Violent Crimes

In Florida, What Does the State Have to Prove for Aggravated Assault on a Police Officer?

Published on: November 27, 2011 | by Lasnetski Gihon Law

In Florida, an assault is an intentional verbal or physical threat to commit violence upon another person in such a way that it is apparent that the person making the threat has the ability to carry it out and the victim reasonably fears that the violence is imminent. An assault is a misdemeanor crime in Florida. However, it can become an aggravated assault, a serious felony, if a deadly weapon is used or the assault is made with the intent to commit a felony. When the victim is a police officer, or any number of other public employees, the crime and potential penalties become more serious.

An aggravated assault against a law enforcement officer charge often comes up in the police chase context. One question that arises is whether the defendant intended to threaten the police officer or was just trying to get away. If the former, then an aggravated assault on a law enforcement officer charge may be valid. If the defendant was just trying to escape and did not intend to threaten the police officer, the aggravated assault on a police officer charge may still be a viable charge.

In order for the state to prove an aggravated assault on a police officer charge, or any assault for that matter, the state does not have to prove that the defendant intended to commit violence against the victim. The state only has to prove that the defendant intentionally made the threat, either by words or actions, that was substantially certain to put the victim in fear of violence. Therefore, in the police chase context where the police cars are chasing the defendant or have him blocked off, if a defendant accelerates a car in the direction of a police officer, with no intent to strike the police officer but just to get away, the defendant may be charged with aggravated assault on a police officer if the police officer was in reasonable fear of being hit by the defendant’s car.

Self Defense is Not Always a Valid Defense to Battery in Florida

Published on: November 15, 2011 | by Lasnetski Gihon Law

In Florida a battery is normally committed when a person forcefully touches another in an unauthorized manner. A first time battery will likely be charged as a misdemeanor crime. The charge becomes domestic battery if the victim is a relative or shares another specified relationship with the suspect. A battery can be a felony if a weapon is used or the battery results in sufficiently serious injuries to the victim.

However, no matter the type of battery, domestic or otherwise, felony or misdemeanor, the defendant may have a self defense argument. A valid self defense claim is a complete defense to a battery charge and, if successful, would result in a verdict of not guilty in a criminal trial.

A person in Florida has a right to use force against another if he/she reasonably believes it is necessary to protect him/herself or another from that person’s imminent use of force. In other words, if you think someone is about to use force against your or another victim, you can use force against that person if it is reasonably necessary to prevent that force from occurring.

Statement of Dying Victim May Be Admissible in Criminal Trial

Published on: October 6, 2011 | by Lasnetski Gihon Law

Most people are familiar with the word hearsay as they have heard the term on TV shows and other places. The evidentiary rules regarding hearsay are often misunderstood, not just by the general public, but also by lawyers. Basically, hearsay is a statement by a person not in court that one side is attempting to use in court to prove the truth of the matter referenced in the statement. As a simple example, if Bob comes in to court and tells the jury that Steve told Bob that Defendant committed the robbery, Bob’s testimony is hearsay. As a general rule, hearsay is not admissible in court because the Defendant has a right to question Steve about what he saw, and he cannot do that if Steve is unavailable and the jury only hears what Steve allegedly saw through Bob’s testimony. However, there are exceptions to the hearsay rule.

One exception is called the dying declaration. In a recent murder and armed robbery case south of Jacksonville, Florida, shortly after the incident, the police saw the victim in the hospital. The police officers showed the victim a photo lineup which included the defendant’s picture. The victim could not speak, but he was apparently able to blink signifying an affirmative response when the police officers showed the victim the picture of the defendant. The victim later died, and the police officer came to court during the defendant’s trial and testified the victim blinked while looking at the defendant’s picture in the photo lineup to indicate the defendant was the person who robbed and shot him.

The criminal defense attorney argued to keep the evidence of this identification out of court claiming it was inadmissible hearsay. Inadmissible hearsay does not have to be an actual statement; it can also be an assertion like a gesture, pointing or blinking. However, the court disagreed. Under the dying declaration hearsay exception, if a person makes a statement or assertion while he/she reasonably believes his/her death is imminent and certain and the statement is concerning the cause of that death, that statement may be admissible hearsay in court. The witness does not need to expressly state that he/she knows death is imminent and certain if it is apparent from the circumstances that the witness would reasonably believe he/she is about to die.

Even a Misdemeanor Criminal Charge Can Affect Your Concealed Weapons Permit in Florida

Published on: September 15, 2011 | by Lasnetski Gihon Law

In Florida, the Department of Agriculture and Consumer Services regulates licenses to carry concealed weapons or firearms. That department issues concealed weapons or firearms permits, and they also revoke them for various reasons. If a person has been convicted of a felony in Florida or any other state, that person is not allowed to own or possess a firearm. However, if a person has been found guilty or pled guilty or no contest to a lesser charge, the department may still suspend that person’s license to carry a concealed firearm or weapon.

