Florida Criminal Lawyers Blog

All of the elements of simple possession of a controlled substance are contained in the offense of possession with intent to sell such a substance, so that under double jeopardy principles, a defendant cannot be convicted for possessing and for possessing with intent to sell or deliver the same quantity of a controlled substance. Thus, the defendant's four convictions for possession and trafficking by possession of a single quantum of cocaine constituted a double-jeopardy violation.
Those principles also bar separate convictions for the following separately charged possession offenses involving the same quantum of controlled substance during a single transaction or episode:
• multiple, simple possession convictions arising from separate packages or portions of the substance
• multiple, simple possession convictions arising from different forms of the substance
Observation:
One court has held in dicta that a defendant found to be in possession of cocaine inside a baggy can be convicted of both the crime of possession of the drug and of the separate offense of possession of drug paraphernalia.
Possession is a lesser-included offense of purchasing a controlled substance within 1,000 feet of a school if it arises from the same criminal episode and in such a case, the defendant may not be convicted of both offenses. Where, however, the defendant purchases the substance, drives off with it, and still has it in his possession when stopped by the police later, the purchase and the possession are separate offenses for which separate convictions may be imposed.
A defendant's conviction for obtaining possession of a controlled substance by fraud as well as for possession of a controlled substance is not barred by double jeopardy since each offense, as defined by statute, contains an element that the other does not.
Because the sale of a controlled substance can occur without its possession by the defendant, possession is neither an essential element of a sale nor a lesser-included offense of it, so that a defendant can be convicted and sentenced both for simple possession (or possession with intent to sell) and for the sale of the same quantum of a controlled substance. For purposes of the double-jeopardy rule precluding separate convictions and sentences for a particular crime and for a lesser offense necessarily included in it, the attempted sale of a controlled substance is a lesser-included offense of the crime of selling such a substance. The crime of delivering a controlled substance includes the offense of attempted delivery, and the delivery of cannabis without consideration, a misdemeanor of the first degree, is a lesser-included offense of delivery of a controlled substance. The attempted manufacturing of a controlled substance is a lesser-included offense of manufacturing the substance.
For purposes of double-jeopardy analysis, the underlying crime in both trafficking in a controlled substance and simple possession of it is the possession of an illegal drug. Thus, separate convictions and punishments are prohibited for simple possession of methamphetamine and trafficking in methamphetamine for the same quantity of drugs. Likewise, one cannot be convicted of trafficking by possession and possession of the same type of drugs where the drugs in question were found in different locations (i.e., in the defendant's apartment and on his person) during one arrest. However, a defendant's separate convictions for both the possession of cocaine and trafficking in cocaine by possession were held not to violate double jeopardy, where the convictions were not predicated on possession of the same cocaine but were based on the police discovery of two separate hidden caches.
While, at least for purposes of entitlement to an instruction on lesser-included offenses, the sale, delivery, or possession of a controlled substance are not necessarily included in a trafficking offense, as long as the evidence supports it, simple possession of cocaine is a permissive, lesser-included offense of trafficking in cocaine by sale, manufacture, delivery, or possession. An instruction on a permissive, lesser-included offense must be given when the pleadings and evidence demonstrate that the lesser offense is included in the charged offense.

