Avvo Rating badge
NACDL badge
Expertise badge
Avvo Rating badge
Expertise Best Criminal Attorneys in St. Petersburg
The National Trial Lawyers Top 100
Home » Page 19

Posted In: | By

As workplaces adopt paperless record retention policies, electronic records are increasingly becoming the norm. These files are held on computer networks, and often only a few trusted employees have access to these records. These employees help companies ensure that their records are maintained in compliance with laws, rules, regulations, or court orders and may relate to sensitive information, such as financial records, employees, and company customers.

Florida criminal law addresses the destruction or hacking of computers, computer systems, computer networks, and electronic devices to help protect companies from the actions of bad actors. The Tampa Bay Times reported on 11/1/2017 that a company’s former employee was arrested for allegedly destroying his former employer’s computer data after he was fired. The alleged costs to the company were substantial.

Florida Statutes Section 815.06 criminalizes offenses against users of computers, computer systems, computer networks, and electronic devices. The various crimes range from a first-degree misdemeanor to first-degree felonies. An example of a third-degree felony under this statute is destroying a computer network or electronic device with the specific intent to do so. An example of a first-degree felony under this statute is to disrupt a computer network associated with medical equipment or the direct administration of medical care.

Continue Reading ›

Posted In: | By

If you have a criminal record with one or more convictions, it can hinder your career prospects, financial opportunities, and even ability to qualify for certain loans. Florida criminal law allows individuals, under certain circumstances, to have their criminal record sealed. A Florida court issued a decision, showing that both the applicant and the State have to follow statutory procedures before granting or denying a certificate of eligibility to seal a criminal record.In Lazard v. State, the defendant had a child in his care. During this time, the defendant struck the child with an extension cord. The State charged the defendant with aggravated child abuse, and he ultimately pled guilty to the crime of contributing to the dependency of a child, a misdemeanor. Later, the defendant made an application to the Florida Department of Law Enforcement to seal his criminal record. The FDLE denied his request because his criminal history related to an act of domestic violence, which, according to the FDLE, rendered him ineligible for sealing his record.

Florida Statutes Section 943.059 outlines the procedures for having a criminal record sealed. In short, the applicant must first receive a certificate of eligibility from the FDLE and then file a petition to seal the record with the court. The court will conduct a hearing and evaluate evidence before making its determination. By law, the FDLE is obligated to issue a certificate of eligibility if the applicant meets the statutorily defined criteria.

The court observed that although the applicant met the criteria to receive a certificate of eligibility, the FDLE did not furnish him with the certificate. Instead, the court held that the FDLE should have followed the following procedure:  (i) issue the certificate because the defendant satisfied the first prong of the criminal history sealing statute, and (ii) hold an evidentiary hearing to determine whether the defendant’s offense related to an act of domestic violence, which would have acted as a basis to deny his request to seal his criminal history. The court ruled that the FDLE’s refusal to issue the certificate without an opportunity to hold an evidentiary hearing was erroneous and overturned the FDLE’s ruling.

Continue Reading ›

Posted In: | By

In a recent Tampa gun crime case, a woman and her son met who they thought were potential buyers of their vehicle in a Tampa-area parking lot. The plan was to meet in person and negotiate the car transaction with the two prospective buyers, two teenagers. When everyone arrived at the designated location, the teens pulled firearms and demanded that her son give up the keys to the vehicle. The mother gave up the keys, but as they were driving away, she fired a shot that hit one of the teenagers. He was later pronounced dead from the gunshot wound at the hospital.The surviving teen is being charged with second-degree murder and armed robbery. Under Florida felony murder laws, the alleged carjacker, as a co-conspirator, can be charged under the felony murder statute, if he participated in a felony and another person died in the commission of the felony.

Under these circumstances, the prosecution might allege that the driver of the vehicle was in the act of committing armed robbery when he was driving away and his co-conspirator was killed. The felony murder statute applies when another “human being is killed” and does not require that the person who died not be a co-conspirator.

Continue Reading ›

Posted In: | By

The punishments for Florida drug crimes are often harsh. The legislature has not only criminalized the possession of illegal drugs but also has criminalized a plan, or conspiracy, to sell illegal drugs. As shown in a recent Tampa drug crime case, law enforcement attempted to convict a defendant for conspiracy to deliver cannabis, even though there was likely never any intent to actually make a drug sale.Three friends from the Tampa area made arrangements to meet the defendants to acquire cannabis. One of the passengers called the co-defendant multiple times to find out where to meet. When they arrived at the designated meeting spot, there was no one to meet them. After five or six minutes, the passenger called again. The conversation was suspicious, and the passengers continued to wait in the car. The defendants walked up to the vehicle, where one of the passengers held cash out of the door. The defendant approached the vehicle with a square piece of paper to distract one of the passengers. Instantaneously, the co-defendant pulled a gun from his waistband. The driver sped away but only made it a few feet before the co-defendant fired and shot one of the passengers in the face, causing serious permanent injuries. Florida’s Second District Court of Appeals affirmed the defendant’s aggravated battery conviction but overturned his conspiracy to deliver cannabis conviction.

