Pasco Criminal Defense Attorney Denied Access to Client – Conviction Overturned

Is a defendant allowed access to an attorney when questioned by the police?

 

Not in Pasco County, Florida – Until this week, a Pasco Criminal Defense Attorney could be denied access to a client who was under interrogation by detectives. A running joke in this small Florida county was that, “The Supreme Court closes at 5 o’clock.” The cops here run over defendant’s rights with great pride and have the support of the Prosecutors.

“he must be clearly informed that he has the right to

consult with a lawyer and to have the lawyer

with him during interrogation”

Pasco Criminal Defense Attorney

“I want all questioning to stop. ” Said the Pasco Criminal Defense Attorney

Is a defendant allowed access to an attorney when questioned by the police? Let’s take a look at the issue as decided by the Florida Supreme Court. Pasco County detectives were up to their old tricks in violating a defendant’s rights in a murder case. The Florida Supreme Court has reversed a murder conviction.

A Pasco County Criminal Defense Attorney retained by the family arrived at the police interrogation. After determining that The defendant was being interrogated in the building, the deputy at the counter advised the attorney that it would not be possible to convey any information to the location where The defendant was being questioned by any means, including e-mail, telephone, a knock on the door, or even a note slipped under the door. Although the attorney stated:

“I want all questioning to stop.

I don’t want anymore [sic] questioning

to go on without my presence.”

The attorney was not allowed to see or otherwise communicate with the defendant in any manner. Facing that insurmountable obstacle, the attorney departed from the sheriff’s office at 2:17 p.m., just ten minutes before the defendant commenced his confession. The defendant was first informed about the presence of the attorney only after he directed the detectives to the burial site.

What is in the Miranda Warnings?

We have all seen countless television shows where cops give warnings to suspects. Apparently these cops did not watch television or chose to avoid the important provisions of the landmark Constitutional decision, Miranda v. Arizona, 384 U.S. 436 (1966). However, we can go right to the language used by the United States Supreme Court to see what they told police and prosecutors 50 years ago:

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.” Miranda v. Arizona, 384 U.S. 436 (1966). Let’s see what the Florida Supreme Court said about this type of police conduct.

“defendant’s statement resulted from a law enforcement officer’s illegal actions,

that evidence is ‘fruit of the poisonous tree’ and the trial court should exclude it

from trial.”

Pasco Criminal Defense Attorney Case Excerpts

 

“In light of the foregoing, we hold that McAdams’s right to due process under the Florida Constitution was violated when law enforcement officers failed to inform him that an attorney retained by his parents had arrived”

“There is not necessarily a single specific comment, question, or circumstance that converts an encounter from noncustodial to custodial. A situation can commence as a voluntary interaction with police, but slowly intensify and become more pressured, pointed, and accusatory until it evolves into custodial status.”

“[W]e hold that when a person is questioned in a location that is not open to the public, and an attorney retained on his or her behalf appears at the location, the Due Process Clause of the Florida Constitution requires that law enforcement notify the person with regard to the presence and purpose of the attorney, regardless of whether he or she is in custody.”

“In Miranda, the Supreme Court explained that: the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. 384 U.S. at 467. Failure to provide the Miranda warnings prior to custodial interrogation generally requires exclusion from trial of any post-custody statements given. Missouri v. Seibert, 542 U.S. 600, 608 (2004); see also Deviney v. State, 112 So. 3d 57, 79 (Fla. 2013) (“[I]f a defendant’s statement resulted from a law enforcement officer’s illegal actions, that evidence is ‘fruit of the poisonous tree’ and the trial court should exclude it from trial.”).”

Florida Association of Criminal Defense Lawyers Summary

Here is the Florida Association of Criminal Defense Lawyers Summary of State v. McAdams, 41 Fla. L. Weekly S167a (Fla. 2016) – This matter is before the Court for review of the decision in McAdams v. State, 137 So. 3d 401 (Fla. 2d DCA 2014). In its decision, the district court ruled upon a question that it certified to be of great public importance. The Sheriff’s Office was notified that Lynda, the estranged wife of McAdams, and her boyfriend/coworker, Andrews, had been reported missing by concerned family members. A detective was questioning McAdams at the police department, when an attorney hired by his parents arrived. McAdams was first informed about the presence of the attorney only after he showed detectives where the victims were buried. When an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney’s presence and purposes, regardless of custodial status. His right to due process under the Florida Constitution was violated when the officers failed to inform him that the attorney had arrived. Although custodial status is irrelevant to a person’s right under the Florida Constitution to know that an attorney retained on his or her behalf is present at the location where he or she is being questioned, the trial court and district court erred when they’’determined he was not in custody before he confessed to the homicides. A Miranda violation’’occurred when his confession was admitted during the trial. Although he was not in custody’’initially when he voluntarily accompanied law enforcement to the sheriff’s office, the evolving’’circumstances would lead a reasonable person to conclude that he or she was not at liberty to’’terminate the encounter and depart from the sheriff’s office. The erroneous admission of the’’highly detailed confession was not harmless error.

Sources:

State v McAdams https://www.floridasupremecourt.org/decisions/2016/sc14-788.pdf

Miranda v. Arizona, 384 U.S. 436 (1966).

FACDL

Vehicular Homicide in Florida

Vehicular Homicide Florida Lawyer

Vehicular Homicide Florida Law

Can a Speeding Vehicle that crashes and results in the Death of a Passenger Result in Vehicular Homicide Charges in Florida?

Vehicular Homicide charges can be filed after a death in a crash. However, speed alone will not be enough to be convicted. The law differentiates between negligent driving conduct, which exposes a wrongdoer to civil liability, and criminal driving conduct, which subjects a person to incarceration and other criminal sanctions. Case law strictly construes criminal driving statutes to prevent the net of the criminal law from sweeping so broadly that it snares all conduct, both criminal and negligent. The lenity principle codified at section 775.021(1)- (2), Florida Statutes (2014), requires criminal statutes to be strictly construed in the accused’s favor. See State v. Byars, 823 So. 2d 740, 742 (Fla. 2002); McGhee v. State, 847 So. 2d 498, 503 (Fla. 4th DCA 2003).

