Posted On: December 30, 2010

How do Domestic Violence Laws in Florida differ from Battery?

Florida criminal law creates a separate category of crimes under the general category of Domestic Violence. Battery, which means an unlawful touching, and assault, which means putting another in fear of an unlawful touching, are the element crimes in Florida under Domestic Violence criminal laws. A battery is a misdemeanor if there is a touching but no serious bodily harm. A Battery becomes a felony battery when there is serious bodily harm or permanent disfigurement. The definition of felony battery has both statutory and case law definitions as the nature and extent of injuries inflicted by a battery vary from situation to situation. There are hundreds of cases concerning when a misdemeanor battery becomes a felony battery and they all give little finality to a judgment or opinion of your South Florida criminal lawyer. Many of these cases were litigated in Florida criminal courts in Miami, Fort Lauderdale and West Palm Beach. I mention this because most criminal defense lawyers in South Florida handle the majority of these criminal cases and are familiar with the judges and courts in South Florida and how domestic violence cases are filed by the prosecutor and viewed by criminal judges. Ultimately it is a jury decision on when an injury rises to serious bodily injury or permanent disfigurement. As a rule if there are broken bones, lacerations or scaring then a misdemeanor battery becomes a felony. The distinction between a battery and a domestic battery is the relationship between the alleged perpetrator and the “victim”. The Domestic Violence statute defines a domestic relationship as any of the following: a family member up to the third consanguinity (nephews, uncles, aunts, nieces and one level beyond), any persons living together or who have lived in a common living situation any time in the six months before the event (a roommate of six months ago is a domestic battery situation), dating persons, children, parents and those related by birth. The “living together” requirement is not required, only a social, dating, family or shared living conditions person requirement takes a common battery or common assault into the Domestic Violence statute. Bond is often not available in Domestic Violence cases and the statute contains a significant number of restrictions on those out on bond and those serving probation sentences.

Posted On: December 26, 2010

Possession of Cocaine

Florida criminal statutes for cocaine possession have three basic levels: one for cocaine users (small personal amounts), a second level is for those who sell or give cocaine to another (for free or for money), that is called “delivery” or “sale”. The third level, which carriers a thirty –year sentence is for trafficking in cocaine. Drug trafficking statutes (whether for cocaine, marijuana trafficking, oxycodone trafficking in Florida, or any other controlled substance) are for those “in the business”. Trafficking starts when the amount of the drugs exceeds a weight or pill count set in the various drug trafficking laws in Florida criminal law. Drug trafficking enhancements, which can lead to a life sentence or even capital punishment when trafficking includes a death either by a participant or under the felony murder rule, armed trafficking and “king-pin” cocaine trafficking (significant amounts by weight of cocaine), Federal criminal drug trafficking laws carry similar enhanced punishments when weapons or guns are used, displayed or discharged. Florida criminal laws pertaining to controlled substances are similar for marijuana, so called “designer drugs”, methamphetamines ( and variants such as mixtures, salts and compounds), ecstasy, and other controlled substances as are listed in Florida drug laws. If you, or someone you know, have been arrested in Miami, Broward County (Fort Lauderdale) or Palm Beach (Boca Raton, Delray, and West Palm Beach) you should speak with a South Florida criminal defense lawyer.

Posted On: December 21, 2010

Violations of Probation in Florida

The most common violations of probation are: moving out of state without permission, failure to pay money before the last month of probation, and another arrest after placed on probation. Not every violation is enough to get you before a judge; some are considered “technical” and are not punished. However, it is important to understand that only a judge can decide what is “technical” and what is “willful and substantial”. The Florida probation officer is required to report to the Judge any violation. Your Florida probation officer cannot forgive or overlook a violation: he/she must send a violation report to your Judge and request a violation of probation warrant be issued. The Judge will review the Probation Officer’s report (called a “request” for a violation of probation warrant) and decide if the alleged violation is serious enough to justify issuing a warrant to arrest you and bring you before the Judge. At the first appearance you either admit or deny the alleged violation. If you deny the violation you will return to court for a final hearing: similar to a trial but without a jury and with a much lower proof requirement. The biggest problem is that in Fort Lauderdale, Miami, and West Palm Beach you do not get a bail or bond if you are picked up on a violation of probation warrant. You will remain in jail for ten days before your first appearance hearing (admit or deny) and then remain in jail until the judge sets a final hearing. Some people in South Florida (Fort Lauderdale, Miami, and Broward County) remain in jail for three to four months waiting for a final hearing. At the final hearing the State Attorney (prosecutor) must prove that you were advised of the conditions (see the probation statute for the list of minimum conditions imposed on all probationers in Florida) and the Judge must make a finding of fact. If the judge finds that a violation has occurred the Judge can do one of three things: Reinstate, reinstate and modify (add conditions or requirements or extend the term) or the Judge can sentence the violator to any term of jail or prison under the Florida Punishment Code for the charges that placed you in probation.

