St. Petersburg Criminal Lawyer Blog

The Florida Supreme Court in 2015 clarified its position on when a person can be charged with soliciting sex and traveling after soliciting sex without running afoul of the rule against double jeopardy, which bans multiple convictions for the same crime. In a recent case, Florida’s First District offered some important insight into how appeals courts are interpreting that ruling. Essentially, multiple text or other messages can be considered different solicitations under Florida sex crime laws.

A defendant was charged with two crimes after exchanging sexually explicit text messages with an undercover police officer who he thought was a 14-year-old girl and then traveling to Tallahassee to meet the person for sex. He was convicted of traveling for sex with a child after using a computer to solicit a child for sex and using a computer to solicit a child for sex. He argued on appeal that the convictions violated the rule against double jeopardy by punishing him twice for the same crime.The First District initially rejected the double jeopardy argument but decided to take another look at the case after the Florida Supreme Court ruled in a case called State v. Shelley. The high court in that case said solicitation and traveling after solicitation cannot be treated as separate crimes if they are “based upon the same conduct.” But the First District said that ruling didn’t change the outcome of this defendant’s case.

“After Shelley, the law is clear that a single solicitation cannot support a conviction for solicitation and a separate conviction for traveling after solicitation,” the court explained. It also said the burden was on the defendant to prove that the convictions violated the double jeopardy rule, which the court concluded he failed to do.

To search your phone for evidence of a crime, police officers generally need to get a warrant from a judge or show that they have probable cause to believe that there’s evidence of a crime on the device. Even in cases in which a judge grants a warrant, any evidence obtained from the search is likely to be excluded at trial if the warrant wasn’t issued based on probable cause. As a federal court in Pensacola recently pointed out, however, judges get a lot of leeway in deciding whether to issue a warrant.A defendant was charged in February with one count of knowingly possessing and accessing child pornography. The charge came after he went to a local MetroPCS store in Pensacola, looking for some assistance with his cell phone. The MetroPCS employee assisting him observed a large amount of pornographic material stored on the phone. The employee also said she saw a folder marked “underage,” which she didn’t open. The employee contacted a tip line at the National Center for Missing and Exploited Children.

The defendant, who was already a registered sex offender, was arrested by state police on a separate charge for failing to tell authorities that he had moved. State police took the cell phone and turned it over to the FBI, which obtained a warrant from a judge authorizing law enforcement officers to search the phone. They allegedly found some 40 images of child pornography. The defendant sought to have that evidence kept out of the trial against him. He argued that the affidavit the FBI filed in court to get the warrant wasn’t based on probable cause. The district court disagreed.

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The rule against hearsay generally bans one person from testifying in court about what another person, like a witness or victim, said outside of court, if it’s being used to prove a fact. In other words, a witness generally can’t testify in court that the victim told him who committed the crime. Florida’s Third District Court of Appeal recently pointed out one of many important limits on this rule: It can’t stop other evidence proving the same fact to be entered into the record.Mr. Jefferson was charged with attempted armed sexual assault and armed false imprisonment, stemming from an incident near the Aventura Mall in South Florida. An 18-year-old woman was walking home from her job at the mall when Jefferson asked her repeatedly if she needed a ride and told her to get in. The woman obliged because it was raining heavily. She later said that Jefferson drove in the wrong direction and then offered her money to have sex with him. Jefferson grabbed her and pulled out a gun when she refused, she said. The woman managed to escape – without her cell phone and one shoe – when Jefferson pulled in to a nearby park. A local homeowner called 911 when the woman began screaming when she was caught on a fence attempting to escape Jefferson, according to the court.

Jefferson admitted at trial that he had picked up the woman and offered to pay her for sex. He also said she refused and ran away once the car was parked. Prosecutors introduced the 911 tape – which included the victim and the homeowner speaking with an emergency operator – among other evidence at trial. They also introduced testimony from a local police officer about what the homeowner told him the day after the incident. According to the officer, the homeowner said he heard woman screaming, went out to check, found the victim stuck on a fence, and saw a man walking to a black car nearby.

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Jury selection is a critical part of any Florida criminal trial, including those that involve sex offenses. Lawyers have the opportunity to remove certain people from the jury pool, but judges wield much of the power in determining who makes it into the jury box. In a recent decision, Florida’s Fourth District Court of Appeal explained that judges are also expected to take certain steps to ensure that jurors check certain biases at the door.A defendant was charged with lewd or lascivious molestation of a child under the age of 16, showing obscene material to a child, and lewd or lascivious exhibition in the presence of a child. His attorney asked during the jury selection process whether the potential jurors agreed that children don’t lie about sexual abuse. One juror in particular, a social worker whose employer had been involved in two high-profile pedophilia cases in another state, drew the trial court’s attention. She told the lawyer that her experience in more than 35 years of social work was that children don’t lie when it comes to allegations of sexual abuse.

Although the judge advised the woman that jurors are not supposed to apply their own personal experience to the law or jury instructions, the woman reiterated that that she felt strongly that children do not lie about sexual abuse. She rated the strength of that opinion as a “9 or 9.5” out of 10. The defendant’s attorney asked that she be excluded from the jury pool for cause, based on her opinion. The judge rejected that request but allowed the attorney to use a peremptory challenge to exclude her from the jury. The defendant was eventually convicted and sentenced to 25 years in prison.

