Articles Posted in Misdemeanor Crimes

Starting July 1, 2024, the laws relating to Racing on Highways in Florida are changing.  The Florida legislature has increased the penalties and created new provisions that will affect anyone charged with this crime.  

The crime of racing on the highways includes a lot of activities including racing, street takeovers, stunt driving, speed exhibitions and more.  It applies to highways, roadways, and parking lots.  An officer doesn’t need a warrant to make an arrest.  And even a first time offense will result in a mandatory driver license revocation for at least 1 year. 

Close-up of the U.S. ConstitutionEvery person charged with a crime in the United States is entitled to a speedy trial.  This is a federal constitutional right guaranteed by the Sixth Amendment to the United States Constitution which states, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”  The State of Florida also made this a state constitutional right in Section 16 of the Florida Constitution, which states that in all criminal prosecutions the accused shall, upon demand…shall have the right…to have a speedy and public trial…  

The Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.191, which provides that every person charged with a crime be brought to trial on a misdemeanor within 90 days of arrest on a misdemeanor and within 175 days of arrest on a felony.  The Rule states that the time period commences when the person is taken into custody, which is defined as “when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged;”  There are exceptions to these timeframes and the most common exception is when the person charged waives their right to a speedy trial.  There are valid reasons to waive that right.  Basically, a person is not entitled to have their cake and eat it too.  In other words, a person charged with a crime is going to need time to investigate the case, to potentially take depositions, to conduct legal research, to file motions and have motion hearings, and to otherwise conduct pretrial negotiations and/or litigation.  So, if a person demands a speedy trial, that person is necessarily not going to have additional time to prepare a defense.  So, in most cases, a person charged is going to move to continue the case to allow for preparation.  However, what happens when the time has expired before the person has waived his or her right to a speedy trial?

In State v. Williams, Ms. Williams was arrested on October 8, 1999.  The State filed formal charges on May 3, 2000, which was 206 days after her arrest.  Ms. Williams filed a motion for discharge alleging that the State failed to bring her to trial within the time allowed by Florida Rule of Criminal Procedure 3.191.  Under subsection (p)(3), the defendant can file a notice of expiration of speedy trial and then the trial court must conduct a hearing within five days and set the case for trial within 10 days.  This is referred to as the “recapture period.”  So, the trial judge treated the motion for discharge as a notice of expiration of speedy trial and held a hearing and scheduled the case for trial within 10 days.  Ms. Williams objected, arguing that she should have been discharged because the time frame had expired.

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures.  Police officers can’t simply walk up to any citizen and detain or arrest that person.  There must be reasonable suspicion or probable cause that the person has, is, or is committing a crime in order to detain or arrest them. 

Typically, if a police officer wants to make an arrest, they must seek an arrest warrant.  In order to obtain an arrest warrant, the officer must establish to a judge that there is probable cause that a crime occurred and that the defendant committed the crime.  The judge will then issue an arrest warrant if the judge determines there is probable cause exists.  

However, a police officer does not always have to obtain an arrest warrant in order to make an arrest.  There are exceptions to the arrest warrant requirement.  Florida Statute §901.15 lays out when an officer can make an arrest without an arrest warrant. There are many exceptions to the arrest warrant requirement.  For example, an officer doesn’t need a warrant to arrest a person for driving under the influence.  The officer can simply make the arrest once observing all of the elements of the offense.

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.

In Florida, most people are aware that if your driver’s license becomes suspended for any reason, it is a crime to drive a vehicle. It is usually a misdemeanor crime that is not treated too harshly in court. However, multiple driving with a suspended license arrests and convictions can prolong the length of the suspension which can lead to more driving with a suspended license arrests and more suspensions, and so on. Also, if you get a few driving with a suspended license convictions, you can be charged with a felony for the next one, and people often get jail time or even prison time for these charges in felony court.

