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Three Myths About Facing Criminal Charges in Key West

Florida Keys criminal defense attorneys have a lot of conversations with people facing criminal charges. One of the interesting things about these conversations is that they reveal the many myths surrounding the rights and power of someone charged with a crime. Let’s spend a little time examining some of the most common myths about facing criminal charges.

Myth #1:  Silence Equals Guilt

Everyone who is arrested has the right to remain silent. However, some people charged with a crime feel that silence is an admission of guilt. At least in the State of Florida, this myth couldn’t be further from the truth. The Florida Supreme Court ruled that there is no automatic presumption of guilt just because you remained silent and didn’t answer questions during a police interrogation. Exercising your right to remain silent is important so that you don’t make incriminating statements under pressure or mistakenly say things that you regret later. While it is a common myth that remaining silent makes you look guilty, the opposite is often true. Nervous clients may talk themselves into trouble in an attempt to clear their good name. To avoid putting yourself in a bad situation, simply remain silent until you’ve had an opportunity to speak with a Florida criminal defense attorney.

Myth #2: If My Miranda Rights Aren’t Read, They Must Drop The Criminal Case

In 1966, the Supreme Court ruled that the police must inform you of your Miranda rights if you are in custody and under interrogation.  In “custody” and under “interrogation” could mean under arrest or it could mean any situation where you are not free to leave. But, if a police officer fails to inform you of your Miranda Rights when taking you into custody or interrogating you, your case will not be automatically thrown out because of that technicality.  In the State of Florida, failure to inform a suspect of their Miranda Rights means that any information obtained during the interrogation may not be considered in the case. But, this doesn’t stop the case from moving forward and it doesn’t stop the prosecutor from using other permissible evidence against you.  Instead, your attorney will have to petition the judge to have the statements suppressed.  Then, if the prosecutor has no other evidence, he may dismiss the case, but it’s not likely.  Usually, there is other evidence that the prosecutor believes would establish your guilt, and, as a result, will not voluntarily dismiss your case.

Myth #3: My Conviction Can Easily Be Overturned On Appeal

Generally speaking, anyone convicted of a crime has the right to appeal both their conviction and their sentence to a higher court. However, successful appeals are rare.  It isn’t very common that a higher court overturns the decision of a lower court. There are a limited number of circumstances where you may successfully appeal a criminal case in Florida:

  • When legal errors were made. Example: A judge ignored rules or mitigating factors when sentencing.
  • When factual errors were made. Example: Your conviction and sentencing was based on incorrect information.
  • When you were subjected to unfair and harsh sentencing. Example: Your sentencing does not fit the crime.

Even if you have a good reason for appealing your conviction or sentencing, going through the appeals process is difficult, time-consuming, and not likely to be successful. That’s why it’s best to aim to get it right the first time around.

If you’re facing criminal charges in Florida Keys, speak to a qualified criminal defense attorney so that you can sort fact from fiction.

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key west Uncategorized

Understanding Theft of a Firearm in Key West

Florida law has different categories of theft, which range from Petit Theft, which is a misdemeanor, to Grand Theft, which is a felony. If you’ve been charged with theft that involves a firearm, it is always considered a felony.  While most theft charges can change in severity according to the value of the property stolen (along with other factors), the theft of a firearm is always considered Felony Grand Theft regardless of the value of the property stolen.

What Is Grand Theft?

Grand Theft is the crime of unlawfully taking property that is worth more than $300. However, it’s important to know that the theft of a firearm that is worth less than $300 is still considered Grand Theft.

Grand Theft Punishment

If convicted of Grand Theft, there is a wide range of punishments you could face depending on the severity of the charge.  For the crime of Theft Of A Firearm, the charge is Third-Degree Grand Theft. If convicted of Third-Degree Grand Theft, you could face a maximum prison sentence of 15 years, 15 years of probation or a fine of up to $10,000. You could also face any combination of those punishments.

