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Evidence and procedural issues can make or break a Florida criminal case. One protection that anyone charged with a sex or other crime in Florida has is that the judge and jury in your case are generally not supposed to consider “other bad acts” when determining whether you have committed the crime with which you have been charged. There are a number of exceptions to this general rule, however, including some related to the sentencing phase of a trial. Florida’s First District Court of Appeal recently considered one of those exceptions in a child pornography case.

hands on keyboardA defendant was charged with 10 separate counts of possession of child pornography, a second-degree felony. He eventually pleaded “no contest” to the charges and was convicted. He was sentenced to 15 years in prison and another 30 years of sex offender probation. Although the sentence was within the bounds set by state law, he later appealed the decision. He argued that the trial judge improperly took into account unsubstantiated claims that he was interested in a sexual relationship with a child. Specifically, he said a police officer testified at trial that the defendant said in an online chat room that he would like to have sex with a 14-year-old boy. He argued that the judge wrongly held that evidence against him in sentencing him on the child pornography charges.

Affirming the decision on appeal, the court said the judge acted properly in imposing the sentence. “Although a sentence within statutory limits ‘is generally unassailable on appeal,’ there is an exception when a trial court bases its sentence on impermissible factors, like unsubstantiated allegations of other crimes,” the court explained. In this case, however, the court said there was no reason to believe that the judge based the sentence even partly on the defendant’s statements about wanting to have sex with a minor. The court said the defendant was not charged with any crime related to that comment and was convicted solely on the evidence showing that he had possessed child pornography.

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Florida law requires sex offenders deemed sexual predators to keep local law enforcement closely apprised of their whereabouts. It also imposes strict penalties for those who fail to inform the cops within two days of moving. But, as Florida’s Second District Court of Appeal recently pointed out, prosecutors who want to charge a person with breaking that law have to specify what it is that the person did wrong.

boxes and tapeA defendant was arrested and charged with failure to register as a sex offender in Pinellas County in 2014. Although he had registered with local law enforcement, prosecutors said he didn’t properly update his address. He had listed his permanent address as his girlfriend’s home in St. Petersburg. After the two were in a car accident in April 2014, however, he started staying there only once a week. At least that’s what the girlfriend told the cops when they came looking for him in June of the same year. When they caught up with the defendant, he told the cops that he was now staying primarily at a different address in St. Petersburg with his new girlfriend.

The defendant was convicted and sentenced to nearly six years in jail, despite telling the judge at trial that he was still staying at the first girlfriend’s house. He later appealed the decision. He argued that prosecutors failed to properly file the criminal information, the legal document formally charging him with the crime. He said that document left out essential elements of the crime, which meant that he wasn’t adequately informed about the charge against him prior to trial. The Second District agreed.

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Victim and other witness testimony can mean the difference between a conviction and an acquittal or not guilty verdict in Florida sex crime cases. The state’s First District Court of Appeals recently took on a unique case that offers one example of the kinds of witness testimony issues that can come up.

judge's gavelThe defendant was charged with three sex crimes in Florida:  lewd or lascivious molestation, lewd or lascivious conduct, and lewd or lascivious exhibition. In the run up to the trial on those charges, a state prosecutor asked the judge for permission to have his eight-year-old alleged victim testify while seated directly in front of the jury. Instead of physically taking the witness stand in the courtroom, the prosecutor wanted to place two chairs in front of the jury box and have them facing the jury.

The defendant’s lawyer objected to the request. He said the victim should at least have to take the stand while being cross-examined by the attorney. The judge ultimately sided with the prosecutors but said the defendant’s lawyer could sit at his table while conducting the cross-examination. The defendant was eventually convicted on all three charges.

