BAGHDADI LAW P.A.
The Right to Appellate Judicial Review is neccessary to ensure a fair trial" A Trial Lawyers View of Appeals
The Need for Appeals
An unfortunate aspect of litigation is that mistakes are made. These mistake can often result in a miscarriage of justice. Fortunately if such a problem has occurred you usually have the right to file an appeal with a higher court asking for an appropriate remedy (Generally appellants ask for a new trial or a dismissal).
The Importance of Trial Lawyers Understanding Appeals
To raise an issue on appeal it generally has to be raised at the trial court level or it is waived for appeal. The judge generally must then rule on the issue before it can be reviewed by an appellate court. If the judge doesn't rule on an issue it may be waived for appeal. An exception to the general rule is Fundamental error, which is essential error that is so egregious it questions the validity of the trial itself. Fundamental error can be reviewed by an appellate court even when it was not raised in the trial court.
Since an issue has to be raised at the trial court before it can be reviewed on appeal, there are some post-convictions issues where a motion must be made in the trial court, before they can be appealed. Such motion includes newly discovered evidence, ineffective assistance of counsel, etc. Also there are other motions which do not have to be filed in the trial court before an appeal. However the trial judge still has discretion to hear the motion, and you may have a better chance of success with the trial court then the appeals court. These motions include a motion to mitigate sentence, motion for new trial, judgment not withstanding verdict, etc. If you have questions about how to proceed post conviction contact Baghdadi Law P.A. for a free consultation.
The Appellate Courts
There are three courts that have appellate capacity in the state of Florida. The lowest is the circuit court of appeals. As a general rule an appeal usually goes to the next court up in hierarchy. For example When appealing a County Court decision the appeal goes to the circuit court for appellate review. The Circuite operates in a trial and appellate capacity. If you are appealing a Circuit Court's ruling it generally goes to the District Court of Appeals (with a few exceptions). There are five District Court of Appeals throughout Florida. If you appeal a ruling from the District Court of Appeals then the next level up is the Florida Suprememe Court.
Orlando Appeals | Appellate Procedure for Orlando
If you are appealing a case out of Orlando it would start in the Orange County Courthouse in Orlando at the trial level. Usually the case is not ready for appeal until there is a final judgment (i.e. the case is over), but there are other ruling that can be appealed before that. If the case started in County Court then it is appealed to the Circuit Court for the Ninth Judicial Circuit, which consist of Orange & Osceola County. If you are appealling a case out of Orlando there is a good chance the appeal will take place in Orlando. If you are appealling a case that came out of Orlando that originated in the Circuit court, then the appeal will generally go to the 5th District Court of Appeals. After the 5th District Court of Appeals rules on the case, you can ask that the Florida Supreme Court take cert on the case, which basically means you are asking the Florida Supreme Court to use their discretion to hear your case.
Seminole County Appeals | Appellate Procedure for Seminole County
Seminole County is in the 18th Judicial Circuit, and has seven municipalities Altamonte Springs, Casselberry, Lake Mary, Longwood, Oviedo, Sanford, and Winter Springs. If you are appealing a case out of one of these municipality it will go to either the 18th Circuit Court for the appeal or the 5th District Court of Appeals. If the case originated in county court, then the appeal will go to the 18th Circuit Court of appeals which consists of Seminole & Brevard County. However Seminole County generally likes to keep cases that originate out of Seminole County in Seminole County. The Seminole County Courthouse is Located in Sanford Florida. However if a case out of Seminole County originates at the trial level in the circuit court, then the appeal will go to the 5th District Court of Appeals in Daytonal Florida.
In the State of Florida a defendant can be criminally charged with arson under Florida Statutes 806.01, arson if the defendant intentionally causes damage to a structure or its contents by fire or explosion. A person is also guilty of arson if the person unintentionally causes the damages while in the commission of a felony.
A defendant can be criminally charged with arson regardless if the structure damaged is a residential structure, or some other kind of structure. A defendant can also be criminally charged with arson by burning the contents of the structure such as clothes, furniture, or other items inside the structure. To convict someone for arson the State generally has to prove the person caused the fire or explosion intentionally, or in the commission of a felony.
Usually when filing criminal charges for arson a structure has or will be investigated by some agency to determine if they have sufficient reason to believe the fire was caused intentionally. This is often done by the Fire Marshall, and usually involves expert witnesses to see how the fire was started. The investigation may include where the fire, and what caused it.
