Juvenile Sexual Offenders in Florida

The First District Court of Appeals recently made a landmark decision that greatly effects the juvenile criminal justice system in Florida.  In K.J.F. v. State, Case No. 1D10-1539 (decided September 30, 2010) the Court held that, unlike adults, juveniles who are found to have committed certain sexual offenses only have to register as sex offenders (a life-long designation) if the Court adjudicates them delinquent and determines them to be a threat to society.  This appeal was litigated by one of my associates, Cory Simmons.

This decision is important because it underlines the need for rehabilitation in Florida’s juvenile justice system.  By allowing circuit court judges to distinguish between dangerous offenders that should be placed in a public registry and offenders that may be rehabilitated with the proper treatment, the Court has ensured that children who are at low-risk to re-offend are not labeled as sex offenders and exiled from society at a young age.

I applaud the First District Court of Appeals for this decision.  It underlines the need for psychological treatment to address potentially serious problems in our society.  After all, the goal of the juvenile justice system is rehabilitation, not punishment.

If you or a loved one are facing involvement in the juvenile justice system, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Mere Acquiesence

Law enforcement officers often believe that they have the authority to frisk or pat down just about every civilian they encounter.  As the Fourth District Court of Appeals recently reminded the St. Lucie County’s Sheriff’s Department, they don’t.

Many people often simply just assume that when an officer indicates that he wants to search them, they have to simply allow it.  There is a great deal of confusion on this issue, mainly because of statutes that criminalize the act of “resisting an officer without violence.”  When it is common knowledge that you can be jailed for resisting law enforcement, it makes sense that people would be hesitant about telling an officer “no, you can’t search.”  After all, isn’t that the most simple way to resist?

Contrast this with the constitutionally guaranteed freedom from unreasonable searches and seizures and you get a great deal of public misconception.  People often tell me that they consented to a search of their home, car, or person because they did not believe that they had the right to refuse the request.  This is called “mere acquiescence” to authority and is insufficient to waive your right to live free of governmental intrusion.

Pat downs and frisks that are conducted to check for weapons often lead to the discovery of drugs.  In E.J. v. State, Case No. 4D-0-736, decided August 4, 2010, a juvenile was a passenger in a vehicle that was pulled over.  The driver was asked out of the vehicle and searched.  As an officer approached the juvenile, she immediately got out of the vehicle, put her hands on the hood, and spread her legs in anticipation of being searched just like the driver.  The officer frisked her and found marijuana.  She later challenged the search by claiming she never consented to the search, and by also claiming that she was not even aware that her consent was needed.  The trial court held that her actions gave the officers a reasonable belief that she was consenting to a search.

The Fourth District Court of Appeals reversed, noting that the test for whether or not consent existed is not what the officers believed, but rather whether or not consent was actually given.  In order for consent to be valid it must knowing, intelligent, and voluntary.  In E.J.’s case, there was no evidence to show that any of those requirements were met.

Law enforcement officers deal with potentially dangerous situations every day.  Ensuring people don’t have weapons that could be used to harm either the officers or other civilians is an age-old practice that many officers do automatically.  In this case, their behavior was neither extreme or unusual.  As the court noted in E.J. v. State, a generalized fear for officer safety is most understandable, but does not justify a frisk or search by itself.

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

~Robert Shafer

Minimum Mandatories

In response to rising violent crimes involving guns and large amounts of weapons, the Florida legislature enacted a series of statutes that require mandatory prison terms without the possibility of gain time. These types of sentences are commonly known as mandatory minimums. Mandatory minimums are very tough sentences, and I believe they are unconstitutional.

In school, we are taught that our government runs on a principal of checks and balances, meaning that separate branches of the government decide different aspects of the law, thus limiting the power that any one branch holds. The Executive, Judicial, and Legislative branches all work separately to decide everything from criminal justice to taxes. But what happens when one branch oversteps their bounds and limits another branch’s ability to do its job?

