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Jonathan Jay Kirschner
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Jonathan Kirschner’s Answers

15 total


  • 4th DUI in FL over a 14 year period.

    Just wondering what the actual jail sentence turns out to be for someone who's had 4 DUI's in FL. I understand a person can be sentenced up to 5 years, but I am just trying to get an average. These DUI's occurred over a 14 year period. First 2 ...

    Jonathan’s Answer

    One should NEVER assume that the state's "offer" is the likely result. I would respectfully suggest that each DUI case is unique, and that looking towards the end result in terms of sentencing, based solely on prior convictions, really puts the "cart before the horse". Prior convictions are only one of many considerations in determining the outcome of a DUI case.

    The more reasoned approach would be to first determine whether the case may be winnable. Even cases that initally appear "cut and dried" are oftentimes eminently defensible, based on legal and factual factors.

    Questions that first should be answered include: Was there probable cause for law enforcement to detain the Defendant and/or stop the vehicle? Were Field sobriety excercises administered either at the scene or later? Were the FST's administered correctly? How did the Defendant perform? Was some or all of the incident digitally recorded? Did the officer properly inform the driver of Florida's implied consent law? Did the Defendant elect to provide a breath sample, and if so, what were the results? If the resuls were above .08, had the breath taking machine (In Florida, the Intoxylizer 8000) been properly maintained----and was it properly operated on the night the sample was taken?

    The above is not an all inclusive list.....but all of those questions, and many more, should be answered before one determines whether or not to enter a plea to a DUI, and what kind of sentence might be appropriate.

    To be sure, the timing of the previous DUI convictions and the circumstances surrounding those convictions are relevant considerations in determining whether or not a sentence is "within normal limits"-----but it is not the threshold question. Also, not to be ignored is knowledge of the individual prosecutor handling the case for the State, as well as who the trial Judge is, and what he or she has done in prior similary situated cases. Prosecutorial and Judicial "discretion" is nearly boundless in Florida.

    The plea offer may be substantially effected by competent defense counsel showing the prosecutor weaknesses in the case, based upon answers to questions like the ones listed above.

    I have seen 4th time DUI cases resulting in no jail, and sentences of five (5) years in prison, as well as anywhere in between. If the offer is close to the maximum....the right answer may well be to take the matter to trial before a jury.

    Hope this helps.

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  • If adjudication is withheld are you still considered convicted in florida

    i plead no contest to 5 counts of trafficking in stolen property. adjudication was withheld and i served 5 years of probation. did i loose my rights and can i still own a gun

    Jonathan’s Answer

    No, you are not a convicted person, so you did not lose any of your rights. You can own a gun, and you are eligible to apply for and, with the authorization of the Department of Agriculture, apply for an receive a concealed weapons permit.

    Now that your probationary period over, I would suggest that you consider Petitioning the court to have your record "sealed" under Florida Law. Once you obtain an Order to Seal, then your record will no longer be a public record, and will be hidden from public view. After the record has been sealed for 10 years, you can then apply to have your record "expunged", which essentially means "erased". Although it is possible to pursue sealing and expunction without a lawyer, I would strongly urge to obtain the services of competent counsel to assist you in this process.

    An additional advantage to sealing and expungement in Florida is that once you have received an order to seal or expunge, you are allowed, PURSUANT TO LAW, in many instances, to DENY the fact that you have ever been arrested.

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  • Sex Crime in Florida showing Adjudication Withheld - How can you find out the details?

    Live in KY and daughter has become friends with family that moved here from Florida. Just found out by accident yesterday that the father is listed on Sex Offenders List from "Lewd and Lascivious Behavior" with 7 yr old. This conviction was in 199...

    Jonathan’s Answer

    Nearly all records of criminal prosecutions in Florida are "public records" which can be obtained, oftentimes on line, through the Clerk of the Circuit Court of the County in which the crime was prosecuted. If the County does not have on-line capability yet, you will have to go to that county and simply ask to view the records. The initial arrest affidavit, the charging instrument, any negotiated plea, and any sentence, whether adjudication is withheld or not, will be available.

    The exception to that rule is if the Defendant has pursued a Petition to Seal or Expunge, and obtained a Court order sealing the record from public view. Lewd and Lascivious statutes generally are not eligible for sealing under Florida law, so you should be able to find out most of the details of the 1996 prosecution by contacting the Clerk of Court.

    Florida has twenty (20) different circuit courts, and each of them operate in slightly different ways. You may be able to have the Clerk mail you copies of the file to you in Kentucky by simply calling the Court Clerk and asking them if they will provide such a service. Some do and some don't.

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  • We are not legaly seperated ! Can I leave Florida with my girls?

    In August of 2009 I was offered a job in GA. I took the offer - Moved to GA Oct 1 with my 2 girls. We are not divorce and no papers have been file on either part. I had a business in Florida but with the economy I'm force to take this job. He...

    Jonathan’s Answer

    No, Florida Courts in a Dissolution of Marriage Proceeding cannot force you to move into or away from the State. The Court does however, have jurisdiction (authority/control) over where and under what circumstances the children of a marriage stay, i.e., with which parent and for whatever percentage of time. If the parents are in different states, both parents will still be encouraged by the courts to spend time with the children, but scheduling of course becomes more complex and cumbersome.

