Statutes of limitations are deadlines for filing a lawsuit.   In criminal cases, a prosecutor cannot charge someone with a crime committed more than a certain period of time in the past. In a recent case, the 2d District Court of Appeal addressed the statute of limitations for prosecuting a crime of leaving the scene of a car accident that results in death or injury.   The defendant, Mr. Escalante, sought a writ of prohibition to prevent the trial court from moving forward with his prosecution. He argued that the statute of limitations, or time period for bringing the charges, had expired.

In this case, the limited record before the court included allegations that in September 2005, Mr. Escalante struck a parked car. That struck car was parked in front of a parked truck, and at the time of the accident, a man had been standing between the two parked vehicles. He was fatally injured, and allegedly Mr. Escalante fled the scene. Months later, the sheriff obtained a warrant for Mr. Escalante’s arrest, charging him with leaving the scene of a crash involving death or injury.

ROW OF CARS

More than six years later, Mr. Escalante was arrested and charged with leaving the scene of a crash involving death as a first-degree felony, later amended to a second-degree felony. Mr. Escalante filed a motion to dismiss and an amended motion to dismiss, arguing that the statute of limitations for the second-degree felony had expired, and that even if the State could establish it was entitled to the three-year tolling period, the statute of limitations would still have expired.

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A recent 2d District Court of Appeal case recently addressed whether items found during a non-criminal search can result in a criminal prosecution.  Public policy promotes the ability of law enforcement to place dangerous or seemingly dangerous individuals into protective custody. But in the course of doing so, the courts must address what happens to items discovered during inventory searches of their persons.

In this case, Mr. White appealed his judgment and sentence for possession of ammunition by a convicted felon. Procedurally, the trial court had denied his motion to suppress, and he then entered a plea. He was sentenced to four years’ imprisonment, followed by six years’ probation.

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On appeal, Mr. White argues that the contraband discovered during a civil detainment should not be used to prove a criminal charge.  In this case, a citizen called the police, concerned about a man (Mr. White) lying in the road. A deputy responded to the call and located Mr. White, lying with part of his body on the road, and his backpack next to him. Mr. White did not initially respond to the officer and was unable to get up. He appeared confused and smelled of alcohol.

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Search and seizure cases are specific to the circumstances, meaning that small details can determine an outcome.  In a recent case before the 2d Court of Appeal, the court ruled that the trial court should have granted the defendant’s motion to suppress, based on the facts at hand.  Procedurally, the defendant, Mr. Robinson, appealed a withhold of adjudication and a three-year probation term for the offense of manufacturing marijuana, a violation of Florida law. A withold of adjudication means that the court does not convict the defendant. Instead, the defendant consents to a term of probation. Upon completion of probation, the court cannot sentence the defendant for the offense. Here, the court imposed Mr. Robinson’s withhold of adjudication after a plea, following the denial of his motion to suppress.

Mr. Robinson’s motion to suppress was based on the circumstances surrounding the detectives’ entry of his property without a warrant, or Mr. Robinson’s permission.  He lived on a semirural homestead, surrounded by a chain-link fence, which was enclosed by a gate with a “no trespassing – violator will be prosecuted” sign and a “beware of dog sign.”  Additionally, Mr. Robinson’s mailbox was accessible from outside the fence, so the mailman did not need to enter the property.

Chain link fence against a deep blue sky

The appellate court held that the detectives could not enter the property without a warrant or permission.  Furthermore, the detectives could not enter the property to conduct a knock and talk.  Nor could the detectives pursue a consensual encounter with Mr. Robinson without first obtaining his permission to enter the property.  In reaching this conclusion, the court relied on the specifics of this case. The private nature of the house included the fence, the signage, and the accessibility of a mailbox outside the fence.

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The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution and the Double Jeopardy Clause in article 1, section 9 of the Florida Constitution prohibit a person to be subjected to multiple prosecutions, convictions, and punishments for the same offense. In a recent 2d District Court of Appeal decision, the court held that a defendant who pled guilty to possessing a controlled substance and was placed in jeopardy cannot then be tried for the offense.

