my husband is in jail for a dirty drug test while on probation. He went for bond hearing and the court brought up a case from 1998 .He was told that those "points" may be held against him . Thank You
First of all, if he pled no contest to the 1998 case AND received a withhold and which is still withheld, the State would most likely, under the case law, not be able to score that 1998 offense in the prior record category of the Criminal Punishment Code Scoresheet. Assuming he pled guilty and received a withhold that still is a withhold, Florida Rule of Criminal Procedure 3.704(d)(14)(A) states that offenses committed more than 10 years before the instant alleged offense must not be scored as "points" in the "prior record" category of the Criminal Punishment Code Scoresheet, "if the offender has not been convicted of any other crime
for a period of 10 consecutive years from the most recent date of release from
confinement, supervision, or other sanction"
14) ―Prior record‖ refers to any conviction for an offense
committed by the offender prior to the commission of the primary offense. Prior
record includes convictions for offenses committed by the offender as an adult
or as a juvenile, convictions by federal, out of state, military, or foreign courts
and convictions for violations of county or municipal ordinances that
incorporate by reference a penalty under state law. Federal, out of state, military
or foreign convictions are scored at the severity level at which the analogous or
parallel Florida crime is located.
(A) Convictions for offenses committed more than 10
years before the date of the commission of the primary offense must not be
scored as prior record if the offender has not been convicted of any other crime
for a period of 10 consecutive years from the most recent date of release from
confinement, supervision, or other sanction
Is pretrial intervention considered a conviction of a felony.
There are criteria in the sealing and expungement statutes in Florida, explaining what is necessary to qualify for sealing or expungement in Florida. A Nolle Prosequi disposition (prosecutor drops the charges) after a pretrial intervention program is successfully completed is NOT a "conviction" for purposes of Florida's sealing and expungement statutes. Assuming arguendo someone achieves having an arrest sealed or expunged under the Florida Statutes, does NOT mean that the arrest record is immune from any and all eyes in the future. The sealing and expungement statutes in Florida explicitly list many scenarios immune from sealed or expunged information. Also, achieving sealing or expungement culminates in an Order from the Court ordering its own, and other entities', records sealed or expunged. A good handful of private entities have been compiling their own private records of arrest booking photos and information; it seems these private groups are probably immune from the historically used court orders. These private groups are charging individuals an additional fee to have their names removed as having been arrested from the privately formed and maintained arrest records sites. As is the case in many areas of the law, intense technology and communication abilities have created new and evolving areas of interest, such as in this "arrest record" arena. It's best to contact an experienced lawyer with whom you're comfortable to best guide you through whether you qualify for sealing or expungement, and whether you wish to move for sealing or expungement.See question
A woman officer sprayed me with mace in my eyes for no reason.
Miranda warnings have to be given to a subject when (1) the person is "detained" or "in custody" (as those terms of art are defined in Miranda case law applying the Fifth Amendment of the U.S. Const. and any other relevant jurisdiction's equivalent or higher demanding standard to the scenario) AND; (2) BEFORE any questioning or interrogation by police, IF the government intends to use the statements made by the subject against that subject. In other words, there is no requirement Miranda be read upon or after arrest. The only requirement is that it be read as described above, IF the prosecution wishes to use the statements made by a detained person answering police interrogation/questions against the subject. Miranda warnings are required when a person is in custody and engaged in a custodial interrogation. Please See Snipes v. State, 651 So. 2d at 111, citing Caso v. State, 524 So. 2d 422 (Fla.1988). requires that when “in custody or otherwise deprived of his freedom of action in any significant way”, no statements made by a defendant during interrogation, can be used against him in court unless he waives his rights under Miranda in a knowing, voluntary and intelligent manner. Miranda v. Arizona, 384 U.S. 436, 444 (1966). The burden is on the State to show by a preponderance of the evidence that a confession is freely and voluntarily given, and that the rights of an accused are knowingly and intelligently waived. Snipes v. State, 651 So.2d 108 (Fla. 2d DCA 1995), citing Thompson v. State, 548 So.2d 198 (Fla. 1989). To be admissible, it must be determined that a confession is voluntary by analyzing the "totality of the circumstances" surrounding the confession, and not obtained in violation of a defendant's Miranda rights. Snipes v. State, 651 So.2d at 110-111, citing State v. Sawyer, 561 So.2d 278 (Fla. 2d DCA 1990). Voorhees v. State, 699 So.2d 602, 611 (Fla. 1997), citing Traylor v. State, 596 So.2d 957 (Fla. 1992).See question
I am currently on 3 years probation and I recently was arrested for battery. And I have been doing good on my probation. The only technical violation is the new charge. Can this be the sole basis for a violation even if I haven't been found guilty.
