Jacksonville Criminal Defense Attorney Blog

You Can Still Be Convicted Despite An Invalid Search Warrant

Published on: February 28, 2021 | by Roelke Law, P.A.

You may have heard you can win your case if the evidence against you was obtained based on an invalid search warrant. But, as a recent case demonstrates, that’s not always true.

In State v. Smith, Mr. Smith was charged with multiple drug offenses and possession of a firearm by a convicted felon. The evidence was acquired from a search of Smith’s property pursuant to a warrant based on his former girlfriend’s allegations he possessed illegal drugs and firearms.

Smith subsequently filed a motion to suppress challenging the sufficiency of the search warrant affidavit. The same judge who had approved the warrant concluded she should not have signed the warrant in the first place. The judge reasoned because the affiant was a disgruntled ex-girlfriend, independent corroborating evidence was required to establish probable cause. The judge also rejected the State’s alternative argument the good-faith exception to the exclusionary rule rendered the evidence admissible even if the search warrant lacked probable cause. Smith’s motion to suppress was granted, meaning the State would not be able to use the evidence obtained during the search of his home and would therefore have to drop his case. The State then appealed. Continue reading

How You Can Be Arrested for DUI With a Breath Alcohol Content Under the Legal Limit

Published on: February 15, 2021 | by Roelke Law, P.A.

Have you been arrested for driving under the influence (DUI) in Florida even though your breath alcohol content (BAC) was less than 0.08? If so, you’re probably wondering how you could still be arrested, given the “legal limit” of 0.08. The answer is below.

Under Florida law, the State has to prove one of two things in your case to convict you of DUI. First, the State must prove that while you were driving or in actual physical control of a vehicle you were under the influence of alcohol or drugs to the extent your “normal faculties” were impaired. Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Alternatively, to convict you of DUI the State must prove while you were driving or in actual physical control of a vehicle you had a breath alcohol level of 0.08 or higher. A BAC of 0.08 or higher results in a conclusive presumption you were under the influence of alcohol to the extent your normal faculties were impaired. That is the primary reason most attorneys recommend not consenting to a breath test if there is any question about your BAC.

So if you blew less than 0.08, how can you still be subject to a charge of DUI? It’s because of certain presumptions about BAC ranges and how juries can consider other evidence of impairment in addition to your BAC. Continue reading

How to Avoid Sex Offender Registration in Your False Imprisonment Case

Published on: January 31, 2021 | by Roelke Law, P.A.

If you’ve been arrested for false imprisonment in Florida you may become automatically registered as a sex offender at the conclusion of your case depending on the facts, even if registration was not part of your plea agreement or ever discussed in court. A case from the First District Court of Appeal demonstrates how this can happen.

In Brinson v. State, 291 So.3d 620 (Fla. 1^st DCA 2020), Mr. Brinson was charged with lewd or lascivious battery, aggravated battery, and false imprisonment. As a factual basis for the charges, the Information alleged Brinson “did unlawfully engage in sexual activity with S.T., a person 12 years of age or older but less than 16 years of age, by vaginal penetration; did unlawfully commit a battery upon S.T. and by slamming her into a parked vehicle and choking her did intentionally or knowingly cause great bodily harm; did unlawfully forcibly, by threat, or secretly confine, abduct, imprison, or restrain another person, S.T. without lawful authority and against her will.”

Brinson pleaded no contest to aggravated battery and false imprisonment. As part of the plea agreement, the State dismissed the lewd or lascivious battery charge. Sex offender registration was not required by the plea agreement. Continue reading

How to Avoid a Felony Conviction and Prison In Your Grand Theft Case

Published on: January 13, 2021 | by Roelke Law, P.A.

Have you been charged with the crime of grand theft of electronics or other depreciating assets? If so, you may have grounds to have your charges reduced from a felony to a misdemeanor, thereby avoiding a felony conviction, prison and/or substantial jail time. The recent decision from the Florida First District of Appeal in Gallion v. State shows how.

There the State alleged Gallion had stolen two televisions and a stereo from the victim. At trial, the victim provided a receipt for one of the televisions reflecting it had been purchased for $532.86 the year before Gallion stole it. The victim provided an additional receipt showing she had purchased the stolen stereo for $699.99. There was no evidence offered regarding the value of the other television. Except for the two receipts, there was no testimony regarding the condition of the items at the time they were stolen, or how much they may have depreciated in value after they were purchased. Gallion was convicted of grand theft. He then appealed.