Part of the rationale for this approach is historical, deriving from common law crimes, where there was “the ancient requirement of a culpable state of mind.” Morissette v. United States, 342 U.S. 246, 250 (1952). To blur the line between mere negligence and criminal intent would, borrowing Justice Jackson’s words, “ease the prosecution’s path to conviction, [ ] strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and [ ] circumscribe the freedom heretofore allowed juries.” Id. at 263.

Consistent with this view, the Florida Supreme Court has held “statutes criminalizing simple negligence to be unconstitutional.” State v. Smith, 638 So. 2d 509, 510 (Fla. 1994). “[U]nintentional conduct [ ] not generated by culpable negligence” will not support criminal liability. State v. Hamilton, 388 So. 2d 561, 563 (Fla. 1980); see also State v. Winters, 346 So. 2d 991, 994 (Fla. 1977). Case law applying the statute at issue here preserves the distinction between negligence and criminal conduct. “‘Vehicular homicide’ is the killing of a human being . . . caused by the operation of a motor vehicle by another in a reckless manner likely to cause death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2014). “The degree of culpability required for vehicular homicide is less than that necessary to prove manslaughter, but it is more than a mere failure to use ordinary care.” Stracar v. State, 126 So. 3d 379, 381 (Fla. 4th DCA 2013). “Vehicular homicide cannot be proven without also proving the elements of reckless driving, which requires proof of a ‘willful or wanton disregard for the safety of persons or property.’” Santisteban v. State, 72 So. 3d 187, 195 (Fla. 4th DCA 2011) (quoting § 316.192(1)(a), Fla. Stat.). “‘Willful’ means ‘intentional, knowing, and purposeful,’ and ‘wanton’ means with a ‘conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.’” Lewek v. State, 702 So. 2d 527, 530-31 (Fla. 4th DCA 1997) (quoting Fla. Std. Jury Instr. (Crim.)).

“In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause death or great bodily harm.” Santisteban, 72 So. 3d at 195. Although the defendant need not have foreseen the specific circumstances causing the death of the victim, the defendant should have reasonably foreseen that the same general type of harm might occur if he knowingly drove his vehicle under circumstances that would likely cause death or great bodily harm to another. Id. “Speed alone does not constitute reckless conduct unless the speed is shown to be grossly excessive.” Rubinger v. State, 98 So. 3d 659, 662 (Fla. 4th DCA 2012).

In cases affirming convictions for vehicular homicide or manslaughter by culpable negligence, it is excessive speed, in combination with other factors, that support the convictions. For example, in Copertino v. State, the defendant was driving 90.41 mph in a residential area in a Honda Civic packed with nine persons, “7 of whom were crammed into the back seat without seatbelts.” 726 So. 2d 330, 333 (Fla. 4th DCA 1999). We held that these facts evinced “the required reckless disregard for human life or the consequences on the safety of his passengers” contemplated by the manslaughter statute. Id.

Similarly, in Pozo v. State, the defendant was looking for a compact disc when driving anywhere from 67-90 mph in a residential neighborhood, while heading into a rain shower. 963 So. 2d 831, 833-34 (Fla. 4th DCA 2007). We held these facts to be sufficient to withstand a motion for judgment of acquittal. Id. at 834.

Recently, this Court affirmed the denial of the defendant’s motion for judgment of acquittal on a vehicular homicide charge. Opsincs v. State, 185 So. 3d 654 (Fla. 4th DCA 2016). “The State’s expert testified that the speed limit was 50 mph and that appellant’s speed was 69 mph at the time of impact. The roads were wet from the rain earlier in the day.” Id. at 657. Moreover, “[i]mmediately before the accident, appellant swerved through traffic, rapidly approached the traffic light while looking down and without braking, and ran a light that had been red for nine seconds before impact.” Id. And in Lewek v. State, the defendant was traveling 60 mph on a residential road with a 45 mph speed limit, in a car with unsafe equipment, and he ran a red light that had been red for five seconds. 702 So. 2d at 531. We held these facts sufficient to support two vehicular homicide convictions. Id.; see also Santisteban, 72 So. 3d at 196 (vehicular manslaughter conviction affirmed where driver of a gasoline tanker filled with 9,000 gallons of fuel went 56-60 mph on a curving highway ramp with an advisory speed of 35 mph, while weaving and cutting off other drivers).

In Stracar v. State, 126 So. 3d 379 (Fla. 4th DCA 2013). There, this Court reversed convictions for two counts of vehicular homicide after finding that the state failed to show that the defendant was driving in a reckless manner. Id. at 380. In denying Stracar’s motions for judgment of acquittal, the trial court detailed the facts of the case: The evidence at trial was that the Defendant [Stracar] was driving a vehicle which left the roadway, traveled along a sidewalk and a grassy area, crossed a divided roadway and hit a sign which launched the car over a median of the intersecting street and land[ed] on the victims [sic] car crushing the two occupants. Ms. Stracar traveled … for over 500 feet at approximately 40 miles per hour. She suffered no serious injuries and was found conscious in her vehicle at the scene. She had to be removed through the roof due to crash damage. Id. “There was no evidence of any braking or other attempt by appellant to avoid the crash, nor were there any curves in the roadway which would have contributed to appellant losing control of her vehicle.” Id. at 380-81. Moreover, at the time of the incident, “the weather conditions were optimal and the pavement was dry.” Id. at 381. Three hours after the accident, Stracar’s blood test results indicated a blood alcohol level of “less than .02%, THC from marijuana use at some undetermined time, oxycodone at a potentially therapeutic level, and Xanax within therapeutic levels.” Id. There was no evidence of unsafe or erratic driving prior to the accident. Id. This Court held that “appellant’s actions, while certainly negligent, did not rise to the level of recklessness sufficient to sustain the convictions for vehicular homicide.” Id. [W]hat was missing from the State’s proof in this case is evidence that the appellant, in an intentional, knowing and purposeful manner, was driving at the time of the incident in a manner demonstrating a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property. Id. at 382.