Compounded Charges

Charges could be further compounded by other factors by the commission of other criminal acts, such as Assault or Murder.  The Theft Of A Firearm, for example, is considered a third-degree felony in the State of Florida, but it usually is not a standalone crime.  If you’re charge with Burglary for breaking into someone’s home and taking their gun, you could face a Burglary charge and a Third-Degree Felony Charge for Theft Of A Firearm.

Burden of Proof

In all theft cases in Florida, the burden of proof is the same. According to Florida Statue § 812.014, a prosecutor must prove the following:

That the defendant knowingly obtained or used, or endeavored to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property and (b) Appropriate the property to the defendant’s own use or to the use of any other person not entitled to the use of the property.

Fortunately, there are defenses to a theft charge.

Grand Theft Defenses

There are three major defenses to a theft charge.

  1. You own the property. If you have part (or whole) ownership in the property that was taken, it could be used as a defense to a theft charge. For example, if you and your ex-spouse purchased a firearm during your marriage, you might have a claim to ownership—at least partial ownership.
  2. You didn’t intend to steal. In the State of Florida, a theft charge only sticks if there is an intention to steal. If you took the firearm without knowing it, this may be a good defense to a grand theft charge.
  3. It’s junk or trash. If you are charged with stealing a firearm that is obviously worthless (i.e. broken and not functional) it may be a defense against a theft charge, since junk/trash is not property and therefore it cannot be stolen.

If you’re facing a grand theft charge in Key West, contact an experience criminal defense attorney today.

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key west Uncategorized

What Is Criminal “Intent” Is Required To Be Convicted for a Crime in Key West?

Every crime requires a “criminal” intent – but this is complex issue.  This blog explains what criminal “intent” is required to be convicted of a crime in Key West.  “Intent” refers to the state of mind of a defendant at the time a crime was committed. Under the criminal code in Florida, intent is broken down into two broad categories—general intent and specific intent.  It’s important to understand the difference, because different crimes require different levels of intent.  And, consequently, some crimes are easier for the prosecution to prove than others.

General Intent

Some offenses in Florida only require general intent.  “General intent” is defined as the intentional or reckless commission of a crime, where the offender knew or was willfully ignorant of the risk and harm that his actions would cause to the victim. For example, the crime of battery only requires general intent. If an offender voluntarily punches someone, knowing that the blow could possibly harm the victim, that could be enough to prove basic intent.  Note, it’s not required that the offender intend to harm the victim, specifically – it’s only necessary that he intended to commit the action (e.g. throwing a punch).

Specific Intent

To prove specific intent, the prosecutor must show that the offender committed an act with the intention of creating a certain outcome. For example, in a theft case, the prosecutor would need to prove that the accused took possession of property that didn’t belong to them but that they did so with the intention of willfully depriving the rightful owner of the property.   Here are some examples of crimes that require that specific intent be present to get a conviction:

It is more difficult to prove specific intent than it is to prove general intent.  And, once specific intent is proven, there are fewer defenses for the accused. However, when successful defenses exist they mostly serve to reduce the amount of punishment a defendant may face by lowering the charge to a lesser degree. For example, mental incapacitation due to drugs or alcohol may be a defense to a first-degree murder charge (which requires specific intent), but it won’t result in the accused going free, as the case may result in a reduced charge, such as manslaughter.

Specific vs. General Intent

The issue of specific intent and general intent is very specific to the course of events in a particular case.  If a defendant got into a road rage confrontation on the highway, rammed someone’s car and caused that person to get into a deadly accident—specific intent would be present. However, if that same defendant had rammed another vehicle, not because they were angry and seeking retaliation but because their brakes failed and they loss control of their car, no specific intent would present. However, if the defendant knowingly drove with faulty brakes, rammed a car, and caused the other driver to get into a deadly accident, general intent would be present, since the defendant intentionally drove with faulty brakes.

Understanding how intent can impact your criminal case is important. Sentencing for those offenders convicted of specific intent crimes is significantly higher than people convicted of general intent crimes. Speak with an experienced Key West criminal defense attorney today about the details of your case.

