I was on the phone recently with a much respected, well-known criminal attorney who had been practicing for a long time. His client wanted a second opinion about his case and he encouraged him to talk to me. The issue arose as to whether a crime he pled guilty to previously would be admissible at the trial on his new charge. This particular case involved sexual allegations, and the sanctions he would receive at sentencing were severe if he went to trial and lost. I suggested filing the Motion in limine and have the judge decide the issue as soon as possible. When a jury hears evidence of prior bad acts or crimes, a defendant's case can go from very winnable to "maybe the State's offer isn't so bad after all". The client's lawyer told me, "I usually file those types of motions right before trial". I don't mean to second guess another lawyer. In his defense, he had been dealing with the case much longer than I had, and maybe had other reasons for waiting to file the motion. My only point is that deciding an issue so pivotal to the outcome long before trial could save the defense attorney from meetings with the client speculating about whether the judge will allow the evidence in right before trial. It also helps the defense attorney in that he knows what he or she is up against long before he starts the jury selection. It makes the judge happy in that a major decision (that involves a lot of argument by the lawyers, and consideration on her part) is decided long before trial. Nothing upsets a judge more than being forced to make a decision "on the fly" that could result in an appeal one way or the other. After practicing law for over 15 years I can tell you that even the most state-oriented judge is a hell of a lot more interested in being right on the law than being reversed. Having this hearing long before the trial gives the judge an opportunity to give the motion all of his/her consideration without having to be concerned about how much longer the jury panel is going to be waiting outside while he/she decides the motion. This may seem like obvious logic to many but filing these motions on the eve of trial is more the norm than the exception. To find out more link to Tampa Criminal Attorney or call us at 813-228-7095.

FACTS: The client was cruising Ybor City at about 3 a.m. on a Saturday night. Many kids are exiting the clubs at this hour because of a city ordinance. Ybor City has a reputation for crime, and especially at this hour. As a consequence, the City of Tampa stations a number of police officers in the parking lots outside these clubs to keep order. My client was driving westbound near the parking lot outside Club Empire. His passenger had an altercation with a passer-by that caused him to exit his vehicle. According to the police report the defendant (my client) exited the driver's side of his vehicle and pulled out a Tech-9 from his trunk. A tech-9 is a light weight uzi-type firearm that can be easily modified to fire automatically. It can also hold a large clip of ammunition. The police report states that an anonymous bystander told the police that the driver "just pointed an uzi at us".

Upon hearing this information from the bystander seven or eight police officers chased the vehicle on foot through the parking lot behind the Tropicana Restaurant. My client, believing the group of people from the first encounter was still chasing him, moved quickly through the parking lot avoiding a number of other drivers. The main investigating TPD officer made a number of representations in his police report about the chase. He claimed that our client stopped his vehicle in the parking lot. According to the investigating officer, he ran up to the vehicle which was stopped in the parking lot and ordered the driver to stop. His report states that the driver and passenger both turned, and made eye contact as he yelled, "STOP, POLICE". The driver then reached for something under his seat, and accelerated out of the parking lot. Almost all of these statements were directly contradicted by his fellow officers who were running right behind him. The client's statement, which was confirmed by the other officers testimony, was unaware that the officers chasing him through the parking lot. Upon exiting the parking lot he passed a number of other officers on horseback and drove north against traffic. Once the client saw overhead lights flashing behind him he pulled over immediately. After he was stopped, the client was arrested for fleeing and attempting to elude police. During a search incident to that arrest the police gained access to my client's trunk. Law enforcement was able to recover the following contraband from a book bag in the trunk:

1) .22 revolver
2) Box of .22 ammunition
3) 2 boxes of 9 millimeter ammunition
4) A 30 round clip of 9 millimeter ammunition (that fit the Tech 9)
5) A machete
6) A bullet-proof vest

One thing the police failed to recover initially was the Tech 9. The client and the passenger were questioned about the Tech 9, and both denied having it in their possession. At some point during the search of the vehicle Tampa Police Officers found a 30 round clip that could easily fit a Tech 9. At that moment law enforcement was convinced that the Tech 9 had been in there possession. They let the passenger go, and arrested my client. A crime scene technician was asked to retrace the vehicle's path of travel with a metal detector looking for the Tech 9 in bushes on the median.

My client was questioned about the circumstances surrounding his earlier altercation, and he stated that once he saw his passenger get into a fight he got out of the car and "attempted to pull out the revolver in the trunk" to scare them. Based on that information, and the fact that our client had a prior felony conviction, the police also charged him with felon in possession of a firearm. Some time later the tech 9 was found in some bushes on the median down the same path of travel taken by the client.

