Jacksonville Criminal Defense Lawyer Blog

May 1, 2011

Florida Appellate Court Rules the that Search of a Florida House was Unconstitutional

Recently, the Florida Fourth District Court of Appeals ruled on a protective-sweep search of a Florida residence in a Florida Possession of Cocaine, Marijuana, and Paraphernalia case. The Florida Court held that the search of a bedroom was unlawful which occurred during an arrest of a woman, Mary Rogers, in her residence.

In Rogers v. State, the police went to the defendant’s house, because a neighbor heard yelling and fighting. Police officers also heard the dispute and knocked on the door. A woman peaked through the window and police heard a man yelling not to open the door. The front door was unlocked, so the police entered, because they were concerned about the safety of the woman.

In the dining room, the officers saw pot in plain view. Upon doing a protective sweep, the cops realized the bedroom door was locked. The defendant, Mary Rogers, refused to open the door. By this time, Ms. Rogers and the other occupants of two other people were either handcuffed or seated at the dining room table. Thereafter, the police jimmied the lock and saw cocaine in an open dresser drawer, along with drug paraphernalia.

April 30, 2011

Is Searching a Jacksonville House Without a Warrant Constitutional?

by David M. Goldman

In general, Jacksonville police officers cannot search a house without a warrant. However, there are exceptions to the rule. On exception to the Jacksonville Florida requirement that a warrant is need for a search is the “protective sweep.”
When police officers make an arrest in a house, they “may as a ‘precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.'” Rogers v. State, 36 Fla. L. Weekly D725b (Fla. 4th DCA 2011)(citing Maryland v. Buie, 494 U.S. 325, 334 (1990)). This is known as a protective sweep and cannot go any further than necessary to protect the officers from harm. For a protective sweep to go further, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334

When the Jacksonville Sheriff’s Office conducts a search of a house using the protective sweep exception, it must follow the law as set forth in Florida cases such as Rogers v. State.

April 19, 2011

Jacksonville Florida DUI Checkpoint this Friday Night

by David M. Goldman

This Friday night, the Jacksonville Sheriff’s Office will be conducting a DUI inspection of vehicles (Jacksonville DUI Checkpoint). Jacksonville First Coast News reports that “the safety checkpoint will last for four hours in the 7000 block of Powers Avenue — between University and Old Kings — Friday night starting at 9:30.” Under Florida law, it is well-established that Jacksonville DUI checkpoints must have and follow sufficient guidelines. If this does not occur, the stop may be invalid (Read Florida Court Rules on DUI Checkpoint and Road Block Case and Jacksonville Roadblocks: Are DUI Checkpoints Legal?).

April 15, 2011

Clay County Man Acquitted of Jacksonville Beach Attempted Murder and Rape, but Convicted of Other Offenses

by David M. Goldman

On July 15, 2010, Nicholas Highsmith, a Clay County resident, was arrested for the battery, rape, robbery, and attempted murder of a woman in Jacksonville Beach, Florida. He was tried this week on all four charges. The jury returned a not guilty verdict as to the rape and attempted murder charges. However, he was found guilty of theft and aggravated battery. While Mr. Highsmith still may be sentenced to Florida State Prison, the outcome of his case should still be considered a victory. If Mr. Highsmith would have been convicted of all the Jacksonville felony charges, he could have been sentenced to Life in prison. He still needs to prepare for a sentencing hearing in order to mitigate his sentence in this Jacksonville Criminal Case.

April 14, 2011

St. John’s County Sheriff’s Office Searches for Suspect in St. Augustine Robbery

by David M. Goldman

Yesterday, a man robbed a Walgreen’s Pharmacy in St. Augustine, Florida. According to the Florida Times Union, he walked in to the store’s pharmacy and handed the pharmacist a note demanding medications, threatening him if he didn’t comply. He lifted his shirt to show a handgun tucked in his belt, so the pharmacist complied with the demand, and the man left.

When people think of an Armed Robbery in St. Augustine, Florida, a man with a ski mask, pointing a gun in a gas station often comes to mind. This “traditional” armed robbery is not always the case. As in the St. Augustine Walgreen’s robbery, an armed robbery can be less aggressive. However, the penalties are just as heavy. Merely carrying a firearm during the commission of a robbery subjects the robber to Florida’s 10-20-Life Statute.

April 13, 2011

Fifth Amendment’s Right Against Self-Incrimination Applies to Jacksonville Domestic Violence Injunction Hearings

by David M. Goldman

The Fifth Amendment is applied to Florida, and all the other States, through the Fourteenth Amendment. It protects a person from self-incrimination and is meant to “assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action.” Maness v. Meyers, 419 U.S. 449, 461 (1975). A witness in a civil proceeding has the right to refuse to respond to a question on the grounds that his answer may tend to incriminate him. See Kastigar v. United States, 406 U.S. 441, 444-45 (1972).

In an injunction hearing is a civil proceeding. Quite often, the civil proceeding is intertwined with a criminal case. For example, the respondent that is defending against the restraining order may also be the Jacksonville criminal defendant in a Jacksonville domestic battery case. Other example occurs when the respondent has not been charged with a crime, but he or she may be arrested in the future for conduct alleged in the Jacksonville petition for an injunction.

The Florida Fourth District Court of Appeals has found that a respondent did not waive his Fifth Amendment right when he testified at a Florida injunction hearing. Since this right “is a fundamental principle secured by the Fifth Amendment, waiver of the privilege will not be lightly inferred, and courts will generally indulge every reasonable presumption against finding a waiver.” Jenkins v. Wessel, 780 So. 2d 1006, 1008 (Fla. 4th DCA 2001) (citing State v. Spiegel, 710 So. 2d 13, 16 (Fla. 3d DCA 1998). The court held that the Fifth Amendment privilege against self-incrimination is waived “only as to matters relevant to issues raised by [the witness’s] testimony on direct examination.” Jenkins, 780 So. 2d 1006, 1008 (citing Johnson v. State, 509 So. 2d 373, 373 (Fla. 4th DCA 1987)).

