Articles Posted in Felony Crimes

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We at Shorstein, Lasnetski & Gihon do not handle much in the way of family law matters, but we came across a case that illustrates a possible connection between an order that is common in divorce cases and a potential criminal violation in Florida courts.  In divorce cases where a minor child is involved, custodial rights will have to be worked out between the parties or determined by the judge.  Obviously, custody issues regarding one or more children can be very contentious in divorce cases, along with other issues such as alimony and division of property.  One or both parties may not be happy with the outcome and how much time he/she gets with the child or children after the divorce is final.

When it comes to family law child custody orders, violating the order can have serious consequences.  In a case just south of Jacksonville, Florida, the parents divorced, and the judge ordered shared custody between the parents.  The father violated the order and took the child away without allowing the mother to have contact with the child for several months.  When the father and child were found, the father was arrested for kidnapping and concealment of a child contrary to a court order.  The concealment charge is the one related to the family court order.  That Florida statute makes it a crime to take a minor outside of the state of Florida or conceal the location of the child in violation of a custody order of which the parent is aware.  A violation of this statute is a third degree felony which is punishable by up to five years in prison.

The criminal defense lawyer moved to dismiss the concealment charge arguing that the custody order did not require the father to disclose the child’s location to the court.  This argument was rejected.  A concealment crime occurs if a parent conceals the child’s location from the court or the other parent who is entitled to custody if it is in violation of an order.

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A recent encounter between a suspect and a police officer near Jacksonville, Florida illustrates that police do not have free reign to question suspects and detain them based on mere suspicions or the fact that they do not like a person’s answers.  In light of recent police shootings and some people’s automatic defense of police regardless of the facts or the relevant law, it seems as if some people believe that it is the obligation of citizens to comply with police no matter how unlawful the police conduct might be.

In a recent cocaine possession case, a police officer observed the suspect standing next to a car in the middle of the road.  When the police officer approached, the car fled but the suspect remained on foot.  The police officer asked the suspect his name, and he gave a name that the police officer later determined was a false name.  Once the police officer ran the name and checked with another individual nearby who knew the suspect, he determined that the name was false.  He arrested the suspect at that time.  After the arrest, the police officer searched the suspect and found that he was in possession of cocaine.  After arresting the suspect for possession of cocaine, he got the suspect’s true name and learned that he had a separate felony warrant outstanding.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine based on the fact that the defendant was illegally detained and illegally arrested.  The appellate court agreed.  The defendant was not breaking the law when the police officer approached him.  The police officer is permitted to ask questions of anyone, but when the defendant gave a false name, that was not against the law either.  Giving a false name can be a misdemeanor crime in Florida, but only if the defendant was lawfully detained or arrested at the time.  At the time the defendant gave the false name, the police officer did not have any legal reason to detain or arrest him.  Therefore, giving a false name at that time was not a crime under Florida law.

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In Florida, it is a crime to make a threat to kill or cause bodily injury to someone or someone’s family member.  In fact, it is a very serious second degree felony punishable by up to 15 years in prison if the threat is communicated to the victim or his/her family in writing.  With the popularity of social media and sites like Facebook, Twitter and many other sites that allow people to communicate with others over the internet, people should understand that “in writing” includes electronic communications.  Therefore, a person could make a threat over Facebook to kill or injure someone and send it to the other person and face a serious felony charge as a result.  These “written” threats are more serious than verbal threats under Florida law, and of course, generally easier to prove.

There are some limitations to this law.  In a recent case near Jacksonville, Florida, a defendant sent out a post on Twitter saying he was going to shoot up his school.  When someone sends such a post on Twitter, anyone following the author can see it, and those people can send the post to anyone else.  In theory, anyone on Twitter could eventually see the post and where it came from.

Not surprisingly, this post made the rounds, and the kid who wrote and sent it was arrested for making written threats, but not before the school was notified, the students were evacuated and many police officers responded to the school.

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In Florida, a person who gets sentenced to jail might be able to take advantage of a work release program for inmates if the jail offers such a program. For instance, in Jacksonville, the Duval County jail allows certain inmates to leave the facility to go to an approved job during normal work hours. The inmate must have the job and the company pre-approved by the people running the work release program. Once approved, the inmate is allowed to leave the jail in the morning, work all day and return to the jail in the evening after work. It is a great way for an inmate to keep his/her job while incarcerated and also to spend a good portion of his/her jail sentence outside of the jail.

