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While owning a gun, in and of itself, is not a crime for most people, when a person found guilty of committing a drug offense, has a gun, it can result in increased penalties. In other words, a sentencing court may impose a firearm enhancement in some instances. Recently, a Florida court discussed what the prosecution must prove to justify such an enhancement in a case in which the defendant argued his sentence for drug trafficking was improper. If you are charged with a drug crime, it is in your best interest to speak to a capable Tampa criminal defense lawyer about your potential defenses.

The History of the Case

It is alleged that the defendant was indicted by a grand jury with conspiracy to distribute 500 grams or more of cocaine and possession with intent to distribute 500 grams or more of cocaine. He entered a guilty plea. The Presentencing Investigation Report (PSI) indicated that following the defendant’s arrest for the charged offenses, a Drug Enforcement Administration agent obtained a warrant to search his residence and found a pistol near his bed.

It is reported that the probation office applied an enhancement for the defendant’s possession of a dangerous weapon in determining his offense level and recommended a sentence of 60 to 71 months’ imprisonment. Before sentencing, both the defendant and the prosecution objected to the firearm enhancement. The court overruled the objections and sentenced the defendant to 62 months in prison, after which he appealed. Continue Reading ›

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It is not uncommon for people to be charged with multiple criminal counts or offenses at one time. While they may be sentenced for each conviction, the courts must comply with sentencing statutes, and if a court orders a sentence that falls outside of the parameters established by law, it may be illegal. This was shown in a recent Florida ruling in which the court reversed the defendant’s sentences for molestation offenses on the grounds they were unlawful. If you are accused of a sex crime, it is smart to meet with a seasoned Tampa criminal defense lawyer to discuss your rights.

The Defendant’s Charges and Sentencing

It is reported that the defendant was charged with two counts of attempted sexual battery and three counts of lewd and lascivious molestation of a victim under the age of twelve. He entered a no-contest plea to each charge, and the court accepted his plea. During the sentencing phase, he requested that the court impose the statutory minimum sentence for the molestation counts, which was twenty-five years in prison followed by lifelong probation. The State requested life imprisonment.

Allegedly, the defendant was adjudicated guilty and sentenced to life in prison with a twenty-five-year mandatory minimum on each molestation count and thirty years in prison on each attempted sexual battery count. The defendant appealed, arguing in part that his sentences for the molestation counts were not authorized under the relevant statute. Continue Reading ›

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In many cases in which the police are investigating a person for a crime, they try to gather as much evidence implying the individual’s guilt as possible. The police must abide by the confines of the law, however, and cannot overstep their boundaries, or it will constitute a violation of a person’s constitutional rights. For example, people generally have the right to deny the police access to their phone and online records, and if the police ask a person to turn over their electronic devices without a warrant, it may constitute an unreasonable search and seizure. If you were investigated for a criminal offense and asked to produce your phone, it is important to know how to protect your rights, and you should speak to a trusted Tampa criminal defense lawyer about your options.

Can the Police Force You to Turn Over Your Phone and Online Records?

Pursuant to the Fourth Amendment of the United States Constitution and Section 12 of the Constitution of the State of Florida, people have the right to be free from searches and seizures that are unreasonable. The courts have interpreted these provisions to mean, in part, that the police generally cannot conduct a search or take someone’s property without a warrant. In other words, they typically are not permitted to force people to hand over their phones or allow the police to search their computer records unless the police have a valid warrant.

Further, under Florida law, the police must demonstrate probable cause to obtain a warrant to conduct a search. This means that they must show that when presented with the information in the officer’s possession, a reasonable person would determine that a crime has been committed and that the individual the warrant pertains to committed the offense. Put another way, a police officer must offer factual evidence indicating he or she harbors a rational belief the defendant broke the law. Continue Reading ›

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Most people recognize that sexual harassment in the workplace is not only inappropriate but may also constitute grounds for a civil lawsuit. Many people do not know, however, if acts that are considered sexual harassment veer into criminal territory as well. If you are accused of sexual harassment or any offense of a sexual nature, it is in your best interest to seek advice from a knowledgeable Tampa criminal defense attorney regarding your rights and what you can anticipate if you are charged with a crime.

What is Sexual Harassment?

Generally, sexual harassment is the term used to define the act of engaging in uninvited sexual conduct in a work environment. For example, an employer or supervisor may request sexual favors from an employee in order to obtain or keep a job or benefits. In other instances, inappropriate sexual comments or behavior may create a hostile work environment that changes the condition of other people’s employment. Numerous acts may be regarded as sexual harassment, including lewd comments and gestures, unwanted touching, and sharing of pornographic images.

Is Sexual Harassment a Crime in Florida?

