The Sidebar Blog
Imagine this scenario: A defendant is convicted of both Attempted Trafficking of Oxycodone and Possession of Oxycodone. He files an appeal arguing he should not have been convicted of both due to double jeopardy. The appellate court agrees but now has to decide WHICH count to vacate.
A case you will want to read for analysis is Aubuchon v. State (2D10-5745) decided March 8th, 2013.
The general rule is that when dual convictions are impermissible, the court should reverse the lesser offense conviction and affirm the greater. In most cases, lesser offenses are those in which he elements of the lesser offense are subsumed within the greater. But in Aubuchon’s factual scenario, neither offense is strictly consumed into the other. Here’s the analysis the court used to determine which offense would be treated as the lesser:
…Aubuchon’s “possession” of the 39.5 pills was simply a small part of his larger attempt to obtain his full order of 400 pills. Aubuchon ”ordered” 400 pills, he arrived at the designated location with payment for 400 pills, the “seller” accepted $1900 for the 400 pills but made only a partial delivery, and Aubuchon remained where he was, waiting for the remainder of his “order.” Thus, his brief possession of the 39.5 pills was not a separate completed offense but was simply an intermediate part of the offense of attempting to possess all 400 pills.
In the end, the court vacated Aubuchon’s simple possession charge.
This post is not intended as legal advice nor does it create an attorney-client relationship.
~At Matthews Law Firm, P.A., we practice criminal defense. Offices in Bartow, Florida.~
As of January 1, 2013, the civil penalty for committing prostitution has increased to $5,000. From 796.07 (6):
A person who violates paragraph (2)(f) shall be assessed a civil penalty of $5,000 if the violation results in any judicial disposition other than acquittal or dismissal. Of the proceeds from each penalty assessed under this subsection, the first $500 shall be paid to the circuit court administrator for the sole purpose of paying the administrative costs of treatment-based drug court programs provided under s. 397.334. The remainder of the penalty assessed shall be deposited in the Operations and Maintenance Trust Fund of the Department of Children and Family Services for the sole purpose of funding safe houses and short-term safe houses as provided in s. 409.1678. (emphasis added).
This is a substantial increase from the prior fine amount, which was $500.
Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.
Today, President Obama announced 23 executive actions on gun control. Those 23 actions include:
1. Issue a presidential memorandum to require federal agencies to make relevant data available to the federal background check system.
2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.
3. Improve incentives for states to share information with the background check system.
4. Direct the attorney general to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.
5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.
6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.
7. Launch a national safe and responsible gun ownership campaign.
8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).
9. Issue a presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.
10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.
11. Nominate an ATF director.
12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.
13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.
14. Issue a presidential memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.
15. Direct the attorney general to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to develop innovative technologies.
16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.
17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.
18. Provide incentives for schools to hire school resource officers.
19. Develop model emergency response plans for schools, houses of worship and institutions of higher education.
20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.
21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.
22. Commit to finalizing mental health parity regulations.
23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.
Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.
Jury instructions are important for several reasons. The primary reason is they lay out the applicable law for jurors to follow. Without jury instructions, the jury would not know the elements of a DUI or Robbery charge. Jurors would not have the definition of “reasonable doubt”, or “constructive possession”, or any definition for that matter. They may forget who carries the burden in a criminal case and they certainly wouldn’t deliberate lesser-included offenses unless they were instructed on what the lesser-included offenses were. Juries would find it difficult to render a lawful verdict if they were not provided with jury instructions.
Second, they are important for record-keeping matters on appeal. If a Defendant is found guilty and wants to appeal a faulty jury instruction, he/she will need to show the appellate court the instruction read at trial. That is why jury instructions are typed and printed and placed in the court file. It is important for judges, when reading the jury instructions to the jury, to not stray or vary or “go off-script” to the the agreed-upon instructions. (The two sides agreed to the instructions for a reason, right?)
Imagine the panic if a defendant charged with murder went to trial and the jury instructions all related to the misdemeanor charge of battery. It can be very important to get the charge right. Sounds easy, right? It can be. But errors certainly happen. Case in point, Ireland v. State.
In the Ireland case, the Defendant went to trial on the charges of attempted 1st-degree murder and kidnapping. A jury found him guilty of attempted 2nd-degree murder and kidnapping. The problem? Instead of being read the charge of attempted 2nd-degree murder, they were read an instruction on attempted manslaughter (a completely different crime than attempted 2nd-degree murder).
Why it matters? Now, the case will go back down to the trial court, where he will presumably be retried on the 2nd-degree murder charge. Think of all the expense, frustration and resources that could have been avoided had the jury instructions been correct.
That’s an important reason why jury instructions are important!
Additional Reading Material
In case you’re still not convinced, here are some articles on the importance of jury instructions:
To view some of Florida’s Standard Jury Instructions for Criminal Cases, go here. Feel free to click on a few of the links on the left to read through instructions that are read to Florida juries.
Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.