Florida law provides that certain people who qualify may obtain a license to carry a concealed weapon or firearm. The licenses must be carried with the firearm or weapon, and they are good for seven years.

If a person has been found guilty or entered a plea or guilty or no contest to a misdemeanor involving violence, the department will deny an application for a concealed weapons or firearm permit for a period of three years from the time the criminal sentence has been successfully completed. If a person has an existing concealed firearms or weapons permit, the department will suspend the concealed firearms/weapons permit if a person gets arrested and sentenced for a misdemeanor involving violence. That suspension will last at least three years from the time the sentence is successfully completed. The department will also suspend a concealed weapons/firearms permit if the person has an injunction against violence issued against them.

A Battery Charge Can Be a Felony in Florida if Alleged Strangulation is Involved

Published on: September 9, 2011 | by Lasnetski Gihon Law

In Florida, a battery where no weapon is used is normally a misdemeanor crime, which means the maximum penalty is one year in jail. A battery against someone not related to the defendant is a serious charge but not normally as serious as a domestic battery charge and certainly not as serious as a felony battery charge. Using a weapon during a battery can certainly raise the stakes for a battery charge and make it a felony punishable by years in prison. Outside of the domestic battery context where a defendant has a prior domestic battery conviction, battery charges are typically going to remain misdemeanors if no weapon or serious injury is involved.

However, there is one type of battery that we see charged fairly often that does not involve a weapon and often does not result in any, let alone serious, injuries to the alleged victim. Battery by strangulation is a third degree felony in Florida punishable by a maximum of five years in prison. One might expect that the battery by strangulation charge requires forceful strangulation and evidence of the victim’s inability to breathe for the state to bring those charges. That is not always the case. As criminal defense lawyers working in the Jacksonville, Florida area, we have see quite a few battery by strangulation arrests where, at worst, the defendant merely puts his/her hands on or near the victim’s neck. This is not sufficient to maintain a battery by strangulation charge in Florida. The Florida law requires the defendant to impede the normal breathing of the victim or the circulation of the blood of the victim by applying pressure on the neck, nose or mouth and creating a risk of great bodily harm.

The Florida law, as written, seems to require a significant effort to choke, or strangle, the victim. However, we often see police officers arresting a person for battery by strangulation where there is just an allegation that the defendant merely put his/her hands on the victim’s neck without evidence of a restricted airway or blood flow or a risk of serious bodily harm. In many cases where battery by strangulation is charged, the state may have overcharged the case and the misdemeanor is much more appropriate than the more serious felony charge, and this type of case must be defended appropriately.

Domestic Battery vs. Battery in Florida

Published on: August 18, 2011 | by Lasnetski Gihon Law

In Florida, there are different types of battery crimes that have different ramifications for people charged with those crimes. A battery charge in Florida can be a misdemeanor, punishable by no more than one year in jail, or a felony, punishable by more than a year in prison, depending on the circumstances of the crime. A regular battery is very broadly defined. Technically, a battery can be committed by doing much less than actually striking a person. In Florida, a battery is simply defined as intentionally striking or even touching another person against his/her will. A regular battery is a misdemeanor punishable by up to one year in jail. However, if a person has any kind of prior battery conviction, a second battery can be charged as a third degree felony that carries a maximum punishment of five years in prison. A first time regular battery can also be a felony if the battery causes serious harm to the victim.

A battery becomes a domestic battery if the victim has a certain relationship to the defendant. A domestic battery charge carries the same penalties as a regular battery, but prosecutors often take them more seriously and recommend harsher sentences that can include jail time and attendance in programs designed to teach people about domestic violence. A battery can become a domestic battery if the defendant and victim are related, live together or have children together.

One significant difference between a regular battery charge and a domestic battery charge is the effect it can have on a person’s criminal record. On a regular battery charge, if the defendant decides to plead guilty or no contest, the criminal defense lawyer can negotiate a sentence where the judge withholds adjudication. This is not considered a conviction under Florida law and the criminal defense attorney can file a motion to have the defendant’s criminal record sealed if he/she has no other convictions. However, Florida law does not allow a person to have a domestic battery charge sealed when the judge agrees to withhold adjudication on that charge. If a defendant pleads guilty or no contest to a domestic battery charge, it is likely to stay on his/her criminal record permanently.

The Difference Between Robbery, Robbery By Sudden Snatching and Theft in Florida

Published on: August 6, 2011 | by Lasnetski Gihon Law

In Florida, there are separate crimes for theft, robbery and robbery by sudden snatching. Under the Florida criminal laws, a theft occurs when someone takes the property of another without permission either permanently or temporarily. This crime does not involve taking the property by force or threat. For instance, if the victim left her purse on her desk and the suspect came in and took it while she was gone, that would be theft. Theft can range from a misdemeanor to a first degree felony depending on the value of the property taken or other factors.

