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Michael Adam Haber
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Michael Haber’s Answers

10,307 total


  • What are the usual requirements of a pretrial diversion program?

    I was ticketed for misdemeanor possession of Marijuana. The officer did not take me to jail but I have a court date coming up very soon. The state attorney said they are offering a pretrial diversion program for 6 months. I work in the banking/mor...

    Michael’s Answer

    If this is your first offense then it is almost certain that you will be eligible for a diversionary program.

    Diversion is a program which is designed to make you think twice about future criminality by way of making you jump through a series of proverbial hoops during a period of supervision, successful completion of which results in a dismissal. The program is owned and operated by the State Attorney's Office and they have absolute and unequivocal discretion as to whether to admit you, keep you or "graduate" you from their program.

    Knowing that, the question now is whether or not diversion is right for you. There may or may not be viable defenses to the charges, affirmative or otherwise, or there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges without going through diversion.

    The best way for you to get competent advise is going to be to have a face-to-face meeting with a criminal defense lawyer who can follow-up on your information with questions of her/his own, as well as review the police reports and citations and then offer an informed opinion.

    Please take a look at my AVVO Legal Guide on Diversion in Florida. It contains a great deal of information on the subject and should be helpful to you. For your convenience a link follows:

    Michael A. Haber, Esq.'s AVVO Legal Guide on Pre-Trial intervention / Diversion: What is it and is it right for me? - http://www.avvo.com/legal-guides/ugc/pre-trial-intervention--diversion-what-is-it-and-is-it-right-for-me

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

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  • Do I have to be older than 15 to date a 20 year old?

    Several of my friends took me out on a blind date, and put me with a 20 year old guy. We had alot of common and are wondering about dating. I have no parents to tell me what I can and cannot do but I am under a temporary guardian. I just turned 15...

    Michael’s Answer

    You won't get in trouble (with the law... your family may well be a different story), but he sure will.

    In Florida gender is irrelevant. What is relevant is age, and, depending upon the age, then consent.

    A 16 or 17 y/o can, legally / lawfully, consent to sexual relations with someone who is 23 or younger.

    If you are younger than 16 then your consent, no matter how heartfelt, is legally insufficient and will not be a factor in an ensuing criminal prosecution. Similarly, if you are able to consent (if you are 16 or 17) but you have sexual relations with someone who is either 24 or older or younger than 16, then your consent is similarly legally insufficient and will not be a factor in an ensuing criminal prosecution.

    That said (shy of falsely imprisoning or securing chastity equipment), while family cannot stop a minor who is legally capable of giving consent from doing so, the legal guardian of a minor can seek protection from the Court on the minor's behalf and against the minor's will in the form of a restraining order / injunction for protection.

    If the Court believes that it is in the minor's best interests to issue the order of protection then it can lawfully preclude any contact, direct or indirect, between the minor and the up to 23 y/o sexual partner. Any violation of such a Court Order will result in immediate incarceration and an independent criminal prosecution.

    Whether or not a Judge would issue such a stay away order (a permanent one anyhow) is subject to the minor being able to speak her/his mind, and, naturally such a course of action, if pursued, is likely to drive a significant wedge into any familial relationship.

    That's the law. Its black and white. No exceptions. No excuses. No wiggle room. If either the minor is under 16 or the adult is over 23 then its a 100% "NO", and if both parties consent and fall within this age range then, for many reasons, it remains a delicate situation.

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

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  • Will I get jail time

    I got a misdemeanor for a possession of marijuana. serve 90 days in with certain 9 months probation I completed all of the terms of my probation except on the very last day I found out that my community hours would not be taken so I got violated. ...

    Michael’s Answer

    You served 90 on a possible 364 sentence (meaning that you can still be sentenced to 274 days), but you don;t have to be sentenced to anything.

    A skilled and experienced Sarasota criminal defense lawyer can present a defense and try to get the judge to extend your probation to permit you time to perform your CSH's or may be able to get them converted to a fine.

    The point is that there are options to incarceration if you prepare (better than you did with regard to completing your CSHs anyhow), and in your case preparation means GET OFFLINE (caps intentional) and into a skilled and experienced Sarastoe area criminal defense lawyer's office. Use the "Find a Lawyer" feature on AVVO to locate proximate lawyers, make an appointment, show up on time, bring whatever evidence, documents or witnesses that you may have, engage in a meaningful face-to-face consultation and get yourself some advise which is legally sound and has been custom tailored as possible to meet your specific reasonable needs in your unique case.

