Avvo Rating badge
NACDL badge
Expertise badge
Avvo Rating badge
Expertise Best Criminal Attorneys in St. Petersburg
The National Trial Lawyers Top 100
Published on:

By

Many people have heard of entrapment and may have a vague idea of what it means. It’s important to understand, however, that courts have a very specific definition of the term. Entrapment is a legal defense that refers to situations in which police officers induce a person who would not otherwise commit a crime into committing the crime. Florida’s First District Court of Appeal recently explained how raising the defense works specifically in sex crime cases.The defendant was charged with several crimes generally related to attempted sex with a minor in November 2013. The charges stemmed from email conversations that he had with an undercover police officer posing as the parent of a 12-year-old girl. He responded to a Craigslist post in which the officer said she was “looking for just the right mature male to help with a family problem.” The undercover officer told the defendant she wanted a man to “be with” her daughter for religious purposes. He asked for a photo of the girl, whom he was told was 12 years old.

In a series of mails, text messages, and phone calls that followed, he made clear that his understanding was that he would have sex with the girl, according to the court. He also described the sexual acts he would perform and arranged a meeting at a gas station outside Tallahassee. He was arrested when he arrived at the meeting spot. He claimed at trial that he had no intention of actually having sex with the girl but instead wanted to help her. He explained that he had been sexually abused as a child. He was convicted at the close of trial.

Continue reading →

Published on:

By

Jury instructions are a key part of any Florida sexual battery case. They can mean the difference between a conviction and a not guilty decision. In a recent case out of the Fifth District Court of Appeals involving an attempted sexual battery in Central Florida, the court explained how improper instructions can create lots of confusion.The defendant was charged with attempted sexual battery on a physically helpless person, stemming from an incident in which he allegedly attempted to have sex with a female coworker who had passed out from drinking. He was at a bar with colleagues when the victim passed out in a grassy area outside the bar, according to the court. The defendant and others took the woman to another coworker’s van and returned to the bar. He later went back to the van, claiming that he was going to check on the woman. When the van’s owner went to the vehicle, however, she allegedly found the defendant with his pants down, standing over the victim. The victim’s pants and underwear were down.

At trial, the jury heard taped phone conversations between the defendant and the victim. The defendant, who did not testify at trial, said in those conversations that he “attempted and probably did try to have sex with” the victim, according to the court. He was convicted. He later appealed the decision, arguing that the jury received improper instructions at the close of trial. Specifically, the jury was instructed that he was charged with attempt to commit attempted sexual battery. That crime doesn’t exist. As a result, the jury was wrongly told that he could be convicted if he attempted to attempt sexual battery on the victim.

Continue reading →

Published on:

By

If you’ve ever watched Law & Order or another police procedural television show, you might be familiar with a person’s right to remain silent during an arrest. In the real world, “Miranda” rights extend beyond simply not talking and apply to a wide range of encounters with a police officer. In a recent case involving alleged sex crimes in Pinellas County, Florida’s Second District Court of Appeals explained that – as they say on TV – a person who isn’t properly apprised of his or her rights can’t have any statements they make to the cops used against them in court. The bottom line is that a person charged with or suspected of a crime should not talk to the police without a seasoned criminal defense attorney by his or her side.The defendant was arrested in Pinellas County and charged with sexual battery after his former stepdaughter told her father that she’d engaged in sexual activity with him when she was nine years old. He was brought to a local police station for an interview. The officer conducting the interview told the defendant that he was going to ask him some questions. The officer also asked him if he understood that he had the right to remain silent, and then he followed up with individual questions to ensure that he understood that anything he said could be used against him, that he had a right to a lawyer, that a lawyer would be appointed if he couldn’t afford representation, and that he could change his mind and exercise any of those rights at any time in the interview. The defendant answered “yes” to each question. He also signed a form explaining those rights.

Before starting the interview, however, the defendant made an offhanded comment to the officer that he “can’t afford a lawyer anyhow.” He went on to make several incriminating statements during the course of the interview. Those statements were entered into the record during his trial, despite his objections. He was convicted and sentenced to life in prison.

Continue reading →

Published on:

By

Florida and federal laws generally require a person charged with a sex crime to register as a Florida sex offender with the local sheriff’s office. A person who fails to do so faces significant criminal penalties, including jail time. Those penalties increase for people who commit another sex crime during the time that they should have been registered. A recent case out of the U.S. Court of Appeals for the Eleventh Circuit is a good example of how judges look at evidence of those crimes.The defendant was staying at a friend’s home in Central Florida in 2012 when the woman woke in the middle of the night and found him standing at the front of her 12-year-old daughter’s bedroom. The woman went into the bedroom and noticed that her daughter was in a state of distress. The daughter told her mother that the defendant had groped her. The police arrived on the scene and arrested him. He was originally charged with lewd or lascivious molestation and later convicted of felony battery, a lesser offense. He also later pleaded guilty to failing to register as a sex offender (based on a previous conviction) and was sentenced to an additional stint in prison of up to 57 months.