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Florida sex crime cases often come with questions about the mental stability and capacity of the person being charged. That’s why judges are regularly asked to determine whether a person charged with a sex crime is competent to stand trial. As the state’s Second District Court of Appeal recently explained, there are certain requirements for judges considering competency. They include holding a hearing and issuing a written order. If a judge doesn’t meet these requirements, a person convicted of a crime may have grounds for an appeal.

gavelA defendant was charged with sexual battery on a person less than 12 years old. Prior to his trial on the charge, his lawyer convinced the judge to appoint a panel of experts to determine his mental competency to stand trial. He was eventually evaluated by a psychiatrist and a psychologist, both of whom concluded that he was competent to go before the court on the sex crime charge. The judge held a very brief competency hearing after receiving the reports. He referenced the reports and set the case for trial. The defendant, through his lawyer, later negotiated a plea deal, as a result of which he pleaded guilty to the lesser crime of lewd or lascivious conduct.

The defendant later appealed his conviction, however. He argued that the trial judge should not have accepted his guilty plea without first holding a more extensive competency hearing. The Second District agreed.

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If you are convicted of a Florida sex crime, you may have the opportunity to avoid actual jail time by asking for probation. This form of supervised release requires a person to check in regularly with a probation officer and comply with other terms. In sex offense cases, those restrictions may include limits on the person’s use of cell phones and the internet. As a recent case out of Florida’s Second District Court of Appeal makes clear, failing to live up to those requirements could land you behind bars.typewriter

A defendant was sentenced to five years of probation after he was convicted of using a computer to seduce a minor and attempted lewd and lascivious battery on a child. As a condition of his probation, a judge ordered that he “could not have access to the internet without a treatment safety plan in place.” His probation officer also told him that he could not own a cell phone that could access the internet. He went to live in a facility of sex offenders. A court revoked his probation and sentenced him to nearly six years behind bars after facility operators found that he was carrying a Samsung smartphone.

The defendant later appealed the decision, arguing that prosecutors never proved that he actually used the phone to access the internet. The Second District agreed. The appeals court noted that prosecutors had called only one witness – the defendant’s probation officer – during the hearing in which they asked to revoke his supervised release. The probation officer admitted on the witness stand that she had no evidence that the defendant actually used the phone to access the web. The defendant denied using the phone for internet purposes in his own testimony.

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Many people have heard of entrapment and may have a vague idea of what it means. It’s important to understand, however, that courts have a very specific definition of the term. Entrapment is a legal defense that refers to situations in which police officers induce a person who would not otherwise commit a crime into committing the crime. Florida’s First District Court of Appeal recently explained how raising the defense works specifically in sex crime cases.

hand on keyboardThe defendant was charged with several crimes generally related to attempted sex with a minor in November 2013. The charges stemmed from email conversations that he had with an undercover police officer posing as the parent of a 12-year-old girl. He responded to a Craigslist post in which the officer said she was “looking for just the right mature male to help with a family problem.” The undercover officer told the defendant she wanted a man to “be with” her daughter for religious purposes. He asked for a photo of the girl, whom he was told was 12 years old.

In a series of mails, text messages, and phone calls that followed, he made clear that his understanding was that he would have sex with the girl, according to the court. He also described the sexual acts he would perform and arranged a meeting at a gas station outside Tallahassee. He was arrested when he arrived at the meeting spot. He claimed at trial that he had no intention of actually having sex with the girl but instead wanted to help her. He explained that he had been sexually abused as a child. He was convicted at the close of trial.

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Jury instructions are a key part of any Florida sexual battery case. They can mean the difference between a conviction and a not guilty decision. In a recent case out of the Fifth District Court of Appeals involving an attempted sexual battery in Central Florida, the court explained how improper instructions can create lots of confusion.

gavelThe defendant was charged with attempted sexual battery on a physically helpless person, stemming from an incident in which he allegedly attempted to have sex with a female coworker who had passed out from drinking. He was at a bar with colleagues when the victim passed out in a grassy area outside the bar, according to the court. The defendant and others took the woman to another coworker’s van and returned to the bar. He later went back to the van, claiming that he was going to check on the woman. When the van’s owner went to the vehicle, however, she allegedly found the defendant with his pants down, standing over the victim. The victim’s pants and underwear were down.

