Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

Domestic Violence Injunction Attorney Brings About Dismissal Through Negotiation

Category: Domestic Violence

The Client was exhibiting manic behavior that terrified his wife. According to the petition, the client was discussing purchasing firearms. He had also been placed in the Baylife Crisis Unit for a bi-polar disorder. It was clear that he was unable to understand his own mental illness. Intense negotiations began discussing how we might satisfy the petitioner (wife) that her husband was lucid and control of his behavior. After investigating the facts of the case we determined that the allegation involving the purchase of firearms was false. However, the petition certainly contained facts which were problematic for the client.

It was clear that the only avenue to a dismissal of the injunction was through the Peititioner (wife). Many times trial is the only option because the two sides are at an impasse, and emotions are running high. Here, the wife agreed to voluntarily dismiss her injunction if her husband would agree to receive counseling and continue his medication. Her demands were met and she agreed to dismiss the injunction.

Negotiating with the Petitioner is very advantageous under certain circumstances. If handled the right way it can bring about a dismissal.

To find out more about domestic violence injunctions call us at 813-228-7095 or link to us at tampa criminal attorney.

Tampa Criminal Attorney discusses Dismissal of Resisting and Public Intoxication Charge

Category: Recent Wins

The client was charged with Resisting without violence and disorderly intoxication. He was attending his own wedding at the Tradewinds Hotel at St. Pete Beach, Florida when things got out of control. The client became intoxicated at one of the hotel bars and became belligerent. He was asked to leave by hotel security, but initially refused. He eventually left after a brief verbal altercation with the manager. As he exited the hotel lobby he was confronted by St. Pete Beach Police and more hotel security.

This particular hotel is quite large, and is not unfamiliar with these situations. It is a destination for beach goers and many tourists. In this particular case it appeared that the Hotel overreacted to a situation that had already subsided. As we pointed out the client had left the bar and was posing no threat to anyone. Despite that fact he was confronted by St. Pete Beach Police and more security. The client was an imposing figure to security. A former college football player. While his size should be unimportant to these facts we feel it played a large role in his arrest. Before he left the bar he mouthed off to the manager. This disrespect led to more police intent on putting our client in his place.

As the client was simply returning to his room he was confronted with the St. Pete Beach Police and hotel security who ordered him to get on the ground. The client refused because he had done nothing wrong. This fact becomes very important in the resolution of this case. While the client was arrested for Resisting a Police officer Without Violence you cannot be convicted for resisting an unlawful arrest without violence. In other words if the law enforcement officer is unlawfully arresting a suspect he can lawfully resist, as long as he does so without violence. This same rule does not apply in regards to resisting an officer with violence. You can never resist a law enforcement officer with violence. Even if his arrest is unlawful.

Nonetheless, when the police arrived they immediately drew their tasers. The police claimed that the tasers were drawn because our client clinched his fist. This fact was disputed by our client and his witnesses. When the client refused to get on the ground he was tased. He was eventually arrested for Resisting an officer without violence and disorderly conduct.

The disorderly conduct charge also proved difficult for the state to proceed on in that the charge requires the defendant's conduct to cause a disturbance which causes other's to gather. The disturbance in this case never caused anyone to gather, and was triggered by the law enforcement officer's handling of the situation.

To learn more about resisting without violence or disorderly conduct call us at 813-228-7095 or link to us at tampa criminal attorney.

Criminal Attorney in Tampa Discusses Early Termination of Probation

Category: Recent Wins

We were able to convince the Court to terminate our client's probation recently. He was originally sentenced to fifteen years of probation for Driving Under the Influence with Serious Bodily Injury and Property Damage. Most Courts will consider terminating supervision once the probationer has completed all the conditions and has reached the half-way point. However, every case is different. A judge may terminate someone's probation even earlier if the probationer's performance has been exceptional.

Here, the client paid the victim back all the restitution, and completed every other condition on probation. The victim was opposed to terminating the client, but we were able to convince the Court that further probation was pointless.

The client's probation was terminated. Link to our website to learn more about violations of probation in Tampa or call us at 813-228-7095.

Criminal Attorney in Tampa discusses Dismissal of Battery Charge Against Security Guard

Category: Recent Wins

The client operated a security company that was employed to secure an apartment complex at 302 Tinsley Circle in north Tampa. He retired from the Hillsborough County Sheriff's office and had an extensive background in law enforcement. Earlier this month, at around 8 pm, our client was confronted by an unknown Hispanic male in the parking lot of the apartment complex. The unknown male acknowledged he didn't live in one of the apartments and refused to give his name. When our client (defendant) asked the unknown male to leave the complex he moved towards him. The client pushed him away. Police arrived on scene and took statements.

Many times police are unsure about making an arrest. When they are unsure whether they have probable cause to arrest the police can collect witness statements and other evidence and supply it to the State Attorney's Office. Once they receive the evidence the prosecutor can evaluate the facts and decide on whether to file a criminal charge. In this case the state attorney filed a battery charge against our client. It is always beneficial to contact a criminal attorney as soon as possible. Many times it is easier to resolve a criminal charge before it is filed as opposed to after the State Attorney makes a formal filing decision. The prosecution had already filed a battery charge when the client retained our office.

In this case, we set the client's case for trial. The State Attorney was unable to move forward and the charge was dismissed. If you need more information about the criminal offense of battery or domestic battery you can reach us at 813-228-7095 or link to us at tampa criminal attorney.

