Wednesday, July 15, 2015

Review - Law Office of W.F. ''Casey'' Ebsary Jr

Had I not found Casey and his team, I would have been extradited from Tennessee to Florida on a 25 year old warrant. Casey and his team got my charges dropped and the warrant cancelled. They were compassionate, diligent in their work, and did their homework on my case. If you need an attorney, Casey is AAA+++.
Jim M.

Friday, July 10, 2015

Hulk Hogan Sex Tape Trial - Paused

Hulk Hogan Sex Tape on Trial
Hulk Hogan Sex Tape on Trial

Hulk Hogan Sex Tape - Press Pause


The Hulk Hogan Sex Tape Trial was paused when a higher court ruled that Hogan's lawyers had hit fast-forward and tried to bring the case to trial too quickly in violation of the Court's rules. Trial will rewind and begin in a couple of months. Meanwhile we obtained the entire court's ruling.

"This controversy sprang from a seed planted sometime in 2006, when Terry Bollea, a celebrated former professional wrestler known publicly as "Hulk Hogan," had sex with Heather Clem, then married to Bollea's friend Todd Clem, a "shock jock" radio personality whose nom de scène is "Bubba the Love Sponge." The encounter was videotaped, with audio, allegedly without Bollea's knowledge. Six years later, in October 2012, a celebrity news and gossip website named Gawker.com posted an excerpt of the videotape to the Internet. Litigation ensued."

Hulk Hogan Sex Tape Ruling



GAWKER MEDIA, LLC; NICK DENTON; )
and A.J. DAULERIO, )
)
Petitioners, )
)
v. ) Case No. 2D15-2857
)
TERRY GENE BOLLEA, professionally )
known as HULK HOGAN, )
)
Respondent. )
__________________________________ )

Opinion filed July 2, 2015.

Petition for Writ of Mandamus to the Circuit
Court for Pinellas County; Pamela A.M.
Campbell, Judge.

Gregg D. Thomas and Rachel E. Fugate of
Thomas & LoCicero PL, Tampa; and Seth
D. Berlin and Alia L. Smith of Levine
Sullivan Koch & Schultz, LLP, Washington,
District of Columbia, for Petitioners.

David M. Caldevilla of de la Parte & Gilbert,
P.A., Tampa; Kenneth G. Turkel and
Christina K. Ramirez of Bajo Cuva Cohen &
Turkel, P.A., Tampa; and Charles J. Harder
and Douglas E. Mirell of Harder Mirell &
Abrams LLP, Los Angeles, California, for
Respondent.


This controversy sprang from a seed planted sometime in 2006, when Terry Bollea, a celebrated former professional wrestler known publicly as "Hulk Hogan," had sex with Heather Clem, then married to Bollea's friend Todd Clem, a "shock jock" radio personality whose nom de scène is "Bubba the Love Sponge." The encounter was videotaped, with audio, allegedly without Bollea's knowledge. Six years later, in  October 2012, a celebrity news and gossip website named Gawker.com posted an excerpt of the videotape to the Internet. Litigation ensued.

After a brief initial foray into federal court, in December 2012 Bollea filed suit in Florida's Sixth Circuit seeking injunctive relief and damages from Heather Clem, sundry entities and individuals affiliated with the Gawker site, and others. The circuit court case is ongoing, and it has darkened our door more than once.1 Before us today is a mandamus proceeding in which the Gawker defendants contend that the circuit court's June 19, 2015, order setting trial for the week of July 6 deviates from Florida Rule of Civil Procedure 1.440. Indeed the order violates the rule, and we grant the
petition.

