Car at NightAs with many crimes, Florida drug possession can be prosecuted in a variety of different ways. It’s clear that if a person is arrested with contraband on his or her person, that might be used as evidence to prove the crime. However, what happens when the drug is present in an area where you are present, but it’s not actually on your person? It’s still possible for the State to seek a conviction under those circumstances based on what is known as “constructive possession.” A November 15, 2017 case, decided by the Florida Fourth District Court of Appeals, reversed the acquittal of the criminal defendant after the appeals court ruled that there was enough evidence to uphold the jury’s finding of possession of cocaine.

The defendant’s car was stopped after he was spotted parked in front of a house where a man walked up to the passenger side of the car, stayed for a few minutes, and then left. The police searched the defendant’s car and found a small rock of crack cocaine on the sliding track under the driver’s seat. There was no evidence at trial that the defendant owned the car or that anyone else drove or rode in the car regularly.

The jury returned a verdict of guilty; however, the judge overruled the jury and acquitted the defendant because of a lack of evidence. The State appealed the judge’s decision.

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Cruise ShipThe cruise ship industry is a major source of revenue in Florida, and in fact, Florida law seeks to protect cruise-goers by extending subject matter jurisdiction to criminal acts that occur on cruise ships that leave Florida ports. However, the Third District Court of Appeals in Miami recently heard a Florida sexual assault case between two cruise boat crew members in a recent proceeding.

As mentioned earlier, the defendant was a crew member aboard a cruise ship and attempted to commit sexual battery against another crew member while the ship was in international waters. The defendant is a citizen of Grenada, and the victim is a citizen of Nicaragua. The cruise ship departed from Miami and returned to Miami, and almost all of the paying passengers boarded and disembarked in Miami. Following the attempted sexual battery, the defendant was taken into custody and confined to the brig of the ship until it returned to Miami, at which point Miami-Dade law enforcement took the defendant into custody. The defendant was then charged with battery, attempted sexual battery, and false imprisonment.

The defendant argued that the State did not have subject matter jurisdiction to prosecute him. The trial court denied the motion, and then the defendant pled guilty to attempted sexual battery and appealed to the Third District Court of Appeals.

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In a Florida kidnapping case, the issue on appeal was whether the defendant’s kidnapping convictions reflected Florida confinement law. The defendant argued that his actions did not constitute kidnapping because the Park at Nightmovements of his victims were slight and inconsequential and did not assist the commission of another crime.

The defendant allegedly approached the victims at a neighborhood park. There was a group of five men and two women hanging out at night. When the group was leaving the park, the defendant approached them and brandished a handgun. He ordered all of the victims on the ground and took personal items, including a cell phone and a wallet.

The defendant ordered the two women to disrobe. The defendant then brought them behind a large tree. He then proceeded to sexually assault one of the women. Eventually, one of the victims yelled for everyone to run, and everyone took off in different directions.

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CourthouseThe United States Constitution grants criminal defendants the right not to testify in their trial. See U.S. Const., Amend. V. From this right, the Florida Supreme Court has ruled that commenting in such a way that can be interpreted to cast light on the defendant’s failure to testify is an error and strongly discouraged. In a recent case, the Third District Court of Appeals heard a defendant’s appeal on this issue. The defendant was appealing from a Florida manslaughter conviction in which he was sentenced to 30 years in state prison, followed by 10 years’ probation.

The defendant argued on appeal that the State made an improper comment during its closing argument regarding the defendant’s decision not to testify at trial. Specifically, the prosecution said that he did not testify because he engaged in potentially incriminating conduct. However, the court took a more expansive view of the statements made, based on the trial transcript. The key distinction that the prosecution made was not to point out why the defendant was not testifying but instead to argue why the defendant was on trial.

The defendant’s counsel, during her closing argument, argued that the State was improperly relying upon innocent conduct to prove its case, such as the fact that he cut his dreadlocks. The defendant’s position at trial was that since this conduct was not illegal, it should not be used as evidence of guilt. The appeals court, therefore, read the prosecution’s closing argument as responding to the defense’s argument.

