Thursday, December 30, 2010

Juvenile Convictions - More Trouble Than You Think

Juvenile cases are no joke. Many people scoff at the idea that anything serious will result from juvenile charges because they simply do not know the reality of the juvenile court system. Charges a child receives can and will follow him into adulthood. Perhaps the most important thing to note about juvenile court is the consequences a juvenile conviction poses. Many participants are under the impression that a juvenile conviction has no meaning and that it won’t “count” as an adult. This is a huge misconception. Under Florida Statute 921.0021, “Juvenile dispositions of offenses committed by the offender within 5 years before the primary offense are included in the offender’s prior record when the offense would have been a crime had the offender been an adult rather than a juvenile.” This means that juvenile convictions can count on an adult score sheet, which ultimately means that an 18 year old could score prison time on a first time adult offense.

When little Johnny is charged with battery after a neighborhood fight, he may get only a slap on the wrist, do some community service hours with the Boys and Girls Club, and have to write an apology letter. Everyone will jokingly say “boys will be boys!” and the whole incident will soon be forgotten. Then, when that same Johnny gets into a bar fight as an adult, those conviction points from his juvenile case could very well help land him in prison. On a first adult conviction. Better yet, on an adult conviction that, without the juvenile points, would likely have been resolved with probation. The old maxim that “boys will be boys” is no longer as endearing as it once seemed.

Juvenile Court handles the criminal cases of people who are arrested when they are under the age of 18. Juvenile Court is similar to “Adult Court” in many notable ways: minors who are tried in juvenile court have the right to an attorney, to remain silent, to confront witnesses and cross-examine witness testimony, to call witnesses, and to not incriminate themselves. Despite the similarities, it is important to understand that juvenile court is still separate from the adult court system and has different procedures and policies. The main difference: there is no right to a jury trial in the juvenile court; everything is held before a juvenile court judge. And, while juvenile cases generally result in rehabilitative treatment instead of incarceration, the court could detain a juvenile in a detention center for 21 or 30 days without bail in the case of a serious crime.

An important thing to note is that there is no guarantee that a person under the age of 18 will be sent to juvenile court. In fact, if the individual is close to the age of 18, has been charged with a violent crime, or is considered a "repeat offender," he may be tried as an adult in the regular criminal system and could face the same penalties as an adult.

Now it is easy to see why juvenile court cases should be taken just as seriously as adult cases. This is why minors should never speak to the police or authorities without legal counsel, or at least parents, present. Not only can what they say be used against them in court, but often, minors do not even realize what they are saying is incriminating. Parents seem to think that it's helpful to talk with the authorities, but it is important to remember that law enforcement officers are not usually a minor’s friends. Classroom lectures and after-school specials on TV would have youngsters believe that police officers are their best friends and that they should always talk to them because it’s the “right thing to do.” Wrong. Officers are there to do their job, which is to get evidence for their case, the outcome of which could affect that minor for the rest of his life. An adult would never talk to an officer about a pending criminal investigation without legal representation – and neither should a child.

11 year old Sallie is trying to break up a fight between two of her friends. She admits to the officer that she pushed someone in the process. Now she is charged with Battery. Did she technically do anything wrong by trying to break up the fight? No. But she did just get herself into trouble by explaining what she thought was a harmless scenario to an officer she wrongly believed would understand her side of the story.

This is not to say that honesty isn’t the best policy, as we all preach to our children from a young age. This is to say that silence is golden. A minor may think that he is “doing the right thing” or “helping” by talking to the police, but 9 times out of 10, he is only digging his hole deeper. He’s giving the police the evidence they need to arrest him, and usually he doesn’t even know it.

A lot of parents seem to want to “teach a lesson” to their children who have gotten into criminal trouble by telling the police to take them to jail. While this is an honorable, and certainly understandable, response to the situation, it really does more harm than good. “Let him sit there overnight and think about what he did,” is often the parent’s response. Or, even worse, “Timmy – you had better tell the officer the truth about what you did!” Maybe Tiny Tim will learn his lesson by being punished that way, but then later on in life when he gets a DUI or holds weed for a friend or is in trouble for carrying a knife that he didn’t realize was concealed, that childhood night in jail and forced admission will come back to haunt him.

