South Florida Criminal Defense Lawyer Blog
Always begin by reading the jury instructions. Florida jury instructions are online and can be found by a simple Google or Bing search. All my clients read jury instructions with me at our first intake meeting. Burglary is a two-part crime: that means there are two separate crimes that must exist before the government can seek a conviction. First there must be a trespass and concurrent with the trespass a criminal act. If I walk across your property and then leave, it is a simple misdemeanor: trespass. If while walking across your property I take your bicycle, then I have committed a theft. Burglary is trespass plus another crime. It’s simple yet complex: a trespass is an intentional act, and theft is an intentional act. Both intentional acts require the State prove intent (knowing what you are doing and intending to do it)….so intent is always an element of both charges. If you have more questions about burglary contact your South Florida criminal defense attorney. Remember the more you know the more you can protect yourself from aggressive prosecutors, of which we are mightily blessed here in Miami, Fort Lauderdale and South Florida.
Search and Seizure in South Florida Criminal Courts: The Future Is Here?
“Virtual Searches” are not searches under current search and seizure law: South Florida criminal judges are entering a brave new world. What becomes of someone arrested in Fort Lauderdale for possession of cocaine when the search that leads to evidence is not physical but “virtual”? When an officer enters a house, or a car, or pats someone down is it in the physical world, or the “virtual world”? When is a device that increases the scope of a search a search? When a south Florida police agent uses an enhancement device to see through walls or hear conversations that cannot be overheard without amplification…when is that is a search. The Fourth amendment prohibits unreasonable searches and seizures, but what is unreasonable? In a forthcoming study on this issue the Brookings Institute will explore what we are already seeing in South Florida criminal courts. When you pass through an airport body scan is that reasonable? When you consent to a body scan is there a limited permissive search for weapons, what if they find cocaine? If you have been arrested by a police agency in Fort Lauderdale, Pompano, West Palm or Miami seek out advice from a seasoned South Florida criminal defense attorney. Ask about the search that uncovered the contraband. The constitution is alive in our courts and you are all part of the question…when is a search reasonable? When can evidence of a crime committed in South Florida subject to a suppression motion? Ask and know.
Florida’s 4th District Court of Appeal Hears Argument in Motion to Suppress
The most litigated area of criminal law in South Florida concerns when a court should grant a South Florida criminal defendant’s motion to suppress evidence. Criminal law is mostly constitutional law: and the most focused constitutional amendment is the right to be secure in one’s property and to be free of unreasonable searches and seizures. A search incident to an arrest and a search incident to a stop are different. An officer can stop and search an individual or a place when he has probable cause: the issue before the three panel of judges held in Fort Lauderdale concerned the issue of marijuana smells coming from a car and the legality of the search by a South Florida policeman who found cannabis in the car and in the clothing of the south Florida criminal defendant. The arrest for marijuana possession came after the officer searched the individual and found a plastic bag with marijuana in the defendant’s underpants. The area of law: search and seizure is fact specific: that means the actual totaltality of the circumstances are filtered through the search and seizure law as it currently exists. If you were arrested in Fort Lauderdale, Davie, Pompano Beach, Weston or any South Florida county (Palm Beach, Miami and Broward) speak to a South Florida criminal defense attorney and discuss your rights and your standing to object to the introduction of evidence obtained during a search. The area of law is very complex and the cases are constantly shaping and reshaping the law, so you must seek experienced criminal lawyers for advice on the current state of the law on search and seizure. Most South Florida criminal defense lawyers will give you a free consultation to discuss your rights if you are arrested for a possession of narcotics, possession of cocaine or possession of marijuana criminal charge.
Probation Violations in Fort Lauderdale Criminal Courts
Violations of probation and violations of community control result in a violation of probation warrant being issued by the circuit or county court judge who handled your case. In Fort Lauderdale, Broward County, a probation officer who is handling the case will submit a request for a violation of probation warrant to the judge, here in Fort Lauderdale, or in West Palm Beach. The judge will review the warrant request for legal sufficiency: the standard is the violation must rise to be considered both a substantial and willful violation of probation. The most common violation of probation warrants we see here in South Florida are failure to report, leaving Florida without permission, relocating to another state and not transferring probation supervision, and failure to pay full restitution or cost of supervision. Once the violation of probation warrant is issued it is available to law enforcement throughout the United States. Most often probation violations arising from Pompano Beach, Davie, Fort Lauderdale and other arrests in Broward County result in the person being detained and held for extradition. If you were placed in probation or community control in Fort Lauderdale or West Palm Beach and may be in violation the first thing to do is contact a South Florida criminal defense lawyer and have them contact the probation officer and inquire as to the existence of a violation of probation warrant. My office gets 5 to 8 calls per week and I am very pleased to help you sort out your situation and discuss your legal options. The call is a ‘free consultation’ and I, and most South Florida criminal defense lawyers, are willing to assist you in finding out about your current status. Call and start the process of dealing with an open probation or community control warrant.
