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Michael Adam Haber
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Michael Haber’s Answers

6,797 total


  • Would being a member of a SAR team incorporated in the State of Florida be an exemption to 316.2397?

    I received a citation for violation of 316.2397. I stopped at a severe auto accident yesterday in Seminole County that had road blockage. In order to protect myself and the scene (and since I was the only public safety person there) I activated my...

    Michael’s Answer

    I strongly urge you to HIRE A LAWYER (caps intentional) and not to play lawyer.

    My guess is that you have about as much business practicing law as I do piloting a space shuttle... meaning none. Please understand that this is not personal to you. It is a simple truism in the legal profession. It is very easy to screw up a case when one does not understand the complexities of the rules of evidence and the rules of procedure; and you are very likely to screw up your case if you serve as your own lawyer (ergo Abe Lincoln's famous quote... "He who represents himself has a fool for a client." And, as an aside there are also very solid reasons for the age old adage that "no good deed goes unpunished".)

    That said, in my opinion, the best defense for any traffic citation anywhere is to hire a local traffic ticket lawyer. I can't speak to the 407 area per se but in Miami, Fl, where I have been a practicing criminal defense lawyer for nearly a quarter of a century, there are many skilled and experienced traffic lawyers who know the law, the procedure, the Judge and probably the cop. In short you will almost certainly get both competent representation and a better result for a relatively small fee / investment.

    That said, I hope that I have been helpful in answering your question.

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  • Walmart is accusing me of shoplifting and police came to my home and required me to go there to sign a statement before 6am.

    I was at Walmart around 6pm. I noticed a women following us everywhere. After 6-7 times of noticing her following us, my wife went to ask her if she was following us and that we knew Walmart has civilian LP employees watching customers. She got su...

    Michael’s Answer

    Just as you do not need to speak with them the cops do not have to show you evidence. All the have to do is swear under oath and on paper that they have PC (probable cause to arrest you) and then do so.

    In Florida most misdemeanor arrests can - at the sole discretion of the arresting officer - be effectuated on paper, without taking the subject to jail. This process is referred to as a "paper arrest", or either as a Promise or a Notice to Appear (PTA / NTA). In these circumstances the officer typically fills out a form advising you of what you are being charged with and then you are noticed by the Clerk of Court to appear for a future Court appearance. Make no mistake that if you have been PTA's / NTA'd then you have been arrested. You will need to appear in Court where you will face a prosecutor and be judged, and, accordingly, you should be represented by a skilled and experienced criminal defense lawyer. (As an aside make sure that the cop has your correct mailing address or you likely will not get your Court notice, and if you do not appear then you will get an arrest warrant... and that is entirely on you.)

    Some misdemeanor cases cannot be PTA / NTA'd. For example, DUI or Domestic Violence Assault or Battery require jail booking, but many misdemeanors, most in fact, can result in a paper arrest, and whether or not they do will generally fall upon your demeanor, attitude and behavior with the cops in the moment. If you are in fact, act like or are perceived to be a "jerk" (not to fail to mention if you are hostile, aggressive, uncooperative, rude, etc.) then you are likely to be physically rather than paper arrested. Conversely, if you are polite and respectful then your odds at a paper arrest will exponentially increase. You should also note that in any event your behavior on scene will both be considered by the State in regard to plea negotiations and admitted in evidence if your case proceeds to hearing or trial, in which case it will be considered by the judge or jury.

    No matter how poorly the cops may act or react you can - and always should - remain calm and cool. You can, and should, invoke your rights, in a respectful manner. This is all "upside" for you (long term if not short term) and will always permit your lawyer an undeniable avenue of argument in mitigation of whatever it is that you are accused of having done.

    Please take a look at my Webisode on "Paper Arrests / PTA / NTA" in Florida. It's short and sweet and to the point, containing a good deal of information which may be helpful. For your convenienve a link follows:

    Please see: https://youtu.be/juUNYntf_HA

    You may also want to watch my short Webisode on the difference between arrest a and prosecutions. It will explain it plainly as well as your options. If so then a link follows.

    Please see: https://youtu.be/BoTR7ENkJRc

    I hope that I have been helpful in answering your question.

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  • Walmart accused us of suspicion of theft and police came to our home and required us to go there to sign a statement before 6am.

    Police stated if I did not comply, they would issue a warrant. On the phone, he said he had photos/videos of my family and me. That I was accused of suspicion of theft. At the station, he read my rights and asked if I wanted to answer questions/wr...

    Michael’s Answer

    Just as you do not need to speak with them the cops do not have to show you evidence. All the have to do is swear under oath and on paper that they have PC (probable cause to arrest you) and then do so.

    If you did not steal then you have a defense to the arrest and you should immediately hire a Niceville area criminal defense lawyer to file a formal appearance, view the video and see what it shows.