To place the issue in proper context, it must be noted that one of the initial
Gawker defendants was a Budapest-based company named Blogwire Hungary
Szellemi Alkotást Hasznosító, KFT. Blogwire contested the attempted exercise of
Florida long-arm jurisdiction over it, and it appealed the circuit court's order denying its
1Blogwire Hung. Szellemi Alkotst Hasznost, KFT v. Bollea, 162 So. 3d
1116 (Fla. 2d DCA 2015); Gawker Media, LLC v. Bollea, 160 So. 3d 424 (Fla. 2d DCA
2014); Bollea v. Clem, 151 So. 3d 1241 (Fla. 2d DCA 2014); Gawker Media, LLC v.
Bollea 129 So. 3d 1196 (Fla. 2d DCA 2014).
-3-
motion to dismiss on that ground. Consequently, and significantly, long after the other
defendants either had been dismissed from the case or had filed answers and
affirmative defenses to Bollea's complaint, Blogwire had not done so. On April 17,
2015, this court reversed and remanded for further proceedings on Blogwire's motion to
dismiss. Blogwire Hung. Szellemi Alkotst Hasznost, KFT v. Bollea, 162 So. 3d 1116
(Fla. 2d DCA 2015).
While Blogwire's appeal was pending in the fall of 2014, Bollea grew eager
to place at least part of the action at issue. He moved the circuit court to sever the
claims against Blogwire from the balance of the case and to set the claims against the
other defendants for trial. Over the Gawker defendants' strenuous objections, the court
granted the motion. By order dated November 4, 2014, the court severed the claims as
mentioned, and it tentatively scheduled trial against all defendants other than Blogwire
for July 2015. At a hearing the next month, the court finalized the trial date as July 6,
memorializing the same in a written order setting trial entered February 18, 2015. The
Gawker defendants challenged both rulings by petitions for writ of certiorari, contending
that severing defendants is not permitted and that, because Blogwire had not answered
the complaint, the case was not at issue and could not be set for trial. We consolidated
the petitions and, on May 7, 2015, we quashed both orders.2 Gawker Media, LLC v.
Bollea, Case Nos. 2D14-5591, 2D15-1259, consolidated.
2Our May 7, 2015, order simply informed the parties of our ruling and
advised that an opinion explaining our reasoning would follow. However, subsequent
events, which we will describe, may have mooted that proceeding.
-4-
The instant proceeding was occasioned by what happened in the following
weeks. Bollea was determined to maintain the July 6 trial date, if possible. In a May 19,
2015, letter to the judge and again at a May 29 motions hearing, his counsel asked the
court to keep the July 6 date reserved, theorizing that if Bollea voluntarily dismissed
Blogwire from the case, the issues raised in the certiorari proceeding would vanish and
his suit could proceed to trial against the other defendants as planned. At the May 29
hearing the court agreed to keep the July 6 trial date open. It also orally granted
Bollea's pending motion to file an amended complaint seeking punitive damages.
As foretold, on June 18, the day before a scheduled case management
conference, Bollea filed a notice of voluntary dismissal with prejudice as to Blogwire and
filed his amended complaint seeking punitive damages by interlineation in the prayer for
relief. He also filed a "notice that action is still at issue," asking the circuit court to reset
the case for trial beginning on the previously scheduled date, July 6.
The next day, June 19, the circuit court entered a written order reflecting
its earlier oral ruling that Bollea could amend his complaint to seek punitive damages.
The order also stated that "[n]o further pleading by Defendants in response to plaintiff's
Amended Complaint, as amended by interlineation, is required, and Gawker Defendants
are deemed to have denied Mr. Bollea's claim for punitive damages."
In the meantime, on the morning of June 19, the Gawker defendants had
filed a written objection to Bollea's notice that the case was at issue, pointing out among
other things that under rule 1.440 a case is not at issue until twenty days have elapsed
after the pleadings are closed. At the case management conference that day, the
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Gawker defendants emphatically opposed setting the case for trial. But the circuit court,
persuaded by Bollea's side that it could disregard the opponents' objections as
innocuous technicalities, entered a written order setting trial for July 6. Three days later,
on June 22, the Gawker defendants filed the instant proceeding in this court.3
Although we easily understand why Bollea and the circuit court went to
lengths to preserve the July 6 trial date, their efforts were futile from the outset—by the
time the court entered its June 19 order scheduling the trial for July 6, the window for
doing so had been closed for weeks. Rule 1.440(a) provides that an action is deemed
at issue "after any motions directed to the last pleading served have been disposed of
or, if no such motions are served, 20 days after service of the last pleading."
Thereafter, under subsection (b) a party must serve a notice that the action is at issue
and ready to be scheduled for trial. Per subsection (c), the court must then enter an
order setting trial no fewer than thirty days hence. The rule thus prescribes a minimum
interval of fifty days between service of the last pleading and commencement of trial.
Fifty days prior to July 6 was May 17, which was a Sunday. Therefore, to
permit a trial on July 6, the last pleading in the case must have been served no later
than Friday, May 15; Bollea's notice that the action was at issue must have been filed
3The Gawker defendants initially pursued relief by filing a motion in the
earlier certiorari case. They asked us to enforce our May 7, 2015, ruling by quashing
the June 19 order setting trial or, "[t]o the extent that a motion to enforce [the] prior order
is the improper remedy to seek in this instance, . . . to convert their motion to the
appropriate form in which to permit consideration of their application." By separate
order we have treated the Gawker defendants' motion as a petition for writ of
mandamus and Bollea's response to the motion as a response to that mandamus
petition.
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no sooner than June 4 or later than June 6; and the court's order setting trial must have
been entered no later than June 6.
None of that happened, of course. As of May 15, the case simply was not
at issue. This court had quashed both the order severing the claims against Blogwire
from the rest of the case and the February order setting the action against the other
defendants for trial. Blogwire had yet to answer Bollea's complaint; its motion to dismiss
for lack of personal jurisdiction was pending and awaiting further proceedings pursuant
to this court's disposition of Blogwire's appeal the previous month. Finally, as of May 15
the question whether Bollea would be permitted to amend his pleadings to seek punitive
damages was unsettled, and it would not be decided until the motions hearing on May
29.
Bollea attempted to eliminate the Blogwire hindrance by dismissing it from
the suit on June 18. But according to rule 1.440, this was far too late for purposes of a
July 6 trial date. (In fact, it was already too late when Bollea's counsel first raised the
possibility of dismissing Blogwire in his May 19 letter to the judge.) And in any event,