Tampa Criminal Attorney Discusses Dismissal of Child Abuse and Domestic Violence Charges

Category: Recent Wins

A recent case involving a client suffering from post-traumatic stress disorder was dismissed after the State examined the underlying facts. According to law enforcement our client pushed his wife against the wall and grabbed her by the upper arms after a verbal argument over other family members. The mother/victim fled the scene with their 15-month-old baby. The police claim that the client then jumped on the vehicle and opened the driver side door and ripped his wife's purse from her in an attempt to get her keys.

Child protective services were called to investigate, and the police forwarded a report to the state attorney's office to determine if domestic battery charges should be filed against the client. We were retained by the client and began our defense of the case. No child abuse charges were filed, and after discussing the circumstances surrounding the domestic battery charge with the State Attorney they were also "No Filed".

For more informaiton on Domestic Violence or Child Abuse call us at 813-228-7095 or link to our website at TampaDefenseAttorney.com.

Criminal Attorney in Tampa Discusses Fraud Charges

Category: Recent Wins

The client was charged with grand theft in the second degree and uttering a forged instrument. She was potentially facing 15 years in Florida State Prison on the grand theft charge alone. According to law enforcement the client was given power of attorney by a client that she worked for as a real estate agent. During the purchase of a number of properties, she forged checks from the title company and deposited them in her personal bank account. The checks totaled over $30,000.00.

Proving a fraud charge is never easy. The State had a multitude of problems with witnesses and evidence. Consequently, the State agreed to reduce from a 2nd degree felony charge to a 3rd degree felony and offer probation. The State also agreed to a withhold of the conviction pursuant to plea negotiations. The withhold prevents the client from receiving a criminal conviction on her record, and eventually allows her to seal the charge from public view.

To find out more about theft and/or fraud charges contact us at 813-228-7095 or link to us at tampadefenseattorney.com.

Tampa Domestic Violence Lawyer Pushes State Attorney to Dismiss Charges in Clearwater

Category: Domestic Violence

Our client went out with his daughter and his son-in-law to dinner. After having a number of drinks both he and his daughter engaged in a verbal altercation that escalated to physical violence. After they got home his daughter insisted on taking the car. Her father (our client) refused to let her have the keys. When the daughter tried to start the car her father reached in and took them out of her hands. The fight continued in the home when the father struck his daughter in an attempt to get the keys. When the police arrived they interviewed all the parties. They chose to arrest the father. During our representation the daughter (victim) was willing to acknowledge that she was the aggressor, but it did not deter the Clearwater Prosecutor from pursuing the charge to trial. He claimed he could prove the case with the testimony of an independent witness that called 911 that night. We requested the 911 tape in discovery. The caller was unable to adequately identify the father as the person who struck the victim while she was in the car.

We told the prosecutor we were happy to take the case to trial. On the morning of trial the prosecutor offered the client a plea to the lesser of disorderly conduct. We rejected it. The prosecutor talked to his supervisor, and the case was dismissed. Domestic violence charges follow the same pattern whether they occur in Clearwater, Tampa, or anywhere else. There are numerous obstacles every prosecutor must overcome before they can successfully prosecute domestic violence charges.

To learn more about the questionable tactics some criminal attorneys use to advance domestic violence charges in tampa or anywhere else call us at 813-228-7095 or link to us at tampa criminal attorney.

Criminal Attorney Tampa- State Dismisses Possession Charges After Illegal Stop

Category: Criminal Law

We represented a USF student that was arrested by a detective from the USF police department for possession of marijuana with intent to sell and possession of paraphernalia . Other students had claimed the client was selling drugs out of his dorm room. The USF detective conducted surveillance on our client before watching him leave his dorm room. The detective followed him to the parking lot and conducted a stop of his vehicle on the pretense that he committed a traffic infraction.

As the client left the parking lot he stopped at a stop sign. The detective then followed him in his vehicle. The client backed his car up and stopped 5-10 feet from the front bumper of the detective's car. He then left the parking lot and was stopped by the detective on a nearby street. The officer cited the client with an improper backing infraction. We filed a Motion to suppress.

The detective acknowledged that the only reason for the stop of the vehicle was for the improper backing traffic infraction. Section 316.1985(1) of Florida's "Limitation on Backing Statute" reads as follows:

The driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic.

A case out of the Second District Court of Appeals addressed a similar issue in State v. Nelson. The court first recognized that in order to lawfully stop any vehicle for a traffic infraction there must be probable cause to believe the traffic violation actually occurred. In Nelson the defendant was backing his vehicle down an alley and eventually stopped two feet from the bumper of the officer who ended up arresting him for drug possession. Like the detective in our case, the officer claimed that he was almost struck by Mr. Nelson, but he conceded that he was never forced out of his path of travel and never had to swerve his vehicle. The testimony in deposition from the USF detective was almost identical to the police officer in the Nelson case. In light of the factual similarity between the cases the State Attorney Nolle Prossed (DISMISSED) all the charges against our client. Where the client is stopped based on a traffic infraction it is always prudent to exam case law that defines what might be probable cause for the infraction.

If you want to learn more from a tampa drug attorney contact us at 813-228-7095 or link to us at tampa criminal attorney.

Domestic Violence Attorney in Tampa: Making a Mountain out of a Molehill

Category: Domestic Violence

Domestic violence is a serious crime. It should be prosecuted whenever someone chooses to use force to settle a dispute with someone else. However, there are times when the force is so slight it does not warrant the involvement of the police or state attorney's office. Many times it is the vicious nature of the verbal argument that has more to do with the 911 phone call than the actual contact. In other words, the police are used to win the argument, rather than prevent further violence.

We recently defended a man for poking his wife's chest during an argument. There was no injury, and the event was isolated. The charge was eventually dismissed, but that did not prevent the client from being arrested and incarcerated in Tampa's county jail. The threat of prosecution also forced him to hire our office.

