Jacksonville Criminal Lawyer Blog

In a recent attempted second degree murder case near Bartow, Florida (which is about 3 1/2 hours southwest of Jacksonville, Florida), a defendant's attempted second degree murder conviction was reversed because the judge did not properly instruct the jury about the defendant's right to defend himself.

In this case, the defendant, the alleged victim and two other friends were sitting in a park drinking. The defendant and the alleged victim got into some type of altercation, and the defendant ultimately stabbed him with a knife. When questioned by the police and throughout the trial, the defendant (and his criminal defense attorney) claimed that he stabbed the alleged victim because he thought the alleged victim was going to kill him.

In this attempted second degree murder case, the judge instructed the jury that a person cannot use deadly force unless he/she first reasonably tries to avoid the danger from the other person. However, the law has changed, and this is no longer an accurate statement under Florida law. Florida has since eliminated this so-called duty to retreat. Under current Florida law, as long as a person is not doing anything illegal and is in a place he/she has a right to be, he/she does not have to retreat, can stand his/her ground and can use any force reasonably necessary to prevent death, great bodily harm or a forcible felony.

In other words, in the past in Florida, before a person could use deadly force, he/she had to retreat or avoid the situation if reasonably possible. Now, if a person reasonably believes that he/she is about to be the victim of violence and/or a forcible felony, he/she can use reasonable force to prevent that from occurring without first determining if retreat is reasonable. And when a person does use deadly force under those circumstances and is charged with a violent crime, he/she can use the new Florida law as a complete defense to that use of force. Because the judge failed to tell the jury about this new law in this case, the defendant's conviction for attempted second degree murder was thrown out.

A Jacksonville, Florida man was recently arrested for the crime of murder by the Jacksonville Sheriff's Office (JSO) four years after he allegedly beat the victim, according to an article on News4Jax.com. Apparently, the suspect beat his girlfriend four years ago so badly that she was rendered a quadriplegic and forced to live in a nursing home for the past four years. The victim recently died, and the suspect was rearrested on murder charges.

Cases like this when the death occurs so long after the alleged incident are rare, but they do happen and the state is permitted to charge the suspect with murder years after the original incident occurred. This is because there is no statute of limitations for the crime of murder. In Florida, any capital felony, life felony or felony that results in a death may be charged at any time. There is no deadline. Other less serious crimes are subject to the statute of limitations. For instance, in Florida, a first degree felony that does not involve a death must be commended within four years of the incident. Other felonies must be commenced within three years of the incident date, and first degree misdemeanors must be commenced within two years of the commission of the crime.

The other prevailing issue in a case like this is whether the state can prove causation. In other words, in any murder case, the state has to prove that the victim actually died from the actions of the defendant. When there is a long period of time between the incident and the actual death, the criminal defense lawyer can always argue that the death was caused by something other than the defendant's conduct, which is why so much time elapsed in between the incident and the death. In order to prove the murder charge, the state has to prove beyond a reasonable doubt that the victim died as a direct result of the defendant's actions.

When a person is arrested and charged with a crime of violence such as assault, battery aggravated assault, aggravated battery or a murder charge, the criminal defense lawyer for the defendant may attempt to introduce evidence of the alleged victim's prior history of violence. Is this evidence of the alleged victim's prior violence admissible at the trial? Yes, when the defendant is relying on a self defense theory in the case.

In Florida, when the defendant is charged with a violent crime, self defense is a common defense. If it can be established that the victim has a history of violence and the defendant was aware of this violent history, the criminal defense lawyer can bring out that evidence about the alleged victim at the trial for the jury to consider. The idea is that a self defense claim asserts that the defendant had a reason to believe that he/she was in danger based on the violent and/or threatening conduct of the alleged victim. Where the defendant knows that the alleged victim has a history violent conduct, that is relevant to establish that the defendant had reason to believe that the alleged victim was being, or was about to be, similarly violent in this case. Such evidence is relevant to show the state of mind of the defendant and to justify the defendant's reasonable fear of the alleged victim and the defendant's use of violence to defend him/herself from the alleged victim.

A man was caught trying to leave a Target store with stolen merchandise in Flagler County, Florida and ended up being charged with at least one very serious felony crime, according to an article on News4Jax.com. The article indicates that a police officer was called to the store to investigate an alleged shoplifter. When the alleged shoplifter exited the store with merchandise and saw the Flagler County police officer and Target loss prevention officer outside of the store, he ran to a car that was waiting for him. At this point, he was only facing a charge of petit theft, a fairly minor misdemeanor, if the property was valued at less than $300, or grand theft, a third degree felony, if the property was worth between $300 and $20,000. Grand theft at that level is a third degree felony, but one of the less serious felony crimes.