Bollea filed his amended complaint seeking punitive damages from the other
defendants on June 18, as well. Even in Blogwire's absence, then, under rule 1.440 the
case against the remaining defendants would not be at issue until twenty days later, on
July 8. Even if the circuit court acted on that very day, it could not set a trial date earlier
than August 7.
This was not altered by the court's declaration that the defendants were
excused from responding to Bollea's new punitive damages claim. Rule 1.440(b)
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provides that "[t]he party entitled to serve motions directed to the last pleading may
waive the right to do so by filing a notice for trial at any time after the last pleading is
served." In other words, the rule grants that party, not the court, discretion to dispense
with the prescribed twenty-day interlude before the action is at issue. Regardless, even
if Bollea's and the court's machinations had placed the action at issue on June 19, at
that point the court could set trial no earlier than July 19.
The June 19 order setting trial for July 6 plainly violated rule 1.440. For
many years, the appellate courts of this state have emphasized that the rule's
specifications are mandatory and they have admonished trial courts to strictly adhere to
them. Teelucksingh v. Teelucksingh, 21 So. 3d 37 (Fla. 2d DCA 2009); Broussard v.
Broussard, 506 So. 2d 463 (Fla. 2d DCA 1987); R.J. Reynolds Tobacco Co. v.
Anderson, 90 So. 3d 289 (Fla. 2d DCA 2012) (table decision) (text of order available at
2012 WL 2428282); Tucker v. Bank of N.Y. Mellon, 39 Fla. L. Weekly D789 (Fla. 3d
DCA Apr. 16, 2014); Lurtz v. Bank of N.Y. Mellon, 162 So. 3d 11 (Fla. 4th DCA 2014);
BAC Home Loans Servicing L.P. v. Parrish, 146 So. 3d 526 (Fla. 1st DCA 2014);
Genuine Parts Co. v. Parsons, 917 So. 2d 419 (Fla. 4th DCA 2006); Precision
Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002); Dep't of
Revenue v. Marcovitch, 765 So. 2d 944 (Fla. 5th DCA 2000); Cardozo v. Cardozo, 705
So. 2d 145 (Fla. 4th DCA 1998); S.W.T. v. C.A.P., 595 So. 2d 1084 (Fla. 4th DCA
1992); Rivera v. Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990); Lauxmont Farms, Inc. v.
Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987); Bennett v. Cont'l Chems., Inc., 492 So. 2d
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724 (Fla. 1st DCA 1986); Fireman's Fund Ins. Co. v. Weissing, 448 So. 2d 630 (Fla. 4th
DCA 1984); Foremost Ins. Co. v. Barkett, 441 So. 2d 179 (Fla. 4th DCA 1983).
Indeed, a trial court's obligation to hew strictly to the rule's terms is so well
established that it may be enforced by a writ of mandamus compelling the court to strike
a noncompliant notice for trial or to remove a case from the trial docket. Anderson, 90
So. 3d at 289, 2012 WL 2428282 at *1; Parsons, 917 So. 2d at 421; Weissing, 448 So.
2d at 631; Barkett, 441 So. 2d at 180.
Still, notwithstanding the compulsory nature of rule 1.440, in some
instances appellate courts have held that a party waived its objection to an order setting
trial contrary to the rule. For example, in Parrish v. Dougherty, 505 So. 2d 646 (Fla. 1st
DCA 1987), the appellant's attorney appeared at the trial and participated without
objecting to the manner in which it had been set. In Correa v. U.S. Bank National Ass'n,
118 So. 3d 952 (Fla. 2d DCA 2013), the appellant agreed to a rescheduled trial date,
participated in the trial, and made no objection to any deviation from rule 1.440. In both
instances, the appellants were deemed to have waived their assertions of error based
on the rule. For two reasons, however, such cases have no bearing here. First, of
course, is that the Gawker defendants began insisting on compliance with rule 1.440
and objecting to the July trial date in the fall of 2014, and they consistently have done so
ever since.
The second reason that the waiver cases are inapplicable to this
proceeding is more nuanced but nonetheless significant: whereas this is a mandamus
proceeding, those cases were plenary appeals from final judgments. The two types of
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proceedings serve very different purposes, entailing very different requirements. In an
appeal from a final judgment the lower court's rulings are reviewed for reversible legal
error. Generally speaking, a judgment may be reversed only for an error that has been
preserved by timely objection in the lower court and that has prejudiced the complaining
party in a way that likely affected the result. Goldschmidt v. Holman, 571 So. 2d 422
(Fla. 1990) (stating no judgment may be reversed unless a court finds error resulting in
a miscarriage of justice); see also § 59.041, Fla. Stat. (2015) (same); Aills v. Boemi, 29
So. 3d 1105 (Fla. 2010) (holding that, except in cases of fundamental error, an
appellate court cannot consider any ground for objection not presented to the trial
court). Thus, the appellant's failure to make a timely objection waives the issue on
appeal, as happened in Parrish and Correa.
Mandamus is a different animal altogether. Its purpose is not to review a
lower court ruling for prejudicial error; rather, it is meant to enforce the respondent's
unqualified obligation to perform a clear legal duty. State ex rel. Buckwalter v. City of
Lakeland, 150 So. 508 (Fla. 1933). If the petitioner is entitled to demand performance
of the duty, he or she need not preserve the issue beyond making the demand. Further,
it is unnecessary for the petitioner to suffer prejudice as a result of the respondent's
dereliction. All that must be shown is that (1) the respondent is duty-bound to act under
the law, and (2) the respondent has failed or refused to do so. Pleus v. Crist, 14 So. 3d
941 (Fla. 2009). A third and final element is that the petitioner must have no adequate
legal remedy for the respondent's failure to carry out its duty. Id.; Sturdivant v.
Blanchard, 422 So. 2d 1028 (Fla. 1st DCA 1982).
-10-
By this point in our discussion it is obvious that the first two elements have
been satisfied here. The third element is present, as well. It is true that the Gawker
defendants have available to them the legal remedy of pursuing an appeal from any
future final judgment, in which they could complain of the errant order scheduling the
trial. But owing to the mentioned differences between a mandamus proceeding and an
appeal, the appellate remedy is not an adequate one. As we have established, a party
is absolutely entitled to strict conformance with the terms of rule 1.440, including its
mandated fifty-day hiatus between the service of the last pleading and the trial date.
Whereas a writ of mandamus can preserve and effectuate this right in full, an appeal
following entry of final judgment is inherently incapable of doing so because the
appellant already will have been forced to trial in violation of the rule.
To be sure, a number of the authorities we have cited as exemplifying
strict enforcement of rule 1.440 have been appeals from final judgments as opposed to
pretrial writ proceedings. But those appeals simply could not have afforded relief
commensurate with that available by writ of mandamus. An appellate reversal and
remand for a new trial many months after the appellant was forced into the first trial in
violation of rule 1.440 is a far and lesser cry from a writ of mandamus enforcing the rule
prior to the offending trial date.