Depending on the nature of the offender’s behavior, acts that are regarded as sexual harassment may also provide grounds for criminal charges. For example, if sexual harassment involves a physical assault, it may constitute sexual battery, which is the penetration of an individual’s anus, vagina, or sex organ with an object or the actor’s sex organ, without the individual’s consent. Notably, the law states that consent does not include submission that is coerced, and a person’s failure to physically resist the actor does not constitute consent. Similarly, indecent exposure, or the act of exposing one’s sex organs, is often both sexual harassment and a criminal offense. Continue Reading ›

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Many people who are convicted of crimes are sentenced to probation, either after or instead of prison sentences. While probation offers substantially more freedom than imprisonment, defendants sentenced to probation typically must comply with numerous conditions. People that fail to do so and violate the terms of their probation may face significant consequences. Thus, it is critical for parties sentenced to probation to understand what constitutes a violation and what may occur if they violate the conditions of their probation. If you were charged with a crime or are currently accused of violating your probation, it is smart to meet with a knowledgeable Tampa criminal defense attorney to discuss your rights.

Violations of Probation Under Florida Law

Probation is a type of community supervision in which a person convicted of a crime must comply with specific conditions and terms instead of being sent to prison. If a person violates a term of his or her probation, it may result in significant penalties, up to revocation of probation.

A violation of probation happens when a person substantially and willfully fails to comply with the conditions and terms of his or her probation. Whether a violation is both substantial and willful is assessed based on the facts of each case. The State bears the burden of proving a violation occurred, but it faces a lesser burden than in other criminal matters. Specifically, the State merely has to prove a violation occurred by the greater weight of the evidence, rather than beyond a reasonable doubt. Continue Reading ›

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A criminal record can inhibit a person’s ability to obtain housing and employment and often impacts relationships as well. As such, many people who have been convicted of crimes contemplate whether they may be able to have their records expunged. Expunging a record can allow people to live their lives as if they had never been convicted, but the process can be complicated, and it is smart for anyone seeking an expungement to consult an attorney. If you have a criminal conviction that you are interested in having expunged, it is prudent to speak to a capable Tampa criminal defense attorney to determine your options.

Eligibility for Expungement

Florida Statutes Section 943.0585 establishes the criteria a person must meet to have an adult or juvenile criminal history record expunged by a court. Specifically, section 943.0585 provides that a person may petition a court to expunge a criminal history record if no information, indictment, or charging document was filed in the subject case, or if any of the aforementioned were filed, the charges were dismissed, nolle prosequi, or if the person was acquitted or found not guilty. The person seeking expungement must not have been found guilty or adjudicated delinquent for any felony or certain misdemeanors either.

Section 943.0585 also provides that a person must apply for a certificate of eligibility for expungement from the Florida Department of Law Enforcement prior to petitioning the court. The Department will issue a certificate of eligibility if the person satisfies the criteria and submits a certified written statement from the appropriate state attorney or prosecutor confirming the criminal history record meets the statutory requirements, a certified copy of the charge, and the processing fee. A certificate is valid for 12 months after it is issued. Continue Reading ›

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Many people who are accused of committing crimes suffer from one or more mental illnesses, and in some instances, there is a link between the illness a person suffers from and the offenses he or she allegedly committed. In such a case, a criminal defendant may be eligible to enter into the Mental Health Court Program. Not everyone is eligible for the Program, however, and those who are should seek legal counsel regarding their options and the benefits and drawbacks of entering the Mental Health Court system. If you suffer from mental illness and are charged with a crime, it is advisable to meet with a knowledgeable Tampa criminal defense attorney as soon as possible to determine what action is most appropriate in your case.

What is Florida’s Mental Health Court?

Florida’s Mental Health Court program is an alternative to the traditional criminal justice system. Entry into the Mental Health Court program is voluntary. A criminal defendant may be referred by an attorney, but the Court has the ultimate say as to whether a defendant is accepted. Pursuant to Florida law, a defendant must meet certain criteria to enter the Program. Specifically, he or she must suffer from a persistent and severe mental illness. Typically, this means that the defendant suffers from a mood disorder, schizophrenia or another psychotic disorder, bipolar disorder, or a combination of disorders that is sufficiently disabling. It can also be a mental health disorder that renders the defendant unable to care for himself or herself. There must also be a correlation between his or her diagnosis and the charged offense. Additionally, the defendant must voluntarily agree to enter into the Program and to undergo mental health treatment.

After a defendant is accepted into the Program, mental health professionals will work with the defendant to develop a Court Supervision Plan, which must be approved by the Court. Treatment and assistance is coordinated through the Program, and the defendant’s progress is closely monitored throughout the process. The defendant must regularly appear for court hearings and, if applicable, must meet the conditions of probation. The defendant must also agree to remain drug and alcohol free and refrain from engaging in criminal activity. Continue Reading ›

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People who do not work in law enforcement or criminal defense rarely have an understanding of Florida’s process for prosecuting crimes. It is critical, though, for people suddenly faced with criminal charges to become familiar with the Florida Rules of Criminal Procedure so that they understand their rights and what they can expect going forward. If you are accused of a crime, it is in your best interest to speak to a trusted Tampa criminal defense attorney as soon as possible to assess your options and potential defenses.

