Jacksonville Criminal Lawyer Blog

Florida Man Convicted of Aggravated Battery With a Deadly Weapon For Hitting Victim With Plastic Broomsticks

Wed, 16 May 2012 15:46:32 -0500

In a recent case just south of Jacksonville, Florida, a defendant was arrested and charged with aggravated battery with a deadly weapon, and the alleged deadly weapons were plastic broomsticks. After a trial on the aggravated battery with a deadly weapon charge, the jury convicted him. In Florida, a person commits an aggravated battery if he/she touches or strikes a person without authorization with a deadly weapon. The crime carries a maximum penalty of 15 years in prison. That is quite serious for touching a person with an object when "deadly weapon" is not defined by the Florida statute.

In this case, the deadly weapon consisted of two plastic broomsticks. Because "deadly weapon" is not defined by the Florida statute, the police, and then a prosecutor and then a jury all determined plastic broomsticks were sufficient to meet the definition of "deadly weapon." At the aggravated battery trial, the prosecutor did not bring the broomsticks to the trial and introduce them into evidence so the jury never saw them. The prosecutor did not even show the jury pictures of the broomsticks. Apparently, the only evidence about the broomsticks was witness testimony that they were flimsy, bent and easily broken after one or two usages. There was even testimony that the broomsticks could not hurt anyone seriously.

The criminal defense lawyer moved for a judgment of acquittal after this evidence. While the Florida statute is vague about what constitutes a "deadly weapon", in order to prove the crime of aggravated assault with a deadly weapon, the state must prove beyond a reasonable doubt that the defendant used an object that will likely cause death or great bodily harm when used in its ordinary manner. Under this definition, which was created by the courts, obvious examples include guns and knives. However, an assortment of other objects can be considered deadly weapons if they are used in a way that is likely to cause great bodily injury or death. On the other hand, many objects cannot be considered deadly weapons because they cannot cause great bodily injury or death when used in their ordinary manner. Flimsy, plastic broomsticks that break easily would seem to fall into this latter category. However, for some reason, the judge and the jury disagreed, and the defendant was convicted of aggravated battery with a deadly weapon for hitting the victim with the plastic broomsticks.

Fortunately for the defendant, the case was appealed, and the appellate court reversed the conviction. The appellate court mentioned the obvious- that there was no evidence at all that the plastic broomsticks were likely to cause serious bodily injury or death. In fact, the evidence clearly established that the plastic broomsticks were not deadly weapons. As a result, the conviction for aggravated battery with a deadly weapon was reversed.

Obama Administration Releases New Drug Control Strategy

Sun, 13 May 2012 15:26:10 -0500

With the release of the proposed 2013 budget, the Obama administration also released its new drug control strategy. Although the Obama administration has given indications in the past that it's going to take a more considerate and cost-effective approach to the old, expensive and ineffective War on Drugs, the new strategy does not seem to reflect a new direction. The new strategy allocates more than $25 billion for national drug enforcement, with approximately 60% of the money going towards actual enforcement while only approximately 40% is going towards prevention and treatment. In other words, it appears that approximately 60% of the more than $25 billion in taxpayer money is going towards the same policies and procedures that have not seemed to make any significant progress in drug usage and drug crimes.

The Obama administration is recognizing the shift in drug usage and drug crimes towards pain pills without a prescription and is allocating more funds accordingly. The administration is also calling for increased drug testing with immediate penalties for those who fail drug tests. This includes people under court supervision as well as people in the workplace, where applicable. The new budget and strategy do not give much, if any, credence to those supporting the legalization of marijuana, whether for medicinal purposes or otherwise.

All in all, the Obama administration's new drug strategy does not appear to be much different from any other president's drug strategies in recent years since the War on Drugs was initiated.

The Attorney-Client Privilege in Florida

Thu, 10 May 2012 11:23:52 -0500

In Florida, communications between a lawyer and his/her client are general privileged. This means that neither the state, the judge, the jury, the other party nor anyone else has a right to discover what has been said or otherwise communicated between a client and his/her attorney.