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

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  • What's the realistic amount of time my husband is looking at in prison for the crimes mentioned below?

    My husband has three failure to register as a sex offender and now has gotten burglary of a structure dealing in stolen property and 2nd hand fraudulent id selling something to the pawn shop that wasn't his how much time do you think he's looking ...

    Michael’s Answer

    5 years for each failure to register (that's 15 to start), burglary is another 5 or 15 (depending upon how it's charged), 15 for DSP and another 5 for the pawn shop violation. That's 40-50 years in state prison, and the first 15 (the failures to register) are no-brainers.

    Still, your husband may or may not enjoy viable defenses to the charges, affirmative or otherwise, or there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges in his unique case, I do not know and the forum to find out is NOT on line; rather it is in the sanctity of attorney's offices, where all statements are privileged and cannot be used against anyone.

    The best way for you to get competent advise is going to be to consult with an experienced and local criminal defense lawyer who can follow-up on your information with questions of her/his own, as well as review the police reports and whatever evidence that you may provide and then offer an informed opinion.

    My advise: GET OFFLINE (caps intentional) and into a skilled and experienced 407 area criminal defense lawyer's office. Use the "Find a Lawyer" feature on AVVO to locate proximate lawyers, make an appointment, show up on time, bring whatever evidence, documents or witnesses that you may have, engage in a meaningful face-to-face consultation and get yourself some advise which is legally sound and has been custom tailored as possible to meet your husband's specific reasonable needs in your husband's unique case.

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

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  • I want a lawyer to accompany me to my deposition with state attorney. I am the victim.

    I was the victim of multiple perpetrator sex battery in Volusia county florida. Police were very mean to me for lack of a better word. The report is full of lies. Also I was not allowed an advocate, or directed to any services, or given the vict...

    Michael’s Answer

    In Florida victims of crimes have rights, both constitutional (s. 16, Art. I of the Florida's State Constitution) and by statute (see: Chapter 960 Florida Statutes). Still, in Florida, the State Attorney is empowered to bring criminal charges to bear on behalf of all of the people of the State, the victim being only one of those millions of people (albeit usually an important one to the success of their case). If you want to increase your odds at having the State pursue your interests then you can hire your own criminal defense lawyer to serve as your Victim's Right's Advocate.

    Again, no one can control what the State does on behalf of the people, but you will increase your odds at achieving a favorable outcome if you have an effective victim's rights advocate pursuing your agenda. Many criminal defense lawyers serve as effective victim's rights advocates.

    That said, we (participating AVVO lawyers) are not permitted to solicit business for either ourselves or for other lawyers. I can, however, offer you the following suggestion: Use the "Find a Lawyer" feature on Avvo to locate lawyers in your geographical area and contact a few criminal defense lawyers who also perform victim's rights advocacy. More I cannot offer you along these lines and on this forum.

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

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  • Can a PO make rules that are not in the judge's ruling?

    There are NO restrictions on my friends probation. Since 2012, he has been able to travel within the state he is living)MD and FL, but closer to Destin) and only needed travel docs for out of state travel. Now moving to Port St. Lucie, Fl, the n...

    Michael’s Answer

    Q: Can a PO make rules that are not in the judge's ruling?

    A: Yes and no (it's complicated so please read on...).

    If I were you I'd get used to the idea that, like it or not you are STUCK with both your PO AND her power trip. If you give her anything but smiles and "yes ma'am" / "no ma'am" answers then she can (and from the sound of it likely will) make your life miserable. No matter how "right" you may be, no matter how "wrong" she may be, I promise you that you WILL NOT win the war that she can most easily wage against you.

    Being on probation is an alternative to incarceration. It is a gift of sorts, albeit it is given by an Indian giver who can take it back at any time (the alternative being jail). It behooves you to remember that at all times while serving your probationary period. It may help to think of your time on probation as walking on a tightrope. Stray just a little to either side, lose your concentration or balance even for a moment and you fall. However, instead of landing on the ground you land in jail or prison.

