One type of circumstantial evidence that prosecutors use to bolster their cases is proof of the accused’s criminal past. In general, the law does not permit the consideration of the accused’s prior bad acts to decide his/her guilt of the current crime, but the law also carves out exceptions. One is when the defense “opens the door.” This means that the defense proactively presented evidence related to character traits first. If the defense opens the door, then the law allows the state to bring in evidence of prior bad acts that relate to that same trait.

Additionally, the state can use proof of past criminal activities if those prior bad acts tend to prove motive, intent, knowledge, or pattern, and not criminal propensity or poor character. This is called the “Williams rule,” stemming from the 1959 Florida Supreme Court ruling in Williams v. State.

Hearsay Evidence as a Preface to Admitting Prior Bad Acts

A third exception occurs when a party uses admissible hearsay evidence. Section 90.806(1) of the Florida Statutes says that once “a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.”

That statute was at the center of a recent Second District Court of Appeal case where the accused successfully secured a new trial. The accused was a Myakka City man who struck a bar’s security worker in the head several times after the employee threw the man’s father-in-law out of the establishment.

The defense argued that the accused acted in defense of his father-in-law, specifically contending that the bouncer was unduly aggressive and seemed on the verge of violence and that the father-in-law was physically fragile and “particularly vulnerable to dire injury.” As part of the defense presentation, the father-in-law testified about a verbal exchange between the worker and the accused where the accused indicated that he and his father-in-law would leave the premises as soon as their wives returned from the bathroom.

The state used that testimony as the preface for bringing in the accused’s previous criminal record under Section 90.806(1). The jury convicted the man of felony battery. The appeals court, however, reversed the conviction and ordered a new trial because the evidence of his criminal past was inadmissible.

What Constitutes Hearsay

Section 90.806(1) permits the admission of proof of prior bad acts only if a hearsay statement has been admitted into evidence… and the father-in-law’s testimony did not constitute hearsay. To be hearsay under the rules of evidence, a statement must be offered “to prove the truth of the matter asserted.” The father-in-law testified that his son-in-law told the bouncer “It’s my father-in-law… We’re just going to get the girls. They’re in the bathroom. Once they come out, we’re going to leave.” The defense did not present this testimony to prove that the ejected man was the accused’s father-in-law, that the men had wives who were inside the bar’s bathroom, or that the men intended to leave the property as soon as the wives exited the bathroom and could depart with them. The defense presented that testimony to support its argument that the accused was trying to de-escalate a heated interaction between the bouncer and his father-in-law.

In that context, the father-in-law’s statement was not hearsay and, because it was not hearsay, the state was not entitled to use Section 90.806(1) to admit the accused’s criminal history.

As this blog has discussed many times, the difference between a conviction and an acquittal may be your ability to keep out inadmissible evidence that harms your defense case. Inadmissible evidence does not simply get excluded automatically; it requires a properly timed and well-articulated objection (and sometimes a strong appeal, as well.) To ensure that the trial you receive is as fair as possible and the defense you receive is as strong as possible, look to the diligent and knowledgeable Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. Our experienced team includes former state prosecutors who know the criminal justice system in this area well, and know how to give you the best chance of a successful outcome. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post When the State Can (and Cannot) Use Evidence of a Defendant’s Past Bad Acts in a Florida Criminal Trial appeared first on Tampa Bay Criminal Defense Lawyer Blog.

The state vigorously pursues and prosecutes these matters, whether you are an ordinary citizen or, as was the case recently, a famous celebrity.

Lawrence Taylor, a football Hall of Famer who played for the New York Giants, was the offender at the center of a failure-to-notify case recently. The state charged him with violating Section 943.0435 of the Florida Statutes. That law mandates that sex offenders must update the state within 48 hours if any of their personal information changes.

The list of personal information covered by this statute is lengthy, including:

• name
• date of birth
• social security number
• race
• sex
• height
• weight
• tattoos or other identifying marks
• hair and eye color
• employment information
• address (or if he or she has no permanent or temporary address)
• address, location or description, and dates of any current or known future temporary residence
• make, model, color, vehicle identification number (VIN), and license tag number of all vehicles owned
• home telephone numbers and cellular telephone numbers
• electronic mail addresses
• Internet identifiers and each Internet identifier’s corresponding website homepage or application software name.