Unfortunately, when the police leave the scene of a domestic incident without making an arrest they have concerns about the actions of both parties after they are gone. However, if one of the parties goes to jail the potential for further violence is eliminated. But what if police arrest the wrong person. Everyone involved in the rest of the process has to be convinced of the mistake before the charges will be dismissed or dropped. The political nature of this type of charge cannot be understated. Everybody involved in the prosecution of a domestic violence charge have an interest in avoiding the appearance of looking soft on domestic violence. Regrettably, even a domestic violence charge that involves minor contact can have a long-lasting impact on someone's future. The situation is magnified when the victim files a domestic violence injunction against the defendant. A minor incident turns into major incident in a hurry and legal representation becomes critical.

To find out the proper steps to take when defending against a domestic violence charge call our office at 813-228-7095 or link to tampa criminal attorney.

Tampa Domestic Violence Attorney: Weighing the Options Short of Trial

Category: Domestic Violence

I have been involved in defending the falsely accused in Tampa and the outer lying counties for over 15 years. Justifiably, most people who have been falsely accused carry a tremendous amount of anger. They typically have a desire, born out of principal, which pushes them toward trial. A trial is the only thing that will settle the dispute because it is the only way the accuser can be exposed. On the surface, this mentality may sound more like "an eye for an eye", but in reality this approach is somewhat necessary. Is there a part of almost every person who has been falsely accused that wants the accuser to feel what they have felt, and want it to play out in a public forum? Absolutely. When you consider the suffering a false arrest creates its hard to disagree. Make no bones about it; even a false arrest for a minor criminal offense is an attempt by the accuser to destroy the defendant's life in some way.

The Fallout of the False Arrest

For no reason at all you are taken into custody, and incarcerated at the local jail. This public embarrassment is a very painful attack on anyone's character. The arrest can also affect your employment in both the short and long term. Worst of all is the threat of possible punishment.

For anyone who has been falsely accused exoneration in a public forum is the closest thing to restoring his or her former life. Why? It removes all of the fallout that comes with a criminal conviction. When a Hollywood actor is libeled in a publication, they sometimes pursue the litigation to trial despite receiving a large settlement offer prior to trial. It's worth it to the actor to send the message to others that they will "stop at nothing" to punish the party responsible for the false accusations. In the end, the message is more important than the money. On a much smaller scale, you see a similar scenario play out when a criminal client is made a terrific offer on very serious criminal charges. Sometimes the answer is "no thanks". Why should anyone agree to an intervention program when they did nothing wrong?

Exoneration in a public forum to some degree does a number of things for the defendant. First, it restores their character in the public's eye. When the defendant is found "Not Guilty" in a public forum, it sends a message that the charges were false. The threat to the defendant's future is also, in large part, wiped away. If acquitted, the threat of punishment through incarceration or probation is also removed.

The process (jury trial) of restoring the character of the falsely accused can mean pointing a finger and exposing the accuser as a liar. However, for many of the falsely accused their character is only restored to the extent their accuser is exposed as a liar. Most lawyers (not just criminal) appreciate this mindset. I only wish the trial was as embarrassing for the accuser as it was for the defendant when he or she was arrested for the wrong reasons. If it was it might create a better deterrent to those who would waste the court's time and the taxpayer's dollars with frivolous charges.

All the above being said, it is important to realize that while our justice system is the best in the world, it is not perfect. In a recent case we represented a client who was accused of domestic battery in Tampa. Shortly after his girlfriend had him incarcerated for domestic battery she filed a domestic violence injunction against him. All the allegations were frivolous. We believe she was using the criminal charge and the injunction as a weapon to force our client to change. After hearing the facts of the case it was obvious that he didn't need to change, she did. Using the court system to affect someone else's behavior seems far-fetched. Unfortunately, this conduct is not uncommon.

When Trial is Not the Answer (Even for the Falsely Accused)

The boyfriend's first reaction was to force the injunction and the battery charge to trial (After discussions with the prosecutor the domestic battery charge was eventually "no filed" or dismissed by the prosecutor). He had been through a lot, and he was not interested in making the process any easier for her. After discussions with the girlfriend's lawyer, we arranged a resolution that involved avoiding the trial, and resulted in a dismissal of the injunction. Why was negotiation the better alternative, even after all the client had gone through? In a word, it "guaranteed" a result. It was less costly and took less time, but more importantly, the dismissal of the injunction through negotiation assured us that the injunction would be dismissed. We have great judges in Tampa, but it would be stupid to force any judge to weigh facts in a case at trial if you could guarantee a dismissal short of trial. When the victim is going to lie and refuse to cooperate, then you must go to trial. However, there are times when removing the "human factor" (judge or jury) out of the equation and creating a definite result is the far better tact.

When Trial is the Only Option

We represented another client whose former girlfriend was so unbalanced that even after petitioning the court for a domestic violence injunction and losing she insisted on pursuing the battery charge to trial. As is often the case the domestic violence injunction and the battery charge involved the same allegations. While preparing the case for trial the client provided us with a tape of an angry phone call from (petitioner/victim) her shortly before her arrival at his home on the night of the incident. She threatened to break into his home if he wasn't there. She also threatened in another message that, "We will not break-up tonight". The taped phone calls would embarrass and humiliate most people, and clearly proved she was in an angered state shortly before their altercation. She petitioned the Plant City Court for a domestic violence injunction. The tape was played and the judge dismissed the injunction.

Amazingly, it didn't stop her from pursuing the domestic battery charge in front of Judge Nazaretian in our Domestic Violence Court in Tampa. The tape was played again, and the client was found "not guilty". The victim in this case was so vindictive about the breakup she refused to act reasonably. She was going to pursue the false allegations even if it meant lying under oath more than once.