Prior to trial we filed a motion to prevent the State Attorney from mentioning any of the contraband found in the book bag (except for the .22 revolver), and the Tech 9. While Florida case law gives the State Attorney a lot of latitude to modify their charging document before and sometimes even during trial depending on the circumstances, the State's charging document only listed one felon in possession of a firearm charge. The charging document only stated "a firearm" (it never specified whether the firearm was the tech 9 or the .22 revolver). The state has the ability to file one charge of felon in possession of a firearm and fashion the charging document in such a way that allows the jury to choose whether the defendant was in possession of either one of the firearms. The State never modified their charging document in this way. For strategic reasons which would take too long to discuss in this article we did not file a Motion for Statement of Particulars before trial. Sidenote: The State never listed the co-defendant as a witness. He was critical to proving the Tech 9 was in my client's possession. Any attention drawn to that fact, i.e. A Motion for Statement of Particulars could have caused the State to list the co-defendant as a witness. Nevertheless, we objected to the admissibility of the Tech 9 and the rest of the contents of the book bag. Our argument was three-fold:

First, despite the circumstantial evidence showing the Tech-9 was in the vehicle, there was not enough evidence to prove our client was ever in possession of the Tech-9. Second, the State filed a charging document that specified only one felon in possession of a firearm charge. Third, the Tech 9 was not listed in the charging document, and therefore should not be mentioned or introduced into evidence during the trial. The State should not be entitled to enter two guns into evidence to prove one charge. The Court over our objection, allowed the State to introduce most of the contents of the book bag (ammunition, clips), and the Tech-9 into evidence.

For the benefit of the lay person the purpose behind filing a motion-in-limine prior to trial is to prevent mention or the introduction of what you believe to be inadmissible evidence at trial for various reasons. In this case we felt the prior bad acts, or crimes that are not included in the charging document, should not be permitted into evidence (remember the charging document listed one charge of felon in possession of a firearm). We also argued that the ammunition found in the book bag, that was also not included in the charging document, amounted to another crime (felon in possession of ammunition). The Court ordered that everything except for the machete, and the bullet proof vest could be mentioned and/or introduced into evidence at trial. However, the Judge cautioned the State before trial by saying, "I am assuming you will be able to offer evidence that the defendant was in fact in possession of this firearm (Tech 9) during this trial".

During trial the State offered circumstantial evidence that the Tech 9 was in my client's vehicle prior to his stop. However, as expected, they never offered enough evidence to prove he was "in possession" of the Tech 9. At the close of the State Attorney's case we moved for a Judgment of Acquittal as to the Tech 9. The Court granted our motion for judgment of acquittal (essentially a motion to dismiss during trial). The granting of the Motion for Judgment of Acquittal prompted another defense motion. Because the Court allowed the State to introduce the Tech 9 into evidence, over defense objection, and there was no evidence of possession, we felt the Court should grant a mistrial. This evidence was highly prejudicial, and prevents a jury from fairly weighing the evidence during their deliberations. The Court denied our motion for mistrial, but instructed the jury to disregard all mention of the Tech-9 during trial. No defense attorney on the planet feels this type of curative instruction will ever have its desired effect during jury deliberations.

I apologize for the sarcasm, but I would like to describe what goes through the criminal defense attorney's mind when the judge is instructing the jury on this issue:

You mean you want the jury to forget the machine gun the State Attorney paraded around the court room when he introduced it into evidence? You mean you want the jury to forget the testimony about the 30-round clip found in the book bag in the car that just happened to fit perfectly into the Tech-9 that was eventually found in the bushes on the exact path of travel that my client took before he was pulled over by police?

Needless to say I wasn't bursting with confidence that the jury would follow the Judge's instruction and erase the evidence they heard about the Tech-9 from their minds. Thankfully, I was wrong. The jury did just that. If you want to find out more information about firearm charges call us at 813-228-7095 or link to us at tampa criminal attorney.

BOND?

Every defendant, understandably, has the same question after their arrest. When am I getting out? Every criminal defendant is entitled to have a reasonable bond set within 24 hours of their arrest. Some criminal charges have bond amounts assigned to them automatically, and it is possible to bond out before first appearance court. However, the Florida Legislature has mandated that every defendant arrested for an act of domestic violence be held in custody until he is brought before the first appearance judge that will set his/her bond.