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Thumb PrintCriminal cases require prosecutors to present evidence in order to obtain a conviction. Evidence generally comes in two varieties:  direct and circumstantial. Examples of direct evidence include eyewitnesses to a crime or a ballistics report stating that the defendant’s gun fired the bullet that killed the victim. Circumstantial evidence, by contrast, consists of a fact or set of facts that, if proven, will support the creation of an inference that the matter asserted is true. Florida homicide cases can be proven by using direct or circumstantial evidence. A November 2017 decision analyzed whether there was enough circumstantial evidence to affirm a first-degree murder conviction.

Generally, Florida courts of appeals review convictions from the viewpoint most favorable to the prosecution, such that a jury could find a conviction beyond a reasonable doubt. If, however, a murder conviction is predicated on circumstantial evidence, and there isn’t a confession, Florida courts apply an altered standard of review. The conviction should be affirmed if the prosecution failed to provide evidence that the jury can use to rule out all reasonable hypotheses except for guilt.

The court then recounted all of the examples of circumstantial evidence presented at trial. These included testimony that the victim, before going missing, was last seen with the defendant. Also, a neighbor remembered a container adjacent to the defendant’s vehicle prior to the time that the victim disappeared. The victim was later found dead inside a barrel near a canal. In addition, another witness testified that he remembered a barrel in the defendant’s apartment. When the investigation led to the defendant’s home, he was sweating and acted nervous. He also had lacerations on his arm and fingers that indicated some sort of struggle.

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Cell PhoneThe value of the stolen items is a required element in proving a Florida theft crime. The greater the value of the allegedly stolen item, the harsher the potential penalty. There are a variety of methods that the parties to a theft crime use to establish the value of a stolen item. A November 2017 Fifth District Court of Appeals decision overturned a grand theft conviction because the prosecution had failed to establish the value of the property beyond a reasonable doubt.

The court in this case relied on a 2013 decision, C.G. v. State of Florida, to determine the appropriate method to establish the valuation of stolen property under Florida law. At trial, the defendant was convicted of first-degree petit theft for stealing a cell phone with a value of $100 or more but less than $300. The Fifth District court held that there was not sufficient evidence to show that the cell phone’s value was at least $100.

The victim of the theft testified that he paid $200 for the cell phone six months before the theft and that the cell phone was in essentially the same condition at the time it was stolen as it was when it was purchased. The court, in reciting the applicable law, stated that the value of a stolen item at the time of the theft must be established beyond a reasonable doubt. Value may be established through direct testimony of fair market value. In the absence of direct testimony, its value can be established through evidence of:  (1) the original market cost; (2) the manner in which the property was used; (3) the condition of the property; and (4) the percentage of depreciation of the items since the purchase.

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One of the principles underlying criminal prosecution is that the defendant must be mentally competent to stand trial. Therefore, the determination of competency can be a threshold issue before proceeding with a criminal prosecution. A Florida appeals court, in a recent decision, further clarified that mental competency is a due process right, ruling that once the issue of competency is raised, the defendant must undergo an exam or evaluation before the right can be waived.

In Sheheane v. State, the State brought the defendant before a court in connection with three alleged Florida probation violations. During the proceedings, the defendant’s counsel raised the issue of the defendant’s mental competency. The trial court ruled that there were reasonable grounds to believe that the defendant might be incompetent to proceed. The court set a date for a competency hearing, but it never occurred. The defendant later, at an unrelated hearing, entered a plea for the probation violations. The defendant waived his right to competency evaluations, and the written plea indicated that the defendant believed that he was competent. As a result of the plea, the defendant was sentenced to 20 years’ imprisonment for the probation violations.