In both of the above instances you have a so-called victim abusing our court system. Each one requires a different approach. If you are interested in learning more about domestic violence link to us at tampa criminal attorney or call us at 813-228-7095.

Tampa Probation Attorney: Pay Your Restitution or Lose Your Driver's License

Category: Criminal Law

Every probationer needs to be aware of his obligations to the court. A failure to comply with those obligations can not only result in a violation of your probation, but also a loss of your license. The 5th DCA ruled that once the clerk notifies the DHSMV of the defendant's failure to pay restitution they are required to suspend her license. The defendant drove after notice was sent, and received a new charge of DWLS. On appeal the defendant complained that she had never received notice. Under 322.251(2) an entry onto a driving record shall constitute proof that notice was given. Anderson v. State, (5th DCA, 2010)

When a defendant fails to meet financial obligations arising from a criminal case pursuant to a payment plan, the DHSMV must suspend the defendant's license upon receipt of notice from the clerk of court. § 322.245(5)(a), Fla. Stat. (2009). To learn more about probation violations in tampa call us at 813-228-7095 or link to us at tampa criminal attorney.

Tampa Domestic Violence Attorney: Consider Your Own Conduct Before Calling Police

Category: Domestic Violence

A recent client was pulled into an altercation with his wife. The altercation led the wife to make a 911 call. The police showed up and took statements from both the husband and wife. Each filed a cross-complaint against the other. At the scene the husband was arrested and taken to jail. We contacted the State's Attorney about the husband's involvement and asked for a dismissal of the charge. Meanwhile, the wife filed an injunction preventing her husband from returning to the home. Negotiations were entered into and the wife ultimately agreed to dismiss her domestic violence injunction against her husband (our client). During a hearing on the husband's criminal charge the State Attorney announced he was dropping the charge against our client. The husband's cross-complaint against his wife was still under investigation by the State's Attorney at the time of the hearing.

At the time of the alleged incident the wife/mother had both children in the home. We believe the children's presence prompted law enforcement's decision to arrest the husband instead of his wife. It is important to realize that while you may appear innocent and deemed the victim at the scene it does not mean that you cannot end up the defendant at a later point in time. The prosecutor makes the ultimate filing decision on every criminal charge that comes through their office.

To learn more from a tampa domestic violence attorney you can call us at 813-228-7095 or link to us at tampa criminal attorney.

Tampa Domestic Violence Attorney: Disorderly Conduct Requires More than a Bad Attitude

Category: Domestic Violence

A recent case out of the Second DCA reminds us that yelling profanities at police, while very stupid, does not constitute a crime. Some juveniles poured out onto the street shortly after a dance at the Boy's Club in Lakeland. One young girl was asked to disperse by law enforcement. When she refused the police officer grabbed her. She pulled away, and was eventually arrested. The officer arrested her for disorderly conduct and resisting without violence.

The Court ruled that commit disorderly conduct by words alone the evidence must show that the words caused a crowd to gather which caused a safety concerns, or that the words incited the crowd to engage in an "immediate breach of the peace". No evidence introduced at trial indicated the actions of the juvenile caused the crowd to gather, or resulted in other juveniles fighting. The court reversed the conviction of both the disorderly conduct and the resisting arrest charge. If the officer had no grounds to arrest the juvenile for disorderly conduct then he was not engaged in a lawful duty when she pulled away (resisted arrest). C.N. v. State, 2nd DCA.

To learn more about crimes of violence or domestic violence link to tampa criminal attorney or call us at 813-228-7095.

Tampa Domestic Violence Attorney: False Imprisonment and Battery Charge Dropped Once Victim Exposed

Category: Domestic Violence

Every criminal lawyer is familiar with the prosecutor that puts too much faith in his victim's credibility. Some victims especially those romantically involved with a defendant will go to incredible lengths to get what they want. Sometimes the court system is a method by which they believe they can get their boyfriend or husband to behave a certain way: "If he knows I can have him arrested he will start responding to me the right way". On the other hand, sometimes pure vindictiveness leads to criminal charges.

In a recent case our client was engaged in some behavior that his girlfriend didn't like. She told him that she was going to call the police if he didn't stop. An argument ensued and the police showed up. The client was charged with False Imprisonment and domestic battery. During depositions (sworn statement) the victim admitted that she destroyed the defendant's clothes and other property during their altercation. She also admitted to provoking our client, and misrepresenting a number of other facts. Shortly after depositions both the False Imprisonment and Battery charge were dismissed.

To learn more about domestic violence in tampa link to tampa criminal attorney or call us at 813-228-7095.

Tampa Injunction Attorney talks about the Risk of Self-Representation or the Pro Se Respondent

Category: Domestic Violence

We are currently engaged in the representation of another client who made the terrible mistake of representing himself at his domestic violence injunction hearing. He walked into the injunction hearing with the mindset that, "This isn't that big of a deal. It's not a criminal offense. I did nothing wrong, and never threatened my girlfriend. My justice system (the judge) will figure this out and DISMISS the injunction because my girlfriend is lying". As I mentioned these ideas to the client at a recent office meeting he nodded his head, and said, "That's exactly what I thought".

There are only two scenarios that warrant a respondent (defendant to a petition for an injunction) moving forward at an injunction hearing on his or her own.

First, your economic situation prevents you from retaining an attorney experienced in the area of domestic violence injunctions. Many people cannot afford to retain legal counsel in today's economy. If you cannot afford the services of an experienced attorney I would suggest calling Bay Area Legal Services.

