Criminal Procedure

A Judge in Florida Cannot Rely on a Defendant’s Subsequent Arrest When Imposing a Sentence

Published on: March 3, 2017 | by Lasnetski Gihon Law

After a person is convicted of a crime in Florida, whether as a result of a guilty or no contest plea or a jury trial, it is up to the judge to determine the defendant’s sentence. Of course, if the criminal defense lawyer and the prosecutor work out a deal as part of a guilty or no contest plea, the judge still has to agree to accept the deal, but judges will normally go along with a deal worked out by the two sides. Minimum mandatory penalties for some crimes in Florida can limit a judge’s discretion in sentencing. However, if a defendant enters a plea without a deal with the state or a person is found guilty at a trial, the judge will usually be the one to decide the defendant’s sentence without any limitations.

The sentence in such cases is usually determined at a sentencing hearing. This is a hearing at which both sides can present witnesses, evidence and arguments to convince the judge to sentence the defendant as they see fit. The parties can present a wide variety of information in aggravation or in mitigation to convince the judge of their position. The judge is permitted to consider many different facts and opinions when determining a defendant’s sentence.

However, some facts are not appropriate for consideration at sentencing. It is not uncommon for a sentencing hearing to take place several weeks, or even months, after a defendant enters a guilty or no contest plea or loses a trial. Events that occur in between can be considered by the judge, for better or worse. Examples of positive developments in between a plea and sentencing might be that the defendant obtained a new job or started a rehabilitation program. On the other hand, if a defendant fails to appear at his/her sentencing hearing, that will almost always result in a higher sentence once the defendant is arrested on a warrant.

A Defendant in Florida Does Not Always Have a Right to a Jury Trial in a Criminal Case

Published on: January 24, 2017 | by Lasnetski Gihon Law

Jury-Room-300x225 Most people have heard through school, interaction with the judicial system, television shows or otherwise that there is a constitutional right to jury trial for people charged with a crime. This is usually true, but it is not true in every case. There is an exception for certain minor crimes where a defendant does not have a right to a jury trial and the judge decides whether or not the defendant is guilty of the crime. That exception involves crimes where the defendant cannot be sentenced to jail or prison for more than six months. In other words, if a defendant is charged with a minor crime and the maximum penalty is six months or less in jail, the defendant is not entitled to a jury trial. The parties might agree to a jury trial or the judge might insist on a jury trial, but the law does not give the defendant a right to a jury trial if he/she wants one and the judge will not allow it. Of course, this would only apply to minor misdemeanors, and it would never apply to felonies. However, some people can be seriously impacted by any criminal conviction no matter how minor the charge or by any time in jail and may want a jury trial to protect his/her rights.

It is important to understand that a defendant is always entitled to a jury trial in a criminal case if the potential penalty for a conviction of the crime is more than six months. It does not matter if the judge is not likely to sentence the defendant to more than six months in jail or even if the judge says he/she will not do it. As long as the law allows for a sentence of more than six months in jail, the defendant can have a jury trial.

For instance, there was a case just south of Jacksonville, Duval County, Florida where a defendant was charged with possession of less than an ounce of marijuana. This is a misdemeanor crime, but as ridiculous as it may seem, it carries a potential penalty of a year in jail. The defendant wanted a jury trial, but the judge denied the request because he said he had no intention of sentencing the defendant to jail time if he was convicted of the crime. The defendant had his trial with the judge as the decision maker (referred to as a bench trial), the judge found him guilty and the judge sentenced him to no time in jail.

Police in Florida Cannot Use Informant to Get Statement from Defendant That Police Could Not Otherwise Obtain

Published on: January 13, 2017 | by Lasnetski Gihon Law

Mans-SIlhouette-300x218 As most people are aware in Florida and elsewhere, when the police arrest a suspect or take a suspect into custody, the police are required to read the suspect the Miranda warnings before attempting to take a statement from the suspect. The Miranda warnings discuss a variety of rights, but a primary right that must be disclosed to the suspect is that he/she has a right to remain silent. This means that the suspect can refuse to speak with the police at any time, and the state cannot use the defendant’s silence against the suspect in court. In order for a defendant to assume the protection of the Fifth Amendment right to remain silent, the suspect must clearly state that he/she would like to remain silent or that he/she would like to speak with an attorney before talking to the police. Vague or unclear statements about the right to remain silent and the right to an attorney are not generally held up in court. Additionally, the police want to talk to suspects for a reason- to get evidence they can use to convict them. Therefore, the police may disregard anything but a clear and confident declaration of the right to remain silent and the right to talk to an attorney. If the police think the suspect’s position leaves room for interpretation, the police will often move forward with trying to take a statement.

