firearmsThe justice system understands that sometimes an individual needs to use deadly force against another in order to defend themselves. “Self-defense” is what is called an affirmative defense. An affirmative defense means that the defendant is acknowledging that they committed the crime they are charged with, but that they had a reason that is legally sufficient to make them not culpable. In other words, typically the prosecution is the only side that needs to prove something. However, with an affirmative defense, the defense also has a burden now to prove the elements of the defense. This case addresses what specifically the defense needs to prove, and the jury instructions around this proof. If you are involved in a situation where you needed to use self-defense to protect yourself or another, you should contact a knowledgeable Clearwater violent crimes defense attorney to help you with your defense.

Facts of the Case

The defendant was charged with the first-degree murder of his employer/landlord and the attempted first-degree murder of a neighbor. There was a confrontation between the defendant and his landlord and he began shooting. The defendant alleges that he acted in self-defense based on his landlord reaching for a dark object in his pocket and previous threats by his landlord. The defendant also alleged that the neighbor threatened him as well and attempted to throw a microwave at him. The neighbor survived the shooting but the landlord did not.

The state’s version of events differed. They alleged that the defendant was the aggressor and that both of the victims were unarmed. Under this version of events, self-defense would not be an applicable affirmative defense, since it cannot be used when the defendant was the aggressor.

Continue Reading

mugging robberyIn criminal cases, the burden of proof is on the prosecution to prove that the defendant committed all the elements of the crime. Specifically, the prosecution has the burden to prove these elements beyond a reasonable doubt. In a case recently heard by the Florida Third District Court of Appeal, the court reversed a conviction after the prosecution was found to have impermissibly shifted the burden of proof to the defendant. Your knowledgeable Clearwater criminal defense attorney can help you understand exactly what the court needs to prove in your situation.

Facts of the Robbery

A woman was walking home from the grocery store when she was hit from behind. She turned around and was hit again. The man who hit her took her cell phone and ran off. A couple of weeks later when she was walking home from her son’s school, the woman saw the man that she believes robbed her. The defendant in this case testified that he was at school in band practice when the assault happened.

probationMany people who are convicted of crimes in Florida will have to serve a term of probation as part of their sentence. Probation is a punishment somewhat in between incarceration and freedom. The specifics can differ depending on the individual and their charges, but when someone is on probation they may be subject to drug testing, curfew, mandated counseling, or any other requirement that the court imposes. Many defendants prefer probation over incarceration for obvious reasons, but if someone violates the conditions of their probation they may face a longer jail sentence than they would have initially. If you are offered a plea deal that includes probation, you will want to make your decision in consultation with your knowledgeable Florida criminal defense attorney.

Probation Violation in Florida

Probation can make otherwise lawful activity unlawful. For example, while of course it is usually legal for adults to be out of their home after 9pm, if being home by 9pm is a condition of your probation, you can be arrested for being out later than that. Another interesting aspect of probation is that the standard of proof is different than with criminal court. In order to prove a violation of probation, the state does not have to prove the violation beyond a reasonable doubt. Those charged with a violation of probation will also not have the opportunity to go in front of a jury but will instead be subject to the judge’s ruling. If a judge finds that a defendant has violated their probation, they can be sentenced to the maximum amount of time permitted for the underlying charge. The court will look at the conviction which led to the probation, not the conduct that violated the probation.

behind barsThe United States criminal justice system is based on the idea that defendants are innocent until proven guilty. The court wants to make sure that when someone is found guilty by a jury, they are actually guilty. There are safeguards built into the criminal justice system to protect innocent defendants from being found guilty. In practice, that means that there needs to be adequate evidence to uphold a conviction. If you have been charged with or convicted of a crime, your experienced Clearwater criminal defense attorney can help you make sure that the prosecution is forced to meet their burden of proof. If they don’t, or later an appeals court determines that there was not enough evidence to uphold the conviction, your conviction may be overturned.

Florida Evidentiary Burden

In Florida – as in the rest of the country – the prosecution has the burden of proving each element of the crime beyond a reasonable doubt. It is up to the jury to decide whether or not the prosecution has met their burden. Whether there is enough evidence to sustain the conviction is a question that only comes up on appeal, since of course there cannot be a conviction until after the trial. Thus, if a defendant is convicted of a crime and believes there was not enough evidence to uphold the conviction, they can appeal the decision.

car accidentIf you are charged with DUI in Florida, you may be facing serious consequences depending on your blood alcohol content, whether you have had previous DUIs, and a number of other factors. However, if you are driving while intoxicated and cause the death or serious injury of another person you may face an even harsher sentence. That’s why it is so important to work with an experienced Clearwater criminal defense attorney if you are charges with DUI manslaughter or another crime.

DUI Manslaughter

If you are convicted of DUI manslaughter in Florida you will be required to spend a certain amount of time in jail. The Florida Criminal Code classifies DUI manslaughter as a crime with a mandatory minimum sentence. That means that there is a certain amount of time that everyone convicted of DUI manslaughter must spend in jail and the judge does not have the discretion to lower that sentence (though they can order more time be served). In Florida, the mandatory minimum sentence is four years for DUI manslaughter.