Florida Association of Criminal Defense Lawyers Summary

 

Here is the Florida Association of Criminal Defense Lawyers Summary of Damoah v. State, 41 Fla. L. Weekly D957b (Fla. 4 th DCA 2016) –  Damoah drove a car that crashed on a I-95 exit ramp. The crash caused the death of her  boyfriend. She was convicted of vehicular homicide and sentenced to 12 years in prison. On the  date of the incident, the exit ramp was technically a Department of Transportation construction  zone, even though no construction machinery or barriers were present. Construction had been  finished and the roadway repaved, but the Department had not yet given its final approval. As a  result, no speed limit signs were posted. The evidence was insufficient to support the conviction  for vehicular homicide. Excessive speed alone, without a showing of other reckless conduct, is  insufficient to support a vehicular homicide conviction. The evidence was also insufficient to  support a conviction for the lesser included offenses of reckless driving and culpable negligence.  The court remanded for the trial court to enter a judgment of acquittal and discharge her.

Source: https://www.4dca.org/opinions/April%202016/04-20-16/4D14-2412.op.pdf

FRAU3000 FRAUDULENT USE OF CREDIT CARD OVER $100

817.61, Credit Card Fraud Over $1000, Defense Attorney Tampa, FRAU3000, FRAUDULENT USE OF CREDIT CARD OVER $100,
Credit Card Fraud Over $100

Fraudulent Use of a Credit card with victim loss exceeding $100.00 is the forty-third (43rd) most frequent charge for those arrested in Tampa, Hillsborough County, Florida. There are over 1600 ways to get into the county jail. This is number 43.

If you have been charged with FRAU3000 FRAUDULENT USE OF CREDIT CARD OVER $100 you can call a Defense Attorney Tampa at 813-222-2220 and tell me your story.

Form Code: FRAU3000


Florida Statute: 817.61
Level: Fel (Felony)
Degree: 3rd

Description: FRAUDULENT USE OF CREDIT CARD OVER $100

 

FRAU3000 FRAUDULENT USE OF CREDIT CARD OVER $100 is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 817 FRAUDULENT PRACTICES

817.61 Fraudulent use of credit cards.

A person who, with intent to defraud the issuer or a person or organization providing money, goods, services, or anything else of value or any other person, uses, for the purpose of obtaining money, goods, services, or anything else of value, a credit card obtained or retained in violation of this part or a credit card which he or she knows is forged, or who obtains money, goods, services, or anything else of value by representing, without the consent of the cardholder, that he or she is the holder of a specified card or by representing that he or she is the holder of a card and such card has not in fact been issued violates this section. A person who, in any 6-month period, uses a credit card in violation of this section two or fewer times, or obtains money, goods, services, or anything else in violation of this section the value of which is less than $100, is subject to the penalties set forth in s. 817.67
(1). A person who, in any 6-month period, uses a credit card in violation of this section more than two times, or obtains money, goods, services, or anything else in violation of this section the value of which is $100 or more, is subject to the penalties set forth in s. 817.67(2).

Instagram Hacking Not a Computer Crime Says Court in Florida

Instagram Hack Computer Crime

Instagram Hack Not a Computer Crime in Florida

Is Hacking an Instagram Account always a Crime in Florida?

A guy in Florida was convicted of unauthorized computer use. the court reversed his conviction. The guy “logged into his ex-girlfriend’s Instagram account and posted nude photographs of her without her permission.”  The prosecutor claimed that constituted a violation of section 815.06(1)(a), Florida Statutes (2013).

What is Hacking a Computer Network in Florida?

 

Section 815.06 makes it illegal under Florida computer law and states “[w]hoever willfully, knowingly, and without authorization [a]ccesses or causes to be accessed any computer, computer system, or computer network . . . commits an offense against computer users.”  § 815.06(1)(a), Fla. Stat. (2013).

The court reversed the conviction and focussed on three defintions in the law:

  • “Computer” means an internally programmed, automatic device that performs data processing
  • “Computer network” means any system that provides communications between one or more computer systems and its input or output devices, including, but not limited to, display terminals and printers that are connected by telecommunication facilities.
  • “Computer system” means a device or collection of devices, including support devices, one or more of which contain computer programs, electronic instructions, or input data and output data, and which perform functions, including, but not limited to, logic, arithmetic, data storage, retrieval, communication, or control. The term does not include calculators that are not programmable and that are not capable of being used in conjunction with external files. § 815.03, Fla. Stat. (2013).
The state failed to prove that Instagram was a Computer, computer system, or “computer network. The winning argument was that an Instagram account does not fall within any of these statutory definitions.

Instagram Hack Case Excerpt:

“The plain language of the statutory definitions of “computer,” “computer system,” and “computer network” refer to tangible devices, not the data and other information located on the device. Thus, to prove a violation of section 815.06(1)(a) the State must establish that the defendant accessed one of the listed tangible devices without authorization, not that the defendant accessed a program or information stored on the device without authorization. See Rodriguez v. State, 956 So. 2d 1226, 1230 (Fla. 4th DCA 2007) (reversing conviction under section 815.06 because evidence only established that the defendant accessed a “computer function” that he was not authorized to access).”