This is obviously crucial in criminal cases as the client often relates critical, and sometimes very damaging, information to the lawyer. Of course, the attorney-client privilege also applies to personal injury, civil, divorce and other legal cases where important, confidential information is routinely discussed.

This attorney-client privilege applies even before the client actually retains the lawyer or if the prospective client decides not to retain a lawyer at all. Most often, before a person decides to hire an attorney, he/she will schedule a meeting to discuss the case and get familiar with each other. Important matters about the case that the client wishes to remain confidential are often discussed. The person may decide not to hire that lawyer. The person may speak with several lawyers before deciding upon one of them or none of them. In these instances, the attorney-client privilege remains intact, and the lawyers are not permitted to disclose what was discussed with the person even if the person never retains that attorney for any reason.

However, the attorney-client privilege can be lost. One way to lose the attorney-client privilege is for the client to disclose the information to others. If the client does not treat the information as confidential, the information loses its confidentiality privilege.

Another common way to lose the benefit of the attorney-client privilege is to meet with the attorney in the presence of others who do not need to be part of the conversation. In some cases, the other side has been able to find out what was discussed between the client and the lawyer when the client met with the attorney along with a family member or other individual. The presence of a third party at the attorney-client meeting may very well eliminate the attorney-client privilege with regard to whatever is discussed at that meeting in front of the third party.

There are exceptions. The attorney is allowed to have his/her staff at the meeting to help the attorney work on the case. Therefore, if the lawyer's assistant, paralegal, partner or other co-worker is present to assist on the case, this would not compromise the attorney-client privilege. The client may also have someone present at the meeting without losing the attorney-client privilege if that person is reasonably necessary to help the client communicate the issues to the attorney. As an example, a client who is elderly or has mental issues might need the assistance of a friend or family member during a attorney-client meeting. However, having a friend or family member in the room for comfort could certainly be sufficient to eliminate the attorney-client privilege.

Does Violating an Employer's Computer Policy Violate the Federal Computer Fraud and Abuse Act?

Mon, 07 May 2012 11:00:22 -0500

The federal Computer Fraud and Abuse Act (CFAA) was intended to be an anti-hacking criminal statute to go after people who hack into databases and computer systems without authorization to misappropriate data. However, certain prosecutors have attempted to expand their powers under the Act and use the Computer Fraud and Abuse Act to prosecute people who were not intended to be covered by the law

In a federal criminal case out of California, prosecutors charged a defendant for violating the Computer Fraud and Abuse Act for violating certain computer-related policies of his employer. In this case, the defendant was an employee of an executive recruiting company named Korn/Ferry. He left the company to start a competing company. The defendant contacted some of his former co-workers who were still working at Korn/Ferry and asked them to download confidential information from the Korn/Ferry computer system to assist the defendant with his new company. The employees were allowed to access the Korn/Ferry computer database because they still worked there. However, Korn/Ferry's policies did not allow them to use the information in the database to help a competing business.

The United States Attorney's Office charged the defendant with violating the Computer Fraud and Abuse Act for aiding and abetting the Korn/Ferry employees in exceeding their access to the Korn/Ferry computer system to defraud the company. The criminal defense attorneys moved to dismiss the CFAA charges. They argued that the CFAA was intended to punish hackers who access computer databases without authorization, not people who have authorization to access a computer database but misuse the information in violation of company policy.

The appellate court determined that the CFAA did not apply to this scenario. The court noted that computers have become prevalent in today's society and it would be very dangerous to allow a prosecutor to use the Computer Fraud and Abuse Act in situations where an employee merely violated a company's computer policy. One could envision any number of ways an employee could violate company policy as it relates to a computer that could end up in federal charges if the CFAA was expanded to include fraud based on company policy violations. Fortunately, the appellate court was not inclined to expand the CFAA in that manner and indicated that prosecutors should use the CFAA to go after hackers who access computer systems without authorization as the computer Computer Fraud and Abuse Act was apparently intended.

