All posts by Adam

Improper Bolstering by State Causes Conviction to Be Overturned

 

If a person is serious about taking their case to trial, they need to be represented by an attorney with trial experience and a depth of knowledge of the evidence code. As a recent case demonstrates, it can be critical to the success or failure of any particular action.

Improper Bolstering

In Lazarro v. State, 43 Fla. L. Weekly D2265h (Fla. 5th DCA 2018), Lazarro was accused of taking a former landlords property and selling it to make up for the landlord’s failure to return a security deposit. Obviously, the case came down to the credibility of the witnesses. Was the jury going to believe the landlord’s testimony that Lazarro stole the property and sold it without permission or Lazarro’s testimony that the property was given to him by the landlord?

Lazarro had going against him the fact that he was a five-time convicted felon. Because he took the stand to testify on his behalf, this fact properly became known to the jury. The was no evidence that the landlord possessed any convictions that would be admissible to the jury. In its holding, the Court essentially stated that while it was proper to comment on Lazarro’s convictions as relevant to his ability to tell the truth (i.e., his credibility), it was improper for the prosecutor to bolster the landlord’s credibility by commenting on his lack of convictions. Because the credibility of the witnesses was central to the decision by the jury, the Court held that Lazarro deserved a new trial.

Why The Right Attorney Matters

Had Lazarro’s attorney failed to object, the conviction most likely would have stood. Errors in evidence admission or argument, generally speaking, only warrant a reversal in cases of fundamental error. Most evidence/argument errors are not fundamental. A person should not trust their freedom to an attorney that cannot recognize when an improper argument is being made or inadmissible evidence is about to be proffered. The Bantner Firm and board certified attorney Adam Bantner possess the necessary education, training and experience to make sure that your case is given the best chance of success!

Call us today at 813.397.3965 to schedule your free consultation!

 

If The Motel Room is Searched, Can the Parked Car Be Searched?

One of the tools readily available to law enforcement is a search warrant. A warrant typically follows days, weeks, or months of surveillance of a particular target. The investigation could be focusing on narcotics, weapons, human trafficking, or any other number of criminal activities. After the gathering of evidence through surveillance, the case agent will submit an application for a warrant to a judge. If the judge finds probable cause within the four corners of the document, a warrant will issue. Of course, following the issuance of the warrant, the home, residence, vehicle, computer, etc. will be searched.

With regards to a piece of real property (home, rental, motel, hotel, etc.), the warrant will typically include permission to search the “curtilage” of the property and all items within the curtilage. In determining whether parts of the property constitute “Curtilage” courts typically look to four factors:

  1. the proximity of the area claimed to be curtilage to the home
  2. whether the area is included within an enclosure surrounding the home
  3. the nature of the uses to which the area is put, and
  4. the steps taken by the resident to protect the area from observation by people passing by.

United States v. Dunn, 480 U.S. 294 at 301 (1987).

Essentially, curtilage is an area so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. “[T]he primary focus is whether the area in question harbors those intimate activities associated with domestic life and the privacies of the home.” Id. at 301 n.4. 

What About a Car Parked In Front of a Motel Room?

Now to answer the questions presented: the short answer is no, a car parked in front of a motel room cannot be searched as part of the curtilage of the property. Shannon v. State, 43 Fla. Law Weekly D1704a (Fla. 2d DCA 2018).

In Shannon, “the trial court concluded that Shannon’s car had been parked in the curtilage of rooms 120, 121, and 124. The court found that the car was parked three feet in front of room 120 and that when Shannon exited room 124, it took him about two-and-a-half seconds to get to his car in front of room 120. However, the proximity of the car to the rooms is only one factor set forth in Dunn. Consideration of the other Dunn factors leads to the conclusion that the parking space in front of 120 did not constitute the curtilage of the three motel rooms identified in the warrants. There was no indication that the parking space was enclosed, thus suggesting that it was accessible to anybody walking around the motel. There was no indication that the occupants of the rooms took any steps to protect the parking space from observation of people passing by or that the parking space was used for other purposes by the occupant of the rooms. The parking space was used by Shannon at the time in question, but there was no indication that it could not have been used by anybody else visiting the motel.”

