Archive for November, 2011

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Ineffective Assistance of Counsel Based on Shelton Case

Wednesday, November 30th, 2011

Florida appellate courts are starting to see ineffective assistance of counsel claims filed by inmates relating to the Shelton case (where a federal court held a state drug law unconstitutional).

In a case that was decided today, though, an inmate argued his appellate counsel SHOULD have argued the Shelton issue 6 months BEFORE Shelton was decided.  The Second DCA did not agree, holding:

“The ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law.”

The case is Brown v. State (Fla. 2d DCA, 2D11-5114, Nov.30, 2011).

 

~Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship~

Failure to Report Sexual Battery in Florida

Tuesday, November 8th, 2011

By now, we have all heard of the sex abuse allegations surrounding Penn State University and Coach Paterno.  Many questions are being raised about when a person has a legal duty to report sex abuse.  But is there a Florida law on this topic?  And if so, what does that law say?

The simple answer is yes, there is a Florida statute on the duty to report sexual battery.  It is found at 794.027 and reads in full:

Duty to report sexual battery; penalties.—A person who observes the commission of the crime of sexual battery and who:

1. Has reasonable grounds to believe that he or she has observed the commission of a sexual battery;

2. Has the present ability to seek assistance for the victim or victims by immediately reporting such offense to a law enforcement officer;

3. Fails to seek such assistance;

4. Would not be exposed to any threat of physical violence for seeking such assistance;

5. Is not the husband, wife, parent, grandparent, child, grandchild, brother, or sister of the offender or victim, by consanguinity or affinity; and

6. Is not the victim of such sexual battery

is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Note I said the SIMPLE answer is yes.  There are additional statutes (particularly those in Chapter 39) that also apply to reporting child abuse, abandonment and neglect.  These provisions can apply not only when abuse is observed, but also when abuse is SUSPECTED.  So as with most things in the law, the answer as to who has a duty to report can depend on several factors.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

 

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