The above list is illustrative but not exhaustive. (The full list in the statute is actually much longer.)

Second- or Third-Degree Felony Charges for Violations

Penalties for these violations can vary but all are steep. Some instances — such as telling the state you are moving out of state but then failing to provide notification that your plans to move away changed and you are staying in Florida – constitute a second-degree felony. Most violations are classified as third-degree felonies. (Second-degree felonies generally can result in up to 15 years of jail time and 15 years of probation, while third-degree felonies can lead to a sentence of as much as five years behind bars and five years of probation.)

In Taylor’s case, the state alleged that he moved but failed to provide notification of his new home address within the required 48 hours.

Challenging a Charge on Factual or Procedural Grounds

Defeating a violation charge is possible. The Taylor case is a useful example. In 2021, the state brought similar charges related to an alleged failure to update his home address. In a December 2021 report by TMZ, the retired linebacker’s legal counsel described the charge as “a big misunderstanding” and expressed confidence in a swift dismissal. According to the attorney, local law enforcement in Broward County had visited Taylor’s marital home and recommended that he stay elsewhere for a while following a dispute with his wife. Although the man took the officers’ advice, he was “constantly a resident of the marital home where he was registered,” so no requirement to update his information existed, according to his legal team.

The 2024 arrest allegedly was a similar “misunderstanding.” Taylor’s attorney stated in an ESPN report that, just like “the previous incident involving the same allegations, Mr. Taylor did not knowingly commit any criminal offense… We are confident that, once the prosecutors review the exculpatory evidence demonstrating Mr. Taylor’s innocence, he will once again achieve a favorable outcome,” which seems to imply that they did secure a dismissal in 2021.

You may also be able to challenge your charges on legal or procedural grounds, rather than factual bases. For example, in 2014, officers in Pinellas County arrested a St. Petersburg man for allegedly failing to update his address. The state’s theory was that the man had moved from one girlfriend’s home (located on 44th Avenue) to a new girlfriend’s home (located on 57th Avenue,) but had never updated his address to reflect the move to 57th Avenue.

The man prevailed in the court of appeals on due process grounds. When the state opens a criminal case, the State’s Attorney files with the court a formal document called an “information.” An accused person’s due process rights demand that the state compose this document with specificity. Basically, the document must be specific enough to put the accused “on notice” of the exact charges against him and include all the essential elements of the crime(s) alleged.

In this case, the state prosecuted the case at trial as a violation of Section 775.21(6)(g)(2). However, the information the State Attorney’s Office filed with the court never mentioned Subsection (6)(g) at all “and did not include any elements of the charged offense.” Those errors were enough for the man’s legal team to convince the appeals court that the information was constitutionally defective.

Even if a violation seems like a triviality, be aware that, if it involves the sex offender registry, the negative consequences are always potentially severe. Given what is on the line, having skilled counsel is a must. The experienced Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. are here to help. We are former state prosecutors so we know keenly how the system works, and we know how to maximize your odds of success. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post A Celebrity Case from South Florida Spotlights the Severe Consequences of Failing to Update Information Filed With the State’s Sex Offender Registry appeared first on Tampa Bay Criminal Defense Lawyer Blog.

The Florida Supreme Court made news headlines last month with an important ruling about stops. The high court said that law enforcement officers may, while making a lawful traffic stop, permissibly command a driver to exit a vehicle to allow a K-9 officer to perform a sniff sweep of the automobile. Doing so, the court said, was not a violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.

The court, in siding with the state, looked to a 1977 ruling from the U.S. Supreme Court, Pennsylvania v. Mimms. In that decision, the court said that “an exit command given by an officer during a lawful traffic stop is” not a violation of the driver’s constitutional rights.

The key to these traffic stop rulings is that the initial investigatory stop must have been lawful. If it was not, all of these rules are inapplicable and the interaction potentially becomes a Fourth Amendment violation.

What Makes an Investigatory Stop Law Versus Unlawful?

The U.S. Supreme Court’s 1968 opinion in Terry v. Ohio is the foundational court case related to this question. That ruling said that the police do not violate a person’s Fourth Amendment rights when they stop that person as long as:

1. The detention is brief
2. The officer had a reasonable suspicion of criminal activity

Reasonable suspicion is enough, even if the officer did not have probable cause to make an arrest at that time. Having read that, you probably wonder…

What is Reasonable Suspicion?