An appeal from a final judgment is an inadequate remedy for yet another
significant reason. To the extent that in an appeal the court must be concerned with
whether an infringement of the appellant's rights has been preserved for review and has
prejudiced the appellant, and insofar as the court otherwise must apply appellate
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decisional rules that are inapplicable to mandamus proceedings, the appellant's rights
have been diminished by the court's inability to unqualifiedly enforce them.
Again, in some of the cases cited previously the appellate courts granted
relief without apparent concern for these limiting principles of appellate review. But,
certainly, such magnanimity on the part of an appeal court panel cannot be predicted or
depended upon, as the appellants learned in HSBC Bank USA, N.A. v. Serban, 148 So.
3d 1287 (Fla. 1st DCA 2014) (holding that a violation of rule 1.440 caused no harm),
and Labor Ready Southeast, Inc. v. Australian Warehouses Condominium Ass'n, 962
So. 2d 1053 (Fla. 4th DCA 2007) (holding that under the circumstances of the case the
appellant was not prejudiced by violation of rule 1.440). See also Mourning v. Ballast
Nedam Constr., Inc., 964 So. 2d 889 (Fla. 4th DCA 2007) (to same effect). In those
cases the appellate courts, applying decisional rules governing appeals, declined to
enforce the trial courts' clear legal duty to strictly comply with rule 1.440. Thus, they
illustrate the inadequacy of an appeal from a final judgment as a remedy for a trial
court's failure to perform its duties under the rule. Moreover, because appellate rules of
decision are inapplicable to mandamus proceedings, the holdings in Serban, Labor
Ready, and others of their ilk are not germane here.
The same is true of the few cases in which deviations from rule 1.440
have been challenged by petitions for writ of certiorari. The decisional rules governing
certiorari are even more restrictive than those at play in appeals. Citizens Prop. Ins.
Corp. v. San Perdido Ass'n, 104 So. 3d 344, 351 (Fla. 2012) (stating that a departure
from the essential requirements of law necessary for the issuance of writ of certiorari
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must be "something more than just a legal error"); Haines City Cmty. Dev. v. Heggs,
658 So. 2d 523, 527 (Fla. 1995) (noting that a departure from the essential
requirements of law must extend "far beyond legal error") (quoting Jones v. State, 477
So. 2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially))). Even so, in Globe Life
& Accident Insurance Co. v. Preferred Risk Mutual Insurance Co., 539 So. 2d 1192 (Fla.
1st DCA 1989), the court held that an order setting the case for trial in the absence of a
notice that the case was at issue violated the essential requirements of law and resulted
in a miscarriage of justice, warranting a writ of certiorari.
But in a more recent certiorari case involving a departure from rule 1.440,
the Third District declined to issue the writ, observing that the petitioner was required to
demonstrate more than a simple legal error. Sundale, Ltd. v. Williams Paving Co., 913
So. 2d 740 (Fla. 3d DCA 2005). Rather, the court wrote, the petitioner had to establish
why it had no adequate remedy on appeal from a final judgment. The court observed
that "[petitioner] has not even attempted to allege how an appeal cannot remedy this
legal error." Id. at 740.
Sundale is problematic for two reasons. First, as we have shown, the
notion that an appeal from a final judgment is adequate to remedy a violation of rule
1.440 is plainly incorrect. Second, Sundale misstated the certiorari test in a slight but
important way. Contrary to Sundale's suggestion, certiorari may be precluded not by
the availability of a mechanism for correcting the error itself; rather, the remedy must
alleviate the harm that results from the error. See, e.g., J.C. v. Dep't of Children &
Family Servs., 83 So. 3d 883, 887 (Fla. 2d DCA 2012) (observing that to obtain a writ of
-13-
certiorari the petitioner must demonstrate that the trial court departed from the essential
requirements of law and that the trial court's order "caused irreparable harm that cannot
be remedied on postjudgment appeal"). In many certiorari cases, this difference may be
an abstraction without much practical impact. But the distinction is hugely important in a
mandamus proceeding, which focuses only on the duty owed and failed by the
respondent and is wholly unconcerned with whether the petitioner has been injured by
the respondent's dereliction.
Notwithstanding our view that Sundale was incorrectly decided and that,
as a certiorari proceeding, it is immaterial to this case, we likely should address its
unfortunate influence on two previous decisions by this court. In 2011, we issued what
was in effect a citation per curiam decision denying a petition for writ of mandamus in
reliance on Sundale. Dolan v. Bank of Am., 63 So. 3d 761 (Fla. 2d DCA 2011) (table
decision) (text of order available at 2011 WL 2565556). The result in that case might
well have been correct. But as we have explained, Sundale, a certiorari case, should
have played no part in the disposition of that mandamus proceeding.
More troubling is our decision two years later in Jay Properties Beach
Condo LLC v. Wells Fargo Bank, N.A., 146 So. 3d 34 (Fla. 2d DCA 2013) (table
decision) (text of order available at 2013 WL 6905332). There, we denied an
emergency petition for writ of certiorari apparently on the ground that "[a] claim that the
trial court erred by scheduling the case for trial is reviewable on appeal and not by
petition for writ of certiorari," citing Sundale. As we have seen, that is simply untrue.
Ironically, sandwiched between those two mistaken cases was our 2012
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decision in Anderson, 90 So. 3d 289, 2012 WL 2428282 *1. In that mandamus case we
quashed an order denying the petitioner's motion for continuance of trial and ordered
further proceedings in compliance with rule 1.440. Unsurprisingly, Sundale was not
mentioned in that order.
We discuss these dispositions because Bollea emphasizes Jay Properties
in the response he filed in this case. He maintains that it is controlling here, and that we
cannot grant the Gawker defendants the relief they seek without departing from our own
precedent. But the fact is that we are not bound by the results or reasoning in any of
those cases. The reason is that Dolan, Jay Properties, and Anderson all were
unpublished dispositions. The disposition orders are discoverable online, but they were
not meant to be printed in the official reporter of this court's decisions. Indeed, in the
printed reporter they appear merely as entries among the table decisions; the
associated "opinions" are not reproduced. As such, they have no precedential value.
See Citizens Prop. Ins. Corp. v. Ashe, 50 So. 3d 645, 651 n.3 (Fla. 1st DCA 2010).
They do not enunciate the law of this district, and they are of no consequence to our
decision today.
We grant the petition for writ of mandamus. The circuit court shall
straightaway rescind its June 19, 2015, order setting this action for trial and remove the
action from the July 6, 2015, trial docket. This direction is effective immediately, and it
shall remain in force notwithstanding the filing of a motion for rehearing, if any.
CASANUEVA and CRENSHAW, JJ., Concur.

