Jeffrey Rich Blog

Archive for the ‘Felony/Misdemeanor’ category

What most people view a formality can mean the difference between a criminal conviction on a person’s record and a not guilty. While most understand the concept that the burden to prove the case rests with the State Attorney’s office, there is one often overlooked element that can result in an acquittal of the defendant:

Identification.

The State must produce a witness who is able to come to court and identify the defendant as the person who committed the crime. In most cases this is just a formality; the witness will point to the defense table and identify the defendant, or in most cases just point at the person sitting next to lawyer. But what happens when you don’t make it that easy for the witness? What happens when the witness is required to use their memory from the date of the incident and not just rely on the person sitting next to Attorney or the person who was brought out in shackles?

In most cases an arrest is made after law enforcement determines that a crime has been committed. However in misdemeanor cases the law enforcement officer does have another option. The officer can issue “a notice to appear” in lieu of placing the defendant under arrest. The officer will give the defendant a citation with a court date that the defendant is required to be at. Since no arrest was made, no booking photo was taken. This can potentially create a problem for law enforcement months later when it comes time to identify the defendant at a trial.

Case in point:
Attorney Jeffrey M. Rich put the officer’s identification skills to a test in a recent misdemeanor trial in Hillsborough County. On the morning of trial, Attorney Rich met the defendant outside the court to address any last questions. What had already been discussed before they arrived at the court house was that once they entered the courtroom there would be no communication between them.

Jeff Rich and the defendant entered the courtroom separately. The defendant took a seat in the back of the courtroom that was filled with other spectators.  Attorney Rich approached the officer who issued the notice to appear and spoke with him about the case, and asked the officer if he would be able to identify the defendant. The officer responded that he was “pretty sure he could, and then when he walked to the front of the court room he would remember him”. At that point Attorney Rich took a seat in the front of the court and waited for the Judge to take the bench. Jeff Rich had already instructed the defendant to remain seated when the case was called and not to walk to front of the courtroom. The Judge took the bench and called the case, both sides the State and defense announced ready for trial. At that point the Judge inquired about the defendant’s whereabouts. Attorney Rich informed the Judge of the circumstances and his belief that the officer could not independently identify the defendant unless he walked to the front of the courtroom. Attorney Rich requested that the defendant be allowed to remain seated in the audience for the trial.  The Judge granted this request and told the State to call their first witness.

The Officer took the stand and began his testimony after a brief introduction the officer was asked if he could identify the defendant from the audience. The Officer responded that he could. At that point the State attorney asked the Officer to identify the defendant. The Officer pointed to an individual who was seated in second row of the audience and identified him by saying he was wearing a green tee-shirt. At that point Attorney Rich informed the court that that was not the defendant and asked for the case to be dismissed. The Judge asked for the defendant to come forward at that point an individual who was sitting in the last row and wearing a suit stood up and walked forward. The Judge dismissed all charges based on the defendant not being identified.

So, the issue of identification in some cases may not just be a formality: it can determine the ultimate outcome of a case.  If you’ve been charged with a felony or misdemeanor in the state of Florida, you need a lawyer that is going to look at every detail in order to give you the best defense possible.  Call the criminal defense attorneys at Jeffrey M. Rich today at 813-251-3330.

We’ve all seen “The Fast and the Furious” and quickly fallen in love with the speed and adrenaline Paul Walker and Vin Diesel provide as they make their hopped up power wagons do things that are seemingly impossible. Consequently, movies like this inspired thousands of people to buy a similar car and do their best to emulate Pauly Walnuts and Vinnie D as they zing down Tampa Bay’s highways. As this practice evolved, illegal drag strips were established and through word of mouth people became familiar with where and when to go in order to see these rocket ships on wheels fly up and down the road. Like any other red blooded American male, I have to agree that the spectacle these cars provide is entertaining, if not amazing. Clearly, I am not alone.

