Claris Law Legal Blogging Community

Editor: Tampa Criminal Attorneys
Profession: Tampa Defense Attorneys

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.

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").

To learn more contact 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.

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.

Florida's Pre-Trial Detention Statute Should NOT Be Used As a Form Of Punishment

Category: Legal Updates

I am currently defending a client on a very serious capital offense in Tampa. The allegations against my cilent are over 24 years old and pre-trial investigation has led us to information that contradicts the victim in a number of very significant ways. My client also left the city of Tampa over eight years ago, and currently resides out of state. Despite the fact that there is almost no chance that my client would pose a threat to our local community, the State Attorney filed a motion requesting the Court to take him into custody after he posted bond on the charge. The law permits the State to make this request pursuant to Florida Statute 907.041. The statute is titled pretrial detention and release. This statute obviously serves a very important public purpose, but it should not be used by the state as a form of punishing the defendant prior to trial. The legislative intent of this statute is to prevent an especially dangerous defendant from being released back into the community when there is a strong possibility that he or she could victimize another member of our community before his trial. Some over zealous prosecutors see this statute as an oppurtunity to incarcerate a criminal defendant before he/she has ever been convicted. The State in my case agreed to strike their motion for pretrial detention, and my client was also permitted to travel, but that does not change that fact that this particular statute could be abused by certain prosecutors. The following is a summary of what I feel is the most important aspects of the statute.

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.

Florida:Evidence:State of Mind Exception

Category: Legal Updates

Under Florida Statute 90.803(3)(a)2 when someone describes an intent to do an act and there is sufficient evidence to conclude that the act was executed the statement is admissable under the state of mind exception to the hearsay rule. Ibar v. State, 31 F.L.W. S149 (Fla. 3/9/2006) The defendant in Ibar was convicted of three counts of first degree murder. During the trial the State called a witness that testified that Alex Hernandez (a man the defense proposed committed the murders) intended to go out of town on the weekend of the murders. The State ultimately argued that Mr. Hernandez was properly ruled out as a suspect because he was out of town. The Florida Supreme Court ruled that the statement made by the state's witness was hearsay because there was no evidence introduced by the state that supported the declarant's (Hernandez) intent to actually go to North Carolina.

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Limiting Hypotheticals in Jury Selection

Category: Legal Updates

The Third District reaffirmed the rule that permits defense counsel to use hypotheticals in jury selection so long as they do not relate to the facts of the case. Ferreiro v. State, 31 F.L.W. D2166 (3d DCA 8/16/2006). In Ferreiro the defendant was charged with sexual battery on a minor under 12 years of age. Defense counsel asked prospective jurors if they believed "a girl could come to court and lie about being raped". The trial judge would not permit defense counsel to say "a girl" because it was too close to the facts of the present case. The appellate court cited an old Florida Supreme Court case that first addressed these types of issues in voir dire. In Pope the Florida Supreme Court stated that hypothetical questions are permitted in voir dire so long as they make a correct, "reference to the law of the case that aid in determining whether challeges for cause or peremptory are proper". Pope v. State, 94 So. 865 (Fla. 1922).

Officer Must Inform Suspect of Reason for Arrest

Category: Legal Updates

A police officer must inform the suspect of the reason for his arrest. If an officer fails to inform a defendant as to why he is being arrested it could make the arrest illegal. While the failure to inform the suspect does not make the arrest per se illegal it is a factor that can be used by the jury when determining whether the defendant's actions were reasonable under the circumstances. When evidence is introduced at trial that the defendant only asked the officer why he was being arrested when the officers struck him and handcuffed him, the defendant is entitled to an instruction on the provisions of Florida Statute 901.17. Albury v. State, 30 F.L.W. D2242 (2d DCA 9/21/2005). The Second District ultimately felt the jury was entitled under statute 901.17 to determine whether the defendant asking the officers the reason for his arrest was a legitimate lawful action or resisting arrest under the circumstances.

"911" Call Admissable Without Victim's Testimony

Category: Legal Updates

A 911 call that is admitted under the excited utterance or spontaneous statement exception under 90.803(1)and (2) is not "testimonial" hearsay and is admissable as evidence. Bartee v. State, 31 F.L.W. D815 (5th DCA 3/17/2006). The Fifth district relied on the analysis set out in Crawford v. Washington by the United States Supreme Court. By contrast the 5th DCA ruled that the statements made to law enforcement by the victim were testimonial in nature, and not admissable. The Court felt that the statements were made after the defendant had left the scene, and the statements were in direct response to police questioning. In addition, the victim had every reason to believe that her statements could be used to prosecute the defendant.

