Florida Criminal Lawyer Blog

In many criminal cases, it is appropriate for the Broward criminal defense attorney to file a motion to suppress evidence obtained by a law enforcement agency during its investigation of an alleged crime. The motion is a written request to the judge presiding over the case, which asks him or her to exclude certain evidence from consideration. If a defendant’s rights were violated, for example, it is inappropriate to consider the evidence obtained as a result.

Motions to suppress are based on the exclusionary rule, a legal rule that primarily exists only in the United States. This doctrine states that the evidence against the defendant should be excluded from consideration at a criminal trial if the police or other law enforcement agents did not legally obtain the evidence or statements. The law has become tougher on this issue over time, but the general rule is that “fruit of the poisonous tree” may not be used against a criminal defendant. That means that information or evidence that would not have been obtained but for a violation of the defendant’s rights cannot be used, because it is tainted -- or “poisoned” -- as a result of the violation.

Either the Fourth Amendment or the Fifth Amendment to the Constitution of the United States could be the basis for a motion to suppress. The Fourth Amendment is related to a citizen’s protection from illegal searches, which can include a person’s body, a vehicle, or even a home. The search does not have to be just a physical search of the vehicle’s contents, but could even be a motion to suppress the findings of an illegal traffic stop. For example, if a police officer pulls over a car without a valid reason and as a result finds evidence of criminal activity, his attorney can move to suppress the findings. If the court grants the motion to suppress, the driver’s identity or observations made by the officer could be suppressed. The evidence might be suppressed if the arresting officer found marijuana or other illegal drugs, whereas the identity of the car’s driver could be suppressed if he were driving with a suspended license.

A Fifth Amendment-based motion to suppress has to do with statements a defendant made prior to being read his or her Miranda rights. For instance, if someone is taken into custody and questioned about involvement in an alleged crime, but the interrogating police officer does not “Mirandize” the defendant, the statements may not be admissible in court. The context is important, however. Certain kinds of statements are still admissible, even if the Miranda rights were not read. Fort Lauderdale criminal attorney William Moore consults with clients to decide if motions to suppress are useful depending on the facts of individual cases.

Florida criminal attorneys are often asked about the jury system in criminal cases. After trying many cases to verdict, the issue of inconsistent verdicts in criminal cases arises on occasion when talking to clients charged criminally in Broward County.

Broward County criminal lawyers will tell you that Florida law generally permits a jury to render inconsistent verdicts based on the rationale that jury verdicts can be the result of lenity and do not always speak to the guilt or innocence of a criminal defendant. However, if a verdict is found to be a true inconsistency because an acquittal on one count negates an element necessary for conviction on another count, the inconsistency is impermissible.

In Mantilla v. State, the Third District Court of Appeals considered the issue of inconsistent jury verdicts. In April 2006, Defendant Mantilla was arrested after law enforcement responded to a home invasion call at Mantilla’s rented home. Law enforcement discovered marijuana growing in the garage. Mantilla claimed he had no access to the garage arguing that the garage was occupied by another individual and claimed to have no access to that portion of the premises. However, a search executed later pursuant to a valid search warrant, yielded a key to the garage and thus invalidated Defendant’s argument. Defendant was charged with the following three counts:

Count I: trafficking cannabis in an amount greater than 25 pounds but less than 2000
pounds
Count II: possession with the intent to sell cannabis
Count III: simple possession of more than 20 grams of cannabis

The jury was given the standard jury instructions on possession with intent to sell and possession. The jury found the defendant not guilty as to Count I and guilty as to Count III. The Defendant appealed stating that the jury verdicts were truly inconsistent with one another. Instructions for Count I included the following language which asked the jury to determine if the Defendant had possessed either of the following: cannabis in excess of 25 pounds, more than 20 grams but less than 25 pounds, or an amount less than 20 grams. The jury verdict on Count I found the defendant not guilty to all of the aforementioned valuations.

However, in Count III, the jury found the Defendant guilty of possession of cannabis in an amount greater than 20 grams. Count III was a lesser included offense and because of the acquittal on Count I, Defendant could not be found guilty as to Count III. Clearly the jury could not find the Defendant not guilty as to possession of cannabis in excess of 20 grams in Count I and guilty of possession of cannabis in the same amount in Count III.

The appellate court reversed Defendant’s conviction and sentence. The court’s reasoning was premised on the notion that verdicts rendered in criminal cases are required to be certain and devoid of ambiguity. Where there is a critical deficiency in the jury verdict, the court cannot try to surmise the jury’s interpretation of the applicable statute(s).

It would have been proper for the lower court to direct the jury to reconsider the verdict. The Florida Rules of Criminal Procedure mandate that when a verdict is so defective that the court cannot determine whether the jury intended to acquit or convict the Defendant or if the court cannot determine what count or counts the jury intended to acquit or convict the Defendant of, the court must direct the jurors to reconsider the verdict. The court shall not accept jury verdict until it clearly and unambiguously decided. If the jury persists in rendering a defective verdict, the court must declare a mistrial.

If you want to talk to a qualified Broward County criminal lawyer about any area of criminal defense practice, do not hesitate to reach out to us directly.

