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01/10/2014
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Criminal Summons in Florida

What happens upon receipt of a Criminal Summons in Florida? In some jurisdictions, the use of a Criminal Summons was part of criminal justice even prior to COVID. Some people are surprised to receive a Summons, while others are made aware of a criminal investigation and may be expecting it or relieved to receive a Summons instead of being arrested.

When the State of Florida files criminal charges and, presuming a person is not arrested on the scene of an alleged crime, there are two ways to notify the defendant. A criminal defendant is notified either by an arrest or by issuing a Summons, also called a Notice to Appear. When a person receives a Summons, they must respond or else the Judge will issue an arrest warrant. Most people should view receiving a Summons as better than being arrested.

Typically, the Sheriff’s Office will not discuss a Summons over the telephone, and someone has to physically appear at the Sheriff’s Office. A lawyer may be able to respond to the summons on behalf of the summonsed individual, which can be beneficial or just bring peace of mind. A person receiving a Summons in criminal cases should respond to the Summons by themselves or by a lawyer instead of choosing to be arrested. Upon responding to a Summons, an arrest can be avoided. As for timing and all the rules, the service of a Summons functions the same as an arrest. For example, it starts the clock of speedy trial.

In any criminal case, the accused is entitled to have a lawyer appointed, however, lawyers are not appointed to the accused during the investigation, arrest or Summons portions of the case. A Public Defender is assigned by the Court after the Summons is served or an arrest is made. For assistance responding to a Summons or any criminal case, please click, call, or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Florida Criminal Arraignments During COVID

Much has changed in the practice of Florida criminal defense during COVID. With varying orders being issued by the Florida Supreme Court, the Chief Judges of the Circuits, County and local municipalities, we are all dealing with the semi-shutdown as best we can. It seems that new orders, tweaking the last set, are made about every other week.

The common ground amongst the orders affecting the courthouses is that during the shutdown in-person hearings are to be rare. Many essential functions are deemed an exception to the rule and are taking place in person. A recent development from the Florida Supreme Court, was to add criminal arraignments to the list of those functions deemed essential to the system. Because arraignments are now on the list of essential proceedings, arraignments are held in person. That means the Defendant has to appear and enter the courthouse, wearing a face covering, of course.

Failing to appear at arraignment, or any other criminal court event will cause an arrest warrant to be issued for the Defendant. This is true even if the case is a misdemeanor, felony, or criminal traffic citation and the reason given is fear of COVID. While some people may be reasonably and actually scared of COVID, failing to appear is not the way to face the fear.

In Florida, but not all states or the Federal system, a person with a lawyer does not have to attend arraignment. A criminal lawyer can file paperwork to excuse the Defendant from arraignment and some, but not necessarily all, other court events. Unfortunately, unless a Public Defender was assigned at First Appearance, then a Defendant relying on the services of the Public Defender will have to physically appear at an in-person arraignment to have the Public Defender assigned. (First Appearance & Arraignment.)

A person criminally accused has rights and should use them. To hire a lawyer, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Law and COVID-19

Intersections between criminal and public health law do exist. In Florida, section 381.00315, relating to public health advisories; public health emergencies; isolation and quarantines, creates a misdemeanor for violating “any rule adopted” pursuant to the section. Of course, this includes “any isolation or quarantine, or any requirement adopted … pursuant to a declared public health emergency”.

A person can be arrested for this criminal violation, even though it is a misdemeanor. Any criminal case exposes a Defendant to incarceration. There have been a lot of rumors spread during the pandemic relating to whether and the extent to which local jurisdictions are arresting people. To our knowledge, no sheriff in North Florida has completely ceased making arrests.

Within the Fifth Judicial Circuit, any person arrested for violating a section 381.00315 Quarantine Order, “who is reasonably believed to be infected with the coronavirus or who is reasonably believed to have been exposed … is presumed to involve a danger to the public health. Due to the danger to the public health for such a violation, the bond shall initially be set at no bond.” [internal quotations omitted]. Quoting a case from the Florida Supreme Court in 1943, the administrative order reasons that “[t]o grant release on bail to persons isolated and detained on a quarantine order because they have a contagious disease which makes them dangerous to others, or to the public in general, would render quarantine laws and regulations nugatory and of no avail.”