There are risks to entering such a program. An inmate who does not follow the rules of the work release program can be charged with escape, which is a serious felony crime in Florida. Hopefully, if the inmate is late to work or late getting back to the jail every now and then due to traffic, the bus schedule or some other legitimate reason, there are no adverse consequences. However, if an inmate in the work release program commits a more serious and intentional violation, it could result in a more serious penalty.

When a person is in the work release program and at his/her job, that person is still considered an inmate under Florida law, and the time at work is still considered confinement. Any person who escapes confinement or does not stay within the limits of his/her confinement is guilty of escape in Florida.

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In Florida, the crime of burglary involves a person breaking into or entering a place with the intent to commit a theft or other crime inside. The crime of burglary in Florida can get a little complicated based on the type of place that is entered, where the defendant was and what happened once inside. However, what is clear is that a person does not have to break in to be guilty of burglary. Simply going into a place without permission to steal something or commit certain other crimes inside is normally sufficient for a burglary conviction.

However, under Florida law, it is not a burglary if a person enters a place to commit a crime that is open to the public. In a recent burglary case near Jacksonville, Florida, the defendant entered a 7 Eleven store during normal business hours and stole money after threatening the cashier with a gun. The prosecutor charged him with several crimes including burglary with a weapon (the penalties for burglary with a weapon are more severe in Florida than a burglary without a weapon). The defendant was convicted of this charge, but the criminal defense lawyer appealed.

The conviction for burglary was reversed. It is a defense to burglary in Florida if the place that was entered was open to the public. That was the case here. Since the defendant walked into the store just as any customer would be permitted to do and stayed in an area where customers were allowed to be, it was not a burglary. This looks like a case where the prosecutor overcharged the defendant and wasted state money and resources on an extraneous charge as the prosecutor clearly had other serious charges to file that also come with severe penalties.

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In Florida, vehicular manslaughter cases are very serious. That seems obvious, but states and counties treat these crimes differently depending on how prosecutors’ offices and judges view them. Vehicular homicide often involves a defendant who did not intend to commit a crime and has never been in trouble before doing something with the most tragic results. Some places view this as worthy of probation. Others view it as worthy of long prison sentences. In Jacksonville, Florida, they are most often viewed in the latter manner and come with significant prison sentences.

Most vehicular homicide cases involve a person who causes a crash that results in death while being impaired from alcohol or drugs. In that case, the police officer will investigate the driver at the scene, do field sobriety exercises if practicable, request a breathalyzer test after the arrest at the jail or request that blood be drawn for testing if the driver goes to the hospital.

However, the state can charge a person with vehicular homicide even if no drugs or alcohol was involved with the crash. The law in Florida distinguishes accidents involving negligence from those involving reckless driving. Negligence cases normally involve a driver violating one or two traffic laws resulting in a crash. For example, if a person was speeding, ran a red light or pulled out in front of another vehicle and caused a deadly crash, that is likely to be considered negligence. Negligent conduct results in traffic tickets and lawsuits but not criminal charges. If a person’s driving goes beyond that kind of negligence and is particularly egregious, it can be considered reckless. For instance, driving 65 miles per hour in a 45 miles per hour zone and causing a crash is probably going to be considered negligence given how common speeding is. However, driving 85 mph erratically in a 45 mph zone in the rain certainly comes closer to recklessness and criminal behavior. Ultimately, the police decide if it is sufficient for an arrest, the prosecutor decides if it is sufficient to file criminal charges and a judge or jury decides if the defendant is in fact guilty of the crime.

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The Stand Your Ground law in Florida is a much publicized area of Florida criminal law that addresses when a defendant can gain immunity for using force and causing death or serious injury in self defense. It is not available to every defendant who is charged with a serious violent crime, but it can be a very helpful tool when a defendant is eligible to assert the Stand Your Ground law in Florida.

A recent murder case south of Jacksonville, Florida illustrates a situation where a defendant was not allowed to assert the Stand Your Ground law. As an initial matter, a defendant charged with a violent crime can only use the Stand Your Ground law in Florida if he/she was facing an imminent threat of death or serious injury which prompted him/her to use force. “Imminent” under Florida law is understood to mean something that is about to happen, not something that is expected to, or might, happen some time in the future. In this case, the defendant and his co-worker had a conflict at work. The victim told the defendant that after work, when he sees the defendant, he is going to stab him. Thereafter, the defendant armed himself with a knife and confronted the victim. The two got into a fight, and the defendant stabbed the victim, killing him.