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  • Can a lawyer reduce my husband time

    My husband got sentence to 10 years on 11/04/2009

    Jonathan’s Answer

    Pursuant to Florida law, anyone convicted of a criminal offense has thirty (30) days within which to file an appeal with the the District Court of Appeals. After the thirty (30) day period has expired, the right to a direct appeal is forever lost.

    Even after the appeal period has expired, a convicted citizen has two (2) years within which to collaterally attack the conviction pursuant to Florida Rule of Criminal Procedure 3.850, (except in capital murder cases, where the time limit for collateral attact under 3.850 is limited to one (1) year.

    Appeals are fairly complex, and should not, if possible, be handled "pro se", i.e., by the convicted person him or herself, but rather should be pursued with retained competent counsel.

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  • What are Defenses for agrevated theft and theft by deception...total loss to employer $250K?

    Our bookkeeper of over 6 years had an elaborate scheme in which she cooked the books, changed payments, and wrote checks to her accounts with the excess overpayments she created. She mirrored at least 6 of our business accounts with her own accou...

    Jonathan’s Answer

    Therer is ALWAYS a defense to a criminal charge, dependent only upon the creativity and intelligence of the lawyer, and constrained only by the Defendant's statements to either law enforcement or others.

    I your case, defenses that come to mind are: Someone else made the overpayments, forging her name. Someone else "cooked" the books.; the losses are not real, but rather are "paper" losses created by another (possibly even you) to gain tax advantages.

    Re: testifying---it may sound simplistice----but tell the truth. Answer the questions that are asked of you, rather than attempting to make the prosecution's case for them through your testimony, i.e., by providing more information than is asked of you.

    You should expect support from the prosecutor and/or the victim's advocate (and if you don't get it, you should ask for it). Testifying, like many things, is a learned behavior, and you will become more adept at it if you "practice". Taping yourself being questioned can provide important insights into how well your testimony appears. Remember---it is one thing to simply "tell the truth"---it is another to APPEAR as though you are telling the truth.

    Finally, in my view, most embezzlement-type crimes are not terribly sophisticated, and although they can be time-consuming to reconstruct, they are NOT that difficult to prove. With the documentation you suggest exists, conviction ought not be difficult.

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  • If a husband and wife get a divorce, is the wife entitled to any of his retirement?

    retirement account

    Jonathan’s Answer

    Each State is different...but in most case, the wife would be entitled to a fifty percent (50%) share of that portion of the Husband's retirement that was earned during the course of the marital relatiionship, i.e., from the date of the marriage until the date of either the party's separation, or the filing of the dissolution petition.

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  • How can i file a motion for expungment of felony (theft) in idaho 17 years ago

    I am trying to find a document i can follow on filing a motion with the court for expungment of a case that happened in 1993. Thank you

    Jonathan’s Answer

    Gosh....there are a lot of people with expungement questions this evening....and the answer remains the same...

    It depends on whether your husband pleaded in a jurisdiction which permits "withholding adjudication of guilt.". In Florida, such dispositions are permissible, though in many jurisdictions, including the Federal system, they are not. If the court DID withhold adjudication of guilt, then in Florida he could petition the court to have the record "sealed" from public view, and eventually even "expunged", i.e., "erased". Perhaps more importantly, Florida's sealing and expungement statutes permit the defendant to represent, EVEN UNDER OATH, in many circumstances, that he has never even been ARRESTED !

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  • Felony conviction with withheld judgment 16 years ago in Idaho do I have to put on job applications. Successful

    Do I have to report a withheld judgment on job applications in the State of Idaho if it was 16 years ago. I was successful in my probation and have not even had a traffic ticket since then as well as I am currently graduated with my Associates de...

    Jonathan’s Answer

    You will need to check the Idaho Statutes or speak with an Idaho lawyer.

    It depends on whether your husband pleaded in a jurisdiction which permits "withholding adjudication of guilt.". In Florida, such dispositions are permissible, though in many jurisdictions, including the Federal system, they are not. If the court DID withhold adjudication of guilt, then in Florida he could petition the court to have the record "sealed" from public view, and eventually even "expunged", i.e., "erased". Perhaps more importantly, Florida's sealing and expungement statutes permit the defendant to represent, EVEN UNDER OATH, in many circumstances, that he has never even been ARRESTED !

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  • If I accept a plea agreement for a charge of a fraudulent I.D. will it remain on my record for future job employers?

    I pleaded not guilty to a charge of a fraudulent I.D. and possession of alcohol by a minor. I really have no legitimate case as to why I am not guilty but did it in hopes of receiving a plea agreement and avoiding a lifetime criminal record.

    Jonathan’s Answer

    It depends on whether your husband pleaded in a jurisdiction which permits "withholding adjudication of guilt.". In Florida, such dispositions are permissible, though in many jurisdictions, including the Federal system, they are not. If the court DID withhold adjudication of guilt, then in Florida he could petition the court to have the record "sealed" from public view, and eventually even "expunged", i.e., "erased". Perhaps more importantly, Florida's sealing and expungement statutes permit the defendant to represent, EVEN UNDER OATH, in many circumstances, that he has never even been ARRESTED !

    See question