Monday, June 15, 2015

Florida Court Reverses Constructive Possession Conviction

Constructive Possession of Firearm
Constructive Possession conviction reversed
where "the State presented no evidence
to rebut evidence
that other individuals either
drove or occupied the car .

What is Constructive Possession?

Here is a typical factual situation in constructive possession cases in Florida. "[P]olice arrived at the residence in question; inside were Appellant and four other males. Adjacent to the residence was a fenced-in area where a newer-model Chrysler was located, with other cars. . . .  In the glove compartment [the cops] found a rental car agreement in [Defendant's]  name with what appeared to be [Defendant's]  signature. According to the agreement, the rental period began on August 29, 2013, and was due to end at 6:00 p.m. on September 5, 2013, the day of the search. In the front-seat center console, which was closed, the detective found a handgun and a receipt for payment of a T-Mobile cell phone bill. [Defendant's] name was on the receipt . . . ."

"None of the testifying officers could recall how the car keys were obtained, when the men in the residence had arrived there, or who drove the rental car to the residence that day, who had been driving it during the rental period, or . . .   who owned the various items in the back seat area of the car."

The guy was charged with illegal possession of a firearm. "Florida law requires this court to apply a “special” standard of review in circumstantial evidence cases, such that, when viewing the evidence in a light most favorable to the State, this court must determine whether the evidence viewed in this light excludes every reasonable hypothesis of innocence. State v. Law, 559 So. 2d 187 (Fla. 1989). If such evidence has been introduced at trial which contradicts any reasonable hypothesis of innocence, the jury’s verdict of guilt must be affirmed, as it is solely the prerogative of the factfinder to accept or reject . . . contradictory evidence."

"In addition to the circumstantial evidence rule, we apply the rule of law on constructive possession. When the “premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband's presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.” Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 1989). Here, there is no dispute that no one was in or near the rental car when police arrived at the residence (i.e., no one had possession of the car), the car was rented by Appellant, the console was closed when police searched the car, and both a handgun and a receipt for payment of a 9 cellular phone bill in Appellant’s name were found in the center console of that car. The issue is whether this evidence was sufficient to establish Appellant’s knowledge of the handgun in the console; in other words, to rebut Appellant’s reasonable hypothesis of innocence that, as the trial court summarized, “somebody else drove the vehicle at some point in time, and it is their gun as opposed to [Appellant’s].”

Another Case on Constructive Possession


Constructive Possession Cannabis | Defense Win

www.drug2go.com/2011/07/constructive-possession-cannabis.html

 Rating: 4.9 - ‎Review by Google+
Jul 5, 2011 - The court ruled, “Accordingly, the trial court erred in denying [defendant's] motion for ... We reverse because, in this constructive possession case, the State failed . . . Download this Florida Constructive Possession Case Here.

Free Download of the Constructive Possession Opinion from Florida


The Court's Ruling on Constructive Possession


"Here, the learned trial court’s denial of Appellant’s JOA motion focused primarily on the presence in the console of the handgun and the T-Mobile receipt bearing Appellant’s name and dated two days before the search. The court found that this two-day period was sufficiently close in time to infer Appellant’s knowledge of the gun’s presence, and was bolstered by the fact that the girlfriend to whom Mr. Byrd testified he turned over the rental car was not at the residence when police arrived, but the car was. But the State presented no evidence to rebut Appellant’s evidence that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Also, police could not testify from whom or where they obtained the keys to the car, and could not say who drove the rental car to the residence on the day of the search. Furthermore, as in Evans, although the presence of the T-Mobile receipt bearing Appellant’s name suggests Appellant may have placed the receipt there, “[s]uch an inference, however, provides no time frame with regard to when the [gun] came to reside” in the console, “nor any help as to appellant's present dominion over the [gun].” 32 So. 3d at 191. Thus, we hold that the evidence here was insufficient to support a prima facie case that Appellant was in constructive 12 possession of the firearm, and thus we must reverse Appellant’s conviction. REVERSED"

Excerpts of Opinion of the Florida Court on Constructive Possession

Constructive Possession conviction reversed where "the State presented no evidence to rebut Appellant’s evidence that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Also, police could not testify from whom or where they obtained the keys to the car, and could not say who drove the rental car to the residence on the day of the search."

Complete Opinion of the Court on Constructive Possession


IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED 

JOE LEE KEMP, IV,
Appellant,
v.
STATE OF FLORIDA,
Appellee.

CASE NO. 1D14-2738
Opinion filed June 15, 2015.

An appeal from the Circuit Court for Duval County. James H. Daniel, Judge. Diana L. Johnson of Johnson and Lufrano, P.A., Jacksonville, for Appellant. Pamela Jo Bondi, Attorney General, Jessica DaSilva, Assistant Attorney General, Tallahassee, for Appellee. THOMAS, J. Appellant appeals his conviction for possession of a firearm by a convicted felon. 

We address only the first issue, whether the trial court erred by denying the motion for judgment of acquittal (JOA), as we reverse on this ground and order Appellant’s discharge from the conviction. 2 Facts While in the course of executing a search warrant, police arrived at the residence in question; inside were Appellant and four other males. Adjacent to the residence was a fenced-in area where a newer-model Chrysler was located, with other cars. Detective Hanson was the first officer to search the Chrysler. In the glove compartment he found a rental car agreement in Appellant’s name with what appeared to be Appellant’s signature. 

According to the agreement, the rental period began on August 29, 2013, and was due to end at 6:00 p.m. on September 5, 2013, the day of the search. In the front-seat center console, which was closed, the detective found a handgun and a receipt for payment of a T-Mobile cell phone bill. Appellant’s name was on the receipt, which reflected that the bill had been paid in cash two days before the search. Another officer noted a number of items in the back seat area, including a student handbook. No DNA or fingerprint testing was done on the firearm or any other items, and no one in the residence claimed ownership of the gun. Detective Hanson was unable to recall with certainty whether the car was locked. None of the testifying officers could recall how the car keys were obtained, when the men in the residence had arrived there, or who drove the rental car to the residence that day, who had been driving it during the rental period, or 3 who owned the various items in the back seat area of the car. 

Appellant moved for JOA at the close of the State’s evidence, arguing that the State failed to prove a prima facie case of possession of a firearm. Acknowledging that the firearm was found in the closed center console of a vehicle that contained items that purportedly were Appellant’s, Appellant argued that the car was located within a residence that contained several people; no one identified Appellant as the sole driver of the Chrysler; no DNA or fingerprint evidence linked Appellant to the firearm; and the keys to the vehicle were not obtained from Appellant. 