The appellate court first stated that in a grand theft case, the State must prove the value of the stolen property is greater than $300 pursuant to Florida Statute § 812.014(2)(c)1. (The threshold value for grand theft has since been raised to $750.) “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” Id. at § 812.012(10)(a)1. Further, citing to its prior decision in Carter v. State, the court observed “[t]he value of tangible personal property may be proved with evidence of the original purchase price, together with the percentage or amount of depreciation since the property’s purchase, its manner of use, and its condition and quality.” Critically, the court further noted under Carter the State’s evidence is insufficient where it “elicit[s] no testimony regarding the condition and quality of any of the items taken or their depreciation.” Continue reading

Recent Developments in Internet Child Sex Sting Operations

Published on: November 26, 2020 | by Roelke Law, P.A.

An internet child sex sting operation in Hillsborough County recently concluded with the arrest of sixteen men in August. Among those arrested in “Operation Small Talk” were a registered sex offender, a member of the U.S. Army Reserve and former Manatee County Sheriff’s Office sergeant. Six of the men attempted to meet the fake teen in person. Some of the men even had adult items with them such as condoms and sex toys in anticipation of having sex with the child. Those arrested in Operation Small Talk are facing felony convictions, sex offender probation, registration as a sex offender and up to 15 years in prison if found guilty.

Then, again in October twenty-two men in the Tampa area were arrested in “Operation Social Bust” while attempting to arrange sex with detectives posing as teenage girls and boys using fake social media accounts. Most of the suspects were charged with a combination of using computer services or devices to solicit certain illegal acts, transmission of harmful material to a minor and unlawful use of a two-way communication device. One suspect offered money to a detective he thought was a 15-year-old child. He then arrived at what he believed to be the child’s home with cash and condoms in his pocket. Because he arranged to pay for sex, he also faces a human trafficking charge.

During these types of operations, law enforcement officers typically pose online as young teens seeking sex with older adult males. Sometimes the officers pretend to be the parent of a child looking for sex. And, the undercover decoys usually also pretend to be the child themselves in some communications. Continue reading

Qualifying Probation Violators Can Now Avoid Prison

Published on: November 8, 2020 | by Roelke Law, P.A.

Have you violated your felony probation? If you have, a recent change in the law may help you avoid a lengthy prison sentence resulting from your violation.

Until recently, section 948.06(2)(a), Florida Statutes (2015), provided if you admitted to a charged violation of probation, the court could “forthwith revoke, modify, or continue” your probation. If the court revoked your probation, then it could issue any sentence which it might have originally imposed before placing you on probation. Therefore, if your underlying offense was a third-degree felony, you faced up to five years in prison for your violation. If your underlying offense was a second-degree felony, at the time of sentencing you faced up to a statutory maximum sentence of fifteen years in prison. And, if your underlying offense was a first-degree felony you faced up to thirty years in prison for your violation of probation.

The good news is substantial amendments to section 948.06 took effect on October 1, 2019. See Ch. 2019-167, § 63, Laws of Florida. The new law added subparagraph (f)1. to section 948.06(2). That section provides:

Except as provided in subparagraph 3. or upon waiver by the probationer, the court shall modify or continue a probationary term upon finding a probationer in violation when any of the following applies:

The term of supervision is probation.
The probationer does not qualify as a violent felony offender of special concern, as defined in paragraph (8)(b).
The violation is a low-risk technical violation, as defined in paragraph (9)(b).
The court has not previously found the probationer in violation of his or her probation pursuant to a filed violation of probation affidavit during the current term of supervision. A probationer who has successfully completed sanctions through the alternative sanctioning program is eligible for mandatory modification or continuation of his or her probation.

How to Get Your Marijuana DUI Charges Reduced or Dropped

Published on: October 18, 2020 | by Roelke Law, P.A.

Have you been arrested for driving under the influence (DUI) of marijuana? If so, depending on the facts of your particular case, it may be possible to have your charges reduced or even outright dropped. This is because the State’s burden of proving you were actually impaired by marijuana, as opposed to having merely used it, is far more complicated than showing you were impaired from the use of alcohol in the typical DUI case.