VICTIM'S APPEARANCE AT FIRST APPEARANCE COURT

If your spouse or significant other is interested in seeing you released from the County Jail it is important for them to attend your bond hearing at first appearance court. Judge Walter Heinrich oversees first appearance court. If the alleged victim appears at first appearance court Judge Heinrich will be interested in asking her or him a number of questions. First, he warns the victim of the consequences of misrepresenting the truth when answering his questions. The judge is very aware that many victims come to court to recant their statement in the police report in an effort to get the defendant out of jail. Judge Heinrich will notify the victim of the dangers of lying to him (perjury, filing false police report). Once Judge Heinrich is confident that the victim understands his/her rights he will question the alleged victim about the facts of the case, and any concerns he might have about the victim's safety. If Judge Heinrich is confident that the defendant can be released without posing any danger to the alleged victim, then he will set a reasonable bond. However, usually the Judge will impose a number of pretrial conditions to the defendant's release. First, typically the judge orders the defendant to have "NO CONTACT" with the victim. This order is very important because of its impact on the defendant. If the defendant is married or resides with the victim (which is commonly the case) it means he cannot return to the marital home. The defendant is also prohibited from having any verbal or written contact with the victim. As long as this condition of pretrial release is in place it raises a number of other issues. Where does the defendant reside? How can he get some clothes and other items from his home while this condition of release is in place? There are a number of ways to address these issues, but the first step we take is to set a Motion to Modify Pre-Trial Release in front of Judge Nick Nazaretian in order to modify this particular condition to "No Violent Contact". Judge Nazaretian is the judge who will ultimately resolve the domestic violence charge, and he will take a deeper look into these issues. Remember, Judge Heinrich's courtroom has one purpose: To set a reasonable bond, and order conditions of pretrial release. He is not there to decide the facts of the Domestic Violence charge. If Judge Nazaretian feels the situation warrants the removal of the "NO CONTACT" condition he will permit the defendant to have contact. Usually it takes a few days to arrange this hearing. In the meantime we will counsel our client on what steps to take to stay in compliance with the Judge Heinrich's order and address their needs at the same time.

All things considered however, it is very important to have the alleged victim attend the defendant's bond hearing in front of Judge Heinrich? It prevents the judge from having to speculate about the facts of the case, or his concerns for the victim's safety. I do not mean to say that the victim's attendance in First Appearance Court is necessary to get a reasonable bond. It isn't. Judge Heinrich can set bond without hearing from the victim. Either way Judge Heirich will also ask the State Attorney questions about the defendant.

Does the defendant have a criminal past? If so, for what?

Does the defendant have a prior arrest for domestic violence? If so, did it involve the same victim?

DIVORCE OR BREAKUP WITH CHILDREN

If you have been arrested for a domestic violence charge and you are married or have children with the alleged victim there are a number of critical issues that need to be addressed immediately. This criminal charge may be a pre-emptive strike in a custody dispute that will be filed shortly after the defendant's arrest for domestic violence. If so, the decision to call the police may have been the result of a much more a premeditated plan than a call for help. A factor considered by every family law judge to determine custody or visitation is whether one of the parents has committed an act of domestic violence. F.S. 61.13. Likewise, another factor considered by the family law judge is whether "either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence..." Your spouse or former lover may have hired a lawyer before the arrest. The contrived domestic violence charge could have been at the direction of a divorce attorney. Shortly after the arrest the former spouse/alleged victim will file a Petition For a Domestic Violence Injunction in the Domestic Relations Court. If the Domestic Relations Judge gives the alleged victim an injunction against the husband you can be sure her lawyer will go running to the family law judge to complain that the father is a violent man who should have limited contact with his children. In addition, the imposition of a domestic violence injunction is another obstacle to returning to your home. A "no contact" order that flows from first appearance court, and domestic violence injunction are two separate court orders that must be overcome before you can return to your home.

If your spouse has fabricated a criminal charge in the interest of gaining an advantage in Family Court it becomes imperative to prevail not only on the criminal charge, but also on the petition for domestic violence injunction. This type of situation, unfortunately, is more common than you would think.

CAN MY CHARGE BE DISMISSED?

Can my domestic violence charge be dismissed? It depends on the nature of the facts. A number of questions need to be answered:

Is the victim cooperating? While the victim's cooperation with the defense is helpful, it does not necessarily mean that the problem is solved and a criminal lawyer is unnecessary. The State Attorney decides when, and when not to file charges. The victim might be confronted by Victim Assistance and/or the State Attorney assigned to the case to explain why their story has changed since the night of the incident. That is why it is critical to hire an experienced criminal attorney to address the sensitive issues surrounding this situation. Whether the victim is interested in going forward or not is in many ways a minor issue for the State Attorney (prosecutor). What matters most to the prosecutor is whether he or she feels they can prove the charge beyond a reasonable doubt. It is our job to convince the State Attorney and/or the Judge that the charge cannot be proven beyond a reasonable doubt. Whether the victim is cooperating or not you must address a number of other issues before you can determine whether the domestic violence charge will be dismissed short of trial

1) Was alcohol involved?
2) Who called 911?
3) Were there any injuries?
4) Were photographs of the injuries taken?
5) What is victim's motive to falsely accuse?

Domestic violence charges can be more complicated than they at first appear. Moreover, if you fail to vindicate yourself the ramifications (domestic violence injunction/custody dispute) can be far reaching.

For more information on domestic violence call us at 813-228-7095 or link to us at Tampa Criminal Attorney.