Arson is considered a second degree felony which is punishable by up to 15 years in prison. However if someone commits an arson while the know someone is in the structure, or should have known that someone was in there, then it is an enhancement to the crime, and it becomes a felony of the first degree, punishable by up to 30 years in prison.
As with all criminal charges there are a number of ways a criminal defense attorney can defend against the charge. It is important to contact an experienced criminal defense attorney about any defenses. Some defenses a criminal defense attorney may raise a number of defenses including the defendant did not start the fire intentionally or the defendant was not the one who started the fire. Defending against the charge of arson can often times come down to the forensic, which may include competing opinions from experts on the side of the State and Defense. Such expert testimony may include what started the fire and where it was started. As with all criminal cases defenses to the crime arson is fact specific, and generalizations should not be made about the defenses in a case.
A battery occurs when a defendant actually and intentionally touches or strikes another person against their will, or intentionally causes bodily harm to another person. The definition of battery is very broad. Basically any intentional unwanted touching constitutes the offense of battery.
One of the most common defenses to charge of battery is that the person was acting in self defense. Self defense is defined by Florida Statutes §776.012. Florida law says that a person can use reasonable force to defend themselves from others. If the defendant claims self defense he must present some evidence at trial that he was acting in self defense. If the defendant can present some evidence that he was acting in self defense at trial, then it is the prosecutors burden to proven beyond a reasonable doubt that the defendant was not acting in self defense, or that the force was unreasonable. The claim of self defense is equally applicable to a defendant who was defending another person from harm.
Some defenses to the charge assault include that the words or threat were not to be taken literally, or as an act of violence (i.e. I'm going to kill you in soccer, is rarely meant to be a threat on a person's life). Even if someone takes the defendant's words as a threat, the defendant is not guilty of assault as long as he did not intend for them to be a threat of violence. Another defense to assault is that the victim was not scared. If the defendant made a threat that the victim did not believe was realistic, or was not threatened by, then the defendant is not guilty of assault. The final common defense to assault is the threat must be imminent, if the victim does not believe that the treat can be carried out right away, then a person did not commit the crime of assault.
When Florida passed it's Stand Your Ground law it eliminated a persons duty to retreat. At common law if a person felt he was in danger of harm there was a duty for that person to retreat before using force. However when Florida passed the Stand Your Ground law that person no longer had a duty to retreat, and he may "stand his ground" when using reasonable force.
The stand your ground laws allows a defendant to claim immunity from prosecution in certain situations under F.S. §776.032. This includes if the defendant was acting in self defense and using reasonable force. Stand your ground can be used in both Assault and Battery cases. If the court grants the defendant immunity the state will no longer be able to proceed with the prosecution, and the case will have to be dismissed.
Burglary is defined by F.S. 810.02. A person commits a burglary by entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain
The crime of burglary is traditionally viewed as breaking into a home or business. However the crime of burglary has been defined as to cast a net much more broad than such traditional views. You can be charged with burglary for breaking into cars, shacks, etc.
The burglary of a structure is a 3rd degree felony punishable by up to 5 years in prison. The burglary of a residence is a 2nd degree felony punishable by up to 15 years in prison. Both burglaries can have an enhanced sentence if there is a battery, deadly weapon, or firearm used in the burglary. In such cases the burglary becomes a first degree felony punishable by life in prison. These enhanced sentences apply even if the person is unarmed during the burglary, but becomes armed during the commission of the burglary. For example if someone breaks into a store and steals a gun he can be charged with burglary with a firearm, since he became armed in the commission of the burglary when he took the gun.
Like all criminal charges there are a number of defenses to burglary. One defense is that the place the defendant had allegedly broken into was open to the public. However the open to the public defense does not apply if the place that the burglary occurred is off limits or for employees only. For example if you reach behind the counter in a store you can generally be charged with burglary, since only employees are allowed behind the counter.
Another defense is that the defendant did not intend to commit a crime when breaking in the residence or structure. However if the defendant used stealthily entry to break into the building, then the prosecutor use the stealth entry as an inference that the defendant intended to commit a crime.
There are a number of different cases where someone maybe charged with check fraud. Check fraud is essentially a specific instant of fraud, which is covered by its own statute. Like other fraud charges check frauds is a specific intent crimes, which means the person charged has to intend to commit the crime.
