Articles Posted in Violent Crimes

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Kidnapping is a serious felony crime in Florida that comes with potentially serious penalties. When most people think of kidnapping, they probably assume it requires a suspect to take a person against his/her will, transport them somewhere and hold them without letting them leave for some period of time. That would be kidnapping, but the Florida law requires less than that for a conviction. In Florida, the crime of kidnapping is committed when a person confines or abducts a person against his/her will by force, threat of force or secretly for an illegal purpose such as holding for ransom, to commit a felony or to harm the person. Kidnapping is a first degree felony in Florida punishable by up to life in prison.

Notwithstanding what most people think kidnapping is, that definition is fairly broad and can include a lot of conduct that does not last very long. For instance, in a recent kidnapping case south of Jacksonville, Florida, the defendant committed an armed robbery of a liquor store. Armed robbery, in and of itself, is a serious felony crime in Florida, but in addition to robbing the store with a gun, the defendant also tied the cashier’s hands behind his back and left him that way as he robbed and left the store. The cashier had to seek help to get untied.

Because he tied up the cashier and left him there, the state charged him with kidnapping in addition to armed robbery which resulted in an extra 20 years in prison. The criminal defense lawyer argued that tying the cashier up was just part of the armed robbery and not sufficient for an entirely separate charge of kidnapping. This is a valid argument, but the court determined that it can also be kidnapping under certain circumstances. The test for whether a kidnapping charge can be added is whether the conduct was a slight part of the crime and inconsequential, whether the conduct was inherent in the underlying crime and whether the conduct has some significance independent of the underlying crime, such as making it easier to commit the crime or decreasing the risk of being caught. In this case, the court noted that armed robbery can be committed without tying up the victim. By doing so, the defendant committed a separate and significant act that helped him commit the crime and was designed to help him get away with it. As a result, tying the cashier up was found to be significant and independent of the underlying armed robbery so that an additional charge of kidnapping was valid.

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Due to the recent, well-publicized George Zimmerman verdict, the Florida Stand Your Ground law has received a lot of attention both in Florida and across the country. Much of that attention and focus has been partially or completely wrong. One thing is for sure- a lot of people do not understand the Florida Stand Your Ground law. We have posted several articles about it since the law came into effect a few years ago. They can be searched on this criminal defense attorney blog.

Due to the circumstances of the George Zimmerman/Trayvon Martin case, the Florida Stand Your Ground law has only been discussed in the context of a murder or manslaughter case since deadly force was used in that case. However, the Florida Stand Your Ground law can also be asserted by a defendant in a case where non-deadly force was used.

In a recent case involving the crime of battery, which is a misdemeanor in Florida, there was evidence that the alleged victim started the fight by hitting the defendant first. After the alleged victim punched the defendant, the defendant beat up the alleged victim. Based on these facts, the defendant filed a Stand Your Ground motion asking the judge to dismiss the case. The judge denied the motion because the judge said the Stand Your Ground law in Florida only applies to deadly force cases. Even some judges do not understand the Stand Your Ground law.

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Most people’s exposure and understanding of DNA evidence comes from television shows, books or brief news stories. DNA evidence is not used, or even attempted to be obtained, in the overwhelming majority of cases. However, there are criminal cases where DNA evidence can be a critical element to the case.

In a recent armed robbery and battery case near Jacksonville, Florida, a convenience store was robbed by two people wearing masks. They jumped into a vehicle that later crashed. The police found the crashed vehicle, and recovered the masks inside. The police were able to obtain DNA from the masks.

At the trial, the state’s expert testified that the DNA of at least two individuals was recovered from the masks. The expert compared sixteen genetic markers and performed an analysis on the results. He testified that the defendant could not be excluded as a contributor of the DNA in one of the masks as fifteen of the sixteen genetic markers matched the defendant. However, due to the limited DNA that was recovered, the expert was not able to do a full analysis of all of the genetic markers. The expert testified there was a 1 in 2600 chance that an unrelated male of the same race contributed the DNA.

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The Florida Stand Your Ground Law, as it is commonly known, received a lot of popularity, or perhaps notoriety, as a result of the pending Trayvon Martin/George Zimmerman case. The law, which really is not very extraordinary, is basically a self defense law that says a person can use force if he/she reasonably believes he/she is about to be the victim of force. The force used by the defendant has to be reasonable under the circumstances and in consideration of the kind of force used or threatened by the alleged victim. In simple terms, if someone is in the process of doing, or is about to do, something violent to you, you can do something violent to him/her as long as you do not go overboard, and there is no duty to retreat from the situation.

