Jacksonville Criminal Defense Lawyer Blog

Possession of a Firearm by a Convicted Felon: Can I Be Charged in Jacksonville if My Spouse Owns the Gun?

2009-11-03T14:33:46Z

According to Florida Statute Section 790.23, a person that has previously been convicted of a felony cannot possess a firearm. Under Section Section 10.15 of the Florida Standard Jury Instructions, the state must prove that the convicted felon had in his care, custody, possession, or control a firearm, electric weapon/device, or ammunition.

Whether or not a convicted felon can be charged with Jacksonville Possession of a Firearm by a convicted felon that his or her spouse owns will depend on the definitions of "care, custody, possession or control." " 'Care' and 'custody' mean immediate charge and control exercised by a person over the named object." The term "possession" is defined as the ability "to have personal charge of or exercise the right of ownership, management, or control over an object."

Under Florida Law, a Jacksonville convicted felon can actually or constructively possess a firearm. Actual possession occurs when the firearm is on the convicted felon's person or so close that it is readily within his or her reach. Just because the firearm is very close to the convicted felon, there is no actual possession of the firearm if he or she is not in a position to exercise control over it. A convicted felon is in constructive possession if the firearm is located in a place that the felon has concealed the firearm or a place that the felon has control over.

In many Jacksonville Possession of a Firearm by a Convicted Felon cases, a felon is arrested for possessing his or her spouse's firearm. In most of those cases, the spouse keeps the firearm in a non-secure location in the house. This location is normally a place that the felon has access to it. Thus, the felon is arrested and charge. However, a Jacksonville Gun Crimes Attorney can defend this case based upon the fact that the felon may not have been aware that the firearm was located within the house.

Additionally, if the spouse keeps the firearm in a secure location in which the felon does not have access to it and could never gain access to it, the convicted felon would not have any ability to control the firearm and could not be in possession of it. For example, a woman owns a firearm and keeps it in a locked safe. The safe is bolted down to the floor in a room in her house that is kept locked. Her husband is a convicted felon. He does not know the combination to the gun safe and does not have a key to the room. Thus, it would be absurd to believe that he is in constructive possession of the gun. On the other hand, if the gun is kept in a box in the couple's bedroom closet that both people share, the state would have a better argument that the Jacksonville convicted felon was in possession of the firearm.

I am in no way stating that storing a firearm in the manner provided above will resolve a Jacksonville convicted felon from criminal liability. However, it would create a better defense. Therefore, his Jacksonville Criminal Defense Attorney would have a better chance at getting the charges dropped or winning the case at trial.

Jacksonville Juvenile Criminal Cases: Who Pays the Restitution

2009-10-30T15:37:10Z

In a Jacksonville Juvenile Criminal Case, the juvenile defendant is the party that is accused of committing a crime, not the juvenile's parent. However, parents can be obligated to pay restitution in their child's criminal case. Restitution is normally the amount of money or value of the property that the alleged victim has lost due to the defendant's actions. In a Jacksonville Juvenile Criminal Case, the parent and child can be responsible for paying for this loss, because the court has jurisdiction over the parent and the child.

Florida Statute Section 985.437(2) permits the court to order a juvenile to pay "restitution in money, through a promissory note cosigned by the child's parent or guardian, or in kind for any damage or loss caused by the child's offense in a reasonable amount or manner to be determined by the court." If the court orders restitution, "the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make." It is important that Jacksonville Juvenile Criminal Defendants not be required to pay an obscene amount of restitution for a couple reasons. First, when a defendant is ordered to pay restitution, he or she is normally placed on probation to pay the restitution. If he or she is required to pay too much every month, then this will certainly result in a violation of probation. Second, it is difficult for adults to find employment right now. It would be ridiculous to believe that a juvenile could find a job that would pay enough to cover tens of thousands of dollars in restitution. Thus, the parent would be required to pay the restitution.

Florida law does provide for an exception to the rule that a parent can be required to pay a Jacksonville Juvenile Criminal Defendant's restitution. Under Florida Statute Section 985.437(4), a parent may avoid such responsibility if the court finds "that the parent or guardian has made diligent and good faith efforts to prevent the child from engaging in delinquent acts."

