In South Florida, we are accustomed to preparing for the threat of hurricanes. This preparation should include securing your residence, removing debris from the yard, checking out government resources, monitoring the storm’s progress, gathering supplies, filling up the car with gas, testing those generators, packing an emergency kit, making arrangements for pets, getting cash from the ATM, making sure you have your prescription medications, and making an evacuation plan. This preparation is essential in dealing with a potential hurricane making land fall; however, the preparation should not end there.
Those unlucky individuals who are impacted by the storm, will face the challenges of making a claim and getting their claims paid smoothly. Before the storm, is the time to make those preparations.
CREATE A HOME INVENTORY
The number one thing you can do to help get your claim payed quickly is to take video of the outside of your house and the inside of your house. Simply use your cell phone and walk around the outside of your home. This will show that you took the necessary precautions to secure your home. Then use your cell phone and walk through your house. Make sure to open up drawers and closets. Document all of your personal effects and valuables. Gather your receipts and records for any upgrades and major purchases.
GATHER IMPORTANT DOCUMENTS
In order expedite a claim, it will be important to have a copy of your insurance policy (home and auto) as well as the contact information for your local insurance agent and the insurance company. This information is important so you know what is covered and how to contact the insurer to make a claim.
In addition to the insurance information, identification records, legal documents, and financial paperwork should be gathered and secured. Identification records include driver’s licenses, birth certificates, passports and Social Security cards. Legal documents include marriage records, death certificates, immigration records, wills, living wills, and powers of attorney. Financial statements include loan documents, insurance contracts, titles of property, deeds, and financial statements for you bank, retirement and investment accounts.
Now that you have prepared your home, repeat the process to prepare your business.
A trial court owes a duty of neutrality to the parties and may not favor one side or the other. J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009). Over the course of my career, I have conducted numerous trials where lawyers/prosecutors try and introduce evidence without first establishing the proper foundations. When I was a young Assistant Public Defender, one of my mentors gave me a checklist with all of the proper foundation questions that are required to introduce different types of evidence in trials. I immediately recognized that this sheet was worth more than its weight in gold. In every trial, I have my checklist ready so I can make the proper objections to exclude improper evidence. But what do you do, when you make an objection and the Judge agrees with the objection but tells the opposing side to lay the proper predicate for evidence.
Broward Criminal Defense Attorney Neil Kerch preparing Evidence Objections for Trial.
Any attorney who has conducted trials has come across this situation numerous times. Is the Judge now departing from neutrality to tell the other side how to overcome your objection? Is the Judge departing from Neutrality?
The Florida Appellate Court for the Fourth District recently decided M.W. vs The State of Florida. In that case, the State charged M.W. in a one-count petition for delinquency after M.W. was arrested for shoplifting headphones at an Apple Store. According to statute, “if the property stolen is valued at $100 or more, but less than $300, the offender commits petit theft in the first degree.” § 812.014(2)(e), Fla. Stat. (2017). At trial, the State was examining the store security officer who arrested M.W. when the following exchange occurred:
WITNESS: We basically, because he is a juvenile we have [to] call the parent. And the fact that the amount was 299.95 —
DEFENSE: Objection, hearsay.
JUDGE: Establish how he knows.
STATE: Your Honor, he has personal knowledge.
JUDGE: Establish.
Thereafter, the State asked the appropriate set of questions to establish the value of the headphones at $299.95. On appeal, M.W. argues that this exchange shows the trial judge entering the fray to an impermissible degree in order to establish a key fact of the proceeding. Conceding that the defense at trial lodged no objection to the trial court’s participation in this exchange, M.W. further argues fundamental error.
The Appellate Court turned to J.L.D. v. State, 4 So. 3d 24, 26 (Fla. 2d DCA 2009) for guidance. In J.L.D., a juvenile was adjudicated delinquent for grand theft of a motor vehicle. During the restitution phase of the trial, the trial judge took over the questioning of witnesses in an effort to establish the amount of damages. The Second District concluded that the trial judge “departed from a position of neutrality in an attempt to elicit testimony in support of the restitution award.” Id. at 26. The Second District, however, determined that the error was harmless because the trial court’s conduct did not increase the restitution award. Id.