One benefit of the Florida Stand Your Ground law is that a defendant charged with a violent crime can have the criminal defense lawyer file a Stand Your Ground motion and have a hearing prior to a trial. If it is established that the defendant meets the parameters of the Florida Stand Your Ground law, the defendant is immune from prosecution. This means that the judge must throw the charges out, and the defendant does not have to take his/her chances with a jury.

One exception to the Florida Stand Your Ground law is that the defendant cannot benefit from the law if the defendant is engaged in an unlawful activity. An obvious example would be a person burglarizing a home, the homeowner comes out with a gun and threatens to shoot the defendant so the defendant shoots the homeowner first. That would clearly fall within a Stand Your Ground situation as a person would have a right to shoot another to avoid being shot him/herself. However, the exception would apply and the defendant would not be allowed to succeed on a Stand Your Ground claim because he/she was engaged in an unlawful activity (burglary) at the time.

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Most people have heard of the defense of self defense in Florida where a defendant is charged with a violent crime. Basically, a person can use reasonable force to defend him/herself from the imminent force of another person. However, a defendant does not always have the right to a self defense claim. If the defendant was committing, attempting to commit or escaping from a forcible felony, the defendant does not have the right to claim self defense if he/she commits a violent crime against another person. Additionally, if the defendant provokes the force, he/she normally cannot claim self defense if he/she responds with violence.

In a case near Jacksonville, Florida, the defendant and the victim had very different stories about how the victim got injured. The victim said he was attacked by the defendant with a knife. The defendant said the victim attacked him first with a baseball bat and the defendant defended himself with the knife. The state charged the defendant with aggravated battery and attempted murder. The state argued that the defendant could not use the self defense argument because he was committing the forcible felony of aggravated battery when he was allegedly defending himself and committing the attempted murder. However, this is circular and flawed logic. The acts that supported the alleged aggravated battery and attempted murder were the same. In order to eliminate a self defense claim, the state has to show that the defendant was committing an independent forcible felony while allegedly defending himself. If the defendant was committing an independent forcible felony, then he/she cannot claim self defense if he commits a separate violent crime. In this case, the aggravated battery and attempted murder were basically the same conduct.

A legitimate example of the forcible felony exception to a self defense claim would be where the defendant is committing an armed robbery and the victim resists with violence. If the defendant was in reasonable fear for his life and committed an aggravated battery by shooting the victim, the defendant could not claim self defense because the violence occurred during a separate forcible felony he committed.

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In criminal cases in Florida, hearsay evidence is defined as evidence of an out of court statement offered in court to establish the truth of what was stated. The general rule is that such hearsay evidence is not admissible in court. However, there are many exceptions to this general rule, and many lawyers confuse the hearsay rules by assuming that all out of court statements are hearsay. Even when hearsay statements are admissible, they are often admissible for certain purposes and cannot be used to establish key facts in a criminal case on their own.

As an example, in a felony battery case near Jacksonville, Florida, the defendant was charged with hitting the victim who did not testify at trial. The state presented a witnesses who said he saw the defendant hit the victim. The police officer also saw the defendant hitting a woman but was only able to identify her by the Florida driver’s license she showed him at the scene of the battery. As a result, the only identification of the victim was the hearsay statement of the police officer as to the information on the woman’s driver’s license. The statement of a person as to the identity of another not know to him/her is hearsay as it is based on a “statement” from an identification card.

Because the state could not prove the identity of the victim without this hearsay testimony, the battery conviction was reversed. In a battery case or any crime against a person, the identity of the victim is an essential element of the case and must be proven by the state beyond a reasonable doubt. If the state cannot prove this element with admissible evidence, the case should be dismissed.

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As many people have become aware since the popularity of the George Zimmerman/Trayvon Martin case, the Florida Stand Your Ground law allows a criminal defense lawyer representing a defendant charged with a crime of violence to file a motion to have the case thrown out based on the idea that the defendant had a right to defend himself against the alleged victim. Unlike a normal defense at a trial, the Florida Stand Your Ground law is an immunity to criminal prosecution. This means that if it is successful, the case is thrown out before it ever gets to a jury.

In a case near Jacksonville, Florida, the defendant was charged with aggravated assault after a power company employee climbed over his fence onto his property to shut off his electricity. The defendant exited his house with a gun, threatened the victim and fired a shot in his direction. The power company employee climbed back over the fence off of the defendant’s property and called the police. The defendant testified that he lived in a high crime area and did not initially know who the intruder was because the power company did not call ahead.

The court agreed with the defendant and threw out the aggravated assault charge. While the power company employee does have a right to come onto private property for service-related purposes, since the court believed the defendant did not know the intruder was a power company employee, he had a right to defend himself from someone he assumed was committing a burglary on his property. As long as the defendant discontinued the threat once he realized the guy was a power company employee rather than a criminal and the threat of violence was no longer justified, the Florida Stand Your Ground law applied in this case.

