Jacksonville Criminal Defense Lawyer Blog

February 5, 2011

Florida Court Rules on DUI Checkpoint and Road Block Case

The Florida Second District Court of Appeals reversed a case in 2008, because the Florida DUI checkpoint did not have sufficient guidelines. In

Guy v. State, 993 So. 2d 77 (Fla. 2nd DCA 2008), the police department set forth a plan for a DUI checkpoint. The plan states that every vehicle would be stopped and checked, but if the traffic backed up, the supervisor “would develop a contingency plan either temporarily closing the checkpoint until the traffic cleared or changing the number of vehicles to be stopped.” Id. at 79. This DUI checkpoint violated the guidelines set forth by the Florida Supreme Court, because if left “the vehicle selection procedure to the discretion of a field officer to develop a contingency plan on the spot in the event of a traffic backup.” Id.

The court held that “the State did not show that the operational plan sufficiently limited the discretion of the officers as to the selection of vehicles and, to a lesser extent, the testimony showed that the officers did not strictly adhere to the written plan.” Id. at 80. Therefore, the Defendant’s motion to suppress should have been granted. Id.

February 4, 2011

Jacksonville Warrant issued for Man in Jacksonville Kidnapping and Murder Case

by David M. Goldman

Today, I started my day like any other day and like most Jacksonville Criminal Attorneys. I checked my email to address and respond to my client’s requests and questions. I checked the local Jacksonville news via Jacksonville.com (The Florida Times Union). The cover story read, “Jacksonville police issue warrant for Michelle McCoy’s boyfriend.” I learned that a Jacksonville man, Larry Thompson, was being accused of kidnapping and murdering his girlfriend. The article stated that “he has a criminal history and violent past.”

Thereafter, I continued with my daily tasks and worked on my clients’ cases. Minutes ago, I received a call from a reporter from the Florida Times Union. I assumed that he was calling about one of my current Jacksonville cases. However, he was calling about Larry Thompson, a Jacksonville murder and kidnapping case that I am not involved in. The Florida Times Union reporter asked me about a 2006 criminal case. In 2006, I was worked as an attorney at the Office of the Public Defender. I represented Mr. Thompson in a misdemeanor case. He was charged with misdemeanor, making threats, in Jacksonville. I was able to obtain a favorable disposition in which his sentence would be court cost and the two days that he already served in the Duval County Jail.

The Jacksonville reporter questioned me about this case, and I have no recollection of the facts, because I have represented hundreds to thousands of people since then. However, I do know that his criminal history cannot be used against Mr. Thompson unless the Duval County State attorney establishes sufficient grounds for it under Florida’s Williams Rule.

February 3, 2011

Factors Used to Determine Bonds in Criminal Cases in Jacksonville First Appearance Court

by David M. Goldman

The Florida Constitution (Article I, Section 14) gives a Jacksonville criminal defendant the right to be released from custody pending the outcome of his or her criminal case. Furthermore, Rule 3.131 of the Florida Rules of Criminal Procedure requires the court to conduct a hearing to determine pretrial release. This Jacksonville Bond Hearing is referred to as a criminal defendant’s first appearance. It must be conducted within 24 hours of arrest. At the bond hearing, the presiding judge must consider a variety of factors, including, but not limited to, the factors that are set forth in Rule 3.131(b)(3). Rule 3.131(b)(3) states:

“In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstances of the offense charged and the penalty provided by law; the weight of the evidence against the defendant; the defendant’s family ties, length of residence in the community, employment history, financial resources, need for substance abuse evaluation and/or treatment, and mental condition; the defendant’s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings; the nature and probability of danger that the defendant’s release poses to the community; the source of funds used to post bail; whether the defendant is already on release pending resolution of another criminal proceeding or is on probation, parole, or other release pending completion of sentence; and any other facts the court considers relevant.”

It is important for a Jacksonville Criminal Defendant to have a Jacksonville Criminal Lawyer that will present evidence to the court in order to establish that the defendant is entitled to a reasonable bond or that the defendant should be released on his or her own recognizance.

February 3, 2011

Jacksonville Bond Hearings Cannot be Rushed

by David M. Goldman

As a Jacksonville Criminal Defense Lawyer, I have attended many Jacksonville bond hearings. In Jacksonville, a criminal defendant is given a first appearance where both the State Attorney and the defendant (or his lawyer) can present arguments and evidence. However, this is not always done. Due to the large calendar that Duval County judges are confronted with, first appearance court is often rushed. This results in an injustice to the defendant, a breakdown of the criminal justice system, and a violation of the Constitution.

Yesterday, an opinion was released by the Florida Second District Court of Appeals addressing this issue. In

Greenwood and Rice v. State, 36 Fla. L. Weekly D256c (Fla. 5th DCA 2011), the court did not conduct a proper bond hearing. The court did not permit the criminal defendants to testify. Instead, it “directed them to file motions for bond reduction, at which time they would be given a much greater opportunity to present evidence so that the matter could be more carefully considered by the court.” This was improper. The Florida appellate court ruled that “it is error for the trial court to refuse to give defendants at least a very brief opportunity to be heard at the first appearance hearing if they insist on it, even if defendants might be better served by a later hearing.” The court reasoned that the judge in first appearance court “must at least give the defense a reasonable amount of time to respond to the State’s presentation and, at the very least, must allow the defendant, upon request, to be sworn in and to briefly testify as to the relevant factors.”

