a crime when there is evidence that the same person took steps to tamper with the evidence.

I read an article on a local Jacksonville website about an accident that occurred on Beach Boulevard in Jacksonville, Florida where a driver ran into the back of a motorcycle and then left the scene only to return with her mother ten minutes later. Is this a crime in Florida?

Most people are aware that all drivers have an obligation to remain at the scene of an accident that results in property damage and/or injury to exchange insurance and identification information. If a person is involved in an accident and leaves the scene without providing the required insurance and identification information, he/she commits a crime in Florida. If a person is injured in the crash, the hit and run crime is a third degree felony. If someone dies in the crash, the hit and run crime is a first degree felony with a mandatory minimum sentence of two years in Florida state prison. On the other end of the spectrum, if the accident results in property damage only, the hit and run crime is a misdemeanor.

What happens if a person keeps driving for some period of time but then decides to return to the scene of the accident? Technically, this is still a crime. The hit and run (aka leaving the scene of an accident) criminal statute says the person must stop at the scene of the crash immediately. Of course, police and prosecutors have discretion to forego an arrest or prosecution for a person who leaves but comes back on his/her own. However, as criminal defense lawyers who have handled many hit and run cases, we have seen cases where a person leaves the scene temporarily but returns and is still arrested and charged with a crime. In some cases, a person who temporarily leaves the scene may have an emergency which would provide a good defense to hit and run charges if the state decided to pursue them

But, since the statute requires a person to stop at the scene of the accident immediately, the best course of action is to remain at the scene without leaving and postpone any other business until released by the officer.

A six month Jacksonville, Florida investigation that involved multiple law enforcement entities ended with the arrest of thirty-one people recently, according to an article on News4Jax.com. The undercover law enforcement agents apparently advertised on the Internet on websites like Craigslist for contractors to perform home repairs and other projects typically done by contractors and subcontractors. If the individuals who responded to the ads attempted to perform the work without the required contractor's license from the Florida Department of Business and Professional Regulation, the people were arrested.

Florida law makes it criminal for contractors to do certain things without a contractor's license. For instance, it is a crime in Florida to give someone the impression or advertise that he/she is licensed when he/she is not, impersonate someone who is licensed, knowingly give false information to obtain a contractor's license and do any work that requires a contractor's license without a license.

For first time violators of this law in Florida, it is a first degree misdemeanor which can be punishable by up to a year in jail. However, the crime can become a third degree felony punishable by five years in prison under certain circumstances. If a person commits a second violation of this law, it is a third degree felony. If a person commits a violation after the Governor declares a state of emergency, perhaps after a hurricane, it is a third degree felony even for a first time violation.

When the economy is bad and jobs are hard to come by, some people may try and do some extra contracting work or take jobs out of necessity. For someone doing contracting work without a license, it is important to understand that it may be a crime and apparently law enforcement officials are taking the time and effort to investigate these cases.

A Jacksonville woman was sentenced to 15 years in the Florida state prison after a guilty verdict in a vehicular homicide case. According to police and prosecutors, the woman was driving after taking Ambien, Xanax, cocaine and other drugs. She hit and killed a pedestrian on the Trout River Bridge in Jacksonville before crashing her vehicle. Prosecutors ultimately charged her with vehicular homicide which carries a maximum sentence of 15 years in prison.

The crime of vehicular homicide in Florida can be committed in various ways. Most people are familiar with the term DUI manslaughter which often involves a person who is impaired by alcohol causing an accident that results in the death of another person. However, according to the Florida statute, the crime of vehicular homicide can be committed by a person who is intoxicated by alcohol, by illegal drugs, by legal prescription drugs or not intoxicated at all.

The crime of vehicular homicide does not necessarily require that a person is intoxicated or impaired, but rather focuses on whether a person is driving recklessly and causes a death. There is no clear definition of reckless driving but it is viewed as driving that is above and beyond more routine negligent driving that is likely to cause an accident with serious injury or death. An example of negligent driving which is not sufficient for a vehicular homicide charge would be speeding or running a red light. An example of reckless driving would be excessive speeding in a residential or school zone or driving while impaired by alcohol and/or drugs. In most cases, the reckless driving is caused by alcohol and/or illegal drugs. However, alcohol and/or illegal drugs are not a requirement. There are cases where a person is charged with vehicular homicide without alcohol or illegal drugs being involved. But in those cases, there is usually some very dangerous driving or some other factor that made it likely that the driver would cause a serious accident resulting in death or serious injury.

