Uncategorized

February 18, 2022

What is Civil Theft?

In short, the cause of action of Civil Theft involves the taking of another person’s property without their consent with the intention to deprive the person of their property. There is no distinction in terms of the act of theft between criminal and civil theft. However, the consequences are different and the proof required is also different.

772.11 Civil remedy for theft or exploitation.—

(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012–812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

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.

July 9, 2021

If You Have Been Charged with a Crime, Do You Know What Mens Rea Means?

by Neil Weinreb

What is Mens Rea?

Mens Rea is the mental element of an individual’s intent to commit a crime. It can also be expressed as the knowledge that a particular act would result in a crime being committed.

Why is Mens Rea significant if I have been accused of a crime?

June 11, 2021

DO YOU UNDERSTAND YOUR MIRANDA RIGHTS?

by Neil Weinreb

The United States Supreme Court handed down a decision that has been historic in a case entitled the Miranda v. Arizona, in 1966. Essentially, four cases made it to the United States Supreme Court with similar issues. All cases involved interrogation by police in a closed room where the putative Defendant was cut off from the outside world. In three of these cases, the Defendant signed statements that were admitted at trial and one of the cases involved oral statements admitted at trial. Following the Miranda Case, whenever a person is taken into detention, that individual must be advised of their Fifth Amendment right against making any self-incriminating statements. When the police question someone in custody, they must advise:

You have the right to remain silent.
Anything that you say can and will be used against you.

June 7, 2021

What is Felony Petit Theft?

by Neil Weinreb

What is Petit Theft?

Petit Theft is defined in the Florida Statutes under F.S. 812.014(2)-(3)(c). Where property that is involved in a theft is valued at less than $750, petit theft is usually the correct charge.

In order to prove the crime of Petit Theft, the following must be proven:

March 24, 2021

OWNERS BEWARE, IF YOU ARE FRAUDULENTLY CLAIMING YOU HAVE A SERVICE ANIMAL, YOU CAN NOW BE CHARGED WITH A MISDEMEANOR

by Law Office of David M. Goldman

In Florida, since 2012, there has been a statute that prevents discrimination against disabled persons who require the use of a “service animal”. It can be found at Florida Statute 413.08. This statute covers discrimination regarding public employment, public accommodations and housing accommodations. This statute was amended in 2020 to include a criminal penalty for persons who fraudulently claim the need for a service animal. Contact your local Jacksonville criminal attorney to assist you if you have been charged with a misdemeanor for falsely representing you need a service animal.

Under Florida statute 413.08 it defines an individual with a disability as someone who has a physical or mental impairment that substantially limits one or more major life activities such as walking, seeing, hearing, speaking, breathing, learning and working. A “housing accommodation” would be any real property or portion of the real property that is used or occupied as a home, residence or sleeping place of one or more persons in which the occupants rent or lease the premises. A “public accommodation” would be a common carrier, airplane, motor vehicle, railroad train, motor bus, streetcar, boat or other mode of public transportation; it also includes hotels, timeshares and other places to which the general public is invited. A “service animal” under this statute is limited to a dog or miniature horse that is trained to do work or perform tasks for an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work performed by the animal must be directly related to the person’s disability. It specifically states that a service animal is not a pet. If you think you are being discriminated against because of your “service animal”, contact your local Jacksonville family law attorney.

This is different from an “emotional support animal” who does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support. Emotional support animals may also be the disabled person’s pet. There is a separate statute that prohibits discrimination in housing to persons with a disability or disability-related need for an “emotional support animal”. That statute is Florida statute 760.27 and it deals with public housing. Both statutes address the fact that the public accommodation or housing provider cannot impose a deposit or surcharge on the individual with a disability as a precondition to permitting the service animal or emotional support animal to accompany the individual with the disability. Under both statutes, the individual with the disability is liable for any damages caused by the service animal or emotional support animal. Under both statutes, the individual with the disability is responsible for the supervision of the animal and most provide for the care and maintenance of the animal. Both statutes require the service animal or emotional support animal to be in compliance with vaccination requirements. Contact your local Jacksonville family law attorney if you feel you are being discriminated against because of your “service animal” or “emotional support animal”.

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.