The Fort Lauderdale criminal lawyers of William Moore, P.A. were recently asked about criminal liability for injuries resulting from dangerous animals. Recent laws prohibiting certain breeds of pets in South Florida Counties such as Broward has been publicized widely and leaving the public with an unclear picture as to what their rights and responsibilities are.
In addition to the imposition of civil liability incurred as a result of owning a dog that inflicts injury upon another, a dog owner can also be found guilty of various criminal offenses for the violent acts caused by their dog. In Freeman v. State of Florida, the Fifth District Court of Appeal examined the issue of imposing a manslaughter charge against a dog owner. In 2003, Defendant’s six pit bulls attacked his neighbor, Alice Broom. Defendant returned home from work to find Alice Broom lying on the ground unconscious and severely injured. The Defendant called for an ambulance, however, the victim was pronounced dead at the hospital.
Defendant’s six pit-bulls resided with him in his trailer. On numerous occasions before the event in question, Defendant’s six dogs had shown dangerous propensities. Seven witnesses in the Freeman case testified about the dangerous propensities of the Defendant’s dogs and provided testimony in different instances where the dogs had attacked either passer-bys or in one instance, another dog. The officers who responded to Defendant’s trailer on the date Alice Broom was attacked reported that the trailer had a defunct front door. Defendant asserted that the he customarily pulled the door shut and tied it with electrical cord as a means of closure. Officers found that door gave out easily under pressure. Defendant was charged with manslaughter and convicted by the jury. Defendant appealed his case on two separate legal theories, one of which was not properly preserved for appeal. The only valid legal theory properly preserved was that he should have been charged under the Dangerous Dog Act, Florida Statute 767.13. The Fifth District Court of Appeal rejected this argument and affirmed the manslaughter conviction.
Broward County criminal attorneys explain that general provision of Florida law states that where two statutes conflict, the court shall apply the more specific statute over the general statute. Defendant argues that the Dangerous Dog Act was an attempt by the Florida legislature to preempt the area of criminal liability for dog owners. Specifically, the applicable portion of the Dangerous Dog Act reads that if a dog that has not been declared dangerous attacks and causes severe injury or death to another human and if the owner of the dog had prior knowledge of the dog’s dangerous propensities, yet demonstrated a reckless disregard for such propensities, the dog owner is guilty of a second-degree misdemeanor.
The appellate court noted that in order for the rules that determine statutory construction to apply, there must be a hopeless inconsistency between the two statutes. The court found that the Dangerous Dog Statute could be read harmoniously with the Florida manslaughter statute. The Florida manslaughter statute, Section 782.07(1) reads that manslaughter is defined as the killing of a human being by culpable negligence of another is manslaughter, a second-degree felony. Culpable negligence was defined to the jury as stated in the Florida Standard Jury Instructions as a course of conduct showing reckless disregard of human life.
Both offenses use the terms reckless disregard, however, the court noted that there is no ambiguity because the Dangerous Dog Statute refers to a reckless disregard for the dangerous propensities of a dog, whereas the manslaughter statute speaks to culpable negligence which is a reckless disregard for human life. This notable difference is that manslaughter requires a higher standard of recklessness which negates the argument of preemption. The court further observed that Chapter 767 is located under Title 45 dealing with torts, rather than under Title 46, dealing with crimes. The legislative order indicates an intent to punish different levels of conduct. Thus, the State could chose to charge Defendant with a violation of either statute. The court concluded the evidence was overwhelming to support a charge and conviction of manslaughter.

As Fort Lauderdale criminal attorneys, we are often asked about individuals who have been charged criminally in Broward County despite being mentally handicapped.

A person must possess the mental capacity to commit the particular crime of which the individual is charged before being held criminally responsible for his or her actions. A person may not be held criminally liable if, due to a mental disease, he or she is incapable of determining the wrongfulness of the actions.

Likewise, in Florida any person charged criminally who is unable to understand the nature of the proceedings and is incapable of assisting counsel in his or her defense is not competent to stand trial. If it is discovered during the course of a trial that the defendant is incompetent, the proceedings must cease.
For more information about Broward County criminal prosecution as it pertains to an accused competence, please visit Fort Lauderdale criminal lawyer.

Sentencing Guidelines and Deviations

As Broward County criminal attorneys, we are often asked to explain criminal sentencing guidelines. In Florida, the state legislature sets forth the sentencing scheme for criminal offenses in an effort to reduce the subjective component in sentencing. The judge, however, may exercise some discretion when implementing a sentence. A judge is expected to impose a sentence within the permissible range, however, may deviate from the range if the judge justifies the reasons in writing the rationale of the aggravation or mitigation.

Your criminal defense lawyer should immediately request a worksheet, prepared by either the state attorney’s office or the Department of Corrections, is used to compute the total sentence points. The worksheet must be presented to defense counsel who then has the opportunity to inspect the worksheet for accuracy. In preparing the worksheet, the preparer must take the following factors into consideration which impact the total numeric valuation:
- primary offense
- additional offense(s)
- physical injury to the victim (emotional injury may be used in support of a deviation in the sentencing guidelines)
- prior record (includes Florida, federal, out-of-state convictions, military and foreign convictions made as a result of a finding of a guilt or plea agreement)
- legal status of the offender at the time the offense was committed
- whether the offender violated parole or probation
- if the offender used a firearm in the commission of certain enumerated felonies/ additional points are added for the possession of a semi-automatic weapon
- if the primary offense is drug trafficking, the trial judge may multiply the subtotal of points of a level 7 or level 8 offense by 1.5, however, if the offender provided substantial assistance to the state, the state attorney may move to reduce or suspend the sentence
- if the primary offense was a violation of the Law Enforcement Protection Act, the subtotal sentence may be multiplied by either 1.5, 2.0., or 2.5
- if the primary offense was grand theft of the third degree of a motor vehicle and the offender’s prior record includes three or more such offenses, the subtotal sentence points are multiplied by 1.5
- if the offender is found to have committed the offense for the purpose of furthering the interests of a criminal street gang, the subtotal sentence points are multiplied by 1.5
- if the primary offense is a crime of domestic violence and was committed in the presence of a minor under age 16 who is related either to the victim or perpetrator, the subtotal sentence may be multiplied by 1.5
- additional points are also assessed for serious felonies committed by the offender within the last three years and for prior capital felonies