A criminal defendant is entitled to a speedy trial. If a criminal defendant is charged with a misdemeanor, a trial must normally commence within 90 days of arrest or custody. If a criminal defendant is charged with a felony, a trial must normally commence with 175 days of arrest or custody. If a felony and misdemeanor are consolidated for disposition in circuit court, the misdemeanor is given the felony time period. If a mistrial is declared, a new trial must commence within 90 days of the mistrial order.
The amount of days may be extended by the need for pretrial proceedings and in exceptional circumstances. The Florida Rules of Criminal Procedure define exceptional circumstances as those that, as a matter of substantial justice to the accused, the state, or both, require an order of extension.
Fort Lauderdale criminal attorneys should note that exceptional circumstances include the following:

(1) an unexpected illness or incapacity, or an unforeseeable and unavoidable absence of a person whose presence or testimony is necessary for trial.
(2) a showing by the state that the case is so unusual and/or complex, either because of the number of defendants or the nature of the prosecution ,that it is unreasonable to expect adequate investigation or preparation within the time periods as set by the rules of criminal procedure.
(3) a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time;
(4) a showing by the accused or the state that the reason for delay rests upon unanticipated developments that will affect trial;
(5) a showing that a delay is necessary to accommodate a co-defendant, when there is reason not to sever the cases;
(6) a showing by the state that the defendant has caused the delay or disruption of the proceedings.

Criminal defense lawyers are quick to argue that exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays.

A criminal defendant, by and through his or her Broward County criminal attorney is permitted to file a demand for trial within 60 days after formal charges are filed. By filing such a demand, Defendant asserts that they are available and will be ready for trial within five days.

Broward County criminal attorney is asked “is the crime of stalking a felony in Florida?”

As a Broward County criminal defense attorney, I am often asked about Broward County criminal charges stemming from stalking. Rest assured that these charges are not to be taken lightly as they can result in severe criminal sanctions.

Conduct which constitutes a misdemeanor stalking offense is aggravated to a felony when, at the time of the conduct, an injunction for protection against repeat or domestic violence or some other court-imposed prohibition of conduct by the defendant is in existence. To convict a defendant of aggravated stalking based on the violation of a domestic violence injunction, the State must prove that the defendant had knowledge of the injunction. Knowledge by an accused that an injunction is in effect an essential element of the felony offense of aggravated stalking after the entry of a domestic violence injunction. Thus, it was not shown that an aggravated stalking defendant was served with a permanent injunction, as required for conviction, despite the claim that a notation on the permanent injunction of "1-20-98" should have been interpreted as meaning that the defendant was given a copy of the injunction in open court on January 20, 1998; the notation appeared on the permanent injunction that was entered five days before the date indicated by the notation; the notation was written next to a line which stated "forwarded to sheriff for service," and nothing in the record established that the defendant was served with the permanent injunction.

Broward County criminal lawyers caution that it has been held that actual notice of the injunction for protection against repeat or domestic violence is not an essential element that must be proved by the State beyond a reasonable doubt; the State must prove only that an injunction or some other restriction for protection was in place when the accused repeatedly followed or harassed the victim. In fact, the failure to serve the defendant with the permanent injunction for protection against repeat violence did not invalidate his conviction for aggravated stalking, where the State presented competent substantial evidence that the defendant engaged in stalking activity at a time when a permanent injunction was in place after the defendant had been served with a temporary injunction, notified of the date and time of the hearing for extending the injunction, and, by the language contained in the temporary injunction, made aware that he would be bound by the issuance of a permanent injunction and any other matters determined at the hearing.

Remember, it cannot be emphasized enough that you should always have a Broward County criminal defense attorney appear on your behalf should you be accused of such an offense.

Fort Lauderdale criminal attorney William Moore is available to explain the various options that are available for youthful offenders in Florida.

The Florida Youthful Offender Act is intended to improve the chances of correction and successful return to the community of youthful offenders sentenced to imprisonment by providing them with enhanced vocational, educational, counseling, or public service opportunities and by preventing their association with older and more experienced criminals during the terms of their confinement. It is the further purpose of the Act to encourage citizen volunteers from the community to contribute time, skills, and maturity toward helping youthful offenders successfully reintegrate into the community and to require youthful offenders to participate in substance abuse and other types of counseling and programs at each youthful offender institution. The legislature also intended to provide an additional sentencing alternative to be used in the discretion of the court when dealing with offenders who have demonstrated that they can no longer be handled safely as juveniles and who require more substantial limitations upon their liberty to ensure the protection of society.

Definition: The Act defines a "youthful offender" as any person who is sentenced as such by the court, or who is classified as such by the Department of Corrections (DOC).
The Youthful Offender Act is a separate statutory scheme for treatment of those young defendants to whom the Act applies, regardless of the nature of their crimes. The Act is intended to provide a sentencing alternative that is less harsh than the adult system, albeit more stringent than the juvenile system, for the benefit of offenders whose youth and other characteristics make it likely that such special treatment might halt at the beginning what could otherwise be a lifetime of continuing crime and related problems.
Nothing in the Act restricts the participation of youthful offenders in a mutual participation program. Such programs are intended by the legislature to involve the DOC in program planning with the offender while the offender is incarcerated, leading to the establishment of certain criteria affecting the grant of parole and release from parole, and to involve the offender in developing her or his individual rehabilitation program for the period of incarceration and parole. Offenders meeting eligibility criteria may be offered the opportunity to participate in the program, which will include a parole date. However, no offender is eligible to participate in such a program who was sentenced as an habitual felony offender or who was convicted of a capital or life felony.