To many spectators’ surprise and dismay, as recently as a week ago St. Petersburg local police departments organized two stings in which they blocked off any reasonable method for escape and cited and/or arrested several people racing and observing the racing that occurred near Fourth Street North. Obviously the individuals that were participating in the actual racing were either cited or arrested for “Racing on the Highway,” a first degree misdemeanor, punishable by up to a year in jail and a fine of not less than $500 but not more than $1000. Equally as punitive is the fact that if a plea is entered to this charge, be it an adjudication of guilt or a withhold of adjudication, the defendant will receive a 1 year driver’s license revocation by the department of motor vehicles.

It was the spectators of the racing that likely received the biggest surprise of the evening, however. Despite never getting behind a wheel of one of the cars or even so much as kicking a tire, any spectator in attendance could be and likely was given a civil traffic infraction with the prospect of receiving 3 points on their driving record. According to Florida Statute 316.191, a “Spectator” means any person who is knowingly present at and views a drag race, when such presence is the result of an affirmative choice to attend or participate in the race. For purposes of determining whether or not an individual is a spectator, finders of fact shall consider the relationship between the racer and the individual, evidence of gambling or betting on the outcome of the race, and any other factor that would tend to show knowing attendance or participation. In English, if you are there to watch the racing, you can get a ticket.

Fair? As a Tampa criminal lawyer, that’s not my call. Clearly Florida’s Legislature has made this recent “spectator” addition in a policy effort to prevent people from showing up at the drag strip. They likely are assuming if we can cut out the fans, then the players won’t bother playing the game. Will this policy effort work? Probably not, as any policy decision to dissuade American’s from doing something they are hell bent on doing, typically works about as well as creating a lead airplane.

So, if you find yourself in the precarious situation of being charged with racing, or merely being a spectator at a race, it would behoove you to investigate the prospect of hiring an attorney well versed in traffic law. Nobody wants a criminal record, and for damn sure nobody wants to lose their license for a year. Less serious, but still significant, it’s not a good idea to allow points to accumulate on your driving record either. If you get too many in too short a time, you can also watch your driving privilege race away. Further, once your insurance company catches wind of the points on your license you can bank on your buddies at State Farm or that Geico lizard raising those rates.

Bottom line, be careful if you choose to race or watch illegal racing. Officer friendly generally gets his man, and their pretty good at what they do around here. But, if you do get saddled with a race related charge, pick up the phone and give us a call. As experienced traffic and misdemeanor attorneys in Tampa, we might just save your license.

Buckle Up and Shut Up

June 23rd, 2009

Just when you thought it couldn’t be any easier for Police in Florida to detain automobile drivers in an effort to ferret out crime, guess what?  Starting June 30, 2009 Florida will put into effect a new law which will allow the Police to cite an individual for driving without a seatbelt on, even if no other violations are cited.  Prior to this law the Police could issue a civil citation for failure to wear a seat belt, but could not use this violation as reason to stop a motorist.  With the June 30th change, FL will join 27 other states in classifying this law as a “primary seatbelt law” allowing stops for no other reason but for a lack of a seatbelt being worn by a driver or passenger.

Prior to this law going into effect, an officer had to develop probable cause to pull one over for a civil traffic infraction.  This premise was laid out in Whren v. US, 517 U.S. 806 (1996), where the court said that if an officer has probable cause to stop a motorist for even a minor traffic violation, the stop is lawful and the evidence obtained afterwards as a result of the stop is admissible in court.  Thus, even if an officer may have suspected that a criminal activity was occurring, if an officer “could stop” the vehicle for a minor traffic infraction he would have just cause to stop that vehicle and potentially further investigate the suspected crime.  The Whren decision essentially eliminated any real likelihood of a traffic stop being invalid as being pretextual as now all an officer had to do was note that he “could stop” the motorist for a traffic infraction. 

In addition to making a traffic stop for probable cause for a traffic infraction, an officer could detain a motorist if there is a well founded and an articulated rationale that there is reasonable suspicion that criminal activity is afoot.  Thus, if an officer believes someone is committing a crime in a vehicle, can articulate his reason why he thinks so, and his suspicion is reasonable, he can detain a vehicle for investigatory purposes.   

