Criminal Law Blog & News

A DUI deferred prosecution program or other DUI diversion alternative does not exist in many jurisdictions in Florida.  Fortunately, in Gainesville, Florida, and the Eighth Judicial Circuit of Florida (which includes Alachua, Baker, Bradford, Gilchrist, Levy and Union counties) there is DUI deferred prosecution alternative available for some individuals charged with Driving Under the Influence.  This article will focus on the DUI deferred prosecution program as it currently exists in the Gainesville, Florida area.  It should be understood that the availability and requirements of a DUI diversion alternative may vary greatly between each of Florida’s twenty judicial circuits.   For detailed information about DUI prosecutions in other Florida circuits, one should contact an experienced criminal defense lawyer whose practice is focused in the judicial circuit where the DUI is alleged to have occurred.

On February 5, 2013 , the First District Court of Appeals reversed convictions for felony charges of Burglary and Aggravated Assault and remanded the case back to the trial court to be retried as a result of the trial court judge improperly excusing a prospective juror based on their engagement status to a public defender.

A deferred prosecution agreement is a contract between a person charged with a criminal act and the prosecuting authority, which diverts the case out of the formal criminal justice system.  If the accused individual complies with the conditions of the agreement, the criminal charges are usually dismissed at the end of the deferment period. This article will focus on deferred prosecution agreements in Florida’s Eighth Judicial Circuit, which includes Gainesville, Florida, and Alachua, Baker, Bradford, Gilchrist, Levy and Union counties.  It should be understood that the availability and requirements of a deferred prosecution agreement may vary greatly between each of Florida’s twenty judicial circuits.  For detailed information about deferred prosecution agreements in other Florida circuits, one should contact an experienced criminal defense attorney whose practice is focused in that particular judicial circuit.  A map of Florida’s judicial circuits can be found here.

On Friday , January 25, 2013, the Fifth District Court of Appeals in Florida issued an opinion vacating two of the four convictions previously imposed against Casey Anthony for the crimes of furnishing false information to law enforcement during an investigation.  The court noted that both the United States Constitution and the Florida Constitution contain “double jeopardy” clauses prohibiting multiple prosecutions , convictions, and punishments for the same criminal offense. 

Florida’s Fourth District Court of Appeals has recently asked the Florida Supreme Court to answer the following as a question of great public importance:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,”would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

I've been practicing criminal law in Florida for more than 25 years and have represented hundreds of individuals in criminal cases over the years.  In almost every case I've demanded discovery of all written statements and reports of law enforcement officers, but never - never - has a “draft” report ever been disclosed in discovery.  Now I’m wondering how many “draft” reports have been hidden from defendants in criminal cases in Florida over the years.  Surely, there have been other cases where police officers create a “draft” report and then made changes.

As a criminal defense attorney practicing law in a college town (Gainesville, Florida) I've seen more than my fair share of young adults, ages 18 - 20, being charged with the criminal offense of underage possession of alcohol.  Underage possession of alcohol is a second degree misdemeanor in Florida and carries the potential punishment of imprisonment up to sixty days in jail for the first offense.  See Florida Statute 562.111(1)  I can’t help but feel sorry for these young adults and their parents as the realization sinks in that this “criminal” activity will be of public record, potentially for life.  Yes, we live in a country where one is old enough to get one’s legs blown off in Afghanistan serving in the armed forces at eighteen years of age, but when one returns to the “land of the free” and possesses a can of beer one can be arrested, taken to jail and charged with a crime.

Like it or not, we live in a country where the average citizen’s word is practically worthless if contradicted by the words of a police officer.  As a consequence of this reality, the majority of police misconduct that occurs daily goes unreported and undetected by Courts and prosecutors.  The misuse of  physical force is routinely blamed on the suspect by police officers.  The use of coercive investigative techniques are routinely denied by police officers.   The illegal detention of citizens is a daily occurrence, sustained by the exaggerations and misrepresentation of police officers.  Without a video recording of what actually occurred, the typical citizen, once arrested, is often powerless in a court of law when faced with the lies and distortions perpetrated by police officers.  One partial solution to this problem is the citizen who is willing to video record police officers engaged in their daily activities.

There may be 50 ways to leave your lover, but driving away may not be one of them if you have violated a number of non-driving laws/regulations in the State of Florida.  It is reasonable to guess that violating civil or criminal traffic laws or using a motor vehicle to commit a crime might be cause to suspend one’s license, but many other reasons may provoke a revocation of one’s driving privilege.