The Appellate Court also looked at Lyles v. State, 742 So. 2d 842, 843 (Fla. 2d DCA 1999). In Lyles the Second District determined that a trial judge, in a probation revocation proceeding, “committed fundamental error by sua sponte ordering Lyles’ fingerprints for the purpose of identification and bifurcating the hearing to allow additional testimony.” Id. at 843. The extent to which the trial judge intruded in the proceeding led the Second District to conclude that the defendant was deprived of an impartial judge. Id.; see alsoSparks v. State, 740 So. 2d 33, 36 (Fla. 1st DCA 1999).
M.W. cites to both J.L.D. and Lyles to establish that a trial judge’s decision to enter the fray may rise to the level of fundamental error. M.W. supports these cases with several, other non-fundamental error cases that confirm the proposition that a trial court may not breach neutrality. SeeSeago v. State, 23 So. 3d 1269, 1272 (Fla. 2d DCA 2010) (holding that it was improper for the trial judge to suggest to a witness that her testimony must be identical to that of her pretrial deposition); Evans v. State, 831 So. 2d 808, 811 (Fla. 4th DCA 2002) (holding that the trial judge impermissibly suggested during cross-examination that the prosecution inquire into defendant’s immigration status); Asbury v. State, 765 So. 2d 965, 965 (Fla. 4th DCA 2000) (holding that, at a suppression hearing, the trial judge impermissibly prompted the State to present evidence and recall witnesses).
The Appellate Court decided that the trial judge in M.W. vs The State of Florida did not enter the fray to an extent or a magnitude close to the intrusions of the trial judges in M.W.’s cited cases. In this instance, the trial judge merely told counsel for the State to lay a proper predicate for the evidence the State knew it was required to present. The trial judge neither asked a question of the witness nor told the State which question to ask of the witness. In other words, the trial judge did not cross a line and assume the role of the prosecutor. The Court determined that the judge’s conduct fell within a trial court’s latitude to regulate the course of a trial in his courtroom. Hahn v. State, 58 So. 2d 188, 191 (Fla. 1952); R.W. v. Dep’t of Children & Families, 189 So. 3d 978, 980 (Fla. 3d DCA 2016). It also fell within the right of a trial judge to “exercise reasonable control” over the interrogation of witnesses. See § 90.612(1), Fla. Stat. (2017).
Although the Judge was permitted to regulate the course of a trial, it is important to make the objection anyway. I have found that other lawyers/prosecutors sometimes don’t have a checklist with all of the proper foundation questions that are required to introduce different types of evidence in trials and/or don’t remember all of the proper foundation questions. Although the Judge can tell him to lay a proper foundation, he cannot tell him what the foundation questions are.
Unlike some states, Florida does not give credit for the time spent on probation, nor is the jail or prison time limited to the amount of time the person has remaining on his probation. This is a common myth. However, sometimes, with the help of a competent attorney, some defendants may be able to persuade the Judge to reinstate them to probation if they’ve taken all steps possible to mitigate their violation.
Probation is expensive. In addition to the $55 monthly fee, presumptive breath tests for alcohol are roughly $15 each; urine screenings for drugs are at least $25 each. If someone’s probation requires them to be electronically monitored, that fee is roughly $105 per week depending on what county they are in.
Not adhering to any one of the conditions of probation can result in re-arrest and serious consequences. Depending on the Judge, those consequences may include jail or prison time. It doesn’t matter how long someone has been on probation. If a person is in their 23rd month of a 24-month probation, if they’ve violated their probation, they may be sent to jail or prison for the same term of incarceration they could have been sentenced, and sometimes more, for the original charges
If someone is genuinely struggling financially and can’t pay their cost of supervision or their court cost, they should tell their probation officer. The probation officer may submit a request to the court to either lower the costs of supervision or even ask the court to waive it.
A judge may also impose a “lien” for court costs or fines if a person cannot pay these costs. If a lien is imposed the probationer must set up a payment plan within a set period of time from sentencing otherwise their driver’s license privileges will be suspended. To qualify for a lien, the probationer must be looking diligently for work, have a job or be going to school.
As a rule, people do not go to jail for not being able to meet the financial obligations of probation. The standard for a violation of probation is it must be “substantial and willful.”
Someone who is on probation should not associate with convicted felons or “hang out” at certain bars or other locations that are known places where illicit substances are sold.
This brings up reporting interaction with police. Every month people on probation check in with their probation officer and fill out a questionnaire. One of the questions is about whether they have come into contact with a law enforcement officer.
Sometimes, this question sets off alarms. People may be afraid that if they report having interacted with a police officer they will automatically violate their probation.