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Sexual Assault

Understanding “Consent” As A Defense To Sexual Assault

If you are charged with some form of Sexual Assault, you are probably wondering how the law defines “consent” and how it will apply to your case.  This blog explains it.  Under Florida law, giving consent means that someone has knowingly and voluntarily agreed to an act. But it’s also important to realize that there are several nuances to what is and isn’t truly consent and how those nuances could impact a criminal case in Florida.

What Consent Isn’t?

While it’s fairly easy to understand, at least in general terms, what consent means, it’s a lot clearer when discussing what consent is not.

  • Consent is not coerced submission.  For example, if someone agrees to a sexual act because they are threatened with violence, this is not consent.
  • Consent also is not lack of resistance.  For example, if someone is sexually assaulted, the lack of attempting or mounting resistance doesn’t equal consent.

Consent” means intelligent, knowing, and voluntary consent and does not include coerced submission. “Consent” shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender. These definitions are available under  Florida Statutes § 794.011.

Not Everyone Can Consent

In order for an individual to consent to a sex act, they must have “agency”, which means the legal ability, granted by the State of Florida, to agree to acquiesce to an act. As such, certain individuals are unable to give their consent under specific circumstances.

In the State of Florida, a person under the age of 18 years-old cannot consent to sexual activity with a person who is in a position of familial or custodial authority. For example, a person could not consent to sexual activity with a foster parent. Florida Statutes § 794.011 (8). If a person in a familial or custodial authority engages in activity with a minor, they could be charged with sexual battery.

Even if a person is an adult (over 18 years-old), they may not have the power to consent to sexual activity under certain circumstances. For example, in the State of Florida, an incarcerated person would be unable to consent to sexual activity with a law enforcement officer or correctional officer. Florida Statutes § 794.011(5)(e)(7).  Also, if a person consents to sexual activity because they believe a person is someone who is an agent of the government, such as a police officer, this is also not considered consent.

Romeo and Juliet Clause

In Florida, the age of consent is 18 years old. However, a convicted offender may qualify for removal from the sex offenders list, if they qualify under the “Romeo and Juliet Clause.” Under the clause, offenders with no other sex offense convictions may have their name removed from the sex offenders list, if they had consensual sex with someone who was at least 14 years old and they were not more than 4 years older than the other person at the time of the offense.

If you’re facing a sexual assault charge, talk to a Florida Keys criminal defense attorney to find out if consent is an appropriate defense for your case.

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Theft

What Are The Legal Defenses For Grand Theft In Florida?

This blog explains the legal defenses for Grand Theft.  Every crime has a legal defense, and Grand Theft is no different. When facing a Grand Theft charge, it’s important to remember that intent is a critical part of making this charge stick. Under Florida law, a person can only be charged with Grand Theft if they intended to take the property belonging to another person.  Lack of intent and some other extenuating circumstances may serve as good defenses to a Grand Theft charge. Let’s take a look at some of the most important legal defenses to Grand Theft in Florida.

Lack of Intent

If a defendant took property in the good faith belief that they were not stealing, this would be considered a lack of intent and a defense to a Grand Theft charge.  Also, if a defendant took property because they were unaware that the property was in their possession, this would also prove that there was a lack of intent to actually take the property of another person.  When bringing forth a lack of intent defense, you will need to present evidence that proves you didn’t intend to steal.

Lawful Purpose

Did you take the property because you had a legal right to do so?  This issue may come up in cases where one person’s property was left in another person’s home or in their yard. The defendant may have a good reason to take that property if it was in their home or yard, and this may a be a good defense to a Grand Theft charge in Florida.  Other authorized persons may include landlords or property management staff cleaning out an abandoned apartment and disposing of a former tenant’s property.  The courts may decide in that case that the landlord and his agents have a legal right to take the property under certain circumstances.