The State argued that the element of knowledge was established by the location of the T-Mobile receipt dated September 3, 2013, found in the same console as the firearm. In denying the motion, the court acknowledged that the fact that the car was rented in Appellant’s name was insufficient to prove possession of the gun, but found that, at that point in the trial, there was no evidence that anyone other than Appellant had been in the car. The court also acknowledged, however, that “nobody is really sure exactly where the keys came from either. But in the end you’ve got this phone bill sitting there in the container which is holding the gun, and I think that is enough to require the Court to deny” the motion. 

Appellant then called one witness, Mr. Byrd, who testified that he drove the rental car all day on August 31, 2013, and that others were in the car with him, but 4 he had not driven it since that day. When he was finished driving the car, the witness turned it over to Appellant’s girlfriend. He also testified that, in addition to the girlfriend, two of the men who were at the residence when police arrived had also driven the car during the week before the search. Mr. Byrd testified that on the day of the search he drove to the residence in a car belonging to Appellant’s girlfriend. Mr. Byrd did not observe the rental car when he arrived, and Appellant was alone at the residence. Mr. Byrd testified that he did not know how either Appellant or the other men got to the residence, or who drove the rental car that day. Mr. Byrd testified that, although he owned a handgun, the firearm found in the rental car was not his.1 Appellant rested his case and renewed his motion for JOA, adding to his previous argument that he had presented evidence that other persons had been in the rental car during the week prior to the search. 

The trial court acknowledged the circumstantial nature of the State’s case and that this required the State to present evidence rebutting Appellant’s reasonable hypothesis of innocence: However, I think the state has done that again with the phone bill being there; also the fact that [Byrd] said he gave the car to [Appellant’s] wife or girlfriend. The girlfriend was not there. His girlfriend didn’t drive it, okay. [Byrd] had no idea who drove it over there on the day in question. And, again, you’ve got the phone bill in 1 Over Appellant’s objection, the court allowed the State to elicit testimony from Mr. Byrd that his firearm was found in Appellant’s girlfriend’s vehicle and he did not have a concealed weapons permit, forming the basis of Appellant’s second assertion of error. 5 there from a very close . . . date to when the vehicle was searched and the gun was found and I think that the phone bill . . . identifies [Appellant] and the container . . . there is something that identifies [Appellant] in the container that is holding the gun . . . I think the state . . . has some evidence to rebut that reasonable hypothesis of innocence . . . . The trial court found that this was not undermined by Mr. Byrd’s testimony, and pointed out that the gun did not belong to Mr. Byrd. 

The court also found that it “clearly” wasn’t the girlfriend to whom Byrd handed over custody of the vehicle. Analysis A trial court’s denial of a motion for JOA is reviewed de novo to determine if the evidence is legally sufficient to sustain a conviction. Jones v. State, 790 So. 2d 1194 (Fla. 1st DCA 2001). An appellate court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State. Lynch v. State, 293 So. 2d 44 (Fla. 1974). Here, the State’s case was based on a theory of constructive possession of the handgun. Florida law requires this court to apply a “special” standard of review in circumstantial evidence cases, such that, when viewing the evidence in a light most favorable to the State, this court must determine whether the evidence viewed in this light excludes every reasonable hypothesis of innocence. State v. Law, 559 So. 2d 187 (Fla. 1989). If such evidence has been introduced at trial which contradicts any reasonable hypothesis of innocence, the jury’s verdict of guilt must be affirmed, as it is solely the prerogative of the factfinder to accept or reject 6 contradictory evidence. Id. at 188. 

This “special standard” applicable in circumstantial evidence cases has been questioned in Knight v. State, 107 So. 3d 449 (Fla. 5th DCA), rev. granted, 151 So. 3d 1226 (Fla. 2014), in which the Fifth District noted that the “special standard” is inconsistent with Florida’s Standard Jury Instructions in Criminal Cases, federal law, and the majority of jurisdictions. Under the United States Constitution, no such “special standard” is required. Jackson v. Virginia, 443 U.S.307, 326 (1979) (citing Holland v. United States, 348 U.S. 121 (1954)). Under federal law, the “rational trier of fact” test is the rule of law. Id. And of course, in Tibbs v. State, 397 So. 2d 1120 (Fla. 1981), our Supreme Court prohibited appellate courts from reweighing the evidence when reviewing an order denying a motion for a judgment of acquittal. In Westbrooks v. State, the Second District affirmed the denial of a motion for judgment of acquittal, stating: Generally, a motion for judgment of acquittal should be denied “[i]f after viewing the evidence in the light most favorable to the state, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). However, in cases in which the evidence is “wholly circumstantial,” a special standard of review applies: “the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Id; see also Mosley v. State, 46 So. 3d 510, 526 (Fla. 2009) (“If the state presents both direct and circumstantial evidence, courts do not apply the special standard of review applicable to circumstantial evidence cases.” (citing Pagan, 830 So. 2d at 803)). 

“Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the state, the 7 question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied.” Durousseau v. State, 55 So. 3d 543, 557 (Fla. 2010). “‘The state is not required to ‘rebut conclusively every possible variation’ of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the [d]efendant’s theory of events.’” Id. (quoting State v. Law, 559 So. 2d 187, 189 (Fla. 1989)). The state is not required to rebut a hypothesis of innocence that is unreasonable. See Henderson v. State, 679 So. 2d 805, 806 (Fla. 3d DCA 1996)(“While we must agree with [appellant] that the State was required to provide evidence inconsistent with any reasonable hypothesis of innocence, we emphasize that the State was not required to exclude any unreasonable hypothesis.”). 145 So. 3d 874, 877-78 (Fla 2d DCA 2014) (emphasis in original). In a concurring opinion, two judges of the panel decision expressed their concern with Florida law which requires courts to apply a special rule in circumstantial criminal cases, noting the Fifth District’s analysis in Knight v. State, and the statement there that “Florida should join the federal courts and the vast majority of states that have abandoned use of a special circumstantial evidence standard of review.” Id. at 881 (Morris and Black, JJ., concurring) (quoting Knight v. State, 107 So. 3d 449, 457 (Fla. 5th DCA 2013)). The concurring opinion quoted the court in Knight, stating the special standard improperly disregards the jury’s role and requires the appellate court to “‘ignore[] the correlation between the ‘strength’ of circumstantial evidence and ‘reasonableness’ of various hypotheses of innocence.’” Id. Finally, the concurring opinion noted that the court in Knight stated that clarification in the law as to when the special rule on circumstantial 8 evidence must apply would be beneficial. Id. 