    My advise: Suck it up buttercup. Do what your PO says, when she says to do it and keep your opinions about the matter to yourself. The alternative is jail, and possibly prison. BUT... (caps intentional) just as you must listen to your PO so too must your PO listen to the Judge. Where your PO is being unreasonable you are perfectly free to take the matter to the Judge (in the form of a formal motion), and in that light it is always best that you take the matter to the Judge on your own initiative and on yur own terms as opposed to your PO starting the process by filing an affidavit of violation of probation and seeking issuance of a warrant for your arrest. Either way, whether you petition the court proactively (on offense) or deal with the situation reactively (on defense), if you are right then the Judge will so advise your PO, and if not then you will be stuck following orders like a good soldier, while you file and appeal (or not).

    In the interim you might consider taking a look at my AVVO Legal Guide on surviving probation / CC in Florida as it contains a great deal of information on the subject, supplement this answer and may prove to be helpful to you. For your convenience a link follows:

    Michael A. Haber, Esq.'s AVVO Legal Guide on Probation in Florida: What it is and how to survive it? http://www.avvo.com/legal-guides/ugc/probation-in-florida--what-it-is-and-how-to-survive-it

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

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  • Can I get a FL statues 539.001 conviction Expunged or Sealed?

    Can I get a FL statues 539.001 conviction Expunged or Sealed? In 2004 I plea guilty to False ownership of pawnbroker form. I pawn a scooter for a would be friend. He told me that he forgot his I.D. and would I pawn it for him. Now this is someone ...

    Michael’s Answer

    Unless you were convicted of this or any other offense then yes it is sealable (you could only expunge if it was dismissed or you were acquitted).

    Per FDLE (see http://www.fdle.state.fl.us/cms/Seal-and-Expunge-Process/Reasons-for-Denial.aspx ) Reasons for Denial:

    Pursuant to Sections s.943.0585 and s.943.059, Florida Statutes, a Certificate of Eligibility to expunge or seal a criminal history record cannot be issued under any of the following circumstances:

    The criminal history record reflects that you have been adjudicated guilty of a criminal offense or comparable ordinance violation. If applicable, that you have been adjudicated delinquent for committing any felony or a misdemeanor specified in s.943.051(3)b. Certain driving violations are classified as criminal, such as DUI, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked.

    The criminal history record reflects that you have been adjudicated guilty of or adjudicated delinquent for committing one or more of the acts stemming from the arrest or alleged criminal activity to which the application pertains.

    The criminal history record reflects that you have received a prior sealing or expunction of a criminal history record under s.943.0585, s.943.059, former s.893.14, former s.901.33 or former s.943.058.

    The criminal history record to which the application pertains relates to a violation of s.393.135, s.394.4593, s.787.025, chapter 794, s.796.03, s.800.04, s.810.14, s.817.034, s.825.1025, s.827.071, chapter 839, s.847.0133, s.847.0135, s.847.0145, s.893.135, s.916.1075 a violation enumerated in s.907.041, or a violation of any offense qualifying for registration as a sexual predator under s.775.21 or for registration as a sexual offender under s.943.0435, F.S., with a finding of guilt, or a plea or guilty or nolo contendre (without regard to whether adjudication was withheld).

    The criminal history record reflects that you have another petition to seal or expunge pending before a court or competent jurisdiction.

    The criminal history record reflects that the court supervision applicable to the disposition of the arrest or alleged criminal activity to which the application pertains has not been completed.

    [For expunction only] The criminal history record reflects that some or all of the charges related to the arrest or criminal activity to which the application pertains were not dismissed prior to trial, adjudication, or the withholding of adjudication. If no other disqualification applies, the record would be eligible to be sealed.

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

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  • Can I do anything about an illegal arrest ? I was charged with prostitution with only my ad as evidence.

    I performed on the undercover officer then the police bust in the door. I was going to fight the charge but they harassed and threatened me.

    Michael’s Answer

    Your ad may be evidence, and, depending upon the language it may be enough.

    But if it was coupled with acts then you are not only properly charged but likely cooked.

    The Difference between a Prostitute and an Escort, is, simply put, that "Escorting" is lawful and "Prostitution" is not.