“Here, the charge against Appellant was based only on the unauthorized access of his ex-girlfriend’s Instagram account, not the computer server on which the account is presumably located. We say “presumably” because the only evidence in the record explaining what Instagram is was the ex-girlfriend’s testimony that it is a form of social media and “a place where you post pictures [and] your friends get to see it.” Nothing in the record establishes or explains how accessing an Instagram account works from a technological perspective, leaving unanswered whether or how Appellant’s actions amounted to accessing a specific computer, computer system, or computer network. Accordingly, in this case, the State failed to provide the necessary evidentiary foundation to prove that Appellant’s actions violated section 815.06(1)(a).”

Revenge Porn Statute Section 784.049, Florida Statutes

 

The court conclude a revenge porn prosecution under Section 784.049, Florida Statutes, that specifically prohibits the publication of sexually-explicit images of a person on the Internet without his or her consent is now a tool prosecutors can use. The court noted the new revenge porn statute was needed because “Florida law does not specifically prohibit posting pictures of a nude adult person on the Internet for viewing by other adults if the picture was taken with the knowledge and consent of the person”.

Source: Crapps v State, CASE NO. 1D14-4569 (Fla 1st DCA Dec 8, 2015).https://edca.1dca.org/DCADocs/2014/4569/144569_DC08_12082015_090851_i.pdf

 

Veterans Court – Tampa – Hillsborough County, Florida

Veterans Treatment Court, Dismissed, Pretrial Diversion, Pretrial Intervention, Misdemeanor Intervention
Benefit of the Veterans Court is 
that upon successful completion, 
there is a court order administratively 
dismissing the charges.

History of the Veterans Treatment Court

In 2013, the Chief Judge of the Hillsborough County Court system created a new criminal subdivision of the county court to focus on people who have misdemeanor offenses. The court division was created for veterans, who suffer from military or service related conditions. The court considers the unique nature of issues related to veterans and the need for treatment in an environment that will help with wellness and the continuing necessity to help protect the public.

UPDATE: 2015 – Court Now Allows Help with Felony Crimes – Click Here

Who is Eligible for Dismissal of Criminal Charges?

The county criminal division of the Veterans Court allows people who are veterans, honorably discharged, who suffer from service-related mental illness, traumatic brain injury, substance abuse, and/or psychological problems to become eligible for the benefits of this program. There are certain offenses that are eligible for admission to the court they are listed in the court order.
DUI charges are not eligible for the program. To be eligible, the defendant must be evaluated by the Veterans Administration or other state or federal court approved facility. The program is completely voluntary. Some cases are referred directly by the State Attorney’s Office to the Veterans Court, if they appear eligible.

What Happens in the Veterans Treatment Court?

Once assigned to the Veterans Court Division, there are court hearings that are required and will be set by the judge in charge of the Veterans Court. It is required that all participants continue to participate in recommended treatment. If the court determines that the defendant has not complied, the case will be discharged from the Veterans Court. The case will proceed as if it had been originally filed in a criminal division.

How Are Criminal Charges Dismissed in the Veterans Court?

The benefit of the Veterans Court is that upon successful completion, there is a court order administratively dismissing the charges. The program in misdemeanor court is 12 months. Under the 2013 order, only misdemeanor charges were eligible. A felony charge, until recently, was not eligible for this unique approach to handling our nation’s veterans. You can review the changes that occurred in 2015 here.

Florida Court Reverses Constructive Possession Conviction

Constructive Possession of Firearm
Constructive Possession conviction reversed
where “the State presented no evidence
to rebut evidence
that other individuals either
drove or occupied the car .

What is Constructive Possession of a Weapon?

 

“None of the testifying officers could recall how the car keys were obtained, when the men in the residence had arrived there, or who drove the rental car to the residence that day, who had been driving it during the rental period, or . . .   who owned the various items in the back seat area of the car.”

What is Constructive Possession of a Weapon? In this sample case, the guy was charged with illegal possession of a firearm. “Florida law requires this court to apply a “special” standard of review in circumstantial evidence cases, such that, when viewing the evidence in a light most favorable to the State, this court must determine whether the evidence viewed in this light excludes every reasonable hypothesis of innocence. State v. Law, 559 So. 2d 187 (Fla. 1989). If such evidence has been introduced at trial which contradicts any reasonable hypothesis of innocence, the jury’s verdict of guilt must be affirmed, as it is solely the prerogative of the factfinder to accept or reject . . . contradictory evidence.”

“In addition to the circumstantial evidence rule, we apply the rule of law on constructive possession. When the “premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.” Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 1989). Here, there is no dispute that no one was in or near the rental car when police arrived at the residence (i.e., no one had possession of the car), the car was rented by Appellant, the console was closed when police searched the car, and both a handgun and a receipt for payment of a 9 cellular phone bill in Appellant’s name were found in the center console of that car. The issue is whether this evidence was sufficient to establish Appellant’s knowledge of the handgun in the console; in other words, to rebut Appellant’s reasonable hypothesis of innocence that, as the trial court summarized, “somebody else drove the vehicle at some point in time, and it is their gun as opposed to [Appellant’s].”

 


Another Case on Constructive Possession

 

 

Constructive Possession Cannabis | Defense Win

www.drug2go.com/2011/07/constructivepossession-cannabis.html

 

 

 

 Rating: 4.9 – ‎Review by Google+

Jul 5, 2011 – The court ruled, “Accordingly, the trial court erred in denying [defendant’s] motion for … We reverse because, in this constructive possession case, the State failed . . . Download this Florida Constructive Possession Case Here.