In Florida, a robbery occurs when a person takes the property of another without permission by use of force, violence or threat of violence. An example would be where a woman was walking with her purse and the suspect pushes her down and takes the purse or otherwise wrestles the purse away from her. Robbery is a second degree felony punishable by a maximum of 15 years in prison. However, if the suspect had or used a deadly weapon during the robbery, it becomes a first degree felony.

In Florida, robbery by sudden snatching involves taking property from another when the property is on that person and is aware of the taking. As example would be where the woman was walking with her purse in her hand the the suspect grabs the purse and runs away. However, if the purse was close to the victim but not on her person and the suspect took it without violence or a threat, it would likely just be a theft. Robbery by sudden snatching is a third degree felony punishable by up to 5 years in prison if no deadly weapon was possessed or used. If the suspect used a weapon, then the crime would be armed robbery and a first degree felony. If the suspect possessed a weapon during the robbery by sudden snatching but did not use it, the crime becomes a second degree felony.

In Florida, a Second Battery Conviction is a Felony

Published on: July 28, 2011 | by Lasnetski Gihon Law

In Florida, a battery crime is defined as intentionally striking, or even touching, another person against his/her will. This is obviously a very broad definition of criminal activity that can include a lot of conduct, and even harmless conduct. Slightly pushing someone with no injury whatsoever can come under the definition of battery. Domestic battery is a battery against a relative, someone with whom the defendant shares a child or someone with whom the defendant lives or used to live.

A person’s first domestic battery or regular battery crime is a misdemeanor in Florida punishable by up to a year in jail. Battery and domestic battery are two of the most serious misdemeanor charges depending on the circumstances of the case and any injuries caused. However, they are still misdemeanors so the severity of the potential punishments are limited.

If a person has a prior conviction for battery, whether it is a regular battery, domestic battery, battery against a law enforcement officer or aggravated battery, another battery charge of any kind can be charged as a third degree felony. The second battery does not need to be of the same kind as the first. In other words, if a person is convicted of a battery against a stranger and then commits a domestic battery, the second battery crime can be charged as a felony.

Increase in Abuse of Prescription Pills Results in More Pharmacy Robberies

Published on: July 22, 2011 | by Lasnetski Gihon Law

Traditionally, cocaine, crack and marijuana cases were the majority of drug cases that appeared in criminal courts in Florida. Over the last several years methamphetamine and pill cases have become much more common. According to the Centers for Disease Control and Prevention, prescription painkillers have caused more fatal overdoses than drugs like cocaine and heroine. Painkillers like Hydrocodone, Oxycodone and Oxycontin can be very addictive and cause people to go to great lengths to obtain those drugs. Recently, law enforcement officials have noticed an increase in robberies of pharmacies and other drug stores. At pharmacies, people are targeting prescription drugs, narcotic cough syrup and pseudoephedrine pills that are a key ingredient in the manufacture of methamphetamine.

The Drug Enforcement Agency has reported an 80% increase in pharmacy robberies and burglaries from 2006 to 2010. In 2010, Florida led the nation in the number of pharmacy robberies. Pharmacies and drug stores are also noticing an increase in thefts of these items by employees who either use the drugs or sell them on the street.

Can a Plastic Fork be a Deadly Weapon and a Basis for an Aggravated Battery Charge in Florida?

Published on: June 7, 2011 | by Lasnetski Gihon Law

The crime of aggravated battery is a very serious felony crime in Florida that often results in a person receiving a prison sentence if convicted. In Florida, aggravated battery is defined as committing a battery (unauthorized contact with another person) with the use of a deadly weapon. As you can see, the definition of battery is very broad. Just about any unauthorized contact with another person can technically be a battery. The question in an aggravated battery case typically revolves around the deadly weapon element. What is a deadly weapon? Sometimes, in the case of a knife or brass knuckles, the object clearly qualifies as a deadly weapon. However, when other, less dangerous objects are used, the answer is not so clear.

In a recent criminal case near Jacksonville, Florida, the defendant was charged with aggravated battery for stabbing the victim in the back of the neck with a plastic fork. The victim was scratched by the fork and had a red mark, but there was no bleeding. The state charged the victim with aggravated battery claiming that the plastic fork could have seriously injured the victim had the defendant stabbed him in a different place on his neck, i.e. at the artery. The judge agreed, and the defendant was convicted of the crime.

The appellate court reversed the conviction. Clearly, this was a regular battery (a misdemeanor crime). However, the plastic fork was not considered a deadly weapon which is a requirement for a felony aggravated battery conviction. A deadly weapon is an object that does or is likely to cause serious injury if used as it is normally intended or any object that is likely to cause serious injury when used as the defendant used it in the particular case. In this case, the plastic fork did not actually cause a serious injury, and there was no evidence that the plastic fork was likely to cause a serious injury if used as the defendant used it or as it was intended to be used. Whether the plastic fork could have caused serious injury if the defendant stabbed the victim in another place on the neck and if it had punctured the victim’s skin is not the standard.