Police Track Personal Cell Phones Without a Warrant

Fri, 04 May 2012 13:43:37 -0500

It is safe to say that most people in this country own a cell phone and use it to communicate in a variety of ways. There is a growing trend for people to cancel their landline phone numbers at home and rely exclusively on their cell phones. What people may not know is that the various law enforcement agencies around the country routinely track cell phones without warrants and without notifying the user in any way.

This tracking can take the form of tapping into the GPS information on a phone to learn a person's location (which of course is very useful if a child or other person is missing). Most phones these days have GPS capabilities so their locations can be tracked. The police tracking also takes the form of directing phone companies and software companies like Google and Apple to give the law enforcement agencies location information, text messages and data that can be used for investigative purposes. Law enforcement agencies can also have the phone companies clone a person's cell phone so the agency can receive the same text messages and other data as the user.

Some law enforcement agencies do get search warrants before seeking this kind of information. However, many do not which leaves a lot of discretion with the various police agencies and gives them free reign to intrude into a person's private life for "investigative purposes", whatever that may mean in any particular case.

What Constitutes the Crime of Robbery in Florida?

Tue, 01 May 2012 13:55:12 -0500

In Florida, robbery involves taking the property of another with the use of violence, force or placing the victim in fear of violence. If no firearm or other weapon is used, robbery is a second degree felony which carries a maximum penalty of up to 15 years in prison. Of course, if a gun or other weapon is used to commit the robbery, the robbery charge can be much more serious.

Issues do arise in robbery cases surrounding when the force is used. In order for the crime of robbery to be committed, the force must be used "in the course of the taking" of the property. What exactly that means has not always been clear. As a result, the robbery law was changed to clarify what is "in the course of the taking." The robbery statute defines that time period as the period prior to the taking, contemporaneous with the taking and subsequent to the taking. Read literally, that includes all of the time. The statue does narrow the time period down to require the force to be used in a continuous series of acts with the taking.

Obviously, if force is used immediately prior to the taking to put the suspect in a better position to take the property, if force is used as the suspect takes the property and if force is used immediately after the taking in order to get away with the property, the state will have a stronger robbery case. However, if some time elapses between the force and the taking, or the taking and the force, the incident is less likely to be a robbery.

Additionally, if the suspect abandons the property before he/she uses force, the case for a robbery is much weaker. For instance, assume the suspect is in a store, conceals an item in his jacket and proceeds to leave the store without making an effort to pay. The store security sees him walking out of the store and yells for him to stop. The suspect drops the item and runs out of the store. The security officer follows him, and the suspect throws the security office down to get away. In this scenario, it would likely be a robbery if the suspect still had the stolen property because he used force immediately after the taking in order to get away. However, since the suspect dropped and abandoned the property, this likely would not be a robbery since abandonment of the property prior to using force is a defense to robbery.

Evidence Issues in Dealing in Stolen Property Cases

Sat, 28 Apr 2012 13:06:50 -0500

In Florida, the crime of dealing in stolen property is committed when a person "deals" in property that he/she knows or should know is stolen. This is a second degree felony that is punishable by up to 15 years in prison.

So how does the state prove that a person knew or should have known the property was stolen? Obviously the defendant can make it easy on the state and admit that he/she knew the property was stolen. However, absent a confession by the defendant, the state must rely on circumstantial evidence to prove the defendant knew or should have known the property was stolen. One way the state endeavors to prove this crime is by showing that the defendant was in possession of the stolen property shortly after it was stolen. If a burglary happened at noon and the defendant is seen pawning one of the stolen items at 2:00 pm, the state is entitled to argue that the defendant was involved in the burglary and knew the property was stolen.

