Jacksonville Criminal Defense Lawyer Blog

July 10, 2009

Sealing a Florida Criminal Record When “No Record” Exists

As a criminal lawyer that deals with many Florida record seals and expunctions, sometimes, I run into inconsistencies in a criminal record. For example, I called a Florida Clerk of Courts Office to get a certified copy of the disposition of a case. This document is needed when trying to seal or expunge a Florida record. However, the Florida clerk’s office informed me that this record did not exists. Thus, according to the clerk, the criminal arrest never occurred. However, I was holding a Florida background check that showed the criminal offense, and this is what potential employers look at. Therefore, I still need to seal or expunge the record.

The problem: In order to get the process started for a criminal record seal or expunction, you must send a certified copy of the disposition of the case to the Florida Department of Law Enforcement with the application.

The issue: How do you send in a certified copy that does not exist?

July 9, 2009

Jacksonville DUI Checkpoint Roadblocks Must Meet Legal Requirements

by David M. Goldman

Jacksonville DUI checkpoints occur when the Jacksonville Sheriff’s Office designates an area in which it will stop vehicles in order to look for drivers that are possibly impaired. While it is commendable that Jacksonville is working to keep drunk drivers off the road, this is a intrusion into our privacy. No one enjoys waiting for road stop, and unfettered police discretion is never beneficial to the community.

Florida courts recognize this violation of our constitutional rights. Thus, they prohibit check-points that do not meet certain legal requirements. The Florida Supreme Court, in State v. Jones, 483 so. 2d 433 (Fla. 1986), ruled that before police can initiate a sobriety checkpoint, they must issue a set of uniform guidelines that set out certain procedures for the roadblock. In Campbell v. State, 679 So. 2d 1168 (Fla. 1996), the Florida Supreme Court made it clear that “police are not vested with the general authority to set up ‘routine’ roadblocks at any time or place.”

For more information about DUI stops, contact a Jacksonville DUI lawyer. A Jacksonville DUI Lawyer can evaluate the guidelines set and procedures taken at a DUI checkpoint to determine the legality of the Jacksonville roadblock.

June 24, 2009

Jacksonville Roadblocks: Are DUI Checkpoints Legal?

by David M. Goldman

We have all seen Jacksonville Roadblocks. These are police created checkpoints that are intended to look for those driving under the influence. If someone is arrested at a Jacksonville DUI checkpoint, he or she may be able to challenge the legality of the stop. Florida courts have ruled that the state must prove the legality of these stops. As such, the state must show that “the officers in the field are governed by a set of neutral criteria procedures which field officers are to follow at the roadblocks.” Guy v. State, 33 Fla. L. Weekly D2238a (2nd DCA 2008). In Guy, the Second District Court of Appeals ruled that a sobriety checkpoint was unconstitutional, because it gave the officers the discretion to selectively stop vehicles in the event that traffic backed up.

If a person is charged with a crime when being stopped during a Jacksonville DUI roadblock, he or she should discuss the legality of the checkpoint with a Jacksonville DUI Attorney.

June 2, 2009

Florida Sentencing Guidelines for Jacksonville Criminal Defendants

by David M. Goldman

When a criminal defendant is charged with a felony in Jacksonville, he will be subject to the Florida Sentencing Guidelines. For most minor felonies, a person will not score a minimum sentence pursuant to Florida’s Sentencing Guidelines. Therefore, he may be able to avoid a prison sentence. However, there are certain felony offenses that carry enough points to result in a minimum prison sentence, and a defendant’s prior criminal record will have an effect on his sentence.

In most cases, if a Jacksonville Criminal Defendant scores minimum sentence according to the Florida Sentencing Guidelines, the judge will not sentence the offender below the guidelines. Florida Statute Section 921.0016(4) lists reasons why a judge may depart from the sentencing guidelines A plea bargain is most common departure from the guidelines, but there are others listed in the statute. Although a youthful offender sentence is not listed as a reason for a departure from the guidelines, it can be. More importantly, it can be used to avoid a 10-20-Life Florida prison sentence (See State v. Wooten, 782 So. 2d 408 (Fla. 2nd DCA 2001)).