Although the co-defendant physically committed the battery offense, Florida law criminalizes accomplices to a battery. The State is required to prove that the defendant intended for the battery to occur and did some act or said some words that assisted or furthered the battery.

The court of appeals found the evidence at trial to be sufficient. It was possible that both defendants created the cannabis sale as a ruse to commit another crime. The defendant also acted as a distraction so that the co-defendant had time to retrieve his firearm from his pants and shoot one of the victims. It appeared as though it were a pre-planned, coordinated effort in which the defendant intended to participate.

Continue Reading ›

Posted In: | By

In criminal trials, the jury is asked to determine the guilt or innocence of the defendant. Jury instructions help the jurors make their decision within the framework of existing laws, and the criminal defendant is entitled to have the jury instructed in his or her theory of defense, assuming there is evidence to support this theory. A failure to properly instruct the jury may constitute a reversible error in a Florida theft crime case.The defendant and the alleged victim were neighbors in a four-unit duplex, where they shared a backyard area. One night, their dogs fought in the shared backyard, which led to a fight between the defendant and his neighbor. Although there was differing testimony as to what actually occurred, the defendant argued that his neighbor hit him, so he hit the neighbor in self-defense. The fight started in the neighbor’s doorway, and the defendant said that in the course of the fight, he somehow ended up inside the neighbor’s apartment. The defendant was charged with burglary and misdemeanor battery as a result of the altercation. During the jury charge conference, the defendant’s attorney requested that the jury receive a special instruction that self-defense was an available defense to the burglary charge, just as it was a defense to the battery charge. The trial court declined to give this instruction, and following his conviction, the defendant appealed the trial court’s ruling.

The appeals court considered whether the trial court committed a reversible error by ruling that self-defense was not an available defense for the burglary charge. The appeals court noted that the facts of the case suggested that the charges of battery and burglary were inextricably linked and almost functioned as a single charge. In other words, the defendant’s theory was that the burglary and the battery were part of the same encounter with his neighbor. His self-defense claim started outside the neighbor’s apartment and continued unabated when the fighting traveled into the neighbor’s apartment, according to court documents.

The appeals court concluded that the prosecution failed to meet its burden in showing that its failure to properly instruct the jury on self-defense for the burglary was a harmless error. The appeals court reversed and remanded the case to the trial court with instructions to instruct the jury as to self-defense on the battery and burglary charges, as the defendant had requested.

Continue Reading ›

Posted In: | By

The Fourth Amendment of the U.S. Constitution grants protections against illegal searches and seizures by law enforcement. When an alleged Fourth Amendment violation occurs, the criminal defendant can file a motion to suppress. If the court grants the motion to suppress, the evidence seized in the course of the illegal search is excluded from trial. Florida’s First District Court of Appeals recently considered a defendant’s appeal of a motion to suppress in a Florida cocaine case.The arresting officer testified that he reported to the site of a possible car accident. When he arrived, the defendant was standing next to a vehicle. He concluded that the vehicle’s damage was preexisting but noted that the defendant appeared very intoxicated, although he did not conduct any field sobriety tests. The officer told the defendant that if he saw her driving, he would arrest her. The defendant went inside a nightclub, and the police officer parked across the street to observe whether the plaintiff tried to drive her own vehicle. The police officer was dispatched to another call, but he returned to the nightclub immediately afterwards. As he arrived, the defendant was leaving in her vehicle. He followed the defendant, and although he did not observe her break any traffic laws or drive erratically, he concluded that she was almost certainly still intoxicated.

Upon stopping the appellant, the officer observed that the appellant was still extremely intoxicated, had slurred speech, had red and glassy eyes, and emitted a strong odor of alcohol. He asked her to perform field sobriety exercises, which she refused. He then placed her under arrest for DUI. The appellant refused to take a breath test. In a search incident to the arrest, a baggy of cocaine and a straw were recovered from the appellant’s pocket.

Continue Reading ›

Posted In: | By

The U.S. Supreme Court in Miller v. Alabama held that the Eighth Amendment of the United States Constitution prohibits sentencing guidelines that require life imprisonment without parole for juvenile offenders. In response, the Florida legislature passed a new set of guidelines for sentencing people convicted of Florida juvenile crimes. The guidelines ensure that juveniles have any long-term sentences reviewed by a judicial body.

Under the new framework, the status of an offender as either an adult or a juvenile at the time the crime was committed is a crucial threshold question. Florida’s Third District Court of Appeals recently remanded a case to determine whether the defendant was a juvenile at the time the crime was committed.