 

 

Free Download of the Constructive Possession Opinion from Florida

 

The Court’s Ruling on Constructive Possession

 

“Here, the learned trial court’s denial of Appellant’s JOA motion focused primarily on the presence in the console of the handgun and the T-Mobile receipt bearing Appellant’s name and dated two days before the search. The court found that this two-day period was sufficiently close in time to infer Appellant’s knowledge of the gun’s presence, and was bolstered by the fact that the girlfriend to whom Mr. Byrd testified he turned over the rental car was not at the residence when police arrived, but the car was. But the State presented no evidence to rebut Appellant’s evidence that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Also, police could not testify from whom or where they obtained the keys to the car, and could not say who drove the rental car to the residence on the day of the search. Furthermore, as in Evans, although the presence of the T-Mobile receipt bearing Appellant’s name suggests Appellant may have placed the receipt there, “[s]uch an inference, however, provides no time frame with regard to when the [gun] came to reside” in the console, “nor any help as to appellant’s present dominion over the [gun].” 32 So. 3d at 191. Thus, we hold that the evidence here was insufficient to support a prima facie case that Appellant was in constructive 12 possession of the firearm, and thus we must reverse Appellant’s conviction. REVERSED”

Excerpts of Opinion of the Florida Court on Constructive Possession

 

Constructive Possession conviction reversed where “the State presented no evidence to rebut Appellant’s evidence that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Also, police could not testify from whom or where they obtained the keys to the car, and could not say who drove the rental car to the residence on the day of the search.”

 


Complete Opinion of the Court on Constructive Possession

 

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
JOE LEE KEMP, IV,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
CASE NO. 1D14-2738
Opinion filed June 15, 2015.
An appeal from the Circuit Court for Duval County. James H. Daniel, Judge. Diana L. Johnson of Johnson and Lufrano, P.A., Jacksonville, for Appellant. Pamela Jo Bondi, Attorney General, Jessica DaSilva, Assistant Attorney General, Tallahassee, for Appellee. THOMAS, J. Appellant appeals his conviction for possession of a firearm by a convicted felon.

We address only the first issue, whether the trial court erred by denying the motion for judgment of acquittal (JOA), as we reverse on this ground and order Appellant’s discharge from the conviction. 2 Facts While in the course of executing a search warrant, police arrived at the residence in question; inside were Appellant and four other males. Adjacent to the residence was a fenced-in area where a newer-model Chrysler was located, with other cars. Detective Hanson was the first officer to search the Chrysler. In the glove compartment he found a rental car agreement in Appellant’s name with what appeared to be Appellant’s signature.

According to the agreement, the rental period began on August 29, 2013, and was due to end at 6:00 p.m. on September 5, 2013, the day of the search. In the front-seat center console, which was closed, the detective found a handgun and a receipt for payment of a T-Mobile cell phone bill. Appellant’s name was on the receipt, which reflected that the bill had been paid in cash two days before the search. Another officer noted a number of items in the back seat area, including a student handbook. No DNA or fingerprint testing was done on the firearm or any other items, and no one in the residence claimed ownership of the gun. Detective Hanson was unable to recall with certainty whether the car was locked. None of the testifying officers could recall how the car keys were obtained, when the men in the residence had arrived there, or who drove the rental car to the residence that day, who had been driving it during the rental period, or 3 who owned the various items in the back seat area of the car.
Appellant moved for JOA at the close of the State’s evidence, arguing that the State failed to prove a prima facie case of possession of a firearm. Acknowledging that the firearm was found in the closed center console of a vehicle that contained items that purportedly were Appellant’s, Appellant argued that the car was located within a residence that contained several people; no one identified Appellant as the sole driver of the Chrysler; no DNA or fingerprint evidence linked Appellant to the firearm; and the keys to the vehicle were not obtained from Appellant.

 

The State argued that the element of knowledge was established by the location of the T-Mobile receipt dated September 3, 2013, found in the same console as the firearm. In denying the motion, the court acknowledged that the fact that the car was rented in Appellant’s name was insufficient to prove possession of the gun, but found that, at that point in the trial, there was no evidence that anyone other than Appellant had been in the car. The court also acknowledged, however, that “nobody is really sure exactly where the keys came from either. But in the end you’ve got this phone bill sitting there in the container which is holding the gun, and I think that is enough to require the Court to deny” the motion.
Appellant then called one witness, Mr. Byrd, who testified that he drove the rental car all day on August 31, 2013, and that others were in the car with him, but 4 he had not driven it since that day. When he was finished driving the car, the witness turned it over to Appellant’s girlfriend. He also testified that, in addition to the girlfriend, two of the men who were at the residence when police arrived had also driven the car during the week before the search. Mr. Byrd testified that on the day of the search he drove to the residence in a car belonging to Appellant’s girlfriend. Mr. Byrd did not observe the rental car when he arrived, and Appellant was alone at the residence. Mr. Byrd testified that he did not know how either Appellant or the other men got to the residence, or who drove the rental car that day. Mr. Byrd testified that, although he owned a handgun, the firearm found in the rental car was not his.1 Appellant rested his case and renewed his motion for JOA, adding to his previous argument that he had presented evidence that other persons had been in the rental car during the week prior to the search.

 

The trial court acknowledged the circumstantial nature of the State’s case and that this required the State to present evidence rebutting Appellant’s reasonable hypothesis of innocence: However, I think the state has done that again with the phone bill being there; also the fact that [Byrd] said he gave the car to [Appellant’s] wife or girlfriend. The girlfriend was not there. His girlfriend didn’t drive it, okay. [Byrd] had no idea who drove it over there on the day in question. And, again, you’ve got the phone bill in 1 Over Appellant’s objection, the court allowed the State to elicit testimony from Mr. Byrd that his firearm was found in Appellant’s girlfriend’s vehicle and he did not have a concealed weapons permit, forming the basis of Appellant’s second assertion of error. 5 there from a very close . . . date to when the vehicle was searched and the gun was found and I think that the phone bill . . . identifies [Appellant] and the container . . . there is something that identifies [Appellant] in the container that is holding the gun . . . I think the state . . . has some evidence to rebut that reasonable hypothesis of innocence . . . . The trial court found that this was not undermined by Mr. Byrd’s testimony, and pointed out that the gun did not belong to Mr. Byrd.