The Fifth Circuit encompasses Marion, Citrus, Lake, Sumter and Hernando counties. Fortunately, the judge at First Appearance which takes place the day after an arrest, does have the discretion to modify the no bond status, if appropriate.

Any arrest is scary. Going through the system with and advisor can make it less scary. To hire a lawyer please click, call or fill out the form.

Ocala: (352) 694-4529

Gainesville: (352) 371-9141

Criminal Assault, the Threatened Use of Force and Warning Shots

In the realm of criminal cases one way a defense attorney can protect a client is to argue self-defense. Some years ago, there were reports of a ‘Warning Shot Bill’ that would allow Floridians to fire a warning shot. There is no law that specifically ‘allows a warning shot’. What in the stand your ground law caused the confusion that has me answering similar questions years later? 

Initially, the stand your ground law in Florida was silent as to whether a threat to use force was included. That meant that people, who chose to make a threat to use force and would have been immune from criminal prosecution had they actually used force, were instead being sent to prison. The law did not allow for immunity from prosecution for threats, just the use of force. For example, a person who killed an aggressor could be immune from a murder prosecution but in the same situation, having the restraint to not kill would send that same person to prison.

Thankfully, that omission was filled in 2014. The Legislature found that “persons have been criminally prosecuted … and have been sentenced to mandatory minimum terms of imprisonment for threatening to use force in a manner and under circumstances that would have been justifiable under chapter 776, Florida Statutes, had force actually been used.” Therefore, the legislature, added the words “or threatening to use” and “or threatened use” to the provisions of law related to the justifiable use of force. They did not add the words “warning shot(s)”. In my opinion, the law will NEVER say that a person can fire a warning shot, but one day it may say that a person cannot.

The law in threatening or using deadly force is generally that a person is justified only if they reasonably believe that such conduct is necessary to prevent the imminent commission of a forcible felony. “Forcible felony” is defined as “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”

Whether a warning shot is justified is for the judge or jury to decide. Every case is different, and no lawyer can guarantee what a trial judge or jury will eventually decide. Criminal and civil cases involving the use or threatened use of deadly force require significant attention. To hire a lawyer, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Leaving The Scene Of Crash Involving Death – Actual Knowledge Required

The criminal traffic charge of Leaving the Scene of an Accident (LSA) or Hit and Run from a crash involving a death is a serious felony.

An appellate court considering a case of leaving the scene of a crash involving death, addressed the issue of whether the jury instructions should require that the driver had to have actual knowledge of the crash or should read that the accused knew or should have known about the crash. There is a big difference between the two.

Even though the Florida Supreme Court has ruled that actual knowledge of a crash is a required element, the driver in that case, did not dispute the fact that a crash had occurred. Instead, she claimed to have believed at the time that she had hit a traffic cone or barrel. Disputing what was struck means that she admitted having actual knowledge of the crash and then appealed claiming actual knowledge was an issue. This is another example that the only thing media has correct is that anything said or done will be used against the accused. She admitted the crash; the actual knowledge requirement was upheld but that didn’t help the Appellant who admitted knowledge of the crash.

The minimum penalty for hit and run or LSA with a death is four (4) years in prison and a three (3) year revocation of the driving privilege. The revocation period of the driver’s license does not start until the defendant is released from prison. (Read more about Hit and Run – Leaving the Scene of an Accident). These are serious cases. Normally, a person accused will also have to consider hiring an expert to reconstruct the accident. It is imperative that you hire a lawyer and expert with experience litigating or taking these accident cases to trial.

If you or a loved one is accused of leaving the scene, click, call or fill out the form to hire a criminal traffic attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Carrying of Concealed Weapons or Firearms in a State of Emergency.

In criminal cases, this writer has said, “firearm equals felony”. In violations of 790.01, Florida’s law that criminalizes the carrying of concealed firearms or weapons, the unlicensed carrying on the person of a weapon is a misdemeanor while unlicensed carrying on the person of a firearm is a felony.