Florida’s Rule of Criminal Procedure from Arrest to Case Resolution

The process of prosecuting a person begins with an arrest. The police cannot arrest a person unless they have probable cause, which means there is reasonable evidence suggesting the person committed the crime. Following the arrest, the person will be charged with either an information or an indictment. Within twenty-four hours of the arrest, the defendant must be brought before the judge for the first appearance. The judge will inform the defendant of the pending charges against him or her, advise the defendant of the right to counsel and explain the bond. If the defendant is unable to post the bail set by the judge, he or she can request a bond hearing.

The defendant will then be arraigned. During an arraignment, the judge will advise the defendant of the substance of the charges and request that the defendant enter a plea of guilty or not guilty. The defendant’s attorney may file a notice of discovery, which triggers the requirement that the prosecution provide the defendant’s counsel with any evidence against the defendant and a demand for a jury trial. Continue Reading ›

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If a defendant is convicted of a crime, the court will typically weigh a variety of factors in determining an appropriate sentence. While there are many things that a court is permitted to evaluate in making an assessment, if a court is influenced by inappropriate information in developing a sentence, it may lead to an unjust result. In a recent Florida ruling in a case in which the defendant was convicted of arson, a court discussed the evaluation of the reasonableness of a sentence under the prevailing law. If you are accused of arson or another crime of violence, it is advisable to speak to a seasoned Tampa violent crime defense lawyer about your options.

The Defendant’s Sentence

It is reported that the defendant was charged with arson after he took part in the burning of a car that was used in a drive-by shooting that resulted in the death of another person. He was initially charged with multiple crimes related to a racketeering conspiracy and was later charged with murder. He ultimately pleaded guilty to the arson charge, which carries a minimum sentence of five years and a maximum sentence of twenty years. He was sentenced to twelve years in prison, after which he appealed, arguing that his sentence was unreasonable and the court relied on inappropriate information in determining his sentence.

Evaluating the Reasonableness of a Sentence

A court assessing the substantive reasonableness of a sentence must weigh the totality of the circumstances, including whether there was any deviation from the sentencing guidelines. A court may deem a sentence substantively unreasonable if it was based on impermissible factors, if the sentencing court failed to weigh appropriate factors, or if it was selected arbitrarily. The appellate court in the subject case noted, however, that a matter will only be remanded for re-sentencing in cases in which the court is left with a firm and clear conviction that the sentencing court committed a definite error in judgment in evaluating the relevant factors, which resulted in a sentence that lies outside of the scope of reasonable sentences as dictated by the facts of the case. Continue Reading ›

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A domestic violence conviction can dramatically impact a person’s liberties and reputation. Therefore, in some instances, a person convicted of a domestic violence crime may seek post-conviction relief, such as asking for a plea to be vacated. In a recent Florida opinion, a court explained the procedure for filing a motion to vacate in a matter in which the defendant sought to set aside her guilty plea to battery of her 72-year-old mother. If you are charged with a crime of domestic violence, it is in your best interest to speak to a knowledgeable Tampa domestic violence defense attorney regarding your rights.

The History of the Case

It is reported that the defendant was charged with committing a crime of domestic violence against her mother in 2014. She entered a guilty plea to a lesser included charge of battery. She then spent five years trying to seal her criminal record but was unsuccessful. Subsequently, she filed a motion to set aside her plea, arguing that her attorney provided her inaccurate information regarding her ability to have her record sealed, which rendered her plea involuntary. The court granted her motion, and the State appealed, arguing that the defendant’s motion was time-barred. The appellate court agreed, reversing the lower court ruling.

Filing a Motion to Vacate in Florida

Under Florida law, a party has two years from the entry of a final judgment and sentence to file a motion to vacate. There is an exception, though, in cases in which the facts that form the basis of the motion were not available to the moving party and could not have been discovered by exercising due diligence. In such instances, the moving party must file his or her motion within two years of when the new information is discovered or reasonably would have been discovered through the exercise of due diligence.

In the subject case, the court explained that a public criminal record is a natural consequence of a criminal conviction. Thus, the defendant should have been aware of the legal impact of her guilty plea at the time she entered it. Further, the court found that the fact that the defendant was not eligible to have her records sealed pursuant to the relevant statutory law did not toll the statute of limitations, as this information was readily discoverable at the time the plea was made as well. Instead, the defendant waited over three years after her sentence was final to move to set it aside. Thus, the court reversed the trial court ruling. Continue Reading ›