Tag Archives: objection

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!

 

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).