Felony Crimes

How to Avoid Sex Offender Registration in Your False Imprisonment Case

Published on: January 31, 2021 | by Roelke Law, P.A.

If you’ve been arrested for false imprisonment in Florida you may become automatically registered as a sex offender at the conclusion of your case depending on the facts, even if registration was not part of your plea agreement or ever discussed in court. A case from the First District Court of Appeal demonstrates how this can happen.

In Brinson v. State, 291 So.3d 620 (Fla. 1^st DCA 2020), Mr. Brinson was charged with lewd or lascivious battery, aggravated battery, and false imprisonment. As a factual basis for the charges, the Information alleged Brinson “did unlawfully engage in sexual activity with S.T., a person 12 years of age or older but less than 16 years of age, by vaginal penetration; did unlawfully commit a battery upon S.T. and by slamming her into a parked vehicle and choking her did intentionally or knowingly cause great bodily harm; did unlawfully forcibly, by threat, or secretly confine, abduct, imprison, or restrain another person, S.T. without lawful authority and against her will.”

Brinson pleaded no contest to aggravated battery and false imprisonment. As part of the plea agreement, the State dismissed the lewd or lascivious battery charge. Sex offender registration was not required by the plea agreement. Continue reading

How to Avoid a Felony Conviction and Prison In Your Grand Theft Case

Published on: January 13, 2021 | by Roelke Law, P.A.

Have you been charged with the crime of grand theft of electronics or other depreciating assets? If so, you may have grounds to have your charges reduced from a felony to a misdemeanor, thereby avoiding a felony conviction, prison and/or substantial jail time. The recent decision from the Florida First District of Appeal in Gallion v. State shows how.

There the State alleged Gallion had stolen two televisions and a stereo from the victim. At trial, the victim provided a receipt for one of the televisions reflecting it had been purchased for $532.86 the year before Gallion stole it. The victim provided an additional receipt showing she had purchased the stolen stereo for $699.99. There was no evidence offered regarding the value of the other television. Except for the two receipts, there was no testimony regarding the condition of the items at the time they were stolen, or how much they may have depreciated in value after they were purchased. Gallion was convicted of grand theft. He then appealed.

The appellate court first stated that in a grand theft case, the State must prove the value of the stolen property is greater than $300 pursuant to Florida Statute § 812.014(2)(c)1. (The threshold value for grand theft has since been raised to $750.) “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” Id. at § 812.012(10)(a)1. Further, citing to its prior decision in Carter v. State, the court observed “[t]he value of tangible personal property may be proved with evidence of the original purchase price, together with the percentage or amount of depreciation since the property’s purchase, its manner of use, and its condition and quality.” Critically, the court further noted under Carter the State’s evidence is insufficient where it “elicit[s] no testimony regarding the condition and quality of any of the items taken or their depreciation.” Continue reading

How to Get Your Concealed Firearm Case Dropped

Published on: September 11, 2020 | by Roelke Law, P.A.

Have you been arrested for carrying a concealed firearm? If so, you may be able to have your case dismissed through a new diversionary program recently created by the State Attorney for the Fourth Judicial Circuit.

Diversionary programs (also known as pre-trial intervention) are primarily designed for first-time offenders who meet specific criteria. Only the State Attorney can admit you into a diversionary program. A judge or your defense lawyer cannot.

Once accepted into a diversionary program you must sign a deferred prosecution agreement which contains specific requirements such as community service hours, restitution, and/or counseling. Upon successful completion of the program, your charges are dismissed. Any failure timely to complete the conditions of the program results in your case proceeding as it would have prior to your participation in the program. Continue reading

Merely Being Near Drugs May Not Make You Liable for Possession

Published on: June 28, 2020 | by Roelke Law, P.A.

Have you been arrested for possessing or trafficking drugs? Were the drugs found in a home or other place you do not own? If so, you may not be criminally liable for those drugs, as discussed in a recent court decision.

In Dion Johnson v. State of Florida, Mr. Johnson was visiting someone else’s house when SWAT team members executed a search warrant. Many people frequented the house and there were others present at the time of Mr. Johnson’s visit.

Mr. Johnson was in the living room when the officers appeared. They found drugs in the bedrooms, including what was determined to be substituted cathinones, drugs related to amphetamines. The only item found in the house with any direct connection to Mr. Johnson was a cell phone. The one photograph found on the phone showed approximately six baggies on top of the kitchen counter in the house. The baggies contained unidentified items, but they were tied similarly to the baggies containing the drugs found in the bedrooms. The photograph was taken two days before the search warrant was executed. Continue reading

Carrying A Concealed Weapon Is Now More Difficult For The State To Prove

Published on: June 15, 2020 | by Roelke Law, P.A.

The First District Court of Appeal just made it more difficult for the State to prove you committed the crime of carrying a concealed weapon. In Stanley John Kilburn v. State of Florida, Mr. Kilburn was charged with carrying a concealed weapon. Kilburn filed a motion to suppress, contending he was illegally searched. The trial court denied his motion. Kilburn then pleaded no contest to the charge while preserving his right to appeal the trial court’s denial of his motion to suppress.

At the hearing on Kilburn’s motion to suppress, Deputy Beach of the Escambia County Sheriff’s Office testified when was patrolling a hotel parking lot one morning, he noticed a pickup truck parked with the driver’s door open. He also noticed the truck had a cloudy license plate cover.

Deputy Beach parked and approached the truck to discuss the license plate cover with Kilburn and to give him a verbal warning about the license plate cover. Deputy Beach testified he “was just going to have a talk, it wasn’t — it really wasn’t even investigatory at that point.” Continue reading

Early Release and ROR Bonds Available to Avoid Coronavirus Exposure in Jail

Published on: March 24, 2020 | by Roelke Law, P.A.