Florida legalized the use of marijuana for certain medical purposes in 2016. However, while the state has legalized marijuana for medical use, it continues to be illegal for recreational use. And, regardless of whether you have a medical prescription for marijuana or you use marijuana for recreational purposes, you can be charged with DUI of marijuana if you have any amount of cannabis in your system. Further, when it comes to DUIs, Florida law doesn’t use terms like ‘driving drunk” or “driving high.” Instead, Florida makes it illegal for you to drive under the influence of a substance to the extent your “normal faculties” are impaired whether that substance is alcohol, marijuana, prescription drugs or a combination of these substances.

The critical difference between an alcohol DUI case and a marijuana DUI case is that THC, the chemical responsible for producing the marijuana “high”, can remain in your system for a long time after it is no longer psychoactive and therefore not having any effect on you. For example, if you smoke marijuana, the “high” generally peaks after about 10 minutes and lasts only from about 1 to 3 hours. Nonetheless, even though you are no longer “high”, you can have a positive THC test several hours, days or even weeks after you used marijuana. And that positive test will used by the State in an attempt to prove you were DUI of marijuana even though its effects had long worn off. Continue reading

Collateral Crimes Evidence in Lewd or Lascivious Molestation Cases

Published on: October 4, 2020 | by Roelke Law, P.A.

The Florida First District Court of Appeal recently discussed the admissibility of similar act evidence in crimes involving child molestation in Newman v. State of Florida. In Newman, Appellant was charged with lewd or lascivious molestation of his eight-year-old adopted daughter. At trial, the State presented evidence that when the victim was eight years old and they lived in Arkansas, Appellant took her and one of her brothers on a trip to Florida. They stayed in a hotel, sharing a room with two beds. The victim testified during their first night, Appellant get into his bed naked while she slept in the other bed and her brother slept on the floor. On the second night, Appellant went to bed naked again. This time, he told the victim to get into his bed and let her brother sleep in the other bed.

The victim fell asleep in Appellant’s bed, wearing a nightgown. She was later awakened by him rubbing her vagina over her underwear with his hands and repeatedly saying the word “sexy.” On the third night, Appellant again went to bed naked, directed the victim to sleep with him, and then rubbed her vagina and forced her to touch his penis while saying “sexy.” Appellant was subsequently arrested for lewd or lascivious molestation.

Prior to trial, the State filed a notice it intended to introduce similar fact evidence of other crimes, wrongs, or acts Appellant had committed against the victim’s sister, another one of his adopted children. At the Williams rule hearing, the victim’s sister testified when she was around twelve Appellant woke her up during the night while everyone was sleeping and showed her how to use a “purple thing that would vibrate.” In the process, he touched and penetrated her vagina with his fingers because she “wasn’t doing it right.” He did those things for several nights and then never again. During the incidents, her siblings were nearby sleeping. Continue reading

How to Get Your Concealed Firearm Case Dropped

Published on: September 11, 2020 | by Roelke Law, P.A.

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

Failure to Answer Your Door Is Not Always Grounds to Violate Your Community Control

Published on: August 23, 2020 | by Roelke Law, P.A.

Were you found in violation of your community control for not answering your door when your probation officer came by to conduct a curfew check? If so, you may be able to avoid revocation of your community control and a resultant prison sentence.

In Edwards v. State, Mr. Edwards was on community control with numerous conditions. One of those conditions required him to be at his residence every day between 10:00 p.m. and 6:00 a.m. Edwards’ probation officer, Christine Ashcraft, performed two curfew checks on Edwards. The first was on April 7 at 5:00 a.m. Before approaching Edwards’s house, Officer Ashcraft called the phone number in Edwards’s file, which was his sister’s cell phone. No one answered, and Officer Ashcraft left a voicemail.

Ashcraft then approached the house and noticed the door was slightly open. She knocked and called into the house. No one responded. Ashcraft heard the television on inside, but didn’t see anyone inside. After a few minutes, Officer Ashcraft again called the number in the file. This time, Edwards’s sister answered. Officer Ashcraft told Edwards’s sister she was at the house to conduct a curfew check on Edwards. The sister informed Ashcraft she was not at the house. After speaking with Edwards’s sister, Officer Ashcraft waited another few minutes to see if anyone would come to the door. No one did. After spending a total of approximately ten minutes at the house, Ashcraft left. Continue reading