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We have discussed the Florida Stand Your Ground law in Florida many times on this website. Basically, it allows someone to use force to protect himself or another from someone he/she reasonably believes is about to use force against him/her or another. It also allows a person charged with a violent crime to file a motion with the judge to have the case dismissed rather than go to a jury trial where a jury would normally evaluate a self defense claim.

A recent criminal case south of Jacksonville, Florida illustrates a successful Stand Your Ground law claim. In this case, the defendant was charged with aggravated battery after punching the victim. In this case, the victim and defendant were friends. The defendant and his witnesses, who were also friends of both parties, testified that the victim was known to be very aggressive and violent towards others, particularly when he was drinking. On the night of the incident, the friends went out to a club and the victim started drinking. At the end of the night, the defendant and the victim got into an argument, and the victim was yelling profanities at the defendant and walking towards him in an aggressive manner. The defendant backed up in response. When the defendant backed up close to a wall, he punched the victim and knocked him down. The witnesses testified that the victim was the aggressor and the defendant initially tried to avoid the conflict.

For some reason, on these facts, the state charged the defendant with a serious felony offense- aggravated battery. However, the criminal defense lawyer filed a motion to dismiss based on the Stand Your Ground law immunity. The judge agreed and threw the case out. Because the defendant used force in a situation where he reasonably believed the “victim” was about to use force against him, based on the victim’s actions, intoxication and history of violence, the defendant was entitled to stand his ground and have the charges dismissed.

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Much has been made of the Florida Stand Your Ground law since it made national news with the George Zimmerman/Trayvon Martin case. The Florida Stand Your Ground law generally stands for the idea that a person can use force to protect him/herself or another from the imminent threat of unlawful force by another person. A person can use deadly force to protect him/herself or another if he/she reasonably believes the other person is going to use imminent deadly force or commit a forcible felony. Essentially, it is a self defense law that allows a person to protect him/herself or another in situations where the law indicates it is reasonable and necessary. One difference between the Stand Your Ground law in Florida and self defense claims is that the Stand Your Ground law is an immunity from prosecution rather than a defense at trial. This means if a defendant has a successful Stand Your Ground law claim, the judge should throw the case out and it would never go to trial.

However, there are some cases where a defendant does not have the right to assert the Florida Stand Your Ground law immunity. In a recent case south of Jacksonville, Florida, the defendant was charged with aggravated battery with a firearm. The defendant claimed that two men rushed at him in a threatening manner while he was on his front porch so he pulled a gun and shot one of them.

The criminal defense lawyer filed a motion to dismiss the charges under the Stand Your Ground law because the defendant was in reasonable fear of serious injury from these two men. However, the Florida Stand Your Ground law contemplates a person who is “not engaged in an unlawful activity.” This defendant was a convicted felon, and he had a gun on him prior to shooting the alleged attacker. Possessing a gun as a convicted felon is considered “unlawful activity” under the Stand Your Ground law. As a result, the defendant’s unlawful possession of a firearm by a convicted felon precluded him from asserting the Stand Your Ground law immunity claim. The defendant could still assert a defense at trial that he was justified in shooting the other person, but that defense must be made at trial to be decided upon by a jury. It cannot be made before the trial in an attempt to dismiss the charges in a Stand Your Ground law motion.

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In addition to the regular crimes of violence from a misdemeanor like battery to a more serious felony like aggravated assault, there is a specific crime in Florida that deals with injuries to an elderly person. What would normally be a misdemeanor battery could become a more serious felony charge if the victim is considered an “elderly person” under the Florida law.

Abuse of an elderly person occurs when a person intentionally causes a physical or psychological injury to an elderly person. The crime can occur even where no injury takes place if the suspect commits an act that could reasonably be expected to result in a physical or psychological injury to an elderly person. In either case, the suspect can be charged with a third degree felony which carries a maximum sentence of five years in prison. If the suspect’s act causes a serious injury to an elderly person, the crime becomes a first degree felony which can carry a maximum penalty of up to thirty years in prison.

An elderly person is defined as a person 60 years of age or older who is suffering from the infirmities of aging or other physical or mental problems to the extent that the person’s ability to take care of, or protect, him/herself is impaired. If the state files an abuse of the elderly charge, the state must prove more than the fact that the victim was at least 60 years old. The state must also prove that the victim was impaired in his/her ability to take care of himself. There was a recent case of a 75 year old man who was robbed and beaten but the charge against the defendant was dropped because the state merely provided evidence of the victim’s age without any evidence of the victim’s health and ability to take care of himself.