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In Florida there is a classification called “habitual felony offender,” or “HFO.” Florida law specifically defines who can be sentenced as an HFO. In this case the defendant was sentenced as an HFO but he argues that he should not have been classified as an HFO, because according to him the court lacked neutrality since they were looking for the alleged victim to appear and testify. In order to be classified as an HFO, defendants must meet certain requirements.

HFO Statute

Florida law requires that the court find three things in order for a defendant to be classified as an HFO. First, the state needs to prove that the defendant has previous separate felony convictions. These convictions cannot have been set aside or pardoned. The defendant must have two or more felony convictions in Florida or convictions for other qualified offenses.

The second prong of the test to determine who qualifies as an HFO requires that the defendant have committed the most recent felony while incarcerated or under supervision for a prior felony. Alternatively, the defendant can be considered an HFO if it has been five years or less since their last felony conviction or five years since they were released from prison or other confinement or monitoring. Finally, the statute makes clear that the felonies cannot be for purchase or possession of a controlled substance. Continue reading →

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The Florida Supreme Court is the highest court in Florida. Immediately below the Florida Supreme Court are the Florida Appeals Courts. There are five different districts in Florida that each have their own courts of appeal. Sometimes these courts will rule on cases in ways that conflict with each other. When this happens, then the Florida Supreme Court will often agree to hear the cases to make a decision on the issue. Then, the lower courts are required to follow the Florida high court’s ruling. The different levels of courts can be confusing, but your experienced Florida sex crimes defense attorney can help you to understand how your case will move through the courts and whether it is possible to appeal to a higher court.

Underlying Facts

While this case involves several lower court cases, it is centered on one particular case from the Fourth District Court of Appeal. In the case, a defendant was charged with burglary of a dwelling with an assault or battery while armed and masked, aggravated assault with a deadly weapon while masked, and attempted sexual battery using great force or a deadly weapon. He was found guilty on all of the charges.

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The defendant in this case was convicted for the first-degree murder of a correctional officer while he was an inmate in a correctional institution. He was sentenced to the death penalty. This appeal was based on a case that was decided after the defendant was convicted. In a case called Hurst, it was found unconstitutional for defendants to be sentenced to death when the sentence is not reached by a unanimous jury verdict. It also addressed the use of aggravating factors. This case relies on that precedent to argue that the defendant here should also not be sentenced to death.

Aggravating Factors

Florida death penalty laws are somewhat complicated. As part of the decision to penalize someone with death, the jury must consider certain aggravating and mitigating factors. Obviously, aggravating factors weigh toward a sentence of death and mitigating factors do not. Here, the court gave five different aggravating factors great or very great weight. They were: that the defendant was convicted of a felony before, and the felony involved violence, the crime was intended to disrupt a lawful governmental function, it was especially heinous, atrocious, or cruel, and it was cold, calculated, and premeditated. Conversely, the court found no statutory mitigating factors and eight non-statutory mitigating factors that were given little to some weight.

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The American criminal justice system understands that due to their age, minors do not have the same decision making skills as adults do. Thus, if a juvenile is accused of a crime, there may be defenses they can use that may not be available for adults. Of course every case is different and the best defense will depend on your circumstances. If you are being investigated or charged with a sex crime you should contact a skilled St. Petersburg sex crimes attorney as soon as possible. They can look at your circumstances and use their extensive knowledge of case law to help make sure that your rights are preserved.

Davis Case

In 2017, the Florida Supreme Court decided the Davis case, which they applied to the instant case to find that the sentence given to the defendant here should be vacated and a new penalty phase hearing should be conducted. In Davis, a man was arrested on two counts of first degree murder. He was found guilty by the jury of these murders. During the penalty phase of the trial, his attorneys presented mitigating evidence, including testimony about his cognitive functioning and mental health issues. There was little evidence proffered that supported aggravating factors for the sentencing. The jury recommended that the defendant be given two death sentences by a vote of nine to three for one of the murders and a vote of ten to two for the other murder.