Mandatory minimum sentences are imposed for certain offenders such as habitual offenders, career criminals, three-time violent felony offenders, repeat sexual batterers, offenders of aggravated assault or aggravated battery on law enforcement officials, and for offenses committed while in possession or use of a firearm, and for offenses which include possession of certain quantities of cannabis or cocaine.

The trial judge may also consider certain mitigating factors to impose a sentence which is lower than that recommended by the sentencing guideline. There are many different mitigating factors to consider which include the following:
- the sentencing departure results from a legitimate plea bargain
- the defendant was a minor participant in the crime
- that the defendant had diminished capacity to appreciate the criminal nature of his or her conduct
- that the defendant’s ability to conform his or her conduct to the requirements of the law were substantially impaired
- the defendant was too young to appreciate the consequences of their actions
- the defendant is sentenced as a youthful offender
- the defendant requires special treatment for a mental disorder that is unrelated to substance abuse
- the need for restitution paid to the victim outweighs the need for incarceration
- the victim was the initial aggressor, a willing participant, or provoker
- the defendant acted under duress or under domination of another
- the victim was substantially compensated before the identity of the defendant was determined
- the defendant cooperated with the state
- the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse

It is important to note that the defendant’s substance abuse or addiction is never a mitigating factor that the court may consider when implementing a departure from normal sentencing guidelines. Similarly, voluntary intoxication is never a defense to a criminal offense. The criminal attorneys of William Moore, P.A. emphasize however, that drug abuse can be used as a mitigating factor in circumstances where a defendant seeks placement into a dual diagnosis program.

For more information on the meaning an utilization of dual diagnosis programs in the criminal court system, contact the Broward County criminal attorneys of William Moore, P.A. today.

Article contributed by Denise Grass

United States Supreme Court Interpretation of Florida’s Contraband Forfeiture Act
A famous United States Supreme Court Case which discussed the Florida Contraband Forfeiture Act was Florida v. White, 525 U.S. 559 (1999). In this case, law enforcement observed Defendant White using his motor vehicle to deliver cocaine. Thus, law enforcement had probable cause to believe that his motor vehicle was subject to forfeiture under the Florida forfeiture statute. Several months elapsed and Defendant was arrested at this workplace on charges unrelated to the earlier observed cocaine transactions. At the time of the arrest, Defendant’s motor vehicle was seized. An administrative inventory search was taken of the vehicle which yielded crack cocaine and Defendant was subsequently charged with possession of a controlled substance. The Florida Supreme Court held that the search was unreasonable even though it is permissible to conduct a warrantless search and seizure of an automobile if probable cause exists. The court’s reasoning was based upon the fact that there is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband and the discretionary seizure of a citizen's automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity. The United States Supreme Court reversed.
Fort Lauderdale criminal attorney William Moore emphasizes that the issue before the United States Supreme Court was does the Fourth Amendment require law enforcement to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband under the Florida Contraband Forfeiture Act? The Court held that a warrant is not required. Their reasoning was based upon the fact that although the police here lacked probable cause to believe that Defendant’s car contained contraband, they had probable cause to believe that the vehicle itself was contraband under Florida’s Contraband Forfeiture Act. The court stated that the need to seize readily movable contraband before it is moved away is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.

An inherent doctrine in both federal and state law is the people should be free from unreasonable searches and seizures. However, if law enforcement has a reasonable suspicion of criminal activity or involvement in a completed crime, which is supported by articulable facts, they may detain a person for investigative purposes. If law enforcement reasonably believes that the person detained is armed and dangerous, they may frisk the person for weapons. This is commonly known as a Terry stop, based on the 1968 United States Supreme Court case, Terry v. Ohio.

Information on unreasonable searches & seizures along with other criminal defense articles can be found on various William Moore, P.A. South Florida Websites.

The Fifth District Court of Appeal recently examined this issue in D.B.P., a child v. State of Florida in an opinion that was issued in March 2010. In this case, the Defendant was seen by a sheriff’s deputy near a bus stop in what the local law enforcement deemed to be a high-crime area. The sheriff’s deputy had been informed by other law enforcement officers that the Defendant had committed a pedestrian violation. The sheriff’s deputy approached the Defendant and conversed with him for a moment whereas the deputy observed that the Defendant appeared nervous and put both of his hands in his pockets. The deputy instructed him to remove his hands from his pockets and he refused. The deputy then moved Defendant’s hands from his pockets. The deputy noticed that the Defendant had on baggy pants so he could not visually see the contents of his pockets. The deputy then frisked the Defendant and found a handgun.