Worthless Checks are probably the most common kinds of check fraud. Check Fraud is defined by F.S. 832.05, which essentially says that it is unlawful to pass a check knowing that there are insufficient funds in the bank to cover the check. While worthless checks are the most common ways in which the crime is committed, the statute has been extended to drafts on the account and debit cards.
Writing a worthless check is first degree misdemeanor punishable by up to a year in jail. However if the check is for more than $150, and you received property in return for the check, and the check was for more than $150 then the prosecutor can charge the worthless check as a third degree felony punishable by up to 5 years in prison.
There are a number of defenses to the crime of worthless check. This charge can sometimes present a number of challenges for the prosecutor, since checks are generally taken in the course of business with the prosecutor and witnesses not really having any knowledge about the circumstances of the allegations. Such defenses include that the defendant was not the person who wrote the check. Another common defense is that the person writing the check did not know there were insufficient funds in his account to cover the check (i.e. bad book keeping isn't criminal). The last common defense is that the check was post dated. By statute a post dated check is a defense, which makes sense because someone who post dates a check is essentially saying I don't have the money in my account now, but I should be there at this date. Just because a defendant couldn't come up with the money doesn't mean he was trying to defraud anyone.
Pursuant to F.S. §832.10 the prosecutors office may (and often does) elect to pursue the charges through a diversion program. Prosecutors often use this program when they receive a worthless check, which allows the defendant to pay the check and certain fees associated with the check by a certain time in exchange for the prosecutor to not file charges, or dismiss the charges if they have been filed.
Child Abuse and Child Neglect are both governed by F.S. 827.03. The statute essentially says that the crime Child Abuse occurs when someone intentionally inflicts physical or mental injuries on a child, or encouraging the child to do something that would reasonably be expected to result in physical or mental injuries to the child. The same statutes says that someone commits Neglect of a Child when a caregiver fails to provide a child with the necessities to maintain the Child's physical and mental health.
Frequently with these charges the prosecutor uses expert witnesses to testify to the physical or mental injuries the child suffered. Pursuant to the statute the expert witness must be licensed pursuant to the statute in order to give expert testimony regarding the child physical or mental conditions.
The crime Child Abuse/Neglect is a felony of the 3rd degree punishable by up to 5 years in prison. However the statutes gives an enhancement for aggravating circumstances known as aggravated child abuse, which enhances the offense to a 1st degree felony punishable by up to 30 years in prison.
The statute lays out two ways of proving the crime: 1) the prosecutor can allege the child was abused by the defendant; or 2) the prosecutor can allege the child was neglected by the defendant. According to the statute if the prosecutor claims a defendant abused a child, the prosecutor must show that the defendant intentionally abused the child. However if the prosecutor proceeds on the theory of neglect, he only has to show the defendant was not prudent as a caregiver to prevent the physical or mental injuries that the child suffered. Other common defenses to the crime child abuse include the injuries did not come from the defendant, but from somewhere else. Often times these cases can become a battle of the experts in determining how the injuries occurred.
Conspiracy is a way for prosecutors to prosecute people who agreed to commit the crime with some else. It is an agreement by two or more people to commit the same crime. Conspiracy is a specific intent crime, which means that in order to convict someone of conspiracy they actually have to intend for the agreement to exist. There is no requirement that the crime the defendants agreed to commit actually be done to convict someone of conspiracy. At common law and in federal court, after two or more people agreed to commit a crime there must be some act by the defendant to further the crime before a defendant can be convicted of conspiracy. However under Florida law the prosecutor is not require to show that the defendant did an act in furtherance of the conspiracy, but only that one of the conspirator completed an overt act before the other conspirators may be charged. If you conspire to commit a crime, and then actually commit the crime the state can convict you on both the conspiracy charge and the underlying crime. Courts have ruled that these are separate crimes, and double jeopardy does not apply. Conspiracy is defined in F.S. §777.04.
The penalty for committing conspiracy depends on the crime the defendant conspired to commit. In general the penalty for conspiring to commit a crime is one level below the underlying crime.
If you are accused of conspiring to commit a crime an experienced criminal defense attorney can help defend against these charges. Such defense include a timely withdrawal from the conspiracy. It can also be a defense to conspiracy if a co-conspirator thwarted the purpose of the conspiracy. Defense attorneys also frequently claim that there was no agreement to commit the crime, and the defendant's mere knowledge or presence of the crime is not enough to convict him of conspiracy.