one of the standard conditions of any probation (or any form of "community supervision"), is that the probationer not commit any new law violation. often, it is misunderstood that a new arrest "automatically violates probation". actually, the only way one can be found in violation of their probation, is if the court makes a finding that a violation has been committed, and that the violation is "willful and substantial". there are only two ways that a court can find one in violation, Fla.Stat.s.948.06(2012): (1) the defendant waives her right to an evidentiary violation hearing, and "admits" that she has violated her probation in some specific manner that is willful and substantial and which indeed constitutes a violation of one of the specifically ordered or statutorily standardized conditions of probation (when one is placed on probation, the case law states one is on "constructive notice" of all the statutory conditions of probation-including random urine screens), or; (2) the court finds by "the greater weight of the evidence" aka "a preponderance of the evidence" that the state proved the defendant violated her probation through admitting evidence and testimony in a live, subject to cross examination, evidentiary hearing held by the judge. there are due process rights before one can be found in violation but they are less strict than in a new case (hearsay is admissible though can't form the only basis of guilt; the "mini trial" is held by the judge as juror, not a 6 member community jury panel, the defendant does not have a right to remain silent-except for new charge allegations, the standard of proof is merely 51% ("the greater weight of the evidence"), not beyond a reasonable doubt). if there is probable cause to believe one has violated their probation (like having been arrested for a new charge, felony, misdemeanor, or equivalent traffic offense), then there is "probable cause" to believe that person is in violation of their probation. in sum, if one has been arrested or formally accused or cited of a new crime, there is probable cause to arrest that person for belief they "could be" in violation of their probation, so long as, whatever "bad behavior" constituting the violation occurred while the defendant was still on this current period of probation (if after the alleged crime occurred, a new period of probation or a new reinstatement of probation begins, then the new period or reinstated period probation cannot be held violated if found thereafter guilty of committing a crime that occurred before being placed on probation or before being reinstated). in florida, the danger of being found in violation of probation, is that one typically can be sentenced up to the very maximum that one "could have been sentenced to" originally on the charges for which one is on probation. also, one can be found in violation of probation (the greater weight of the evidence) even in circumstances where a jury entered a verdict of not guilty on the new charges allegedly committed while on probation (proof beyond all reasonable doubt). in other words, a judge presiding over a jury trial could receive an end verdict of not guilty of the new charge(s) but still make a judicial finding that the charges were proven "by the greater weight" as basis to violate the probation case (not guilty and acquitted on new charges; guilty of violation of probation case). also, a court can sentence one to the probation violation, if found in violation, before the defendant even gets to a jury trial on the new charges. this is why being on probation necessitates "extra perfect" good behavior and avoiding all bad situations where false allegations or crime can occur. good luck.See question
This is my first time offense other than the petty theft charge my record is clean this is my first time being involved with the law
pre trial diversion/intervention programs ("PTI") are a golden opportunity. one ought to do everything possible to successfully complete them. if completed successfully, the charges literally get dropped (nolle prosequi'd; nolle prossed). most programs do not require any change of plea from not guilty to enter pti, so if the case is rejected from pti, the case simply is reopened with all the defendant's rights still in take (to file motions, go to trial, etc.). successful completion of PTI is actually a better procedural result than even winning a jury trial, since a jury at best can only find the state has been unable to prove a case beyond every reasonable doubt (the jury can never find a defendant "innocent" per se, rather they can either find her guilty because the charge has been proven against her, or "not guilty" because of the failure of the state to prove the charge against her). one ought to borrow or do whatever legally necessary to make sure all fines, costs, and any other monetary obligations are successfully completed. if all the conditions are not met, then the case will be reopened up and start all over again in court. if the case results in court in anything but a not guilty or dismissal, then there will be a negative history of having had a "petit theft" (which is a crime of "moral turpitude", or of "false statement or dishonesty"). usually such programs require ALL fines, costs, and other obligations to be fulfilled, otherwise they will reject the defendant from the program, and the case will start all over again. good luck.See question
When I applied they asked if I had been convicted. I put no and technically I don't think I was lying. When they perform the background check, what will they see? Will they see the arrest and what it was for? If so, how do I approach my employer a...
