As Florida juvenile defense attorneys, we have seen an increasing number of criminal cases wherein the contents of one’s smartphone have become exceedingly relevant. It’s not just teens who have become reliant on smartphones of course. The Pew Research Center reports 95 percent of Americans own a cellphone of some kind and 77 percent have a smartphone, up from 35 percent in 2011 when researchers conducted the first survey of smartphone ownership. Juvenile criminal defense attorneys in Fort Lauderdale know that because these devices contain a wealth of personal data on each owner, it has raised all sorts of complex legal questions about privacy and evidence collection in the course of a criminal investigation and prosecution.Fort Lauderdale juvenile defense

One question now poised for review by the Florida Supreme Court is whether a defendant’s smartphone passcode – unique to each person and the only way by which content on that device can be accessed – can be compelled by police or prosecutors. Two Florida appellate courts are split on the issue.

However, the tide may turn in favor of personal privacy protection, given the ruling by the 11th U.S. Circuit Court of Appeals (the federal appellate court that covers Florida), which ruled forced decryption of a smartphone amounted to violation of a defendant’s constitutional Fifth Amendment right against self-incrimination. Continue reading

Witness testimony is perhaps one of the most powerful – and fallible – types of evidence presented in a Florida criminal trial. One of the most important jobs of a Fort Lauderdale criminal defense attorney is not just to examine the potential weakness in that testimony, but also the competency of each witness. Fort Lauderdale criminal defense attorney

As established in the 1928 Florida Supreme Court case of Crockett v. Cassels, a witness must be competent in order to testify in a trial, meaning he or she must be both capable and qualified. That means, as noted in the 1990 case of Rivet v. State and as outlined in in F.S. 90.603, that one is has both sufficient intellectual capacity to understand the nature and obligation of the oath and the ability to perceive, remember and communicate accurate sensory perceptions to the court. This ability is presumed unless proven otherwise by competent evidence. Witnesses may be disqualified if they are unable to:

  • Communicate to the jury;
  • Understand the duty to tell the truth;
  • Perceive and remember events.

A person’s immaturity (being a child) and mental illness or mental disability won’t necessarily disqualify a witness, but as a Fort Lauderdale criminal defense attorney can explain, courts are required to carefully consider one’s threshold in intellectual ability when weighing whether to allow them to testify. Continue reading

If you are arrested on possession of any type of grand theft, the state needs to show at least some evidence you knew the property was stolen, or else evidence you are unable to “satisfactorily explain” why you are in possession of property recently stolen. F.S. 812.022 states there is an inference that one in possession of recently-stolen property knew or should have known that property was stolen “unless satisfactorily explained.” Part of the job of a Fort Lauderdale defense lawyer in a grand theft case will be to show that if you are in possession of recently-stolen property, you did have a satisfactory explanation for it.Fort Lauderdale defense lawyer

The inference is one that is rebuttable, and it’s important your Fort Lauderdale defense lawyer do so because grand theft, as outlined in F.S. 812.014, is a felony charge. Theft of a motor vehicle, assuming it wasn’t damaged, is a third-degree felony, punishable by up to five years in prison. Numerous variables can result in heightened penalties for Florida auto theft, but it’s a serious offense for anyone – including a juvenile.

Fort Lauderdale Defense Lawyer Challenges Inference of Guilt in Possession of Stolen Property Conviction

This issue arose on appeal a few years ago in a juvenile criminal case a few years ago before Florida’s 3rd District Court of Appeal. In C.T. v. State of Florida, an adjudicatory hearing was held in late 2016 on the question of whether defendant juvenile knew or should have known the car hew was driving when he was pulled over by police was stolen. Continue reading

Plea bargains, as Fort Lauderdale criminal defense attorneys can explain, have rapidly become the standard resolution in most criminal cases, both at the state and federal level. The U.S. Supreme Court estimates more than 9 in 10 federal and state criminal cases are resolved by plea bargain. This rise has resulted in the previously uncommon practice of defendants appealing convictions for charges on which they already pleaded guilty. So now many prosecutors insist defendants sign appeal waivers as part of the deal. criminal defense lawyer

The Supreme Court of the United States (SCOTUS) is now reviewing a case that stems from this very issue. The outcome in Garza v. Idaho could well impact how criminal plea bargains are resolved both in federal court and within Florida state courts. It’s one most criminal defense attorneys, prosecutors and judges are watching carefully.