Parents – do your kids a favor and don’t get them into trouble criminally. Ground them. Lecture them. Make them clean the house or run suicide sprints like a basketball coach. Embarrass them by supervising all of their dates. But don’t force them to talk to the police without a lawyer, and don’t make them sit in jail over night if you can help it. Juvenile convictions can have much larger effects than are immediately apparent and can be crucial later on in life.

The motto of the Juvenile Justice System is to "increase public safety by reducing juvenile delinquency through effective prevention, intervention and treatment services that strengthen families and turn around the lives of troubled youth." Rehabilitation and prevention are often used in place of punishment, and the sentences in juvenile court are generally “soft.” Minors who have stolen from others, or physically harmed someone, or even possessed drugs are often sentenced to community service hours and letters of apology instead of the incarceration they would be facing if they had committed the same crime after the age of 18. Although this means that juveniles often get what is viewed as a mere slap on the wrist, like little Johnny or Tiny Tim initially did above, juvenile court also gives young adults the opportunity to change their behavior and habits that they would not get if they were sent to adult court. They get a second, and often third, chance to straighten up. And if they do not, if they keep their bad behavior and continue to get into trouble, it will catch up to them.

One final important note: Police Officers can lie to juveniles. They can say anything they want and hold whatever a juvenile says against him, even if the juvenile’s parents or attorney were not present. Officers do not have to inform minors that they have a right to have their parents present; juveniles have to request to have their parents present, and they always should.

If you know a minor who is facing the juvenile justice system alone, have them contact a qualified attorney.

Legal Disclaimer: This information is not intended to create, and receipt or viewing of this information does not constitute an attorney-client relationship nor is it intended to be legal advice for any individual case or situation. You should consult an attorney regarding your individual case.

Copyright (c) 2010, Law Office of Roger P. Foley

The Law Offices of Roger P. Foley,P.A.

Wednesday, December 29, 2010

Law Updates for December 24, 2010

Myles, 35 FLW 2819, 3rd DCA - DNA match with in the State Index Data Bank for unresolved crimes resulted in "cold hits" for unsolved rapes.  Probable cause for the arrest of the def, and DNA swabs taken after the arrest were admissible.

Watana, 35 FLW 2824, 4th DCA, Consent, Voluntariness -  Record supports trial court determination that there was no voluntary consent to search def's person even though def was properly stopped for speeding. Trial court was free to reject ofc's testimony that when he asked the def to step out of the vehicle, and then for permission to search his person, def complied with all the ofc's request without withdrawing or resisting consent.  Court finding any consent given was submission to authority and not voluntary, supported by competent evidence.  Nothing in record to indicate that a search of his person was anything more than one step in the ticket writing process.

Neal, 35 FLW 2835, 4th DCA, Evidence - Trial court erred in allowing police ofc to testify it is common not to find a gun in armed robbery cases.  Testimony describes general behavior and, used to bolster the charge this was an armed robbery even though no gun was found or linked to the def, was prejudicial and not harmless.

Barrios, 35 FLW 2837, 4th DCA - Prosecutor's comments during closing argument asking the jury if they would allow the def to get away with it and arguing the only true and just verdict was guilty was improper and prejudicial-new trial.

Lewis, 35 FLW 2848, 4th DCA, Kidnapping - Court should have granted a JOA, Def's actions of ordering store manager to a different room of the store during the robbery, ordering manger to lie on the floor, and unlocking one of the handcuffs so that neither victim was bound or barricaded when the def fled insufficient to lead to the separate crime of kidnapping.

Higerd, 35 FLW 2874, 1st DCA - Possession of child pornography in Airline luggage.  First Impression, Administrative search of an accordion folder inside def's checked baggage by TSA officer.  Bag was randomly selected.  Physical administrative search of luggage was not unnecessarily extensive or inclusive and did not violate the 4th A. TSA officer stopped as soon as saw the pictures and contacted police who got a warrant.  Even if search violated 4th A., good faith exception to warrant applies because TSA officer would not have known search was illegal.