The defendant appealed his conviction because there were discrepancies in his age. The defendant’s arrest affidavit showed his date of birth as December 3, 1963. However, the Florida Department of Corrections listed his date of birth as December 3, 1962. The offenses for the defendant’s crimes ranged from March to May 1981. The appeals court remanded the case to the trial court to determine the defendant’s correct date of birth. If the defendant was born in 1963, the defendant could be eligible for relief under the Florida Supreme Court decision in Atwell v. Florida.

Continue Reading ›

Posted In: | By

Prosecutors are tasked with proving a defendant’s criminal intent for certain crimes. Often, Florida violent crimes with an intent component also carry a harsher sentence. For instance, aggravated battery requires proof of a specific intent to cause great bodily harm, whereas felony battery does not. In a recent Florida appeals court decision, the court upheld the jury’s finding of aggravated battery because the evidence showed an intent to not only strike a bar owner but severely injure him as well.

Late at night, the defendant arrived at a South Beach bar and began harassing a female bar patron. After the woman complained about the defendant’s behavior, the bar manager spoke to the defendant, who agreed to stop harassing the female patron. The defendant did not stop, however, and a security guard escorted the defendant outside. The defendant became enraged; he spit in the security guard’s face, stated that he would not leave, and threatened to kill the bar manager and the security guard. The bar manager called law enforcement after the defendant was escorted from the bar. The bar manager then stepped outside and was punched in the head by the defendant. When the punch connected, it knocked the bar manager unconscious. The bar manager fell backwards and hit his head on the ground. Medical expert testimony at trial indicated that the bar manager suffered brain damage as a result of the punch.

The defendant appealed the aggravated battery conviction because he argued that he did not have the requisite intent as required under Florida law. Florida statute section 784.045 provides that “[a] person commits aggravated battery who, in committing battery . . . intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement.”

Continue Reading ›

Posted In: | By

The Florida legislature recently passed an expanded version of Florida Statute section 776.032, or as it’s more commonly known, the Florida stand-your-ground law. The revised law shifts the burden of proof from the defendant, asserting the stand-your-ground defense, to the prosecution. Specifically, when a defendant raises a stand-your-ground defense, the prosecution is required to rebut the defendant’s prima facie immunity claim by clear and convincing evidence. Traditionally, the defendant is required to prove the elements of the affirmative defense as opposed to merely stating a prima facie claim.

This new law went into effect in June, so a Tampa murder trial related to the death of a former University of South Florida football player is one of the first to apply the new law.

The defendant was charged with murder after a fight broke out in the early morning hours outside a nightclub in Ybor City. He is accused of stabbing an ex-USF player to death with a knife during the altercation. He made his prima facie case for self-defense primarily based on the fact that the ex-USF player was physically larger than him. In fact, the ex-USF player was eight inches taller and 150 pounds heavier than the defendant.

Continue Reading ›

Posted In: | By

It’s well-established that the quantity of a controlled substance affects the sentencing of a person accused of a Florida drug crime. For instance, Florida Statute Section 893.135(1)(f) establishes tiers of increasingly severe minimum sentences and fines for meth trafficking, based on the quantity of meth discovered. In a recent Florida court decision, the defendant was convicted under the felony meth trafficking statute; however, on appeal, the court was asked to consider whether a liquid by-product created in the manufacture of meth should be included in the total calculation of the quantity of meth manufactured by the defendant.

Four deputies with the Clay County Sheriff’s Office arrested the defendant after a shootout, which killed one of the deputies. In a search of the residence, the deputies found instruments indicative of a meth lab. The collected items included items with a total weight of approximately one gram of meth at various stages of the production process, in addition to a vase containing 26.2 grams of a liquid by-product left over from the manufacturing process. The liquid by-product was toxic, but it only contained a trace amount of meth (less than 1%). There was testimony at trial that the liquid could be reused to manufacture additional meth. Based on the weight of the meth, plus the liquid by-product, the defendant was convicted under the felony meth trafficking statute, along with other crimes. Specifically, the meth trafficking statute provides that quantities of meth of 14 grams or more, but less than 28 grams, carry with them a minimum sentence of three years and a fine of $50,000.

On appeal, the defendant argued that the 26.2 grams of liquid by-product should not have been included in the total weight of the meth. The defendant conceded that the mixture contained trace amounts of meth, but it was not a consumable or marketable mixture. The defendant relied on an argument discussed in a U.S. Supreme Court decision, Chapman v. United States, 500 U.S. 453 (1991). The defendant argued that the weight of any unmarketable portion of a mixture should be excluded from the weight of the controlled substance. However, the Supreme Court did not adopt the defendant’s position in Chapman. Instead, the Court ultimately adopted the “market-oriented” approach, under which the total quantity of what is distributed, rather than the amount of the pure drug involved, is used to determine the length of the sentence.

Continue Reading ›