This case starts with a number (5) of juveniles breaking into a cart barn at a local golf course. Fifteen golf carts were stolen damaged ($30,000.00 worth of damage). Some were found in the lakes surrounding the golf course. Our client was one of two of the juveniles found walking nearby shortly after the break-in. Initially, they were confronted by golf-course security. When police arrived they stopped the two juveniles and questioned them about the break-in. One Hillsborough county sheriff deputy talked to the co-defendant, and the other spoke to our client.

Had the deputies spoken to the golf course security before approaching the juveniles they may have been armed with the reasonable suspicion necessary to conduct a temporary detention of my client. Many officers approach juveniles much differently than adults. They expect to encounter a frightened juvenile that is not only terrified of going to jail, but also of what their parents are going to do to them (at least when you are in an upscale golf community). Ultimately, they expect a lot of cooperation. Juveniles share the same privacy rights as the rest of us, but because of age, and an expectation of cooperation, law enforcement gives less consideration to their rights. The Deputy only knew that a burglary had occurred at the golf club. He didn't know the age of the suspects, what they looked like, or what they were wearing. This lack of information made the detention of my client illegal. We filed a Motion to Suppress the stop of the client, and another motion to suppress the statement he gave law enforcement.

Shortly after he was stopped the Deputy read Miranda to him. According to the Deputy the juvenile chose to waive his Miranda rights and answer the officer's questions. There is no bright-line rule that renders a confession by a juvenile involuntary, but the burden is much higher when determining a juvenile's waiver of Miranda as opposed to an adult's waiver of the Miranda rights. Here, the officer claimed that my client made a knowing and voluntary waiver of his Miranda rights. However, when you look at the totality of the circumstances surrounding the statement the Court decided the waiver of Miranda was not voluntary. Some issues the Court considers in making that determination are the following:

1) The manner in which the Miranda rights were administered, including any cajoling or trickery.
2) The suspect's age (in our case he was 15 years old), experience, background, and intelligence.
3) The fact that the suspect's parents were not contacted, and the juvenile was not given an oppurtunity to consult with his parents before questioning
4) The fact that the questioning took place in the station house, and
5) The fact that the interrogators did not secure a written waiver of the Miranda rights at the outset

In our case the parents were contacted, but the juvenile was never given an opportunity to consult with them. During his statement to the Deputy our client did admit involvement in the crimes.

We filed two motions claiming the stop of our client was unlawful and another motion claiming that the juvenile's statement to police should be suppressed because he did not voluntarily waive his Miranda rights.

After Judge Campbell heard the State's evidence as to the stop of our client she granted our motion to suppress the evidence emanating from the stop. Because the granting of our motion to suppress the stop was dispositive of the case, the Court had no reason to address our second motion.

If you should have any questions about unlawful stops and/or how law enforcement should legally take someone's statment call us at 813-228-7095 or link to Tampa criminal attorney.

Section (a) describes the basic threshold requirements that must be present before the Courts will even consider the introduction of this testimony. Unless there are some indicators of untrustworthiness a statement from a child with a physical, mental, emotional, or developmental age of 11 or less describing an act child abuse or neglect, any act of sexual abuse against a child, the offense of child abuse, the offense of aggravated child abuse, or any offense involving an unlawful sexual act, contact, intrusion, or penetration performed in the presence of, with, by, or on the declarant child, not otherwise admissible, is admissible in evidence in any civil or criminal proceeding if:

1. Subsection 1 sets out the procedural requirements that the Court must adhere to in order for the statement(s) to be admitted into evidence. The Court must conduct a hearing outside the presence of the jury to determine whether the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making that determination the Court can consider the following:

a. Mental and physical age of the child
b. Maturity of the child
c. The nature and duration of the abuse or offense
d. Relationship of the child to the offender
e. The reliability of the assertion
f. The reliability of the child victim
g. Any other factor deemed appropriate; and

2. The child either:

a. Testifies; or

b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the Court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to 90.804(1).

The rule requires an additional finding of corroborative evidence of the abuse only if the child is unavailable. The rule requires other "corroborative evidence" where the child is unavailable to ensure that no defendant is convicted solely on hearsay evidence. If the child is testifying the court does not need to determine the additional factor of corroborative evidence. However, it is important to appreciate what qualifies as "corroborative evidence" in any child abuse/sex crimes charge because if there is corroborative evidence of the child's allegation it could determine two very critical issues at trial:

1) Will the child hearsay statements of an unavailable child be admitted at trial? And

2) Will there be enough evidence for the State to get passed the defense's motion for Judgment of Acquittal?

Typically, it is impossible to prove someone's guilt based solely on a prior inconsistent statement. Prior inconsistent statements by themselves are not substantive evidence. It takes substantive evidence for a jury to rule beyond all reasonable doubt that a defendant is guilty. Corroborative evidence becomes a critical issue in sexual abuse cases because impeachment standing alone is not sufficient evidence to convict someone. The Florida Supreme Court and the Florida Appellate Courts have addressed this issue in a number of cases. It has been determined that a prior inconsistent statement by a child with additional corroborative evidence could make the statement substantive for evidentiary purposes. This could lead to a lawful conviction in the eyes of our Courts. (See Florida Supreme Court decisions in Baugh, and Beber).