To learn more about Florida Sentencing Guidelines, contact a Jacksonville Criminal Defense Attorney. If you would like information on Federal Sentencing Guidelines, visit the Second Circuit Sentencing Blog.

May 29, 2009

Jacksonville Domestic Battery Carries Strict Penalties

by David M. Goldman

A Jacksonville Domestic Battery charge is one of the worse misdemeanors that a person can be charged with in Florida. Most misdemeanors do not carry a mandatory sentence. However, Domestic Battery and Driving Under the Influence (DUI) carry a mandatory probation sentence. Under Florida Statute Section 741.281, if a person is either adjudicated guilty of the offense or the adjudication is withheld, he or she must attend the Batterers’ Intervention Program (BIP). While this does not sound too difficult, it can be. BIP is a six month program and can be very expensive. It begins with a $30 fee that is due at orientation. Then, the student must pay $65 for a evaluation. After that, he or she must attend six months of classes that occur once a week. These classes can range anywhere from $10 to $50 depending on the student’s income. The defendant is placed on probation to complete BIP. The probation office charges approximately $60 a month for the cost of supervision. Not to mention, court costs are almost $1000. Thus, the costs can really add up.

While BIP may be the proper solution for some Jacksonville Domestic Battery defendants, it is not a perfect fit for all. However, the law mandates that the court issue BIP for all Florida Domestic Battery guilty or nolo contendere pleas. The court does not have the discretion that it should when it comes to determining a sentence. In order to avoid this, it is important to either get the case dropped, achieve a not guilty verdict at trial, or have the prosecutor agree to amend the charges to a lesser offense, such as simple battery or affray. This should be the goal of any Jacksonville Domestic Battery Lawyer.

Jacksonville, Florida is not the only city that handles domestic battery cases this way. Attorney M. Shawn Matlock, wrote an interesting article that discusses the manner in which Fort Worth Texas deals with Domestic Violence cases.

May 29, 2009

Crime and Punishment: Defendants Should Not Be Overcharged

by David M. Goldman

As a Jacksonville Criminal Defense Attorney, I get asked, “how can you defend someone when you know he is guilty?” My answer is, “you must have never committed a crime in your life.” We have all committed a crime at some point, no matter how minor. Justice is served when the punishment fits the crime. However, in some cases, a person is charged with a crime that he did not commit. For example, imagine that a Jacksonville criminal defendant breaks into a car. In this case, he should be charged with one count of burglary to a structure or conveyance as defined in Florida Statute Section 810.02. He should not be charged with every other automobile burglary that occurred in that neighborhood. In some cases, the prosecutor will charge the burglary criminal defendant with the other automobile burglaries, although the evidence does not support it. This is unfair and a waste of the State of Florida’s money.

A Texas Attorney, Walter D. James III, wrote an interesting article addressing this topic titled, “A Wake Up Call For the USDOJ.” His article address this problem at the federal level.

May 22, 2009

If I Seal My Jacksonville Criminal Record, Can I Possess a Firearm?

by David M. Goldman

Today, I received an interesting inquiry. Someone asked me, “if a person has his Florida Criminal Record sealed, can he possess a firearm?” There are a few reasons that a person may be prohibited from carrying a firearm in Florida as established by Chapter 790 of the Florida Statutes. Most Jacksonville residents that I have talked with are unable to possess a Firearm due to a prior felony conviction. Therefore, let us assume that a convicted felon would like to have his record sealed in order to purchase a firearm. He cannot do this.