The defendant alleges that his trial lawyer’s counsel was inefficient because when he refused to file an appeal as defendant requested, citing the waiver. The court is being asked whether the defendant needs to prove prejudice in order to establish his lawyer’s counsel was not effective. Back in 2000, the SCOTUS ruled in Roe v. Flores-Ortega that prejudice by an attorney can be presumed if a lawyer doesn’t file an appeal at the behest of a defendant. However, given that the case is almost 20-years-old and didn’t involve an appellate waiver, new questions have bubbled to the surface about whether this standard still fits.  Continue reading

Fort Lauderdale criminal defense lawyers know that while the appearance of a defendant shouldn’t matter in a criminal trial, it inevitably does. In fact, it’s relatively standard good practice for criminal defense attorneys to initiate some alteration of one’s looks in preparation for trial. Usually, that’s something as simple as a haircut, a beard trim, wearing glasses, a collared shirt with a tie. We may even instruct them on how to sit at the defense table, where to look and advice on their general demeanor. We do this because the reality is judges and jurors are human, and they formulate quick judgments of a person that can be difficult to set aside, particularly when damaging evidence is presented. It’s tougher to “picture” a clean-cut, sharply-dressed defendant carrying out certain criminal acts than it is for one who is heavily bearded and bedraggled. criminal defense lawyer

While most appearance changes are subtle, it’s not unheard of for them to be dramatic. Recently, VOX detailed the altered appearance of a New York defendant, identified as a member of a far-right group (labeled a hate group by the Southern Poverty Law Center), who stands accused of participation in a violent assault on leftist protesters. Specifically, he’s accused of body slamming, repeated punching and stomping on a protester. His charges include assault, attempted gang assault, criminal possession of a weapon and rioting.

At his first court appearance, the accused showed up with long hair, a scraggly beard, an orange t-shirt and overalls. Less than a week later, at a second court appearance, he was almost shockingly unrecognizable. His hair was neatly trimmed and slicked back, his beard shaved. He wore a pressed black suit and tie that covered his heavily-tattooed arms and black-rimmed glasses. Although the transformation is startling, it’s one potential jurors won’t ever see. They’ll only ever know him in his new look.  Continue reading

In a split 4-3 decision, the Florida Supreme Court soundly rejected the Daubert standard of evidence for expert witness testimony – the one used in federal courts and adopted by many state courts, in favor of the less stringent Frye standard, the older method that prior to 2013 had been the standard in the Sunshine State.Fort Lauderdale criminal defense lawyer

What does this mean for Fort Lauderdale criminal defendants? It will be relevant both for them as well as for plaintiffs in civil cases. The Daubert standard establishes a rule of evidence (found in Federal Rules of Evidence 702) that pertains to the admissibility of an expert witness’s testimony, stemming from the 1993 U.S. Supreme Court ruling in Daubert v. Merrell Dow Pharmaceuticals. It holds that a witness can only be qualified as an expert if he or she has the knowledge, skill, experience, training or education that is considered a baseline to form that opinion. Testimony must meet a specific list of criteria, and the judge acts as the gatekeeper. Those whose opinions fail to meet that proof burden can be excluded.

Frye, meanwhile, is less stringent, considered a general acceptance test for scientific evidence requiring that one’s expert opinion, if based on a scientific technique, can only be admitted where that technique is “generally accepted as reliable in the relevant scientific community.” Continue reading

There are many scenarios wherein panicked people “toss the drugs” – when they are being chased by police, when law enforcement is at their door, when they fear they are about to be searched. What we are obliged to inform you as criminal defense attorneys is that if you make any attempt to tamper with evidence under Florida law (which is essentially what “tossing the drugs” is in these scenarios), you would be facing a third-degree felony charge (up to five years in prison) for this alone, per F.S. 918.13.drug possession defense Florida

It really is often a bad idea, and you’ll likely never hear an ethical Broward criminal defense attorney give you the green light to “toss the drugs,” – whether for yourself or a loved one.

