Articles Posted in Felony Crimes

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In Florida, it is a crime for a person to drive a motor vehicle if his/her license is suspended and he/she knows it is suspended.  That last part is important because it is only a civil traffic infraction to drive with a suspended license in Florida if the driver is not aware of the license suspension.  In many cases, for first time violators, whether a person gets the civil citation or a criminal charge for driving with a suspended license will depend on how the officer who pulls the driver over feels.

If the state believes the driver knew he/she had a suspended license and drove anyway, the state will charge the driver with a crime.  Normally, it is a misdemeanor crime.  However, if a person has two or more prior convictions for driving with a suspended license, the state can charge the person with a third degree felony.  For the first or second violation, the penalties are usually minimal, especially if the defendant can obtain a good license while the case is pending.  Additionally, the state will often charge a person with the misdemeanor crime even if he/she has a few prior convictions because most prosecutors understand there are much more serious cases that should occupy their time.  However, once a person gets several of these convictions or once the person has been charged with a felony, jail time and/or future felony charges are a real possibility for subsequent violations.

A person’s driver’s license can be suspended for a few reasons, including a DUI, a marijuana possession conviction, unpaid tickets, too many points on the driving record, auto insurance issues and other reasons.  Judges often consider driving on a suspended license more or less serious, and more or less deserving of jail time, depending on the reason for the underlying suspension.  For instance, many judges in Florida will generally order jail time if a person is driving while his/her license is suspended due to a recent DUI conviction.  On the other hand, judges usually are not too concerned about suspensions due to unpaid tickets, especially if they are paid in a reasonable period of time.

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People in Florida litter all of the time.  You cannot drive more than a block around here without seeing trash that was discarded along the side of the road.  Most people probably assume that the penalty for getting caught littering is a fine.  There are signs along some roads which indicate what the fine is for littering, not that we have ever seen a police officer enforce them.  Littering is a noncriminal violation that can only be punished with a fine if the amount of trash or debris is small.  Under Florida law, if a person litters and the weight of the trash is no more than 15 pounds, the penalty is up to a $100 fine.  However, as the weight or volume of the trash becomes greater, the violation is a criminal violation and the potential penalties become more serious.

At 15 to 500 pounds, littering becomes a first degree misdemeanor.  This carries a penalty of up to 12 months in jail.  No one is likely to go to jail in Florida for a misdemeanor littering charge, although it is theoretically possible, but the statute specifically mentions that the defendant must be ordered to do community service which would involve picking up trash.  If the littering was done by throwing the trash out of a vehicle, three points are added to the defendant’s driving record with the DMV.

If the littering involves more than 500 pounds or 100 cubic feet in volume, it becomes a third degree felony.  This crime carries a maximum sentence of five years in prison in Florida.  Again, prison is unlikely for a felony littering charge, unless serious damage was done, but the statute specifically mentions penalties that the judge must impose.  The defendant must remove the litter and repair or pay for any damages caused by it.  The defendant must also perform community service to help restore the area affected or another area damaged by littering.  The defendant must also pay three times the amount of damage caused by the littering to someone who was damaged as a result of the felony littering.

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In Florida, there is a criminal statute that addresses the neglect of a child.  The statute is problematic because it is broadly written.  The effect is that police officers have very broad discretion to arrest a person for child neglect.  And prosecutors similarly have wide discretion when deciding whether to file charges.  As a result, a police officer’s opinion, normally based on very limited information, about how a parent should raise or deal with a child takes precedence over the parent in response to situations that may or may not involve actual negligence.

The Florida statute does not just apply to parents.  Any caregiver who neglects a child can be charged with child neglect in Florida.  Child neglect is a serious felony charge.  It becomes more serious if the child is injured as a result of some incident relating to the alleged neglect.  If there is no injury, child neglect is still a third degree felony.  It is a serious charge for a crime that may be reasonable parental conduct that a police officer just disagrees with.

For example, we have handled several cases where a parent decides a child or children are old enough to be left alone at home for a period of time.  Something happens, maybe there’s a knock at the door or the kid breaks something and cannot reach the parents, the kid panics and ultimately the police respond to the home.  If whichever police officer responds to this situation decides the kid should not have been left alone, not knowing the history and circumstances of the kid and the parents, then the parents will get arrested for a serious felony charge.  And we find that some police officers do not like responding to situations and coming away empty handed.  The old- I will arrest these people and let the lawyers and the judge figure it out approach.  This is not an uncommon scenario.

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In Florida, and likely in all of the other states as well, it is illegal for a person to prevent another from reporting a crime or otherwise providing information about criminal activity to the police or in court.  This is part of a more inclusive statute dealing with witness tampering.  The Florida law makes it illegal for a person to use force, intimidation or threats to cause another person to avoid testifying or providing evidence in a case, damage or alter evidence, avoid a subpoena or testify falsely.  It is also illegal to hinder a person from reporting a crime.  This is a felony crime in Florida, and it becomes a more serious felony the more serious the underlying issue is.  For instance, a person can be charged with a life felony of tampering with a witness if the person is obstructing a witness relating to certain serious first degree felony crimes.

This situation can come up in almost any case, but it comes up more frequently in domestic violence cases.  Since the parties know each other in domestic battery cases, the dynamic is one where it is more likely that the suspect will takes steps to try and prevent the victim from calling the police, giving a statement to the state or coming to court to testify.  If force, threats or intimidation are used, this could be a separate crime.

A person can be guilty of tampering with a witness even if the witness or victim has not taken any steps to contact the police or report a crime.  In a recent case near Jacksonville, Florida, the defendant was being abusive to his daughter.  The kid’s mother and sister observed the incident.  After some yelling, the defendant took the cell phones from the older sister and mother and broke one of them.  He kept the other.  He told them they could not call the police on him for his abuse.  No one had attempted to call the police and report the abuse before the defendant took the cell phones.  The defendant was charged with tampering with the two witnesses for preventing them from calling the police.

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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.