 

The court also found that it “clearly” wasn’t the girlfriend to whom Byrd handed over custody of the vehicle. Analysis A trial court’s denial of a motion for JOA is reviewed de novo to determine if the evidence is legally sufficient to sustain a conviction. Jones v. State, 790 So. 2d 1194 (Fla. 1st DCA 2001). An appellate court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State. Lynch v. State, 293 So. 2d 44 (Fla. 1974). Here, the State’s case was based on a theory of constructive possession of the handgun. Florida law requires this court to apply a “special” standard of review in circumstantial evidence cases, such that, when viewing the evidence in a light most favorable to the State, this court must determine whether the evidence viewed in this light excludes every reasonable hypothesis of innocence. State v. Law, 559 So. 2d 187 (Fla. 1989). If such evidence has been introduced at trial which contradicts any reasonable hypothesis of innocence, the jury’s verdict of guilt must be affirmed, as it is solely the prerogative of the factfinder to accept or reject 6 contradictory evidence. Id. at 188.

 

This “special standard” applicable in circumstantial evidence cases has been questioned in Knight v. State, 107 So. 3d 449 (Fla. 5th DCA), rev. granted, 151 So. 3d 1226 (Fla. 2014), in which the Fifth District noted that the “special standard” is inconsistent with Florida’s Standard Jury Instructions in Criminal Cases, federal law, and the majority of jurisdictions. Under the United States Constitution, no such “special standard” is required. Jackson v. Virginia, 443 U.S.307, 326 (1979) (citing Holland v. United States, 348 U.S. 121 (1954)). Under federal law, the “rational trier of fact” test is the rule of law. Id. And of course, in Tibbs v. State, 397 So. 2d 1120 (Fla. 1981), our Supreme Court prohibited appellate courts from reweighing the evidence when reviewing an order denying a motion for a judgment of acquittal. In Westbrooks v. State, the Second District affirmed the denial of a motion for judgment of acquittal, stating: Generally, a motion for judgment of acquittal should be denied “[i]f after viewing the evidence in the light most favorable to the state, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). However, in cases in which the evidence is “wholly circumstantial,” a special standard of review applies: “the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Id; see also Mosley v. State, 46 So. 3d 510, 526 (Fla. 2009) (“If the state presents both direct and circumstantial evidence, courts do not apply the special standard of review applicable to circumstantial evidence cases.” (citing Pagan, 830 So. 2d at 803)).
“Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the state, the 7 question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied.” Durousseau v. State, 55 So. 3d 543, 557 (Fla. 2010). “‘The state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the [d]efendant’s theory of events.’” Id. (quoting State v. Law, 559 So. 2d 187, 189 (Fla. 1989)). The state is not required to rebut a hypothesis of innocence that is unreasonable. See Henderson v. State, 679 So. 2d 805, 806 (Fla. 3d DCA 1996)(“While we must agree with [appellant] that the State was required to provide evidence inconsistent with any reasonable hypothesis of innocence, we emphasize that the State was not required to exclude any unreasonable hypothesis.”). 145 So. 3d 874, 877-78 (Fla 2d DCA 2014) (emphasis in original). In a concurring opinion, two judges of the panel decision expressed their concern with Florida law which requires courts to apply a special rule in circumstantial criminal cases, noting the Fifth District’s analysis in Knight v. State, and the statement there that “Florida should join the federal courts and the vast majority of states that have abandoned use of a special circumstantial evidence standard of review.” Id. at 881 (Morris and Black, JJ., concurring) (quoting Knight v. State, 107 So. 3d 449, 457 (Fla. 5th DCA 2013)). The concurring opinion quoted the court in Knight, stating the special standard improperly disregards the jury’s role and requires the appellate court to “‘ignore[] the correlation between the ‘strength’ of circumstantial evidence and ‘reasonableness’ of various hypotheses of innocence.’” Id. Finally, the concurring opinion noted that the court in Knight stated that clarification in the law as to when the special rule on circumstantial 8 evidence must apply would be beneficial. Id.

 

Here, as did the trial court, we apply the special standard of review of cases involving circumstantial evidence, even assuming that Appellant’s stipulation of his status as a felon, an element of the crime here, constitutes direct evidence, because there was no direct evidence that Appellant possessed the handgun, and his status as felon alone does not constitute proof of guilt. Westbrook, 145 So. 3d at 878 (although the State presented evidence that defendant had been told in advance of robbery plan, “there was no direct evidence that Westbrooks participated in the robberies. . . . Therefore, this court must apply the special standard applicable to wholly circumstantial evidence cases. See Kocaker v. State, 119 So. 3d 1214, 1225 (Fla. 2013).”).

 

In addition to the circumstantial evidence rule, we apply the rule of law on constructive possession. When the “premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband’s presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.” Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 1989). Here, there is no dispute that no one was in or near the rental car when police arrived at the residence (i.e., no one had possession of the car), the car was rented by Appellant, the console was closed when police searched the car, and both a handgun and a receipt for payment of a 9 cellular phone bill in Appellant’s name were found in the center console of that car. The issue is whether this evidence was sufficient to establish Appellant’s knowledge of the handgun in the console; in other words, to rebut Appellant’s reasonable hypothesis of innocence that, as the trial court summarized, “somebody else drove the vehicle at some point in time, and it is their gun as opposed to [Appellant’s].”

 

Factually, this case bears sufficient resemblance to Evans v. State, 32 So. 3d 188 (Fla. 1st DCA 2010), to warrant reversal.2 In Evans, police searched a bedroom identified by an informant as the appellant’s, which was in a jointlypossessed home. Police found on the bed in that room a duffel bag containing the appellant’s passport and other items, including a toiletry kit containing illicit drugs. Id. at 189. In part of its discussion as to why reversal was necessary, the court explained: “Because the premises where the officers found the contraband were in joint, rather than exclusive, possession, one cannot infer either the ‘knowledge’ or ‘ability to maintain dominion and control’ element from mere ownership of the 2 The State relies solely on Wale v. State, 397 So. 2d 738 (Fla. 4th DCA 1981), a reliance that is misplaced for two reasons: First, Wale involved a motion to dismiss, not a JOA motion; and second, the contraband at issue in Wale was found inside a box that was labeled with the appellant’s name and address, and was found inside Appellant’s bedroom closet. It was in this context that the court in Wale held: “Guilty knowledge can be presumed from the facts and evidence, and once it is shown that the contraband is found in the defendant’s home, in his own closet, in a box bearing his name and address, a jury question is created as to whether he had knowledge of the contraband’s presence.” Id. at 740. 10 residence or proximity to the contraband. The State must establish both elements by independent proof.” Id. at 190.