There are a number of Criminal Traffic Violations in F.S. §316-324 they may result in criminal charges. Such charges include:
While all criminal charges may effect your drivers license one way or another criminal traffic charges are generally more likely to effect your license. In some cases it won't effect your license at all. In other cases depending on your prior record you can receive points on your drivers license, which will potentially raise your insurance or suspend your license if you have enough points on your license. Also depending on your prior record you may become a habitual traffic offender, which carries a 5 year drivers license suspension.
Since driving is considered an adult activity anyone who is criminally charged with an criminal traffic offense will be charged in adult court even if the person is under 18
If you have been charged with a criminal traffic it is important that you contact an experienced criminal defense lawyer immediately. Florida statutes allows certain cases to be disposed of with just a fine if it is done before an arraignment. It is important to talk to a criminal defense attorney to see if you qualify for this disposition. They can also discuss the effect that certain dispositions might have on your license. Also many criminal traffic charges are based on the current status of your license or registration. If the defendant fixes his license or registration often times the judge or prosecutor will give the defendant a better disposition of the charge.
Many criminal traffic charges that seem straight forward may be more complicated then they seem. A defendant may be able to defendant may have numerous defenses against a number of criminal traffic charges. These defenses include an improper stop by law enforcement, in proper notice of suspension on a driving while license suspended charge, on attached tags not assigned the prosecutor has to prove the defendant attached the tag. It is not enough that the defendant is driving a car with the wrong tag on it.
Domestic violence is not a crime in of itself. What it does is designate a certain relationship between the victim and the defendant in a crime of violence. Domestic violence is defined by F.S. §741.28, which defines Domestic Violence as basically any offense of violence against a "Family or Household Member." Florida Statutes has extended the of "Family or Household Member" to include any person related by blood, marriage, people who reside together as a family or resided together as a family in the past, and people who have children together.
If you have a domestic violence designation it generally does not increase the maximum jail time that a person charged with domestic violence is facing, although in certain circumstances there can be a minimum amount of jail time required. Also unless the judge finds otherwise a person who has been found to commit domestic violence will have to undergo a Batterer's Intervention Program. That program is required to be at least 26 weeks long.
The victim can not drop the case in any Criminal Domestic Violence charge. The decision whether or not to proceed with the Domestic Violence charges rest solely with the prosecutor. The prosecutor has the right to proceed or drop the charges against the victim's wishes.
If you are charged with domestic violence it is important to contact an experienced criminal defense attorney about any defenses you may have. When defending against domestic violence the same defenses apply as if the charge was not designated as domestic violence.
Drug possession is defined by F.S. 893.13 as unlawfully being in actual or constructive possession of a controlled substance without a prescription. These drugs include cocaine, cannabis, crack, heroine, hydrocodone, and oxycodone as some of the more popular drugs. It is important to note that the crime is possession of drugs not ownership. Therefore the crime is possessing the drugs, and the fact that the drugs aren't yours probably will not be a defense.
Actual Possession of drugs is a simple concept. It's basically saying that you actually had the drugs on you. Often times defendants are charged with being in actual possession of drugs when law enforcement searches them, and they find drugs in their pockets.
Constructive possession is when the prosecutor is saying that the defendant was in possession of the drugs even though the drugs weren't found on the defendant. In order to prove that a defendant constructively possessed drugs the prosecutor must show two things: 1) that the defendant had dominion and control over the drugs; and 2) that the defendant had knowledge that the drugs were in his presence.
In order to get a conviction for a constructive possession case the prosecutor must have independent evidence putting the drugs on the defendant. The prosecutor can prove constructive possession by circumstantial evidence. If the drugs are found in a place that the defendant had exclusive control over, then knowledge and control of the drugs can be inferred, and the prosecutor will be allowed to proceed on the theory of constructive possession.
The penalties for possessing drugs can vary depending on the kind of drug. Marijuana is a first degree misdemeanor punishable by up to a year in jail. Other narcotics such as cocaine, heroine, oxycodone, hydrocodone, and methamphetamine are third degree felonies and are punishable by up to five years imprison. If a defendant is caught with over a certain amount of drugs the prosecutor can file enhance charges such as intent to distribute.
There are a number of defenses to possessing drugs. Probably the most common defense arises when the defendant is alleged to be in constructive possession of the drugs. If the prosecutor is alleging the defendant had exclusive control over the place where the drugs were found, then the defendant can defend against the allegations by showing he did not have exclusive control. Some courts have also held that it is a defense to the crime of possessing drugs if the defendant only had temporary possession of the drugs for lawful disposal. Such instances would include giving medicine back to the person it belonged too. Also if a defendant has a prescription to the drugs it could potentially be a defense as well.