    Arrests cannot be undone. But, and again, "IF" what you typed is true then she should not be prosecuted. The State Attorney has a different (a higher) burden than the police (i.e the standards for arrest and for prosecution are different). A skilled criminal defense lawyer should be able to dissect the facts, separate truth from fiction, determine what is provable and choreograph a mitigation package to attempt to dissuade the State from filing the case. If that does not work (if charges are filed nonetheless) then your friend has lost nothing as she will be well on her way to preparing a meaningful and effective defense to the charges.

    You may want to watch my short Webisode on the difference between arrest a and prosecutions. It will explain it plainly as well as your options. If so then a link follows.

    Please see: https://youtu.be/BoTR7ENkJRc

    I hope that I have been helpful in answering your question.

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  • Can you be on two misdemeanor probations in the state of florida

    I was on probation I violated went to jail and they put me on probation for the second charge and said continue my first probation I just got out of jail two weeks ago for a violation of the first one now they saying I violated again for not payin...

    Michael’s Answer

    Yes (you can serve multiple probationary terms concurrently).

    That said, there is no such thing as a debtor's prison in the US or FL. Only if you willfully and substantially fail to comply with the conditions of your probation - including making court ordered payments - can a violation properly be filed and, if even then the court must find that you both willfully and substantially failed to comply before you you can be incarcerated.

    In order to incarcerate you for failure to pay the court must first hold a hearing and afford you due process, including a right to present evidence that your failure to make your Court Ordered payments was not willful - that is to say that you could not (not that you chose not to) make the payments. "Willfulness" requires some degree of choice. If you have money and choose to spend it on things other than your Court Ordered obligations then you can be punished; but if you truly do not, and if the State cannot prove that you made such a choice, then you also cannot be jailed for your non-unwillful fauilure to pay.

    The Court has other alternatives to jailing you; namely it can choose to extend your probation (assuming that there remains statutorily permissible time for such an extension), convert your balance to either a criminal order (in the case of restitution) or community service hours (in the case of monies other than restitution) or s/he may be able to waive the costs / fees / fines and simply terminate your probation (successfully or unsuccessfully, as s/he sees fit). However, and again, if you truly could not pay then your violation should not be considered "willful", and without that necessary component you cannot be violated and incarcerated.

    All of this said, if you know that you will not be able to make your payments then you will be best advised NOT to wait for your PO to violate you and instead you should consider causing the matter to be brought before Judge beforehand - thereby hopefully impressing your Judge by your preemptive demonstration of a respectable level of acceptance of responsibility.

    If you truly cannot make your payments then gather accurate records of your finances (income and expenses) and don'to sweat it (unless, of course, you are willfully not paying). If you have a lawyer then you should discuss this with her / him and have a preemptive motion filed; if not then you should consider asking your PO if s/he will assist you to get the matter in front of the Judge now, as opposed to waiting for an imminent violation. Either way so long as you are not spending your money on superfluous things and you are truly strapped for cash then I am confident that the good Judges of the J-ville area will show some compassion and understanding to your situation.

    I hope that I have been helpful in answering your question.

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  • How to shut a facebook page down? Threatened prison time if not done immediatly.

    Years ago my brother went to prison. He got out last month and now parole officer is threatning to put him back for 5 years if he does NOT close his facebook account. We told her we have tried everything to do so. His FB acct, emails and so on we...

    Michael’s Answer

    Yes. Call Facebook (or a 12 y/o kid...).

    I am not being flippant. This is not a criminal defense question.

    Your brother has to listen to his PO and follow her lawful demands or he will be accused of a violation, but in order to be violated his contrary conduct must be both willful and substantial, and the decision as to whether or not his conduct rises to that level is reserved for the Judge and not the PO.

    That said your brother should make all efforts at complying and document the "why" of his factual inability to comply... and whatever he does he should not argue with his PO

    Following is a link to my Webisode on "Power Tripping" POs. Take a look and maybe it will help your brother understand how to deal with his PO.

    Please see: https://youtu.be/TZ6T32w0NAA

    I hope that I have been helpful in answering your question.

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  • What Jury Instructions and Lessers Should Be Read for Attempted Robbery with a Firearm and Aggravated Assault with a Firearm?

    My son was charged and convicted of attempted robbery with a firearm and aggravated assault with a firearm. Robbery instructions were read first, in addition to other instructions including the attempted robbery instructions. Then petit theft ins...

    Michael’s Answer

    Yes. Petit Theft (a misdemeanor offense) is a lesser included of robbery (a felony).

    Following is a link to the Florida Supreme Court's approved schedule of lesser included offenses:

    Please see: http://www.floridasupremecourt.org/decisions/pre2004/bin/91815b.pdf

    And following is a link to the Florida Supreme Court's approved jury instructions in criminal cases:

    Please see: http://www.floridasupremecourt.org/jury_instructions/chapters/entireversion/onlinejurryinstructions.pdf

    Finally, if you feel like some background reading to understand the history of the concept of lesser included offenses then take a look at: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1527&context=mulr

    I hope that I have been helpful in answering your question.