McCoy, 35 FLW 2876, 1st DCA, Trafficking in Hydrocodone - Jury Instructions.  Trial court's failure to instruct the jury on prescription defense that the wife was holding her husband's medication was fundamental error, an error compounded by the prosecutor's closing arguments that there was no defense to the def's possession of the pills, where presenting an "affirmative defense" has to prove fundamental error for lack of the jury instruction which was done here.

Davis, 35 FLW 2882, 1st DCA,  - Error to admit testimony of police investigator recounting statement of witness who had previously confessed to the investigator and implicated the def, but who testified at trial he was unable to remember anything about the incident except that he was one of the robbers.  Testimony did not fall into the exception about statements identifying a person which applies if the declarant was an eyewitness or a victim or after perceiving that person soon after the crime or coming in contact with her.  Officer's testimony could not be used as impeachment as the witness said he did not remember anything and no evidence that the witness appeared to be fabricating lack of memory.  Not harmless error

Gentles, 35 FLW 2900, 4th DCA, - Seizure occurred when ofc directed the def  to turn off his car engine, when ofc notified the def asleep in his parked car with motor running during early morning hours in a shopping mall. Seizure not based on reasonable suspicion of criminal activity or specific concern for officer safety or the health and safety of def or others.  Trial court erred in denying the motion to suppress.

The Law Offices of Roger P. Foley, P.A.

Friday, December 24, 2010

Law Updates for December 17, 2010

Dennis, 35 FLW 731,S. Ct., Stand your ground immunity.  Trial court should decide the factual questions of the applicability statutory immunity, 776.032, should not be a C 4 Motion but a Motion to Dismiss under 3.190(b).

K.C., 35 flw 2694, 4th DCA, Possession of BB gun on school property.  Evidence was insufficient to prove that BB gun juvenile with possessing was a deadly weapon, where it was in a book bag, not loaded and no evidenced used or threatened to use the BB gun as a bludgeon.

C.N., 35 FLW 2699, 2nd DCA, Disorderly conduct.  Error to adjudicate juvenile delinquent for DOC for shouting and using foul language.  No evidence that the juvenile's words either caused crowd to gather or incited the crowd to engage in an immediate breach of the peace.  Officer did not have a reasonable suspicion that juvenile was committing a crime and was not performing a legal duty when he arrested the juvenile without a warrant for that offense.  Error to adjudicate for the resisting charge.

Redd, 35 FLW 2706, 1st DCA, Trafficking in Cocaine.  Double hearsay elicited by the state and heavily relied on to prove that the def was in possession of cocaine was not admissible and def did not open the door to its admission.  Without hearsay statements state would not have been able to prove that the def had dominion and control over the contraband, knew of its presence, and knew of its illicit nature.  New trial required

Freeman, 35 FLW 2748, 2nd DCA, Voir Dire.  Error to deny challenge for cause for juror who expressed some doubt about her ability to be fair and impartial in her assessment of witness's credibility, stating she might give more credibility to police officers(Police officers in her family).  Preserved for appeal properly, not required to show legally objectionable juror on the jury.

The Law Offices of Roger P. Foley, P.A.

Friday, December 17, 2010

Law Updates for December 10, 2010

Cable, 35 FLW 705, Fla, Knock and Announce.  Exclusionary rule applies to violations of Florida's knock and announce statute.

Burke, 35 FLW 2610, 2nd DCA, Evidence was insufficient to prove that the child was physically or mentally impaired, for purposes of 827.03(1), by def's acts of twisting his arm, pressing against his knee, and holding him by the hair, cites cases.

Colbert, III, 35 FLW 2624, 4th DCA, Evidence insufficient to sustain conviction for burglary of the retail store where the def was standing in the area of store open to the public when he broke the side glass panel of the jewelry case, reached in, and grabbed several pieces of jewelry.  Fundamental error  for leaving the scene of the accident. 316.061(1) when the evidence is insufficient to establish "driven or attended" where neither owner or someone in possession of the vehicle was present when the def crashed into the parked car.

Wyrick, 35 FLW 2666, 5th DCA, Def was properly charged with third-degree felony, rather than 1st degree MM, for DWLS where the defendant had been designated as a habitual traffic offender at the time the license was revoked.  All three prior suspensions have to be for suspensions based on factors listed in 322.34(10)a 1-5.

