Jeffrey Rich Blog

Posts tagged ‘tampa criminal defense attorney’

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:


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.

Fast? And the Furious Cop!

Looks like Vin and Paul are at it again in another version of “Fast and Furious!”  Vin is back in the classic lumbering muscle car, while Paul chooses the highly modified import that sounds like a lawn mower.  Admittedly, and embarrassingly, I am a fan of the “Fast and the Furious” series when Vin Diesel and Paul Walker are behind the wheel.  Without a doubt, just as they did last go around, this movie will inspire many to modify their Honda Civics and soup up their Subarus and join the nearest street racing club.  Also, without a doubt, folks will be eager to test out their modifications to their cars and motorcycles, only to have a chance encounter with Officer Friendly who is not so appreciative of their new super deluxe exhaust install…  So, while Mr. Diesel and Pauly Walnuts may be racing, ramping, and popping wheelies in their rides without consequence, what happens when you or I get in our sensible family sedan and run em’ down Kennedy? 

If we’re lucky, and we haven’t made officer Friendly too angry (or he thinks it’s impossible that our car could actually be capable of “racing”) he will either cite us under Florida Statute 316.1925 for Careless Driving or 316.192 for Reckless Driving.  Careless driving is considered a civil traffic citation, not requiring a court appearance.  According to the Statute, one drives carelessly when fail to operate their car on the streets or highways of Florida in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb, or property of any person.  Receiving a Careless Driving citation in a “racing” situation is likely your best case scenario.

If Officer Friendly is mad, but not completely blown, he may cite you for Reckless Driving.  Reckless Driving is when you are driving any vehicle in a willful or wanton disregard for the safety of persons or property.  Reckless, unlike Careless Driving is considered a misdemeanor, punishable by up to 90 days in jail and a $500 fine for the first conviction and up to 6 months in jail and up to a $1000 fine for a subsequent violation.  Does this sound good?  No.  It’s a crime, but it is much the lesser of the two evils when comparing Reckless Driving and Racing on the Highway crimes.

If you’re popping wheelies, and ramping your car down Kennedy with your competition close by, you’re most assuredly going to either be arrested for Racing or at least issued a Notice to Appear to answer for your fast and furious behavior.  The officer will cite you for Racing if he witnesses you, “drive any motor vehicle, including any motorcycle, in any race, speed competition or contest, drag race or acceleration contest, test of physical endurance, or exhibition of speed or acceleration or for the purpose of making a speed record on any highway, roadway, or parking lot; in any manner participate in, coordinate, facilitate, or collect moneys at any location for any such race, competition, contest, test, or exhibition; Knowingly ride as a passenger in any such race, competition, contest, test, or exhibition; or purposefully cause the movement of traffic to slow or stop for any such race, competition, contest, test, or exhibition.”  Racing is considered a first degree misdemeanor punishable by up to 11 months 29 days in jail.  So, realistically what makes Racing a harsher offense than Reckless Driving?  Section 316.191(2)(a) commands the department of motor vehicles to revoke your driver’s license for one year if convicted.  Even if one gets a withhold of adjudication their driver’s license will be suspended.  In my experience, the driver’s license suspension is the hang up with former clients.

So, what do you do if you get caught and charged with Racing?  Given the fact that Racing is a first degree misdemeanor with possible jail time, and considering the driver’s license suspension, it is of utmost importance to hire a traffic attorney who understands how to defend a Racing charge.

Within the last 2 months our Tampa Criminal Lawyers have represented several clients charged with Racing.  Of the clients who’s cases have been closed, all were reduced to Reckless Driving, thus avoiding a driver’s license suspension, and none serving any jail time.  Currently there is a District Court of Appeal conflict with regard to the Racing Statute.  The 4th DCA in State v. Wells, 965 So.2d 834 (Fla. 4th DCA 2008), found the current Racing statute to be vague both on its face and as applied to Wells.  Further Wells found it necessary to include an element of competition in its definition of race.  However, the 1st DCA in State v. Reaves, found the current Racing Statute to be Constitutional.  What in the heck does this mean to you?  Basically right now Florida’s trial courts can choose which DCA opinion to follow.  If they adopt the Wells holding, they will dismiss a Racing charge if your attorney files a motion to dismiss.  The state can still potentially file a reckless driving charge, but again, this is the better of the two evils.  If they follow Reaves, your row will be much more difficult to hoe as a motion to dismiss will not be granted, citing Reaves.

Eventually Florida’s Supreme Court will settle the conflict between the 1st and 4th District Courts of Appeal and potentially a new version of the Racing Statute will be put in place.  It is imperative that you contact a Tampa misdmeanor attorney to see how the courts in your jurisdiction are interpreting the Racing statute.  If you are in a Wells following DCA, it may be to your benefit to resolve your case soon.  It is possible that the Supreme Court may find the current Racing statute to be constitutional, thereby weakening your chances for a charge reduction to Reckless Driving.

If you’ve been charged with Racing on the Highway, it would benefit you greatly to contact an Tampa traffic lawyer capable and experienced with Racing cases.  Losing your full driving privilege could be potentially devastating to your livelihood, and could have a great detrimental effect on your family and friends.  If you want to fight your Racing charge contact our office immediately at 813-251-3330 for a free consultation.

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