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).


Saturday, February 21, 2015

BATT1000 BATTERY (TOUCH OR STRIKE)

"Actually and intentionally touches or strikes 
another person against the will of the other"

Battery Misdemeanor, BATT1000, BATTERY (TOUCH OR STRIKE)
Battery Misdemeanor
If you have been charged with BATT1000 BATTERY (TOUCH OR STRIKE) you can call a Tampa Criminal Defense Attorney at 1-877-793-9290 to Fight for You.

Form Code: BATT1000


Florida Statute: 784.03.1AB
Level: Misd (Misdemeanor)  
Degree: 1st
Description: BATTERY (TOUCH OR STRIKE)


BATT1000 BATTERY (TOUCH OR STRIKE) one of the most commonly charged offenses in Hillsborough County, Florida.

Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE

"conviction means a determination of guilt . . . regardless of whether adjudication is withheld"

784.03 Battery; felony battery.

(1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.

(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

"second or subsequent battery commits a 
felony of the third degree"

(2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.