Minimum mandatories are a prime example of this. Judicial discretion is the cornerstone of our criminal justice system. Judges are elected by the people to make wise, informed decisions. Under the Florida Constitution, judges have sweeping authority to decide the appropriate sentence in criminal cases. This is one way that the Judicial Branch of government checks the Executive Branch, by ensuring that, no matter what charges are filed, a fair and justice sentence is determined.

The Florida Legislature has apparently decided that the judges of Florida are not wise enough to exercise this discretion. By enacting minimum mandatories, the Legislature has usurped a portion of the Judiciary’s authority. The job of the Legislature is to determine what acts are illegal. The job of the Judiciary is to determine what the punishment for those acts are. It’s that simple.

Minimum mandatories have been created for many crimes, including crimes involving drugs and firearms. If you are facing such a penalty, call me at (904)350-9333 or visit my website for a free consultation. With so much at stake, you need an experienced criminal defense attorney at your side.

Hung Juries

Most people know that a jury trial typically results in one of two ways: guilty or not guilty. When the State assumes the burden of proving a case beyond a reasonable doubt, they must do so for every single person on a jury. When one person is unconvinced of the guilt of a defendant, the result is not an acquittal – it is known as a hung jury. What happens when the State has failed to meet their burden of proving a person’s guilt beyond a reasonable doubt? It’s called a mistrial. It means that the State gets another shot at prosecuting you. Why does the State get multiple opportunities to take you to trial? Why doesn’t this practice violate the Double Jeopardy rule? Does the State just get to keep bringing me back to trial again and again? These are questions that Criminal Defense Attorneys often struggle with. If your trial resulted in a mistrial, the State of Florida is permitted to try you again, even though you have already been brought to trial once. Florida law makes a clear distinction between a hung jury (a jury unable to reach a unanimous conclusion) and an acquittal (a jury has unanimously decided to find the defendant not guilty). The result of a hung jury is, in effect, as if the original trial never took place, and so another one must be conducted. The result of an acquittal is that you can never be tried again for that charge. Even though this is a common enough occurrence, it still causes Defendants to question the fairness of system that seems to give the State limitless chances to meet their burden. After the emotionally draining process of a full-blown jury trial, they find they must go through the entire process again, simply because the State failed to do their job the first time around. The most frightening part is that the State could potentially proceed to trial against a person countless times, and as long as there is one person on the jury who is not willing to find a defendant not guilty, the process will be repeated over and over again. If you are facing the prospect of criminal prosecution, don’t face it alone. You need experienced, qualified legal representation. Call my office at (904)350-9333 or visit our website at www.shafercriminallaw.com to set up 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.

Juveniles in the Criminal Justice System

Juvenile cases are complicated. From a procedural perspective, they are much, much more complicated than the average adult case. There is an entirely different set of rules, deadlines, and rights that apply to juveniles.

Cory Simmons, a bright young associate of mine, is a former prosecutor who worked in several different divisions at the Office of the State Attorney, including the Juvenile Division. As a juvenile prosecutor, he had first hand experience with the intricacies of juvenile criminal prosecutions. He has told me that it took him a little while to get used to the different rules, but once he did, he was amazed at how many defense attorneys would come into court without being familiar with the juvenile rules and procedures. Their lack of knowledge would often result in tactical mistakes that would result in a worse result for their client.

For example, juveniles have different speedy trial rights than adults.  If a juvenile is detained in any way (including home detention), they must be tried or released within twenty-one (21) days of arrest.  Many defense attorneys were unaware of this, and would simply allow these timeframes to lapse without requiring the State to get their act together and try the case.

We handle many juvenile cases here at Shafer & Associates. Our combined experience ensures that juveniles are afforded every right the law gives them, and can help ensure that they receive the benefit of competent legal counsel.  As experineced criminal law attorneys with a long history in Jacksonville, Florida, we know the ins and outs of a very complicated system.

Regards,

Robert Shafer, Esq.