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Laws change all the time. When the legislature is in session and passing new laws, these laws will usually have a date that they go into effect. However, sometimes a law can also apply retroactively. That means that even if the conduct occurred before the law was passed, the new law will still apply to it. One of the jobs of the court is to look at the rules around different kinds of laws and decide whether they should apply prospectively – meaning, only apply to conduct in the future from the date it was passed – or retroactively. If you have been charged with a crime, a skilled St. Petersburg defense attorney may be able to help you find new laws that could apply to your case.

Changes in the Stand Your Ground Law

A notable case revolves around the changes made to Florida’s “Stand Your Ground” law. This law has been in effect since 2005. The “Stand Your Ground” law makes it so that individuals no longer have a duty to retreat before using force in self-defense. In the past, before resorting to self-defense, an individual had a duty to leave the premises if they could do so safely. It also protects those who use force in self-defense from legal charges. Initially, the burden was on the person who used force to prove by the preponderance of the evidence that the use of force was necessary to prevent great bodily harm or imminent death. However, a new law signed by the governor of Florida on June 9, 2017 changed the burden of persuasion in “Stand Your Ground” cases. The defendant only needs to make a prima facie showing of self-defense. Then, the new law puts the burden on the State to prove by clear and convincing evidence that the self-defense was not justified.

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There are very specific rules about which kinds of evidence can be presented to the jury during a criminal case. If evidence is admitted that should not be, the evidence can be suppressed. If evidence crucial to the prosecution’s case is deemed to be inadmissible, the charges may be thrown out. Evidence that is admitted, but is later found to be improper, may result in the conviction being thrown out as long as it meets certain criteria. It is important to have a skilled St. Petersburg criminal defense attorney working on your case to make sure that any improper evidence is not admitted.Chain of Custody

The chain of custody refers to the handling of evidence. In order to help authenticate evidence as being genuine, anyone who had access to or custody of the evidence should offer a sworn statement about their possession and handling of the evidence. Florida law requires that evidence be authenticated before it can be admitted. However, the threshold for this evidence is “relatively low.” All that is required is a prima facie showing that the evidence is authentic. In other words, almost any direct or circumstantial evidence can be used to show that the evidence is authentic.

Facts of the Case

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During a trial, there are many decisions that a defendant and their counsel need to make. One of the most important decisions in many trials is whether or not the defendant should take the stand and testify on their own behalf. Many of the aspects of a trial, such as legal strategy and specific arguments to make, are generally the decision of the attorney. However, defendants have an absolute right to take the stand on their own behalf, whether or not their lawyer thinks this is a good plan. If an attorney does not allow the defendant to act as a witness on their own behalf, and the defendant is convicted, under some circumstances, the conviction may be thrown out due to ineffective assistance of counsel. If you are charged with a sex crime in St. Petersburg or the surrounding areas, it is important that you contact a skilled St. Petersburg sex crime attorney as soon as possible to help you craft your legal strategy.Ineffective Assistance of Counsel

In this case, the defendant was charged with lewd or lascivious molestation, unlawful sexual activity with a minor, and capital sexual battery. During the trial, the state presented a witness who had also accused the defendant of sexual abuse. A Florida law called the “Williams” rule allows the trial court to permit evidence leading to the conclusion that the defendant had committed similar crimes in the past. Since there was no physical evidence in the case that was being tried, the testimony of the alleged victim of a similar crime by the defendant was a large part of the state’s case. The victim of the crime with which the defendant was charged testified, but due to his mental disabilities, the other witness’ testimony was considered especially illuminating.

During the trial, the defendant stated that he knew he had a right to testify but chose not to testify. The defendant was later arguing that he had ineffective assistance of counsel because he was not allowed to testify. The trial court denied the post-conviction motion. Here, the Second Circuit Court of Appeals in Florida held that the appropriate rule was two-pronged. The first part was whether the defendant was able to testify if they wanted. The appeals court held that the affirmations made by the defendant during the trial were sufficient to conclude that he was aware of his right to testify and chose not to use it. However, the court here also looked at the second part of the test, which allows a claim for ineffective assistance to go forward if it was unreasonable for the attorney to not let the defendant testify.

