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.

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.

(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.

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.

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.

Broward County criminal attorney William Moore has defended many individuals charged with cocaine trafficking over the last decade in South Florida. The mandatory prison sentences for cocaine trafficking convictions are so severe that a criminal charge of this nature is enough to turn ones life upside-down.

In 2008, federal agents seized nearly 9,371 kilograms of cocaine in Florida. This number is, of course, in addition to seizures by state and local law enforcement. The Drug Enforcement Agency (DEA) notes that Florida is a popular area for international drug trafficking for several reasons. The first is that Florida has over 8,000 miles of coastline which allows drug traffickers to utilize the waters and cargo ports for smuggling. In addition, Florida has several international airports which allow transit through drug couriers and cargo facilities. Furthermore, Florida’s diverse population of persons from Central and South America contribute to cocaine transactions which initiate in Florida and allow for distribution throughout the United States. The DEA notes that transporting narcotics is becoming more popular through ground transportation methods such as by passenger vehicle, bus, and rail

As notorious as drug trafficking has become, it is important to understand the applicable Florida statute. Broward County criminal attorneys emphasize that in order to convict a criminal defendant of Trafficking in Cocaine, the State must prove the following four elements beyond a reasonable doubt:

1. Defendant knowingly either sold, purchased, manufactured, delivered, brought into Florida, or possessed a certain substance
2. That was cocaine
3. That was 28 grams or more
4. Defendant knew that the substance was cocaine or a mixture containing cocaine.

The Broward County criminal defense attorneys of William Moore, P.A. are always available to provide more information on the requirements needed for the State Attorney’s Office to succeed in a conviction for a charge of cocaine trafficking.

Cocaine Trafficking Case Law Review

In State v. Dominguez, 509 So.2d 917 (1987), the Florida Supreme Court recognized that knowledge of the substance (element four referenced above) was a key component that the state must prove beyond a reasonable doubt before an individual can be found guilty of trafficking in cocaine. In this case, Defendant Dominguez was arrested for his alleged role in assisting another man, Joe Brooks, in selling nearly 56 grams of cocaine to an undercover narcotics officer. At trial, Defendant testified that he did not know the substance was cocaine and that he had no knowledge that Brooks was trafficking drugs. Defendant stated that he accompanied Brooks to see a movie, however, Brooks insisted on driving around the parking lot when they arrived at the theatre. Brooks finally saw a man in another car, parked in the lot. Brooks exited his vehicle and cued Defendant to bring a package to the undercover officer’s car. Defendant did in-fact hand the package to the undercover officer. Defendant was then charged trafficking cocaine. Defendant appealed on the basis of the jury instructions given. Defense counsel had asked the court to instruct the jury that the State must prove beyond a reasonable doubt that the defendant knew the substance was cocaine. However, the trial court denied the request. The Florida Supreme Court agreed with Defendant and as a result modified the Florida Jury Instructions recognizing that the Defendant must have known that the substance being trafficked was cocaine or a mixture of cocaine because the mens rea, or mental state, is essential element of all trafficking offenses.

The Broward County criminal defense attorneys of William Moore, P.A. are available to discuss your case now. We never charge for an initial consultation. Call our lawyers today.

Article contributed by attorney Denise Grass.

One of the many available defenses to a criminal defendant is the insanity defense which is recognized in Florida Statute 775.027 . The trier of fact must consider whether the defendant was insane at the time that the crime allegedly occurred. A person is considered to be insane when it is proven that the individual suffered from a mental infirmity, disease, or defect which resulted in the fact that the individual did not know what they were doing or its consequences or that although the individual knew what they were doing and its consequences, they did not know it was wrong. A defendant who knew that that their behavior violated society standards or was against the law cannot be found insane. Unrestrained passion is not insanity, even though the normal judgment is impaired by passion or temper.

Fort Lauderdale Criminal Attorney on the Burden of Proof and Procedural Implications

All persons are presumed to be sane. The defendant has the burden of proving the defense of insanity by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter in issue. If the trier of fact finds that the defendant was insane at the time the crime was committed, then the defendant must be found not guilty by reason of insanity. The court will then conduct further proceedings to see if the defendant should be committed to a mental hospital, given outpatient treatment, or released.

Broward County criminal attorneys often explain that in determining the issue of insanity, the trier of fact must consider the testimony of expert and non-expert witnesses. If the evidence establishes that the defendant had been adjudged insane by a court of law and had not been judicially restored to legal sanity, then the trier of fact should assume the defendant was insane at the time of commission of the alleged crime. This is true unless contrary to the weight of the evidence.

The defendant or their Fort Lauderdale defense counsel must give timely notice of the intent to raise the insanity defense. The state will then order the defendant to be examined by the state’s mental health expert(s) to assess the defendant’s sanity at the time the alleged offense was committed. State attorneys and defendant both retain the right to be present at said examination.