Under F.S. 893.135 trafficking the defendant does not have to be caught selling or delivering drugs to be convicted of trafficking. For a conviction under this statute all the prosecutor needs to show is that the defendant had over a certain amount of drugs.
Drug Trafficking carries one of the toughest and most disproportionate sentence of any non-violent crime. In 2014 President Obama in an effort to reduce some of these excessive sentences launched the Clemency Project 2014, where the president said he would commute the sentence of certain defendants who would have a received a lower sentence today then at the time they were sentence. Unfortunately the State of Florida did not elect to offer a similar program at the state system.
Being convicted of Trafficking in drugs can carry a maximum term of incarceration anywhere from 15 years in prison to life. It can also have mandatory prison sentence of:
Often times law enforcement investigates drug trafficking by using confidential informants. A confidential informant is generally someone who will participate in a transaction while working with law enforcement. Some confidential informants are professionals, while others are defendant charged with a crime, who is trying to get leniency by helping out law enforcement. Many of these transactions are video taped or recorded.
Often times trafficking charges are often hard to defend against. If the defendant was just found to be in constructive possession of the drugs, then he may raise the same defenses discussed in the defenses for drug possession. The defendant in a trafficking case can generally also get the drugs reweighed, which often times results in the drugs weighing less the second time they are weighed. There are some issues that an attorney may be able to bring up at trial as well. If a confidential informant is working off drug charges you can bring that up. Attorneys can also bring up any deal that a confidential informant made with law enforcement. Many times law enforcement does not give confidential informants leniency unless there work actually leads to an arrest, and the defendant has the right to cross examine him about his need to make the sell for leniency.
DUI (Drunk Driving) F.S. §316.193 is defined as being in actual physical control of a vehicle while under the influence of alcohol, a controlled substance, or model glue to the extent that your normal faculties are impaired, or having a BAC level above a .08. This is a very broad definition, in fact most people are shocked when they realize how broad the DUI statute is. Here are some facts people don't realize about DUIs.
When talking about a DUI the BAC usually refers t the Breath Alcohol Content or the Blood Alcohol Content. It is used to measure the amount of alcohol in a person's body for purposes of prosecuting DUIs.
Most people think of DUI as driving drunk (that's even the name of this section). However Florida's DUI statutes only requires that your normal faculties be impaired, which is a much lower standard then being drunk.
The DUI statute only requires that the defendant be in physical control of the vehicle, in does not require him to be driving the vehicle. Being in physical control of a vehicle only means you have the ability to start it. If they keys to the car are in your reach, and you are inside the car, then you have physical control for purposes of being charged with a DUI. The keys do not need to be in your hand.
This one is usually the most surprising fact about a DUI. You don't have to be driving a motor vehicle to get a DUI. People can be charged with a DUI for riding their bicycles while impaired.
The DUI statute requires that a person be under the influence of alcohol, a controlled substance, or model glue. A controlled substance is basically any substance listed in F.S. 893, which includes prescription drugs. The fact that you have a prescription for your medication is not a defense to the charge of DUI (with very limited exceptions).
DUI comes with a number of penalties. Some of the DUI penalties are discretionary, while others are mandatory. Some of the mandatory DUI penalties for a 1st time DUI include:
Most DUIs start off when an officer notices that a car is breaking a traffic infraction or has a driving pattern. If the car has a driving pattern an officer will often look for the car to commit a traffic infraction before pulling the car over to make sure the stop is valid. Upon pulling the car over an officer will frequently claim he observed a smell of alcohol, bloodshot eyes, and slurred speech coming from the defendant. The officer will then ask the defendant to perform some field sobriety test, and based on the field sobriety test the officer will place the defendant under arrest and transport him to the jail for further testing. At the jail the staff there is likely to have the defendant redo the field sobriety exercises and blow into the breathalyzer.
While many DUIs carry similar facts, the defenses to them are very fact specific. While the defenses to DUIs are very numerous, most the defenses will not apply most the time. The key is to find one or more defense to the DUI that might apply to this specific case. Some of these defenses include the defendant was illegally detained. This happens when the defendant was stopped or detained without cause. Also attorneys check to make sure the investigation was done procedurally incorrect. A defendant who refused to take a breathalyzer must generally be read implied consent before he refused or the refusal may not be admissible against him. If the defendant refused he may be able to get the refusal excluded in he agrees to the breathalyzer shortly after the refusal.