'Girls Gone Wild' Shoot Leads to Several Arrest in the Jacksonville Area

2009-10-26T16:07:40Z

The Nassau County Sheriff's Department led to several arrest last weekend in Yulee, Florida, a small town outside of Jacksonville. According to the Jacksonville News, the 'Girls Gone Wild' film crew went to The Mill Night Club where "men were allegedly encouraging women to show their breasts so they could be filmed." Several people were arrested for violating a

Nassau County City Ordinance which prohibits exposing one's self in public and operating a sexually oriented business. If a person violates this Nassau County Florida law, he or she will be charged with a second degree misdemeanor which is punishable by up to 60 days in jail and a $500 fine.

At Apple Law Firm PLLC, we represent people in Jacksonville and the surrounding areas for charges ranging from indecent exposure and violating the adult entertainment code to Florida sexual battery. Regardless of the type of Jacksonville sexual offense that you are charged with, it is important to discuss your case with a Jacksonville Sex Crimes Attorney.

Man Hunt, a Game Played by Jacksonville Children, Violates Florida Gun Laws

2009-10-22T15:45:04Z

Today, I learned about a game that some children play in the Jacksonville, Florida area. It is called "Man Hunt." It appears to be a spin off of hide-n-seek and tag, but firearms are involved. According to an article entitled "How to Play Man Hunt," the players set up a large perimeter. All players, except the hunter or hunters, are given a time period to hide. Then, the hunt begins. While this article, does not reference the use of firearms or weapons in any way, it appears that children have taken the game a step further and incorporated air guns and/or BB guns.

Not only is this dangerous to the children involved and bystanders, it can result in civil and criminal liability for parents. As for civil liability, a parent that allows a child to use an air gun or BB gun in a negligent fashion or without supervision may be sued for negligence and be held liable for any damages to person or property. As for criminal charges, Florida Statute Section 790.22(1) states:

"the use for any purpose whatsoever of BB guns, air or gas-operated guns, or electric weapons or devices, by any minor under the age of 16 years is prohibited unless such use is under the supervision and in the presence of an adult who is acting with the consent of the minor's parent."

Florida Statute Section 790.22(2) declares that it is a second degree misdemeanor if an adult responsible for the welfare of a child under 16 years old knowingly allows that child to violate the statute listed above. Indeed, parents should watch their children closely to prevent violations of Florida firearm's law in Jacksonville. This will not only prevent an arrest, but also prevent injury to others. In fact, a ten-year-old boy died last month due to an injury inflicted while playing cowboys and indians with his father's air gun.

Florida Driving Under the Influence Case: Motion to Suppress Granted Due to Hearsay

2009-10-19T17:42:32Z

In Bowers v. State of Florida, the Florida Second District Court of Appeals recently affirmed a county court's ruling that suppressed all evidence obtained during the search of a driver's vehicle during a Florida Driving Under the Influence (DUI) stop. This ruling was based on the fact that the police officer that initiated the vehicle stop did not attend the hearing on the motion to suppress. Thus, the only evidence that the State of Florida presented to meet its burden of proving the validity of the Florida DUI stop was through the hearsay testimony of the DUI officer that was not present during the initial stop of the vehicle.

The Florida Second District Court of Appeals ruled differently than the Fourth District Court of Appeals did in a similar case. In Ferrer v. State, 785 So. 2d 709, the court allowed hearsay evidence to support probable cause for a Florida DUI stop although the state attorney failed to call the officer that initially stopped the vehicle. The Fourth District Court of Appeals held that such evidence was admissible due to the fellow officer rule.

Therefore, the Second and Fourth District Courts of Appeal are in conflict. It should be interesting to see if this Florida DUI case makes it to the Florida Supreme Court based on such conflict. Since the First District Court of Appeal has not ruled upon this issue, I do not know what position a Jacksonville Florida court would take if confronted with similar facts in a Jacksonville DUI case. However, it would make more sense for a Jacksonville court to follow the Second District Court of Appeals based upon the fact that the fellow officer rule is not an exception to the hearsay rule. Therefore, the court should not allow such evidence to be admitted.

Jacksonville Habitual Traffic Offender Lawyer

2009-09-30T12:37:31Z

A Florida Habitual Traffic Offender is defined in the Florida Statutes. Florida Statute Section 322.264 lists the criteria for a driver to qualify as a habitual traffic offender (HTO). The Florida Department of Motor Vehicles will evaluate a person's driving record for the past five years to make this determination. If a Jacksonville driver has a certain amount of the traffic convictions, his or her license will be suspended for five years as a Jacksonville Habitual Traffic Offender.