 

In Evans, this court addressed S.B. v. State, 657 So. 2d 1252 (Fla. 2d DCA 1995), where the Second District concluded that the State failed to prove that S.B. constructively possessed marijuana found in a grocery bag in the trunk of a car carrying him and several other passengers, even though S.B. admitted owning the bag, because the officer never asked if S.B. owned the container in which the marijuana was found, never inventoried the contents of the bag, and never obtained fingerprints from the container. Evans, 32 So. 3d at 189. The Evans court also addressed N.K.W., Jr. v. State, 788 So. 2d 1036 (Fla. 2d DCA 2001), explaining that “the evidence failed to show N.K.W. constructively possessed LSD found inside a baggy in his wallet, as the wallet was located in plain view on a bedroom closet shelf to which many people attending a party had access.” Id. The court noted that “N.K.W. did not admit owning the LSD, officers obtained no fingerprints from the baggy, and no direct evidence established his knowledge of the presence of the contraband.” Id. In Evans, this court explained: The presence of appellant’s passport in the duffel bag suggests he could have placed the passport there. Such an inference, however, provides no time frame with regard to when the contraband came to reside in the bag, nor any help as to appellant’s present dominion over the contraband. Without more, the mere presence of the passport is no better proof of appellant’s knowledge of, and dominion over, the 11 contraband than S.B.’s acknowledgment of ownership of the grocery bag or N.K.W.’s admission of ownership of the wallet where officers found the drugs. 32 So. 3d at 191.

 

Here, the learned trial court’s denial of Appellant’s JOA motion focused primarily on the presence in the console of the handgun and the T-Mobile receipt bearing Appellant’s name and dated two days before the search. The court found that this two-day period was sufficiently close in time to infer Appellant’s knowledge of the gun’s presence, and was bolstered by the fact that the girlfriend to whom Mr. Byrd testified he turned over the rental car was not at the residence when police arrived, but the car was. But the State presented no evidence to rebut Appellant’s evidence that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Also, police could not testify from whom or where they obtained the keys to the car, and could not say who drove the rental car to the residence on the day of the search. Furthermore, as in Evans, although the presence of the T-Mobile receipt bearing Appellant’s name suggests Appellant may have placed the receipt there, “[s]uch an inference, however, provides no time frame with regard to when the [gun] came to reside” in the console, “nor any help as to appellant’s present dominion over the [gun].” 32 So. 3d at 191. Thus, we hold that the evidence here was insufficient to support a prima facie case that Appellant was in constructive 12 possession of the firearm, and thus we must reverse Appellant’s conviction. REVERSED with directions to discharge Appellant. MARSTILLER and BILBREY, JJ., CONCUR

Florida Felony and Misdemeanor | Statute of Limitations | Theft and other Charges

Florida Criminal Statute of Limitations

“Time starts to run on the day after the offense is committed.”
Statute of Limitations

Frequently Asked Questions


How long can prosecutors wait to go forward on a criminal case?

What is the Statute of Limitations for criminal cases in Florida? 

The Florida Criminal Statute of Limitations, Theft, Drug and general Felony Statutes of Limitations sometimes depends on the nature of the criminal charges. Under Florida law:

  • Second degree misdemeanor must commence within one (1) year of the alleged incident;
  • First degree misdemeanor has two (2) years to commence prosecution;
  • First Degree (1st) felonies are 4 years; and
  • All other felonies (2nd and 3rd Degree) are 3 years.

The Statute provides, in part:

775.15 Time limitations; general time limitations; exceptions.—

(1)A prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time. If the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, all crimes designated as capital felonies shall be considered life felonies for the purposes of this section, and prosecution for such crimes may be commenced at any time.
(2)Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a)A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.


(b)A prosecution for any other felony must be commenced within 3 years after it is committed.

(c)A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed.

(d)A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within 1 year after it is committed.

(3)An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.

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BATT1000 BATTERY (TOUCH OR STRIKE)

“Actually and intentionally touches or strikes 
another person against the will of the other”

 

Battery Misdemeanor, BATT1000, BATTERY (TOUCH OR STRIKE)
Battery Misdemeanor

Battery Misdemeanor


If you have been charged with BATT1000 BATTERY (TOUCH OR STRIKE) you can call a Tampa Criminal Defense Attorney at 813-222-2220 to Fight for You.


Form Code: BATT1000


Florida Statute: 784.03.1AB
Level: Misd (Misdemeanor)
Degree: 1st
Description: BATTERY (TOUCH OR STRIKE)

BATT1000 BATTERY (TOUCH OR STRIKE) one of the most commonly charged offenses in Hillsborough County, Florida.

Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE

“conviction means a determination of guilt . . . regardless of whether adjudication is withheld”

784.03 Battery; felony battery.


(1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or


2. Intentionally causes bodily harm to another person.

(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.


“second or subsequent battery commits a 

felony of the third degree”

(2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

THEF1010 PETIT THEFT 1st – Misdemeanor Petit Theft

Misdemeanor Petit Theft

 

Petit Theft is one of the most commonly charged offenses in Florida.  If someone has no prior record, a conviction can be avoided and a Motion to Seal the records can keep this mistake from permanently hurting lives.