What about when the defendant is selling the stolen property days or weeks after the theft? The defendant can argue that he/she obtained the property in any number of legitimate ways during that time. One way the state can try to circumstantially prove the defendant knew or should have known the property was stolen when the defendant sold it at a later date is the price for which the defendant sold the property. If the defendant sold the property for a price that is much lower than the value of the property, than the state will argue the defendant knew or should have known the property was stolen. In fact, the state may be entitled to an instruction from the judge to the jury in the dealing in stolen property case that instructs the jury that they can infer that the defendant knew or should have known the property was stolen based on the sale price. The defendant can provide an explanation for why he/she sold the property for substantially less than its value, but evidence of such a sale may be enough to prove that the defendant knew or should have known the property was stolen and a conviction for dealing in stolen property.

The Crime of False Imprisonment May Require Less Than You Think

Wed, 25 Apr 2012 12:12:06 -0500

In Florida, false imprisonment is a felony crime. False imprisonment is normally a third degree felony that carries a maximum penalty of five years in prison. However, the charge can become much more serious if the victim is under 13 years of age and the child is seriously injured or sexually abused.

In Florida, false imprisonment is defined as restraining another person against his/her will by force, threat or secretly confining him/her. This can cover a lot of different scenarios. Another important thing to note is that the false imprisonment does not need to involve a confined space, such as a locked room. Additionally, the false imprisonment does not need to take place over a long period of time. There is no set time limit for a false imprisonment crime to be complete.

In a recent case west of Jacksonville, Florida, a defendant was convicted of false imprisonment after he got into an argument with his girlfriend and ultimately knocked her to the floor and using his weight to pin her down.

The criminal defense lawyer moved to have the false imprisonment charges thrown out because he argued the defendant only pinned the victim down for a brief period of time. The court disagreed and allowed the false imprisonment conviction. The court noted that the crime of false imprisonment involves depriving the victim of freedom of movement for any length of time. The force used by the defendant does not need to be substantial; it just needs to be sufficient to restrain the victim against his/her will for any period of time.

It is a Crime to Access Confidential Data From a Computer Without Permission in Florida.

Sun, 22 Apr 2012 17:15:10 -0500

A crime that is not commonly charged but still exists in Florida deals with a person accessing a computer without authorization to take trade secrets or other confidential data. This came up in a recent criminal case after the defendant was charged with accessing her company's client list, downloading it to her private computer and then using the client list for purposes not permitted by the company.

The defendant was actually charged with two crimes: 1) unlawfully accessing a computer database, and 2) obtaining trade secret or confidential data. Both charges are third degree felonies and are punishable by up to five years in prison. The first charge, unlawfully accessing a computer database, involves knowingly accessing, disrupting or destroying a computer or computer network without authorization. This obviously includes hacking into a computer system without authorization to view or take computer data. The second charge, obtaining trade secret or confidential data, involves knowingly taking or disclosing data that are considered trade secrets or confidential under Florida law that exists on a computer or computer network without authorization.

In this case, the defendant was not convicted of unlawfully accessing a computer database since she was an employee and had the right to access the information. However, she was convicted of obtaining trade secret or confidential data because she was not entitled to take the data and transfer it to her own computer for her own use.

Many people use company or private computers during work. They frequently access the confidential data of their employers. Whether a person is guilty of these kinds of crimes may often depend on the particular company's policies regarding its computers and computer network. Other issues may arise as to whether the company adequately notified the defendant/employee of its computer policies or the confidential nature of its data. At the many companies where policy enforcement is lax, whether the company failed to enforce such policies during the employee's tenure giving the employee reason to believe he/she had access to certain computer data despite the policy may also be an issue.

Although these crimes are not commonly charged in Florida, they do exist and they carry potentially serious penalties. Given the prevalence of computers in the workplace, the ambiguities regarding many companies' policies addressing their computer systems and the broad wording of these criminal statutes, the potential for employees to face these felony charges is significant.