What qualifies as "corroborative evidence"?

1) The defendant's own statement to law enforcement.

2) Physical evidence that a child has been abused

3) Even denials can have inculpatory details that qualify them as "corroborative".

4) Similar fact evidence (William's Rule Evidence).

What doesn't qualify as "corroborative evidence"?

1) The child's own statements can never qualify. (the "other corroborating evidence" within the meaning of the hearsay exception denotes evidence derived from a source other than the child victim's own statements).

2) Statements of future intent (that a person wants to have sexual contact with a child).

3) A counselor's subjective belief in the veracity of a child's hearsay statement.

The other aspects of the rule require the State to notify the Defense within 10 days of trial that a statement which qualifies as a heasay exception pursuant the Child Hearsay Rule will be offered as evidence at trial. The notice must contain the content of the child's statement, the time at which the statement was made, and the circumstances surrounding the statement which indicate its reliability. The Court must make specific findings of fact, on the record under this rule.

If you would like to find out more about "child hearsay" and its impact in court call us at 813-228-7095 or link to Tampa criminal attorney.

How does law enforcement become aware that someone has downloaded child pornography? Photographs or video images on a computer contain certain traceable digital code. Law enforcement has collected thousands and thousands of digital images (child pornography) which contain the traceable code. This code can be traced by any internet service provider (AOL, Internet Explorer, Safari...etc...). The internet service provider's server is equipped to identify these digital images and the subscriber that has transmitted them. If the internet service provider is notified that someone has disseminated child pornography over the internet they are then required by federal law to report the dissemination of this material over the internet to the National Center for Missing and Exploited Children (NCMEC). The NCMEC then reports the transfer of this material to local law enforcement. Law enforcement receives the photographic images from the NCMEC and reviews them. Once they determine that the images are in fact child pornography the police subpoena the internet service provider for the subscriber information for the specified screen name. Once law enforcement is in possession of this information they are prepared to draft an application for a search warrant for the subscriber's home.

Some have questioned the reliability of the information contained in these search warrants. These search warrants do not specifically identify the internet service provider's employee (business records custodian) charged with receiving and reporting the information to NCMEC. This brings us to the procedures followed by law enforcement in applying for a search warrant and what information must be contained in every search warrant.

It is important to understand the role of the judge in this criminal investigation. Without a search warrant law enforcement would be unable to enter someone's home and collect this evidence. Before a judge or magistrate signs off on a search warrant they must determine whether there is probable cause to believe the contraband described in the warrant is present in the residence. The United States Supreme Court sums up the analysis each magistrate must apply to determine if probable cause exists:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

The Second District Court of Appeals in Florida has determined that the information received from the internet service provider in the fashion described above is reliable and satisfies the probable cause requirement for any search warrant. The Court has also ruled that the internet service provider described in the scenario above qualifies as a "citizen informant". In the Woldridge opinion the 2nd DCA stated:

In addition, AOL was acting in a manner analogous to that of a citizen informant when it forwarded the information to NCMEC. "A citizen-informant is one who is 'motivated not by pecuniary gain, but by the desire to further justice.' " State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (quoting State v. Evans, 692 So.2d 216, 219 (Fla. 4th DCA 1997) (quoting State v. Talbott, 425 So.2d 600, 602 n. 1 (Fla. 4th DCA 1982), and Barfield v. State, 396 So.2d 793, 796 (Fla. 1st DCA 1981))). A citizen informant is one who "by happenstance finds himself in the position of a victim of or a witness to criminal conduct and thereafter relates to the police what he knows as a matter of civic duty." Evans, 692 So.2d at 219 (quoting Wayne R. LaFave, Search and Seizure § 3.3 (3d ed.1996)). As a general rule, the reliability of a tip from a citizen informant is presumed, and corroboration of the tip is not generally required. Maynard, 783 So.2d at 228; Gonzalez, 884 So.2d at 334.

The code associated with these images has enabled law enforcement (through private companies) to develop software aimed at tracking and following anyone who might view and/or disseminate this material on the internet. At the present time many people are viewing child pornography on pier to pier networks. These networks are monitored by law enforcement every moment of the day with the same type of software. In the Court's view the way information is transmitted over computers allows law enforcement to employ very reliable methods upon which to base a search warrant of someone's home.

To learn more about the issues surrounding a search warrant for child pornography you can call us at 813-228-7095 or link to tampa criminal attorney.

If you would like more information about violations of probation in Tampa you can call us at 813-228-7095 or link to tampa criminal attorney.