You cannot have your Florida criminal record sealed if you were convicted of a crime. If a person is a convicted felon, he cannot have his record sealed, period. However, if he was given a withhold of adjudication, he is not a convicted felon. Therefore, he may be able to have his record sealed, depending on other circumstances. If this person is not a convicted felon and does not fall under any other exemption, he can possess a firearm, regardless of whether or not his Florida criminal record is sealed.

To answer the original question, a record seal will not make a difference as to a person’s ability to possess a firearm, because if he cannot possess the firearm due to a felony conviction, then he cannot get the record sealed. If he is eligible to have his record sealed, then he is not a convicted felon and can possess a firearm (unless there is some other condition prohibiting the possession).

May 20, 2009

Jacksonville Injunction Hearings: Do I Need an Attorney?

by David M. Goldman

“I have a Jacksonville Injunction Hearing coming up, but I don’t know if I should hire an attorney?” According to Florida Statute Sections 784.046 and 741.30, the answer is “no, you do not need an attorney.” However, failing to hire an attorney to protect your best interests could be devastating to your case. When a person petitions for an injunction (also known as a restraining order), that person is alleging that you are violent. If the injunction is granted, you cannot possess a firearm (Florida Statute Section 790.233). Also, this will reflect on your character when you apply for jobs and can effect professional licenses that you hold. A Jacksonville Injunction hearing should be taken as seriously as any criminal offense, because if it is violated, you can be arrested for Violation of an Injunction. Therefore, you should hire an attorney to protect your rights and help prevent the injunction from being issued in the first place.

Contact a Jacksonville Injunction Lawyer to learn more about defending against a Jacksonville Injunction and Restraining Order.

May 19, 2009

Jacksonville Restraining Orders are Used for Protection

by David M. Goldman

Jacksonville Restraining Orders are available anyone that is a victim of violence. A restraining is an injunction that protects the victim from any further violence. Many Jacksonville residents believe that they must be the victim of some type of “physical violence” before they can petition the court for an injunction, but this is not true. Violence includes the crimes of assault and stalking which do not require physical contact whatsoever. Under Florida Statute Section 784.11, an assault occurs when a person intentionally and unlawfully threatens to do violence to the person of another coupled with the apparent ability carry the violence out. The victim of the assault must be in fear that the violence is imminent and will readily take place. Stalking can also result in a Jacksonville restraining order. Under Florida Statute Section 784.048, stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks” and other person. The harassment must cause substantial emotional distress and fail to serve a legitimate purpose.

If you believe that you need a Jacksonville Restraining Order, contact a Jacksonville Attorney that will Petition the Court for an Injunction for Protection.

May 11, 2009

Jacksonville Romeo and Juliet Law Prevents Sex Offender Registration

by David M. Goldman

When Jacksonville criminal defendants plea guilty or no contest to any of the sex offenses listed in Florida Statute Section 794.011, 800.04, or 847.0135(5), they must register as Florida sex offenders twice a year. In Jacksonville, registering as a sex offender can be a tedious and embarrassing process. Jacksonville sex offenders have the obligation to register at least twice a year. They must register during their birth months and six months after that birth month. If a person does not register by the end of the required month, he or she can be charged with a third-degree felony. This is punishable by a maximum of five years in Florida State Prison. Additionally, as the Florida guidelines stand, a defendant charged with Failure to Register as a Sex Offender will score a minimum of 21 months. Thus, a Jacksonville sex offender is looking at a sentence of 21 to 60 months in the Florida State Prison.

Florida’s Romeo and Juliet Law can help some Jacksonville sex offenders. According to Florida Statute Section 943.04354, person charged under any of the Florida Statutes listed above can be removed from the Jacksonville sex offender registration requirement if the following criteria is met:

he or she has never plea guilty or no contest to any other sex offense described in the statutes above;
the only reason he or she must register is due to the violation in question;
he or she is not more than 4 years older than the victim; and
the victim was between 14 and 17 years old.

Contact a Jacksonville Sex Crimes Lawyer for information about Jacksonville sex offenses.