If a criminal defendant is found not guilty by reason of insanity, the Department of Children and Family Services must admit the defendant to an appropriate facility. Within six months from the date of admission, the facility administrator must file a report with the court which addresses the issue of further commitment of defendant. A copy of this report must be served upon all interested parties. Or, if during the course of the initial six month commitment, the facility administrator believes that defendant not longer meets the criteria for commitment, a report attesting to that fact must be given to the court and all interested parties must be notified of that belief.

After receiving a report from the facility administrator, the court has thirty days to hold a hearing at which the defendant has the right to be present. If the court finds that the individual meets the criteria for continued commitment or treatment, the court will order further commitment or treatment for a period to exceed one year. This process will continue on a yearly basis until it is found that the defendant has been restored to sanity. Before any hearing to assess defendant, the court may, on its own motion or by request of either party, appoint two or three experts to examine the defendant as it pertains to the criteria for continued commitment or placement of the defendant.

The Fort Lauderdale criminal attorneys at William Moore, P.A. are available to answer your questions.

Eyewitness identification is among the most widely used form of evidence in criminal prosecutions. However, this form of evidence is frequently subject to human error and which may result in misidentification. DNA evidence is only available in very few cases, so law enforcement and prosecutors often rely upon eyewitness identification in order to charge and convict.

There are several reasons why improper identifications are made. These reasons include cues from the line-up administrator, suggestive composition of line-ups, and the witness feeling compelled to make an identification. Psychological research supports the notion that the human memory is not like a video recorder. Each new piece of information helps to construct and transform the memory, which can be manipulated and transformed even by the most subtle cues and interactions with well-intentioned law enforcement officials.

Fort Lauderdale criminal lawyers emphasize that there are many empirical studies that have conducted which reveal the infallibility of the human memory and the high risk for error in eyewitness identification. Just one example, was shown in the 1974 experiment conducted by psychology professor Robert Buckhout. He broadcasted a 13 second video clip of a woman getting mugged which revealed the perpetrator run face forward toward the camera. Following the clip, viewers were shown a lineup of six men who resembled the attacker and a phone number to call in and identify the perpetrator. Professor Buckhout and his students handled the calls and the results revealed that only 14% of viewers made a correct positive identification which is about the same statistic that would have occurred if callers simply guessed. This finding corroborated the evidence from decades of similar research on eyewitness identification.

The National Institute of Justice and the American Bar Association advocate that certain procedural safeguards be implemented to help prevent misidentification in the criminal justice system. Those procedural safeguards include:
• Double Blind Presentation: An administrator who does not know the identification of the suspect should present the photo array or conduct the line-up process as to not exert any influence of the witness or victim
• Line-Up Composition: The suspect should be placed in a line-up with other persons who resemble the eyewitness’ description of the perpetrator, known as fillers, so that the suspect does not stand out and result in an unnecessarily suggestive composition
• Witness Instructions: The person viewing the lineup should be told that the perpetrator may not be in the line-up but informed that the investigation will continue regardless of whether an identification is made.
• Confidence Statements: At the time an identification is made, an eyewitness should provide a written statement in his or her own words indicating the fact that an identification is made and which indicates the level of confidence made in his or her decision.
• Recordation – Identification procedures should be videotaped to ensure that the witness is identified freely and voluntarily without undue influence from law enforcement.
• Sequential Presentation – Presentment of line-up members one by one by a blind administrator as opposed to in a side-by-side order

Legal professionals and psychology experts agree that widespread reforms must be enacted to prevent such errors. When innocent person are wrongfully identified, persons are wrongfully incarcerated, the victims are denied justice, and public safety is compromised as the real perpetrators remain at large.

For more information pertaining to the errors of witness identification please see the publication entitled “Re-Evaluating Line-Ups: Why Witnesses Make Mistakes and How to Reduce the Chance of Misidentification” published by the Innocence Project of Cardozo Law School.

Wrongful Convictions Cases Later Overturned Through DNA Testing
Which Involved Eyewitness Misidentification in Florida

1. Orlando Boquete – Convicted in 1983 and exonerated in 2007.
2. Larry Bostic – Convicted in 1989 and exonerated in 2007
3. Alan Crotzer – Convicted in 1981 and exonerated in 2006
4. Davis Cody – Convicted in 2006 and exonerated in 2007
5. Wilton Dedge – Convicted in 1982 and exonerated in 2004
6. Luis Diaz – Convicted in 1980 and exonerated in 2005
7. William Dillion – Convicted in 1981 and exonerated in 2008
8. Free Lee Smith – Convicted in 1986 and exonerated in 2000
NAME STATE CONVICTIO
Right to Counsel During Line-Ups
The right to counsel does not apply to photo identifications or at pre-charge investigative line-ups. At post-charge line-ups, a criminal defendant has the right to counsel. A defendant should invoke their right to counsel at a post-charge line-up to ensure that the line-up is fair and not suggestive.

If you have questions about any criminal case originating in Broward County Florida, contact Fort Lauderdale criminal attorney William Moore.

Article contributed by attorney Denise Grass

In Florida, the death penalty may only be imposed under statutory guidelines that give the judge or jury reasonable discretion and guidance in their decision making. The statutory guidelines must be specific and allow the trier of fact to consider all mitigating factors.