In a driving with a suspended license case just south of Jacksonville, Florida, a defendant was arrested while riding a gas powered bicycle after his driver’s license had been suspended. The criminal defense lawyer filed a motion to dismiss the charge. One can only be convicted of driving with a suspended license if he/she is operating a “motor vehicle”. The criminal defense attorney properly established that, under Florida law, a “motor vehicle” excludes vehicles moved solely by human power and also motorized bicycles and wheelchairs.

The prosecutor disagreed arguing that this gas powered bicycle is different from a motorized bicycle under Florida law. A separate Florida statute defines a “motorized bicycle” as one that has an “electric helper motor” that cannot travel more than 20 miles per hour. The police officer said the defendant was traveling in excess of 30 miles per hour.

In Florida, any person who goes onto property without authorization, or after having been warned not to be on the property, may be subject to a trespass charge. Trespass is usually a misdemeanor in Florida, however it can be a felony if the trespasser is armed with a gun or other dangerous weapon. Florida also has a special trespass statute for schools. The Florida school trespass statute deals with anyone who has no business being on school grounds and any student who has been suspended or expelled. A person who has been suspended who goes back to the school for some reason, without authorization, can be arrested for trespass.

Some schools take this statute perhaps too seriously. In a school trespass case near Jacksonville, Florida, a middle school student was sent to the principal’s office for unruly behavior. The principal suspended the student immediately and told him to wait in the office until his mother came to pick him up. The student left the office at some point to hang out in the school courtyard. When school officials saw the student in the courtyard, police were called and he was arrested for trespass.

The criminal defense lawyer filed a motion to dismiss the trespass charge. The defense attorney argued that the student could not be guilty of trespass because he was authorized to be on school property, in the office, until his mother arrived. The court disagreed. A property owner can limit access to the property to certain places on the property. If the person violates that limited access, he can be properly arrested for trespass.

In Florida, the defense of necessity may be available for a defendant charged with a variety of criminal charges. When using this defense, a defendant is basically saying that he/she did commit the crime, but did so because it was necessary due to some urgent circumstances. The necessity defense has a few conditions that must be met: 1) the defendant reasonably believed the criminal act was necessary to avoid imminent death or serious injury to him/herself or others, 2) the defendant did not intentionally put him/herself in the position that resulted in the need to take action, 3) the criminal act was the only adequate method to avoid the problem, 4) the harm to be avoided was more serious than the criminal conduct, and 5) the defendant ceased the criminal conduct as soon as the threat dissipated.

There are situations where a necessity defense would be a valid defense. If a person needed to drive while impaired or with a suspended license to get a person with a serious and emergent health problem to the hospital, that might qualify. However, this defense often fails with conditions one and three.

For example, in a recent case near Jacksonville, Florida, two guys went out to a bar. One of them got too drunk to drive, and the defendant had a suspended driver’s license. The defendant decided to drive home. He was stopped by police and arrested for driving with a suspended license. His criminal defense attorney tried the necessity defense to defend the case. It failed. The problem with condition number one was that being drunk is not a threat that involves the risk of imminent death or serious bodily injury. If the friend was so drunk that he was getting seriously ill, this condition might have been satisfied. However, just being too drunk to drive did not qualify. The problem with condition number three was that there were other reasonable and adequate alternatives, such as walking, calling a friend for a ride or calling a taxi. Because this defendant’s necessity defense did not come close to satisfying those two conditions, the defendant was convicted of driving with a suspended license. Likewise, if the drunk guy drove because the defendant’s license was suspended and he got arrested for DUI, his necessity defense would have failed for similar reasons.

In Florida, the police cannot just arrest any person he/she has probable cause to believe has committed a crime. A police officer does not need an arrest warrant signed by a judge to arrest a person for a felony charge or a misdemeanor that has occurred in his/her or another police officer’s presence. However, a police officer cannot always arrest a person for a allegedly committing a misdemeanor crime that he/she or another officer did not see unless a judge has signed an arrest warrant. One exception is shoplifting or retail theft cases. Most shoplifting/retail theft cases occur in a store where a loss prevention officer or other store employee sees the theft or observes the suspect trying to leave the store without paying for an item(s). The loss prevention officer normally detains the suspect until the police arrive. Although the police officer was not present when the shoplifting crime allegedly occurred, the police officer is allowed to rely on the store employee’s statement and any other evidence (such as a store video) to make an arrest without first getting an arrest warrant. On the contrary, if a witness approached a police officer and said a suspect was in possession of a small amount of marijuana (less than 20 grams of marijuana) and even showed the police officer recent incriminating pictures, the police officer could not arrest the suspect without an arrest warrant if the officer did not observe the marijuana.