Is someone you know or love currently in a Jacksonville area jail? If so, they may be eligible for immediate resolution of their case and release from the jail due to the coronavirus. And, even if their case can’t quickly be resolved, they may be eligible for an ROR bond or other nonmonetary conditions of release so they can be immediately released from jail.

On March 20, 2020, the Office of the State Attorney for the Fourth Judicial Circuit, encompassing Nassau, Clay and Duval counties issued a memorandum acknowledging its responsibility to assist with containing the spread of the coronavirus to its staff, corrections officers, civilian jail employees, court staff and the overall inmate jail population in those counties. The State Attorney recognized “[e]very individual, business, and public agency has a duty to help flatten the curve of this pandemic’s growth. Criminal justice agencies are no exception.” Critically, the State Attorney announced to limit the spread of the virus it was temporarily implementing strategies “[t]o safely reduce the jail population, which from a public health perspective, includes some of the most at-risk individuals in our community.”

Therefore, effective immediately, and continuing for an as yet unspecified time, the State Attorney has implemented the following new policies and procedures in criminal cases pending in the Fourth Judicial Circuit. First, the State has implemented an expedited case resolution procedure for inmates currently serving their sentence in jail for non-violent misdemeanors or felonies. For those inmates, a review will be conducted to determine whether they present a danger to the community. If they do not, then absent objection of any victims, those inmates are eligible for a time served or probation sentence and immediate release from the jail. Continue reading

Not All of Your Bad Acts Can be Used Against You

Published on: November 27, 2019 | by Roelke Law, P.A.

A recent decision by the First District Court of Appeal makes it clear the prosecutor generally cannot use other bad acts you may have committed to prove you did the act for which you are currently being prosecuted.

In Stephen Trahan v. State, while parked in his driveway the victim’s truck was broken into, ransacked and his backpack stolen. A few days later, the victim happened to see Mr. Trahan walking through his neighborhood with what appeared to be his stolen backpack. He confronted Trahan and demanded he hand over the backpack. The police were summoned, and a subsequent investigation ultimately resulted in Trahan’s arrest on burglary charges.

As the case progressed, the victim’s ownership of the backpack became the dispositive factual issue. If proven, it would be the link between Trahan and the vehicle burglary. During the trial, the State introduced evidence that when Trahan was arrested, a checkbook belonging to a third party with no connection to the burglary was found inside the backpack. Trahan’s lawyer objected to the admission of this evidence. The trial court nonetheless admitted it, and Trahan was found guilty.

Judge Says Police Claiming to Smell Marijuana Are Liars

Published on: October 7, 2019 | by Roelke Law, P.A.

Did the police justify their search of your vehicle by claiming they detected the odor of marijuana? If they did and there was in fact no marijuana smoked or recently in your car, your lawyer may be able to question their credibility based on a New York judge’s recent comments reported in The New York Times.

As in Florida, courts in New York have long held an officer may effect a warrantless search of a car and its occupants if they smell marijuana coming from the vehicle. But in late July of this year, a judge in the Bronx said officers base vehicle searches on the smell of marijuana too often to be believed. And, the judge has urged her fellow jurists across the state to stop letting police officers get away with lying about smelling marijuana as an excuse to search a vehicle.

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge April Newbauer wrote in a decision in a case involving a gun the police discovered in car they had searched after claiming to have smelled marijuana. She added, “So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.” Continue reading

Recordings Made Without Your Permission Sometimes May Be Used Against You

Published on: September 15, 2019 | by Roelke Law, P.A.

Many people believe if someone records them without their permission, the recording cannot be used in court. A recent decision by the First District Court of Appeal, however, shows that is not always the case.

Corey Smiley was invited to the home of the women with whom he shared a two year old child. While there Smiley and the woman got into an argument. The woman recorded the argument on her cell phone. The video depicted Smiley questioning the woman about the video and repeatedly trying to grab her phone. It further showed Smiley shoving the woman and threatening to shoot her and their child. The woman asked Smiley to leave her home several times. The woman claimed after the recording ended Smiley brandished a gun. She then fled with their child.

Smiley was arrested and charged with aggravated assault by threat with a deadly weapon and domestic violence battery. Smiley subsequently sought to exclude the cell-phone video on the ground it had been illegally recorded without his consent. The trial court denied his request and admitted the video at his trial. Smiley was convicted of the charges. Continue reading

New Hemp Law Makes it Harder to Prosecute Florida Marijuana Cases

Published on: August 25, 2019 | by Roelke Law, P.A.

On June 25, 2019 Florida Governor Ron DeSantis signed Florida Senate Bill 1020, regulating the production and distribution of hemp and hemp extracts in Florida, including the increasingly popular hemp derivative, cannabidiol (CBD). The bill makes Florida the latest state to enact legislation to legalize and regulate its hemp industry. The bill mirrors similar action at the federal level late last year when President Trump signed the Farm Bill removing hemp from the list of controlled substances, making it legal to grow and sell hemp under federal law.

Hemp comes from the same cannabis plant that produces marijuana. Marijuana, however has much higher levels of tetrahydrocannabinol (THC), the chemical in the plant that is psychoactive and produces the hallmark “high” or euphoria. Both hemp and marijuana contain CBD, a medical compound that has health benefits but is non-euphoric.

Under the Farm Bill, hemp is legal provided doesn’t contain more than 0.3 percent THC. If hemp contains more than 0.3 percent THC, it is still a federally banned controlled substance. Similarly, Senate Bill 1020 excludes hemp from the definition of cannabis provided the THC concentration does not exceed 0.3 percent on a dry weight basis.