Duress and Necessity

Under Florida law, someone accused of Grand Theft may present a Duress or Necessity defense. Under this defense the accused will argue that they had no other choice but to commit the crime because not doing so would put them in danger. For example, someone may have stolen a vehicle so that they could escape someone else who had a gun pointed at them—this might be considered a good defense against a Grand Theft charge. In the Duress and Necessity defense, the danger must outweigh the crime being committed before it’s considered an appropriate defense.

Consent

If the defendant received permission to take the property from the property owner, this would be considered a good defense against a Grand Theft charge. For example, if a defendant was given permission to drive a friend’s car for a weekend then that would fall under the consent defense.

If you’re facing a Grand Theft charge, call an experienced Key West criminal defense firm, and, together, we will take care review to the details of your situation to formulate the best defense.

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Uncategorized

What Is Grand Theft?

If you’re facing a charge of Grand Theft in the State of Florida, the valuation of the property at the time of the crime is critical in determining the exact charge and the penalties you will face.

What Is Grand Theft?

A person is guilty of Grand Theft in Florida when they intentionally and willfully deprive another person of the use of their property. Also, anyone who attempts to take the property of another person temporarily or permanently is guilty of Grand Theft.  The property in question must be valued at $300 or more in order for the crime to be considered Grand Theft in Florida. (source)

Property Value

The value of the property that was stolen will help determine exactly what charges the defendant will face. The Florida courts will determine the value of the property by looking at what it was worth at the time of the crime.

Example:  If a defendant is charged with stealing a smartphone, it does not matter that the phone was originally valued at $900 if it’s been two years since the phone was purchased new. The court would only ask what the phone’s value was at the time of the crime, and that is the value that will be used.

Example: If a defendant is charged with stealing a collection of memorabilia, it won’t matter if the value of that memorabilia goes up six months after the crime.  The court will only consider the value of the stolen property at the time and place the crime took place.

These valuations are important because they severely impact what type of penalties someone convicted of Grand Theft can receive.

If you’re accused of stealing property that’s valued at less than $20,000, you will be charged with Grand Theft of the Third Degree and face up to 5 years in prison. But if you’re accused of stealing property that’s valued at more than $20,000 but less than $100,000, you will be charged with Grand Theft of the Second Degree and face up to 15 years in prison.  This is why getting accurate valuations on stolen property is so important for the accused—just a few hundred dollars difference can send someone convicted of Grand Theft to prison many more years.

There are cases when the value of a property cannot be determined, in those cases the value will be determined by the replacement cost of the property. It’s important to note that the court will take into account the depreciation of the property and its general condition, at the time it was stolen, to determine what the replacement cost should be.

If you’re facing a Grand Theft charge, it’s important to work with a Florida criminal law attorney who understands how property is valued and how that value can impact your case.

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Legal Defenses For Trespassing In Florida

In this blog, we look at the legal defenses for trespassing.  In the State of Florida, there are two types of criminal trespass—Trespass in Structure or Conveyance and Trespass on Property Other Than Structure or Conveyance. Fortunately, there are many defenses to a trespassing charge. Let’s take a closer look.

Trespass in Structure or Conveyance

A person is in violation of Trespass in Structure or Conveyance when they enter structure such as a building or any conveyance (mode of transport) without permission of the owner or other authorized person or if they remain after permission has been revoked.  (source)

Trespass on Property Other Than Structure or Conveyance

Definition: A person is guilty of Trespass on Property Other Than Structure or Conveyance when they willfully and without authorization enter a property that is not a structure or conveyance. For example, someone who trespasses on farmland might be considered trespassing on property that is not a structure or a conveyance. (source)

Defenses To Trespassing

There are a variety of defenses to the charges of Trespassing in Florida. Let’s take a look at some of the most common defenses.