If the arresting police agency has public records of the arrest, or if the clerk of court has public records of all significant court activity (like a case being opened up upon an arrest and/or first appearance and/or filing of an arrest affidavit/criminal complaint, etc.) or if some other agency has public records of arrests, then an arrest does show up in a "background check" done by anyone in the common public. for example, some counties in Florida have every jail booking record online, and it is accesible to the public for free; and some counties have clerk's of court offices online, showing all criminal case court record activity, accesible to the public; and some counties have both. hard copy court files are typically public in any event. further, a "private or corporate investigator" often can access records that a non-licensed investigator cannot. last, private/corporate investigators often have corporate funds to spend on paying the plenty of online services to retrieve all kinds of information about anybody. in sum, an arrest is "a record of an arrest". in answering a job application question that asks if the applicant "has ever been convicted of a crime", an arrest alone does NOT qualify as a "conviction". typically, a "conviction" can mean different things depending on what statute is applicable. for example, federal law/rules contexts typically count as "convictions" adjudications of guilt by the court, or, even "withholds of adjudication" by the court and even contexts admitting/proving guilt. Florida criminal statutes typically require an adjudication of guilt to constitute "conviction" BUT some Florida criminal statutes count "withholds of adjudication" as "convictions". if a recent arrest is the only thing in a job applicant's past, and the case has not made it to court yet, and the question is "ever have been convicted", the honest answer is "no". the bottom line is that we live in an open society, and we don't allow for "secret arrests". the downside to folks arrested is that they cannot expect much privacy about the fact that they have been arrested. there is often certain remedies to seal or expunge arrest records from the eyes of certain folks in certain contexts, but only in limited circumstances and in limited persons' backgrounds. also, "sealing or expunging" is only allowed in certain jurisdictions in any event. the very best advice for anyone having been arrested, is to consult with an attorney with whom one feels comfortable and in whom one has confidence. an educated attorney is critical to properly advise about the specifics of a case, the different future ramifications of short term results, and answer the client's specific case questions properly. it is better to invest in proper legal representation when a case is beginning, than to be regretting in the future, the negative future impact of foolish past decisions made without proper legal counsel. good luck.See question
State has picked up charges. What if the victim pleads.perjury? What are they looking at
In Florida, perjury is a first degree misdemeanor (a year max jail); a third degree delony (5 yrs max, unless an habitual sentencing is applicable, which increases the max and imposes other enhancements); or a second degree felony (15 yrs max, unless an habitual sentencing is applicable). Respectively, the first is not in an "official proceeding" (see definition in statute), the second is in an official proceeding, and the third is in relation to a capital case (see chapter 837 for details). good luck.See question
So I have been charged with felony possession with intent for marijuana. First conviction ever and was wondering if I gave info on my "guy" can my charges actually be reduced to a misdemeanor?
The prosecutor has the power in Florida to bring a felony formal charge (except a crime punishable by death-see below) by way of "Information" (rule 3.140(2)) if they swear they have taken live sworn testimony, believe that testimony, and believe the charges are brought in the name of justice (they also have to have a good faith belief as attorneys at law that the charges are provable in a courtroom [rules of evidence] beyond a reasonable doubt). The only crime that is brought by Indictment through Grand Jury in Florida is First Degree Murder (rule 3.140(1)). The prosecutor can drop any charge they feel is just to drop, or, they can reduce a charge they feel ought to be reduced (they can even drop a first degree murder charge that had been brought by Grand Jury Indictment). If the prosecution believes, for whatever reason, that the charges in ANY case in Florida Court ought to be dropped or reduced, they have the power to do so. In sum, in Florida, prosecutors have the power to bring charges, and to drop charges. Good luck.See question
juvenile and his friend used a bb gun to rob a drug dealer,however no gun was ever found.can a charge of armed robbery stand up in court?
It is a common myth to think the prosecutor must "produce" the weapon at trial when a weapon is an element of the crime alleged. In short, a conviction can stand without ever finding or producing the weapon, so long as, either the Defendant/Child pleads guilty/nolo contendere to the charge, or, a jury finds that the State proved the crime beyond all reasonable doubt, overcoming a presumption of innocence. The fact a weapon "was never found" sometimes can bring an arguable reasonable doubt. After all, a reasonable doubt can come from the evidence presented, a lack of evidence, or from a conflict in the evidence. Under some circumstances, the fact that a weapon is never recovered, gives rise to a reasonable doubt; other times, it does not. Good luck.See question
i have completed 135 days with 45 days to go to reach half way
If you had a plea bargain, then it is critical to check it. If the plea bargain states no "early term" or "no roll over ( to probation)", then the court cannot change the terms of that plea bargain (per caselaw). If however the bargain is silent about that, or even states you can apply for early term, then the court can early term or roll over to probation. One must also check to see the oral pronouncement of sentencing to see if the court stated no early terminations or rollmovers. Whatever is in the plea bargain or stated by the court outloud is most important. Particular judges or circuits have local rules or habits about this motion to early term, many requiring at least 1/2 way completion, and often even the plea bargains or oral pronouncements of sentences state so. Some courts don't even set these or formal open court hearings, but rather rule on these motions in chambers after getting avresponse from the State. All courts wanto hear from probation/community control before ruling. Good luck.See question