A such, the narcotics that were found in the vehicle subsequent to the illegal search and seizure of Shannon and his vehicle were suppressed from introduction into evidence and Shannon’s conviction was overturned. 

Can I Get a Withhold of Adjudication?

If, for whatever reason, you are unsuccessful in getting your charges dismissed either before or after trial, the next best thing is to receive a withhold of adjudication on your conviction. A “withhold” is one of those quirks of the law that both is and is not a conviction. A “withhold” allows a person to deny having been convicted and leaves open the possibility of sealing and expunging the arrest. Nonetheless, it’ll be on your record.

How do we get a withhold?

The most common method to get one is through negotiations with the Office of the State Attorney. Generally speaking, first-time offenders who have committed relatively minor crimes are eligible with some exceptions, most notably DUIs.

Persons convicted of capital, life, punishable by life, or first-degree felonies will not be eligible to receive a withhold of adjudication. A person convicted of a second-degree felony is only eligible if requested by the State Attorney or the Court makes certain findings. A person convicted of a third-degree felony will be eligible unless they’ve received two prior withholds. A person convicted of a third-degree felony crime of domestic violence or who has received one prior withhold may be eligible if requested by the State Attorney or the Court makes certain findings. Fla. Stat. 775.08435.

Can it be taken away from me?

The short answer is “yes.” In order to receive a withhold of adjudication, Florida law requires that you be placed on probation. There’s no specified length of probation but, generally speaking, you must earn your withhold. If you violate probation, the Court can, and most likely will, adjudicate you guilty of the crime.

If the court screwed up and unlawfully gave you a withhold when it wasn’t supposed to give such a sentence, it will not be taken away from you if the State failed to object at sentencing. The courts have held that such error is not “fundamental” and, as such, will not overturn such a sentence unless the State objected contemporaneously at the sentencing. State v. Rivera, 43 Fla. L. Weekly D1537c (Fla. 5th DCA 2018).

 

That Admission Might Not Be Used Against You

The Corpus Delecti Rule

Florida is one of a few jurisdictions where the “corpus delecti” rule still applies to the benefit of criminal defendants. In a nutshell, “The rule provides that before an admission may be allowed into evidence, the State has the burden of offering direct or circumstantial evidence independent of the admission that establishes the corpus delicti of the crime charged.” State v. Allen, 335 So. 2d 823, 825 (Fla. 1976). The corpus delecti is substantial evidence tending to show the commission of the charged crime. This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.

As Applied to Juvenile Possession of a Firearm

The Second DCA has applied this rule to a juvenile’s possession of a firearm. Essentially, it is illegal for a juvenile to simply possess a firearm, with a few exceptions, and entirely illegal for a person under 24-years-old to possess a firearm if they have been previously adjudicated delinquent to a charge that would have been a felony if charged as an adult. An element of either charge is actual possession of the firearm.

In A.P. v. State, 43 Fla. L. Weekly D1508a (Fla. 2d DCA 2018), the defendant was charged with such possession. However, the weapon was found on the floor of a car that was jointly occupied by A.P. and at least one other individual. As such, it was your classic constructive possession scenario. The State failed to produce any evidence of possession by any of the individuals such as fingerprints, DNA, or statements by a co-defendant. However, A.P. did admit to ownership of the firearm.

The Court (Hillsborough Judge Twine Thomas) allowed the admission into evidence. The Second DCA indicated that this was in error:

“The evidence here showed that A.P. and two passengers were together in the car, and A.P. was driving. The gun was hidden from sight under the floor mat of the front passenger seat. We have repeatedly held that mere proximity to contraband in a jointly occupied car is not sufficient to sustain a conviction based on constructive possession. See K.A.K, 885 So. 2d at 407-08. Thus, the only independent proof remaining to support any of the inferences necessary to establish constructive possession is A.P.’s admission. This brings us full circle to Ras, which, as stated above, teaches us that this will not do. See Ras, 610 So. 2d at 25; see also Harrison v. State, 483 So. 2d 757, 758 (Fla. 2d DCA 1986) (holding that the corpus delicti doctrine prohibited the appellant’s conviction for possession of a firearm where there was no proof of actual or constructive possession of the firearm apart from the appellant’s confession).”

