Pinellas County Florida Criminal Lawyer Blog

Is spanking a child enough reason for a judge to grant a domestic violence injunction?

NO.

In order to legally get a domestic violence injunction, it must be proven by the Petitioner, or on behalf of the Petitioner in the case of a child, that there is an immediate threat of harm or fear.
Florida law says that spanking is a reasonable form of punishment when it does not harm the child. In fact, spanking is a defense to a criminal charge of child abuse or a charge of child abuse under Florida Statute 39 which is the Dependency statute.

In this particular case, a divorced father spanked his 14 year old daughter one time for being disrespectful. The daughter testified that she was being sarcastic. While my personal opinion is generally against spanking, when every other form of discipline, such as taking things away, grounding, and time outs don't work, spanking may be appropriate in some instances. G.C. v. R.S. and K.C., 1st DCA, 9/16/11

A parent or legal guardian of a child can file for a domestic violence injunction on behalf of the child, even if they themselves are not a victim. If your child is the victim of abuse, or someone is saying that you are an abuser - call us. Domestic Violence injunctions, although civil in nature, have the ability to cause criminal charges and take away various liberties such as one's ability to own or purchase guns.

I thought I should write about how the Department of Juvenile Justice has changed the way juvenile crimes are prosecuted in the past year.

Last year an appellate case came out, basically transferring the power to sentence juveniles from the Court and judges, to the Department of Juvenile Justice.

Here's how it used to work:  When a child was accused of a crime, he was arrested and the judges had the discretion to hold the child in a juvenile facility pending court, or to release the child. 

Now, when a child is arrested, DJJ makes a reccomendation, based upon their procedural guidleines -  DJJ now has the power to decided who gets released and who stays. 

Additionally, when a child is convicted of a crime - DJJ now has the power to say what the sentence should be, not the judge and not the prosecutor. 

When a child is arrested, the parent and child meet with a probation officer from DJJ, BEFORE ANY CHARGES ARE FILED, for an assessment. If a parent appears to have control over his or her child, the child's grades and school behavior are good - DJJ will often reccomend a non-judicial sanction. 

However, if a parent tells the probation officer that their child is out of control, DJJ's reccomendation is often significantly more harsh. 

If your child has been arrested - call me.  your initial consultation is free. 

I handle alot of juvenile cases.  Almost every time a parent calls me about their child who has been arrested they say that the crime will be erased from their records when they turn 18.  The parents have been told this by the police when the child is arrested, by the teachers in a school, and by other parents.  This is not true - never has been - never will be.  And the worst part is, that if the kid has a prior record and is over 14 years old, the State has the discretion to file the charges in adult court.  Which means the kid can go to PRISON.  And if there's a gun involved in the crime, the kid almost always does. 

Last week in Dade City, a 15 year old boy was sentenced to 4 years in prison for the 2008 burglary of a convenience store and shooting a Pasco County deputy. His name is Robert Green.  I was in court several weeks ago when he was also there, and his mother was sitting in the courtroom.  She was clearly worried and distraught and her voice shook when she spoke. Green was charged as an adult and was looking at 15 years in prison.  After trial, he was acquitted of the attempted murder charge but not of the burglary. 

When the boy was sentenced, there were other juveniles sititng in the courtroom awaiting their fates on various criminal charges. If you sit in the courtroom, you might be surprised at how uninterested these other kids are in the proceedings. Most of the time they don't appear to be listening.  Perhaps the judges realize this too. 

Circuit Judge Pat Siracusa, after sentencing Mr. Green to four years in prison, asked him to talk to another kid in the back of the courtroom who seemed to be following a similar path.  This did two very important things:  It woke up the other kids in the courtroom who were definitely paying attention when a boy their own age was allowed to talk - and it gave Green a voice, showing the judge respected him enough to give him a voice, even when he was seemingly unworthy of it. 

It seems the public is starting to realize what all criminal defense attorney's already know -police reports are often not accurate.   

Last week, an off duty 6 foot sheriif's deputy, Mark Eastty,  handcuffed a 9 year old boy for fighting on the playground. (St. Petersburg Times, Feb. 12, 2010)  There are numerous witnesses who say the cop was over zealous in his actions.  One witness read the police report and said it was entirely untrue. The cop writes that the boy was going to hit another boy again, the witness says that's not true. The cop neglects to mention that he called the kid stupid - several witnesses hear this.

Anyone reading this blog is probably not surprised by this.  What interests me, is that the general public would be surprised that a police officer, when facing scrutiny from his superiors or the press, would embellish his police report to make himself look better.

Having practiced juvenile law for the majority of my career, I have seen many 8 and 9 year kids get arrested and taken to juvenile detention.  Which is almost just like the adult jail, except there's school.  Worse yet, when they kids are taken before the judge, they are shackled by their hands and feet and chain together around the waist.  Adults aren't.  There's been some talk in the legislature that the chaining of juveniles in court in inhumane.  Are they just now realizing this?

According to his parents, the child, is now scared to death of police.  It's an unfortunate lesson to learn at such a young age. 

There's an 11 year old girl being held in the Pinellas County Juvenile Detention Center on charges of arson and attempted murder.  Apparently, she and her 15 year old boyfriend, poured gasoline around mom's bed while she slept and tried to light mom on fire.  Luckily mom escaped.