The Florida Supreme Court has expressly said that “the law requires not just a mere suspicion of criminal activity, but a reasonable, well-founded one.” This means the officer’s suspicion must be “based on facts ‘inherently suspicious’ or ‘unusual’ enough or so ‘out of the ordinary’ as to provide an officer with a reasonable suspicion of criminal activity.”

The courts make these rulings on a case-by-case basis and their decisions are generally highly fact-intensive. Successfully demonstrating an absence of reasonableness can be the key to winning a motion to suppress key evidence and securing an acquittal or dismissal.

In a recent case from Tampa, the appeals court clarified one scenario that does not constitute reasonableness. The accused, M.C., was “walking casually” through an apartment complex located in a “high crime” area when an undercover officer spotted what he believed was a concealed gun holster. The officer asked the man multiple times if he had a permit for his weapon. The man and his cohort both ignored the officer and continued walking.

The man was not seen “running, being loud or causing a disturbance, pulling the gun out, threatening anyone, making furtive movements, or engaging in any suspicious transactions.” All the state had to go on was that M.C. was seen in possession of a concealed handgun while walking in a “high crime” area and ignored questions a police officer posed to him.

That was not enough, the appeals court determined. In fact, the court noted, sometimes even fleeing while in a high-crime area is not enough to support reasonable suspicion unless the officer also had something more to go on.

What these cases recognize is that, just because the police ask you questions, you are not necessarily under an obligation to answer them… or to say anything at all. If the situation escalates to an interrogation, your next step should be to invoke your right to counsel.

When that time comes, look to the experienced Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. We are former state prosecutors, so we know how area police (and State Attorneys) work and what their tendencies are. We work vigorously to get charges dropped when possible or else reduced when that’s not available. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post Police Investigatory Stops, ‘Reasonable Suspicion’, and Fourth Amendment Search and Seizure Law in Florida appeared first on Tampa Bay Criminal Defense Lawyer Blog.

One place where parties have substantial obligations – and where violations can have significant consequences – is pretrial discovery. A recent burglary case from Tampa shows what should happen when the state doesn’t meet those requirements.

T.M., a juvenile, was on trial for the crime of “burglary of an occupied dwelling,” which is a felony. During the trial, the prosecution called two Hillsborough County Police officers as witnesses – the author of the police report and the officer to whom the juvenile allegedly confessed to the crime.

During pretrial discovery, the state disclosed both officers as witnesses. Nevertheless, the defense spotted a problem and objected when the second officer began testifying about T.M.’s confession. The defense argued that the prosecution never handed over the juvenile’s confession and, while it disclosed the officer as a witness, it did not inform the defense of her role in obtaining T.M.’s confession.

On the other hand, the prosecution argued that listing the officer on the witness list and handing over the police report were enough to satisfy its obligation under the rules.

The trial allowed the officer to testify and T.M. ultimately was convicted. That conviction did not survive an appeal.

The appeals court explained that the non-disclosures about which the defense objected were clear violations of the rules. Juvenile proceedings operate under their own set of procedural rules. One of those, Rule 8.060(a)(2)(A)(i) requires the prosecution not only to disclose the identity of “witnesses who were present when a recorded or unrecorded statement was taken from or made by the child,” but also to “separately” identify them within the witness list. Rule 8.060(a)(2)(C) obligates the state to disclose “the substance of any oral statements made by the child…, together with the name and address of each witness to the statements.”

(As a side note, Florida’s Rules of Criminal Procedure, which would have governed had T.M. been a legal adult, impose virtually identical disclosure obligations on the state. Rule 3.220(b)(1)(A)(i) requires the state not only to name witnesses “present when a recorded or unrecorded statement was taken from or made by a defendant or codefendant,” but also specially identify those witnesses in the list. Rule 3.220(b)(1)(C) requires prosecutors to hand over written statements, recorded statements, or the content of oral statements made by the defendant, as well as the names and addresses of all the witnesses to those statements.)

Simply listing the officer’s name within the overall body of the witness list was not enough, according to the court.

What Happens When the State Commits a Discovery Violation?

