Articles Posted in Felony Crimes

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Have you been arrested for carrying a concealed firearm?  If so, you may be able to have your case dismissed through a new diversionary program recently created by the State Attorney for the Fourth Judicial Circuit.

Diversionary programs (also known as pre-trial intervention) are primarily designed for first-time offenders who meet specific criteria.  Only the State Attorney can admit you into a diversionary program.  A judge or your defense lawyer cannot.

Once accepted into a diversionary program you must sign a deferred prosecution agreement which contains specific requirements such as community service hours, restitution, and/or counseling.  Upon successful completion of the program, your charges are dismissed.  Any failure timely to complete the conditions of the program results in your case proceeding as it would have prior to your participation in the program. Continue reading

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Have you been arrested for possessing or trafficking drugs?  Were the drugs found in a home or other place you do not own?  If so, you may not be criminally liable for those drugs, as discussed in a recent court decision.

In Dion Johnson v. State of Florida, Mr. Johnson was visiting someone else’s house when SWAT team members executed a search warrant. Many people frequented the house and there were others present at the time of Mr. Johnson’s visit.

Mr. Johnson was in the living room when the officers appeared.  They found drugs in the bedrooms, including what was determined to be substituted cathinones, drugs related to amphetamines. The only item found in the house with any direct connection to Mr. Johnson was a cell phone. The one photograph found on the phone showed approximately six baggies on top of the kitchen counter in the house. The baggies contained unidentified items, but they were tied similarly to the baggies containing the drugs found in the bedrooms. The photograph was taken two days before the search warrant was executed. Continue reading

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The First District Court of Appeal just made it more difficult for the State to prove you committed  the crime of carrying a concealed weapon.  In Stanley John Kilburn v. State of Florida, Mr. Kilburn was charged with carrying a concealed weapon. Kilburn filed a motion to suppress, contending he was illegally searched.   The trial court denied his motion. Kilburn then pleaded no contest to the charge while preserving his right to appeal the trial court’s denial of his motion to suppress.

At the hearing on Kilburn’s motion to suppress, Deputy Beach of the Escambia County Sheriff’s Office testified when was patrolling a hotel parking lot one morning, he noticed a pickup truck parked with the driver’s door open. He also noticed the truck had a cloudy license plate cover.

Deputy Beach parked and approached the truck to discuss the license plate cover with Kilburn and to give him a verbal warning about the license plate cover. Deputy Beach testified he “was just going to have a talk, it wasn’t — it really wasn’t even investigatory at that point.” Continue reading

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Is someone you know or love currently in a Jacksonville area jail?  If so, they may be eligible for immediate resolution of their case and release from the jail due to the coronavirus. And, even if their case can’t quickly be resolved, they may be eligible for an ROR bond or other nonmonetary conditions of release so they can be immediately released from jail.

On March 20, 2020, the Office of the State Attorney for the Fourth Judicial Circuit, encompassing Nassau, Clay and Duval counties issued a memorandum acknowledging its responsibility to assist with containing the spread of the coronavirus to its staff, corrections officers, civilian jail employees, court staff and the overall inmate jail population in those counties.  The State Attorney recognized “[e]very individual, business, and public agency has a duty to help flatten the curve of this pandemic’s growth.  Criminal justice agencies are no exception.” Critically, the State Attorney  announced to limit the spread of the virus it was temporarily implementing strategies “[t]o safely reduce the jail population, which from a public health perspective, includes some of the most at-risk individuals in our community.”

Therefore, effective immediately, and continuing for an as yet unspecified time, the State Attorney has implemented the following new policies and procedures in criminal cases pending in the Fourth Judicial Circuit.  First, the State has implemented an expedited case resolution procedure for inmates currently serving their sentence in jail for non-violent misdemeanors or felonies.  For those inmates, a review will be conducted to determine whether they present a danger to the community.  If they do not, then absent objection of any victims, those inmates are eligible for a time served or probation sentence and immediate release from the jail. Continue reading

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A recent decision by the First District Court of Appeal makes it clear the prosecutor generally cannot use other bad acts you may have committed to prove you did the act for which you are currently being prosecuted.

In Stephen Trahan v. State, while parked in his driveway the victim’s truck was broken into, ransacked and his backpack stolen. A few days later, the victim happened to see Mr. Trahan  walking through his neighborhood with what appeared to be his stolen backpack. He confronted Trahan and demanded he hand over the backpack. The police were summoned, and a subsequent  investigation ultimately resulted in Trahan’s arrest on burglary charges.

As the case progressed, the victim’s ownership of the backpack became the dispositive factual issue.  If proven, it would be the link between Trahan and the vehicle burglary. During the trial, the State introduced evidence that when Trahan was arrested, a checkbook belonging to a third party with no connection to the burglary was found inside the backpack. Trahan’s lawyer objected to the admission of this evidence.  The trial court nonetheless admitted it, and Trahan was found guilty.