However, if someone fails to disclose contact with police to the probationer may be considered as being less than truthful with their PO, even for not revealing a simple civil infraction/speeding ticket. This may subject them to being violated for not telling the truth to their probation officer. It’s almost as bad as getting arrested for a new offense.
Be honest. Simply reporting a crash or civil infraction, will not get a person’s probation violated. On the other hand, if a probationer gets a criminal traffic citation or even a notice to appear on a criminal misdemeanor, say, for example, for misdemeanor marijuana possession, they most likely will have a VOP warrant issued against them.
Failing a drug or alcohol test is almost certain to land a probationer in jail with a likelihood of not being given a bond.
There are occasions when someone has technically violated probation but their PO will set up a meeting with the Judge where the probationer will be reprimanded and if this same behavior happens again, their probation will be violated.
If you are accused of violating your probation, your best option is to contact Criminal Defense Attorney Neil C. Kerch so I can defend the matter on your behalf.
Disclaimer:
This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.
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Cell phones must be in communication with a tower to receive phone calls or messages and to transfer data. Phone companies record people’s historical cell-site location information (“CSLI”), which can be imported onto a mapping program to show the location of the towers that received the phone’s data at certain times.
Since nearly everyone has a cell phone, Law enforcement often uses this information to track suspects whereabouts. The government can use this tool to place individuals at the scene of a crime, thus negating the defense that some other dude did the crime.
HOW IS A CELL PHONE’S LOCATION IDENTIFIED?
A cell phone’s location can be detected through cell site location information (CSLI) or global positioning system (GPS) data. CSLI refers to the information collected as a cell phone identifies its location to nearby cell towers. CSLI from nearby cell towers can indicate a cell phone’s approximate location. With information from multiple cell towers, a technique called “triangulation” is used to locate a cell phone with greater precision. A cell phone’s GPS capabilities allow it to be tracked to within 5 to 10 feet. Cell phone location information can be “historical” or “prospective.” In addition to the location information cell phones ordinarily generate, a cell phone may be “pinged” to force it to reveal its location.
HOW IS CELL PHONE LOCATION INFORMATION USED?
Cell phone companies store historical and prospective CSLI and prospective GPS data, which law enforcement authorities can request from them through court processes. Historical CSLI enables law enforcement to piece together past events, for example, by connecting a suspect to the location of a past crime. Prospective location information, on the other hand, helps law enforcement trace the current whereabouts of a suspect, which can lead to arrest.
DOES LAW ENFORCEMENT NEED A WARRANT?
In Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018), the Supreme Court held that historical CSLI data is protected by the Fourth Amendment, and thus, the government’s acquisition of such data constitutes a search which requires a warrant supported by probable cause. The Supreme Court’s opinion is binding upon Florida courts under article I, section 12 of the Florida Constitution, and an appellate court applies the law in effect at the time of its decision. See State v. Glatzmayer, 789 So. 2d 297, 303 n.10 (Fla. 2001). In Tracey v. State, 152 So. 3d 504, 525-26 (Fla. 2014), the Florida Supreme Court held that real time CSLI data was protected by the Fourth Amendment, and thus, its use by law enforcement constituted a search which required a warrant based upon probable cause. The message of the United States Supreme Court and Florida Supreme Court is unmistakable to law enforcement: “Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one — get a warrant.” Thus, the acquisition of this data without a warrant based on probable cause constitutes an illegal search pursuant to the Fourth Amendment.
If you or a loved one has been arrested and you believe the police violated your Fourth Amendment rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.
Disclaimer:
This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.
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As we have previously discussed, Miranda Warnings are only required when someone is in custody and subject to interrogation. An interrogation refers to direct questioning by police after a suspect has been taken into custody. The Supreme Court ruled as much in 1980 after Thomas Innis, a man who had been arrested for robbing a taxi driver at gunpoint, ended up leading his arresting officers to the gun he used in his crimes. He did this after hearing two officers discuss their concern for mentally disabled children in the area who might find the gun and hurt themselves. The Supreme Court ruled that the shotgun was admissible in court because Innis’s statement had been spontaneous, and was not technically the product of “interrogation.” Remember, voluntary statements are admissible.
