Actual Possession Under the 10-20-Life Law

The Second District Court of Appeals recently decided an issue that my firm has litigated before – the application of a 3-year minimum mandatory sentence to instances in which a convicted felon is in ready reach of a firearm but does not actually have one on his person.  In Gallentine v. State, Case No. 2D10-1869 (Decided March 4, 2011), the Second District Court of Appeals held that a court cannot impose a 3-year minimum mandatory sentence when a convicted felon does have the firearm on his person.

The 10-20-Life law was enacted in response to violent gun crimes all over Florida.  The most well-known provisions call for a 10-year minimum prison sentence if a firearm is used in the commission of a crime, 20 years if the firearm is fired, and life in prison if a discharged bullet strikes another person.  Among its lesser known provisions are the requirement that any convicted felon who is found with a firearm on his person be sentenced to a minimum of three years in prison.

Recently, prosecutors have taken this language and attempted to stretch it to include firearms within “ready reach” of a convicted felon.  Their reasoning, simply stated, is that the Legislature recently expanded the definition of “actual possession” in some cases to include not only items on your person, but also items within “ready reach.”  Prosecutors argued that this expansion applied to the 10-20-Life law as well, even though the 10-20-Life law itself was not specifically amended with this change.

Approximately two years ago, we faced this issue in the Fourth Circuit.  The State attempted to charge my client with the 3-year minimum mandatory for a small, one-shot pistol that was found beneath the seat of his work truck after he was already outside of the truck.  We moved to dismiss the minimum mandatory sentence, arguing that while this may constitute a case of constructive possession, it was not actual possession under the 10-20-Life law.  The Judge granted our motion and sentenced the Defendant, a working father and otherwise reformed citizen, to the time he had already served.  While the State initially appealed the Judge’s ruling, they later abandoned the appeal for reasons unknown.

Gun crimes come in all shapes and sizes, and unless you have an attorney on your side who knows the law and its many applications, you may wind up with an unfair or illegal sentence.  If you are being charged with a crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

A “Consensual Encounter”

Is a person surrounded by police officers asking him questions free to leave?  What if they take his identification?  What if they approached him by blocking him in with a patrol car and shining a light in his face?  What if they asked to search him?

The courts have long struggled with the application of the Fourth Amendment of our U.S. Constitution to the everyday activities of law enforcement officers.  In an attempt at some sort of consistency, the U.S. Supreme Court has laid out three types of encounters with law enforcement: consensual encounters, investigatory detentions, and arrests.  The level of constitutional rights a person has increases with the level of restriction, respectively.

So what type of encounter is described above?  According to a circuit judge in Monroe County, the above-described scenario is simply a consensual encounter from which any reasonable person would feel free to walk away.  This conclusion is contrary to common sense, and the Third District Court of Appeals (thankfully) reversed this judge’s classification of this encounter.

In Hill v. State (Case No. 3D09-1346, decided June 30, 2010) the Third District reversed the trial judge’s ruling: that a reasonable person who is menacingly surrounded by police officers who have taken his identification and have asked to search would feel perfectly comfortable walking away from the officers.  In this case, an anonymous tip told officers that a black man was sitting by a white woman at a particular location and selling drugs.  When the officers arrived, one of them pulled up directly in front of Hill ( black man) and directed his spotlight on him.  Another officer took Hill’s identification to check for outstanding warrants.  Four officers then approached from different directions and boxed him in, asking to search his person.  The police had no other indication that any sort of crime was being committed.

Thankfully, the Third District applied common sense to a real-life situation.  Holding a person’s identification is certainly one way of preventing them from leaving.  The fact that his identification was being held by armed officers who were asking to search increases the restrictiveness of this encounter.  While I am glad to see this simple principle applied, I am dismayed by the myriad of trial courts who do not believe that this is a form of detention.

Police do not always abide by the Fourth Amendment.  The law exists to protect society from both criminals and the police. Consensual encounters with law enforcement can quickly become investigative detentions or arrests.  If the police do not observe your constitutional protections, you may have a legal recourse.

If you are facing prosecution for a crime or are concerned that your rights have been violated, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Standing Your Ground

In Florida, your home is your castle.  The “Stand Your Ground” Law is a relatively new defense under Florida’s criminal statutes.  Several years ago Florida’s Legislature passed a law that changed the way prosecutors and police dealt with the use of deadly force in certain situations.  The law essentially states that if you have a right to be in a place and another person forcibly enters that place or physically attacks you while in that place, you have the right to “meet force with force” if you believe such force is necessary to avoid great bodily harm to yourself or another.

Sounds like common sense, right?  Unfortunately, for years in Florida, innocent homeowners were being prosecuted for inflicting serious, even deadly injuries upon burglars and thieves.  After a prolonged public outcry, the law was finally changed to ensure that people who stood up to criminals would never have to be criminally punished for doing so, as long as they did so reasonably.