Under Florida law, mental competency evaluations arise out of due process rights. This procedural due process right is aimed at protecting the accused from standing trial if they are incompetent. Florida Rule of Criminal Procedure 3.210(b) provides, in part, that if any party to the proceeding has reasonable grounds to believe that the accused is not mentally competent to proceed, the court is required to promptly hold a mental competency hearing, and it may order the defendant to be examined by up to three experts before the date of such a hearing.


Good Samaritan laws are controversial because there’s tremendous disagreement over whether a person should have a duty to render aid to another person or face criminal prosecution. This summer, a disturbing news story reported that a group of teenagers mocked a disabled man in Coco, Florida as he drowned in a retention pond. The teens also filmed the encounter and uploaded it to social media. The teens did not attempt to render aid or call for help. The story made national news because of the actions of the teenagers. Many called for the teens to face Florida criminal prosecution for their actions, or inaction, while the man drowned.

In response to this incident, the Florida legislature is considering a proposed law that requires a person at the scene of an emergency to render aid or call for assistance if confronted with an “endangered person.” The term “endangered person” means a person who is in imminent danger of, or who has suffered, grave physical harm. A person does not have a duty to an endangered person if it would put that person in danger or someone else is already rendering aid.

A violation of this proposed law would be a first-degree misdemeanor. However, as mentioned earlier, in response to the incident in Coco, Florida, if a person video-records the person in danger and uploads it to social media, that person is eligible for a third-degree felony. In addition, a person who renders aid under this proposed law would receive immunity from civil damages for any injuries that occur from rendering aid.

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Florida violent crimes are codified by statute. As a result, sometimes courts have to engage in the practice of statutory interpretation to determine which crime is available for prosecution. The answer is not always obvious. For instance, the Florida First District Court of Appeals recently analyzed whether a car could be considered a weapon under the felony reclassification statute in a Florida homicide case.


The defendant spent an evening in January at a bar, drinking and watching basketball. At some point, the defendant and the victim got into an altercation at the bar, and the defendant was escorted out of the bar by its staff. The victim later left the bar with a friend, who testified that she saw the defendant’s car parked in a shopping center across the street from the victim’s apartment complex. The witness testified that the car flashed its light. The victim pulled into the parking lot, exited his car, and rushed toward the vehicle. The defendant advanced his vehicle and struck the victim, who died of head injuries on the following day. The defendant was apprehended two weeks later in Chicago. At trial, the jury found the defendant guilty of manslaughter with a weapon. On appeal, the defendant argued that an automobile was not a “weapon” within the statutory meaning of that word.

Florida Statutes Section 775.087(1) enhances the degree of a felony to a greater degree when the commission of the felony occurred while the defendant used a weapon. The statute does not provide a definition of “weapon.” Therefore, principles of statutory interpretation require the court to turn to the common or ordinary meaning of the word.

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Littering and dumping statutes seek to criminalize people leaving their trash in private or unauthorized places, like a public park or along the highway. The experience of an elderly Florida man shows that the Florida littering statute extends much further than those examples and can even apply to people who leave trash on their own property, if it becomes a public nuisance.

Trash Dump

The court’s opinion described the contents in the defendant’s backyard as “unwanted miscellany.” The trash attracted the attention of a city code inspector, who issued a citation to the defendant and told him to bring the property into compliance with the code. This did not occur, and the city deemed the defendant’s yard “a serious public safety and welfare threat.” Eventually, the code enforcement office initiated an abatement of the property to clear the defendant’s yard. The defendant was then charged with felony littering under Florida criminal law. He was sentenced to five years’ probation, as well as restitution and a fine. The defendant appealed the court’s decision.

Florida Statutes Section 403.413 criminalizes dumping litter in private property. Although an owner is free to dump litter in his or her own property, if the litter becomes a public nuisance, it is in violation of the law. Moreover, subsection (6)(c) provides that any person who dumps litter that weighs in total over 500 pounds or that is over 100 cubic feet in size is guilty of a third-degree felony.

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