The Florida Highway Patrol received new information about a 2003 hit and run case that involved a fatality and are actively looking for their new suspect, according to an article on News4jax.com. The article indicates that an informant has given the police the identity of a man who was involved in an accident in 2003 that killed another man. The suspect then left the scene of the accident.

One question one may ask about this case is whether a person can be charged with a crime 7 years after the crime occurred. The statute of limitations can prevent the state from moving forward with charges if too much time has passed. The amount of time depends on the type of charges and certain other factors. However, when the crime involves a death, there is no statute of limitations in Florida.

However, in defense of the suspect, a criminal defense lawyer would obviously investigate why it took so long for this informant to come forward and identify someone 7 years after the crash. And, under what circumstances did this informant come forward? Is the informant facing charges of his own, and is he/she looking for some way to get a break from the state? Additionally, how good is the informant's memory, and what details can he/she remember 7 years later? Are there other facts that corroborate the informant's information?

Despite what may be shown on TV, it is not common for cases to be revived and arrests to be made based on new information several years after the alleged crime. However, it does happen, and there is no statute of limitations on death cases. But when it does happen, serious questions are raised about the reason for the delay and the strength of the evidence.

A Jacksonville man still in the hospital was arrested for DUI manslaughter and other charges after being involved in an accident that caused the death of a St. Johns County deputy. According to reports following the crash, the suspect was driving the wrong way on State Road 9A in Jacksonville and had been drinking prior to the crash. The reports indicate that the suspect submitted to a breathalyzer test that showed his blood alcohol level to be almost twice the legal limit of 0.08.

As most people know, if a person drives while under the influence of alcohol to the extent that his normal faculties (i.e. vision, judgment, coordination, balance, speech, etc) are impaired, he/she can be charged with DUI, which is a misdemeanor crime. Although a first or second DUI will always be a misdemeanor, that crime has reached the point where the penalties can be quite severe including jail, probation, community service, a large fine and a suspended license.

However, the charge of DUI can also be a felony charge in some situations and result in much more serious penalties such as significant prison time. If a person gets a third or fourth DUI, the State may have the option of charging the defendant with a third degree felony that carries a maximum penalty of five years in prison. However, the State in the Jacksonville, Florida area typically will still charge those cases as misdemeanors.

However, if a person is alleged to be intoxicated and involved in an accident that causes serious injury or death to another, that person will almost certainly be charged with a felony- either DUI with serious bodily injury or DUI manslaughter. These are very serious cases for which the State often recommends significant jail or prison time.

In a recent criminal case that occurred west of Jacksonville, Florida a person was arrested and charged with fleeing or attempting to elude a police officer after he fled from a police officer trying to make a traffic stop. Fleeing or attempting to elude a police officer is a serious criminal charge in Florida. Assuming there is no accident or injuries as a result of the fleeing, tt is a third degree felony which can carry a maximum sentence of 5 years in prison.

In this case, the police officer testified that he saw the suspect driving a vehicle on which the taillights were broken. The police officer tried to stop the suspect, and the suspect fled in his vehicle. The suspect was ultimately caught and arrested.

In order for the state to prove the crime of fleeing or attempting to elude a police officer in Florida, the state must establish that the defendant intentionally tries to get away from a police officer's vehicle that is properly marked with the police agency's insignia and its siren and emergency lights activated. In other words, the state has to prove that the suspect intentionally tried to flee and would have known the person chasing him/her was a police officer because the police vehicle was properly marked and lit.

In this case, the police officer testified that he had his lights and sirens on and he was driving a marked vehicle. However, the police officer did not testify that his police vehicle had the police agency's insignia on it. Because the state failed to establish this element, the case was thrown out.

The law says what it says, and if the police and the state do not prove every element of the crime, the case should get thrown out. In the case of a fleeing or attempting to elude a police officer charge in Florida, many police officers are driving unmarked vehicles or partially marked vehicles. If the state cannot prove that the person allegedly fleeing from the police officer knew or would have known he/she was fleeing from a police officer because the car was not properly marked, that charge should not hold up in court.