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In this case, Mr. Hutto was issued a Pasco County ordinance citation for possession of illicit synthetic drugs, specifically synthetic marijuana. Mr. Hutto paid the citation, and in doing so he pled guilty or no contest. Then, an information was filed by the State of Florida, charging Mr. Hutto with possession of a controlled substance. This information was based on the exact same substance, the marijuana, he had already pled guilty to possessing. Mr. Hutto alleged a double jeopardy violation and moved to dismiss the information. His motion was denied, and he challenged the circuit judge’s jurisdiction based on the Double Jeopardy Clauses of the U.S. and Florida Constitutions.

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After a conviction of a crime, the trial court sentences the defendant. In Florida, felony convictions are determined through the use of a “scoresheet,” a document completed by the State Attorney. While the scoresheet is significant, a criminal sentence depends on many factors, and the trial judge may depart from the guidelines at their discretion.  However, certain considerations, including a defendant’s failure to show remorse during trial, are constitutionally impermissible during sentencing because they violate due process. In a recent case before the 2d District Court of Appeal, the court held that a fundamental error and a denial of due process occurred during sentencing when the trial court expressly considered the defendant’s failure to show remorse.mconnors

In this case, the defendant, Mr. Williams, appealed his judgments and sentences for sexual battery with a deadly weapon and robbery with a weapon, a lesser-included offense of robbery with a firearm. His criminal punishment scoresheet indicated a minimum prison sentence of 14 years and a maximum sentence of life. Mr. Williams requested the minimum allowable prison sentence.

Rejecting Mr. Williams’ request for the minimum allowable prison sentence, the trial court commented on the overwhelming evidence against him and his implausible defense. The trial court stated, “[T] hen you stand before this court and say in the face of the evidence which is overwhelming that you’re not guilty, you have absolutely no remorse whatsoever. [] And that is more of an impact on this court’s reasoning for the sentence that I’m about to impose than any other reason.” Mr. Williams was sentenced to life in prison on the sexual battery charge, followed by 30 years in prison for the robbery.

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Evidence of a crime must be obtained lawfully, without violating the rights of the accused. In a recent 2d District Court of Appeal case, a search and seizure was held lawful when two officers handcuffed a suspect and detained him until a citizen informant arrived to identify him. The detention was reasonable, according to the court, and the evidence obtained during and after the search and seizure admissible.

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In this case, two police officers responded to a BOLO – “be on the lookout” – report issued from details provided by an informant who phoned 911 and described a crime in progress. Someone was breaking into a work truck, carrying a white bucket, and driving a newer-model white vehicle. The officers located a parked vehicle matching the description in the BOLO and saw a man crouching behind it, in a driveway. They drew their weapons and repeatedly warned him to rise and show his hands. The man stood, and the officers immediately noted that he matched the described perpetrator in the BOLO. They handcuffed him, read him his Miranda rights, and questioned him as they waited for the eyewitness informant to arrive. The informant finally arrived and identified this man as the person he had seen breaking into a vehicle.  Additionally, the officers saw, through the open windows of the suspect’s car, a white bucket and several tools in the backseat. The suspect was arrested and charged with burglary of an unoccupied vehicle, a third-degree felony.

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A conviction for a crime involving property damage often includes a restitution order, an amount that must be paid to the victim. In a recent 2d District Court of Appeal restitution case, a victim’s testimony as to costs was inadmissible hearsay because it was not based on her personal knowledge. While hearsay may be used at a restitution hearing to establish the value of damaged items, in this case there had been an objection to the evidence, and so it could not be used to show the amount of loss.

Michael Allen pled guilty to grand theft of a motor vehicle, and he was placed on probation. As a condition of his probation, he was ordered to give restitution. A restitution hearing was held to determine how much Allen owed.

During the restitution hearing, the victim testified that her Coach-brand purse and wallet were inside the stolen vehicle.  She also testified that in the process of committing the crime, her vehicle had been damaged.

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In our practice we hear from clients all the time that the police did not read them their rights, meaning Miranda rights, when they are arrested.  Contrary to every television show and most people’s belief – the police don’t have to read you your rights in all arrests.  The police only read you your rights when:

  1. You are in custody – that means physically not free to leave, handcuffed, in an interrogation room, in the back of a police cruiser, etc.