Defendant moved to suppress the evidence based upon the notion that the officer did not have reasonable suspicion to frisk Defendant. The trial court denied Defendant’s motion. The Court of Appeals, however, reversed and held that the application of Florida law requires suppression.

Florida courts have consistently held that there must be something more to corroborate criminal activity than easily obtained facts, such as clothing, appearance, or location in order to support a search and seizure. In this case, there was no indication of criminal activity, as Defendant was suspected merely of jaywalking, a civil infraction. The appellate court found that Defendant’s placing his hands in his pockets during a stop for a non-criminal infraction in the vicinity of high-crime area did not warrant the frisk.

Florida case law mandates that police officers are authorized to execute a pat down for weapons only where there is reasonable suspicion that a suspect is armed. An officer may justify a frisk based upon a defendant’s nervousness or a bulge in the defendant’s clothing. Case law distinctly states however, that an officer does not have reasonable suspicion that a defendant is armed merely because, following a non-criminal traffic stop, the defendant appears nervous and keeps is hands in or near his pockets. See Ray v. State, 849 So.2d 1222. Other consistent case law states that the mere thrusting of one’s hand in one’s pocket in front of a law enforcement officer does not constitute conduct which supports reasonable suspicion that an individual is armed and dangerous.

Article by Attorney Denise Grass

For DUI Defense visit our Driving Under the Influence Information page.

Criminal attorneys in Broward County occasionally come across clients who were arrested by Broward police officers while in another county, such as Miami-Dade or Palm Beach. The question posed to the lawyer in these situations is generally centered on perceived jurisdictional limitations on the police officer making the arrest.

A knowledgeable Broward County criminal attorney will explain that an officer may make an arrest outside of that police officer's jurisdiction pursuant to the fresh pursuit or hot pursuit doctrine. Under this principle, criminal attorneys explain that an officer who observes the commission of a crime, a violation of Florida Statutes, Chapter 316, or a violation of an ordinance inside the officer's city or county limits, to pursue the defendant into another city or county to make the arrest. Criminal attorneys also emphasize that an off-duty officer has this same statutory authority.

Practitioners who defend criminal charges in Broward caution that this doctrine involves essentially a continuous process. Thus, where an officer was investigating an accident and the defendant left the scene, Florida criminal law dictates that the Broward Sherriff’s officer could arrest the defendant outside of the officer's jurisdiction, because leaving the scene of an accident is a continuing offense, and the officer was effectively in fresh pursuit. Although it has been argued by criminal lawyers in Broward County that under these circumstances that the suspect must remain in the pursuing police officers line of site, there is no statutory requirement that there be continuous surveillance of the defendant for there to be valid fresh pursuit.

In Broward County, criminal attorneys rely on three criteria for determining whether there is fresh pursuit: “1) that the police act without unnecessary delay; 2) that the pursuit be continuous and uninterrupted; and 3) that there be a close temporal relationship between the commission of the offense and the commencement of the pursuit and apprehension of the suspect.”

For more information on the jurisdictional limits of Broward County police officers, visit any one of our 5 South Florida criminal defense websites or call the lawyers of William Moore, P.A. in Fort Lauderdale directly. For the Fort Lauderdale Police Department, visit Fort Lauderdale Police.

What does the Broward State Attorney's Office have to prove in a stolen property case?

There must be an appropriate factual basis in the record to give an instruction that proof of the unexplained possession of property recently stolen may justify a burglary conviction. This means first, that it must be shown that the defendant, when arrested, either failed to explain or gave an incredible or unbelievable explanation for possessing the property and, second, that the instruction applies only where property is undisputedly stolen and the question is who stole it. The standard jury instruction on possession of recently stolen property, setting forth permissible inference of guilt from a defendant's unexplained possession of property recently stolen, does not apply in a trial for burglary or grand theft only when State has proven actual rather than constructive possession of the property. Thus, a defendant's constructive possession of stolen property was sufficient to warrant giving of jury instruction on possession of recently stolen property, in a prosecution for burglary of a dwelling, where the stolen property had been stored by the defendant and his accomplice in the home of defendant's girlfriend.
Furthermore, instruction, in a prosecution for burglary of a dwelling, on inferences arising from proof of unexplained possession of recently stolen items did not violate the defendant's right to remain silent or impermissibly shift the burden of proof.