Urine Test Thrown Out in DUI Case After Police Coercion

Thu, 19 Apr 2012 17:28:32 -0500

In Florida, when a person receives a driver's license, he/she is consenting to take a blood alcohol test if the police have a legal basis to request one during a proper DUI investigation and the police follow proper legal procedures. A person can refuse a breathalyzer, urine or blood test to check his/her alcohol level, but he/she may face a driver's license suspension as a result of that refusal. If a person refuses a breathalyzer, urine or blood alcohol test, the police officer may not use any coercive tactics to administer the test.

In a recent DUI case near Jacksonville, Florida, the defendant was stopped for failure to maintain his lane. After a DUI investigation, he was arrested and taken to the police station. The police officer asked if he would submit to the breathalyzer test. The defendant agreed, and the results were 0.00 both times the breathalyzer test was administered. The police officer still believed the defendant was impaired from alcohol and then asked for a urine test. The defendant initially refused the urine test, but the police officer asked repeatedly. Ultimately, the police officer threatened to take him to the hospital to get his urine with a catheter or to take a blood sample. The defendant finally agreed to the urine test.

The criminal defense lawyer filed a motion to suppress the results of the urine test alleging that the police officer used coercive tactics in obtaining the urine sample. The court agreed and threw out the evidence of the urine test. If a defendant under arrest for DUI refuses a breathalyzer or urine test, the police may be able to get a blood sample from the defendant but only with a proper search warrant. In this case, the police officer threatened the blood test to get the defendant to consent to the urine test. However, the police officer did not properly inform the defendant that he would need to get a search warrant for the blood first.

The failure to disclose the need for a search warrant was an improper show of authority by the police officer. As a result, the misleading threat was considered coercive, and the defendant's ultimate consent to a urine test as a result of the police officer's coercive tactics was ruled inadmissible in court.

Another Florida Stand Your Ground Law Example

Mon, 16 Apr 2012 17:04:12 -0500

With the Trayvon Martin/George Zimmerman case getting so much attention along with the Florida Stand Your Ground law, we thought we would provide some examples of how the law works in practice. This is the second example we have discussed of a case where the Florida Stand Your Ground law was applied to give a defendant immunity from prosecution for a violent crime. The Florida Stand Your Ground law, when it applies, is a defense to a violent crime charge and gives the defendant immunity from prosecution. This means that the criminal defense lawyer can raise this issue in a motion with the judge and if successful, have the judge throw the case out so it never gets to a jury trial.

In this recent case near Jacksonville, Florida, the defendant was charged with aggravated battery, but the criminal defense lawyer was able to have the judge throw the case out based on immunity from the Florida Stand Your Ground law. In this case, the defendant and the alleged victim were arguing and ultimately got into a fight with each other. At some point during the fight, the defendant stopped fighting and retreated. At the defendant retreated, the alleged victim attempted to forcibly take a briefcase belonging to the defendant's friend. The two began fighting over the briefcase again, and the defendant stabbed the alleged victim with a knife.

Under the Florida Stand Your Ground law, a person has a right to use deadly force if he/she reasonably believes the other person is about to cause death or bodily injury to him/her or to prevent the other person from committing a forcible felony. It did not appear that the alleged victim was about to use deadly force against the defendant, but the alleged victim was in the process of committing a forcible felony- a robbery. As a result, the defendant was authorized to use deadly force against the alleged victim to prevent the alleged victim from committing the robbery, which is considered a forcible felony in Florida.

It should be noted that a defendant is not entitled to the benefit of the Florida Stand Your Ground law if the defendant is engaged in, or is furthering, unlawful activity. For instance, if the defendant initiated the fight or the defendant was attempting to commit a robbery, the Stand Your Ground law would not apply. However, in this case, the defendant had retreated from the initial fight, and it was the alleged victim who restarted the altercation by attempting to commit the robbery. As a result, the defendant could assert the Stand Your Ground law and was entitled to use deadly force. The aggravated battery charge was properly thrown out under the Florida Stand Your Ground law.