No matter how serious the crime, you are protected by your Fifth Amendment right against self-incrimination and your Sixth Amendment right to counsel. Anyone who is in custody and being questioned should specifically invoke your rights. Unless you explicitly say that you are invoking your right to remain silent, you might not actually be exercising it, the Supreme Court ruled in its controversial 2010 decision in a case called Berghuis, Warden v. Thompkins. The defendant, Van Chester Thompkins, was interrogated by police for three hours without saying a word. Towards the end of the interrogation, when asked if he prayed to God to forgive him for the shooting he was suspected of, he answered, “Yes.” The majority ruled that his offhanded confession was unprotected by Miranda. Justice Sonia Sotomayor, dissenting, remarked that the court had concluded “that a suspect who wishes to guard his right to remain silent … must, counterintuitively, speak.”
So here is an example of a recent case involving a waiver of the Miranda warnings. At the beginning of the interrogation, the following exchange took place:
Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?
A: Uh-huh.
Q: Anything you say can and will be used against you in a court of law.
A: Uh-huh.
Q: You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.
A: Uh-huh.
Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning. So if you don’t like the way it’s going, you can say, whoa, [detective].
A: I don’t have no lawyer, so —
Q: You — –
A: I don’t even have no money to call a lawyer.
Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?
A: Uh-huh.
Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now. (emphasis added).
Too often people waive their rights to remain silent and have an attorney present. Once the Miranda warnings are read and then waived, then the interrogator uses his training and expertise to illicit incriminating statements that are recorded and will be used later in trial. In the scenario above, the Defendant waived his rights and admitted to committing the crimes charged. Luckily for this Defendant, the Miranda warnings were captured on video.
A Motion to Suppress was filed and argued to the Court because the waiver of his Miranda rights (“I don’t have no lawyer, so — I don’t even have no money to call a lawyer.”) was ambiguous. The Courts have held that the Interrogator has a duty to clarify that there is a knowing and intelligent waiver. “[A]n ambiguous waiver must be clarified before initial questioning.” Alvarez v. State, 15 So. 3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.” U.S. v. Rodriguez, 518 F. 3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”). See also Miles v. State, 60 So. 3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”)
Even if an interrogation has begun and you have answered some questions, you can stop the questioning by telling police that you are exercising your right to stay silent.
If you or a loved one has been arrested and you believe the police violated your Miranda rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.
Disclaimer:
This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.
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Often I am asked, what are the requirements for probation. Before entering into and accepting a plea to probation, the client should understand the terms and requirements for probation. While the court determines the specific terms and conditions of a defendant’s probation, the standard conditions of probation under Florida law are as follows:
Report to the probation supervisor as directed by the court
Allow the probation officer to visit the probationer’s home, place of employment, or other places
Remain gainfully employed in a suitable job
Stay within a specific area, such as within county or state limits
Do not break any new laws
Make restitution to any parties who were harmed by the crime
Financially support one’s dependents
Do not associate with any people who are engaged in criminal activities
Willingly submit to random drug and/or alcohol testing
Do not possess, own, or carry any firearms
Do not use any controlled substances unless they were lawfully prescribed by a doctor
For additional information, the terms and conditions of probation are found under Section 948.03 of the Florida Statutes.
While there are different levels of probation, such as administrative (non-reporting), reporting, sex offender, drug offender, and Community Control (the strictest type of probation also known as “house arrest”), they all require absolute compliance with the various terms and conditions. The state has zero tolerance for violators, who are penalized for their noncompliance.
As a general rule, criminal defendants find probation to be a favorable alternative to being behind bars for reasons we can understand. Still, probationers must not take probation for granted; while on probation, they must adhere to strict terms and conditions.
If the terms and conditions of probation are violated, there are severe consequences. If a probationer violates one of their terms of probation, it can lead to an arrest warrant being issued. Generally, a probation officer (PO) learns that a probationer violated one of the terms of their probation, then the PO can either make a “warrantless arrest,” or they can prepare an affidavit and present it to the judge.
From there, the judge examines the affidavit and if they agree with the PO, the judge will issue an arrest warrant. Once issued, the defendant will likely be arrested and held in custody without bond until the pending violations are resolved.
If you violated your probation and suspect an arrest is imminent, contact our office to speak with Criminal Defense Attorney Neil Kerch immediately. Unless you can prove to your Probation Officer without a doubt that you were compliant, you are not likely to dissuade your Probation Officer from finding you in violation and imposing harsh consequences.
If you are accused of violating your probation, your best option is to contact Criminal Defense Attorney Neil C. Kerch so I can defend the matter on your behalf.
Disclaimer:
This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.