As such, while it is certainly best to simply abide by the law and, should you fail there, to not say anything without an attorney present, it is possible to avoid a conviction by properly excluding from evidence an admission using the corpus delecti rule to your advantage.

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If you, a friend, or family member has been charged with a crime, give your board certified attorney a call at 813.397.3965 to see how we can help!

Can a Urine Test be Compelled?

Those who regularly practice DUI defense are very familiar with the Implied Consent law and how it impacts our client’s cases. Essentially, Implied Consent requires “any person who accepts the privilege … of operating a motor vehicle within this state … to have given his or her consent to submit to …  a test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath…” Any person who refuses such test after being lawfully arrested is subject to a year-long driver’s license suspension for a first refusal or a 18-month suspension and misdemeanor crime for a second or subsequent refusal. Fla. Stat. 316.1932(1)(a)1.a. The courts have found this to be legal.

Birchfield v. North Dakota

However, the courts look at urine and blood draws slightly different. In 2016, the U.S. Supreme Court in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016) held that a warrantless breath test may be administered as a search incident to a lawful arrest, but a more intrusive blood test may not. But how does this effect the Implied Consent Law as it relates to a request for urine?

Request for Urine Test

The Implied Consent law with regards to urine is almost identical to the law with regards to breath. “Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of chemical substances or controlled substances.”

The penalties for refusal are identical and the only difference is that the request to test requires probable cause to believe that the person is under the influence of a controlled substance as opposed to alcohol. But is this process still legal after Birchfield?

State v. Riddle

At least one court has answered that question in the negative. In State v. Riddle, a Sarasota County Court Judge held that a urine test was akin to a blood test and that it could not be compelled under Implied Consent. State v. Riddle, 26 Fla. L. Weekly Supp. 148a (Fla. Sarasota Cty. Ct. 2018).

In Riddle, the Defendant only consented to a test of his urine after having taken a breath test (.049 and .051 results), initially refusing the urine test, having Implied Consent read to him, and then consenting to the test (cocaine found in his system). 

The Court found his consent involuntarily given and suppressed the results of the test. “Mr. Riddle’s consent cannot be said to have been given freely and voluntary, because he was told that he must consent or face the consequences that included the threat of being charged with a separate crime for refusing. The Supreme Court has held that drivers do not impliedly consent to a blood test. Minnesota, North Dakota and South Dakota have recently ruled that the same rule of law applies to urine testing.

The Deputy’s reading of implied consent and the consequences of refusal effectively made Mr. Riddle’s consent involuntary. The State has failed to demonstrate under the totality of the circumstances standard that the consent was freely and voluntarily made.”

Call Us to Help With Your DUI

Call The Bantner Firm today at 813.397.3965 to see how we can help you with your DUI charge!

Stay in Your Lane: The Role of the Judge

By: Adam L. Bantner, II, Board Certified Criminal Trial Law Attorney

“The judge has five basic tasks. The first is simply to preside over the proceedings and see that order is maintained. The second is to determine whether any of the evidence that the parties want to use is illegal or improper. Third, before the jury begins its deliberations about the facts in the case, the judge gives the jury instructions about the law that applies to the case and the standards it must use in deciding the case. Fourth, in bench trials, the judge must also determine the facts and decide the case. The fifth is to sentence convicted criminal defendants.” Role of the Judge and Other Courtroom Participants, The Judge, http://www.flnd.uscourts.gov/role-judge-and-other-courtroom-participants, June 6, 2018.

Additionally, Canon 2A of the Florida Code of Judicial Conduct states, “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

When a judge breaks from these parameters, the courtroom goes from a place of justice to an inquisition. Additionally, it will cause whatever work was done in that courtroom to be reversed on appeal. A recent example is Parr v. State, 43 Fla.L.Weekly D1161a (Fla. 4th DCA 2018).