    Escorts are paid for having a sexy and glamorous look and to follow their sponsors to various destinations.
    Prostitutes are simply paid for sex, and they are not asked to escort anyone anywhere (just to accompany their sponsor to a location for sex - a car, a hotel, a residence, a back alley, etc...).

    If an escort takes it beyond pure fraternal companionship and adds sex (any sexual act which would be considered prostitution) for money paid, then the escort is a considered a prostitute, no matter how classy the "date" may have been.

    Per 796.07 Prohibiting prostitution and related acts - (1)(a) “Prostitution” means the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses; and (d) “Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

    That's the law. Its not what you call yourself, it's what you do for the fee paid.

    My advise: Hire a lawyer. GET OFFLINE (caps intentional) and into a skilled and experienced 813 area criminal defense lawyer's office. Use the "Find a Lawyer" feature on AVVO to locate proximate lawyers, make an appointment, show up on time, bring whatever evidence, documents or witnesses that you may have, engage in a meaningful face-to-face consultation and get yourself some advise which is legally sound and has been custom tailored as possible to meet your specific reasonable needs in your unique case.

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

    See question 
  • Will a case be allowed to be transferred back to the state alleged crime happen to be tried there?

    My brother is being processed in Florida courts for something that allegedly happen in North Carolina. Can we ask for the case to be transferred back to North Carolina?

    Michael’s Answer

    If it is a federal case then it will be assigned to any of the federal districts which has an interest.

    If it is a state case then it must be dealt with in the state where it occurred.

    A NoCar criminal allegation must be resolved in NoCar.

    FL has no jurisdiction over a NoCar criminal violation.

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

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  • Can solicitation for prostitution be esponged from a record of a person with prior felonies in the state of Florida?

    My father has felonies that occurred 15 yrs ago could he espunge a mister minor from 2012? For soliciting prostitution from an undercover police officer in Florida?

    Michael’s Answer

    Sealing is available in a case where you received a withhold of adjudication, and expunction is available in a case which was dismissed, nolle pros'd, no actioned or where you were found to have been not guilty. In Florida you can only seal or expunge one eligible (non-disqualified) offense in your lifetime.

    If you look at the following website you will learn everything you ever wanted to know about the sealing / expunction process:

    http://www.fdle.state.fl.us/content/getdoc/c83dd888-ef7a-448e-9a96-ba69fc4181f7/Seal-and-Expunge-Home.aspx

    I also strongly encourage you to read my AVVO Legal Guide on Sealing and Expunging Records in FL as it contains valuable information supplemental to this answer and should prove to be helpful to you. For your convenience the both links follow and are attached at the bottom of this answer:

    Michael A. Haber, Esq.'s AVVO Legal Guide on Sealing and Expunging Records in FL: http://www.avvo.com/legal-guides/ugc/sealing-and-expunging-records-in-fl-a-legal-guide-by-michael-a-haber-esq-miami-criminal-lawyer?published=true

    The procedure is both quite detailed and somewhat painstaking but is also far from being rocket science. You can attempt to navigate it yourself (FDLE has tried to simplify it - again I refer you to the website above) but, assuming your eligibility, any criminal defense lawyer (anywhere in Florida - this can be done remotely and does not necessarily require a local attorney, although a local attorney may or may not be less expensive) will be able to accomplish the task with greater ease and likely in a shorter time period.

    That said I suspect that it doesn't much matter where you were arrested, what you were arrested for, what the final disposition was or whether or not you sealed / expunged the record. This is 2015 and we are forehead deep into the internet age, where nothing is private, sacred or truly hidden from public scrutiny.

    Sadly, sealing (and expunging) only applies to certain (not even to all) government agencies (for example if fingerprints, mugshots, DNA or anything else - including crime statistics bearing your name or identifying information - were uplaoded to the FBI database then a local Order of Expunction would not effect the Feds) and that it has no effect whatsoever on private (er, extortionist) enterprise, who compile and maintain arrest information and then demand that you pay them off to remove your information from their database and public access. Worse still, after you "buy back your information", then you can count on there being another private company lurking, somewhere, sometime, somehow, just waiting for you to pay them off as well. Its a seemingly never-ending vicious cycle.

    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, etcetera, rather than waiting for them to find out on their own.

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

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