Stelmack, 35 FLW 2672, 2nd DCA, Possession of photograph or representation that, in whole or in part, includes "sexual conduct of a child." - Error to deny JOA where the conviction was based on def's possession of several images showing faces and heads of children pasted onto images of 19 year old women lewdly exhibiting her genitals.  No sexual conduct by a child only sexual conduct in images was that of an adult.

The Law Offices of Roger P. Foley, P.A.

Thursday, December 2, 2010

Marijuana Cultivation: Grow Houses and Hydroponic Operations

When it comes to indoor marijuana cultivation, Florida is one of the nation's leaders. Grow houses have been found in more than two-thirds of Florida's counties, and over 1000 hydroponic operations have been busted in Florida to date. As a result of the drastic increase in marijuana cultivation, Florida has employed multi-agency drug task forces such as HIDTA (High Intensity Drug Trafficking Area) that work alongside the Office of National Drug Control Policy to bust hydroponic operations.

Hydroponic grow houses enable operators to cultivate marijuana plants with higher levels of THC than are typical of plants grown outdoors. Sophisticated hydroponic operations use little to no soil, simulate sunlight by utilizing high intensity lamps, and incorporate irrigation systems of water and chemical fertilizers. Often, these types of operations include specially designed timing systems for lighting and watering, as well as electric meter diversions. Because of the technology used, many cannabis grow houses require little oversight. However, there are cases in which helpers are hired by cultivators to oversee the operations.

The increasing number of arrests relating to marijuana cultivation can be attributed in large part to the tumultuous climate of the economy. The virtually non-existent Florida real estate market has essentially left homes open for cultivation. The rise of abandoned and foreclosed homes in Florida combined with the high level of unemployment has created a perfect storm for cultivation and hydroponic operations.

Not all hydroponic operations are found within foreclosed or abandoned homes. Many such operations are run in rental homes. Growers often rent homes from landlords as tenants, typically looking for homes with large attic space to accommodate the technology that will be used. If attic space is sparse, growers have been found to cut holes through walls, or run their operations underneath the houses in order to provide adequate ventilation for both the high intensity lamps and the dampness caused by the irrigation systems. Heat reducing curtains and blinds, concrete subfloors that absorb heat, foam insulation, and underground exhaust systems are also typical installations and modifications found within grow houses.

Landlords provide an invaluable resource to law enforcement because landlords often have the contractual right under the lease to inspect their rental properties upon giving merely 24 hour notice to renters. If a landlord enters a home and has reason to believe that a hydroponic operation is being run in the home, either because he observed hydroponic materials or noticed other unusual modifications or damage to the home (including mold), the landlord may be able to provide the police with the evidence they need to obtain a search warrant. Additionally, landlords and homeowners have incentive to report their findings to the police because Florida law allows charges to be brought against a homeowner or landlord who knowingly owns a house being used to grow marijuana, even if he or she does not live there. Reporting hydroponic operations immediately upon discovery to law enforcement provides homeowners and landlords a safe haven from prosecution.

Because the U.S. Supreme Court ruled in Kyllo v. United States, 533 US 27 (2001) that the use of infrared technology and thermal imaging to detect heat coming from suspected grow houses is intrusive on Constitutional rights and therefore illegal, law enforcement agencies have had to turn to other forms of investigation to locate hydroponic operations. The police have begun relying upon public reporting of unusual activities relating to the homes: uncommon amounts and types of trash around the home, added electrical equipment, exhaust emissions, unusual warmth around the house, smells coming from the house, et cetera. Many of these types of operations are discovered by law enforcement via anonymous tipsters and informants.

Other factors that alert law enforcement of the potential existence of a grow house may be unnoticeable by the general public. However, high power consumption and unusually large power bills (especially when the small number of people alleged to reside in the home is taken into consideration) are often the keys to discovering a hydroponic operation. Because of this, electricians and power companies are another important resource for the police. FPL can monitor spikes in energy use and report unusually high electric bills to law enforcement agencies. In addition, the very electricians who are paid by growers to bypass electric meters are often informants.