Unfortunately, situations in which this defense may apply are not always clear-cut.  Sometimes, police arrest first and ask questions later.  While I respect many law enforcement officers in our community, I also recognize that they are usually not legal scholars that understand the nuances of Florida Law.  Despite the Stand Your Ground Law, you may still face criminal prosecution for defending your car, your home, or your loved ones.

Other times, a use of force may be deemed excessive.  For example, killing someone who is merely trespassing on your property, without displaying any intent to harm anyone, is a prime example of this.  Ongoing feuds with the trespassers, previous threats of violence by them, and acts of harassment can sometimes increase the fear of harm.  As I said, these situations are not always so clear-cut.

When these situations arise, you need an experienced criminal attorney.  As a criminal trial attorney in Jacksonville, Florida, I am no stranger to gun crimes.  When a firearm is involved, prosecutors and police tend to automatically seek prison without stopping to see if there is a valid reason for the use of force. While gun crimes are far too prevalent in North Florida, they are not always attributable to gang violence and drug trade.  Sometimes, a person overreacts to a situation in which they feel threatened.  And sometimes, that overreaction is justifiable.

If you are facing prosecution for a violent crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Police-created Crimes

A man goes to cash a large check he received from his recently deceased father’s estate. When he arrives at the bank, the cashier thinks the check is suspicious because it is so large and calls the police. The police arrive and take the check from him and tell him they will return when they have verified it. The man attempts to grab the check from the officer and is charged with resisting with violence and battery on a law enforcement officer. The officer later asks a judge to sentence him to ten years in prison.

Two undercover officers approach an addict and tell her they will give her some crack if she goes an buys a large quantity of crack for them. Despite her misgivings, she agrees. She returns with the drugs and is arrested for a second degree felony, punishable by up to fifteen years.

An older man is walking through a park. Another man approaches him and propositions him for oral sex. The older man reluctantly agrees, only to be immediately arrested for solicitation of a lewd act.

A young man who has never been arrested before receives a call from a friend of a friend who is asking for a large amount of ecstasy. The young man has a job and is going to school and has never sold drugs before. He politely declines, only to be called again a few days later by the same “friend” for the same purpose. He refuses. Over the next two weeks, he is bombarded by text messages and voicemails claiming that the “friend” knows he sells “X” and that he is holding out on him. Finally, the young man gives in and makes some calls. When the young man goes to pick up the money from the “friend,” the “friend” shoots him in the neck and paralyzes him from the neck down. Permanently. Later, the “friend” would reveal that he was actually and undercover narcotics officer and claim that the young man pulled a gun on him. The young man’s family is confused, as no one in the family has ever owned a gun.

All of these are criminal defense cases I have encountered over the years. And all of them have one thing in common: they would not have happened but for the police.

Police exist to prevent crime, pursue criminals, and protect civilians. Police should not, under any circumstances, create crimes. It’s immoral. It’s unethical. I would even say that it is evil.

In my years as a criminal defense attorney, I have seen hundreds, if not thousands of police-created crimes. In fact, police created crimes are the majority of drug cases I defend. You may be asking “Is there no recourse?” “Isn’t this entrapment?” “Shouldn’t police be arrested for the crimes they commit too?”

My friend, I have been asking these same questions for decades. Unfortunately, the United States Supreme Court has spoken on the issue of entrapment. The Court places the burden on the entrapped to prove their innocence, and if there is any indication that the crime would have happened regardless of the police’s involvement, the defense fails. This means that the government can dig up prior convictions and establish that the person has a “tendency” to engage in criminal behavior, and therefore would have committed this crime anyways.

Regardless of the many moral qualms surrounding police-created crime, it remains a staple in many law enforcement agencies. It is glamorized in movies and TV shows as righteous undercover work, with nary a mention of its often unsuspecting victims. It needs to stop.

If you are facing prosecution for a police-created crime, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

What to do when you’re served with an injunction

An injunction is Florida’s version of a restraining order. When someone asks a court to issue an injunction keeping you away from them, the Court will immediately grant a “temporary injunction” until there is a full hearing to determine if there should be a permanent one. Temporary injunctions are just as powerful as permanent injunctions, and violating the terms of that injunction can have serious consequences. If you are given an injunction ordering you to have no contact with someone, you may feel hurt, betrayed, angry, worried, or outraged. At this point, you have many legal options: you can consult an attorney to determine if you want to get your own injunction against that person, you can hire an attorney to represent you at the pending injunction hearing, or you can simply agree that a permanent injunction should go in place against you. The one option you absolutely do not have: contact the other person in an attempt to work it out. Emails, text messages, even comments and messages on networking sites like facebook and myspace can amount to a violation of an injunction. Over the past few years, I have seen the law adapt to our recent technological advances, and if you think that an injunction doesn’t forbid these types of contact, you’re wrong. I have seen people go to jail over simple friend requests. However, if you do find yourself in the position of having made some sort of contact despite an injunction, you need representation. There are criminal penalties associated with this type of action, including fines, probation, and even up to a year in jail. The penalties that enforce injunctions are tough, and judges typically do not look kindly upon those who, in their opinion, ignore a lawful order. The injunction process is technical and has very strict legal standards. Whether you’re seeking one against someone, trying to understand why one was issued against you, or simply trying to prevent one from being ordered, it never hurts to have an experienced attorney on your side. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Injunctions