Florida law dictates that, if a trial court becomes aware of a discovery violation, it must convene something called a “Richardson hearing.” (Named after the landmark 1971 Florida Supreme Court case of Richardson v. State.) During this hearing, the trial judge does several things. One, he/she must ascertain whether the violation was inadvertent or intentional, whether or not the violation was substantial, and whether the violation was harmful or harmless.

In deciding the harmful-or-harmless question in a Richardson hearing, the judge must determine “whether there is a reasonable possibility that the discovery violation” altered the defense’s trial preparation. Unless the error was proven beyond a reasonable doubt not to have affected the defense’s preparation may the judge rule it to be harmless.

In T.M.’s case, the appeals court pointed out the possibility of harm. Had defense counsel known the substance of the officer’s testimony – and that it was undeniably the heart of the state’s case – the defense could have taken more aggressive steps to impeach the officer, investigated the possibility that the officer coerced the confession, or even put T.M. on the witness stand.

The knowledgeable Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. are experienced across a wide array of criminal matters. We are former state prosecutors who understand all the machinations that lead up to a criminal trial, including how law enforcement officers work and how prosecuting attorneys approach cases. Whether it is getting the charges dropped, negotiating a plea agreement, or defending you at trial, we fight successfully for the people of Tampa Bay every day. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post Pretrial Discovery Requirements and Violations of Those Rules in Florida Criminal Trials appeared first on Tampa Bay Criminal Defense Lawyer Blog.

Understanding the Allegations

Gaining a full understanding of the accusations made against you is the first step toward preparing to win a wrongful lawsuit. This calls for a thorough examination of the details of the claims and the underlying legal principles, not just a cursory perusal of court documents. Examine the allegations thoroughly, taking into account the circumstances surrounding their emergence and any possible driving forces. Acquiring a thorough comprehension of the accusations will enable you to design a sophisticated defense plan that aptly and concisely tackles every aspect.

The post 5 Steps to Take to Help You Prepare to Win a Lawsuit appeared first on Tampa Bay Criminal Defense Lawyer Blog.

A 20-year-old man in greater Orlando recently was involved in one of those “high-speed” circumstances. According to The Smoking Gun, an Orange County Sheriff’s Deputy began following a red Chevrolet Camaro that another deputy had observed participating in a street race. The second deputy clocked the Camaro going as fast as 199 mph on the turnpike, where the speed limit is 70 mph. (The driver may have been going faster (200+) when you consider that many speed detection devices “max out” at 199 mph.)

When the police accuse you or your loved one of going significantly over the speed limit, the state has an array of possible charges it can bring. Going 30+ (but less than 50) over the limit triggers steep penalties. Even for a first offense, the driver faces a mandatory court hearing (no resolving the issue by simply mailing in a check,) a possible fine of $400 or more, a four-point “hit” on their driver’s license, and no traffic school option.

Fla. Stat. Section 316.1926(2), which covers instances of speeding 50+ over the limit, carries even heavier penalties. Even a first offense triggers a minimum $1,000 fine and four points against your driver’s license.

Reckless Driving and Street Racing Laws

Those aren’t the only charges you potentially could face. The state can assert a charge of reckless driving. In Florida, the law says that a driver who operates his/her vehicle with “willful and wanton disregard” for the safety of others is guilty of reckless driving. There is no “magic number” over the speed limit at which a speeding incident automatically becomes reckless driving.

Situations like the recent one near Orlando potentially can implicate another statute, as well — the law against street racing, drag racing, and “street takeovers.” A first offense under this statute is a first-degree misdemeanor, carrying a punishment of as much as one year in jail, one year of probation, and fines of $1,000. On top of that, your car may be impounded for 30 business days and the state will revoke your driver’s license for at least one year.

What all of these statutes and punishments should demonstrate to you is if the police have accused you of driving substantially above the speed limit (30+ over,) the State Attorney’s Office has a lot of options and a lot of discretion in how they dispose of your case. That’s one of the reasons why promptly hiring a skilled attorney is so important. Your defense counsel can interact with the State Attorney’s Office and potentially get you a resolution that avoids jail time, avoids a license revocation, or perhaps even avoids the assessment of any points on your license.

Similarly, even if you weren’t going 30+ over, a good legal team can be invaluable. A favorably negotiated resolution may allow you to avoid points and other collateral harms like increased insurance rates.