Parr was placed on probation for on two counts of Dealing in Stolen Property and two counts of False Information to a Secondhand Dealer. In November 2015 his probation was violated, and a hearing was conducted in November 2016. After plea negotiations broke down, and facing up to 40 years in prison, Parr entered an admission to violating his probation and a sentencing hearing as held.

At the sentencing hearing, Parr asked for a modification of probation for him to be placed in a substance abuse treatment facility and he called his grandfather as a witness. Because Parr had indicated that most, if not all, of his victims were family, he wanted to show the Court that his family wanted him to receive help and not incarceration. As soon as Parr finished his direct examination of his grandfather, the Court, and not the prosecution, begin cross-examining the grandfather. The Court began by asking whether Parr was a danger to the community and the grandfather responded, “Absolutely not.” The following examination ensued:

THE COURT: Two other – two other grand thefts, are you familiar with those?

GRANDFATHER: You’ll have to tell me what they are.

THE COURT: I don’t know, I’m asking you. Do you know what they are?

THE DEFENDANT: I don’t – one was – one was —

THE COURT: I’m not asking you, I’m asking [your Grandfather].

GRANDFATHER: Sir, I don’t know.

THE COURT: Cause you’re coming into my courtroom and you’re saying he’s not a danger to anyone else.

GRANDFATHER: I – I don’t think –

THE COURT: He’s never victimized anybody else?

GRANDFATHER: No, not that I know of.

THE COURT: Not that you know of.

GRANDFATHER: Uh-huh.

THE COURT: Is your lack of knowledge intentional or accidental in that regard?

GRANDFATHER: My lack of knowledge is because –

THE COURT: Are you keeping your head in the sand –

GRANDFATHER: I have no knowledge of that.

THE COURT: As far as whether he’s violated anyone else’s rights?

GRANDFATHER: I do not know that he has.

THE COURT: Okay. But is that intentional on your part or are you just accidental – are you – are you –

GRANDFATHER: That’s the way I feel.

THE COURT: Did you inquire of him in that regard?

GRANDFATHER: That’s –

THE COURT: Have you looked into it?

GRANDFATHER: Uh, not intentionally look into it.

THE COURT: Because you just told me he’s not a threat to anybody else.

GRANDFATHER: I do not believe him to be a threat to anyone.

THE COURT: Okay. Because you don’t know if he’s – he’s violated anyone else’s rights.

GRANDFATHER: Not – it has not come to my attention that he has.

THE COURT: How about assault?

GRANDFATHER: No.

THE COURT: Improper exhibition of a weapon?

GRANDFATHER: No.

THE COURT: That is no, you don’t know anything about it.

GRANDFATHER: He’s not done that.

THE DEFENDANT: No, it’s –

THE COURT: It’s on his record. I’m looking at his scoresheet.

GRANDFATHER: A gun?

THE COURT: I’m looking at his scoresheet. It’s on his record.

GRANDFATHER: I don’t know anything about a gun. I have guns, but I don’t know that –

THE COURT: I don’t know that it’s a gun –

GRANDFATHER: He’s every had any –

THE COURT: It says weapon, it doesn’t mean it’s a gun. Resisting a merchant, you’re not a merchant, are you?

GRANDFATHER: No sir.

THE COURT: Resisting an officer without violence, are you aware of that?

GRANDFATHER: No sir.

THE COURT: Driving while license suspended, theft – another theft charge. You’ve told me you don’t know of any other victims other than your family.

GRANDFATHER: That’s correct.

THE COURT: Okay. And he’s violated your family’s rights because of what, a drug problem?

GRANDFATHER: No, I don’t know that he’s ever been on drugs.

THE COURT: So you don’t know what motivates him to do these things?

GRANDFATHER: I think he just thought he could get away it and, uh –

THE COURT: So but what – what –

GRANDFATHER: It was proven not so.

THE COURT: We know in our – in the world that we live in, people do things for different reasons. Most criminals have drug problems and they violate people’s rights, they steal from them to get money to get drugs or to buy whatever they want. How do you – who is he – what does – what does he do? How is it – he just violates the rights of people in your family? Does he hate all of you? What – what’s the situation? I don’t get it.