The death penalty cannot be imposed on all defendants. If the death penalty sentence is party based on aggravating factors of a defendant’s prior convictions which are reversed, the death penalty cannot be imposed.

The death penalty may also not be imposed if the death penalty is disproportionate to the offense. For example, if a defendant is found guilty of raping an adult woman, the death penalty cannot be imposed because it is disproportionate to the offense. It is also unconstitutional to impose the death penalty for felony murder, unless the defendant’s participation was major.

It is unconstitutional to execute an inmate who is insane at the time of the execution. This prohibition applies even thought the inmate was sane at the time the capital offense was committed. The Governor of Florida must stay the execution and appoint a commission of three psychiatrists to examine the death row inmate. The role of the psychiatrists is to determine whether or not the death row inmate understands the nature and effect of the death penalty and why it has been imposed. The inmate is entitled to retained or appointed counsel at the examination. If the commission finds that the inmate does in-fact understand the nature of the death penalty and why it has been imposed, the Governor must schedule a new execution date. If, on the other hand, the commission finds the inmate is incapable of understanding, the Governor must have the death row inmate committed to a Department of Corrections mental health treatment facility until the facility administrator determines that he or she has been restored to sanity.

In addition, the death penalty cannot be imposed for offenders who are younger than age 16 at the time the offense was committed.

Florida law also prohibits the execution of any female inmate who appears to be pregnant at the time of execution. If the Governor is informed that a female death row inmate may be pregnant, the Governor must stay the execution and appoint a qualified physician to conduct an examination. Within ten days from the date of examination, if it is determined that the female inmate is not pregnant, the Governor has ten days to set a new date for the death sentence.

Article contributed by attorney Denise Grass

BLEKLEY COICOU, Petitioner/Cross-Respondent, vs. STATE OF FLORIDA, Respondent/Cross-Petitioner.
(QUINCE, C.J.) This case is before the Court for review of the decision of the Third District Court of Appeal in Coicou v. State, 867 So. 2d 409 (Fla. 3d DCA 2003). In its decision the district court certified a question to this Court to be of great public importance. We have revised the question as follows:
MAY AN APPELLATE COURT DIRECT THE ENTRY OF A CONVICTION FOR ATTEMPTED SECOND-DEGREE MURDER WHERE THE JURY'S VERDICT DOES NOT REFLECT A FINDING THAT THE DEFENDANT ACTED WITH A DEPRAVED MIND?
Coicou v. State, No. 3D03-271 (Fla. 3d DCA Mar. 10, 2004) (on motion to certify question of great public importance). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we answer the certified question in the negative. Because the jury did not determine that the defendant acted with a depraved mind, a required element of attempted second-degree murder, we quash the decision under review and remand the case for proceedings consistent with this opinion.

If you have been arrested in Fort Lauderdale, contact the criminal defense attorneys of William Moore, P.A. We will be happy to discuss the effect that an individual's right to remain silent has on any particular case.

The failure to file monthly reports is a sufficient basis to revoke probation or community control. Indeed, the failure to file even a single monthly report may, in certain circumstances, justify revocation if such failure is willful and substantial and supported by the greater weight of the evidence. The reason is that supervision reports are not merely technical niceties and the failure to report is a serious violation of the privilege of supervision. Criminal lawyers advise that the Florida Supreme Court has rejected “any per se rule that the failure to file a single report may never justify revocation.” The Court reasoned that “Probation reports are not merely technical niceties and the failure to report is a serious violation of the privilege of probation. . . . Failure to enforce the reporting requirements undermines the system and the practical consequence is no control, no supervision, and no probation.” A sufficient basis for revocation on this ground is not established, for example, where the probationer or community controlee files two late reports to his or her probation or community control officer, one of which is five days late and the other one day late and both of which are accepted.

If you have been arrested and seek the advice of a criminal defense attorney, contact any of the numbers listed above. For Palm Beach County, contact attorney Andrew Alitowski.
For information on DUI and related offenses, please review Broward DUI.

There is a mandatory three-day waiting period, excluding weekends and legal holidays, between the purchase and the delivery at retail of any handgun. It is a felony of the third degree, punishable as provided by statute (1) for any retailer, or any employee or agent of a retailer, to deliver a handgun before the expiration of the three-day waiting period and (2) for a purchaser to obtain delivery of a handgun by fraud, false pretense, or false representation.

Caution: The three-day waiting period does not apply (1) when a handgun is being purchased by a holder of a concealed weapons permit and (2) to a trade-in of another handgun.

Florida personal injury attorneys argue that an action for three-fold damages may be brought by a person who has been injured due to certain specified prohibited conduct involving a pattern of "criminal activity," which is defined to include a crime chargeable by indictment or information under the statutory provisions relating to weapons and firearms.
He or she is also entitled to minimum damages in the amount of $200, and reasonable attorney's fees and court costs in the trial and appellate courts, but not punitive damages.

If you have been arrested in Fort Lauderdale, contact our criminal lawyers today.