However, this case and the ultimate charges became much more serious when the suspect allegedly slammed the car door on the police officer and broke his arm. At that point, the case went from a fairly minor theft case to a theft and aggravated battery against a law enforcement officer case. In Florida, aggravated battery against a law enforcement officer is a first degree felony which carries a minimum sentence of five years in prison. Therefore, if the suspect had just removed the merchandise from the store without paying and the goods were worth $300 or more, he was looking at a maximum sentence of five years but realistically either probation or a short term of imprisonment. However, by slamming the door on the police officer and breaking his arm, he is now likely looking at a much more significant prison sentence if proven guilty.

Most experts would predict that crime rates would increase as economic times become worse. However, as Florida and the rest of the U.S. are suffering through a lengthy economic downturn, crime rates seems to be dropping across the country. According to FBI statistics, violent crimes such as murder and manslaughter dropped about 10% for the first half of 2009 and property and theft related crimes have dropped 6.1%. Crime rates are as low as they have been since the 1960's, according to the FBI.

The general idea correlating higher crimes rates with tough economic times is that people become more desperate and have more time on their hands due to unemployment when they face difficult financial situations. Some people suggest that the reduced crime rates are due to economic stimulus packages and extended unemployment benefits making it easier for people to endure the recession. If true, however, when these programs and benefits ultimately stop, crime rates may rise to a level more consistent with the difficult economic times.

In Florida, a person who has been arrested for a crime of violence, such as aggravated assault, cannot be prosecuted for that crime if he/she was justified in using force, i.e. committed the act in self-defense. In other words, Florida law provides that a person can use force against another person if he/she reasonably believes such force is necessary to defend him/herself against another's imminent use of force. A person can use deadly force if he/she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to him/herself or another or to prevent the imminent commission of a forcible felony. (There are additional laws regarding use of deadly force in one's home which can be found here.) A person does not have to wait for the other person to use force or commit the forcible felony. If it reasonably appears that the other person is about to use force or commit a forcible felony, a person can preemptively use force to prevent the attack or forcible felony.

How exactly does this defense play out when a person is charged with a violent crime when that person believes he/she had a right to use the force that he/she used? In Jacksonville, Florida and other locations in the First District, the criminal procedure allows a defendant to file a motion to have the judge dismiss the charges against him/her. That motion, which is filed by the criminal defense attorney, does not technically characterize the defendant's justifiable use of force as a defense to the charges. The criminal defense lawyer's motion will properly indicate that his/her client's use of force renders the defendant immune from prosecution on the charges. Because the justifiable use of force defense is an assertion of immunity rather than what is referred to as an affirmative defense, the motion is made prior to the trial, and the judge will weigh the relevant evidence to determine if the defendant was justified in using such force. The defendant has the burden of proof, but the standard is by a preponderance of the evidence (i.e. greater than 50%) rather than the typical beyond a reasonable doubt standard the State has in a criminal case.

The judge cannot refuse to grant the defendant's motion to dismiss the charge(s) based on justifiable use of force on the basis that the evidence on each side conflicts. The judge is supposed to weigh the evidence and grant the defense motion to dismiss if the defense establishes the force used by the defendant was justified by a preponderance of the evidence. If the judge makes such a determination, the judge must then dismiss the charge(s) against the defendant without the case ever going to a trial before a jury.

As forensic technology is becoming more advanced, police across the country are solving fewer homicides. The FBI maintains records on murder clearances rates which refer to the percentages of murders that are solved in any given year. When murder clearance rates were first documented in the early 1960's, about 90% of murders were solved. According to the latest FBI figures, just over 60% of murders were solved in 2007. Over that time period, the annual number of murders reported in the U.S. have increased from 4,566 to 14,811.

The decrease in the murder clearance rates can be attributed to a number of factors. In the past, more murders were committed by people who knew or had some connection with the victim. With the increase of gang and drug related murders, murders have increasingly been committed by people who had no or little connection to the victim making it more difficult to solve. When the murderer and the victim are related or otherwise acquainted, it is often easier for police to establish a suspect by analyzing motive and opportunity. Another factor is that witnesses have become less likely to give statements to police and testify in court. In some communities, people are becoming very proactive in letting residents know that if they talk to the police about a crime, there would be serious repercussions. Whatever CSI techniques may be available, witness testimony is still a critical part of most criminal investigations.