April 12, 2011

Factors that the Court will Look at When Issuing a Jacksonville Domestic Violence Restraining Order

by David M. Goldman

When a Jacksonville Court is deciding whether or not to issue a Jacksonville Restraining Order by granting a petition for an injunction against domestic violence, the court will look to the factors listed in Florida Statute Section 741.30(1)(a). This Florida law states that the court should consider whether the Respondent:

committed or threatened to commit domestic violence;
previously threatened, harassed, stalked, or physically abused the petitioner;
attempted to harm the petitioner or family members or individuals closely associated with the petitioner;
threatened to conceal, kidnap, or harm the petitioner’s child or children.
intentionally injured or killed a family pet;
used, or has threatened to use, against the petitioner any weapons such as guns or knives;
physically restrained the petitioner from leaving the home or calling law enforcement;
has a criminal history involving violence or the threat of violence (if known);
has another order of protection issued against him or her previously or from another jurisdiction (if known);
destroyed personal property belonging to the petitioner; or
engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.

When working on a Jacksonville Domestic Violence Injunction case, I grow through all of these factors to determine whether or not the Petition has establish grounds for the injunction and the best way to defend against it (Read Jacksonville Restraining Order Denied in Alleged Domestic Violence Case).

In some cases, the Petitioner will hire me to obtain the injunction. In that case, it is important to make sure that I have the necessary proof, so the Court may grant the Jacksonville Petition for an Injunction.

April 11, 2011

Jacksonville Restraining Order Denied in Alleged Domestic Violence Case

by David M. Goldman

Today, I argued in favor of the Respondent at a Jacksonville Injunction Hearing. An injunction is often referred to as a Jacksonville Restraining Order. In this case, the wife (petitioner) filed for a an injunction against her husband (respondent). Without a hearing, the judge issued a temporary restraining order. After the order was issued, I met with the husband. After reading the Jacksonville Petition for an Injunction and speaking with him, it was obvious that the wife did not have a reasonable fear that he would commit any violence to her. He had never committed an act of domestic violence in the past and never threatened to do so. Factors that the Court will Look at When Issuing a Jacksonville Domestic Violence Restraining Order are listed in Florida Statute Section 741.30(1)(a).

At the Jacksonville Injunction Hearing, I presented Florida cases, such as Oettemeier v. Oettmeier, 960 So. 2d 902 (Fla. 2nd DCA 2007) and Gill v. Gill, 50 So. 3d 772 (Fla. 2nd DCA 2010). I explained to the judge the reasons that the Jacksonville Restraining Order should not be issue pursuant to Florida Statute Section 741.30. After hearing the testimony of the petitioner, wife, and reading the cases, the judge ruled that the injunction should not be issued, and he terminated the temporary restraining order.

When being served with a Jacksonville Restraining Order, it is important to know your rights. Contact a Jacksonville Injunction Lawyer to discuss your case.

April 7, 2011

Jacksonville Lawyer Gets Court Order Expunging Sexual Battery Record

by David M. Goldman

Today, I argued in favor of a Jacksonville Petition to Expunge a Sexual Battery Record. Originally, I filed the Petition asking the court to expunge my client’s Jacksonville record. He was charged with sexual battery and the charge was dropped. Without a hearing on the matter, the Duval County Circuit Court judge denied the petition. Therefore, I set the matter for a full hearing.

At the hearing, the State Attorney argued that the reason the Jacksonville Sexual Battery Record should not be expunged was due to the fact that the State Attorney may want to use the record against the client in the future if another charge arises. However, the Florida First District Court of Appeals has ruled that this is not a valid reason to deny a petition to expunge (VDF v. State, 19 So. 3d 1172, 1175 (Fla. 1st DCA 2009). I presented this case and other Florida cases like it to the judge. The judge followed the law and granted the Jacksonville Petition to Expunge the Criminal Record.

April 6, 2011

Florida Courts have Discretion when Expunging a Jacksonville Criminal Record

by David M. Goldman

Florida Statute Section 943.0585 clearly states “that it “does not confer any right to the expunction of any criminal history record, and any request for expunction of a criminal history record may be denied at the sole discretion of the court.” VDF v. State, 19 So. 3d 1172, 1174 – 75 (Fla. 2009) (citing Wells v. State, 807 So. 2d 206, 207 n.2 (Fla. 5th DCA 2002). If “a petitioner has satisfied all of the statutory requirements, section 943.0585 gives the trial court the discretion to deny expunction . . . ‘if there is a good reason for denial based on the facts and circumstances of the individual case.'” VDF,19 So. 3d at 1175.

In VDF, a Jacksonville criminal defendant petitioned to have his record expunged. The trial court denied his petition and sealed the record instead. The trial judge “determined ‘based on the totality’ of what had been presented at the hearing that the records would be sealed, but not expunged, so that it could be determined at some later time whether it would be appropriate for law enforcement to have access to the records.” The Jacksonville criminal defendant appealed. The appellate court reversed the trial court’s decision ruling that “denial of VFD’s petition on grounds that the re-cords, if not expunged, might–for reasons applicable in any case–prove useful in the future falls short of the exercise of discretion that the statute requires.”

See Jacksonville Lawyer Gets Court Order Expunging Sexual Battery Record.