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DNA evidence can play a critical role in Florida sex crime cases, but it also has some limits. In many cases, DNA evidence may confirm that the person charged with the crime and the victim had some sort of sexual contact, but it can’t determine whether that contact was consensual. Similarly, DNA from a third person may show that the victim recently had sex with more than one person, but it can’t determine the source of any injuries often associated with a sex crime. Florida’s First District Court of Appeals recently explained some of the restrictions on using third-party DNA evidence in sex crime cases.A defendant was charged with sexual battery following an incident with a student at the University of West Florida in Pensacola. The woman invited him to her dorm room one day after the two met off campus. They talked for a while and started kissing. That’s when, according to the court, the defendant became more aggressive. He closed the door and turned off the lights, the court said. The he allegedly held the woman down, grabbed her neck, pulled down her pants and “forced himself on her,” according to the court. He was arrested after the victim’s friends called the police when she told them what had allegedly happened.

The defendant argued at trial that the sex was consensual. The victim testified that he raped her. The trial court declined his request to enter into evidence DNA samples from a third person that were taken from the victim’s underwear shortly after the encounter. He was convicted and sentenced to 25 years in prison.

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Florida law allows state authorities to involuntarily detain a person who is otherwise free if he or she has been deemed a sexually violent predator. In order to be subject to potential civil commitment under state law, a person must have a criminal history of sexually violent activity. As the Fourth District Court of Appeal recently explained, however, that history has to be based on actual criminal convictions rather than mere allegations.A defendant was incarcerated and set to be released from jail when state prosecutors filed a lawsuit asking a judge to tag him as a sexually violent predator and commit him to a secure treatment facility. The prosecutors alleged that he was previously convicted for two counts of lewd and lascivious acts on a minor and said he suffered from multiple personality disorder. They claimed that he was likely to commit future offenses if he was not treated and kept in long-term custody.

At trial, the defendant asked the court to bar evidence of two other instances in which he allegedly molested teenagers. He was arrested in each instance but was never charged with a crime. He also asked that the judge exclude evidence of a 2010 case in which he was charged with attempted sexual battery but found guilty of simple battery, a lesser offense. The judge declined each of the requests. Prosecutors, meanwhile, presented one witness. A psychologist described the three instances of alleged Florida sex crimes for which the defendant was never charged or convicted and concluded that he was a sexually violent predator who required commitment and treatment. The jury eventually decided that he should be involuntarily detained and treated.

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When sex crime and other criminal cases involve more than one defendant, it can be tough to establish who committed what crime. That’s often made more complicated by co-defendants who turn on one another and blame each other for committing the crimes. A recent case out of Florida’s Fourth District Court of Appeal makes clear that courts look at “innocent bystander” defenses with quite a bit of skepticism.Mr. Henry and another person where charged with robbing four teenagers at gunpoint and then forcing them to engage in multiple sex acts with each other. The teenagers – three boys and one girl – were smoking marijuana and playing cards in an abandoned house when Henry and his friend arrived and joined in. The other man pulled a gun, ordered the victims to put their stuff on a table, told the girl to take off her pants, and then used a pencil to penetrate her vagina, according to the court. Henry and the other man took turns holding the gun while directing the victims to perform various sex “scenes,” the court said. A third man eventually arrived at the house, confronted Henry and his friend and told the victims to leave.

Henry was convicted of four counts of false imprisonment, three counts of robbery and 17 counts of sexual battery with a firearm. He later appealed the sexual battery conviction, arguing that there wasn’t enough evidence to show that he performed a sex act, instructed any of the victims to perform a sex act or that he threatened or pointed a gun at any of the witnesses. He likened the situation to that in Lovette v. State, a 1994 cases in which the Florida Supreme Court scrapped sexual battery charges against a man involved in an armed robbery who was not in the room when his co-defendants committed sexual battery.

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Jury instructions are important in any criminal case. They’re particularly critical in cases in which a jury is tasked with deciding whether a person committed a felony or a related misdemeanor offense instead. A recent case out of Florida’s Supreme Court makes clear that judges don’t have the right to simply choose not to tell a jury that a person facing felony charges could instead be convicted of a misdemeanor.F.W. was charged with various crimes related to his alleged molestation of three boys over an 11-year period from 2000 to 2011. At trial, all three boys testified that F.W. touched their genitals, and one victim testified that F.W. put the victim’s penis in his mouth. At the close of trial, the judge instructed the jury on the various crimes with which F.W. had been charged. The judge did not, however, tell the jury about the crime of offense of unnatural and lascivious act, a second degree misdemeanor.

F.W. was eventually convicted of two counts of lewd or lascivious molestation against a victim less than twelve years old, three counts of lewd or lascivious molestation against a victim between twelve and sixteen years old, and one count of lewd or lascivious battery against a victim less than sixteen years old. He was sentenced to life in prison. The Second District Court of Appeal later affirmed the conviction, rejecting F.W.’s claim that the judge should have allowed the jury to consider convicting him of the lesser offense of unnatural and lascivious act.

The Florida Supreme Court sided with F.W. on further appeal. The court said F.W. was entitled to have the jury instructed on the lesser offense because it included all of the elements of the other crimes with which he was charged.