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Often I have clients tell me they are 100% innocent of the crime they are accused of committing. Then, the State Discovery Submission comes with a DVD of my client’s confession. How can that be?
Many police investigators are trained in use of the Reid technique, a multistep approach to interrogation that is designed to increase the anxiety associated with denial while reducing the anxiety associated with confession. Perhaps, the most controversial tactic permissible within this approach involves the false evidence ploy by which interrogators bolster an accusation by presenting the suspect with supposedly incontrovertible evidence of his or her guilt (e.g., a fingerprint, blood or hair sample, eyewitness identification, or failed polygraph)—even if that evidence does not exist. In the United States, this type of deception is permitted by law, recommended under certain circumstances, and occasionally used by police. See Inside Interrogation: The Lie, The Bluff and False Confessions by Jennifer T. Perillo and Saul m. Kassin
Drawing on the distinction between coerced-compliant and internalized false confessions there are two mechanisms by which innocent suspects might confess when confronted with false evidence. First, research has shown that people in general confess as an act of social compliance when they feel trapped by the apparent strength of the evidence against them and perceive no other means of escape. Second, research has shown that false evidence, a strong form of misinformation, can create confusion and lead people to doubt their own beliefs, at times internalizing guilt and confabulating memories for crimes they did not commit. See Inside Interrogation.
In addition to the dispositional and situational factors that can increase one’s vulnerability to false confession, research shows that innocent people who stand accused believe that their innocence will become apparent to others, a naive belief that leads them to waive their Mirandarights to silence and to an attorney. See Inside Interrogation.
If you or a loved one has been arrested and or the police want to question you, ask for an attorney to be present before and during all questioning. Contact Broward Criminal Defense Attorney Neil C. Kerch to safeguard your rights.
Disclaimer:
This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.
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Broward Criminal Defense Attorney Neil C. Kerch explains Police/Citizen Encounters…by Neil C. Kerch
Before an officer can stop an individual, the police officer must have “founded” or reasonable suspicion that the individual has committed, is committing, or is about to commit a crime. § 901.151(2), Fla. Stat. (2004). A “mere” or bare suspicion will not suffice. State v. Beja,451 So. 2d 882 (Fla. 4th DCA 1984).
However, not all encounters with Law Enforcement fall into this requirement. A consensual encounter is a police-citizen encounter where a citizen may either voluntarily comply with police requests or choose to ignore it, and does not give rise to constitutional safeguards because the citizen is free to leave. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed.2d 497(1980); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993); Brye v. State, 927 So. 2d 78, 81 (Fla. 1stDCA 2006). Unfortunately, many people do not realize they are free to leave when Law Enforcement is making a consensual encounter. This often plays a pivotal role in the arrest of criminal suspects and the search and seizure of evidence to be used in trial.
As a Criminal Defense Attorney, I always check to see if the consensual encounter has become an investigatory stop — where an officer may reasonably detain a citizen temporarily — once a police officer displays authority in a manner that would lead a reasonable person to conclude, under the totality of the circumstances, that he/she is not free to leave and feel compelled to comply. Popple v. State,supraat 186; Williams v. State, 874 So. 2d 45 (Fla. 4thDCA 2004); Errickson v. State, 855 So. 2d 700 (Fla. 4th DCA 2003).
To justify a police officer’s investigatory stop, the officer must have reasonable, articulated suspicion of criminal activity. Mere suspicion is not enough to support an investigatory stop. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, supraat 186; Daniels v. State, 543 So.2d 363 (Fla. 1st DCA 1989). If a reasonable person would conclude, based on the totality of the circumstances, that he/she is not free to leave, then the police-citizen encounter is a seizure under the Fourth Amendment and requires, at a minimum, reasonable suspicion.Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L.Ed.2d 389 (1991); Ripley v. State, 898 So.2d 1078 (Fla. 4th DCA 2005); Miller v. State, 865 So.2d 584 (Fla. 5th DCA 2004). If the Government violated the Fourth Amendment rights, then the arrest and evidence gathered may not be able to be used in trial.
If you or a loved one has been arrested and you believe the police violated your Fourth Amendment rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.
Disclaimer:
This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.