She's now being represented by a private attorney who says her mother does not want to prosecute.  If this was your child what  would you do?  11 years old is still like a baby to most mothers.  Perhaps the problem in the mother - daughter relationship was that mom didn't approve of the 15 year old boyfriend.  I hope that's what the problem is.  St. Pete Times article

This case is strikingly similar the the Valessa Robinson case from Tampa in 1998. A 15 year old girl at the time, she and her boyfriend killed her mother and dumped the body.  She's currently serving a 25 year sentence, her boyfriend on death row.  See Tampa Bay Online

So what do the courts do with a kid like this?  Even if mom has a change of heart and decides she doesn't want to prosecute, I am almost sure the state will prosecute the child without the help of mom.  And despite the popular notion that juvenile records are expunged when a person turns 18, that's not the case.  So this little girl will have an arson and attempted murder charge on her record forever.  Crazy huh? 

What about her age?  The law says that anyone under 8 years old is not mature enough to understand the consequences of their actions.  Clearly anyone under 14 can't understand the court system. - Most adults don't understand it.   Mr. Walker, the Assistant State Attorney in charge of Pinellas Juvenile Division, indicated she may be charged as an adult.  Mr. Walker rarely gets the law wrong.  But in this case, he did (Sorry Joe) - unless the child is 14 and/or has previously been convicted of a violent crime, they can't' be tried as an adult.  (A disclaimer here: Mr. Walker may have been misquoted by the St. Petersburg Times, it wouldn't be the first time the paper misquoted) 

Is the girl mentally ill?  Perhaps.  If her lawyer decided to take that route, she will have a "competency exam" which will be a review by a psychologist to decide if she can understand the court process and/or the consequences of her actions. 

Where's the boyfriend?  The 15 year old will be prosecuted as an adult.  And once the charges are filed, he'll be moved from the juvenile detention center to the Pinellas County Jail, and held in the juvenile section there.  Not a nice place.  I hope his parents can afford a lawyer.

Although I don't pretend to be an expert on the First Amendment (freedom of speech) or the 14th Ammendment (equal protection) of the United States Constitution I do see a real problem with juvenile curfews. In Pasco County, juveniles are not to be out of their homes, without a parent or guradian, "between the hours of 11 p.m. and 5 a.m. Sundays through Thursdays and between midnight and 6 a.m. on Fridays and Saturdays." See Pasco County Ordinances

Hillsborough and Pinellas Counties had similar laws several years ago which were struck down as uncontitutional. Whether you think this is a good or bad law is your opinion. But from my lawyerly perspective - juvenile curfews are not good. It merely allows the police one more reason to stop and harrass kids. The police already have enough reasons - or at least they say they do in their police reports. And kids don't know the law - most adults don't know the law. So if a police officer stops them for a curfew violation, then wants to search them, they can. Note, that this is without warning them of their rights and without their parents present. I may not be an expert on equal protection or freedom of speech, but I do know a bit about the 4th Amendment - illegal search and seizures - and it seems to me, a juvenile curfew allows this.

I recently handled a Florida case where a 16 year old kid committed some vehicle burglaries.  This is a relatively common crime where kids go into unlocked cars and steal change and whatever else they think might be worth something. But a few days later, I got an outraged call from his mother because his full name - first, last, and middle, AND his home address and date of birth were in the newspaper.  When I Googled it, sure enough, his name, address and all identifying information were in several newspapers. 

My understanding of the law was that juvenile names, especially alleged defendants in crimes, were confidential.  Apparently, not anymore.  As of July 2008, any child charged (not convicted) of a felony offense is not exempt from public record.   In fact, I went to the Hernando County Florida Sheriff's Office website and found a PRESS RELEASE with this kid's name in it.  Apparently, the Hernando County Sheriff's Office finds it good press to solve silly crimes. (They recently arrested a 14 year old boy for having CONSENSUAL sex with a 12 year old girl)

So I looked up the NEW LAW and found, indeed, it was legal to publish the names of juvenile defendants (Florida Statute 985.04).  However, the Clerk's Office, nor the State Attorney's Office will provide you with any information on juvenile cases. 

In a previous blog entry I wrote about the fact that juvenile arrests are not confidential.  Recently, in Pasco County, Florida, two teenagers were arrested for attempted murder, sexual assault and burglary.   The victim is 89 years old.  A horrendous crime by all accounts.  But to prove my point, watch this video from Fox News which shows the 14 and 15 year old suspects in court.

 
It is interesting to watch the suspects reactions on the news clip.  Clearly, they don't have a clue as to how much trouble they are potentially in, or what is going on.  It would be interesting to know whether or not they have ever been in a courtroom, have a prior record, or understand their rights.  Most adults don't understand the legal process, much less children. 

What will happen to these teenage boys if they are convicted?

First, they were charged as adults, not as juveniles, so they can be sentenced as adults to regular state prison in the Florida Department of Corrections. 

Second, the crimes they are charged with carry life prison terms.  So potentially they could be sentenced to a life sentence in adult prison.  But they also might be sentenced back to juvenile court to receive their sentence there and go into a commitment program with the Florida Department Juvenile Justice.  Or, they might receive a lesser adult sentence.  Or they may never be convicted at all if the cops didn't do their job correctly.  Stay tuned.