An 89 year old stabbed and killed his 22 year old grandson in Crescent City, Florida (which is about two hours south of Jacksonville, Florida) according to an article on www.News4jax.com. The grandfather is claiming that he stabbed his grandson in self defense.

In Florida, the law of self defense was expanded making it easier for those suspected or accused of violent crimes to assert the self defense claim. The Florida law was changed couple of years ago. Under the prior Florida law, a person was required to use any reasonably possible means to escape a situation before using deadly force to meet deadly force outside of a person's home or workplace. According to the new Florida law, individuals are not required to retreat and may use deadly force in public when they reasonably perceive a threat of deadly force to themselves or others.

Crime statistics in Jacksonville, Florida show that violent crime in Jacksonville has increased from 2006 to 2007, although violent crime across the country has decreased. According to an article on Firstcoastnews.com, reports of violent crime (such as murders, rapes and robberies) in Jacksonville increased by over 22% from 2006 to 2007. The Jacksonville Journey is an initiative created by the city of Jacksonville designed to rectify the increasing violent crime trend in Jacksonville. The Jacksonville Journey recommends an increased police presence in Jacksonville neighborhoods along with other strategies which can be found here.

Jacksonville, Florida is a major market for the distribution and transport of illegal drugs and drug operations, according to a recent report from the National Drug Intelligence Center. The report indicates that Jacksonville, Florida is the primary drug market in the North Florida region (which includes Duval, Nassau, Clay, St. Johns and other surrounding counties) and a significant stopping point for illegal drugs such as cocaine, heroin, marijuana, methamphetamine and ecstasy that are then transported to other major drug markets from Miami to Atlanta. Mexican and other Hispanic groups have large criminal drug operations that work in and through Jacksonville. Indoor cannabis (marijuana) plant operations have increased exponentially in the Jacksonville area. Seizures of indoor cannabis plants have increased by 277% in the Jacksonville/North Florida area from 2005 - 2007.

The report indicates that the biggest threat to the Jacksonville area is cocaine and crack distribution and abuse due to the prevalence of the drugs, the violence associated with them and the cocaine and crack related treatment needs. The report pessimistically indicates that demand for cocaine and crack, particularly, and heroin, marijuana, methamphetamine and ecstasy to a lesser extent, in the Jacksonville area is, and will remain, strong, and Mexican and other drug trafficking organizations will continue to meet the demand. The report also notes that violent crime in Jacksonville has increased. White the study did not directly correlate the abuse of cocaine, crack and other drugs to the increase in violent crime, it did suggest, as common sense would, a likely connection. With the increase in demand and supply of these drugs in the Jacksonville area, it is reasonable to suggest the increase in violent crime would continue as well.

The Jacksonville State Attorney's Office recently decided to take another look at an incident where a Jacksonville Beach suspect (Theodore Gersdorf) cut off another person's finger with a machete, according to an article at Jacksonville.com. Apparently, when Jacksonville police originally investigated the incident, the suspect claimed that he used the machete in self defense, and charges of aggravated battery against him were not pursued. However, according to the article, witnesses to the incident said that the suspect said he was going to his car to get "something that would take care of" the alleged victim and then left and returned with the machete. This, according to Jacksonville police, calls into question the suspect's initial claim of self defense.

In Florida, the law pertaining to self defense allows a person to use deadly force to reasonably protect him/herself or another person from death or serious bodily harm and/or to prevent the occurrence of a forcible felony such as rape, robbery, burglary or kidnapping. In 2005, the law regarding self defense was changed to allow a person to use deadly force in public in one of the situations described above even if they could have fled the scene to avoid the threat. Prior to the change, a person who used deadly force in such a situation in public would have to show that he/she could not have otherwise escaped the threat. People in Florida were already permitted to use deadly force without fleeing in such a situation in their homes, vehicles or businesses.

Violent crimes, including murder, rape and robbery, increased between 2006 and 2007 in Jacksonville, Florida and other major cities in Florida, according to the FBI's Uniform Crime Report. Of the 17 cities in Florida with over 100,000 residents, the murder rate increased in 10 of them. Murders increased in Jacksonville by 12%. In addition to Jacksonville, violent crimes increased in just about every city in South Florida with a population over 100,000. In all of Florida, Orlando was statistically the most violent city.

Despite the increase in violent crimes in Jacksonville and many other cities in Florida, the violent crime rate decreased nationwide between 2006 and 2007 by 1.4%. The decrease in violent crimes can be partially attributed to the Northeast where violent crimes decreased by 5.4%. In the South as a whole, violent crimes increased by 0.7%.