February 2, 2011

Florida District Court Held that Florida Drivers’ Consensual Blood Tests were Admissible Evidence

by David M. Goldman

On January 7, 2011, the Florida Fifth District Court of Appeals released its opinion in State v. Murray and Brink (36 Fla. L. Weekly D88b). In this Florida Driving Under the Influence (DUI) case, Murray and Bring, the DUI Defendants, were street racing and were involved in a crash that killing another driver. The Florida State Troopers responded to the crash. Neither Florida DUI Defendant appeared to be under the influence, and they did not smell like alcohol. They did not have probable cause to request a breath, urine, or blood sample, and they did not have probable cause to arrest. Still, the Florida State Troopers asked if the drivers would be willing to consent to a blood test. Both men consented.

According to Chu v. State, 521 So. 2d 330 (Fla. 4th DCA 1998), Florida’s Implied Consent Law requires submission only to a breath or urine test, and a blood test is offered as an alternative. In this case, since the Florida DUI Defendants consented to the blood test, it was admissible. It did not fall under the Florida Implied Consent Law. The Florida Fifth District Court of Appeals also noted that the holding in Chu sweeps to broadly.

If you have been charged with DUI in Jacksonville, contact a Jacksonville Criminal Defense Lawyer to discuss your case and to make sure your rights are being protected.

February 1, 2011

Ponte Vedra Driving Under the Influence (DUI) Cases and Florida’s Implied Consent Laws

by David M. Goldman

Look at your Ponte Vedra Florida drivers license and read the fine print: “Operation of a motor vehicle constitutes consent to any sobriety test required by law.” In essence, the Florida Implied Consent Law states that when a person accepts the privilege of operating a vehicle in Florida, he or she is consenting to taking a breath, urine, or blood test.

If a Ponte Vedra driver is arrested for Driving Under the Influence (DUI) and refuses to submit to a blood test, the Florida Department of Highway Safety and Motor Vehicles will automatically suspend his or her license for 12 months for the first refusal and 18 months for the second. He or she is entitled to a hearing to contest the suspension, but must request one within 10 days of the arrest. Therefore, it is important to act quickly.

Additionally, a second refusal will result in additional criminal charges (Jacksonville Criminal Refusal) being filed, so it is important to speak with a Ponte Vedra Florida DUI Attorney.

January 13, 2011

Jacksonville and Orange Park Grand Thefts Lead to Felony Arrests in Duval and Clay County Florida

by David M. Goldman

There has been a recent string of thefts of memorial vases from cemeteries in Jacksonville and Orange Park, Florida. Nicolas Whithey, Jessica Arnold, and Nicholas Dennison were arrested by the Jacksonville Sheriff’s Office in reference to the Duval County Florida grand thefts. Dennison is being held on a warrant for the Clay County Florida grand thefts. Therefore, Dennison’s Clay County Criminal Attorney will need to defend charges brought in both counties.

If Dennison is seeking to enter into a plea bargain in his Clay County and Duval County Florida theft cases, his Clay County Criminal Attorney should obtain a joint disposition. Although two different assistant state attorneys (one for each county) will be assigned as prosecutors in the cases, the State Attorney offices in Duval and Clay County are both in the Fourth Judicial Circuit. Thus, they both are headed by Angela Corey, and the offices work together.

As a Criminal Defense Lawyer in Clay County and Duval County, I have had clients that have been charged with crimes in both counties. If my client is going to enter into a plea agreement in one county, I need to have disposition that works with it in the other county. Therefore, it is important to address this in negotiations with both the Clay County and Duval County state attorneys.

January 12, 2011

Is there a Duty to Retreat When Being Attacked in Jacksonville, Florida?

by David M. Goldman

As a Jacksonville Criminal Defense Lawyer, I am often asked if a person has a duty to retreat when confronted with a violent situation. The best advice I can give is to advise the person to leave any confrontation if possible. The results and consequences of violence are never worth it. In summary, avoid having to use any kind of force. However, the Florida Castle Doctrine (also referred to as the Florida Stand Your Ground or Self-Defense Law) address self-defense situations. Florida Statute Section 776.013 states:

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

January 11, 2011

Exceptions to the Florida Castle Doctrine in Jacksonville, Florida

by David M. Goldman

The Florida Castle Doctrine (also referred to as the Florida Self-Defense Law and the Florida Stand Your Ground Law) govern when a person can use deadly force in Jacksonville. This doctrine is set forth in Florida Statute Section 776.013.

This Florida law creates a presumption that a person acts in reasonable fear of death or great bodily harm when confronted with certain circumstances. There are exceptions to the law. The presumption of reasonable fear does not apply if:

“(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

January 10, 2011

St. John’s County Florida State Representative Pushes for a Balance in Juvenile Criminal Punishment

by David M. Goldman

St. John’s County Florida legislator, Mike Weinstien, is the Florida State representative for District 19. Weinstien drafted a bill and has presented it to the House “that would give juveniles a chance at parole 25 years into a life sentence. If denied, they can try again every seven years.” In 1983, Florida abolished its parole system. Therefore, one needs to be established or incorporated into the Florida Office of Executive Clemency.

Weinstien stated that “he is not seeking to extend parole options to adult inmates or juveniles convicted of homicide.” Creating an option of parole in Florida Juvenile cases come on the heals of the Jacksonville juvenile case of Graham v. Florida, holding that juveniles sentenced in non-homicide cases should not be sentenced to life without the possibility of parole.