AND – AND – AND – AND (not to be confused with OR)

2.  They ask you questions.

Therefore, if you are merely being arrested and no one asks you anything – Miranda rights do not apply.  OR If you are not in custody and you volunteer information, or they ask you questions; Miranda rights do not apply.

 

So in sum – there must be two events present – CUSTODY and INTERROGATION.

 

So what happens if you remain silent through any police questioning whatever the circumstances – GOOD FOR YOU.  That’s what you should do.

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If you are stopped by the police on the street, at your house, in your car – you must give the police your name and identification if you have it – BUT THAT’S IT.  You are not required to do anything else.

In a recent first degree murder case out of Palm Beach County, Florida; a woman was on trial for shooting her husband.  When the police arrived at the house, she was sitting in her son’s car and made no response to the officer’s questions of whether she needed anything or would like a bottle of water.  She was not yet under arrest (or in CUSTODY) nor were those questions likely to be confused with an interrogation.  During her trial, she choose not to testify – yet the prosecutor said on several occasions, including closing argument, that because she said nothing, this concluded she was guilty since an innocent person would have protested their innocence.  Ultimately she was convicted of murder and sentenced to life and currently resides in the Lowell Correctional Facility.

She appealed her conviction, arguing that the prosecutor could not comment on her PRE ARREST silence, since she never testified at trial.  If she had, and had said something contrary to her pre or even post arrest statements, this could be used against her to “impeach” her trial testimony.  But she didn’t testify and therefore any comment on her silence could not be used against her.  (Some courts including the US Supreme Court have distinguished this from POST arrest testimony and the prosecutors ability to comment which is a blog for another day – )

The Fourth DCA overturned her conviction and said that the prosecutors comments on Mrs. Horwitz’s silence were improper and have remanded the case for a new trial.  Note that just because there is error in a trial the appeallate courts do not have to grant a new trial – only when the error is “harmful” meaning that the error was so severe that it potentially caused the jurors to be swayed by the error.  In some cases, not this one, but some, the evidence is SO OVERWHELMING that regardless of the error, the courts do not grant a new trial.  But in Mrs. Horwitz’s case, she’s getting a new trial – if she’s convicted again of murder, she’ll probably get the same sentence – Life.  She has nothing to lose, so she might as well go for it again.  Good luck Mrs. Horwitz!

window tintLet’s say you just bought a used car.  You never had the windows tinted, the car came like that.  Or let’s say you recently had the windows tinted by a reputable tint dealer.  Then in the middle of the day, you’re driving and get pulled over for what you think is no reason.  Somehow – either you give consent, or the officer just does it, they search your car and find illegal things in it.

Can the police pull you over if they “think” your windows are too dark?  According to the 4th DCA and many other appellate courts – yes.   This blog discussed the recent 4th DCA case called State v. Cooley.  Cooley was pulled over at 11:52 AM because the officer couldn’t see through the driver’s side window and suspected the tint was illegally too dark.  Florida Traffic Court rules require a tint no less than 28%.  After the stop, the officer pulls out a tint meter and sure enough, it only registers 11%.

 

As we all know, police must have “probable cause” to make a traffic stop.  That means that you have violated some traffic law.  In the case of window tint, the officer doesn’t know for sure that you’ve violated the law – because he needs to use a tint meter to know for sure – but he or she can stop you if he has a reasonable suspicion that the window tint is too dark, and later, after you’re stopped, can check it with a tint meter.  To me this seems like an arbitrary and illegal decision based on a “hunch” of the officer.  But the courts have said it’s not.  Quoting specifically from a US Supreme Court case called Texas v. Brown from 1983:

“the probable cause standard does not demand any showing that such belief be correct or more likely true than false. A “practical, nontechnical” probability . . . is all that is required. . . . Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”

State v. Neumann, 567 So. 2d 950, 952 (Fla. 4th DCA 1990) (citations omitted) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).

So I guess I’m the “scholar” analyzing a “liberty analysis”, and not “versed in the field of law enforcement.”   It would be interesting to see how courts define those who are “versed in the field of law enforcement.”  Does it require 6 months experience?  Eight years, like the officer in this case, or even less?

It appears that the fact the changed the appellate court’s decision was the actual use of a tint meter.  Once the officer “thought” the tint was too dark (below the threshold limit of 28% visibility) he then confirmed his “suspicion” with an actual machine to prove it.  In another similar case, there was no testimony of a tint meter to confirm the officer’s suspicion and in that case the suppression of evidence was upheld.