Here, as did the trial court, we apply the special standard of review of cases involving circumstantial evidence, even assuming that Appellant’s stipulation of his status as a felon, an element of the crime here, constitutes direct evidence, because there was no direct evidence that Appellant possessed the handgun, and his status as felon alone does not constitute proof of guilt. Westbrook, 145 So. 3d at 878 (although the State presented evidence that defendant had been told in advance of robbery plan, “there was no direct evidence that Westbrooks participated in the robberies. . . . Therefore, this court must apply the special standard applicable to wholly circumstantial evidence cases. See Kocaker v. State, 119 So. 3d 1214, 1225 (Fla. 2013).”). 

In addition to the circumstantial evidence rule, we apply the rule of law on constructive possession. When the “premises where contraband is found is in joint, rather than exclusive, possession of a defendant, however, knowledge of the contraband's presence and the ability to control it will not be inferred from the ownership but must be established by independent proof.” Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 1989). Here, there is no dispute that no one was in or near the rental car when police arrived at the residence (i.e., no one had possession of the car), the car was rented by Appellant, the console was closed when police searched the car, and both a handgun and a receipt for payment of a 9 cellular phone bill in Appellant’s name were found in the center console of that car. The issue is whether this evidence was sufficient to establish Appellant’s knowledge of the handgun in the console; in other words, to rebut Appellant’s reasonable hypothesis of innocence that, as the trial court summarized, “somebody else drove the vehicle at some point in time, and it is their gun as opposed to [Appellant’s].” 

Factually, this case bears sufficient resemblance to Evans v. State, 32 So. 3d 188 (Fla. 1st DCA 2010), to warrant reversal.2 In Evans, police searched a bedroom identified by an informant as the appellant’s, which was in a jointlypossessed home. Police found on the bed in that room a duffel bag containing the appellant’s passport and other items, including a toiletry kit containing illicit drugs. Id. at 189. In part of its discussion as to why reversal was necessary, the court explained: “Because the premises where the officers found the contraband were in joint, rather than exclusive, possession, one cannot infer either the ‘knowledge’ or ‘ability to maintain dominion and control’ element from mere ownership of the 2 The State relies solely on Wale v. State, 397 So. 2d 738 (Fla. 4th DCA 1981), a reliance that is misplaced for two reasons: First, Wale involved a motion to dismiss, not a JOA motion; and second, the contraband at issue in Wale was found inside a box that was labeled with the appellant’s name and address, and was found inside Appellant’s bedroom closet. It was in this context that the court in Wale held: “Guilty knowledge can be presumed from the facts and evidence, and once it is shown that the contraband is found in the defendant's home, in his own closet, in a box bearing his name and address, a jury question is created as to whether he had knowledge of the contraband's presence.” Id. at 740. 10 residence or proximity to the contraband. The State must establish both elements by independent proof.” Id. at 190. 

In Evans, this court addressed S.B. v. State, 657 So. 2d 1252 (Fla. 2d DCA 1995), where the Second District concluded that the State failed to prove that S.B. constructively possessed marijuana found in a grocery bag in the trunk of a car carrying him and several other passengers, even though S.B. admitted owning the bag, because the officer never asked if S.B. owned the container in which the marijuana was found, never inventoried the contents of the bag, and never obtained fingerprints from the container. Evans, 32 So. 3d at 189. The Evans court also addressed N.K.W., Jr. v. State, 788 So. 2d 1036 (Fla. 2d DCA 2001), explaining that “the evidence failed to show N.K.W. constructively possessed LSD found inside a baggy in his wallet, as the wallet was located in plain view on a bedroom closet shelf to which many people attending a party had access.” Id. The court noted that “N.K.W. did not admit owning the LSD, officers obtained no fingerprints from the baggy, and no direct evidence established his knowledge of the presence of the contraband.” Id. In Evans, this court explained: The presence of appellant's passport in the duffel bag suggests he could have placed the passport there. Such an inference, however, provides no time frame with regard to when the contraband came to reside in the bag, nor any help as to appellant's present dominion over the contraband. Without more, the mere presence of the passport is no better proof of appellant's knowledge of, and dominion over, the 11 contraband than S.B.'s acknowledgment of ownership of the grocery bag or N.K.W.'s admission of ownership of the wallet where officers found the drugs. 32 So. 3d at 191. 

Here, the learned trial court’s denial of Appellant’s JOA motion focused primarily on the presence in the console of the handgun and the T-Mobile receipt bearing Appellant’s name and dated two days before the search. The court found that this two-day period was sufficiently close in time to infer Appellant’s knowledge of the gun’s presence, and was bolstered by the fact that the girlfriend to whom Mr. Byrd testified he turned over the rental car was not at the residence when police arrived, but the car was. But the State presented no evidence to rebut Appellant’s evidence that other individuals either drove or occupied the car in the intervening two days between the date on the receipt and the search. Also, police could not testify from whom or where they obtained the keys to the car, and could not say who drove the rental car to the residence on the day of the search. Furthermore, as in Evans, although the presence of the T-Mobile receipt bearing Appellant’s name suggests Appellant may have placed the receipt there, “[s]uch an inference, however, provides no time frame with regard to when the [gun] came to reside” in the console, “nor any help as to appellant's present dominion over the [gun].” 32 So. 3d at 191. Thus, we hold that the evidence here was insufficient to support a prima facie case that Appellant was in constructive 12 possession of the firearm, and thus we must reverse Appellant’s conviction. REVERSED with directions to discharge Appellant. MARSTILLER and BILBREY, JJ., CONCUR

Thursday, April 16, 2015

United States Attorneys' Manual - Fully Searchable

United States Attorneys' Manual
Fully Searchable
Here is an interesting read - a fully searchable copy of the United States Attorneys' Manual. The document is available and has been posted under a standing Freedom of Information Act request. Learn about how the Department of Justice prosecutes cases by reviewing the Prosecutor's Handbook, also known as The United States Attorneys' Manual. Here are the guidelines used for indicting and prosecuting cases in Federal Court - Criminal Division Manual .