Second, you truly do not care about the outcome of the hearing. In other words, you are willing to let the judge enter the injunction against you knowing all the repercussions that flow from having an injunction imposed against you. The following are just a few:

1) If the Petitioner is motivated by revenge, you must endure the precarious and uncertain feeling of being unaware whether the petitioner will call police in an effort to have you arrested for violating the injunction. Violating a domestic violence injunction can result in jail or prison (depending on the nature of the violation).

2) If you believe your spouse or the parent of your child is filing the injunction to gain an advantage in a custody battle IT IS ABSOLUTELY CRITICAL that you retain legal counsel. The entry of a Domestic Violence Injunction or a Sexual Violence Injunction will have a tremendous impact on your ability to receive the appropriate time sharing with your child.

3) The entry of the injunction is public record. Anyone conducting a background check could find it on the Clerk's website in Tampa. It cannot be removed through the sealing or expungement process.

4) The stigma of being labeled a violent person.

5) Mandatory domestic violence classes (if you refuse to complete them you could be found in contempt of court)

6) Lose right to possess a firearm

7) Lose the ability to seek employment in a law enforcement capacity. It is necessary to carry a firearm to be employed as a law enforcement officer.

If you are willing to accept the consequences listed above then there is probably no reason to even have a hearing in the first place. Just tell the judge you have no objection to the entry of the injunction.

On the other hand, if you want to fight the injunction and you have the financial means to hire an attorney I would strongly suggest retaining an experienced Tampa injunction attorney to handle your case. We handle too many cases by client's who failed to recognize the seriousness of the hearing they were about to participate in. I do not mean to suggest that the entry of an injunction cannot be undone. It can. However, that road is much longer and costlier than retaining legal counsel prior to the initial hearing.

To learn more contact us at 813-228-7095 or link to us at Tampa Injunction Lawyer.

The Admissibility of Prior Acts of Child Molestation and Section 90.404 (2) (b)

Category: Firm News

Some tampa criminal attorneys might assume that Section 90.404 (2) (b) of Florida's Evidence Code has opened the floodgates to any prior acts of child molestation on the part of their client. The statute reads":

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

From a trial standpoint the introduction into evidence of prior bad acts (what many criminal attorneys commonly refer to as "Williams Rule evidence") has the potential to destroy even the strongest defense. It is vital to recognize the significance of the Florida Supreme Court's decision in McLean v. State. While the statute seems to make admissible any prior act of molestation without regard to its similarity the charged facts, that is not the case. The Florida Supreme Court set out the procedural steps that should be taken by the trial court when determining whether prior acts of molestation will be admissible under 404(2) (b):

The trial court's gatekeeping function is critical. In every case, the trial court must conduct the weighing required by section 90.403. As the Ninth Circuit noted, "[b]ecause of the inherent strength of the evidence that is covered by [Rule 414], when putting this type of evidence through *1262 the [Rule 403] microscope, a court should pay careful attention to both the significant probative value and the strong prejudicial qualities of that evidence." LeMay, 260 F.3d at 1027 (alterations in original) (quoting Doe v. Glanzer, 232 F.3d 1258, 1268 (9th Cir.2000)) (internal quotation marks omitted).

To guide the trial courts in deciding whether to admit evidence of prior acts of child molestation when it is offered to corroborate the victim's testimony, we discuss the steps that the trial courts should take.

Of course, before even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence.

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate:

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed;

(2) the closeness in time of the prior acts to the act charged;

(3) the frequency of the prior acts; and

(4) the presence or lack of intervening circumstances.

This list is not exclusive. The trial courts should also consider other factors unique to the case.

Factors other than the potential for unfair prejudice are also pertinent in a section 90.403 analysis. The trial court must determine whether the evidence of the prior acts will confuse or mislead jurors by distracting them from the central issues of the trial. Also necessary is an assessment whether the evidence is needlessly cumulative of other evidence bearing on the victim's credibility, the purpose for which this evidence may be introduced. Further, in accord with our precedent, the trial court must guard against allowing the collateral-crime testimony to become a feature of the trial. Finally, if requested, the trial court shall give an appropriate cautionary instruction both at the time the evidence is presented and in its final charge to the jury.

The Florida Supreme Court made it clear that the similarity between the charged offense and the prior acts of molestation continue to be a necessary part of the trial court's analysis in order to satisfy the relevance requirement of 404(2) (b):

Accordingly, the similarity of the prior act and the charged offense remains part of a court's analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be "substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403.

It appears that much of the same analysis that was required in the past continues to be necessary today. Whenever William's Rule evidence is introduced there is a danger that the jury will convict on that basis of the prior act and not the evidence of the charged offense. To find out more contact us at 813-228-7095 or link to us at tampa sex offense attorney.

Character Evidence of the Accused in the Context of Sexual Offenses

Category: Firm News

As you might expect clients charged with sex crimes are very adamant about not only proving their innocence (technically no one has to "prove their innocence" but client's with these charges are often forced to offer some evidence of their innocence), but also defending their reputation. Because the facts of many sex charges come down to the credibility of the victim versus the credibility of the accused, defendants are usually anxious to have an army of close friends and loved ones testify on their behalf that they are not the type of person who would commit such a heinous act.