In my 15 year experience practicing law, I have rarely seen anyone in a normal vanilla family car be stopped for any suspicion of window tint.  I would argue that all stops for window tint by the police are pretexutal stops – meaning the officer is looking for any reason to pull the car over because the car, or the driver, or the neighborhood, looks “fishy”.  “Fishy” doesn’t equal probable cause, and if you’ve been stopped for a window tint violation – call us.  Consults are always free.

One of the most common juvenile crimes that I see are juvenile car burglaries.  These frequently happen in neighborhoods where kids may be walking around at night and trying to open up unlocked cars looking for loose change or cigarettes.  Kids call this crime CAR HOPPING. Usually these types of crimes are harmless and the kids who do this certainly don’t think it is a big deal. The cars are unlocked so there is no damage and they rarely take factory installed items like stereos or speakers.  But sometimes, the innocent search of change in an unlocked car might reveal a computer, Ipad, cell phone, GPS, or worse yet – a gun. This is when the owners of the property will report the theft, otherwise, they probably would not notice some missing change.  Although you and I might not think this is the crime of the year, car burglaries – legally called Burglary of an unoccupied conveyance – is a third degree felony – punishable by up to 5 years in PRISON if the child is charged as an adult.  Parents frequently say to me – “But he only took less than a dollar in change!”  I know, however it doesn’t matter the amount or what was taken, the point is that the child went into someone else’s property, without permission, and committed a theft.  (Burglary is legally defined as entering and committing any crime, not just theft)   And if the child enters the car, and someone is stupid enough to leave their personal gun in the car, and he takes that gun, the third degree felony becomes an armed burglary, which is punishable by LIFE.  car burglary

So unless something of value is taken from the car, many car burglaries go unreported.  And even when the car burglary is reported, it is often difficult for the police to catch anyone.  So how do the police catch the kids?  Fingerprints.  Usually, or I would hope, when a victim calls the police on a car burglary, someone should come take a report, and usually some forensic person will come take prints of the inside and outside of the car. (This is what usually happens in the cases I have handled, although I have talked to plenty of victims who say that neither a police officer or a forensic examiner ever came to the home to take a report) But if there are fingerprints that can be retrieved, and they don’t match the homeowner or any occupant sof the car, AND if the thief’s fingerprints are on file – then usually the police can make an arrest.

But here’s the interesting part – just because the police matched the fingerprints to someone, and that person did not have permission to be in the car, and there are things missing from the car – FINGERPRINTS alone are not enough to get a conviction on a burglary charge.  Why not?  Because unless there is some way to prove that those prints were put there at the time the theft occurred (or obviously unless there aren’t’ any witness, co-defendant snitching, or other evidence) there is REASONABLE DOUBT as to when those prints got on or in the car.

In a recent Second DCA case out of Tampa, FL, a juvenile was arrested and ultimately went to trial on a burglary in a car.  The only direct evidence the State presented at trial were the juvenile’s fingerprints found on a newspaper inside of the car.  There was no evidence of when or where or how that newspaper got into the car, and thus no way to prove that the prints on the newspaper were put there while the paper was in the car.  Obviously the prints could have been on the newspaper before it was in the car.  Maybe the kid was the newspaper delivery boy, or he otherwise touched the paper at another time.  So because there was no way of proving when the fingerprints were put on the newspaper, the appellate court said there was not enough evidence to convict the child of burglary.

I talk to many parents about crimes like these and one of the worst things you, as a parent, can do when your child is being, or about to be, questioned by the police, is agree to it, let the police into his or her room to search it, and tell your child to “just tell the truth”.  I am NOT advocating lying.  I am merely telling you, as a parent, that although you are 100% certain there is nothing illegal in the child’s room, or that he or she definitely wouldn’t commit a crime like this – on the rare chance that you are wrong, the consequences are irreversible .  Trust me.  So, even if you are right, and I hope that you are, don’t let the police into his bedroom to search.  There may be something else in there!  Call me.  I routinely answer questions for parents about their rights and the rights of their children  – for free.  And if you find yourself in a position where you didn’t follow the above advice, call me.