So, what are the potential criminal implications with this new “primary seatbelt law?”  Basically, an officer can pull a motorist over he believes is committing a crime if all he has as a reason for a stop is that he notices that person not wearing a seatbelt.  While making contact with the driver he may detect certain things that lead him further to believe that criminal activity is going on and thus he may inquire.  Whereas before a motorist may dodge a bullet in that an officer may not be able to develop probable cause that a traffic infraction has occurred or reasonable suspicion that criminal activity is afoot, all the officer needs now is to notice a lack of a seatbelt and he has his lawful reason for a stop and avoids any reasonable possibility that his stop could be deemed pretextual.  In essence, deciding not to wear a seatbelt could act as probable cause to be detained.  This detainment could lead to more serious charges should the motorist be up to no good. 

Moral of the story you ask?  If you’ve had a little too much to drink or have just paid a visit to one of Pablo Escobar’s associates, buckle up and if pulled over, shut up.  Nothing you say to the officer is going to do you any favors.  The Police aren’t in the business of “helping you out” or “cutting you a break.”  If you run your yap, what you say WILL be used against you later down the road.  I’ve never met an officer or a prosecutor that didn’t love a defendant that was a chatterbox.  A simple click could very well be the difference in you making it home, or making it to one of Florida’s finest vacation destinations — with a DUI or other felony charge.  So, put the belt on.  It could very well save your life or even a trip to jail.

Over the last few days Bay area news channels have been inundated with news of the deaths of Largo man Michael Roberts, Tyler Newman, and Taylor Reiterman. (See the story on ABC Action News) Currently the deaths of the three aforementioned individuals and the injuries sustained by Sherry Hice are under investigation from Pinellas County authorities. Focus of several news outlets has been directed to four petitions for restraining order injunctions filed by both Sherry Hice and Tyler Newman on March 18, 2009, reference an alleged incident occurring on March 16, 2009 at 7983 Shadow Run Drive, a home owned by Michael Roberts.

Sherry Hice’s petition alleged that she and Michael Roberts lived together in the home and that Roberts was Hice’s “ex (Sic) boyfriend and roommate.” She alleged that an altercation occurred at Roberts’ home when he saw her on the internet and became angry with her and she further alleged emotional abuse. Hice alleged Roberts’ daughters came to the house and began attacking Hice and her son and eventually Michael Roberts pulled a gun from his back pocket, and ultimately made threats to Sherry Hice.

Subsequent to Sherry Hice’s petition for injunction for protection against domestic violence, Michael Roberts sought the counsel of Jeffrey M. Rich Tampa criminal defense attorneys at law to defend him on this matter. After Ms. Hice filed her petition she was granted the injunction on a temporary level until a final injunction hearing could be heard to determine whether the injunction would be granted on a permanent status. With her grant of the temporary injunction, Ms. Hice was able to maintain possession of the Shadow Run home, owned by Michael Roberts, and could thereby prevent him from staying at or entering his home without police presence. Ultimately, after a final hearing on Sherry Hice’s petition in addition to Tyler Newman’s petition, all petitions were denied.

So what does one have to do in order to get a permanent restraining order against another person? The first step in making this determination is to ask if there is a domestic relationship between the parties. Under Florida Statute 741.30(1)(e) a person can move for a Domestic Violence Injunction if they are a “family or household member.” Under Florida Statute 741.28, family or household member “means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.” This family or household member must also prove at the final hearing that they are a victim of domestic violence, which is defined under Florida Statue 741.28 as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member,” or they have reasonable cause to believe they are in imminent danger of becoming the victim of any act of domestic violence. Essentially, if you are classified as family or a household member under Florida law definition, you must only prove one act of violence at the final hearing in order to have the injunction granted. If you cannot show this by a preponderance of the evidence standard, the petition for injunction will rightfully be denied as the facts applied to law do not meet the necessary threshold.

So what if you are not a family or household member? Under Florida Statute 784.046 there is a restraining order for repeat violence, dating violence, and sexual violence. Using the Michael Roberts incident as an example, Tyler Newman would have had to have shown two acts of violence or stalking within 6 months of the filing of his petition for repeat violence injunction, assuming he could not develop the necessary standards for a petition for domestic violence. Under Florida Statute 784.046 an act of violence is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.” Though the eventual outcome of Mr. Newman’s efforts are a tragedy, at the hearing he could not produce the necessary evidence to warrant granting of his petition.

