Domestic Violence

September 23, 2022

In Florida, What is a Claim for Abuse of Process?

What is Abuse of Process?

Abuse of process involves the use of criminal or civil legal process against another primarily to accomplish a purpose for which it was not designed. In the case of Cline v. Flagler Sales Corporation, Cline purchased what was described as a chattel (possibly an appliance) from Flagler Sales Corporation and executed a retail installment contract. Flagler hired someone to collect the installment payments that were not made. Meanwhile, Cline returned the chattel which was accepted. However, the collector filed criminal charges against her under F.S. Section 818.01. This law makes it a crime to remove property from the county in which you live where another person or entity holds the title to the item (chattel). The charge resulted in Cline’s arrest.

Abuse of Process Involves the Issuance of Improper Process Which is Used.

March 7, 2022

What Is Probable Cause?

by Neil Weinreb

What is probable cause?

When a police officer conducts an arrest, probable cause is the standard used to justify a search by police. It simply is the legal basis upon which a legal search by a policeman or police agency can be based. The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

How does a warrant get issued?

October 22, 2021

Is It Legal for Police to Briefly Detain Me?

by Neil Weinreb

Police frequently conduct searches of individuals based on a reasonable suspicion. A brief investigative detention based on a reasonable suspicion is called a “Terry Stop”.

What is Reasonable Suspicion?

Reasonable suspicion is a term that is used to refer to a police officer’s reasonably justifiable suspicion that a person had committed a crime or was in the process of committing one, or was about to commit one. Where the officer believes that a crime may have been committed or is about to be committed, he or she may make a temporary detention of the suspect and may proceed to pat them down.

August 27, 2021

How Can You Appeal a Criminal Conviction?

by Neil Weinreb

In Florida, someone who has been convicted of a crime can consider appealing a conviction to obtain relief from the conviction and sentence. The criminal court system allows appeal. However, most lower court decisions are upheld. Therefore, attempting to appeal a case may be a significant challenge. Some appeals are a matter of right and some are discretionary on the part of the appellate court. Generally, the party the files the appeal attempts to show a material error on the part of the trial court.

What Type of Error is Substantial?

The appellate courts distinguish between harmless error and a material error. Where an appellate court reviews an error as harmless, it is not considered to have a substantial impact on the disposition and eventual result of the case. Where an error by a trial court does not show that it affects the substantial rights of a party, it may be difficult to prove that a material mistake was made by the trial court and obtain relief.

April 26, 2021

When Do Arrest Warrants Expire in Florida?

by Neil Weinreb

Is There a Warrant Issued in My Name?

There are numerous warrants issued for almost every type of crime that occurs in Florida. The warrant system is used to apprehend criminals and those accused of a crime. Despite the belief that warrants expire, they do not. Additionally, warrants can be executed at anytime. Just because you may not be located within the territory of the state that issued a warrant, you are not safe from exposure to arrest. It is common for warrants to be issued for both felonies and misdemeanors in Florida. A warrant will be active until it is served, the individual dies, or the judge recalls the warrant. It is important to resolve a warrant promptly, so one does not have to deal with a multitude of problems unexpectedly. Your arrest could result from the most minor traffic stop for a tailgate light.

The FDLE has a database which usually lists active warrants and may be found online at http://www.fdle.state.fl.us/. You can select “search wanted persons” and you will be taken to a search screen.

March 15, 2021

SPEEDY TRIAL RULE: WHAT IS IT AND HOW IS IT BEING IMPLEMENTED DURING THE PANDEMIC?

by Law Office of David M. Goldman

The Sixth Amendment to the Constitution of the United States provides that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The Constitution does not define what a speedy trial means. There is a Speedy Trial Act governing federal criminal charges and in Florida state trials there is a criminal rule of procedure that addresses speedy trial. The Florida rule provides for Speedy Trial without Demand which requires defendants to be brought to trial within 90 days from the arrest on a misdemeanor, or 175 days from the arrest for a felony. There is also a provision for Speedy Trial Upon Demand this provides that every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days by filing a pleading entitled “Demand for Speedy Trial”. These provisions can be found in Florida Rules of Criminal Procedure Rule 3.191.

March 15, 2021

Who Should File a Rule 3.850 Post Conviction Relief Motion?

by Neil Weinreb

When Should You File a Post Conviction Relief Motion in Florida?

A motion for post conviction relief is a motion that is filed after an individual is convicted of a crime where the court is being asked to relieve a person from their conviction. The following grounds may be used as the reason for filing:

The sentence imposed was illegal or violates the Florida or United States Constitution.

November 7, 2018

Consequences of a Permanent Domestic Violence Injunction in Florida

by David M. Goldman

So you went to court and fought a domestic violence injunction, but the Court found grounds to enter the injunction anyway. What does that mean for you and your rights? The following is a list of consequences that may be imposed upon you as a result of the injunction:

May be ordered to complete a 26-week Batterer’s Intervention Program (BIP)
Loss of concealed carry rights

November 5, 2018

Do’s and Don’ts After Being Served With an Injunction in Florida

by David M. Goldman

You have been served with a domestic violence injunction in Florida. Now what? Though you have been served with an injunction, most people don’t understand what you should and should not do to abide by an injunction. See below some handy rules of thumb:

DO hire an attorney to represent you as soon as possible
DON’T contact the petitioner and/or ask the petitioner to drop the injunction

August 9, 2018

Everything You Wanted to Know About Florida Conceal Carry Licenses

by David M. Goldman

The Florida Department of Agriculture and Consumer Services (the Department) issues licenses to carry concealed weapons or concealed firearms in the State of Florida and they are good for 7 years. Concealed weapons or concealed firearms are defined as a handgun, electronic weapon or device, tear gas gun, knife, or billie, but does not include a machine gun. You must carry the license at all times you have possession of the weapon or firearm and must display the license and valid I.D. upon demand by a law enforcement officer or be assessed a $25 fine for a violation.

According to section 790.06, Florida Statutes, the Department shall deny a license if the applicant has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence constituting a misdemeanor, unless 3 years have elapsed since probation or any other conditions set by the court have been fulfilled or the record has been sealed or expunged. The Department shall revoke a license if the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding 3 years.

The Department shall, upon notification by a law enforcement agency, a court, or the Florida Department of Law Enforcement (FDLE) and subsequent written verification, suspend a license or the processing of an application for a license if the licensee or applicant is arrested or formally charged with a crime that would disqualify such person from having a license until final disposition of the case. The Department shall suspend a license or the processing of an application for a license if the licensee or applicant is issued an injunction that restrains the licensee or applicant from committing acts of domestic violence or acts of repeat violence.