March 1, 2021

Help I’ve Been Arrested and My Miranda Rights Were Not Read

by Law Office of David M. Goldman

When someone gets arrested it is one of the most stressful things that can happen to you. Especially if you are not familiar with the legal system and process. Many people think that their Miranda Rights must be read to them simply because they have been arrested. That is not what the Miranda rights provide. If the police are not questioning you beyond basic information such as what is your name, address, and phone number, they are not required to read your Miranda rights to you even if you are arrested. Miranda rights do not kick in until you are being interrogated by police and not permitted to leave. A suspect is being “interrogated” when police officers begin asking him or her questions that could implicate him or her in a crime. While Miranda warnings are extremely important, an officer’s failure to read them in and of itself does not result in a dismissal of criminal charges. Simply put, Miranda warnings themselves are not constitutional rights; rather, they are safeguards against the Fifth Amendment privilege against self-incrimination. If you have been arrested, consulting with an experienced Jacksonville criminal attorney is advised.

Miranda rights or Miranda warnings get their name from the 1966 United States Supreme Court case, Miranda v. Arizona. In that case, the Supreme Court held the United States Constitution’s Fifth Amendment prohibition against self-incrimination applies to an individual who is in police custody. In order to safeguard that right, the Court ruled that before questioning suspects in custody, law enforcement officials must inform suspects of the following rights:

1. They have the right to remain silent;

June 11, 2019

Duty to Protect Children: The Scot Peterson Case

by David M. Goldman

February 14, 2018 is a day that will never be forgotten when a gunman by the name of Nikolas Cruz opened fire devasting Marjory Stoneman Douglas High School in Parkland, Florida killing 17 students and injuring multiple staff members. Scot Peterson was an armed officer at the school at the time of the shooting. Peterson found himself caught in the middle when he was criminally charged with the inability to take action in the protection of students and staff members.

Peterson was admitted into Broward County Jail and was charged with eleven counts of second- and third-degree felony neglect of a child (F.S 827.03) and a second-degree misdemeanor of culpable negligence (F.S. 784.05). As to neglect of a child, the State must prove failure or omission to provide a child with care, supervision, and services necessary to maintain the child’s physical and mental health as well as the failure of reasonable effort to protect a child from abuse, neglect, or exploitation by another person. To convict on misdemeanor culpable negligence, the State must prove exposure to personal injury. During the school shooting, Peterson allegedly retreated to safety instead of taking action against the gunman when shots were fired. Shortly after the incident, Peterson obtained a bad reputation and was nicknamed “the Coward of Broward,” leaving families in an uproar about his failed negligence. Mr. Peterson stated that he continuously replays the shooting over in his head and is quoted as saying, “There wasn’t even time to think, it was my job and I couldn’t find him (the gunman).”

The charges that were filed against Mr. Peterson are not typical; it is very unusual for law enforcement to be held criminally liable for not protecting the public. Constitutional law, as interpreted by the Supreme Court, does not generally provide for the public to have the right to expect the police to protect against harm. The charges against Peterson in regard to the neglect of a child and culpable negligence is not specifically for law enforcement and is usually applied to parents. This case brings into question what this may mean for other officers and how school officers may need to re-evaluate how to respond in these situations. The critical question that still stands is whether Peterson had a constitutional duty to protect the children from the actions of Cruz.

November 7, 2018

Restoring Gun Rights In Florida After A Felony Conviction

by David M. Goldman

The rules surrounding Restoration of Gun Rights can be confusing. It is a very detailed process and having the help of an experienced attorney who knows how to navigate the system can help! Restoration of Gun Rights requires an application to the Florida Clemency Board to begin the process. The application requires certified court documents; specifically, a copy of the charging instrument (indictment, information, or warrant with supporting affidavit) for each felony or misdemeanor conviction (if needed), and a certified copy of the judgment and sentence for each felony or misdemeanor conviction. Pursuant to Florida Statute, those documents should be provided free of charge for the purpose of a clemency application. When the Clemency Board receives an application, it is screened for eligibility regarding time frames and all documents are reviewed. If the Applicant is eligible, the application is forwarded for investigation by the Office of Clemency Investigations. Cases are assigned on a first-come, first-serve basis and the process can be lengthy. If the application meets requirements, a report is prepared, and the application is forwarded to the Clemency Board for a decision.

The Specific Authority to Own, Possess, or Use Firearms restores to Applicants the right to own, possess, or use firearms, which were lost as a result of a felony conviction.
The Clemency Board will not consider requests for firearm authority from individuals convicted in federal, military, or out-of-state courts.