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Did the police justify their search of your vehicle by claiming they detected the odor of marijuana?  If they did and there was in fact no marijuana smoked or recently in your car, your lawyer may be able to question their credibility based on a New York judge’s recent comments reported in The New York Times.

As in Florida, courts in New York have long held an officer may effect a warrantless search of a car and its occupants if they smell marijuana coming from the vehicle.  But in late July of this year, a judge in the Bronx said officers base vehicle searches on the smell of marijuana too often to be believed.  And, the judge has urged her fellow jurists across the state to stop letting police officers get away with lying about smelling marijuana as an excuse to search a vehicle.

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge April Newbauer wrote in a decision in a case involving a gun the police discovered in car they had searched after claiming to have smelled marijuana.  She added, “So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.” Continue reading

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Many people believe if someone records them without their permission, the recording cannot be used in court.  A recent decision by the First District Court of Appeal, however, shows that is not always the case.

Corey Smiley was invited to the home of the women with whom he shared a two year old child.  While there Smiley and the woman got into an argument.  The woman recorded the argument on her cell phone.  The video depicted Smiley questioning the woman about the video and repeatedly trying to grab her phone.  It further showed Smiley shoving the woman and threatening to shoot her and their child.  The woman asked Smiley to leave her home several times.  The woman claimed after the recording ended Smiley brandished a gun.  She then fled with their child.

Smiley was arrested and charged with aggravated assault by threat with a deadly weapon and domestic violence battery.  Smiley subsequently sought to exclude the cell-phone video on the ground it had been illegally recorded without his consent.  The trial court denied his request and admitted the video at his trial.  Smiley was convicted of the charges. Continue reading

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On June 25, 2019 Florida Governor Ron DeSantis signed Florida Senate Bill 1020, regulating the production and distribution of hemp and hemp extracts in Florida, including the increasingly popular hemp derivative, cannabidiol (CBD). The bill makes Florida the latest state to enact legisla­tion to legalize and regulate its hemp industry.  The bill mirrors similar action at the federal level late last year when President Trump signed the Farm Bill removing hemp from the list of controlled substanc­es, making it legal to grow and sell hemp under federal law.

Hemp comes from the same cannabis plant that produces marijuana. Marijuana, however has much higher lev­els of tetrahydrocannabinol (THC), the chemical in the plant that is psychoactive and produces the hallmark “high” or euphoria.  Both hemp and marijuana contain CBD, a medical compound that has health benefits but is non-euphoric.

Under the Farm Bill, hemp is legal provided doesn’t contain more than 0.3 percent THC. If hemp contains more than 0.3 percent THC, it is still a federally banned controlled substance.  Similarly, Senate Bill 1020 excludes hemp from the definition of cannabis provided the THC concentration does not exceed 0.3 percent on a dry weight basis.

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Most people are aware Google scans emails to develop advertisements targeted to users’ particular interests.  In fact, the notion Google will scan your content to tailor your advertising has been well known; the company’s terms of service notify users their emails are being analyzed. However, most people are not aware Google also scans both emails and search requests on its site to detect and report child pornography.

Google’s online set of “program policies” for its Gmail service includes “a zero-tolerance policy against child sexual abuse imagery.”  That policy states: “If we become aware of such content, we will report it to the appropriate authorities and may take disciplinary action, including termination, against the Google accounts of those involved.”

Consistent with that policy, since 2008 Google has actively scanned images that pass through Gmail accounts to determine whether they match up with known child pornography.  More specifically, Google has been using “hashing” technology to tag known child sexual abuse images, allowing it to identify duplicate images in Gmail accounts or in search results, even if the images have been altered.  Each offending image effectively is assigned a unique ID Google’s computers can recognize without someone having to view them again. And, Google also incorporates encrypted “fingerprints” of child sexual abuse images into a cross-industry database. This technique enable companies, law enforcement and charities to better collaborate on detecting and removing these images, and to take action against anyone involved with producing or viewing the materials.  Continue reading

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An internet child sex sting operation just concluded with the arrest of 17 men.  Dubbed Operation DUVAL (Disrupting Underage Virtual Abuse Locally), the undercover operation was initiated by the Jacksonville Sheriff’s Office with the assistance of several Northeast Florida law enforcement agencies.

During the operation, law enforcement officers posed online as young male and female teens looking to have sex with older adult males.  Sometimes the officers posed as the parent of a child looking for sex.  Other times, the undercover decoys pretended to be the child themselves.

Jacksonville Sheriff Mike Williams was quoted in an article in the Florida Times-Union as saying the suspects traveled from as far north as North Carolina and as far south as Orlando to have sex with someone they believed to be a 13 or 14 year old boy or girl.  The suspects range in age from 19 to 67. The 17 suspects’ charges range from traveling to meet after using a computer to seduce a child to solicitation of a child via computer to engage in sexual activity and unlawful use of a two-way device.  At least one of the suspects’ cases is in federal, versus state court where the overwhelming majority of these types of cases are filed.  Continue reading

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