A Jacksonville driver must have three or more convictions, arising out of separate incidents, of the following to result in a Jacksonville HTO Suspension:

involuntary or voluntary manslaughter due to the operation of a motor vehicle;
driving under the influence (DUI);
a felony in which a motor vehicle was used to commit the crime;
driving with a license suspended or revoked (knowingly or unknowingly);
driving a commercial vehicle when such privilege has been suspended or revoked; or
failing to render aid in a crash that results in death or bodily injury.

Otherwise, a driver must have fifteen or more convictions of moving violations, as discussed in Florida Statute Section 322.27, in order for his or her license to be subject to a Jacksonville HTO Suspension.

Many people do not realize that they are a Jacksonville Habitual Traffic Offender until they receive a letter stating this from the Florida Department of Highway Safety and Motor Vehicles. At that time, people think that it is too late to save their license, but this is not true. A Jacksonville Driver's License Attorney can review the Florida Driving Record to determine whether any of the prior traffic offenses may be reopened. If so, there is a good chance that a driver's license can be saved from suspension.

DUI Charges Filed in Jacksonville for Atlantic Beach SUV/Bicycle Accident

2009-09-08T15:57:35Z

In September 5, 2009, in Atlantic Beach Florida, a Bicyclist was seriously injured after being involved in an accident with an SUV. Yesterday, the driver of the SUV, William Adams, was charged with Driving on a Suspended License and Driving Under the Influence in Jacksonville, Florida.

Due to the injury involved in this case, Adams was likely charged with Driving Under the Influence Resulting Serious in Bodily Injury. In Jacksonville Florida, DUI with serious bodily injury is a third-degree felony. As such, it is punishable by up to five years in prison. Additionally, this type of DUI will score Florida prison guidelines, so Adams is looking at a minimum prison sentence, unless his Jacksonville DUI lawyer can mitigate this.

Another issue that should concern Adams, or anyone else charged with Jacksonville DUI with serious bodily injury, is the fact that serious bodily injury may turn into death. If the bicyclist were to die due to the injuries inflicted from the accident, Adams will be charged with DUI manslaughter. Jacksonville DUI manslaughter is normally a second degree felony, unless the defendant knowingly failed to render aid or give necessary information. In that case, it is a first-degree felony. As such, the penalties increase. Either way, a Jacksonville DUI charge of this nature requires immediate attention.

Jacksonville DUI: Accident Report Privilege Results in Inadmissible Evidence

2009-08-28T12:13:27Z

The accident report privilege is a Florida law that prohibits the introduction of evidence obtained by a police officer while investigating an accident. Normally, a police officer avoids this by informing the defendant that he is "switching hats." The officer tells the defendant that he is no longer investigating the crash, but instead, he is investigating a possible crime, such as DUI.

A recent Florida DUI (Driving Under the Influence) case from the 9th circuit held that certain evidence in a Florida DUI case would be inadmissible due to the accident report privilege. In State v. Peltz, FLWSUPP 169PELTZ (June 10, 2009), a Florida State Trooper arrived at the scene of an accident in which the defendant crashed into a power pole. By the time the trooper arrived, the defendant was being escorted out of the vehicle. While investigating the crash, the defendant told the trooper that he was the driver of the vehicle. According to Vender v. State, this type of driver identification is protected by the accident report privilege. Vender, 849 So. 2d 1207, 1212 (Fla. 5th DCA 2003). The prosecutor failed to present any evidence, besides the trooper's testimony, that the Defendant was the driver of the vehicle. Eventually, the trooper told the Defendant that he was going to conduct a criminal investigation, and he read the defendant his Miranda warnings. After doing so, he asked the defendant to "re-explain" the accident.

The court ruled that "Florida law excludes statements made by a defendant subsequent to the reading of his Miranda rights which merely 'restate' or 're-explain' statements the defendant made during the crash investigation, these statements, too, are inadmissible at trial." Therefore, the Florida State Trooper did not have probable cause to believe that the defendant was the driver of the vehicle. Without other evidence, the state failed to prove that defendant was the driver of the vehicle. The state must prove that the Defendant was driving in order to convict a Florida driver of DUI.

For more information on Florida's Accident Report Privilege and Driving Under the Influence, contact a Jacksonville DUI Attorney.

Jacksonville Theft Conviction Leads to Suspended Florida Driver's License

2009-08-27T13:45:47Z

Many defendants charged with Jacksonville Petit Theft enter a plea of guilty or no contest to the offense without regard to the consequences such plea may have on the status of their Florida driver's license. A plea to a Jacksonville theft crime may result in Florida driver's license suspension ranging from 6 months for a first theft conviction to 12 months for a second or subsequent conviction.