 

Misdemeanor Petit Theft

Misdemeanor Petit Theft

Petit Theft

If you have been charged with THEF1010 PETIT THEFT 1st you can call a  Defense Attorney  in Tampa to Fight for You or a friend.


Form Code: THEF1010


Florida Statute: 812.014.2E
Level: Misd (Misdemeanor)
Degree: 1st
Description: PETIT THEFT 1st

THEF1010 PETIT THEFT 1st is one of the most commonly charged offenses in Hillsborough County, Florida.

 

“obtains or uses, or endeavors to obtain or to use, the property of another”

Chapter 812 THEFT, ROBBERY, AND RELATED CRIMES812.014 Theft.(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:(a) Deprive the other person of a right to the property or a benefit from the property.(b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property.

It is grand theft of the third degree and a felony of the third degree
. . . if the property stolen is . . . Valued at $300 or more, but less than $5,000
(2)(a) 1. If the property stolen is valued at $100,000 or more or is a semitrailer that was deployed by a law enforcement officer; or
2. If the property stolen is cargo valued at $50,000 or more that has entered the stream of interstate or intrastate commerce from the shipper’s loading platform to the consignee’s receiving dock;
or
3. If the offender commits any grand theft and:a. In the course of committing the offense the offender uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense and thereby damages the real property of another; orb. In the course of committing the offense the offender causes damage to the real or personal property of another in excess of $1,000, the offender commits grand theft in the first degree, punishable as a felony of the first degree, as provided in s. 775.082, s. 775.083, or s. 775.084.(b) 1. If the property stolen is valued at $20,000 or more, but less than $100,000;2. The property stolen is cargo valued at less than $50,000 that has entered the stream of interstate or intrastate commerce from the shipper’s loading platform to the consignee’s receiving dock;3. The property stolen is emergency medical equipment, valued at $300 or more, that is taken from a facility licensed under chapter 395 or from an aircraft or vehicle permitted under chapter 401; or4. The property stolen is law enforcement equipment, valued at $300 or more, that is taken from an authorized emergency vehicle, as defined in s. 316.003, the offender commits grand theft in the second degree, punishable as a felony of the second degree, as provided in s. 775.082, s. 775.083, or s. 775.084. Emergency medical equipment means mechanical or electronic apparatus used to provide emergency services and care as defined in s. 395.002(9) or to treat medical emergencies. Law enforcement equipment means any property, device, or apparatus used by any law enforcement officer as defined in s. 943.10 in the officer’s official business.
However, if the property is stolen within a county that is subject to a state of emergency declared by the Governor under chapter 252, the theft is committed after the declaration of emergency is made, and the perpetration of the theft is facilitated by conditions arising from the emergency, the theft is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this paragraph, the term “conditions arising from the emergency” means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel.
For purposes of sentencing under chapter 921, a felony offense that is reclassified under this paragraph is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.(c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:1. Valued at $300 or more, but less than $5,000.2. Valued at $5,000 or more, but less than $10,000.3. Valued at $10,000 or more, but less than $20,000.
4. A will, codicil, or other testamentary instrument.5. A firearm.6. A motor vehicle, except as provided in paragraph (a).7. Any commercially farmed animal, including any animal of the equine, bovine, or swine class, or other grazing animal, and including aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $10,000 fine shall be imposed.8. Any fire extinguisher.9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.10. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d).11. Any stop sign.12. Anhydrous ammonia.However, if the property is stolen within a county that is subject to a state of emergency declared by the Governor under chapter 252, the property is stolen after the declaration of emergency is made, and the perpetration of the theft is facilitated by conditions arising from the emergency, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property is valued at $5,000 or more, but less than $10,000, as provided under subparagraph 2., or if the property is valued at $10,000 or more, but less than $20,000, as provided under subparagraph 3. As used in this paragraph, the term “conditions arising from the emergency” means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or the response time for first responders or homeland security personnel. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this paragraph is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.(d) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is valued at $100 or more, but less than $300, and is taken from a dwelling as defined in s. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 810.09(1).(e) Except as provided in paragraph (d), if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft of the first degree, punishable as a misdemeanor of the first degree, as provided in s. 775.082 or s. 775.083.

Deportation of Cuban Nationals From United States

Cuba, Deportation, lawful permanent resident, ICE, LPR
Deportation of Cuban Nationals

Deportation of Cuban Nationals From the United States remains an open question for Federal Criminal Defense Attorneys in United States District Courts. One source says, “At this point we do not know how/when the normalization will impact the U.S.’s ability to deport Cuban individuals.  At any rate, those who are in lawful status and not subject to any grounds of deportation (i.e. those who entered, obtained lawful permanent resident status, and do not have crimes that make them deportable) do not need to worry.  The main impact will be on those who either fell out of status and can’t fix their status now (for example, those who were paroled in and then never applied for lawful permanent resident status, and who are not eligible for LPR status due to crimes) and those who already have deportation orders but were released from ICE custody on ICE orders of supervision because they could not be physically deported.”

UPDATE – Deportation of Cuban Nationals


“The notice includes a warning: 

If you do not appear at a hearing, 
you may be ordered deported in your absence.”


 

Notice of Hearing, Cuba, Deportation, ICE, lawful permanent resident, LPR
Sample Notice of Hearing

There is at least one case where the deportation proceedings of a Cuban national was reset to 2019, almost four years after the initial notice from the Immigration Court. A sample Notice of Hearing is included in this article. The notice includes a warning that “If you do not appear at a hearing, you may be ordered deported in your absence.”

Furthermore the source advises, “At this point, I think it’s important to advise Cuban clients that deportation may be a reality soon and that they should be careful to avoid criminal activity and pleading to offenses that will bring them to ICE’s attention/subject them to criminal grounds of deportation.  Basically, after years of not having to face full immigration consequences (physical deportation) of criminal convictions, they will now have to seriously consider those consequences.”
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