The defendant later appealed the sentence, arguing that the judge wrongly increased his time behind bars after finding that he committed a sex offense against a minor during the time he was supposed to be registered as an offender. He argued specifically that the finding was based on inadmissible hearsay, which refers to statements that are offered at trial by a person other than the one who made the statement and are offered in order to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible, but there are a number of exceptions. That includes the sentencing stage, at which hearsay can be admitted as evidence as long as it is found to be reliable.

Continue reading →

Published on:

By

Florida law makes it a crime for a person with HIV to knowingly have sex with another person without telling their partner about the infection. In a recent Florida sex crime decision, the state’s Supreme Court made clear that the law applies to both heterosexual and homosexual activity.The defendant was charged in 2011 with violating a Florida law that makes it a crime for a person with an immunodeficiency virus that can be transmitted by sexual intercourse “to have sexual intercourse with any other person” without telling the person about the disease. The defendant, who is HIV positive, allegedly forged a lab report to indicate that he was not infected with the disease. He showed the forged report to another man with whom he was in a relationship before the men engaged in oral and anal intercourse, according to the court.

A trial judge dismissed the charge, agreeing with the defendant’s lawyer that the state law covers only “the penetration of the female sex organ by the male sex organ.” The judge cited a 2011 decision from the Second District Court of Appeal, which sits in Lakeland. That court reached the same conclusion. On appeal, however, the Third District in Miami disagreed. The appeals court said the term “sexual intercourse” includes oral and anal sex.

Continue reading →

Published on:

By

The Florida District Court of Appeal, Second District released an opinion on November 8, 2017, that addressed the due process rights available to a criminal defendant at a sentencing hearing. In the case, the defendant appealed the trial court’s decision to revoke his probation and impose a 40-month sentence. The Florida court of appeals applied earlier precedent from Florida criminal decisions to determine whether the State committed a reversible error when the defendant was interrupted during his sentencing hearing.

Due process rights require courts to render judgment only after they have properly considered the issues advanced by the parties. In the context of a probation violation hearing, the court must make separate determinations on whether to revoke probation and also whether the violation justifies the revocation of probation. The due process standard, according to the United States Supreme Court, gives a probationer the opportunity to present mitigating evidence and argue for sentencing alternatives when the trial court has sentencing discretion.

The primary Florida case cited was Amason v. State, 76 So. 3d 374 (Fla. Dist. Ct. App. 2011). In Amason, the defendant pled guilty to violating her probation. The charge included four alleged violations of probation, including a violation of condition 9 for a failure to make restitution payments and a violation of condition 3 for changing her residence without the approval of her probation officer. The trial court questioned the defendant, but the trial court interrupted her three times. The defendant’s counsel was unable to cross-examine the witnesses at the hearing. Moreover, the defendant was not able to respond to the allegation that she had committed fraud and that the maximum sentence should be imposed. The appeals court found that the court violated her due process rights. The appeals court reversed the trial court’s decision and remanded for a revocation hearing before a different trial judge so that the defendant could present mitigating evidence.

Continue reading →
Published on:

By

Florida juries are given what some courts describe as an inherent pardon power to return a verdict of guilty for a lesser offense. However, the jury must be instructed as to lesser included offenses. If not, this may constitute a per se reversible error. In a recent decision, the appellate court found that the lower court erred in not instructing the jury on the charge of improper exhibition of a firearm, which was a permissive lesser included offense of attempted first-degree murder.

The appellant was involved in a verbal dispute with a woman at a convenience store. During the course of the argument, the appellant drew a gun and said he had a bullet for the woman and her fiance. The woman left and joined her family at the park. The appellant followed the woman and threatened to kill her and her family. He later fired shots at the woman and her aunt as they attempted to drive away. The appellant was charged with two counts of attempted first-degree murder in this Florida gun crime case.

The defense counsel requested an instruction on the improper exhibition of a firearm as a lesser included offense of attempted first-degree murder. The Florida jury instructions identify lesser included offenses, and, if requested, the court must instruct the jury on a lesser included offense of the crime charged against the accused, as long as it is supported by the information and evidence. Improper exhibition of a firearm was a lesser included offense in this case. However, the lower court did not allow the instruction, and the appellant appealed his conviction.