Swift action is key. Some moving violations require you to request a hearing within 30 days of your receipt of the ticket. Whatever your circumstance, the experienced Tampa Bay traffic violation defense attorneys at Blake & Dorsten P.A. can help you utilize the processes available to you to achieve the best outcome possible. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post Law Enforcement Officers Bust an Orlando Driver Going Nearly 200 MPH on Florida’s Turnpike appeared first on Tampa Bay Criminal Defense Lawyer Blog.

Arguments about ex post facto laws are an area where many pro se criminal defendants go wrong, raising the argument in circumstances where no ex post facto violation exists. A recent sex offender registry case from our south, however, is an example where the accused did have a valid ex post facto argument.

The defendant, A.C., was a Venice man convicted of a sex crime in 2016. At that time, the court sentenced him to incarceration followed by one year of probation. The sentence also required him to register as a sex offender. In the summer of 2019, while on probation, A.C. was arrested for another internet sex crime.

The state charged the man with violating the sex offender registration statute (Section 943.0435.) Specifically, the state accused the man of failing “to report an electronic mail address or instant message name” to the Department of Law Enforcement. That may sound like a minor technicality, but the state has designated this crime as a third-degree felony carrying a potential punishment of as much as five years in prison and a $5,000 fine.

Complicating the state’s position, the sex offender registration statute (as it existed in 2019) specifically said that an offender’s obligation under the law only kicks in after the offender has “been released… from a sanction imposed by any conviction,” and that a “sanction” included things like fines, probation, community control, parole, conditional release, and control release. A.C. argued that, since he was still on probation, he had not been “released” from his sanction, did not yet have an obligation to register, and couldn’t be guilty of violating Section 943.0435.

Legislation from 2021 Amends the Trigger Requirements for Registering

New legislation in 2021 complicated matters in A.C.’s case. In a 2020 case, State v. James, the Court of Appeal affirmed the dismissal of a “failure to register” case where the offender had finished his period of incarceration but had not paid his $10,000 fine. The legislature amended the statute in 2021 specifically to declare that the State v. James ruling was “contrary to legislative intent and that a person’s failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to” Section 943.0435. The state cited that 2021 amendment in arguing that the law permitted it to bring a failure-to-register action against A.C.

The appeals court, however, rejected that position. Section 943.0435 (as it existed in 2019) did not impose an obligation to register before the offender completed his probation, so failing to do so while on probation could not be a valid instance of the crime of failure to register. The 2021 amendment to the statute made it clear that an offender’s release from incarceration triggered the obligation and an offender could be guilty of failure to register while he was still on probation. The court recognized that applying this 2021 amendment to A.C.’s case would be a clear ex post facto violation. “To construe the preamendment statute in the manner the State suggests (that is, to align the preamended version’s operation with the postamended version’s text) violates the cardinal prohibition of ex post facto criminal laws: it criminalizes what had been noncriminal conduct after-the-fact.”

Florida has some of the toughest sex crimes laws in the country and Florida prosecutors pursue them doggedly. If you’re on trial for (or suspected of) a sex crime, you need an aggressive and experienced lawyer on your side. The zealous and knowledgeable Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. are here to help when a sex crime charge threatens to derail your job, your reputation, and your very freedom. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post A Florida Sex Offender Registration Case Offers Helpful Insight Into What an Ex Post Facto Violation Looks Like appeared first on Tampa Bay Criminal Defense Lawyer Blog.

A recent drug case from our northeast is a prime example. The accused, A.S., had had multiple run-ins with law enforcement. In 2019, officers in Duval County executed a search warrant on the home where A.S. lived. They found drugs but the state did not charge the man after that search.

In 2020, officers executed another search warrant on the same home. Again, they found drugs. This time, the state charged the man with multiple drug crimes including trafficking in eutylone, which is a type of synthetic bath salt.

The prosecution wanted to use the 2019 search in its 2020 case against the man. Florida law generally doesn’t allow prosecutors to use evidence of prior bad acts to prove an accused person’s guilt. Florida, however, does have a statute that allows the state to use proof of prior bad acts or crimes if it tends to prove a “material fact in issue.” The material fact can be motive, opportunity, intent, preparation, plan, knowledge, identity, or “absence of mistake or accident.”