In conjunction with other methods of investigation, police officers have begun utilizing what is known as "knock and talks" at suspected grow houses, wherein officers attempt to speak with homeowners or renters without warrants. Aside from the factors previously mentioned that generally alert law enforcement to the existence of a grow house, officers have been known to wait outside of hydroponic stores and follow those who exit the stores home. Once they have this knowledge to tip them off, officers will either undergo long-term surveillance of suspected grow houses or immediately initiate the knock and talk. If they do not have sufficient evidence to obtain a warrant, they can and will try to gain access to a house by knocking on the door and simply asking whoever answers the door if the officers can come inside to talk for a minute. People who are not fully aware of their rights are often caught in this trap, either revealing their operations by cracking open the door enough for the officers to see inside or by letting the officers inside themselves. Once officers have either witnessed the operation first hand or obtained sufficient evidence to obtain a search warrant, they may enter the suspected grow house and seize and destroy all hydroponic equipment found, so long as photographs or videos of the evidence are taken. Videos and pictures of the evidence are now allowed to replace the actual evidence itself in courtroom presentation, making preservation of the evidence unnecessary pursuant to Florida Statute 893.10. Police officers who destroy the equipment are immune from civil liability.

Possession of cannabis (less than 20 grams) is a misdemeanor in the State of Florida. However, such charges can quickly transform into felonies when hydroponic operations come into the picture, under Florida Statute 893.1351, the Marijuana Grow House Eradication Act. Until recently, Florida law charged growers whose operations had more than 300 plants with a drug trafficking charge. Now, only 25 plants are necessary to constitute prima facie evidence that the cannabis is intended for sale or distribution. A grower with 25 plants can be charged with a second degree felony which carries with it a maximum sentence of 15 years in Florida State Prison. Grow houses that are found to have been the homes of a child further transform those same charges into first degree felonies, with a maximum sentence of 30 years in Florida State Prison. Florida's new grow house laws are even tougher than the Federal standard, which allows up to 100 plants before a trafficking charge can be pursued. Florida statutes, specifically section 893.135, define marijuana plants as seedling or cuttings with noticeable "root formation." Thus, even dead or already-harvested cannabis plants are figured into the total plant count by law enforcement. In addition to prison time, fines included with such charges can be in the tens of thousands, and they can be enhanced if the accused is a prior offender.

Other Ways Grow Houses are Discovered:
•Long-term police surveillance
•Hydroponic Store surveillance
•Anonymous tips
•Tips from "friends" and/or significant others
•Reports from FPL
•Landlord tips
•Knock and Talks
•Search Warrants
•Operations in plain view

Key Grow House Indicators:
•Spikes in power usage
•Electricity bypass
•Unusual warmth around the house
•Odors from the house
•Reports of unusual activities
•People coming and going
•Uncommon amounts and types of trash
•Added electrical equipment
•Exhaust emissions

For the Florida statute chapter regarding marijuana cultivation and penalties, see §893.135, Fla. Stat. (2010).

Copyright (c) 2010, Law Office of Roger P. Foley

The Law Offices of Roger P. Foley,P.A.

Wednesday, December 1, 2010

Law Updates for November 26, 2010

Fernandez, 35 FLW 2549, 3rd DCA, Exclusionary rule does not apply to knock and announces cases, certify conflict with Coble 18 So. 3d(2nd DCA) to Florida Supreme Court. Does Florida statutory knock and announce provisions apply such that the exclusionary rule would apply.

Johnson, 35 FLW 2554, 3rd DCA, Prior testimony - The Court erred in excluding witness testimony from a prior trial where defense was unable to locate the witness to testify in second trial and witness testimony was relevant to claim of self defense.

J.T., 35 FLW 2559, 4th DCA, BB Gun - Deadly Weapon, for the state, cites the law, seems to be important that the BB gun was placed in evidence.

Holley, 35 FLW 2560, 4th DCA, Trial court reversibly erred in limiting defense counsel cross exam of state witness about her failure to appear for defense deposition and response for rule to show cause issued by trial court, where information was relevant to show her motive, bias, and lack of trustworthiness.

The Law Offices of Roger P. Foley,P.A.