In recent years there has been a push in the law to make exceptions for special circumstances such as an impending hurricane. Today, when the Governor declares a State of Emergency, plus orders an evacuation, 790.01 provides an exception to the felony of carrying a concealed firearm. So long as a person may otherwise lawfully possess a firearm the law allows for an evacuee to carry “a concealed firearm, on or about their person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the Governor….”. The phrase “in the act of evacuating means the immediate, urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered.” §790.01(3)(a).

While some may wish that the law contained a provision for returning from the evacuation, there is no such exception. However, there are other general exceptions to carrying a concealed firearm that may allow a person to return with their firearms after evacuating. For example, “a person engaged in fishing, camping, or lawful hunting or going to or returning from a fishing, camping, or lawful hunting expedition…” is excused from the felony. §790.25(3)h). In addition, any “person traveling by private conveyance when the weapon is securely encased . . . and not in the person’s manual possession…” is also exempted. §790.25(3)(l). “Securely encased means in a glove compartment, whether or not locked; snapped in a holster; in a gun case, whether or not locked; in a zippered gun case; or in a closed box or container which requires a lid or cover to be opened for access. §790.001(17).

Failure to adhere to a proper method of carrying a weapon or firearm can result in facing criminal charges. Any person accused should not face the government alone. To begin building strategies for a defense please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Settling Criminal Cases – Open Plea & the Mercy of the Court

In criminal cases, it is not uncommon for people to call the office after their current lawyer has failed to reach an acceptable agreement with the prosecutors or the caller does not like the offer received. Sometimes, the unfortunate circumstance of the case is that the prosecutor will not make a deal. Sometimes just having a lawyer who answers to the Defendant for their paycheck instead of the government makes a big difference to the Defendant. Sometimes there are things that can be done to present the case in a better light.

There are only three options when resolving any kind of case (1) the party who brings the lawsuit can drop the case. In criminal cases, the ‘lawsuit’ is the filing of criminal charges by Information or the filing of a criminal traffic ticket. (2) The case can be settled. In criminal cases, the settlement is done through a plea agreement. If the case is not dropped or settled then, (3) proceed to trial.

A defendant who has failed to come to a reasonable plea agreement with the State can ask to Court to hold a sentencing hearing. This is a called an ‘open plea’. An open plea is more commonly called “throwing yourself at the mercy of the Court”. But there is more to it than just walking in and looking pretty. The sentencing hearing can be a lot like a trial without the jury. The defense and prosecution enter evidence and make their arguments to the Court. The scary part is that the court may hand out a sentence harsher than the State was offering. The Court may not see things the same way as the Defendant.

Criminal defense lawyers are obligated to communicate all plea offers whether they like it or not. How they communicate makes a difference. To hire a private lawyer to help settle the case, have a sentencing hearing or proceed to trial, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Criminal Self-Defense Immunity a.k.a. Stand Your Ground

Self Defense has been an available affirmative defense to criminal cases since the dawn of society. Florida also has long acknowledged the fundamental right to use force in defense of self or others. The essential elements of self-defense have stayed about the same. A person may use deadly force when it is reasonably necessary to prevent imminent death or great bodily harm to the person or to another person. The procedure and burden of proof required to make a self-defense argument has changed.

Prior to 2005, a self-defense claim was made at only at a jury trial and it can still be raised at trial. At a trial, the person asserting self-defense is required to establish a prima facie case of the elements of the self-defense claim. The burden then rests on the State to establish that the claim is not justified beyond a reasonable doubt.

Florida’s Stand Your Ground law has strengthened the right to self-defense and provided a way to avoid a trial. The law eliminated the duty to retreat when attacked outside the home before using lawful deadly force, it created a presumption that a person had a reasonable fear if the person was attacked in the home or vehicle, and it provided immunity from arrest, detention, charging or prosecuting. In 2017, the burden applicable to the State in a claim for immunity from criminal prosecution were also added.

In a Stand Your Ground or Self-Defense Immunity claim, the burden is first upon the Defendant to present some evidence of entitlement to self-defense immunity. Then, the party seeking to overcome the immunity, in criminal cases, the State of Florida, must overcome the immunity by clear and convincing evidence. Cases still pending that were alleged to have been committed prior to the 2017 amendment may or may not be able to use this burden of proof depending on what the Florida Supreme Court decides in Love v. State SC18-747 that was still pending at the time this was written.