The criminal defense lawyer for the defendant argued that the defendant stabbed the victim in self defense as he was legitimately scared that the victim would stab him, as he said he would earlier in the day.

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As criminal defense lawyers in Jacksonville, Florida, we receive many calls from people who had a criminal case in their past and are suffering the effects of it many years later. They are finding it difficult to get a job or to get into school or even to rent an apartment. For these people, we can help by sealing or expunging their prior criminal charge, if they are eligible. However, the rules for sealing or expunging a criminal charge in Florida are fairly strict, and many people are not eligible. if you have a criminal record and want to know if you are eligible to have a prior criminal case sealed or expunged, feel free to call us with questions.

It is one thing to have to disclose a prior criminal record on an employment application (most people expect that), but a criminal record often comes up when someone is trying to rent a house or apartment. Prospective tenants do get rejected based on criminal records, even if the prior criminal charge was minor and/or occurred many years ago. The federal government says this practice violates the law. The United States Department of Housing and Urban Development has issued a statement indicating that is is illegal for landlords to reject a tenant applicant based solely on an arrest record or prior conviction(s). This practice violates fair housing laws when a landlord does not consider how serous the prior crime(s) is and whether the applicant will have a negative impact on other tenants. Obviously, people with minor criminal records and people who have not had any trouble with the law in many years are less likely to be a problem to other tenants. Those individuals should have their applications for housing properly considered just like anyone else without a criminal record. To deny the application for anyone with a criminal record violates fair housing laws.

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On television shows, it is not uncommon to see prison guards helping inmates do things they should not do. Hopefully, this is something that happens more on TV than in real life. However, there are cases where prison and jail guards help inmates smuggle drugs and other contraband into the prison and facilitate fights between inmates. There was also a well publicized case from New York a year or two ago where a prison guard helped some dangerous inmates escape a maximum security prison.

In a case near Jacksonville, Florida, a prison guard was charged with culpable negligence, official misconduct and accessory after the fact for enabling an inmate to attack another inmate. In this case, the corrections officer allowed one of the more dangerous inmates to leave his cell without handcuffs, enter the cell of the victim and close the cell door. The attacker then stabbed the victim. The officer then mopped up the blood in the victim’s cell. The problem for the corrections officer is that another inmate observed the entire incident including the officer allowing the attacker to move freely through opened doors in the prison. The other problem is that the inmate witness was on the phone describing the incident as it occurred, and all such calls from the prison are recorded.

The prosecution admitted the evidence of the recorded phone call describing the officer’s actions and the attack during the trial. The criminal defense lawyer argued that the recorded phone call was inadmissible hearsay and should not be admitted during the trial. The court disagreed and held that the recorded phone call fell under an exception to the hearsay rule which involves people describing observed events as they occur. The law finds that unplanned statements describing an event that are made as the event is occurring are typically reliable. Additionally, the recorded phone call was not “testimonial” as it was spontaneous and not a statement given for use later at trial. Therefore, the recorded phone call was admissible to essentially seal the conviction of this corrections officer.

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In Florida, vehicular homicide is a very serious felony offense that normally results in a prison sentence if the state can prove its case. Most of these cases deal with someone who is driving while impaired from alcohol and/or drugs and causes a traffic crash that results in the death of another person. If the state can prove that the driver was impaired so that his/her normal faculties were compromised, such as sight, judgment, coordination, and the driver causes a crash that results in a death, a vehicular homicide charge will likely follow.

There are serious traffic crashes that occur every day in Florida. Most of them are the result of one or more people driving poorly and violating some traffic law causing a crash. People speed, change lanes without looking, run red lights and commit other traffic infractions that result in serious crashes. It is always a judgment call, but if the person who causes the crash commits a routine traffic infraction, criminal charges are not likely. For instance, regular speeding, running a red light, improper lane change are generally not the kinds of things that result in criminal charges after a serious crash. Those are generally considered negligence cases that result in traffic citations and civil lawsuits.

However, even if no alcohol or drugs were involved, if the driving could be considered reckless, criminal charges can be brought. Recklessness has a legal definition, but it is a matter of interpretation. Basically, it is a judgment call, and it depends on the circumstances, although the more serious the crash and the more serious the injuries, the lower the bar. Also, the more traffic laws that are violated, the more likely a police officer or prosecutor (and ultimately a judge or jury) will consider the driving to be reckless. Simply running a red light will rarely be recklessness that is enough for a criminal case. However, running a red light plus driving 30 miles per hour over the speed limit while texting on a cell phone could certainly be considered reckless driving if it results in a serious accident.