In a recent shoplifting case near Jacksonville, Florida, a loss prevention officer at a department store observed the suspect select some items and leave the store without paying for them. The loss prevention officer, who is not a police officer, called the police and gave a description of the suspect and his vehicle to the police officer. The police officer stopped the suspect and arrested him for shoplifting. While searching the vehicle for the stolen items, the police officer found methamphetamine. The suspect was arrested for petit theft (a misdemeanor) and possession of methamphetamine (a felony).

The criminal defense lawyer moved to dismiss the charges arguing that the police officer could not stop and arrest the defendant for a misdemeanor charge outside of the police officer’s presence. However, Florida law has a specific exception to this rule for shoplifting. Since the police officer could stop the suspect for the shoplifting charge and had a right to search for the stolen items, the shoplifting charge and the methamphetamine possession charge were both valid.

In a recent case near Jacksonville, Florida, the defendant entered a no contest plea to solicitation of prostitution. The crime of solicitation of prostitution occurs when a person offers to engage another person in sexual activity for hire. It is considered a minor second degree misdemeanor crime in Florida. In this case, the judge sentenced the defendant to probation and community service but also added a $5,000 fine. In most misdemeanor cases, including more serious misdemeanors, there is either no fine or a much smaller fine (court costs are another matter). For second degree misdemeanors, $500 is normally considered the highest end for fines, and many cases result in no fines. However, the prostitution statute specifically mandates a $5,000 fine for defendants who are convicted of, or enter guilty or no contest pleas to, the charge of solicitation of prostitution. So, while it is definitely unusual for a judge to impose such a large fine for a crime that is considered relatively minor, this fine is actually in the statute.

Because of the unusual nature of the fine, the criminal defense lawyer appealed the sentence to a circuit court judge claiming that it violated the Eighth Amendment to the Constitution. The Eighth Amendment provides that a judge shall not impose a sentence that is cruel and unusual and specifically prohibits imposing excessive fines. Eighth Amendment challenges to criminal sentences rarely work. If a sentence is legal under the Florida laws, or federal laws in federal cases, chances are an appellate court is not going to rule that the sentence is excessive or cruel and unusual.

However, this case was an exception. A fine used as a punishment is considered excessive if it is grossly disproportionate to the severity of the crime. In other words, judges are not permitted to impose very high fines for minor criminal conduct. In this case, the appellate judge ruled that the $5,000 fine was excessive and unconstitutional, even though it was specifically mandated in the statute. Since finding a statutory provision unconstitutional is a fairly drastic and uncommon event, it is certainly possible that a higher appellate court will take up this issue.

In Florida, it is illegal for a person who has been arrested or detained by the police to give false identification information to the police. This is a misdemeanor crime in Florida. This charge usually comes after a situation where the police either arrest someone or suspect someone is committing a crime and detains him/her. The police officer will ask the suspect for his/her name and perhaps date of birth to run him/her in the computer to check for outstanding warrants. If it is determined that the suspect gave false information, the police officer may arrest the suspect for providing false information to the police, among other crimes
However, this criminal charge will not be valid if the initial arrest or detention of the suspect is not legal. If the police officer does not have a legal basis to stop the suspect or arrest him and then the suspect gives false identification information to the police, the criminal defense lawyer should be able to get the charge thrown out even if the suspect did in fact provide false information to the police. Therefore, in a situation where a police officer suspects a person of committing a crime without specific evidence, detains that person and the person gives a false name, the person is not technically guilty of the crime because the initial detention would not be considered lawful.

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