Clear and convincing evidence is not as high a burden as beyond a reasonable doubt. Losing a self-defense immunity or stand your ground hearing does not mean a person is convicted but that they should file for a writ of prohibition. Winning an immunity hearing means that the Defendant is immune from prosecution. Even if an immunity hearing is lost, self-defense can still be argued to the jury at the trial.

To get help presenting a self-defense immunity claim with a private lawyer, please click, call or fill out the form today.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Child Abuse & Neglect – Combining Criminal & Family Law

Allegations of child abuse or neglect can generate criminal or family cases against the accused. In many cases a parent accused of child abuse or neglect by the State of Florida in a criminal case will also find themselves defending against a Supplemental Petition to Modify a parenting plan or custody. Sometimes a third case of an injunction for protection against domestic violence could also be brought.

Criminal cases of child abuse or child neglect are always a felony ranging from third to first degree felonies. Therefore, maximum punishments range from 5 to 30 years in prison based upon the injury to the child.   Abuse and neglect of children are completely separate concepts. Child abuse generally requires an intentional act or active encouragement of a person to commit an act. Abuse requires action. On the other hand, neglect of a child is a failure to act, failure to protect a child from abuse, or an omission by a caregiver to the child. Neglect is taking no action. Neglect of a child may be based on a pattern or a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.  Any caregiver to a child can be charged with the crime of abuse or neglect of a child.

Parenting and disciplining styles differ; but, when one parent is accused of child abuse or child neglect and the co-parent is not involved, then the uninvolved co-parent may file a Supplemental Petition to Modify the time sharing or custody arrangement. Even if there is no formal arrest and the DCF investigation found nothing, the uninvolved parent may try to change things. A Petition can be filed before the resolution of the criminal case, and that puts the accused parent in the awkward position of having to defend themselves in family court while attempting to remain silent for the benefit of the criminal case. Incarceration of a parent is one definite reason courts will modify timesharing and child support.

Being accused of child abuse or neglect or suspecting a co-parent of abuse or neglect towards a child in common can wreak havoc on the soul. Unmarried parents who stand accused face a real possibility of two lawsuits against them at the same time. Understanding the interplay between the criminal and family systems can lead to better results. Whether the family needs help because of an accusation directed towards them or the family needs help making an accusation, we can help. To start the process of hiring a child abuse and neglect lawyer, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Changes to Criminal Driving on a Suspended License

Driving on a suspended license can be a criminal or civil case in Florida. Too many charges of driving while suspended can result in a 5-year revocation of a driver’s license as a habitual offender.

Until recently, a third or subsequent criminal violation of driving under suspension could have been a third-degree felony. A third-degree felony is punishable by up to 5 years in prison.  People have been sentenced to prison for the offense of driving to work with a suspended license.

Effective October 2019, part of the criminal justice reform, the driving on suspended law changed. Now, a second offense of driving while suspended will be a first-degree misdemeanor. In many instances, a third offense will also be a first degree misdemanor.  A first-degree misdemeanor is punishable by up to one year in the county jail.  However, for third or subsequent offenses, the law now requires the judge to sentence to a minimum mandatory ten (10) days in jail.  A third offense of driving while suspended where the suspension is for, or if the second was for, DUI, Refusal, causing death, or causing serious bodily injury, are still felonies.  Driving while designated a Habitual Traffic Offender is a felony. punishable by up to five (5) years in prison.

While the criminal justice system reform was meant to lessen the possibilities of sending people to prison for driving, that does not mean that the courts will completely stop incarcerating people. For example, someone that has several prior offenses that may have received a couple years in prison under the old law, will likely still face jail time today, especially with the new minimum. However, the maximum exposure has been radically reduced.

Facing the government on criminal or traffic charges alone can be riskier that it seems. The government will gladly accept money and create a permanent criminal record for anybody appearing before it with a willingness to have a record. Unfortunately, the long-term consequences are not always made clear to unrepresented persons. To hire a lawyer to help in a criminal or civil driving on suspended charge, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529