If you have been arrested in Fort Lauderdale for possession of Stolen Property, contact the criminal lawyers at William Moore, P.A. For information on Fort Lauderdale arrests, visit the Broward Sherriff’s Office website or contact the Fort Lauderdale police department.

Florida attorneys often argue that there are statutory privileges that apply in Florida to information provided in the course of an accident investigation. Some criminal attorneys are under the impression that these privileges attach to field sobriety tests. In fact, in Duval Motor Co. v. Woodward, the Court ruled that those privileges did apply to field sobriety tests. At one time, such privileges even applied to chemical test results. That changed with the decision in Brackin v. Boles.

In Brackin, the Court eliminated the distinction between a blood alcohol test done for purposes of an accident report privilege and one done for purposes of a criminal investigation. The Court ruled that such tests are not communications; therefore, they are not privileged under the statute. Brackin was a civil accident case (see motorcycle accident attorneys), but the Court took the same approach in a criminal case in State v. Adams.

For the reasons set forth in Brackin, in Eichholz v. Pepo Petroleum Co. Inc., a civil case, the court specifically ruled that Duval is no longer good law and the accident report privilege does not apply to field sobriety tests. In State v. Edwards, a criminal case, the court reached precisely the same conclusion.

Over the years implied consent statutes have been attacked for a variety of constitutional reasons, usually unsuccessfully. This arena is ripe for litigation but courts have consistently held that the statutes do not violate a driver's Fourth Amendment protection from unreasonable search and seizure, or Fifth Amendment right against self-incrimination. The statutes usually are upheld on due process grounds, although courts have found statutes that permit the revocation of a license without a hearing unreasonable and unconstitutional.

BROWARD COUNTY CRIMINAL DEFENSE FORUM
INTERESTING LAWS THAT ARE STILL ON THE BOOKS

There are hundreds of laws on the books throughout the nation that are not enforced. If they were, they would certainly be found to be unconstitutional. Ridiculous laws stay on the books as there is no real political edge to be gained by pushing to have them repealed. Seeking to have a law repealed that isn't really effecting anyone can also be viewed as a waste of time.

Some laws that still remain on the books are:

• In Alabama, its illegal for men to spit in front of women.
• In Rehoboth Beach, Delaware, it's illegal to whisper in church.
• In Florida, it's illegal for women to parachute on Sunday.
• In Florida, its illegal to sing in public places while wearing a swimsuit.
• In Hawaii, its illegal to place coins in one's ears.
• In Kentucky, its illegal to throw eggs at a public speaker
• In Baltimore, Maryland, its illegal to throw a bale of hay from a second story window.
• In North Carolina, its illegal to sing off-key.
• In Oklahoma its illegal to engage in whaling.
• In Oklahoma, it's illegal to have the hind legs of any animal in your boots.
• In California, its illegal for any vehicle without a driver to travel over sixty miles per hour.
•.In Washington, if two trains reach. crossing at the same time, it's illegal for one to go until the other has passed.

These laws are not included in police training manuals for obvious reasons and it is unlikely any Broward County police officers even know about the weird Florida laws listed.

William Moore P.A. has offices located in Fort Lauderdale, West Palm Beach & Miami Beach.

For information on DUI law in Broward County Florida, Please visit Broward County DUI Defense

Fort Lauderdale criminal attorneys are often asked about Miranda rights by their clients. This often confused element of criminal defense pertains to statements made by an arrested and does not render that arrest invalid where rights are not read.

We've all seen television police detectives and policemen slam a suspect up against a car and immediately begin advising the person of his rights. This is not an accurate depiction of what happens during an arrest however and is more or less another element of Hollywood fiction. The fact is that a police officer is only required to read a suspect their rights where they intend to question him while in police custody. Rights simply aren't read immediately upon arresting an individual accused of committing a crime. Most officers don't even read a suspect Miranda warnings at the time of arrest. I can think of many words that are exchanged between officers and suspects during and after a scuffle, but Miranda isn't one of them.

The law draws no firm line that determines when a person is in police custody. The rule of thumb is that a person is in police custody when she no longer feels she can leave the immediate area. A suspect who is handcuffed or sitting in a locked room inside a police station obviously can't leave and is definitely in custody.
Miranda warnings don't apply if an officer is speaking with a suspect and gives him no indication that he's in custody. This is true even if he's the sole suspect in a crime.

-Anne-Marie Kopek

William Moore P.A. is a criminal defense law firm with offices in Broward, Palm Beach & Miami Dade. If you have questions about your criminal charges, contact us today.