To find out more about this case link to tampa criminal attorney or call us at 813-228-7095.

The oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bone fide medical purpose.

Rape charges vary in degree and exposure to prison based on the aggravating circumstances surrounding the allegations. This particular rape charge was a second degree felony punishable by a maximum of 15 years in Florida State Prison.

After a night of heavy drinking the defendant, his wife, and his step-daughter returned to their motel room on Clearwater Beach. At some point the client's stepdaughter passed out in the bathtub with the shower head running. She woke up, turned off the water, and went back to sleep. When she woke up a second time she claimed our client was on top of her in the tub. The Clearwater Police Report goes on to state the following:

While lying in the tub with her eyes closed, she felt someone getting on top of her. She opened her eyes and observed the suspect on top of her. She yelled for him to get off of her and began pushing him. He proceeded to try and kiss her face and neck. She continued yelling at him to get off of her as she struggled to get him off. However, he was able to forcibly spread her legs apart and vaginally penetrate her with his turgid penis. Elizabeth said it was painful and she continued to yell. She said the suspect eventually stopped and got off of her. She was unsure why or how long he was on top of her. She was also unsure if he ejaculated, but said he was not wearing any type of protection.

In light of the victim's statements she was directed to submit to a sexual assault examination. The results were inconclusive in some ways and revealed facts that were not consistent with the victim's story. Consequently, we had our client submit to a polygraph examination. Polygraph examinations can be extremely helpful in a number of different ways. Once the sexual assault examination revealed no direct physical evidence of rape the State's rape charge eventually came down to a war of credibility. This is where polygraph examinations can be extremely useful. As most people know the results of a polygraph examination are inadmissible in a court of law in almost every circumstance. As long as a polygraph examination is done confidentially the results are of no consequence when they are negative and very beneficial when they are positive. In other words, submitting to a confidential polygraph examination can only help a charged defendant. However, it is important to recognize that the results of a polygraph can vary among examiners. Some examiners are so heavily respected by the State Attorney that their results are given a lot of weight (which can sometimes to a dismissal of a criminal charge).

In this particular case we never revealed the results of our polygraph examination to the State (they were not positive). Ultimately, we argued to the State Attorney that the victim's story was not credible based on some critical facts. The State agreed and took steps to remove the rape charge against our client.

To learn more about the facts of this case link to tampa criminal attorney or call us at 813-228-7095.

This definition in turn begs the question what is "sexual activity". "Sexual activity" means the oral, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bone fide medical purpose.

The less serious offense of lewd and lascivious molestation requires much less in the way of sexual contact:

A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

The victim alleged that he engaged in a sexual relationship with our client over a two year period. It ended when he revealed the relationship to his father. When law enforcement arrived they interviewed the victim. The victim told the police that he had a sexual encounter with our client the night before. This prompted the detective to instruct the victim to submit to a sexual assault examination. A swab from the victim and a swab from the inside of the client's mouth were eventually sent to the FDLE (Florida Department of Law Enforcement) for a DNA comparison.

These DNA samples that are transported and analyzed for comparison are very vulnerable to cross-contamination. This vulnerability has led to stringent procedures that must be followed when handling DNA samples. There are numerous ways in which a DNA sample can become contaminated. For example, cross-contamination can occur whenever swabs from separate DNA samples contact each other. Cross-contamination can also occur when one swab is placed in the same area as the other during testing. Cross-contamination will usually lead law enforcement to conclude someone's DNA is present when it is actually absent. According to the FDLE our client's DNA was found in an area that confirmed our client had penetrated the victim, and the likelihood it was someone else's DNA was 1 and 39 quadrillion. For obvious reasons, the power of this evidence is hard to overstate.

We challenged the DNA by claiming cross-contamination. A number of facts arose that made this argument plausible. During trial the lead Detective claimed that he transported both DNA samples (the victim's and the defendant's) to FDLE. The FDLE lab technicians testified that the DNA samples were received from a different member of the Hillsborough County Sheriff's Department. This conflict in the evidence caused concerns about the handling of the samples and their exposure to cross-contamination. As a consequence, during deliberations the jury asked the judge to answer the following question:

How does the law define penetration?

Many would surmise, based on the verdict that the jurors were questioning the validity of the DNA results in light of the contamination argument. The State disputed the idea that the DNA results were the result of cross-contamination of the two swabs. However, there were questions about the State's DNA evidence that went unanswered. The jury refused to accept the argument that there was only a 1 and 39 quadrillion chance that the defendant didn't commit the offense of lewd and lascivious battery where there was a question of cross-contamination.