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Broward County Criminal Defense Attorney explains Florida’s controversial Stand Your Ground Law…by Neil C. Kerch
In 2005, the Florida Legislature enacted the Stand Your Ground law and by statute eliminated the common law duty of an individual to retreat before using force in self-defense. § 776.012(1), Fla. Stat.; Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017). The statute also provides immunity for those who lawfully use force in self-defense. § 776.032, Fla. Stat. The Florida Supreme Court subsequently determined in Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015), that a defendant has the burden of proof in a pre-trial Stand Your Ground immunity hearing and that the defendant has to prove by a preponderance of evidence that the defendant’s “use of force was justified, as specified by statute.”
Following the issuance of Bretherick in 2015, the Florida Legislature amended section 776.032 and added subsection (4), which states:
In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
The legislature provided that “[t]his act shall take effect upon becoming a law,” which occurred when the governor signed the bill into law on June 9, 2017. Ch. 2017-72, § 1-2, Laws of Fla.
The amendment shifted the burden of persuasion from the defendant to the state. The amendment also changed the quantum of proof required from preponderance of the evidence previously required of the defendant to clear and convincing evidence now required of the state, after the defendant makes a prima facie claim of self-defense immunity.
As you can see the Florida Stand Your Ground Law is evolving and with this evolvement it opens up new legal challenges. For example, are the changes in subsection (4) procedural or substantive? Should we apply the changes retroactively or prospectively from the date the changes became law?
The answer is it depends on where you live in Florida. If you live in the area that is covered under the the Third or Fourth District Court of Appeals, then the the amendment adding subsection (4) is a substantive change to the law, and as such, applies only prospectively from the date of enactment. If you live in the area that is covered under the the First or Second District Court of Appeals, then the the amendment adding subsection (4) is a procedural change to the law, and as such, applies retroactively.
If you or a loved one is facing Criminal Charges in Broward, Miami-Dade, or Palm Beach, Criminal Defense Attorney Neil Kerch has the knowledge and experience to guide you through Florida’s Controversial Stand Your Ground Law.
Disclaimer:
This Post is informational in nature and is not intended to provide or substitute for legal advice. Each case is unique and should be evaluated by a Criminal Defense Attorney.
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Broward County Criminal Defense Attorney talks about terminating a permanent injunction in Florida…by Neil C. Kerch
Domestic violence is an extremely serious issue, and can give grounds for a restraining order, also known as a domestic violence injunction. An injunction is a court order commanding or preventing an action, which is often sought under exigent circumstances. Many of my criminal cases often involve some sort of domestic violence injunction.
Domestic Violence Injunction Court is especially busy in Florida, with dozens of daily cases filed in every Florida County. Restraining orders and domestic violence injunctions can have an earth-shaking effect on the individual. A restraining order is free to file, is quick in its effect, and can give an incredible tactical advantage to the filing party. Too often people try to go at it alone and suffer consequences of having a permanent injunction enforced against them. That is why it is important to hire competent legal help from the beginning.
Even if a permanent injunction has been granted, there is still a chance to have the injunction dissolved. Section 784.046(10), Florida Statutes (2009), allows the court to modify or dissolve an injunction at any time on the motion of an interested party. Likewise, Florida Rule of Family Procedure 12.540 allows a final injunction to be set aside under specified circumstances. In either event, due process requires that Respondent be given an opportunity for a hearing. See Kugler v. Joosten, 58 So. 3d 323 (Fla. 1st DCA 2011); Raymonvil v. Lewis, 46 So. 3d 139 (Fla. 5th DCA 2010); McCormick v. Shannon, 32 So. 3d 787 (Fla. 2d DCA 2010); Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010).
In order to establish entitlement to dissolution of an injunction, the movant must prove that there has been a change in circumstances since the injunction was entered. Baker v. Baker, 112 So. 3d 734, 735 (Fla. 2d DCA 2013); Alkhoury v. Alkhoury, 54 So. 3d 641, 642 (Fla. 1st DCA 2011). This requires the movant to “demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury, 54 So. 3d at 642. “As a general rule, permanent injunctions, which remain indefinitely in effect, may be modified by a court of competent jurisdiction ‘whenever changed circumstances make it equitable to do so.’ ” (quoting Hale v. Miracle Enters. Corp., 517 So. 2d 102, 103 (Fla. 3d DCA 1987))). Baker v. Baker 112 So. 3d 734, 38 Fla. L. Weekly D1007a. If you or a loved one needs help with any type of injunction issue, please contact the Law Office of Neil C. Kerch LLC.
Disclaimer:
This Post is informational in nature and is not intended to provide or substitute for legal advice. Each case is unique and should be evaluated by a Criminal Defense Attorney.
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