Ruiz Case from the 4th DCA
Hamlet: “My words fly up my thoughts remain below, thoughts without words never to heaven go”. Too subtle for the 4th DCA? In a long awaited response to judges who find all cops credible and all defendants not, the 4th missed its chance to send a clear message to Judges in Fort Lauderdale, Palm Beach and the 4th District. The court of appeals pulled a case from the trenches and said that a judge must not “be a rubber stamp” for law enforcement, but little more. File this case under “too subtle for me” because I, and most other criminal defense lawyers in South Florida, can’t see why the 4th DCA came so close to saying something then backed off. How about a do-over?
Wikileaks Weveals Wongdoers
With apologies to Elmer Fudd and Disney we headline the news that Wikileaks founder Julian Asange announced on January 17th, 2011 that a former executive at a major Swiss Bank had turned over a computer disc containing 2000 names of prominent individuals who, allegedly, engaged in tax evasion through offshore banking. Money-laundering and other white-collar crimes, a specialty of the writer, usually involves wire fraud, money laundering, or tax avoidance. Money-laundering crimes involved the failure to disclose the source of funds or attempts to obscure the source of funds deposited into the US banking system. Rudolf Elmer, the former executive for the Swiss Bank reportedly ran a major Swiss Bank’s operations in the Caribbean until his discharge in 2002. Initial reports indicate that names have not been revealed. However Wikileaks indicated that it will name names at a future date. Many of these white-collar crimes will be prosecuted in South Florida federal district courts where attorney Ralph Behr practices. South Florida criminal defense attorneys see many federal money laundering and wire fraud cases in our federal district courts. Stay tuned for further news as this story breaks.
How do Domestic Violence Laws in Florida differ from Battery?
Florida criminal law creates a separate category of crimes under the general category of Domestic Violence. Battery, which means an unlawful touching, and assault, which means putting another in fear of an unlawful touching, are the element crimes in Florida under Domestic Violence criminal laws. A battery is a misdemeanor if there is a touching but no serious bodily harm. A Battery becomes a felony battery when there is serious bodily harm or permanent disfigurement. The definition of felony battery has both statutory and case law definitions as the nature and extent of injuries inflicted by a battery vary from situation to situation. There are hundreds of cases concerning when a misdemeanor battery becomes a felony battery and they all give little finality to a judgment or opinion of your South Florida criminal lawyer. Many of these cases were litigated in Florida criminal courts in Miami, Fort Lauderdale and West Palm Beach. I mention this because most criminal defense lawyers in South Florida handle the majority of these criminal cases and are familiar with the judges and courts in South Florida and how domestic violence cases are filed by the prosecutor and viewed by criminal judges. Ultimately it is a jury decision on when an injury rises to serious bodily injury or permanent disfigurement. As a rule if there are broken bones, lacerations or scaring then a misdemeanor battery becomes a felony. The distinction between a battery and a domestic battery is the relationship between the alleged perpetrator and the “victim”. The Domestic Violence statute defines a domestic relationship as any of the following: a family member up to the third consanguinity (nephews, uncles, aunts, nieces and one level beyond), any persons living together or who have lived in a common living situation any time in the six months before the event (a roommate of six months ago is a domestic battery situation), dating persons, children, parents and those related by birth. The “living together” requirement is not required, only a social, dating, family or shared living conditions person requirement takes a common battery or common assault into the Domestic Violence statute. Bond is often not available in Domestic Violence cases and the statute contains a significant number of restrictions on those out on bond and those serving probation sentences.