Can a Police Officer in Florida Search You if He Sees Part of a Concealed Handgun?

Fri, 13 Apr 2012 12:59:31 -0500

In Florida, possession of a firearm is not illegal unless the person is a convicted felon. Possession of a concealed firearm is illegal unless the person has a concealed firearm permit. If a police officer sees a person in possession of what appears to be a handgun and does not have evidence that the person is a convicted felon and does not know if the person has a concealed firearms permit, does that police officer have probable cause to search the person? The Florida courts have disagreed on this issue, but the answer in Jacksonville appears to be yes.

In Florida, a police officer cannot search a person without probable cause to believe the person is involved in criminal activity or consent. Since merely possessing a gun, without more evidence, is not necessarily evidence of a crime, how can a police officer search a person if all the police officer knows is the person may be in possession of a firearm?

In a recent carrying a concealed weapon case near Jacksonville, Florida, the police were on patrol and saw the defendant with what appeared to be part of the handle to a handgun sticking out of his pants. When they approached the defendant, they could not see the handle but saw a bulge in his pants consistent with a handgun. The police officer asked to search the defendant, but he refused. The police officer then searched him anyway and found a handgun. At the time of the search, the police officer did not know if the defendant was a convicted felon, did not know if he had a concealed weapons permit and did not see the defendant commit any other crimes. After obtaining the concealed handgun, the police learned that defendant was a convicted felon and did not have a concealed weapons permit. The defendant was arrested for carrying a concealed weapon and possession of a firearm by a convicted felon.

The criminal defense attorney filed a motion to suppress the evidence of the gun. The criminal defense lawyer argued since the police officer did not know that the defendant was a convicted felon and did not know if he had a concealed weapons permit prior to the search, the police officer did not have probable cause to believe the defendant was committing any crime. Mere possession of a gun is not a crime, and possessing a concealed handgun is not a crime if the defendant has a concealed firearms permit for it.

The court disagreed. Possession of a gun is not a crime without evidence that the defendant is a convicted felon, however the way the carrying a concealed firearm law is written, carrying a concealed handgun is a crime. Having a permit for it is a defense that the defendant must raise. Since the police officer saw the defendant with the concealed firearm, that was sufficient evidence that he was committing a crime and sufficient for a search based on probable cause.

Battery and the Stand Your Ground Law in Florida

Tue, 10 Apr 2012 11:58:08 -0500

The Florida Stand Your Ground law is getting a lot of national attention recently as a result of the Trayvon Martin/George Zimmerman case. The Florida Stand Your Ground law and justifiable use of force laws provide as follows: 1) a person can use nondeadly force when he/she reasonably believes it is necessary to defend him/herself against another's imminent use of unlawful force, and 2) A person can use deadly force is he/she reasonably believes it is necessary to prevent imminent death or great bodily harm to him/herself or another person or to prevent the commission of a forcible felony. In these cases, the person does not have to retreat before using deadly force.

In other words, if a person reasonably thinks he/she is about to be the victim of nondeadly violence, he can use nondeadly violence against the other person. If a person reasonably thinks he/she is about to get killed or seriously injured by another, he/she can use deadly force against that other person to prevent it.

A person has greater protection if the incident occurs in his/her own home. Florida law provides that a person in his/her home is presumed to be in reasonable fear and in a position to legally defend him/herself if the other person is unlawfully entering his/her home.

The following is an example from a battery case near Jacksonville, Florida. In this case, the alleged victim and the defendant knew each other. The alleged victim came over to the defendant's house and just walked in without an invitation. The defendant told the alleged victim to leave his house. The alleged victim did not leave but hit the defendant in the face instead and then blocked the defendant from leaving. At this point, the defendant threw the victim against the wall, injuring her. The police arrested the defendant for battery and the state filed those charges against the defendant.

