Posts Tagged ‘criminal defense’


When vacating convictions, which charge is the “lesser offense”?

Tuesday, March 19th, 2013

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.~

How do courts “kick out” the public?

Wednesday, October 31st, 2012

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.


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 taking cases throughout central Florida.~

Criminal Blog Week Day 2–Preaching Too Loud?

Tuesday, April 12th, 2011

Preaching Too Loud?

Currently, there is a case working its way through the Lakeland criminal docket involving a preacher accused of preaching too loud, thereby violating the noise ordinance.   According to newspaper reports, here’s what happened:

Anthony Lowery was arrested on May 4, 2010 for violating Lakeland’s noise ordinance, a second-degree misdemeanor which carries a maximum of 60 days in jail and/or a $500 fine.  While standing at the corner of Martin Luther King Jr. Ave. and Memorial Boulevard in the morning hours, he was preaching using a speaker system to amplify his voice.

Lowery is charged with violating Lakeland’s Noise Control Ordinance 70-46, which states:  No person or legal entity, through its officers, agents or employees, shall make, maintain, or cause to be made or maintained a noise disturbance as defined in this article. The continuation of a noise disturbance upon one’s property following notice of its existence to that person making, maintaining, or causing to be made or maintained a noise disturbance shall be deemed to continue with the permission of the property owner.

In Lakeland, a noise disturbance is defined as the following:

Section 70-45

A “noise disturbance” is any sound which is:

(1) Unreasonably loud and disturbing;

(2) Of such character, quantity, or duration as to be injurious to human or animal life, or property;

(3) Of such character, quantity, or duration as to unreasonably interfere with the comfortable enjoyment of life or property; or

(4) Of such character, quantity, or duration as to unreasonably interfere with the normal conduct of business.

Interestingly, in the next section of the Code, section 70-47, there are specific prohibitions which constitute prohibited noise disturbances, one of which is an “Amplified human voice”, defined as amplifying the human voice in such a manner or with such volume as to annoy or disturb the quiet, comfort, and repose of a reasonable person in any dwelling, place of business, hotel or other place of residence.

There are exceptions to noise violations (see section 70-48), one of which is the “unamplified human voice”.

The state is arguing that Lowery broke the law because his voice was so loud as to annoy or disrupt local residents and businesses.  Lowery, through his attorney, has argued the ordinance infringes on his right to freedom of expression.  Apparently, Lowery had been preaching at that location for nine years without being arrested.

Lowery’s noise ordinance arrest is unusual.  In 2009, more than 2,300 noise complaints in Lakeland resulted in police giving out eight notices to appear in court but they made no arrests.  Police claim Lowery was arrested because of his refusal to quiet down after being asked to do so by officers.

Procedurally, the defense recently filed a Motion to Dismiss which was denied. The case is currently set for a Pre-Trial Conference on April 26, 2011.

For local newspaper coverage of this case, please see:

Street Preacher’s Noise Case to Continue (The Ledger, April 6, 2011)

Judge Pondering Case Against Street Preacher (The Ledger, March 15, 2011)


Criminal Blog Week Day 1–Sharia Criminal Law

Monday, April 11th, 2011

Being criminal defense attorneys in Bartow, we often represent clients who are originally from other countries or cultures.  These clients not only have questions about their case, but also about our system of criminal justice.  For example, when someone comes from a country where marijuana is legal, they do not understand why they are subjected to criminal punishment here for possession of the same drug.

Our firm recently gave a lecture on Sharia law and its impact on American jurisprudence.  As part of that presentation, we talked about how Sharia criminal law is different from American criminal law.  Perhaps these two systems are most different in their criminal punishment methods.  Regarding criminal punishment, Sharia is noted for its draconian executions, including its use of stoning, lashing and flogging.  Sharia scholars are quick to point out that these are not the only forms of punishment used by their courts, but are the ones most debated in the West as their methods are most contrary to our Eighth Amendment ban on cruel and unusual punishment.

Besides our methods of punishment, there are many differences between Sharia criminal court and American criminal court.  Here are just a few such differences:

In Sharia court, trials are conducted by the judge; there is no jury system.  There is no pre-trial discovery process, and no cross-examination of witnesses.  Rules of evidence are also vastly different, with Sharia giving priority to oral testimony over written documents/evidence.  On most charges, testimony must be established by two witnesses, preferably male witnesses.  (One exception is rape, which must be established by four eyewitnesses.)  A woman’s testimony is worth only 1/4-1/2 to that of a male.

Forensic evidence is rejected in many cases in Sharia courts, including fingerprints, ballistics, DNA and blood samples.

These rules can make it extremely difficult for women victims in all cases, but especially rape charges.

At the cost of sacrificing due process, Sharia courts significantly increase speed and efficiency of dockets.  But this is a price American criminal courts are unwilling to pay.