Once the Court determined that the statements to police were testimonial in nature the court then addressed the second part of the analysis. Neither side was ever able to produce the victim as a witness, and she was never subject to cross examination. As a result, the statements made by the victim to law enforcement should not have been admitted. While Mr. Bartee's case was reversed on appeal, the reversal only pertained to the burglary charge and the convictions as to false imprisonment and battery were upheld.

Florida Supreme Court Defines Out of Court Identification as Non-Hearsay

Category: Legal Updates

Florida's Supreme Court recently specified what would qualify as non-hearsay with regards to statements of identification. Ibar v. State, 31 F.L.W. S149, (Fla. 3/9/2006). Many courts have permitted witnesses to testify to out of court statements of identification made by victims without regard to circumstances of the statements. The Court in analysing section of 90.801(2)(c) of Florida's evidence code concluded that the only statements that would qualify as non-hearsay under that section would be one that occurred shortly after the victim actually observed, or "perceived" the person being identified. The Court felt that this type of statement is non-hearsay only when shortly after the criminal episode the victim sees the defendant and says, "that's the man". "To extend the rule that far would permit countless repetitions by a witness to others, regardless of time and place, of the witnesses' belief as to the guilty party, a result we do not believe intended by the drafters of the rule".

Single photo in Lineup not Unnecessarily Suggestive

Category: Legal Updates

The 3rd DCA ruled that while using a single photo to identify a defendant was unnecessarily suggestive it did not warrant suppression of the defendant's identification. Gillis v. State , 31 F.L.W. D1520 (3d DCA 5/31/2006). Both witnesses to the murder of the victim were familiar with the defendant. This fact along with other factors...i.e. ((1) the oppurtunity of the witness to view the suspect at the time of the crime, (2) the witnesses degree of attention, (3) the accuracy of the witnesses prior description of the suspect, (4) the level of certainty demonstrated by the witness at the time of the confrontation, (5) and the legth of time between the crime and the confrontation, caused the 3rd DCA to agree with the trial judge's decision to deny the defendant's motion to suprress. These factors were set out the in the United States Supreme Court decision of Neil v. Biggers. Neil v. Biggers,409 U.S. 188, 199-200 (1972). It seems the single photo ID many times will be suppressed, unless circumstances similar to this case are present.

Tampa DUI Case Law

Category: Legal Updates

The First District Court of Appeals cited the Bender case to support its decision to find fundamental error in Leveritt v. State. Leveritt v. State, 31 FLW D424, (Fla. 1st DCA 2006). "For evidence of a person's blood alcohol level to be admitted outside of the impled consent law and regulations promulgated thereunder, the party seeking the introduction of the evidece must satisfy the three-pronged common law test set forth in State v. Bender, 382 So.2d 697, 699 (Fla. 1980)". The proper predicate to admit scientific evidence of impairment requires that: (1) the test was reliable, (2) the test was performed by a qualified operator with proper equipment, and (3) expert testimony was presented concerning the meaning of the test.

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Florida Supreme Court upholds Search Incident to Illegal Stop

Category: Legal Updates

The Florida Supreme Court ruled recently that an illegal stop may not invalidate the search of a defendant's vehicle where he has an active warrant for his arrest. State v. Frierson, 31 F.L.W. S81(Fla. 2/9/2006). The Court followed the U.S. Supreme Court's analysis set out in Brown. Brown v. Illinois, 422 U.S. 590 (1975). In Brown the U.S. Supreme Court considered three factors in determining whether the initial illegal detention tainted the subsequent search (1) the time elapsed between the llegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.

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Negotiated Plea With State Prevents Mitigation

Category: Legal Updates

The 2nd DCA recently readdressed a sentencing issue involving negotiated plea agreements with the state. Where a defendant enters a negotiated agreement with the state attorney, especially where he receives a below guidelines sentence, he cannot later request the court mitigate his sentence. State v. Szempruch

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Initial Coercion May Not Exclude All Statements

Category: Legal Updates

The 4th DCA has ruled that although an initial confession in a police station may have been coerced and correctly suppressed by the trial court, a subsequent statement surreptitiously taped by the police is lawfully admitted as long as the initial illegality is" sufficiently attenuated" from the second statement. Lundberg v. State

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Exclusionary Rule does not apply to illegal strip search

Category: Legal Updates

The second district court of appeals in Jenkinsv. State certified a conflict with the fourth district when it ruled that suppression of evidence is not the proper sanction when law enforcement violates the strip search statute (Florida Statute 901.211(1)). The fourth district addressed this issue in 1996 when it ruled in D.F. v. State that evidence collected in violation of the statute should be suppressed. Until now the second district seemed to agree with the 4th district's interpretation of the statute. The first question brought to mind by the Court's ruling is how could the search violate the strip search statute and not violate the 4th Amendment?

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