Though the mandatory minimum sentence is four years, those convicted of DUI manslaughter in Florida can get up to fifteen years in prison and fifteen years of probation. However, the presumptive amount of jail time for a DUI manslaughter conviction is a little over ten years in prison. Those convicted of DUI manslaughter may also have to pay up to $10,000 in fines, have their vehicle impounded, and have their driver’s license revoked permanently. Continue Reading

Posted In:
Updated:

manslaughterIf you are charged with a crime, the prosecution has the burden of proving that you committed all the elements of the crime in order to convict you of that crime. Some crimes involve an element that requires a specific mental state which depends on what a defendant was intending to do and what he or she knew. For example, the law treats someone differently if they accidentally kill someone versus if they intentionally kill someone, with the latter being punished more harshly. What a defendant does or does not know, and the intentions of the defendant, can be proven by circumstantial evidence. A skilled Florida murder defense attorney may use the defense that a defendant did not have the requisite mental state to commit the crime.

Mens Rea

Mens rea is a latin term which means “guilty mind.” Proving the mens rea, or mental state, of a defendant is a burden for the prosecution if a specific mental state is part of the crime. One of the mental states that may need to be proven is “recklessness.” Recklessness goes beyond general carelessness or negligence. (Negligence can land you in court, but only civil court, not criminal.) Recklessness goes beyond just negligence, and entails doing something that anyone should know is extremely dangerous. For example, leaving a loaded gun out somewhere that children have access to or another equally unreasonably dangerous scenario.

behind barsIn Florida, people convicted of certain crimes may be sentenced to death for those crimes. However, there are some people who are constitutionally protected from the death penalty due to their status or characteristics. For example, the United States Supreme Court has declared it unconstitutional to sentence someone to death if they committed their crimes when they were less than 18 years of age. The laws around violent crimes and sentencing change periodically as federal and state courts clarify their positions. A knowledgeable Florida violent crimes defense attorney can help you understand any potential penalties of the crimes you have been charged with.

Intellectual Disability and the Death Penalty

Another one of the categories of people that cannot be executed are people with intellectual disabilities. This is because they are not seen as having the same decision-making ability as people without these kinds of disabilities, and so the death penalty is considered cruel. Florida amended their death penalty statute in 2003 to include this prohibition. Under the 2003 Florida statutes, a defendant has the burden to prove by clear and convincing evidence that they are intellectually disabled. To do this, they needed to show three things: significantly subaverage general intellectual functioning, with concurrent deficits in adaptive behavior, that manifested before age 18. At the time, Florida used a strict cutoff of an IQ score of 70 to determine what counted as “significantly subaverage” intellectual functioning.

deportationIf you are not a citizen of the United States, and you are convicted of a crime, it may result in being deported back to your home country. This is clearly a notable consequence, and lawyers are supposed to advise their clients of this if it is a possibility. If you are charged with a crime in Florida, it is crucial that you have a knowledgeable defense attorney to advise you about all the potential consequences of any course of action you may choose. United States law requires that criminal defendants facing incarceration have competent counsel. If a defendant can prove that their counsel was not competent then they may be granted a new trial.

Facts of the Case

In this appeal, the Fifth District Court of Appeal of Florida discussed the requirements for defendants facing possible deportation. The defendant in this case was charged with possession of a controlled substance with the intent to sell or deliver. With the assistance of his counsel, he agreed to a plea agreement. The defendant pled no contest to the charges. Thus, an adjudication of guilt was withheld and he was given 18 months of probation.

search warrantIf you are caught with drugs, you may think that you should just plead guilty and accept the consequences. However, depending on your situation, this may not be the best idea. Sometimes, the evidence against you may have been found during an illegal search. If the police perform an improper search on you, your home, or vehicle, the evidence gathered from that search may be inadmissible in court. If the State’s whole case is based around this evidence, then the charges may be thrown out entirely. A skilled Clearwater criminal defense attorney can help you decide the best strategy for your case.

The Circumstances of the Evidence

A man was charged with possession of cocaine after the police found crack cocaine in a takeout food container the man was holding. The officer testified that the defendant was standing on a street corner around 7:30 a.m. When the officer drove by in an unmarked vehicle, he stated that the defendant glanced at him with a “deer in headlights” look. Immediately after noticing the officer, he dropped the fork he was using, along with another small packet, into the container. The police officer instructed his partner to detain the defendant and then he took the container. The container held grits and a white, semi-waxy square that contained crack cocaine.

In a case that recently came out of the First District Court of Appeals in Florida, the appeals court reversed the trial court’s finding of a probation violation. If you are given a suspended sentence or probation, and you believe that you were wrongly accused of violating those conditions, you should contact a skilled Clearwater probation violation attorney as soon as possible.Legal News Gavel

Probation and Suspended Sentences

In some cases, especially for minor and first offenses, instead of incarceration, the judge may order probation or a suspended sentence. A suspended sentence means that the defendant will not have to serve the sentence if they meet certain requirements for a specific period of time. During sentencing, the judge should make clear what the conditions of the suspended sentence are and what the conditions of probation are. Sometimes all that is needed for a suspended sentence is to stay out of trouble. In other cases, the defendant may need to attend rehab or pursue employment.