If a defendant blows into the breathalyzer, and the results are unfavorable the attorney may try to exclude it the machine on several other grounds. While challenging the results of the breathalyzer is extremely difficult, sometimes the results can be excluded based on the fact the procedure used with the breathalyzer violates the defendant's constitutional rights, attorneys sometime show the results of the machine are unreliable, and finally sometimes the breathalyzer can be excluded, because it wasn't maintained & tested according to the rules.
F.S. section 817 covers fraud in the State of Florida. It does not have one specific statute on point. The section is titled False Pretense And Fraud. Florida basically defines fraud as intentionally obtaining an unauthorized benefit by act or omission through deception, misrepresentation, or other unethical means. Fraud is a specific intent crime, which means that a person has to intend to commit the crime. For example if you lie about your income on a bank loan application it could be considered fraud, because you received the benefit of a loan through by lying.
Fraud cases can sometimes be difficult to prosecute, because the prosecution must show that the defendants acts were intentional. It is not enough to show that the defendant received some kind of benefit through inaccurate information. Also if the defendant lied to someone without know they would receive something in return, they did not commit fraud, because they did not intent to receive a benefit.
The penalty for fraud can vary depending on the kind of fraud, the number of times fraud was committed, and the amount of money involved in the fraud. Interestingly fraud often times carries a harsher punishment for defrauding someone out of something then it would if someone stole the same thing. For example stealing between $100 - $300 is a 1st degree misdemeanor punishable by up to a year in jail, however if you use fraudulently use a credit to defraud someone of the same amount it is a 3rd degree misdemeanor punishable by up to 5 years in prison.
Resisting Arrest and Obstruction of Justice are defined by F.S 843.02. Resisting/Obstructing an Officer is defines in Florida Statutes as resisting, obstructing, or opposing an officer in their legal duty. There are two kinds of resisting/obstruction charges, with violence and without violence.
If a person resist arrest or obstructs an officer without violence, then he is guilty of a 1st degree misdemeanor punishable by up to a year in jail. If a person resists arrest or obstructs an officer with violence then he is guilty of a 3rd degree felony punishable by up to 5 years in prison
If the officer is not in the course of a legal duty then the defendant has the right to resist the officer. Also the defendant may raise self defense claims. If the officer uses excessive force against the defendant then he may use reasonable force against the officer. Another defense to resisting or obstructing an officer is that the officers status was unknown. If a defendant fails to comply with a lawful command or a lawful arrest of an officer, but is unaware that the officer is in fact law enforcement it is a defense to the charges.
Robbery is defined by F.S. 812.13.In the State of Florida robbery is basically defined as a theft by the use of force, violence, assault, or putting the victim in fear. Like most criminal statutes in Florida the robbery statute is broadly define. For example force is a very general term. Simply grabbing a purse from someone holding it can be considered force for the purpose of convicting someone of robbery, even if the purse was snatch right out of the victims hand.
If someone is convicted of a simple robbery then it is a 2nd degree felony punishable by up to 15 years in prison. If the defendant used a deadly weapon in the commission of a robbery then the robbery becomes a 1st degree felony punishable by up to 30 years in prison. If the defendant used a fire arm in the commission of the robbery then the robbery becomes a life felony, where the defendant can be sentenced to life in prison. Also if a firearm was used in the robbery Florida's 10 - 20 -Life statute kicks in. That means if you use a gun in the commission of a robbery there is a minimum mandatory sentence of 10 years, which means the judge has to sentence the defendant to at least 10 years in prison with no gain time. If the defendant discharges a gun during the robbery the minimum mandatory sentence increases to 20 years. And if someone is injured or killed during the robbery the minimum mandatory sentenced is increased to 25 years. If the defendant is unarmed during the beginning of the robbery, but becomes armed during the commission of the robbery (for example he takes a gun) then he can be convicted of armed robbery.
Florida has a number of Sex Offenses. Some are major like a sexual battery (aka rape), and some can be considered more minor like underage sex. Other sex crimes like traveling to meet a minor for sex are setup by law enforcement with a fictitious victim, and don't even actually have a victim (this is like Dateline's "To Catch a Predator"). However they all have one thing in common. They have severe collateral consequences.
