March 9, 2023

Do Judges Follow the Law In Sex Crime Cases?

This topic will consider whether judges in the State of Florida will follow the law involving criminal sex charges that society considers heinous. Remember, each case involving a sex charge is different and must be reviewed on its own merit. The principal question here is whether judges differentiate between the admittance of evidence in a serious sex charge versus a lesser non-sex charge. The simple answer is, “they should.” However, an experienced attorney who handles sex charges will tell you that many judges will look for any reason to admit evidence and hold the defendant accountable. So, what does this mean? The clearest way to explain this is from a recent hearing in Orange County, Florida in State v. Green (2018-CF-16350-A-O).

The main issue in this case revolved around whether consent given by a third party would allow law enforcement to seize the property of the defendant. In simple terms, the police knock at your door, and someone else who lives at the residence allows the police to search your things. What was ultimately found was the basis for very serious charges to be brought and should that evidence be suppressed, then the State would have no ability to prosecute further. That’s a tall order for any judge, but if the defense presents its evidence properly, the facts are established without question, and the law is outlined thoroughly, then the Court must and will follow the law.

Attorney Anton Nace represented Mr. Green, who was charged with multiple counts of unlawful possession of materials depicting a sexual performance by a child and sexual battery on a child under 12. The police seized evidence at his residence, and this was allowed by a resident of his home when they allowed the police to enter, search, and retrieve personal property belonging to Mr. Green. Importantly, the third party was asked by the officer to retrieve any electronics Mr. Green owned and bring them to the officer executing the search. So, what is so tricky with this issue? Standing. Standing is an issue often overlooked by other attorneys but here, it became a very important detail that allowed Mr. Green to prevail on the motion to suppress. In order to raise a 4^th Amendment, claim of an unreasonable search and seizure, a defendant must have standing. That is, the defendant must demonstrate a right to privacy in the particular item searched and seized.

January 24, 2023

What is the standard of proof the State Attorney must prove at a violation of probation hearing to convict me?

by Adams, Luka, & Benton

Initially, an arrest that results in formal charges by the State attorney must be proved “beyond a reasonable doubt” in order to obtain a conviction. Often, convictions result in a sentence of probation which requires a person to be supervised for a specific period of time and meet additional conditions that can include but are not limited to community service, monthly check-ins, fees, and drug tests. Unfortunately, when a defendant does not comply with their probation terms, a violation of probation also known as VOP is entered against the defendant. When a violation of probation has occurred, the State must meet a lower burden of proof for conviction known as “by a preponderance of the evidence.”

Florida Statute 948.06 provides the laws concerning violations of probation. If you are alleged to have violated a condition of probation, the following generally occurs:

First, your probation officer will submit an affidavit of violation to the court. The affidavit is a sworn statement detailing the willful and substantial ways in which a condition of probation has been violated. A violation can occur in a “material respect” or as a “technical violation.” A material respect violation occurs when a person has been arrested for a new felony, misdemeanor, or criminal traffic offense. Technical violations can include failed drug or alcohol tests, missed appointments with your probation officer, failure to pay fees, and failure to report address or employment changes. After the affidavit of violation is filed, the court will then review it, determine whether reasonable grounds exist, and issue a warrant for arrest or a notice to appear in court with a specified date. At times, a defendant can be placed on a “no bond” status, which will result in the defendant remaining in jail until a bond can be requested. The defendant will afterward be arraigned and scheduled for Pre-Trial hearings. Here, the State will be required to prove a willful and substantial violation.

June 22, 2022

Understanding how sex crimes are investigated can result in potential charges and penalties

by Adams, Luka, & Benton

Sexual crimes in the state of Florida are very serious and must be thoroughly investigated by your attorney either prior to being charged or arrested or after you are charged or arrested. The first question we look at is what the State Attorney’s process is in deciding who gets investigated for a sex crime and who ultimately gets charged or arrested.

The short answer is the state attorney will charge someone with a sex crime from the evidence or facts they believe to be true at the time. An investigation can start when a citizen calls or files a complaint against a person who may have committed a sex crime. An example would be an adult inappropriately touching a minor and another person saw this and called the police. In this scenario, the police will immediately contact the potential wrongdoer either by phone or in person. Another example would be photographs of illegal sexual activity that were discovered and someone turned them over to law enforcement.

In either scenario, at this point, if you agree to speak with law enforcement, your testimony will be used against you, and you can be misinterpreted or tricked into making a confession. Once this is done it is very difficult to undo it. It is more beneficial for the accused to have an attorney to act as a go-between the accused and law enforcement. Your attorney may be able to relay information through an investigation to the State Attorney with the goal of not being charged at all or receiving a lesser charge.

May 27, 2022

My High Schooler Received a Summons for Underage Drinking . . . What Happens Next?

by Adams, Luka, & Benton

What is Underage Drinking?

Many young adults and students drink alcohol before the legal age of 21. It could be at the sandbar for a family outing, a high school party when a friend’s parents are out of town, or even a glass of wine at dinner.

A 22-year-old sibling may take her younger brother to a college football tailgate and hand him a Truly hard seltzer or a beer. The police may be doing a lap around the tents and asking to see the younger brother’s ID. Suddenly, the 17-year-old with the hard seltzer in his hand is given a summons to appear in court on the charge of underage drinking.

January 18, 2022

What approaches can be taken in juvenile court to protect your child’s future?

by Adams, Luka, & Benton

Juveniles make mistakes. Parents know this, but the criminal justice system knows this too. If a juvenile makes a mistake that breaks the law, the juvenile justice system will step in and suggest legal decisions for that juvenile’s future. While it is scary for the juvenile to be in trouble with the law, hiring a criminal defense attorney who has knowledge of the juvenile system is imperative to help fight for the juvenile’s best interests and protect their future. A juvenile criminal defense attorney will review the evidence in the juvenile’s case to determine if the State Attorney has enough evidence to prosecute successfully.

After being arrested for a crime, the juvenile will be taken to a Juvenile Assessment Center per the requirements of the Department of Juvenile Justice. There, the juvenile will discuss the next options and the juvenile will undergo an assessment in which the Juvenile Probation Officer will report the findings to the State Attorney. The minor may have a parent present and the police must make a reasonable attempt to contact the parents. However, be advised a law enforcement officer can question a juvenile without a parent present, so long as a reasonable attempt was made to contact the parents. This information can be used against the juvenile.

To fight for the defense, the juvenile, family, and defense attorney would work together to plan and establish a case for the juvenile. Here, the defense attorney can talk to teachers, employers, and other adults in the juvenile’s life; get attendance records, get grade reports, etc., to prove a basis for alternatives to a detention center. These alternatives, called diversion programs, will be an option for the State Attorney to consider with the evidence provided.

Orlando Criminal Lawyer Blog