In a recent case out of Duval County a defendant attempted to present evidence to a jury through witnesses that "they knew the defendant's reputation in the community for being sexually moral and that it was 'excellent'". Hendricks v. State, 34 So.3d 819 (1st DCA 2010). The trial court refused to admit the evidence claiming that sexual morality is not a character trait that could be proven by reputation evidence. The 1st District Court of Appeals affirmed his decision ruling:

In short, we agree with the point in Alvelo, Russ, Jackson, and Spencer that because a person's tendency, or lack thereof, to commit acts of child molestation is not something that a community tends to have knowledge of, testimony concerning a person's reputation for having such a trait is inherently unreliable and distinguishable from traditionally admissible reputation evidence. For this reason, we find no abuse of discretion in the exclusion of such evidence in the instant case. To the extent Appellant attempted to introduce evidence only of his reputation for having appropriate sexual relationships with adults, it was within the trial court's discretion to exclude it as either irrelevant or substantially more likely to confuse the issues than to offer probative value. Cf. Russ v. State, 934 So.2d 527, 532 (Fla. 3d DCA 2006) (holding that the defendant's reputation "for respectfulness toward women" had no bearing on whether he committed lewd or lascivious exhibition or sexual battery on a child); see § 90.403, Fla. Stat. (2008) (providing that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence").

Child Protective Services and the Domestic Relations Court

Category: Domestic Violence

If you have been arrested for a charge involving domestic violence it is critical that you contact a criminal attorney as soon as possible. If the facts and circumstances surrounding your case involve children contacting a Tampa domestic violence attorney with experience in dealing with not only the prosecutor's office, but also child protective services is essential.

Most child protective investigators will coerce the mother into pursuing a domestic violence injunction against the father. Their standard line to the mother is, "If you don't pursue a domestic violence injunction against your husband we are taking your children to foster care". This threat creates great stress in the mother who wants to reconcile with her husband, but doesn't want to lose her children. Navigating your way through this minefield (Child Protective Services and the Criminal Courts)isn't easy, but it can be done.

Contact us at 813-228-7095 or link to us at Tampa Criminal Attorney.

The Injunction Against Sexual Violence, and the "Finger Pointing Statute" - A Parent's Worst Nightmare

Category: Criminal Law

I have been practicing criminal law for 15 plus years. I have seen a lot of bad things. I have represented a lot of people that were falsely accused. Talk to any sex crimes detective and he or she will tell you that false allegations are very prevalent in that area. The reason is somewhat obvious to many. If you want to hurt someone by falsely accusing them of a crime what's the best choice? Clearly, the sex crime. No criminal allegation is more devastating to another human being's life than an allegation that involves molesting a child.

I have seen many unscrupulous parents use a false allegation of sexual violence against their child to destroy the other parent's rights. You do not have to practice very long in criminal and/or family law courtrooms to realize that the Domestic Relations Court is many times used by Petitioners to win a custody battle in front of the Family Law judge. The routine usually plays out this way:

1) One parent falsely claims the father or mother of the child (these allegations are usually made against the father) sexually molested the child. Another alternative is to allege the other parent battered them in front of the child. These allegations also strike a cord with a family law judge its just not as powerful as sex allegations.

2) The Domestic Relations Judge grants the Injunction against the Respondent,

3) The Petitioner then waives the injunction in front of the Family Law Judge in the hopes of gaining an advantage..

The Florida legislature became wise to this ploy and enacted 784.046(4)(a)(1)(2). This statute applies to injunctions of sexual violence, repeat violence, or dating violence. Some call it the "finger pointing" statute, and it serves a very vital purpose. If you are the mother or father of a child petitioning the Domestic Relations Court for an Injunction Against Sexual Violence claiming the other parent molested your child you must have some very powerful evidence to receive the injunction.

If you claim that the other parent has molested the child in some way you must have "...an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific acts and circumstances that form the basis upon which relief is sought...".

I discovered this statute while preparing for an injunction hearing against sexual violence. I represented the father (respondent). The mother was claiming that father forced their daughter to engage in oral sex. We knew the mother possessed none of the evidence necessary to support the allegation. When we moved the Domestic Relations judge to DISMISS the petition for the injunction, she was dumbfounded. Initially, she thought I had misread the statute. She had interpreted subsection (2) to mean that the only necessary evidence was a "reasonable cause to believe" that the child was the victim of sexual violence. When I made her aware that subsection (2) only applied "if the party against whom the protective injunction is sought is a person other than a parent, stepparent, or legal guardian of the minor child" she was again stunned. The courtroom went completely silent for what felt like an eternity while the judge read and re-read the statute.

I have to admit the fist time I read the statute I was also stunned. I was stunned because of the nature of the domestic relations court, and frequency with which I had seen people try to abuse it. When you consider the nature of sexual allegations and the firestorm (no matter how ridiculous the allegation, a detective specialized in sex crimes along with child protective services is going to conduct a very thorough investigation) that is set off when one of these allegations is made you are even more stunned. I do not mean to imply that law enforcement and Child Protective Services should not be forced into action every time this type of allegation is made. Whenever a threat of harm is posed against a child the police must investigate. As a parent, even if we have to waste money investigating allegations that ultimately wind up being frivolous it's worth it. Even if their time and our taxpayer dollars end up being wasted on frivolous allegations the police should still be called into action for one simple reason. Children have no real way to protect themselves from an adult who means them harm.

I am only commenting on the rush to judgment many take when approaching these allegations. Let's face it that's why so many unscrupulous parents use the allegations as a tool affect custody in the first place. Its also important to realize the Court's refusal to grant such an injunction does not necessarily mean that the offending parent might continue to victimize the child. Granting or denying this injunction has no impact on whether law enforcement or Child Protective Services will continue their investigation. If the offending parent is charged with a sexually related crime, the judge will certainly impose a "no contact" order as a condition to any pretrial release. If convicted, and the parent avoids prison, the condition will remain in place while the parent is on probation.

If child protective services and the attorney generals office believe the allegations have merit they will petition the Dependency Court to deem the child dependent or terminate the parent's rights altogether. It only takes a preponderance of evidence for the Dependency Court to deem a child dependent.