Most trial attorneys shy away from making predictions on a verdict based on questions from a jury to the Court. Unfortunately, it's impossible to stop your mind from speculating when you're waiting on the verdict. Our concern was the strong emotions that are usually associated with sex cases and how those emotionis can cause some jurors to ignore the law and/or the facts when deliberating over charges like these. As a defense attorney, the last thing you want to hear is a juror say that they found someone guilty based on a "gut feeling". No juror has been convinced of the defendant's guilt beyond all reasonable doubt when the decision is made on a "gut feeling". Getting rid of jurors with this mentality during jury selection (especially in a sex case) is obviously very important. Fortunately, the jurors selected in this case applied the law to the facts. Instead of clinging to the 1 and 39 quadrillion argument and finding our client guilty as charged they followed the law without the emotion usually associated with these charges.

To find out more about this case please link to tampa criminal attorney or call us at 813-228-7095.

A deposition was conducted of Deputy Angelo. She acknowledged that she hadn't smelled an odor of alcohol until she ordered our client out of the vehicle. The issue then became whether our client was legally parked in the gas station parking lot. If so, the deputy's actions would be illegal. We filed a motion to suppress the stop of our client. The State Attorney ran into a number of difficulties bringing forth the proper evidence to prove our client was illegaly parked.

To find out more information about this case link to tampa criminal attorney or call us at 813-228-7095.

The client was arrested for DUI in North Tampa by the Hillsborough County Sheriff's Office. She was very unfamiliar with the area and when she left the local bar she attempted to follow a friend home. After the stop of her vehicle she performed field sobriety tests and failed. She was then transported to the Orient Road Jail. She agreed to blow into the breathalyzer and the results were .125 and .126. The legal limit in the State of Florida is .08. The officer that stopped the client was a special DUI enforcement officer. His patrol car was equipped with a video camera that documented our client's driving pattern. Sometimes the officer's camera can benefit the Defendant's case. Link to our website to learn the difference between stops conducted by a regular patrol officer and a special DUI enforcement officer.

We have represented this particular client on a previous violation of probation which was also dismissed. His gambling problem, however, persisted. The gambliing led to a drug addiction which made complying with probation extremely difficult. The cilent was alleged to have violated his probation by failing to appear at the probation office on 4 different occassions. He was also required to pay the victim restitution for his crime. The client's parent's kicked him out of their house and the client was forced to live on the streets. This prevented him from attending his probation meetings. Before he was arrested he voluntarily entered himself into a gambling treatment program. See our website for background on how this case was resolved before the Court. While our Courts our interested in seeing many of the defendants become productive members of society, every judge will tell you that there is a point at which the defendant cannot be helped. Battling a gambling and drug addiction is very difficult, and the Courts recognize the obstacles. The Court in this case was willing to give our client another chance to prove that he could successfully complete his supervision.

Facts: Our Client, a prominent local business owner, was pulled over a few blocks from his house under suspicion of DUI. After submitting to roadside field sobriety exercises, the client was arrested and transported to central breath testing at the Hillsborough County Jail. He later refused to take the breath test.
After reviewing all of the evidence in the case, we determined that there was very little evidence that our client was too impaired to drive safely. Due to the fact that the client refused the breath test, the evidence of impairment was limited to the officer's observations at the time of the arrest and the video of our client's performance on the field sobriety exercises. Although the officer reported that the client appeared to be clearly intoxicated, the video told a very different story. The client's demeanor and behavior was consistent with a person who was very tired, not drunk. His performance on the FSE's was not perfect, but it was far better than the officers report reflected.
Result: After setting the case for trial, the prosecutor reduced the charge to reckless driving and offered to withhold adjudication. The client was not convicted and his record was sealed.

LEGISLATIVE INTENT:

In order to understand the true purpose of the statute it is important to examine the Legislative Intent which is conveniently located in subsection (1). It states the following:

It is the policy of this state that persons committing serious criminal offenses, posing a threat to the safety of the community or the integrity of the judicial process, or failing to appear at trial be detained upon arrest. However, persons found to meet specified criteria shall be released under certain conditions until proceedings are concluded and adjudication has been determined. The Legislature finds that this policy of pretrial detention and release will assure the detention of those persons posing a threat to society while reducing the costs for incarceration by releasing, until trial, those persons not considered a danger to the community who meet certain criteria. It is the intent of the Legislature that the primary consideration be the protection of the community from risk of physical harm to persons.

As the last sentence clearly states the primary consideration is the "protection of the community from risk of physical harm to persons". Other important concerns involve assuring the accused's presence at trial, and assuring the integrity of the judicial process.

DOES MY CLIENT QUALIFY FOR PRE-TRIAL DETENTION?

There is a number of factors that must be considered before you can determine whether your client is eligible for pre-trial detention.

1) You must first determine whether your client has been charged with a "dangerous crime". The "dangerous crimes" are listed in subsection four (4) of the statute. This issue is very going to be black and white for the most part. Either you have been charge with one of the enumerated offenses or you haven't.