This is called “Williams Rule Evidence.” The state wanted the 2019 evidence included because the crime of trafficking in Florida requires proof that the accused knowingly sold, purchased, manufactured, or delivered the drugs in question, or that he knowingly possessed an amount above the statutory threshold.

Used for Proof of Guilt, Not Knowledge

The judge allowed the state to use the 2019 search to prove the requisite element of knowledge, but only for that purpose. Nevertheless, the prosecutors repeatedly misused the 2019 evidence. The prosecutors told the jury that A.S. went to jail after the 2019 search but that incident had not changed him and his drug trafficking business remained an “ongoing operation.” Even more egregiously, the prosecution told the jury just before they retired to deliberate that A.S. “got away with it in 2019” and that jurors should not “let him get away with it in 2020.”

Other Ways Prosecutors’ Comments Can Be Improper

The prosecutors did other improper things as well. They told the jury that they “see this stuff all the time. We see how these houses are run. We see how the defendants try to outschool the police. Now you see it.” This was an example of a prosecutor improperly interjecting his personal opinion about the accused’s guilt. They also told the jury that it “did not take the police long to figure it out. It should not take us very long to figure it out either.” This is an example of improper bolstering. Bolstering happens when the state vouches for a witness’s credibility or “places the prestige of the government behind the witness.”

The state also cannot improperly disparage the accused, his legal counsel, or defense witnesses. In A.S.’s case, a prosecutor went on a long diatribe about how “if there was a print on that bag, the defense would be telling you, it just means he touched the bag at one point. Maybe he made a sandwich. Maybe he brought along some cold cuts and some pulled pork. He touched the bag and then someone else filled it with drugs. There is an explanation for everything.” This is an example of improper disparagement, Previous examples have included a prosecutor telling the jury the defense case was a “sea of confusion” that the defendant “prays you get lost in,” and telling a jury that defense witnesses and evidence were “pathetic,” “insulting,” “preposterous,” “nonsense,” and “bologna.”

Generally, an accused person’s trial lawyer must make a timely objection to the prosecution’s improper statements, or else that argument is forever lost. This is a place where having skilled counsel is crucial. The only way you can still get a new trial in the absence of a timely objection is if the appeals court rules that the prosecutors’ missteps constituted “fundamental error,” which the court decided was the case in A.S.’s trial. That determination of fundamental error was crucial because the man’s trial lawyer failed to object to the prosecutors’ many improper statements, a failure the appeals court called “incomprehensible.”

The outcome of your criminal trial may impact and alter your entire life in the future. This is too important not to arm yourself with every resource you can, including zealous legal counsel. The skillful Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. are here to provide diligent and effective representation in your drug case. We are former prosecutors, and we put the insights we gained from that experience to work for our clients in all of our drug cases. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post How Florida Prosecutors’ Inappropriate Comments to a Jury Led to a Reversed Conviction appeared first on Tampa Bay Criminal Defense Lawyer Blog.

Successfully arguing self-defense can be central to the accused person’s success in a battery case. To achieve that success, the accused needs to ensure that the judge properly instructs the jury about the law of battery and of self-defense.

When those instructions are erroneous, that may affect the accused’s ability to get a fair trial, as a recent battery case from Pinellas County illustrates.

The case arose from an alleged lovers’ quarrel. After S.D. arrived home late one night, the man and his partner, R.M., became embroiled in an argument. The argument turned physical with both partners allegedly slapping, punching, and choking each other.

The state charged the man with aggravated battery. At trial, the man’s primary defense was self-defense.

Battery Versus Assault

At this juncture, it’s useful to insert a reminder about the difference between aggravated battery and aggravated assault, as many people often confuse the two. In Florida, an assault occurs when the perpetrator makes the victim fear imminent violence. Assault is an aggravated crime when it involves (1) a deadly weapon without intent to kill, or (2) with an intent to commit a felony. A battery requires actual physical contact. Additionally, the state must prove in an aggravated battery case that the accused used a deadly weapon, knowingly caused the victim great bodily harm, or struck a woman that the accused knew or should have known was pregnant.

The judge in S.D.’s case instructed the jury on the justifiable use of non-deadly force. The judge also instructed the jury that “the use of non-deadly force is not justified if you find that [the accused] was attempting to commit, committing, or escaping after the commission of an Aggravated Battery.” This latter instruction related to the “forcible-felony exception to a claim of self-defense.”