However, when you consider that the statute only applies when one parent is accusing another parent of sexual abuse. Its function seems vital. Custody battles between parents are many times very vicious. How many times have I heard a parent involved in a custody dispute describe the other parent as "the worst human being on the face of the earth"? Are they usually exaggerating? Yes. What you have to remember is that this statute wasn't even designed for that type of parent. This statute wasn't created for the ugly custody dispute. It was created for the "no holds barred" battle royal involving a mother or father with a very twisted sense of what it means to be a parent. This statute was created for the parent that has no problem lying under oath, or the idea that these false allegations could land the other parent in prison for the rest of his or her life. The statute also recognizes the tremendous impact that granting such an injunction (without sufficient evidence) could mean for the innocent parent who might never see their child again. To learn more call us at 813-228-7095 or link to us at Tampa Criminal Attorney.

Possession of Child Pornography over Pier-to-Pier Network - Search Upheld

Category: Criminal Law

Many people viewing child pornography over the web feel the privacy of their home will shield them from law enforcement. The fact is that the ease with which someone is able to download child pornography over the internet is almost matched by the ease with which law enforcement can investigate and charge someone for engaging in the conduct.

The popular practice amongst people viewing and sharing these materials is to go on a pier-to-pier network such as Limewire and others and request images. Once the request is made, a list of images is sent to the user. The user can then download the material. What many on the internet are not aware of is that the moment you open a video on your computer it is saved on a temporary hard drive even if you do not attempt to save onto the hard drive.

Law Enforcement's Software

Over the years law enforcement has amassed millions and millions of pornographic images relating to children. Each one of these images (whether they are a still photographs or video images) has a SHA-1 value. This SHA-1 value is unique to each pornographic image. Law enforcement is currently armed with software that is able to track these unique SHA-1 values every time someone shares the images through a pier-to-pier network. As this article is being written law enforcement is able to see in real time computers downloading child pornography. Based on the nature and number of images the detective will make a decision as to whether the investigation of a particular computer is worthwhile. If so, he will send a subpoena to the internet service provider to determine the identification of the IP holder. The detective then drafts an affidavit for a search warrant. As long as the affidavit contains the necessary information, the judge will sign the warrant. The detective then executes the warrant, and enters the home with a number of other officers trained to collect these images off the computer. Typically, they will attempt to take a statement from the suspect acknowledging ownership of the computer and the images found on its hard drive.

Legal Search

The First District Court of Appeal, in State v. Williams, recently upheld the execution of a warrant in Bay County where the detective followed the above procedure. The Court found that while the warrant may have been vague as to the particular times the pornography was downloaded; it contained enough evidence to satisfy the probable cause requirement. In support of its ruling, the First District cited the following law:

When attempting to secure a valid search warrant, an applicant is not required to provide a magistrate with direct proof the objects of the search are located in the place to be searched. See State v. Weil, 877 So.2d 803, 804 (Fla. 5th DCA), review denied, 889 So.72 (Fla. 2004). Rather, the applicant must supply a sworn affidavit setting forth facts upon which a reasonable magistrate could find probable cause to support a search. Id. The issuing magistrate will then analyze the information contained in the affidavit, consider the type of crime being investigated, examine the nature of the items sought, and make a "practical, common-sense decision" as to whether there is a "fair probability" evidence of a crime will be found at a particular place. Illinois v. Gates, 462 U.S. 213, 238-239 (1983).

If you have been arrested for possession of child pornography contact our office at 813-228-7095 or link to us at Tampa Criminal Attorney.

Domestic Violence Nightmare Over

Category: Domestic Violence

FACTS: After client finds out his wife is cheating on him he pulls out a gun and threatens to kill himself. He continues to argue with wife and then fires one round into the ground. He quickly throws the gun away, and it appears the parties reconcile. The wife continues her relationship with the "other man" and client finds out about her infidelity. While at home with his wife the "other man" continued to call police claiming the wife was being abused by the husband. The police reported to the client's home and confronted the wife. The client and his wife were separated by police officers before they gave a statement. According to the wife she was coerced by Tampa Police to state that she was falsely imprisoned by her husband in her home. The client was arrested for false imprisonment, and taken to jail. The client bonded out of jail and went home. He was then served with a domestic violence injunction, and was forced to leave the home.

After discussions with the State Attorney the false imprisonment charge was dropped (dismissed). Unfortunately, the client came home after his wife convinced him it was permissible. The client failed to call us and was under the false impression that the wife (petitioner) had the authority to allow her husband (respondent) back to the home in violation of the temporary injunction that was in place at the time. Child Protective Services became involved in the case because of an anonymous phone call about the incident with the gun. The day after the client came back to his home a child protection investigator came to the house. When she found the client there in violation of the injunction she called police. The police arrived on scene and arrested the client for violation of the injunction (another criminal offense). Another bond hearing was conducted and the client was released in light of the counselor's recommendation to the court. Further discussions with the wife led to the dismissal of the injunction and dismissal of the client's new violation of injunction charge. Child Protective Services remained involved in the case to ensure the safety of the children.

It is very important to realize the role of Child Protective Services whenever a domestic violence incident occurs and children are involved. In order to find out more information contact us at our office at 813-228-7095 or link to us at Tampa Criminal Attorney.