However, the outcome of a 1999 case of Stanton v. State, wherein a conviction for cocaine possession was overturned, is worth a mention in this context.  Continue reading

In a single recent year, Florida law enforcement agencies received 105,700 reports of domestic violence. More than half of those, 63,200, resulted in an arrest. It’s known to be a relatively under-reported crime, but there are a fair number of cases that go to trial wherein the alleged victim refuses to cooperate or testify. It is a myth that prosecutors cannot move forward on these cases or that they cannot sometimes win them. It often depends on the independent evidence available – and the strategy employed by your Florida domestic violence defense attorney. domestic violence defense lawyer Florida

Let’s consider the case of Baker v. State, an appeal before Florida’s Second District Court of Appeal back in 2007. Defendant had been convicted of felony battery for accusations that he attacked his girlfriend, who had called 911 to report the defendant had bitten her and took her phone “and stuff.” She said she did not require medical attention. A police officer was dispatched, observing and photographing what appeared to be a small bite mark on victim’s arm.

Would this be enough to secure a conviction?  Continue reading

If you regularly tune into the evening news or pick up a daily paper, you could be forgiven for thinking the most common offenses encountered by Broward law enforcement are things like shootouts, sexual assaults and gang crimes. Reality check: One of the most common (if not THE most common) is an offense known as “Driving With a Suspended License.” In Florida, if you are caught driving with a license that is suspended or revoked, it could be considered a serious criminal charge, accompanied by long-term negative consequences for one’s driving privileges and criminal record. But what you also may not know is that prosecutors bear the burden of proof in these cases, and if they cannot prove you knew or should have known your license was suspended, it becomes a relatively minor traffic offense.driving while license suspended

The statute to which we refer – F.S. 322.34 – details the penalty for driving with a suspended license, which requires knowledge of the suspension, revocation or cancellation. It can result in a jail sentence of up to two months, plus a $500 fine. A second offense is considered a first-degree misdemeanor, which carries a maximum penalty of 1 year in jail. A third or subsequent offense is considered a third-degree felony, punishable by up to five years in prison (yes – state prison), and a fine of up to $5,000. If that third offense is committed within a five-year period of the other two, you will be considered a habitual traffic offender, which further results in a driver’s license revocation that lasts 5 years. You might be eligible to obtain a hardship license – but only after one full year elapses from your most recent conviction.

If you’re on probation, you could be in serious trouble for driving with a suspended license. Consider the case of Stringfield v. State, weighed by Florida’s 5th District Court of Appeal in August. Defendant was sentenced to 15 years in prison after the court revoked his probation upon finding he broke the law when he drove his motor vehicle while his license was suspended. This may seem like a stunning miscarriage of justice, but it was perfectly legal – except that defendant successfully appealed on the issue of “knowledge.”  Continue reading

It’s been nearly 1.5 years since the City of Miami signed off on an agreement to allow police to issue civil citations for minor misdemeanors like marijuana possession rather than making arrests. Now, The Miami New Times reports the city police chief will be allowing his officers to actually do so.marijuana arrest defense

This delay in implementing the policy has meant that thousands of people – 2,800 – facing minor charges were arrested – and face a permanent criminal record – rather than simply receiving civil citation. Approximately 85 percent of those were for marijuana possession. One of the charges in question – illegally possessing a milk crate – was filed almost exclusively against the homeless.

City Commissioner Ken Russell has been pushing for the city to issue civil citations for some time now, and was reportedly surprised to find the police had yet to put the policy into practice, saying, “I assumed that it had been enacted.” He was anticipating a report on how the first year of it had gone. The former police chief retired earlier this year, and the new police chief said he could not account for why the program was not put into effect previously. He did say that once he took over, it took several months to train police officers on how the new procedures would work. Plus, the department also had to set up an account with the county so those civil citations could be paid, order the paperwork books on which citations would be issued, write the policy and create a radio signal for the violation. Continue reading

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