At trial, the jury heard taped phone conversations between the defendant and the victim. The defendant, who did not testify at trial, said in those conversations that he “attempted and probably did try to have sex with” the victim, according to the court. He was convicted. He later appealed the decision, arguing that the jury received improper instructions at the close of trial. Specifically, the jury was instructed that he was charged with attempt to commit attempted sexual battery. That crime doesn’t exist. As a result, the jury was wrongly told that he could be convicted if he attempted to attempt sexual battery on the victim.

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If you’ve ever watched Law & Order or another police procedural television show, you might be familiar with a person’s right to remain silent during an arrest. In the real world, “Miranda” rights extend beyond simply not talking and apply to a wide range of encounters with a police officer. In a recent case involving alleged sex crimes in Pinellas County, Florida’s Second District Court of Appeals explained that – as they say on TV – a person who isn’t properly apprised of his or her rights can’t have any statements they make to the cops used against them in court. The bottom line is that a person charged with or suspected of a crime should not talk to the police without a seasoned criminal defense attorney by his or her side.

m1133615-300x194The defendant was arrested in Pinellas County and charged with sexual battery after his former stepdaughter told her father that she’d engaged in sexual activity with him when she was nine years old. He was brought to a local police station for an interview. The officer conducting the interview told the defendant that he was going to ask him some questions. The officer also asked him if he understood that he had the right to remain silent, and then he followed up with individual questions to ensure that he understood that anything he said could be used against him, that he had a right to a lawyer, that a lawyer would be appointed if he couldn’t afford representation, and that he could change his mind and exercise any of those rights at any time in the interview. The defendant answered “yes” to each question. He also signed a form explaining those rights.

Before starting the interview, however, the defendant made an offhanded comment to the officer that he “can’t afford a lawyer anyhow.” He went on to make several incriminating statements during the course of the interview. Those statements were entered into the record during his trial, despite his objections. He was convicted and sentenced to life in prison.

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Florida and federal laws generally require a person charged with a sex crime to register as a Florida sex offender with the local sheriff’s office. A person who fails to do so faces significant criminal penalties, including jail time. Those penalties increase for people who commit another sex crime during the time that they should have been registered. A recent case out of the U.S. Court of Appeals for the Eleventh Circuit is a good example of how judges look at evidence of those crimes.

police lightsThe defendant was staying at a friend’s home in Central Florida in 2012 when the woman woke in the middle of the night and found him standing at the front of her 12-year-old daughter’s bedroom. The woman went into the bedroom and noticed that her daughter was in a state of distress. The daughter told her mother that the defendant had groped her. The police arrived on the scene and arrested him. He was originally charged with lewd or lascivious molestation and later convicted of felony battery, a lesser offense. He also later pleaded guilty to failing to register as a sex offender (based on a previous conviction) and was sentenced to an additional stint in prison of up to 57 months.

The defendant later appealed the sentence, arguing that the judge wrongly increased his time behind bars after finding that he committed a sex offense against a minor during the time he was supposed to be registered as an offender. He argued specifically that the finding was based on inadmissible hearsay, which refers to statements that are offered at trial by a person other than the one who made the statement and are offered in order to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible, but there are a number of exceptions. That includes the sentencing stage, at which hearsay can be admitted as evidence as long as it is found to be reliable.

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Florida law makes it a crime for a person with HIV to knowingly have sex with another person without telling their partner about the infection. In a recent Florida sex crime decision, the state’s Supreme Court made clear that the law applies to both heterosexual and homosexual activity.

judge's gavelThe defendant was charged in 2011 with violating a Florida law that makes it a crime for a person with an immunodeficiency virus that can be transmitted by sexual intercourse “to have sexual intercourse with any other person” without telling the person about the disease. The defendant, who is HIV positive, allegedly forged a lab report to indicate that he was not infected with the disease. He showed the forged report to another man with whom he was in a relationship before the men engaged in oral and anal intercourse, according to the court.

A trial judge dismissed the charge, agreeing with the defendant’s lawyer that the state law covers only “the penetration of the female sex organ by the male sex organ.” The judge cited a 2011 decision from the Second District Court of Appeal, which sits in Lakeland. That court reached the same conclusion. On appeal, however, the Third District in Miami disagreed. The appeals court said the term “sexual intercourse” includes oral and anal sex.

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