GRANDFATHER: I just thought it was – I think he thought it was an easy way to get things so he could, uh, prepare or to provide for himself.

THE COURT: And he limits it to your family in that —

GRANDFATHER: The occasions when he’s done that have been limited to myself, uh, my live-in girlfriend and – and his mother.

THE COURT: All right. Those are the only questions I have. Does the State have any additional questions?

The appellate court held that this questioning went too far and ultimately reversed the sentence and remanded the case for a resentencing before a different judge.

            In so doing, the Court quoted from State ex rel. Davis v. Parks, 141 Fla. 516, 519-20, 194 So. 613, 615 (1939): “This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice.

It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this.”

That language may be 80-years-old, but it cannot be said better and educates both the bench and bar to remain vigilant that all parties simply do their job.  

The Outer Limits of an Aggravated Assault Charge

By: Adam L. Bantner, II, Board Certified Criminal Trial Law Attorney

An “assault” is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Fla. Stat. 784.011. Simple assault is a second-degree misdemeanor punishable by up to 60 days in county jail. As such, an assault is composed of three elements: (1) an intentional, unlawful threat by word or act; (2) an apparent ability to carry out the threat; and (3) creation of a well-founded fear that violence is imminent.

 

For a person to be convicted of an assault, there needs to be an intentional threat towards the victim. When considering this element, the focus is on the perpetrator’s intent and “not the reaction of the person perceiving the word or act.” Benitez v. State, 901 So. 2d 935, 937 (Fla. 4th DCA 2005). J.S. v. State, 207 So.3d 903 (Fla. 4th DCA 2017). In J.S., the Court overturned the adjudication of delinquency because the defendant’s act of pulling out a pellet gun, while he was on the ground, was not intended as a threat to the victim, who was brandishing his firearm.

 

In February 2018, the First DCA decided Williams v. State, 43 Fla. L. Weekly D496a (Fla. 1st DCA 2018). Williams seems to stretch its logic in deciding the Williams threatened his two victims so that he committed an Aggravated Assault (he was using a firearm at the time of the alleged assaults). Here are the facts relevant to the assaults (Byrd and Dixon are the alleged victims of the assaults and Howard is the victim of an attempted murder):

 

The jury heard evidence that Williams told Howard he wanted to kill him “so bad” he could “taste it.” Around the same time, Williams said of Dixon and Byrd: “If those two motherfuckers want to stand right there I’ll kill your ass. I know them two bitches going to put me in prison.” Williams then started shooting in several directions — not just towards Howard — striking a fence, a gate, a chair, and a house. At some point, Byrd confronted Williams, trying to convince Williams to stop. Williams responded with a racial slur and a demand that Byrd “shut the hell up.” Byrd and Dixon both hid behind a vehicle until Williams rode away on his bicycle.

 

                From these facts, the Court decided that the statement “shut the hell up” coupled with the prior acts of firing the gun, was actually a threat to harm Byrd if he continued talking and not a mere request to be quiet. With regards to Dixon, the Court even admitted that they could not discern Williams’ intent with regards to Dixon, but nonetheless held that a reasonable jury could find that Williams threatened Dixon by stating that he would kill Howard and that Dixon and Byrd would put him in prison. I’m not certain how they got there, but they did.

 

                The take away for Williams is that if a defendant is firing rounds at one person and makes any statement to other people in the area, there’s a chance that he or she could be convicted of Aggravated Assault with regards to the people to whom he or she was talking. For Williams, it didn’t really matter as his aggravated assault sentences were concurrent to his 30-year sentence for the attempted murder of Howard, but the practitioner needs to be aware that bystanders to a crime have a chance to become victims as well under the logic of Williams.

Possession of Recently Stolen Property

By: Adam L. Bantner, II

The Bantner Firm

Board Certified Criminal Trial Law Attorney

Candidate for Hillsborough County Court Judge, Group 2

 Typically, the decision to put your client on the stand at trial involves numerous considerations such as how he/she will present to a jury, his or her criminal history, the skill of the prosecutor, the need to rebut State evidence, the need to present an affirmative defense. There is one occasion when it is almost always a good idea: to rebut the inference arising from possession of recently stolen property.