The jury found the man guilty and he received a sentence of 10 years.

A Fundamental Error and a New Trial

The man appealed and won. The problem with his trial was the set of jury instructions. The Florida Supreme Court announced in 2008 that the forcible-felony exception “applies only when there is a forcible felony independent of the one which the defendant claims he or she committed in self-defense.” In other words, as the Second DCA stated in 2012, the “exception applies only when ‘the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.'”

In S.D.’s case, the only criminal act the state alleged was the aggravated battery of R.M., the exact crime he argued he committed in self-defense.

If self-defense is the accused’s primary defense, a wrongful instruction related to the forcible-felony exception can constitute a “fundamental error” that requires a new trial. In S.D.’s case, the judge’s erroneous instruction removed the accused’s “main defense from the consideration of the jury, without which a jury could have determined that the State failed to meet its burden that his use of non-deadly force was not justified.” As a result, he was entitled to have his conviction reversed and to receive a new trial.

If you’re facing a felony battery charge, the knowledgeable Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. can help. Our experienced team has helped people throughout the Tampa Bay area who have been accused of battery, assault, and many other felony crimes. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post Aggravated Battery, Self-Defense, and the ‘Forcible-Felony’ Exception in Florida appeared first on Tampa Bay Criminal Defense Lawyer Blog.

A well-worn phrase posits that it is “better to be lucky than good.” In one recent local theft case, the operative phrase arguably could have been: “If you’re not going to be smart, it is good to be lucky.”

The suspect in the case was M.K., a 33-year-old Clearwater man who traveled to a St. Petersburg tattoo parlor during the evening of Dec. 2 to obtain some new body art. A true aficionado of haute cuisine, the customer elected to get a five-inch-wide replica of the Waffle House logo tattooed onto his right calf.

As Waffle House fans worldwide readily know, the eatery’s logo is yellow and black. However, because adding yellow ink would have cost an additional $100, M.K. opted for a basic black and gray logo.

At the end of the appointment, the provider charged the customer $250. At that juncture, the reportedly intoxicated customer advised the business that he did not have his debit card. The business gave the man “multiple options” for satisfying the debt, and he refused them all. A police search revealed that the customer had only a driver’s license and six dollars in cash on him.

Based on those facts, the police charged the customer with petit theft in the first degree.

Petit Theft Versus Grand Theft, and Degrees of Theft

So, how, you may wonder, was this customer lucky? He was lucky that Florida changed its theft laws a few years ago (and that he opted against adding the yellow ink to his Waffle House tattoo.)

In 2019, Florida updated its theft laws to bring them more in line with other states. Before the update, a theft of as little as $300 could qualify as third-degree grand theft, a felony crime. So, had the state not changed its law and had M.K. added the yellow ink, he potentially could have faced felony charges for walking out on his tattoo bill.

Today in Florida, $750 generally is the minimum cut-off for the state to bring a felony theft charge successfully. Theft of property valued at less than $100 is generally second-degree petit theft (a second-degree misdemeanor,) and first-degree petit theft typically covers thefts where the value is between $100 and $750.

There are exceptions that can raise your sub-$750 theft to a felony, though. If you allegedly committed petit theft and have two or more theft convictions on your criminal record, the state can pursue your case as a felony.

To make out a petit theft case, the state must prove three essential things:

• that you wrongfully obtained the item(s) in question,
• that you took the item(s) intentionally,
• that you intended to deprive the owner of that property or appropriate it for use.

Theft crime cases potentially allow you to pursue various defenses. These include arguing that you had a right to take and use the item(s) in question, that the item(s) in question aren’t worth as much as the owner (and the state) say they are, or that you unintentionally took the item(s) in dispute. These are but a few examples.

The knowledgeable Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. work diligently to protect our theft crime clients’ rights fully and provide them with the most powerful and effective defense advocacy available. Whether yours was just a minor shoplifting matter or a major theft, we can help. To find out more, call us today at (727) 286-6141 to schedule your free initial consultation.

The post What a Pinellas County Man’s Waffle House Tattoo Can Teach About Theft Laws in Florida appeared first on Tampa Bay Criminal Defense Lawyer Blog.