Possession of Cocaine
Florida criminal statutes for cocaine possession have three basic levels: one for cocaine users (small personal amounts), a second level is for those who sell or give cocaine to another (for free or for money), that is called “delivery” or “sale”. The third level, which carriers a thirty –year sentence is for trafficking in cocaine. Drug trafficking statutes (whether for cocaine, marijuana trafficking, oxycodone trafficking in Florida, or any other controlled substance) are for those “in the business”. Trafficking starts when the amount of the drugs exceeds a weight or pill count set in the various drug trafficking laws in Florida criminal law. Drug trafficking enhancements, which can lead to a life sentence or even capital punishment when trafficking includes a death either by a participant or under the felony murder rule, armed trafficking and “king-pin” cocaine trafficking (significant amounts by weight of cocaine), Federal criminal drug trafficking laws carry similar enhanced punishments when weapons or guns are used, displayed or discharged. Florida criminal laws pertaining to controlled substances are similar for marijuana, so called “designer drugs”, methamphetamines ( and variants such as mixtures, salts and compounds), ecstasy, and other controlled substances as are listed in Florida drug laws. If you, or someone you know, have been arrested in Miami, Broward County (Fort Lauderdale) or Palm Beach (Boca Raton, Delray, and West Palm Beach) you should speak with a South Florida criminal defense lawyer.
Violations of Probation in Florida
The most common violations of probation are: moving out of state without permission, failure to pay money before the last month of probation, and another arrest after placed on probation. Not every violation is enough to get you before a judge; some are considered “technical” and are not punished. However, it is important to understand that only a judge can decide what is “technical” and what is “willful and substantial”. The Florida probation officer is required to report to the Judge any violation. Your Florida probation officer cannot forgive or overlook a violation: he/she must send a violation report to your Judge and request a violation of probation warrant be issued. The Judge will review the Probation Officer’s report (called a “request” for a violation of probation warrant) and decide if the alleged violation is serious enough to justify issuing a warrant to arrest you and bring you before the Judge. At the first appearance you either admit or deny the alleged violation. If you deny the violation you will return to court for a final hearing: similar to a trial but without a jury and with a much lower proof requirement. The biggest problem is that in Fort Lauderdale and Miami you do not get a bail or bond if you are picked up on a violation of probation warrant. You will remain in jail for ten days before your first appearance hearing (admit or deny) and then remain in jail until the judge sets a final hearing. Some people in South Florida (Fort Lauderdale, Miami, and Broward County) remain in jail for three to four months waiting for a final hearing. At the final hearing the State Attorney (prosecutor) must prove that you were advised of the conditions (see the probation statute for the list of minimum conditions imposed on all probationers in Florida) and the Judge must make a finding of fact. If the judge finds that a violation has occurred the Judge can do one of three things: Reinstate, reinstate and modify (add conditions or requirements or extend the term) or the Judge can sentence the violator to any term of jail or prison under the Florida Punishment Code for the charges that placed you in probation.
Florida’s Youthful Offender Law
If you are under twenty-one years at the time of sentencing you are eligible in Florida to request your criminal case be sentenced under Florida’s Youthful Offender Statute. Crimes committed in Florida by those less than twenty-one years old on the date of their sentencing can be sentenced under the Punishment Code under this statute. Prior to 2008 the statute only required that the offender have been under twenty-one at the time of the offense. For reasons best known by the Legislature, but beyond common sense, the law was amended to require that the sentencing be done before one’s twenty-first birthday. This cruelty forces young people to plead out otherwise defensible charges if the delays of court will take the case beyond their twenty-first birthday. Florida’s Youthful Offender Statute limits the sentence to six years. The Judge can combine multiple criminal sanctions (prison, probation, community control) but cannot exceed six years of any combination and permutation of these sanctions. If you are accused of a crime in Florida and you want to seek Youthful Offender status you must plead guilty or be adjudicated guilty at trail, and then ask the Judge to sentence you under the Youthful Offender statute. The obvious problem is if you are not guilty or have a legal defense you cannot pursue them. Secondly: the Judge will not tell you if he intends to sentence under the Youthful Offender statute before you plead guilty. You therefore have no assurance that the Judge will agree to limit sentencing to six years until after the guilt phase is over. Your South Florida criminal defense lawyer can ask the Judge for an indication that Youthful Offender Status will be granted but Judge’s are under no requirement to decide to grant Youthful Offender Statius until after the defendant has been found and adjudicated guilty.