Sometimes people need a restraining order.

In Florida, a restraining order is commonly called an “injunction.” An injunction is simply a legal term for a court order that either forbids you from doing something or that forces you to do something. Sometimes these injunctions provide much needed protection from dangerous people, but sometimes they can be used as vindictive tools to further another person’s agenda.

For example, there have been times that I represented young women who were frightened because their ex-boyfriend or ex-husband would not leave them alone. And by this, I mean that their conduct rose to a level that normal people wouldn’t feel comfortable with, like hanging around the outside of her residence at night, uninvited, or sending threatening texts or emails.

When relationships deteriorate to this point, an injunction can be a useful way of putting needed space between two people. I have also represented people in the opposite situation. Sometimes people use injunctions to further their own agendas in divorce proceedings or custody battles. Sometimes people use injunctions for revenge. The point is that the injunction process can be abused. When that happens, you need an experienced attorney in the courtroom fighting for your interests.

Injunctions can be issued upon a showing of a credible threat to one’s person or property. All testimony in injunction hearings is under oath, meaning that a lie may result in being held in contempt of court or perjury charges. Most importantly, violating an injunction is a first degree misdemeanor that can be punished by up to a year in jail. There can be a lot at stake in these types of proceedings. Don’t face it alone. Call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Miranda rights & DUIs

In 1966 the United States Supreme Court decided the landmark case of Miranda v. Arizona and instituted what are commonly called miranda rights. Miranda rights have become famous through their frequent and required use in everyday law enforcement, and are often used in TV shows that portray criminal arrests. The notion is simple: if you are not free to leave an officer’s presence, you are in custody. If you are in custody, you must be told that you do not have to say anything that might be used against you. It seems simple enough, yet a loophole Florida law strips this principle of its power during DUI investigations.

Florida’s Third District Court of Appeal has decided that miranda warnings are not necessary when a citizen is pulled over and subjected to a DUI investigation. How can this be? Is the driver free to walk or drive away from the officer? Absolutely not. The judges in the Third District have diminished the power of Miranda v. Arizona by holding that it does not apply to “routine traffic stops.” State v. Alvarez, 776 So. 2d 1060 (Fla. 3d DCA 2001). This holding is both dangerous and violates your Fifth Amendment right to remain silent.

I have represented many clients who have been effected by this decision. When drivers are pulled over at a late hour, they are often immediately asked if they have been drinking. They are not free to leave and are being asked incriminating questions. This is the very scenario which Miranda v. Arizona is meant to apply to. Yet in Florida, an officer is not required to tell a DUI suspect that they have a right to remain silent and that they do not have to answer their questions.

Remember, if you are pulled over, you have a right to remain silent. You do not have to answer any questions. If you have been arrested, call us at (904)350-9333 for a free consultation.

Pre-Arraignment Investigations

The most important time period in any case is the time before charges are filed.

Here at Shafer & Associates, we specialize in pre-arraignment investigations. One service we offer is to take on your case after you have been arrested but before any formal charges are filed by the prosecutor.

Recently we were hired on a theft case that involved a single piece of very valuable electronic equipment. The victim in the case had one concern: to get the stolen property back. Our client was arrested on grand theft charges and his case was passed for three weeks so that the prosecutor could have time to gather the case and file charges. The client immediately came to us and explained that he had the stolen equipment. We quickly contacted the victim in the case and told them we could arrange for the property to be returned if our client was not prosecuted. We also contacted the prosecutor and advised them that we would have the property returned if the prosecutor agreed to not file charges. After the prosecutor and the victim discussed the case, the prosecutor agreed to drop all charges as soon as the property was returned. I personally delivered the equipment to an Investigator for the State Attorney’s Office, who then gave me a receipt for the property and delivered it back to the victim. All charges were dropped, and our client never had to go to court on the charge.

Unfortunately, many court-appointed lawyers or public defenders do not get involved in criminal cases until charges are actually filed.  However, pre-arraignment investigations are one of our specialties. The best way to beat a charge is to prevent it from ever being filed at all.

Regards,

Robert Shafer, Esq.