This appears to be a pretty clear case of justifiable use of force. Since the alleged victim hit the defendant first and blocked him from leaving, the defendant had a right to defend himself against her initial use of force.

When the stand your ground law applies, it is not merely a defense at a trial. The criminal defense lawyer can file a motion claiming immunity from prosecution from battery or any other violent crime and have a hearing in front of the judge prior to any trial. At that hearing, the defendant can establish that he/she was justified in using force, and the judge can throw out the charges without the need for a trial.

Florida Police Still Cracking Down on Pain Clinics

Sat, 07 Apr 2012 16:51:11 -0500

We have written several posts about state and federal law enforcement agencies focusing on what they call "pill mills" throughout Florida. We have represented many people in state and federal court who are charged with having some association with an illegal pain clinic ,or pill mill, in Florida or Georgia. The targets of the police investigations range from pain clinic employees to doctors to owners. Some of the factors police look for are as follows: pain clinics that have lines out the front door or lines early in the morning when the clinic opens, vehicles in the parking lot with out of state license plates and pain clinics where doctors see patients for a very short period of time and then write prescriptions for pain pills.

Over the last several years, we have seen many cases of the police going after these pain clinics. Many of these criminal cases have been successful, but some of them have targeted legitimate pain clinics that provide a much needed medical service to people who do not have good, or any, insurance coverage.

According to a recent Jacksonville news article, Florida police are still cracking down on pain clinics. The Florida Attorney General has called the prevalence of pain clinics and prescription drug abuse a health crisis in Florida. The Attorney General's office claimed that more than 2,000 arrests in pain clinic related cases have been made, including 34 doctors. The Attorney General's office and other law enforcement agencies throughout the state intend to continue to make arrests of people they consider to be involved in illegal pain clinics.

The penalties for crimes related to illegal prescription drugs can be severe in Florida. If you have any questions about prescription drugs or pain clinics or have been contacted by any law enforcement agency, it is very important that you understand your rights and what law enforcement is trying to do before you take any action or make any statements.

Possession of Recently Stolen Items is Evidence of a Burglary in Florida

Wed, 04 Apr 2012 17:22:53 -0500

In Florida, a burglary is committed when a person enters a residence, vehicle or other structure with the intent to commit certain crimes therein. Most of the time, the crime that the person intends to commit is a theft. Burglary is a serious felony crime in Florida.

One obvious way the state attempts to prove a burglary is by showing that the defendant was in possession of the stolen property shortly after the alleged burglary. In fact, there is a jury instruction the judge will give telling the jury they can infer that the defendant committed the burglary if he/she was found in possession of the recently stolen items. However, there are two issues that often come up with this jury instruction in a burglary case.

First, the defendant must be in possession of the stolen items shortly after the burglary. If the police find the defendant with the stolen items weeks or months later, this inference would likely not apply. In a recent burglary case near Jacksonville, Florida, the defendant was found in possession of the stolen items three months after the burglary. The court found that three months was not recent possession of stolen property so the state was not entitled to a jury instruction telling the jury they could infer he was guilty of the burglary because he was in recent possession of the stolen items.

Secondly, the defendant's possession of the recently stolen items must be exclusive. In other words, if the defendant is not the only one in possession of the stolen items, the jury instruction does not apply. If the police search the defendant's house and find the stolen items in a room with other people present, that would not be exclusive possession by the defendant. The state would be able to present evidence that the stolen items were found in the defendant's house, but the state would not be entitled to a jury instruction telling the jury they could infer the defendant was guilty of the burglary.

When the jury instruction does apply, it is only an inference. With the instruction, the jury does not have to find the defendant guilty; they are merely told they can infer that he/she is guilty based on the evidence of recent possession of the stolen items. Additionally, the defendant can refute this inference by presenting evidence that gives a legitimate reason for being in possession of the stolen property.