~At Matthews Law Firm, P.A., we practice criminal defense & health law. Our offices are in Bartow, Florida and we offer free consultations. We are currently accepting cases throughout central Florida.~
Although those charged with crimes are guaranteed the right to a public trial under the 6th Amendment, sometimes courts “close down” the courtroom when receiving certain types of testimony. This means the court “kicks out” members of the public to protect certain sensitive matters. But what kinds of findings does a court need to make before closing down a courtroom? This post will discuss the four requirements for kicking the public out and also some Florida exceptions to the rule.
Under the 6th Amendment, a Defendant is guaranteed the right to a public trial. If that is true, then how do courts get away with closing down courtrooms (aka, kicking the public out) when certain types of testimony is offered? (You’ll see this frequently when a child sex victim is testifying.)
In Florida, a recent case highlighted the legal standard that must be shown before the presumption of openness can be overcome.
The 4 legal requirements
The US Supreme Court case of Waller (467 US at 48) sets out four requirements that must be shown before the Court can kick out the public.
1. The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;
2. Closure must be no broader than necessary to protect that interest;
3. Trial court must consider reasonable alternatives to closing the proceedings; and
4. The court must make findings adequate to support the closure.
Keep in mind there may be certain statutory exemptions for closure as well, depending on a state-by-state basis. Florida, for example, has a statute that allows a court to clear the courtroom for testimony of victims under the age of 16, or those that are mentally retarded, or of a victim of a sex offense. The statute reads in full:
Section 918.16 Sex offenses; testimony of person under age 16 or person with mental retardation; testimony of victim; courtroom cleared; exceptions.—
1. Except as provided in subsection (2), in the trial of any case, civil or criminal, when any person under the age of 16 or any person with mental retardation as defined in s. 393.063 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney’s office.
2. When the victim of a sex offense is testifying concerning that offense in any civil or criminal trial, the court shall clear the courtroom of all persons upon the request of the victim, regardless of the victim’s age or mental capacity, except that parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, court reporters, and, at the request of the victim, victim or witness advocates designated by the state attorney may remain in the courtroom.
The 6th Amendment right to a public trial is an important right, but one that is subject to a few exemptions as well.
~At Matthews Law Firm, P.A., we practice criminal defense & health law. Our offices are in Bartow, Florida and we offer free consultations. We are currently taking cases throughout central Florida.~
In a recent ruling, the Florida 2nd DCA ruled that a police officer may not rely on the “stand your ground” law to avoid prosecution.
The case is State v. Caamano (2D12-1857) and was decided on October 26, 2012.
According the DCA opinion, the State has alleged the following facts:
“As a street party was dispersing in Lake Hamilton in October 2010, one individual refused to comply with police orders to exit the street. An officer physically engaged the individual by escorting him to a grassy area beside the roadway and taking him to the ground, but the individual resisted. Two other officers assisted in detaining the individual by delivering knee and hand strikes and using a taser to “drive stun” him.
While the individual was face down on the ground after having been beaten and tased by a group of law enforcement officers, Caamano, an on-duty Haines City Police Officer, approached the men. Caamano raised his right foot and “br[ought] it down in a stomping motion” towards the individual’s legs, saying “put your hands behind your back” as he did so. The State alleged specifically that Caamano’s actions did not assist the other officers with bringing the individual into custody, and that the detained individual did not exhibit any active resistance toward Caamano. Instead, the State alleged that “his stomp served no purpose other than to bring unjustified and unnecessary force to [the individual], who was already engaged by three other officers.” (Page 2 of the opinion).
The Court went on to rule that if Caamano is entitled to immunity, it would be under a different statute, specifically, 776.05, titled “Law enforcement officers; use of force in making an arrest.” (Page 7 of the opinion)
Caamano has been charged with attempted battery.
~At Matthews Law Firm, P.A., we practice criminal defense & health law. Our offices are in Bartow, Florida and we offer free consultations. We are currently taking cases throughout central Florida.
The 2013 OIG Work Plan has been released. To see the complete Work Plan, click here (fair warning, it’s a big pdf file).
The Work Plan is a good resource for providers to review to learn of enforcement and focus areas for their organization (i.e., hospitals, nursing homes, hospices, etc.). For example, there are 11 new focus areas related to hospitals.
The 2013 Work Plan also has paid special attention to the new healthcare reform law. For the new programs and reviews related to the ACA, see Appendix A on page 107.
It would be wise for providers to review all the topics in their field, and pay especially close attention to the new areas of compliance.
~At Matthews Law Firm, P.A., we practice criminal defense & health law.~
The Florida Supreme Court has decided that the state drug statute (chapter 893) is constitutional as to the knowledge element. In a previous blog, we discussed how a federal court in Florida declared the statute UNconstitutional, leaving it up to question what state courts would do with the ruling. Now we know. This is an example of different sovereigns (federal v. state) interpreting a statute differently.
After the federal ruling in Shelton, Florida defense attorneys were unsure whether to have clients plea to drug possession charges or file motions to dismiss. Many such motions were filed and argued. Although the ruling is not what defense attorneys were hoping for, at least now there is a little more clarity on the issue.
The Florida decision is State v. Adkins, et al (SC11-1878). It was decided on July 12, 2012.