To prove theft, the State must prove beyond a reasonable doubt that:

  1. Defendant knowingly and unlawfully obtained or used or endeavored to obtain or to use the property of the victim, and
  2. He or she did so with intent to, either temporarily or permanently deprive the victim of his or her right to the property or any benefit from it.[1]

Fla. Stat. ⸹ 812.022(2) provides, in material part, that “…proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” The inference provided by section 812.022(2) is sufficient to support a theft conviction without any other evidence. See Smith v. State, 742 So. 2d 352, 354-55 (Fla. 5th DCA 1999).

The key phrase of the presumption, for this article, is unless satisfactorily explained. In theory, the defense could provide an explanation from a person not the defendant. For example, let’s suppose the defense is that the defendant bought the property from a third party and lacked knowledge of the property being stolen. The third party could testify that he witnessed the transaction. Any statements made during the transaction should be admissible as they are not offered for the truth of the matter asserted but to explain possession and defendant’s state of mind.

However, based on caselaw, if the State lacks any other evidence of guilt, the most surefire method to obtain a judgment of acquittal would be to put the defendant on the stand. In C.T. v. State, 42 Fla. L. Weekly D2510a, (Fla.3d DCA 2017), the Court quoted Smith v. State, 742 So. 2d 352, 355 (Fla. 5th DCA 1999) and stated that “where a reasonable explanation for possession of recently stolen property is totally unrefuted, and there is no other evidence of guilt, the court must grant a directed verdict for the defendant.” The Second DCA takes the same position in Coleman v. State, 466 So. 2d 395, 397 (Fla. 2d DCA 1985) (“[T]he rule is that where a defendant gives a patently reasonable explanation for his possession of recently stolen goods which is totally unrefuted, and there is no other evidence of guilt, the court must direct a judgment of acquittal.”

Before rushing to put your client on the stand armed with these cases, be certain that the State doesn’t possess other evidence of guilt that would allow the court to deny your motion for judgment of acquittal. Some evidence for which to be on the lookout includes evidence of damage to the vehicle indicating a break-in, flight from law enforcement, conflicting explanations by defendant to law enforcement, or that it was purchased at a price substantially below market price.

Assuming evidence such as that mentioned does not exist, go ahead, put your client on the stand and get that JOA!

[1] Fla. Standard Jury Instructions in Criminal Cases, 14.2

Correction of Jail Credit After Sentencing

By: Adam L. Bantner, II, The Bantner Firm, Candidate for Hillsborough County Court Judge, Group 2

Credit for time served prior to sentencing is usually a straight forward matter; it equals the number of days spent in custody from the date of arrest to the date of sentencing. However, the clerk, the court, and counsel can sometimes get it wrong. This is especially true when dealing with violations of probation when a defendant has spent time in multiple jurisdictions on multiple charges. This article attempts to simplify Rule. 3.801, Florida Rules of Criminal Procedure, to clarify how counsel can correct the amount of time served when it has been improperly calculated.

The Rule has some basic requirements:

  1. It must be filed within one year of the date the sentence became final.
  2. It shall be under oath.
  3. It shall include a brief statement of the facts, including the dates and locations of incarcerations and the amount of time already credited.
  4. Whether any other criminal charges were pending during any period of incarceration and, if so, the location, case number and resolution of those charges.
  5. Whether any credit was waived and, if so, the amount waived.
  6. It must be signed by the defendant certifying that the defendant has read the motion or that it has been read to the defendant and that the defendant understands its content; the motion is filed in good faith and with a reasonable belief that it is timely filed, has potential merit, and does not duplicate previous motions that have been disposed of by the court; and, the facts contained in the motion are true and correct.
  7. The defendant must further certify that the defendant can understand English or, if the defendant cannot understand English, that the defendant has had the motion translated completely into a language that the defendant understands. The motion shall contain the name and address of the person who translated the motion and that person shall certify that he or she provided an accurate and complete translation to the defendant.