Florida Statute Section 812.0155 gives the court the authority to order a Florida Driver's License suspension for anyone convicted of a theft crime. Additionally, this law mandates that the court order the suspension of a Florida Driver's License for anyone that has more than one conviction of theft.

If you are charged with a Theft Crime in Jacksonville, contact a Jacksonville Theft Attorney to discuss all aspect of your case.

Men Can Be Victims of Jacksonville Domestic Violence

2009-08-20T14:09:28Z

In my practice as a Jacksonville Domestic Violence Attorney, I have seen many men that were the true "victims" in domestic violence cases. Quite often, a woman will become violent with the man. In some cases, the man must defend himself from her. However, if the police come to the door, they may listen to both stories, but they end up arresting the man or both of them for Jacksonville Domestic Battery. This is based upon the premise and stereotype that men are the abusers in a relationship, but this is not always the case.

A recent U.S. study surveyed 11,000 men and women. This study "found that according to both men's and women's accounts, 50 percent of the violence in their relationships was reciprocal (involving both parties). In those cases, the women were more likely to have been the first to strike. Moreover, when the violence was one-sided, both women and men said that women were the perpetrators about 70 percent of the time." For an great example of such a situtation, read "No One Believed Me: When Men Are Victims of Domestic Violence" by Glenn Sacks, M.A. and Ned Holstein, M.D.

Jacksonville, Florida is no different from the rest of the country. Jacksonville residents are arrested for alleging abusing their girlfriends or wives that do not deserve to be. That is why it is important to address every Jacksonville domestic violence case with an open mind, and not succumb to stereotypes.

Jacksonville Probation Violations: Keep Track of Everything You Do

2009-08-14T12:44:40Z

Jacksonville plea bargains often result in probation sentences. As part of a negotiated sentence, the Jacksonville criminal defendant is placed on probation for a certain amount of time. He must comply with the standard conditions of probation, such as meeting with his probation officer and paying a monthly fee. Additionally, the Jacksonville probationer usually will have special conditions of probation, such as random urine tests, mental health and/or drug and alcohol counseling.

For example, the standard probation sentence for a first DUI in Jacksonville, Florida is as follows:

50 hours of community service;
Level one DUI school;
Victim Impact Panel;
Fines and court costs (totaling over $1000.00); and
Ten day vehicle tag impoundment.

If the probationer does not complete all of these conditions within the time period mandated by the court, the Jacksonville probation officer will violate his probation. Once this occurs, a warrant is issued, and the probationer is arrested.

The best thing that a criminal defendant can do, once he is place on probation in Jacksonville, is to keep a journal of everything that involves his probation. This journal should state what happened and the date that the occurrence takes place. Moreover, he should keep all documents associated with the occurrence.

Below is an example:

1/1/09: Placed on probation (keep all documents that the probation officer gives you on that date).

1/2/09: Reported to the Salvation Army Probation Office and filled out all paperwork. Spoke to Ms. Jones at the downtown Jacksonville Probation Office.

2/6/09: Meet with my Jacksonville Probation Officer, Ms. Smith.

2/7/09: Signed up for the DUI course (keep the receipt).

2/27/09: Completed the DUI course (keep the certificate).

This journal, along will all other documents, will be useful if you are ever charged with Jacksonville Violation of Probation. Also, staying organized will help you avoid a probation violation.

North Florida Jury Convicts Teen of Murder After Hearing Her Confession

2009-08-13T19:07:43Z

In Putnam County, Florida, a 16-year-old girl was conviction of murder, burglary, and assault. While in police custody, the Florida teen confessed to helping her boyfriend kill the disable 66-year-old man. It took the jury only two hours to find her guilty.

Confessions can be devastating to a criminal case. In most instances, the defendant is lured into the confession. Often, a police officer states that the defendant is only helping herself by speaking with him, but this is far from the truth. Any one that is charged with a crime, should exercise their right to remain silent and have an attorney present for questioning. If a defendant wants to answer and officer's questions, she should have an attorney in the room when doing so. Police officers have experience in interrogating suspects, whereas most suspects do not have experience in this area. Thus, the playing field is not level. In order to keep things fair, an attorney should be there to advise the defendant.