However, once the suspect is clear that he/she does not want to talk to the police or wants to speak with a lawyer, the police are required to shut down any attempts to take a statement from the suspect. In other words, once a suspect or defendant invokes the right to remain silent, that remains in effect for the remainder of that case. The defendant can always change his/her mind and make contact with the police or the state, but the state is not supposed to try to take a statement from the defendant on their own initiative.

This applies to the police directly trying to speak to the defendant, but it also applies to the police trying to get a statement from the defendant using more indirect methods. In a recent sexual battery case south of Jacksonville, Florida, the defendant was arrested for sexual battery and the police tried to take a statement from the defendant after his arrest. After he was read his Miranda warnings, the defendant requested a lawyer and refused to give any statements. The defendant was taken to jail and remained there as he was unable to bond out. While in jail, the defendant started talking about his case to one of the inmates in his cell. That inmate went to the police and told the police that the defendant was talking about his case.

Florida Criminal Statute of Limitations is Delayed When Defendant is Out of State

Published on: November 18, 2016 | by Lasnetski Gihon Law

In Florida, the state has a certain period of time from the date a crime has occurred to prosecute the defendant. Like other states, Florida has statutes of limitation which set out a number of years within which the state must prosecute a person for committing certain crimes. The period of time provided in the statute of limitations depends on the nature of the crime. Two years is common for misdemeanor crimes in Florida, and four to five years is more common for felony crimes. For instance, for a felony, if the state does not prosecute a defendant within five years of the date of the crime, the criminal defense lawyer can file a motion to dismiss the case because the statute of limitations has run. This situation commonly occurs when the police believe a suspect has committed a crime and issue a warrant or capias for that person. However, the suspect is not caught and brought to court for several years, beyond the time period indicated in the statute of limitations. In that case, the criminal defense attorney may be able to have the case dismissed.

However, there are exceptions to the statute of limitations. The Florida statute itself is fairly ambiguous, but a recent Florida Supreme Court case attempted to clarify one of the confusing parts of the statute. In this case, the defendant allegedly committed the crime in 2009, and a warrant was issued for his arrest. The statute of limitations for the crime was three years. The state did not arrest and charge the defendant until later in 2012, more than three years after the crime was committed. The criminal defense lawyer filed a motion to dismiss the case because the state was attempting to prosecute the defendant more than three years after the crime occurred.

The state argued that the statue of limitations was tolled, or delayed, because the suspect was continuously out of state for part of those three years, as the statue specifically mentions a defendant being out of state as an exception to the running of the limitation period. The criminal defense attorney argued that the state has to show that they diligently searched for the defendant in order to avail itself of the benefit of the tolling of the statute. The statute is not clear as to how these two factors interact with each other. The question is whether the state merely has to show that the defendant was out of state for a continuous period, which tolls the statute of limitations during that time, or whether the state also has to prove they diligently searched for the defendant and his/her absence thwarted their prosecution of the defendant.

Florida Police Officer’s DUI Arrest Outside of His Jurisdiction Was Unlawful

Published on: August 28, 2016 | by Lasnetski Gihon Law

Does a police officer in Florida have the right to arrest a person who commits a crime outside of his/her jurisdiction? It depends. The general rule is that police officers have no authority to arrest people for crimes outside of their jurisdiction. However, there are exceptions. Some neighboring cities and counties have agreements that allow a police officer to make an arrest for certain crimes in the other jurisdiction. Also, there is such a thing as a private citizen’s arrest, and police officers have the same right to effect a citizen’s arrest in a different city or county as private citizens do. Private citizens in Florida are allowed to arrest another person if that person commits a felony or breach of peace in his/her presence.