Prosecution Unable to Prove DUI Where Driver Found Outside Vehicle

Category: DUI

Our client drove his car into a TECO power pole causing $30,000.00 worth of damage. Luckily, he received minor injuries as a result of the crash. The client was asked to perform field sobriety testing and according to the Hillsborough County Sheriff's Deputy he showed a number of clues of impairment. After being arrested for DUI he was transported to the Hillsborough County Jail where he submitted to a breathalyzer exam. His results were .121 and .128. The legal limit in the State of Florida is .08. During depositions the officers who first encountered the driver acknowledged that he wasn't in the driver's seat. It is not impossible for the State Attorney to prove someone was driving a vehicle where they are found outside the car, but the fact that the driver was found outside the vehicle can create problems. Here, he admitted driving before the officer actually started conducting his DUI investigation. In Florida, there is an accident report privilege which allows driver's to answer the officer's questions about a crash without it being used against them later. Usually the officer notifies the driver that he is switching hats from an accident investigation to a criminal investigation. What is more critical than notifying the driver that you are switching hats is notifying them of their Miranda rights. Here, there was no admission of driving after the Miranda rights were read to the driver. He spoke to the police officer about other things, but not about driving. This small fact made prosecuting our client for DUI impossible. If you have been arrested for DUI and you have any questions about whether the officers followed proper procedure you can call us at 813-228-7095 or link to us at Tampa Criminal Attorney.

Out of State Violation of Probation Warrant Dismissed Through Payment of Restitution

Category: Criminal Law

Thousands of people convicted of crimes in Tampa and around Florida choose to leave the state some point after they are put on probation. Usually absconding (willfully avoiding your probation conditions) while on probation is triggered by a lack of money, or a place to live. Lack of money is many times the issue surrounding the reason for committing the crime that led to the probation. Any theft or fraud crime that involves a monetary loss to the victim can be resolved to a large degree by paying that money back to the victim. Many out of state clients have called me about an outstanding warrant from Florida that they want to get rid of. I am by no means saying this is always the case, but making the victim whole again is many times the goal of the State Attorney and the Probation Office. Many old warrants based on a violation of probation can lead to a dismissal upon payment of the restitution to the victim. It is important to retain counsel to ensure that the proper steps are taken to remove the warrant if the State Attorney agrees. If you have questions about a Florida warrant for your arrest or extradition please call our office at 813-228-7095 or link to us at Tampa Criminal Attorney.

Possession of Firearm on School Property by a Juvenile

Category: Criminal Law

The client was a juvenile attending Hillsborough High School. He had aspirations of enlisting in the armed forces when he was arrested by a Hillsborough County Sheriff's deputy for possession of a firearm on School Grounds and Minor in possession of a firearm. He received a call from his cousin at Franklin Middle School. His cousin asked him to come pick him and his friend up because they were almost jumped by two other kids. When the client picked up his cousin he had his friend with him. His cousin's friend got into his car with a backpack. The client noticed that both his cousin and his friend were toying with two guns (Kahr MK9 pistol containing 5 hollow point 9 millimeter rounds; and a .44 magnum Ruger, super Blackhawk pistol with two .44 caliber rounds loaded in it) in the back seat of the car. He told the boys to leave the guns in the car, and he drove to school. Law enforcement became aware of the altercation at Franklin Middle School and tracked down our client's car in the Hillsborough High School parking lot. Once they connected the car to our client they conducted a search which revealed the guns.

Cooperation with Law Enforcement Sometimes a Good Thing

The State Attorney realized that we were about to file Motions to Suppress the Firearms as evidence in the case. A number of possible illegal search issues surrounded the police officer's investigation. The prosecutor chose to nolle prosse (dismiss) the charges against our client in the hopes of receiving his cooperation. It worked and the client testified against the other two co-defendants. Everyone subpoenaed to testify in court is required to attend and obviously testify truthfully. However, many times the non-appearance of a witness is not going to allow the State to continue the case. It usually means they will go without the witness at trial. Sometimes that witness is critical to their case. Here, our client was cooperative from beginning to end and only held the guns to keep them away from the younger boys. While his testimony was not critical it was extremely important to the State. If you have any questions about gun charges or the legality of a search conducted by the police you can call us at 813-228-7095 or link to us at Tampa Criminal Attorney.

Video of Field Sobriety Tests Not Enough Without Audio

Category: DUI

A Hillsborough County Sheriff's Deputy followed the client for over a ½ mile with his overhead lights on before he stopped. After the stop the driver (client) admitted to having a beer and a drink before driving. When the client was pressed by the officer he told him that the passenger could drive him home because she had a valid driver's license. The Deputy observed the passenger to have a ½ filled margarita on the passenger floor board next to her. The deputy then observed an open container of Cognac Salignac 200 ml. 40% alc/vol next to the driver door on the floor in plain view.

A Critical Mistake for the Prosecution

A special DUI Task Enforcement Officer was called to the scene. Before he exits his vehicle to begin a potential investigation the DUI officer usually turns on a video camera that is fixed inside his vehicle. He also turns on his mic so the encounter between himself and the suspect can be recorded. If he arrests the suspect it is going to be important for the officer's report to mirror the events on the video. Here, the officer failed to turn on his mic so while you could visually watch the defendant (client) perform tests you could not hear the deputy's instructions or any statements the defendant made.

Why is this a critical mistake for the prosecution? Field sobriety exercises require proper instructions. You can't judge someone's performance unless you know whether he has been properly instructed. What you can see of the client's performance does not indicate impairment per se. The audio may have revealed slow, slurred responses to the deputy's instructions or it may have revealed quick accurate responses. Without the audio it is impossible to know. There are many steps involved in conducting a thorough investigation of a DUI charge. Any mistake can create a hole in the investigation that would force any jury to find in the defendant's favor. The ultimate resolution of this case was greatly affected by this mistake. If you have questions about whether the police officer took the proper steps in your criminal investigation call us at 813-228-7095 or link to us at Tampa Criminal Attorney.