This is the same manual that is used in the Middle District of Florida. Here are a few interesting provisions dealing with how the Feds take property from citizens using Asset Forfeiture . Here is the prosecutor's bible known as the United States Attorneys' Manual .

Saturday, March 14, 2015

Florida Felony and Misdemeanor | Statute of Limitations | Theft and other Charges

"Time starts to run on the day after the offense is committed."

Statute of Limitations
How long can prosecutors wait to go forward on a criminal case?

What is the Statute of Limitations for criminal cases in Florida? 

These are  Frequently asked Questions.The Florida Criminal Statute of Limitations, Theft, Drug and general Felony Statutes of Limitations sometimes depends on the nature of the criminal charges. Under Florida law, a second degree misdemeanor must commence within one (1) year of the alleged incident. a first degree misdemeanor has two (2) years to commence prosecution. First Degree (1st) felonies are 4 years and all other felonies ( 2nd and 3rd Degree are 3 years.

The Statute provides, in part:

775.15 Time limitations; general time limitations; exceptions.—

(1)A prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time. If the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, all crimes designated as capital felonies shall be considered life felonies for the purposes of this section, and prosecution for such crimes may be commenced at any time.

(2)Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a)A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.

(b)A prosecution for any other felony must be commenced within 3 years after it is committed.

(c)A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed.

(d)A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within 1 year after it is committed.

(3)An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.

(4)(a)Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.

(b)A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

(c)If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or form after the time period has elapsed, the period for commencing prosecution shall be extended 3 months from the time the indictment or information is dismissed or set aside.

(5)The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.

(6)A prosecution for perjury in an official proceeding that relates to the prosecution of a capital felony may be commenced at any time.

(7)A prosecution for a felony that resulted in injury to any person, when such felony arises from the use of a “destructive device,” as defined in s. 790.001, may be commenced within 10 years.

(8)A prosecution for a felony violation of chapter 517 or s. 409.920 must be commenced within 5 years after the violation is committed.

(9)A prosecution for a felony violation of chapter 403 must be commenced within 5 years after the date of discovery of the violation.

(10)A prosecution for a felony violation of s. 825.102 or s. 825.103 must be commenced within 5 years after it is committed.

(11)A prosecution for a felony violation of ss. 440.105 and 817.234 must be commenced within 5 years after the violation is committed.

(12)If the period prescribed in subsection (2), subsection (8), subsection (9), subsection (10), or subsection 

(11) has expired, a prosecution may nevertheless be commenced for:

(a)Any offense, a material element of which is either fraud or a breach of fiduciary obligation, within 1 year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself or herself not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

(b)Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment, within 2 years from the time he or she leaves public office or employment, or during any time permitted by any other part of this section, whichever time is greater.

(13)(a)If the victim of a violation of s. 794.011, former s. 794.05, Florida Statutes 1995, s. 800.04, s. 826.04, or s. 847.0135(5) is under the age of 18, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of 18 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the state attorney for the judicial circuit in which the alleged violation occurred. If the offense is a first or second degree felony violation of s. 794.011, and the offense is reported within 72 hours after its commission, the prosecution for such offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before December 31, 1984.

(b)If the offense is a first degree felony violation of s. 794.011 and the victim was under 18 years of age at the time the offense was committed, a prosecution of the offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before October 1, 2003.

(c)If the offense is a violation of s. 794.011 and the victim was under 16 years of age at the time the offense was committed, a prosecution of the offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before July 1, 2010.

(14)A prosecution for a first or second degree felony violation of s. 794.011, if the victim is 18 years of age or older at the time of the offense and the offense is reported to a law enforcement agency within 72 hours after commission of the offense, may be commenced at any time. If the offense is not reported within 72 hours after the commission of the offense, the prosecution must be commenced within the time periods prescribed in subsection (2).

(15)(a)In addition to the time periods prescribed in this section, a prosecution for any of the following offenses may be commenced within 1 year after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of deoxyribonucleic acid (DNA) evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused:

1.An offense of sexual battery under chapter 794.

2.A lewd or lascivious offense under s. 800.04 or s. 825.1025.

(b)This subsection applies to any offense that is not otherwise barred from prosecution between July 1, 2004, and June 30, 2006.

(16)(a)In addition to the time periods prescribed in this section, a prosecution for any of the following offenses may be commenced at any time after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of deoxyribonucleic acid (DNA) evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused:

1.Aggravated battery or any felony battery offense under chapter 784.
2.Kidnapping under s. 787.01 or false imprisonment under s. 787.02.
3.An offense of sexual battery under chapter 794.
4.A lewd or lascivious offense under s. 800.04, s. 825.1025, or s. 847.0135(5).
5.A burglary offense under s. 810.02.
6.A robbery offense under s. 812.13, s. 812.131, or s. 812.135.
7.Carjacking under s. 812.133.
8.Aggravated child abuse under s. 827.03.

Florida Criminal Statute of Limitations

Dr. Seuss Goes to Court - A Retrospective

Dr. Seuss Goes to the Supreme Court

Dr. Seuss Goes to Court
In-depth report of Dr. Seuss in the courts.
Visit our main criminal defense site for an in-depth report of Dr. Seuss in the courts. Meanwhile, the US Supreme Court reeled in a few   who convinced a Federal Prosecutor to indict and prosecute a fisherman near Tampa, Florida. The court overturned the conviction obtained for destruction of records. The Court said, "A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960)." Yates v United State, ___ US ____ (2015).

"A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960)." Yates v United States, ___ US ____ (2015).