2) Subsection (b) of the statute just states that if charged with a dangerous crime you must have atleast some monetary condition imposed at first appearance court. However, remember the mandatory monetary conditions seem to apply only at "first appearance" court. The Court has the discretion to release the accused on a monitor or on his own recognizance if the circumstances warrant it at a later point in time.

3) Subsection (c) sets out the criteria under which the Court can detain someone pretrial. Subsection (c) sets out the standard the court uses to determine if pretrial detention is appropriate. There must be a "substantial probability", based on the defendant's past and present patterns of behavior, the criteria in florida statute 903.046 (which is simply bail statute), and any other facts that show the following circumstances exist:

1) Defendant has previously violated his pretrial release

2) Defendant has attempted to obstruct the judicial process (threatening witnesses, jurors, victims...etc.)

3) Defendant is charged with trafficking, and there is a substantial probability that he committed offense;
and no way to assure his appearance at a later criminal proceedings

4) Defendant is charged with DUI Manslaughter, there is a substantial probability that defendant committed
the crime; and the defendant poses a threat to community. See statute for circumstances that create
a "threat to community".

5) Subsection (5) describes the typical scenario faced by criminal attorneys. Under this section the
defendant must "pose a threat of harm to the community". The Statute sets out what factors the Court
should consider in determining whether the defendant poses a threat. You must be (1) charged with
a "dangerous crime"; there must be (2) a substantial probability that the defendant committed the crime;
(3) the factual circumstances of the crime must indicate a disregard for the safety of the community;
and (4) there is no condition of release that would sufficiently protect the community from risk of
physical harm to persons.

6) The defendant was out on parole, probation, or another form of release when the "dangerous crime"
was committed.

7) The defendant has violated one or more conditions of his pretrial release for the offense currently
before the court, and no conitions of release could assure the protection of the community or the accused
accused's presence at trial.

The remaining aspects of the statute speak about the procedures that should be followed by law enforcement, and the state attorney's office when someone is arrested for a dangerous crime. It allows the arresting agency to hold anyone charged with a dangerous crime for 24 hours while the state files a motion for pretrial detention. The statute also points out that it is the State's burden to show a need for pre-trial detention. While the Court can admit relevant evidence without complying with Florida's rules of evidence, no evidence can be admitted that has been secured in violation of the Florida or United States Constutions. The statute also directs the Court on the procedures to be followed when it makes its findings to detain the defendant pretrial, and under what circumstances defense counsel can move the court to release the client after a determination of pretrial detention is made.

Tampa Police Department recieved a citizen's complaint about several black males selling drugs in front of the vacant apartment located at 2908 E. 22nd Avenue in Tampa. The QUAD squad (division of the tampa police department responsible for deterring drug activity) of the Tampa Police Department received the information and responded to the call by conducting surveillance in front of the apartment complex in the hopes of arresting the dealers and anyone who purchased from them. Our client (defendant) drove to the apartment complex and brought cocaine from a dealer. The officer surveilling the complex believed he witnessed a hand to hand transaction between our client and the dealer, so he radioed other officers waiting outside the area, and our client was followed for about a mile and a half before being pulled over. Shortly before he was pulled over the officers saw the client briefly open his car door and then shut it while the car was moving. The officers stopped his vehicle, and cited him for opening a car door while it was moving. While they wrote the client a ticket the officers asked him for consent to search his vehicle (feeling he had just purchased cocaine from the dealer). He agreed, and the officers found a baggie of cocaine in the middle console. The client (defendant) was arrested and charged with possession of cocaine. The tampa police officers felt the stop of the client's vehicle was justifiable on two separate grounds. One, the officer conducting surveillance believed he saw a drug transaction take place between our cient and the dealer. Two, even if the officer did not witness a "drug transaction", the defendant committed a traffic infraction, which easily justifies the stop of his vehicle. The consent to search the vehicle was voluntary, so the only way to attack this case was by disputing the validity of the stop. We filed a motion to suppress the legality of the stop of our client's vehicle, and the State Attorney eventually agreed to DISMISS the possession of cocaine charge. Find out how the tampa criminal attorney successfully defeated the charge by challenging the legality of the client's stop.

The client (defendant) was on felony probation for a number of theft related offenses. Like many people with a serious drug problem, he turned to theft to support his drug habit. He made strides while on probation, but continued to run with friends who dealt in drugs. The night of his arrest the client was actually driving in his father's van with a dealer who was being surveilled by the Tampa Police Department's QUAD SQUAD (a specialized division of the tampa police department focused solely on drug detection and prevention). The client noticed that he was being followed by the police department and dropped off his friend. The Tampa Police continued to follow the van and eventually stopped the client at a gas station. They searched his vehicle and found drugs. The client was arrested for the drug charge and for violating his probation. He was taken into custody and given no bond on his violation of probation. Find out how the Tampa Criminal Lawyers got the defendant out of jail, and brought about the dismissal of the drug charge and the client's 4th violation of probation.