In this case, the police officer received a call about a vehicle stopped in the middle of the roadway. When the police officer arrived, he saw that the vehicle was over the city line. He approached the vehicle and saw that the driver was passed out with the car running. The police officer woke the driver, started a DUI investigation and ultimately arrested the driver for driving under the influence of alcohol.

The criminal defense lawyer filed a motion to suppress the evidence of the DUI claiming that the police officer did not have authority to pursue a DUI arrest since the incident occurred in a different city. There was no evidence of an agreement between the police departments in the two cities. The court agreed with the criminal defense attorney for the most part.

Jacksonville, Florida Law Firm of Lasnetski Gihon Law Gets DUI Case Dismissed Despite Client Having a Blood Alcohol Level More Than Three Times the Legal Limit

Published on: August 8, 2016 | by Lasnetski Gihon Law

A client recently came to the law firm of Lasnetski Gihon Law as a result of a DUI (driving under the influence of alcohol or drugs) arrest in July of 2016. The arrest was actually based on an alleged DUI offense in Jacksonville, Florida from 2013. Most DUI arrests are made at the time the police officer claims to observe the suspect driving while impaired from alcohol or drugs so there is little delay between the alleged offense and the prosecution and court appearances for the charge.

However, in some cases, the police do not make an arrest immediately. For instance, in this case the investigation began when the client was involved in a motor vehicle accident. The client was not in a suitable condition to give a breath sample for the breathalyzer as the client was taken to the hospital to be treated for injuries. In those cases, the police will often attempt to obtain a blood sample from the DUI suspect at the hospital. While breathalyzer tests provide results immediately, blood samples used to test for blood alcohol content need to be sent to the crime lab for testing. As a result, the police usually do not make an arrest until the results come back a few weeks or a few months later, assuming the results show alcohol or drugs were found in the suspect’s system.

In this case, blood was taken from the client at the hospital and sent to the crime lab. The test results came back about a month later. They showed the client had a blood alcohol level of more than three times the legal limit of 0.08. At this point, the Jacksonville Sheriff’s Office obtained an arrest warrant for DUI. Three years later, the DUI charge was dismissed.

An Improper Promise Can Make a Statement Inadmissible in Florida

Published on: May 27, 2016 | by Lasnetski Gihon Law

When the police in Florida believe a suspect committed a crime, they will often take steps to get that suspect to make admissions that can be used against the suspect in court. When the police take someone into custody and seek to get a statement from the suspect, the police have to read the suspect the Miranda warnings informing the suspect that he/she does not have to make any statement and has a right to a criminal defense lawyer. We advise people that it is almost always in a suspect’s best interests to remain silent in those circumstances, as the Constitutional gives a person a right to do. It may be a good idea to talk to the police at some point, but it is generally smarter to do so once the suspect has a better idea of the allegations, issues and the process.

The police use a variety of tactics to get people to make statements that will incriminate themselves. However, not all such methods are legal. In order for a confession to be admissible in court, it must be voluntarily given. This does not just mean the police cannot beat a confession out of a suspect. It also refers to situations where the police use improper threats or promises to elicit a statement. In a recent robbery and attempted murder case near Jacksonville, Florida, the police were investigating a shooting and brought the suspect in for questioning. At first, the suspect denied any knowledge of the shooting. The police officers pressed the suspect and ultimately implied that if the suspect told the truth, as the police saw it, the suspect would likely face lesser felony charges. The suspect changed his story and admitted to involvement in the shooting.

The criminal defense attorney filed a motion to suppress the defendant’s statement arguing it was not voluntary. The appellate court agreed. The police are not allowed to make improper promises of leniency to get the defendant to make a statement. Therefore, the police cannot suggest that the defendant would face lesser charges or receive some other benefit for making a statement.

The Fifth Amendment Protects a Person’s Right to Remain Silent Before Arrest and Before Miranda Warnings

Published on: May 6, 2016 | by Lasnetski Gihon Law

Most people understand that everyone has a Constitutional right to remain silent. This is a right afforded to people in the Fifth Amendment to the U.S. Constitution and the Florida Constitution. As many people are aware, this means that the police cannot force you to give a statement or say anything that might be used as evidence against you in a criminal case. It also allows you to refuse to testify at a criminal trial. If you do exercise your right to remain silent upon arrest, after arrest or at trial, the state cannot use your silence against you. That means the state cannot imply during your criminal case or at trial that you remained silent because you are guilty. The state cannot make any suggestion to the jury about your decision to remain silent or why you made that decision.