On August 24, 2012, the United States Eleventh Circuit Court of Appeals reversed the Federal District Court that had found Florida’s drug statute unconstitutional in the case of Mackle Shelton vs State of Florida.   The Federal Circuit Court of Appeals did not actually decide the constitutional issue presented, finding instead that consideration of the defendant’s question of law was procedurally barred under the provisions of the Anti-terrorism and Effective Death Penalty Act (AEDPA) of 1996.  The lower court that was reversed had found that the Florida drug statute’s failure to require proof of knowing possession of contraband violated due process of law.

In a sharply worded dissent in the case of State v. Luke Jarrod Adkins, Florida Supreme Court Justice James E.C. Perry criticizes the majority of the Court  and refers to their opinion as being built on a foundation of flawed “common sense” which shatters bedrock constitutional principles.

The Florida Supreme Court has ruled, in an opinion dated July 12, 2012, that Florida drug laws are constitutional, rejecting arguments that the drug statute’s failure to require proof of knowing possession violates due process of law.  In the case of State of Florida v Luke Jarrod Adkins, a five justice majority concluded that, “Given the broad authority of the legislative branch to define elements of crimes, the requirements of due process ordinarily do not preclude the creation of offenses which lack a guilty knowledge element.”

On Tuesday , April 11, 2012, the so-called former attorneys of George Zimmerman announced to the media, and thus the public at large, they were withdrawing from further representation of the man under investigation for the shooting death of Trayvon Martin in Sanford, Florida.

Although attorneys have the ability to withdraw from cases under certain circumstances and although there really wasn’t an actual case to withdraw from as of Tuesday, questions remain regarding the decision to publicly disclose certain matters which may have the potential to negatively impact the defense.

I suppose I should not write this.  I suppose I should just go with the flow created by the apparent overwhelming ground swell of the media and popular outrage over the Sanford Police Department’s failure to arrest George Zimmerman on a murder charge.  As a criminal defense attorney that knows well that the police are not only fallible but also capable of outright dishonesty, I still feel the need to speak in opposition to the idea that we can know with certainty the facts of this investigation by reading news reports or listening to popular media accounts.  As my friends and associates lineup on Facebook acknowledging that they have signed a petition essentially demanding that Zimmerman be immediately arrested, I can’t help but smell a lynch mob mentality that causes me to step back and urge caution.

The Alachua County Sheriff’s Office, in conjunction with several other local law enforcement agencies, has arrested at least twenty different individuals for utilizing various Internet social meeting sites to allegedly attempt communication with a person believed to be a minor regarding sexual activity.   No actual children were involved - only adult law enforcement officers posing as minors.  The Gainesville television station WCJB reports that one of those arrested was an elementary school teacher.  This blog will not report the names of those arrested as all are presumed innocent.

In a rare unanimous decision, the United States Supreme Court ruled on January 23, 2012, in U.S. v Antoine Jones,  that attaching a GPS device to a suspect’s vehicle is a search under the Fourth Amendment.   In one of the first major cases to test constitutional privacy rights in the digital age, the court ruled that police must obtain a search warrant before attaching a GPS tracker to a vehicle in a criminal investigation.

At least one Florida Appellate Court has ruled that it is lawful to stop a vehicle because the driver was seen drinking a beverage in a paper bag.

A recent N.Y. Times editiorial exposes how prosecutors are charging a retired chemistry professor with jury tampering as a result of him handing out pamphlets providing information on the historical doctrine of jury nullification.

Attorneys who practice DUI law understand that in Schmerber v. California, 384 U.S. 757 (1966), the US Supreme Court upheld the right of states to forcibly extract blood from DUI suspects.  Now the Wall Street Journal (WSJ) reports that many states, including our own, have adopted or are considering adopting "no refusal" laws that allow the police to hold you down and jam a needle in your arm and extract your blood when you refuse to provide a breath sample in a DUI case.  Not surprising, Texas appears to be leading the way in this new initiative.

The Florida Supreme Court heard oral argument on Tuesday, December 6, 2011, regarding the constitutionality of Florida’s drug laws as raised in the criminal case of Luke Jarrod Adkins et al v. Florida.  An assistant public defendant and assistant attorney general were questioned by the Florida Supreme Court Justice’s about their legal positions.  The Florida Supreme Court has not issued a ruling on the issue raised in the appeal and does not have a specific timetable for issuing a written order in the case.