Continue reading →

Published on:

By

Florida criminal law proscribes illegal activities through statute. That means that after a legislative session, actions that were once permissible might become unlawful or vice versa. For those accused of crimes, the defendant will likely be subject to the law at the time that the crime occurred. In a jury trial, the court instructs the jury on the law before the jury makes their findings as to the defendant’s guilt or innocence. This month, the Second District appeals court overturned an attempted second-degree murder conviction under the theory that the self-defense jury instructions incorrectly stated the law at the time the crime was committed.

The defendant attended a house party when he was 17. The defendant, along with his friends, got into a confrontation with another group about missing beer, suggesting it was stolen. This first meeting did not become violent. At a second house party, later that night, where both groups were present, tensions boiled over, and a fight erupted. The defendant testified that he tried to break up the fight but was attacked and got stabbed with a pocket knife. The defendant pulled out his own knife to defend himself. He blindly swung his knife around in alleged self-defense because he was scared for his life and didn’t know how else to defend himself. Two people were allegedly stabbed by the defendant’s knife. The State charged the defendant with attempted second-degree murder.

Florida’s self-defense jurisprudence has evolved over the years and is one of the State’s most controversial laws. The appeals court was asked to review the defendant’s conviction under the 2012 version of the law. Although Florida Statutes Section 776.013 negates a self-defense claim for someone engaging in illegal activity at the time force was used, the version of the law in effect in 2012 did not.

Continue reading →

Published on:

By

The concept of “scrivener’s error” is certainly applicable to the legal system, although it’s not especially technical. In fact, it’s known by most as a “typo.” Courts systems require human labor to draft legislation, motions, and written judgments, so sometimes mistakes are made. In the criminal law context, the omission of a word or phrase can lead to unintended consequences. Fortunately, there’s a mechanism for addressing scrivener’s error in trial court decisions. In fact, the appellate court for the Second District addressed this issue in a recent Florida burglary case, Morgan v. State.Florida appeals court decisions in criminal cases show that scrivener’s error is not uncommon and can lead to significant changes to a judgment entered against a defendant. In 2004, the Second District Court of Appeals decided a case in which the trial court orally imposed concurrent sentences of 10 years’ imprisonment. The written judgment, however, reflected consecutive sentences for a total of 20 years’ imprisonment.  Moreover, in 2010, the First District Court of Appeals decided a case in which the defendant had been found guilty of a violation of his probation for “not possessing any firearm or weapon.” However, the defendant was only convicted of marijuana possession, and no gun was present. The appeals court ruled that this was a scrivener’s error and that the defendant’s probation violation could not have been attributed to a gun crime. The Florida Rules of Criminal Procedure also allow for the modification of a sentence in order to correct a scrivener’s error, but only if the correction would benefit a criminal defendant.

Continue reading →

Published on:

By

Law enforcement has broad discretion to enforce the laws. Still, it’s sometimes surprising to see how far a case can proceed before a court overturns a conviction. In fact, the defendant in a recent Florida grand theft decision was arguably doing his job as a repo man when he was charged with grand theft auto and theft of property. It wasn’t until the appeals court heard his case, after a conviction, that he was cleared of the crimes.The defendant was formerly a bail bond agent, who had his license revoked. He started working with another agent to provide bond premium financing. One individual sought his services for a loan and provided the title to her vehicle as security. After she defaulted on the loan, the defendant re-possessed her vehicle. The defendant and his co-worker notified the police that the re-possession occurred as a result of delinquent loan payments. The car owner had several personal belongings in the car. She reported to the police that her car and its contents had been stolen. The defendant was arrested and charged with grand theft auto and theft of property. His defense attorney moved for judgment of acquittal on all of the charges because the defendant lacked the requisite intent for grand theft auto, and the theft charge would be a double jeopardy violation. The trial court denied the motion.

The crime of theft is a specific intent offense. Under Florida law, specific intent requires that the prosecution show that the defendant was aware that he or she was unlawfully taking another party’s property. In contrast, Florida courts have held that a person who takes possession of another party’s property with the good-faith belief that he or she has a right to the property lacks the specific intent to commit theft.

The court noted that the defendant re-possessed the vehicle in broad daylight and contacted police to report that he re-possessed the vehicle as a result of non-payment on the loan. The court rejected a statement made by the defendant that he would not return the vehicle even if its owner paid the amount past due. Reliance on that statement was improper because the analysis should fixate on the defendant’s intent at the time the dispossession occurred. The court could only identify one possible conclusion as to the defendant’s intent:  he took it as collateral for the unpaid loan. The court also ruled that the theft charge be dropped because it constituted a double jeopardy violation. As a result, the appeals court reversed the trial court’s decision with an order to vacate the convictions for grand theft auto and theft of property.

Continue reading →