In a dissenting opinion, J. Perry wrote: “The majority opinion sets alarming precedent, both in the context of section 893.13 and beyond. It makes neither legal nor common sense to me, offends all notions of due process, and threatens core principles of the presumption of innocence and burden of proof.”
~This post does not constitute legal advice nor does it create an attorney-client relationship.~
~At Matthews Law Firm, P.A., we practice criminal law in central Florida.~
Florida’s 2nd DCA issued an opinion recently relating to a charge seen all too often by criminal defense attorneys: resisting officer without violence.
The case is L.C.G. v. State (2D11-2401). The 2nd DCA held that resisting officer without violence is NOT a necessarily lesser-included offense of aiding escape.
(It should also be mentioned that in this case, the charging document failed to allege the essential elements of resisting an officer without violence, raising a due process argument as well.)
<This post does not constitute legal advice nor does it create an attorney-client relationship.>
~Matthews Law Firm, P.A., offices in Bartow, Florida~
Hazing in Florida can be a very serious matter, especially when it results in death. Much attention has been brought to hazing since the death of Robert Champion, a FAMU drum major, in late 2011. Just recently, the Orange County State Attorney’s Office announced they are charging 13 individuals in connection with his death. With the spotlight now being turned upon their criminal prosecution, many people are unfamiliar with the criminal elements of hazing.
Most simply put, there are several different versions of the hazing law, depending upon the grade of the student(s). Here is a list detailing the different versions of hazing:
Since the FAMU case deals with the collegiate level, this post will focus on postsecondary hazing, (Fla. Stat. 1006.63):
The postsecondary hazing statutes reads:
1006.63 Hazing prohibited.—
(1) As used in this section, “hazing” means any action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution. “Hazing” includes, but is not limited to, pressuring or coercing the student into violating state or federal law, any brutality of a physical nature, such as whipping, beating, branding, exposure to the elements, forced consumption of any food, liquor, drug, or other substance, or other forced physical activity that could adversely affect the physical health or safety of the student, and also includes any activity that would subject the student to extreme mental stress, such as sleep deprivation, forced exclusion from social contact, forced conduct that could result in extreme embarrassment, or other forced activity that could adversely affect the mental health or dignity of the student. Hazing does not include customary athletic events or other similar contests or competitions or any activity or conduct that furthers a legal and legitimate objective.
(2) A person commits hazing, a third degree felony, punishable as provided in s. 775.082 or s.775.083, when he or she intentionally or recklessly commits any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing results in serious bodily injury or death of such other person.
(3) A person commits hazing, a first degree misdemeanor, punishable as provided in s. 775.082 or s. 775.083, when he or she intentionally or recklessly commits any act of hazing as defined in subsection (1) upon another person who is a member of or an applicant to any type of student organization and the hazing creates a substantial risk of physical injury or death to such other person.
(4) As a condition of any sentence imposed pursuant to subsection (2) or subsection (3), the court shall order the defendant to attend and complete a 4-hour hazing education course and may also impose a condition of drug or alcohol probation.
(5) It is not a defense to a charge of hazing that:
(a) The consent of the victim had been obtained;
(b) The conduct or activity that resulted in the death or injury of a person was not part of an official organizational event or was not otherwise sanctioned or approved by the organization; or
(c) The conduct or activity that resulted in death or injury of the person was not done as a condition of membership to an organization.
(6) This section shall not be construed to preclude prosecution for a more general offense resulting from the same criminal transaction or episode.
(7) Public and nonpublic postsecondary educational institutions whose students receive state student financial assistance must adopt a written antihazing policy and under such policy must adopt rules prohibiting students or other persons associated with any student organization from engaging in hazing.
(8) Public and nonpublic postsecondary educational institutions must provide a program for the enforcement of such rules and must adopt appropriate penalties for violations of such rules, to be administered by the person at the institution responsible for the sanctioning of such organizations.
(a) Such penalties at Florida College System institutions and state universities may include the imposition of fines; the withholding of diplomas or transcripts pending compliance with the rules or pending payment of fines; and the imposition of probation, suspension, or dismissal.
(b) In the case of an organization at a Florida College System institution or state university that authorizes hazing in blatant disregard of such rules, penalties may also include rescission of permission for that organization to operate on campus property or to otherwise operate under the sanction of the institution.
(c) All penalties imposed under the authority of this subsection shall be in addition to any penalty imposed for violation of any of the criminal laws of this state or for violation of any other rule of the institution to which the violator may be subject.
(9) Rules adopted pursuant hereto shall apply to acts conducted on or off campus whenever such acts are deemed to constitute hazing.
(10) Upon approval of the antihazing policy of a Florida College System institution or state university and of the rules and penalties adopted pursuant thereto, the institution shall provide a copy of such policy, rules, and penalties to each student enrolled in that institution and shall require the inclusion of such policy, rules, and penalties in the bylaws of every organization operating under the sanction of the institution.
To read the history of Florida’s hazing law, click here.
(This post is not intended as legal advice nor does it create an attorney-client relationship.)
~At Matthews Law Firm, P.A., we represent criminal defendants in central Florida, including Lakeland, Bartow, Winter Haven, Orlando, Tampa and Sarasota.~