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  • I plead no contest to theft. I received adjudication withheld in florida. Can i pass a level 2 background screening.

    Can i pass a level 2 background screening if i plead no contest to theft.

    Michael’s Answer

    This is not a criminal defense question.

    No lawyer can tell you either how thoroughly some other person / entity will go in conducting a background check or what such an examination may or may not reveal.

    That said, unfortunately, it is probably a safe bet to assume that if you were arrested anytime in the digital age then your criminal record will almost certainly remain with you forever. To some degree or another this is true regardless of whether your ultimately seal or expunge a case. All arrests are matters of public record, and, even if they are subsequently removed from the public record they still remain alive and well in various private records. This is one down-side to technology.

    You might want to do your own background check to see what pops up. Forewarned is forearmed. If your prior indiscretion appears then, for better or for worse, you are probably best advised to take the wind out of the sails by admitting your past issues / indiscretions to your present (or potential) employer, lender, landlord, licensing authority, admissions committee, etcetera, rather than waiting for them to find out on their own, but that's a personal, not a legal, decision.

    I hope that I have been helpful in answering your question.

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  • When does florida supreme court recess for summer are they in recess now no decisions made in 2 weeks?

    waiting on decision

    Michael’s Answer

    Following is a link to the Supreme Court of Florida's Yearly Schedule for 2015-16:

    Please see: http://www.floridasupremecourt.org/pub_info/calendar.pdf

    I hope that I have been helpful in answering your question.

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  • Is it possible to get off Sex Offender Registry? Read details

    So i was 18 and she was i think 13 or 14 i dont remember. We had sex. Charged with lewd lascivious sexual battery on a minor 12-15 years old. Got 4 years probation and sex offender for life. This was back in 2007. The girl is now in her 20's and ...

    Michael’s Answer

    Florida Statute Section 943.04354, (otherwise known as “Romeo and Juliet Law"), provides for a petitioner’s removal from the sex offender registry if that person meets certain criteria. The purpose in enacting Section 943.04354 was to eliminate the harsh consequence of lifetime sex offender registry requirements for youthful offenders who engaged in otherwise consensual sexual conduct with a minor. The statute does not de-criminalize the conduct; rather, the statute essentially shields youths engaged in otherwise consensual sexual behavior from being labeled a sex offender.

    To qualify for removal from the sex offender registry, the petitioner must satisfy a number of requirements including: The petitioner was convicted of an offense under section 794.011 (sexual battery), or 800.04 (lewd offenses); The petitioner has not been convicted of any other offense contrary to Sections 794.011, 800.04, 827.071 or 847.0135(5); As a result of the conviction, the petitioner is required to register as a sexual offender pursuant to Section 943.0435; At the time of the offense, the alleged victim was between 14 and 17 years of age; The petitioner was not more than four years older than the alleged victim at the time of the offense; and Registry removal must not contradict with federal law.

    The statute went into effect in 2007; however, the language of the statute clearly states that the section applies to convictions entered before and after the statutory effective date. Further, the statute provides no time limitation for a petitioner to seek relief. Thus, presuming the petitioner meets the above criteria, he may apply for relief at any time.

    In determining a petitioner’s qualifications for removal, a court must find that the act in question was consensual. If the act was not consensual, registry removal would violate federal law. See Miller v. State, 17 So. 3d 778 (Fla. 5th DCA 2009).

    If you have been convicted of a sex offense, and if you otherwise meet the above criteria, you may be able to petition the court for an order eliminating the requirement that you register as a sex offender. The statute requires that a petition be filed in the sentencing court, and requires notice to the State Attorney’s Office. The State will be permitted to present evidence in opposition to the petition during an evidentiary hearing. If the Court determines that you are eligible, the Court may order your removal of the registration requirement. You will then be required to provide a certified copy of the order to Florida Department of Law Enforcement, and the Department will remove you from the registry. Your conviction will not be vacated, and will still be accessible to the public; however, you will not be listed on the sex offender database. In the event that your petition is denied, you may appeal the order to the appellate court; however, you may not file any further petitions for removal in the circuit court. You must understand that the State may also file an appeal to the District Court of Appeal in the event that the petition is granted.

    Take a look at: http://www.flsenate.gov/laws/statutes/2012/943.04354

    I hope that I have been helpful in answering your question.

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  • What are some ways to deal with a civil lien from a drug conviction. $250,000.00

    Such as paying minimal amounts, such as $10.00 a month.

    Michael’s Answer

    This is not a white collar crime question; It is a debt settlement question.

    If you want to increase your odds at getting a competent answer then you should re-post this question and list "debt settlement" and not "white collar crime" as a practice area. In fact, I will do this for you....

    I hope that I have been helpful in answering your question.

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