In the State of Florida if you are convicted of a sex offense you will be required to register with the local sheriff's office and the DMV twice a year, as well as when you move. A failure to register as a Sex Offender could potentially result in a felony charge for failing to register. While this might seem like a minor crime (especially if you registered with one of the agencies) it scores prison time, even for a defendant with no previous criminal history.
If you are a sex offender and are sent to prison for a crime, right before you are released you can be forced to undergo an evaluation to see if you are likely to reoffend due to some condition. If the court finds you are likely to reoffend due to a condition then the court can civilly detain you even after you have been sentenced, and make you undergo treatment. The court can detain the defendant indefinitely until it believes the defendant's condition no long makes him likely to commit another sex offense.
Many municipalities in Florida have passed a rule where defendant's are not allowed to live within 2,500 feet of places that children frequent. The legal world has acknowledged that this has severely limited the places where sex offenders can live.
Stalking is defined by Florida Statutes §784.048 which makes it illegal to willfully, maliciously, and repeatedly follows, harass, or cyberstalk another person. Many stalking cases are prosecuted under the theory that the defendant was harassing the victim, which basically means the State is claiming the defendant is doing something to the victim, which causes substantial emotional distress to the victim and serves no legitimate purpose. Another frequent theory of prosecution for stalking is cyberstalking. A prosecution under the theory of cyberstalking is essentially the same as harassment, except it is done through electronic means.
In general stalking is a 1st degree misdemeanor punishable by up to a year in jail. However there are a number of aggravating factors that can enhance the charge of stalking to aggravated stalking, which is a 3rd degree felony punishable by up to 5 years in prison. Such aggravating factors include making credible threats to the victim while stalking the victim, another aggravating factor to stalking is if the defendant stalks the victim while there is an injunction against violence issued against the defendant. Any jail time imposed for stalking must be consecutive to any other sentence the defendant receives.
There are a number of defenses to stalking. Probably one of the more common defenses to stalking is that the defendant's conduct serves a legitimate purpose. For example a process server who comes to your house everyday to serve you is probably not guilty of stalking, because his action serves a legitimate purpose.
Theft is defined by Florida Statute 812.014 which say that if you take the property of another with the intent to temporarily or permanently deprive the owner of the property. This basically says if you take something that is not yours with the intent of stealing it, if you change your mind later and put it back, it is not a defense to theft.
The some of the penalties for a first time theft include items stolen that are valued at:
The penalties for theft can also be enhanced by subsequent theft. A 2nd petit theft is a first degree misdemeanor, and a 3rd petit theft is a 3rd degree felony. Also a theft can become a felony based on the item that was stolen. For example stealing a fire extinguisher may constitute a felony even though it would be a misdemeanor if it was not a fire extinguisher.
One of the most common defenses to theft is to argue the goods are not worth as much as the prosecutor is claiming. While this is not a complete defense to theft, if the prosecutor is looking for enhanced penalties based on the value of the property stolen, then the defendant may receive a less harsh sanction. This defense sometimes works well, because the prosecutor must prove the fair market value of the property at the time it was stolen. Showing what the property cost new or what the victim paid for it is not enough. However if the item is on sale, this might not be a defense, since some courts have held that the defendant is not entitled to the benefit of a bargain.
Probation is governed by Section 948 of Florida Statutes, which in terms govern violations of probation. Probation is often times viewed as a 2nd chance before going to jail.
Once a defendant is put on probation he no longer has the same rights he did before. A probationer is subject to a search of his house, and receives less protection under his right against search and seizure. Also if the probationer is alleged to have violated is probation the judge can easily issue a no bond warrant for his arrest, even on a misdemeanor, and the probationer will not be entitled to a bond.
On a violation of probation the probationer is not entitled to a jury trial. Instead he wishes to challenge the violation of his probation he gets a hearing in front of a judge to determine whether or he violated his probation. If the judge thinks its more likely then not the probationer violated his probation the judge can find the probationer in violation, revoke his probation, and impose any sentence that the judge could have imposed for the original offense. Also the evidentiary rules are relaxed in a violation of probation hearing. For example hearsay is admissible, although hearsay can't be the sole reason for violating the defendant's probation.
If probation is alleging the probationer violation his probation, then probation must issue a sworn affidavit alleging the violation of probation within the time frame of the probationer's probation. If the affidavit alleges the violation of the probationers probation after the probationary term has expired then it is a defense to the allegations.