  • You weren’t present. The most basic defense to a trespassing charge is that you did not in fact trespass. If you can present evidence that you did not trespass then you can beat a trespass charge.
  • No notice given to depart. If you were given permission to enter a property then that permission was revoked without notifying you, this may be a good defense to a trespassing charge. While it is true that a property owner can revoke permission to remain on their property even after you’ve been invited in, they need to give you notice that the permission to remain has been revoked.
  • You didn’t willfully remain or enter the property. If you have a reason that you remained on a property that was an extenuating circumstance or a situation out of your control, this may be a good defense to a trespassing charge. Discuss with your attorney since this is an area of the law that has a lot of nuance.
  • The property owner gave express or implied consent. Did the owner imply that it was okay for you to enter and/or remain on their property? For example, if the property owner is serving you dinner and chatting cheerfully with you, it might be reasonable for you to assume that they have no problem with you remaining on their property.
  • The arresting officers did not witness the crime. In the State of Florida, in order to make an arrest for trespassing, the arresting officers must have witnessed the crime. For example, if someone is accused of squatting in an empty apartment, the arresting officer must actually see that unauthorized person inside the apartment before they can make arrest.

Trespass Case Sample

In the case of Reginald L. Smith v. State of Florida, the defendant was found not guilty of trespassing because the officer did not witness the crime and because he was not given proper notice to leave the property.

As two St. Petersburg police officers were watching a twenty-four-hour-a-day convenience store from across the street, they observed Smith walking around the parking lot.   Over a ten-minute period, they saw Smith talking to patrons at the gas pumps, to people using the pay telephone and to others in the parking lot.   The officers drove over to the store.   As soon as Smith saw them approaching in their police cruiser, he went inside.   The officers followed him in, brought him back outside to the parking lot and arrested him for trespass. (source)

The court found that the parking lot did not have a “no trespassing” sign in accordance with state law therefore they had not given proper notice to the defendant. They also found that in the case of properties that are open for business, they must give a direct notice to the trespasser that they are not welcome on the property.

If you have been arrested for trespassing, there are legal defenses and factual defenses that could get your case dismissed.  Call experienced criminal defense lawyers, so we can evaluate your case and all your possible legal defenses.

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key west Trespassing

What Is The Punishment For Trespassing In the Florida Keys?

Have you been arrested for trespassing in the Florida Keys?  If you are convicted, here is the punishment for trespassing.  Under Florida law, there are two types of criminal trespass—Trespass in Structure or Conveyance and Trespass on Property Other Than Structure or Conveyance. How penalties are applied for breaking these trespassing laws will vary depending on a variety of factors.

Trespass in Structure or Conveyance

Section 810.08 addresses what Trespass in Structure or Conveyance is and how criminal penalties are applied.

Definition: A person is in violation of Trespass in Structure or Conveyance when they enter a structure such as a building or any conveyance (mode of transport) without permission of the owner or other authorized person or if they remain after permission has been revoked.

Misdemeanor Charge

If there is no other person in the structure or conveyance when this trespass law is violated then it is considered a 2nd degree misdemeanor in the State of Florida and is punishable by up to 60 days in jail.

If there is another person in the structure or conveyance when the accused has violated this trespass law then it is considered a misdemeanor of the 1st degree and is punishable by up to one year in jail.

Felony Charge

If the accused uses a firearm or other weapon considered dangerous by the court when violating the Trespass in Structure or Conveyance law, they will be charged with a 3rd degree felony and face up to 5 years on prison.

Trespass on Property Other Than Structure or Conveyance

Section 810.90 of the Florida Statutes addresses what the Trespass on Property Other Than Structure or Conveyance is and how criminal penalties are applied.

Definition: A person is guilty of Trespass on Property Other Than Structure or Conveyance when they willfully and without authorization enter a property that is not a structure or conveyance. For example, someone who trespasses on farmland might be considered trespassing on property that is not a structure or a conveyance.

Misdemeanor Charge

If a person is found guilty of Trespass on Property Other Than Structure or Conveyance it will be considered a first degree misdemeanor and is punishable by up to one year in jail.

Felony Charge

If the person found guilty of Trespass on Property Other Than Structure or Conveyance had a firearm or other dangerous weapon while trespassing it will be considered a 3rd degree felony and is punishable by up to 5 years in prison.

If you’ve been charged with trespassing, speak with a Key West attorney who has experience in criminal law.