As a Jacksonville criminal defense lawyer, I have represented many clients that had great cases until I received a copy of the confession. In some cases, I was able to get the confession suppressed, so the jury never gets to hear it. However, this does not happen in all cases. The moral of the story... when an police office says "you have the right to remain silent," do not talk. If you still have the desire to speak with the officer, tell him that you will speak to him, but you would like to have an attorney present. If he does not want to talk to you after that, then he has something to hide.

For more information about confessions, contact a Jacksonville Criminal Defense Lawyer.

Can I Seal or Expunge My Florida Battery Charge?

2009-07-30T12:45:14Z

As a general rule, you can seal or expunge a Florida criminal record so long as you have not been convicted of a crime. Therefore, if you received a withhold of adjudication, you can seal your record. However, there are certain criminal offenses that cannot be sealed or expunged, even if adjudication is withheld, if you plea guilty or no contest to the charge. These criminal offenses can be found in Florida Statute Section 907.041. For example, you cannot seal or expunge a Florida aggravated battery or Florida domestic battery if you have pled guilty or no contest to such charge. This is the law regardless of whether or not you received a conviction or a withhold of adjudication.

Two questions still remain:

After researching such questions and submitting cases to the Florida Department of Law Enforcement (FDLE) for review, it appears that you cannot have the record sealed if you pled to a lesser or amended offense, but you can if the charges were dropped. However, the Florida Supreme Court has not decided this issue. Therefore, it will be interesting to see what their decision would be on such an issue.

According to the Florida Statute Section 943.059, an individual may not have his criminal record sealed if it relates to "a violation enumerated in s. 907.041...without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense." Section 907.041 lists aggravated battery and domestic battery as an enumerated crimes. However, simple battery and fighting or affray are not an enumerated crimes. Ergo, an individual that has pled guilty or nolo contendere to such offense should be able to have his or her record sealed, so long as adjudication of guilt was withheld, according to the plain language of this Florida statute. This is not the case. The FDLE will reject the application. On the other hand, if the charges were dropped, the FDLE will not reject the application, assuming all other necessary conditions are fulfilled. I do not agree with this. A person's criminal background can make or break them. It makes a person less marketable in an already overly competive work place. As such, many Florida residents are being denied job opportunities. If this has happened to you, and you would like to fight this decision, contact a Florida Record Sealing Lawyer. You only have 30 days from the date of the FDLE's rejection letter to petition the court for a writ of mandamus.

Sealing a Florida Criminal Record When "No Record" Exists

2009-07-10T18:47:52Z

As a criminal lawyer that deals with many Florida record seals and expunctions, sometimes, I run into inconsistencies in a criminal record. For example, I called a Florida Clerk of Courts Office to get a certified copy of the disposition of a case. This document is needed when trying to seal or expunge a Florida record. However, the Florida clerk's office informed me that this record did not exists. Thus, according to the clerk, the criminal arrest never occurred. However, I was holding a Florida background check that showed the criminal offense, and this is what potential employers look at. Therefore, I still need to seal or expunge the record.

The problem: In order to get the process started for a criminal record seal or expunction, you must send a certified copy of the disposition of the case to the Florida Department of Law Enforcement with the application.

The issue: How do you send in a certified copy that does not exist?

The solution: You must obtain a certified letter from the clerk of courts stating that the record does not exist.

To learn more about sealing or expunging a Florida Criminal Record, contact a Florida Criminal Sealing and Expunging Attorney.

Jacksonville DUI Checkpoint Roadblocks Must Meet Legal Requirements

2009-07-09T13:39:11Z

Jacksonville DUI checkpoints occur when the Jacksonville Sheriff's Office designates an area in which it will stop vehicles in order to look for drivers that are possibly impaired. While it is commendable that Jacksonville is working to keep drunk drivers off the road, this is a intrusion into our privacy. No one enjoys waiting for road stop, and unfettered police discretion is never beneficial to the community.

Florida courts recognize this violation of our constitutional rights. Thus, they prohibit check-points that do not meet certain legal requirements. The Florida Supreme Court, in State v. Jones, 483 so. 2d 433 (Fla. 1986), ruled that before police can initiate a sobriety checkpoint, they must issue a set of uniform guidelines that set out certain procedures for the roadblock. In Campbell v. State, 679 So. 2d 1168 (Fla. 1996), the Florida Supreme Court made it clear that "police are not vested with the general authority to set up 'routine' roadblocks at any time or place."

For more information about DUI stops, contact a Jacksonville DUI lawyer. A Jacksonville DUI Lawyer can evaluate the guidelines set and procedures taken at a DUI checkpoint to determine the legality of the Jacksonville roadblock.