One question that occasionally comes up is when this right to remain silent becomes relevant. It is clear that a person is protected by the Fifth Amendment upon an arrest, in all pretrial proceedings and at the trial. Does a person have the same protection before an arrest?

In a murder case near Jacksonville, Florida, the police responded to a shooting and found a dead body in the same house as the defendant. The police asked the defendant several questions about the situation, but the defendant did not answer. At this point, the defendant was not under arrest and had not been informed of the Miranda warnings which discuss the right to remain silent, among other rights. The defendant was ultimately arrested for murder. At the trial, the state put the police officer on the stand and asked him a variety of questions about how he asked questions of the defendant at the crime scene, but she remained silent. The state used this testimony to suggest her silence was evidence of her guilt. The defendant did not testify at the trial.

Police in Florida Interrogating a Suspect Have to Alert Suspect That His/Her Attorney is Present

Published on: April 25, 2016 | by Lasnetski Gihon Law

Most people in Florida are aware of the fact that when the police take someone into custody, that person has a right to remain silent and not talk to the police and have a right to an attorney before or during any discussion with police. The police are required to notify a suspect of these rights before taking any statement from a suspect in custody. However, there are times when the police are investigating a crime and ask a suspect to come to the police station and voluntarily speak to the police. If the suspect agrees, that suspect is likely not considered to be in custody, and the police do not have to read the suspect his/her rights about remaining silent and having an attorney. Many suspects do voluntarily speak to police and give incriminating statements without ever hearing their Miranda rights because they were not technically in custody. However, an incriminating statement made to the police is equally detrimental, whether the suspect was previously arrested or met with the police voluntarily and without being in custody.

A situation sometimes arises when a suspect is speaking with the police and his/her lawyer shows up or calls the police department to try and talk to the suspect/client or stop the questioning altogether. Do the police have to alert the suspect that his/her lawyer is outside or calling on the phone wanting to speak wit the suspect? Does it matter if the suspect never exercised his/her right to remain silent and request an attorney?

On legal shows on TV, you often see a police officer interrogating a suspect and then his/her lawyer barges into the room to stop the questioning. It does not work that way in real life. No lawyer is getting back to the interrogation room without one or more police officers letting the lawyer get back there. More likely, and how it seems to work in Jacksonville, Florida, the lawyer calls the police department or walks into the reception area and is told he/she cannot have access to the client, and the questioning continues.

House of Representatives Panel Voted to Pass a New Email Privacy Bill

Published on: April 21, 2016 | by Lasnetski Gihon Law

As technology advances with computers and cell phones and newer forms of communication, old laws and cases do not always properly address how our privacy rights might be affected, and how the government can look at or seize our data in criminal cases. We have written previous articles about when and how the police can obtain data on cell phones before and after an arrest. In many cases, the state has broad authority to access this information because search and seizure case law does not properly characterize the data and the methods used to acquire the data.

Emails are another form of data that are often the coveted by police officers looking to investigate criminal activity quickly and without the checks and balances found in search and seizure law. However, the House of Representatives recently took steps to pass a law that would protect old emails. An old law that people probably are not aware of allowed the government to look at old, private emails if they are more than six months old with only a subpoena, which does not involve much, if any, judicial oversight. It’s hard to believe that the government practically had free reign to look at any of your old emails as long as a relatively short period of time has passed. This was an obsolete law that was written before emailing and texting became common forms of communication. However, this new law would require the government to get a warrant signed by a judge to see any emails, text messages, electronic photographs and instant messages no matter how old they are. The arbitrary six month waiting period to avoid the warrant requirement would be eliminated.

As much of a no brainer as this new law seems to be, keep in mind that this proposed law still needs to be voted on by the full House of Representatives and then move through the normal channels from there. So, while it seems like an obvious law to fix a blatant violation of the constitutional right to privacy, depending on this House of Representatives to do anything helpful is a shaky proposition. Hopefully, this will be an exception, and it will become the law quickly. In the meantime, the government can still read any of your emails and text messages whenever they want and without a warrant as long as they are more than six months old.