The most difficult and time consuming task is finding the defendant’s incarceration history and determining whether he or she should receive credit for the time served in that particular jurisdiction. For example, a defendant may be arrested in Pasco County for driving on a suspended license while he or she was serving a probationary sentencing in Hillsborough County. If the defendant did not have a Hillsborough “hold” placed on him for the violation or served with the violation warrant while in custody, he may not be entitled to credit for the time served in Pasco towards his subsequent sentence in Hillsborough. However, if the jail records indicate Hillsborough placed the hold, then counsel must look at the Pasco disposition to see whether anything in the sentencing in that case would cause the defendant to not be able to use the credit in Hillsborough.

Once all the research is concluded, it’s a good practice to attach printouts from the jail and clerk to substantiate the credit claimed in the motion.

Once a completed motion is signed, certified by the client, and filed with the court, it proceeds in same manner as a Rule 3.850 motion, i.e., the court will review the motion for sufficiency and, if sufficient, forward to the State Attorney for response. Depending on the response, it will be granted, denied summarily, or set for a hearing. If the motion was originally deemed insufficient by the court for whatever reason, counsel will have 60 days to file an amended motion.

2017 Legislative Update – Criminal Justice Version

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

Candidate for Hillsborough County Court Judge, Group 2

 This article highlights some of the criminal justice related bills that were signed into law by the governor during the 2017 legislative session. The summaries are taken from legislative analyses and any opinions expressed therein do not necessarily reflect those of the author of this article. Please read the legislation itself for a more in depth understanding of the bills.

 Sentencing for Capital Felonies, SB 280, signed 3/13/17, effective 3/13/17

  • SB 280 amends the death penalty sentencing statutes to require jury unanimity in death penalty sentencing procedures. In October 2016, the Florida Supreme Court determined in Hurst v. State that in order for the death penalty to be imposed the sentencing phase jury (if the jury was not waived) must vote unanimously for a death sentence. The Hurst v. State ruling was applied to the 2016 death penalty sentencing statutes challenged in Perry v. State. Amending ss. 921.141 and 921.142, F.S., to require unanimity in the jury vote for death will satisfy the constitutional requirements announced by the court in the Hurst and Perry

Public Records Exemption for Murder Witnesses, HB 111, signed 5/10/17, effective 7/1/17

  • HB 111 exempts from public records disclosure law the personal identifying information of a witness to a murder for two years from the date the murder is observed by the witness. However, a criminal justice agency may disclose the information to the parties in a pending criminal prosecution as required by law.

Law Enforcement Body Cameras, HB 305, signed 5/10/17, effective 7/1/17

  • HB 305 requires law enforcement agencies to establish policies and procedures authorizing an officer’s review of camera footage of an incident before writing a report or providing a statement.

Reduction of Criminal Penalties for Certain Acts, SB 608, died in Transportation Committee

  • SB 608 would have reduced the penalties numerous criminal acts. Notably, it would have
    • Reduced driver’s license suspension upon controlled substance possession conviction from 1 year to 6 months
    • Raised the threshold for Grand Theft from $300.00 to $1,000.00
    • Deleted the felony enhancement for three or more convictions for petit theft

Nonjudicial Expunction of Criminal History Records, SB 980, died in Criminal Justice

  • SB 980 would have provided for nonjudicial expunction of criminal history records upon application and approval by Florida Department of Law Enforcement for any case that did not result in a conviction, with some exceptions. There would not be any limit on the number of nonjudicial expunctions by a person. It also would have amended some current limitations on eligibility and procedures.

Public Records Exemption for Dismissed Domestic Violence Protective Injunctions, HB 239, signed 5/9/17, effective 7/1/17.

  • HB 239 exempts from public record requests a petition, and the contents thereof, for an injunction for protection against domestic violence, repeat violence, dating violence, sexual violence, stalking, or cyberstalking that is dismissed without a hearing, dismissed at an ex parte hearing due to failure to state a claim or lack of jurisdiction, or dismissed for any reason having to do with the sufficiency of the petition itself without an injunction being issued.