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Criminal cases involving juvenile defendants can raise a number of tricky legal questions. Florida’s Third District Court of Appeal recently took up the case of a man who was sentenced to life in prison when he was a minor. The decision offers some important insight for anyone facing criminal charges as a juvenile, whether it’s for a Florida sex crime or another offense.

Defendant was 17 years old when he was charged with first degree murder in 1973. He eventually pled guilty to second-degree murder and was sentenced to life in prison with the possibility of parole. Defendant got that parole six years later, when he was let out of prison on supervised release. He was sent back to prison two years later after being convicted of cocaine possession and battery on a law enforcement officer. He was released on parole and sent back to prison two additional times over the next two decades.

In 2017, Defendant filed a motion seeking to correct his original life sentence. He argued that the U.S. Supreme Court’s decision in Miller v. Alabama and the Florida Supreme Court’s decision in Atwell v. State made it unlawful for a minor to be sentenced to life in prison. In Miller, the U.S. Supreme Court said that a juvenile can be sentenced to life in prison must receive some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. In Atwell, the state’s highest court struck down a sentence for a juvenile who would not have had the opportunity for parole for some 140 years.

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Taped phone conversations can go a long way in proving a state prosecutors’ case, but the discussions they reveal are often out of context, confusing and difficult to follow. That’s not to mention that they regularly include information that’s not relevant to the case and could even be prejudicial to the person charged with a crime. Florida’s First District Court of Appeal recently explained how judges way the value of such evidence against its possible prejudicial effect.

Defendant was charged with conspiracy to tamper with a victim, stemming from a recorded jail cell phone call between Defendant and his girlfriend. He was in jail at the time facing charges of molestation against a minor. During the phone call, Defendant asked his girlfriend to “get a hold of” the victim and “talk to her” and to “get a hold of” the victim’s mother “and let her know.” He also asked her to “let them know that somebody stole my phone” and to “call the investigator’s office tomorrow and find out who brought you that phone because you could go press charges on them.”

Prosecutors sought to enter a seven-minute clip of the 17-minute conversation as evidence at trial. They agreed, however, not to mention in court that Defendant was believed to have tampered in a molestation case. But Defendant’s attorney argued that entering the part of the conversation about the supposed stolen phone and in which he asked his girlfriend to contact investigators was irrelevant and prejudicial. He said it would allow the jury to speculate about the underlying charges in which he was charged with tampering.

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Probation is an alternative to prison time that in some cases allows a person convicted of a crime to spend less or no time behind bars. In Florida sex crime cases, judges generally have the power to impose various restrictions on people convicted of sex crimes. A recent case out of Florida’s Second District Court of Appeal explains some limits on how those restrictions are imposed.

Defendant entered into a plea agreement after being charged with various sex crimes stemming from undisclosed allegations. He pled guilty to traveling to seduce, solicit or entice a child to commit a sex act and to transmission of material harmful to minors. A judge sentenced Defendant to more than two years in prison. Defendant was also designated as a sex offender, based on the traveling to seduce offense, and got sentenced to an additional six years of probation. As a condition of that probation, he was restricted from having contact with or being in proximity to children.

Defendant appealed the sentence, arguing that he shouldn’t have been given sex offender probation based on the circumstances. He pointed out that the plea agreement made clear that the victim was not a child. While the case was on appeal, the First District Court of Appeal held in a separate decision that a judge must orally pronounce the specific terms and conditions of sex offender probation. Those that the judge doesn’t pronounce are not enforceable, the First District said. But the Fourth District Court of Appeal disagreed with that ruling in a separate case of its own. The appeals court said a judge that orders a person to serve sex offender probation “need not individually specify each item contained within the umbrella of sex offender probation conditions.”

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