Posted On: December 17, 2010

Florida’s Youthful Offender Law

If you are under twenty-one years at the time of sentencing you are eligible in Florida to request your criminal case be sentenced under Florida’s Youthful Offender Statute. Crimes committed in Florida by those less than twenty-one years old on the date of their sentencing can be sentenced under the Punishment Code under this statute. Prior to 2008 the statute only required that the offender have been under twenty-one at the time of the offense. For reasons best known by the Legislature, but beyond common sense, the law was amended to require that the sentencing be done before one’s twenty-first birthday. This cruelty forces young people to plead out otherwise defensible charges if the delays of court will take the case beyond their twenty-first birthday. Florida’s Youthful Offender Statute limits the sentence to six years. The Judge can combine multiple criminal sanctions (prison, probation, community control) but cannot exceed six years of any combination and permutation of these sanctions. If you are accused of a crime in Florida and you want to seek Youthful Offender status you must plead guilty or be adjudicated guilty at trail, and then ask the Judge to sentence you under the Youthful Offender statute. The obvious problem is if you are not guilty or have a legal defense you cannot pursue them. Secondly: the Judge will not tell you if he intends to sentence under the Youthful Offender statute before you plead guilty. You therefore have no assurance that the Judge will agree to limit sentencing to six years until after the guilt phase is over. Your South Florida criminal defense lawyer can ask the Judge for an indication that Youthful Offender Status will be granted but Judge’s are under no requirement to decide to grant Youthful Offender Statius until after the defendant has been found and adjudicated guilty.

Posted On: December 14, 2010

What Does Sealing and Expunging Criminal Records Do?

Sealing and expunging criminal records is available in Florida. Florida has a method of sealing end expunging criminal records: your South Florida criminal attorney can explain the statute. Sealed records exist but cannot be viewed without a court order. An expunged record is as close to a legal deletion as can be obtained. Many people after the economic hardships which began in 2007 have paid fees and incurred the expenses of sealing and expunging criminal records in the hope that it will help them find a job. Seek a consultation with a Florida criminal lawyer before you begin what is a lengthy, expensive process which may delay your entry into the job market. Ask questions like: “What legal effect does a sealing or expungment have?”, “Can an employer find out about my history?” “What is the difference between a sealing, expungment, and what is the difference between a criminal history and a criminal record?” Since the advent of the internet much personal information is available online and is sold and re-sold by companies that, for a fee, will sell you background information about anyone. If your purpose in seeking a sealing or expungement of your criminal record in Florida is to make it “go away”…understand that nothing ever goes away once it is published on the internet. Call any South Florida criminal defense lawyer and invest the time before you spend your money.

Posted On: December 11, 2010

Sealing and Expunging Criminal Records

Florida is one of very few states that have a statutory scheme for sealing and expunging criminal records. Sealing is different from expunging, and some charges cannot be sealed or expunged. The statute has been amended several times and has made it increasingly difficult to obtain a sealing or expunging. The process goes like this: first you send a fingerprint sample to the Florida Department of Law Enforcement with an application (which can be obtained from your county clerk). Then the State Attorney must be sent a formal request to either oppose or not oppose the sealing or expungement, next a motion must be filed with the clerk and a hearing set before a circuit court judge. The Florida Department of Law Enforcement will send a letter either confirming or denying eligibility for sealing or expunging your criminal record. Lastly you must set and conduct a hearing after noticing the State Attorney, Clerk, F.D.L.E. and the Judge. A sealed record exists but can only be shown to someone with a court order. An expunged record is legally deleted. Expungement is always better than sealing. The sealing and expungement statute lists those charges which cannot be sealed or expunged. Because of the complexity of the process and the effect of amendments over the years which have changed Florida’s sealing and expungment statute, most people seek the assistance of a Florida criminal attorney to handle a sealing and expungment request. Since 2006 the statute now requires that a judge sign and approve any sealing and expungement. Because setting and conducting hearings are complex, and the formalities and requirements of the sealing and expungement statute are both complex and confusing I suggest you find a South Florida Criminal lawyer for assistance. Most lawyers will gladly provide answers over the phone at no cost.

Posted On: December 10, 2010

Florida's Punishment Code

Florida‘s Punishment Code
In 1988 The Florida Legislature enacted The Florida Sentencing Guidelines following the lead of the Federal government’s Sentencing Guidelines. The Legislature hoped to rationalize sentences by creating an arithmetical formula for sentencing and limited judicial discretion. Now, someone convicted of drug trafficking, or possession of cocaine, or even a probation violation, would be sentenced the same throughout the State of Florida. South Florida sends the greatest number of people to prison and has been studied for the similarity of sentencing. The sentencing guidelines, now called the Punishment Code lists each crime, from assault to witness tampering, assigns it a category or range and requires judges to sentence in accord with the punishment code. There was, and remains, at outcry against the punishment code for two reasons: firstly racial minorities are statistically over-represented in the prison population and the punishment code continues that disparity. Secondly, the individual’s need for punishment by prison sentence precludes a judge’s ability to fashion punishments that are not compliant with the legislative scheme: this often creates over-harsh sentencing and injustices. A Judge can be harsher than the code but cannot go under the code unless the judge follows a limited and prescribed number of reasons for a downward departure. Your South Florida criminal defense lawyer can explain to you the system for scoring and computing felony sentences in Florida.