Permanent injunction hearings can be performed with or without the aid of a criminal attorney. The petitioner bears the burden of showing the necessary requirements by a preponderance of the evidence in order to get their temporary injunction granted on a permanent status. During a hearing the judge must hear testimony from the petitioner and then that petitioner can be cross examined by the respondent or respondent’s attorney, followed by testimony from the respondent and subsequent cross examination from the petitioner. Upon hearing all the testimony elicited at the hearing, the judge must determine whether the requirements of the respective injunction have been shown by a preponderance of the evidence. If the determination is that petitioner has shown cause for the injunction, it will be granted. If they have not, the judge is bound by law to deny the effort of the petitioner.

With respect to the Michael Roberts injunction, after thorough investigation by the Judge, testimony from the petitioner, and cross examination, there just wasn’t the requisite evidence for the Judge to grant Ms. Hice and Mr. Newman’s injunctions sought against Michael Roberts and Caroline Roberts. Unfortunately due to the nature of restraining orders, there is always a possibility of eventual tragedy. If you or a loved one are in need of an injunction against someone, or need an Tampa or Pinellas County criminal attorney to help you defend against a petition for injunction against you, it is imperative to hire an attorney well versed in restraining order procedure and law. Contact the criminal lawyers at The Law Office of Jeffrey M. Rich, serving the Tampa, St. Petersburg, Clearwater, and Polk County areas, today for your free consultation about your restraining order needs at 813-251-3330.

Are you a paper person?

March 19th, 2009

Every criminal defense attorney has had the client at one point in his career who they consider not to be a good candidate for probation.  The case comes in and unfortunately the evidence against the client is too overwhelming to consider going to trial.  “So and so” just isn’t a paper guy/gal,” says the criminal defense attorney to the Prosecutor.  Some defendants know full well that if they enter a plea and receive probation, it will only be a matter of time until they manage to violate their probation one way or another!  Whether it’s keeping away from an alleged victim, refraining from doing a drug of choice, keeping in touch with their probation officer, or just keeping out of trouble in general, some defendants cannot and will not accept a probation offer. 

 

Probation is a very restrictive means to keep folks in check.  9 times out of 10 there will be several restrictions keeping a person from doing certain things, and just general restrictions on one’s liberty.  Typically the alternative to accepting a probation offer is to take your case to trial or have your attorney negotiate with the state for a jail sentence.  Often times for folks who aren’t paper people (good candidate for probation), they are willing to accept a jail sentence in order to get finality with their case quicker than they would have had it, had they accepted a probation negotiation.  I have had repeat clients who may be recreational drug users who would most assuredly violate (typically based on prior hirings for violation of probation hearings) their probation, who if their case is not defensible, I recommend to take a minimal jail sentence.  Though the thought of jail is not appealing, serving 10 days in County and getting the case over with is a much better alternative than violating probation.  Depending on your charge, if you violate probation you could be sentenced up to the maximum allowable jail or Prison time if found guilty of willfully violating your probation.  This can lead to incarceration from anywhere to 60 days several years in Florida’s Prison system.  Additionally, once the VOP warrant is issued you could be picked up and whisked off to your county’s finest accommodations without warning.  The practical implications of this amount to one being arrested without time to prepare their family, pets, or home for their absence.  This can often be more devastating than the actual incarceration itself. 

 

What’s the point of this entry you might ask?  As a client you need to be honest with yourself and your attorney when considering a probation sentence.  Though probation is a less intense option than incarceration, if you know that you are a good candidate to violate probation, you should ask your attorney to negotiate a jail sentence so as to have both options available.  If your attorney is a straight shooter, and is familiar with you on a professional level, they will tell you whether or not you are a “paper person.”  Our duty as your Tampa, Clearwater or St. Petersburg defense attorney is to be frank with you and give you sound legal advice with respect to any implication your case may have.  Though it may not always be what you want to hear as the client, it’s better to make a sound decision at the outset than to regret it later.

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