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Courts and judges do not have total discretion when sentencing defendants who have been convicted of crimes. Along with the general sentencing guidelines that lay out the potential penalties for each crime, there are also a number of statutory factors that courts must consider. An experienced Clearwater violent crimes defense attorney can help you understand the potential penalties that you or a loved one may face if you are convicted of particular crimes.

Motion for Resentencing

In this case, a juvenile defendant was convicted of first-degree murder and was sentenced to life in prison without parole. However, after his conviction, he made a motion for resentencing under section 921.1401 of the Florida Statutes. That section addresses when life imprisonment is an appropriate penalty for a juvenile. It states that the defendant’s youth and the attendant circumstances should be considered, as well as the effect of the crime on the community and the victim’s family, the defendant’s age and maturity, the extent of the defendant’s participation in the offense, and other similar factors. Pursuant to this section, the court resentenced the defendant to 28 years in prison. In their order, the court addressed each of the factors one-by-one.

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Unless the weapon used to commit a crime is recovered, it may be unclear what kind of weapon it is. In a case heard by the Florida First District Court of Appeal, a defendant argued that his conviction for a Florida robbery with a firearm should be overturned. His position was that the trial court erred in their jury instructions and thus the court committed fundamental error.

What is a Firearm?

It may seem like a straightforward question, but your experienced Clearwater violent crimes attorney can tell you it is not as simple as it sounds. In this case, there was surveillance footage that showed the defendant holding up the clerk at gunpoint. The defendant alleges that the “weapon” he was using was actually a BB gun, though the prosecution showed evidence that would tend to indicate that it was not. However, the main argument in this appeal was over jury instructions.

During closing arguments, the defense explained that a firearm is a weapon that expels a projectile through the use of an explosive. At trial, and with the consent of defense counsel, the jury was given instructions that once again explained that a firearm requires an explosive action. As they were deliberating, the jury asked the court to clarify whether a BB gun counted as a firearm or not. The prosecution noted that there was a case that specifically held that a BB gun was not a firearm. The judge decided to tell the jury that they have heard the evidence and referred them back to the jury instructions. The jury returned with a verdict that found the defendant guilty of robbery with a firearm and he was sentenced to 30 years in prison with a mandatory 10 years due to possession of a firearm.

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As part of the penalty for being convicted of a crime, some defendants are sentenced to probation. This may be in addition to or instead of jail time. Many defendants prefer a longer term of probation over a shorter term of incarceration because they are able to live in the community. However, if a defendant is found to have violated the conditions of their probation, then they may be sentenced to serve more time in jail or prison. Probation violations are a serious matter so if you are accused of violating probation you should contact a skilled Clearwater probation violation attorney as soon as possible.

Probation in Florida

There are several different kinds of probation in Florida. The general kind of probation more or less allows defendants to live their normal lives, but requires them to check in with their probation officer periodically. Of course they must follow all laws and not engage in any criminal behavior. Along with the supervision requirements, probation often includes requirements to attend or complete programs such as drug or alcohol rehabilitation or counseling. Probation can also make certain generally lawful behaviors unlawful, such as possessing firearms or socializing with people who have criminal records.

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In Florida, as in all states, defendants need to be competent in order to stand trial. If a defendant is not sufficiently competent enough to meaningfully participate in their own defense, then they are not constitutionally allowed to stand trial. In a case that was recently heard by the Fourth District Court of Appeal of Florida, a defendant argued that his conviction should be overturned because the court did not make a competency determination before trial.

Competency Hearings

A defendant’s qualified Clearwater sex crimes defense attorney can make a motion for a competency evaluation under Florida Rule 3.210. In this motion, the defense attorney explains the reasons behind asking for an evaluation, including expert reports, statements by family members, and any attorney observations. However, all parties, including the judge and prosecutor, have a responsibility to inquire into the defendant’s competence if they have reason to suspect that the defendant might not be fully competent.

Once a competency hearing is ordered, the court will appoint experts to interview and examine the defendant. The experts will then offer opinions of the defendant’s competency. If the defendant is not found to be competent to stand trial at that time, they are then moved to a locked facility. These facilities are specialized to help defendants regain competency so they are able to stand trial. Once the defendant’s competency is restored then the trial can proceed.

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Florida has specific sentencing laws that govern the sentence for those convicted of crimes. There are a number of different ways that sentencing laws come into play, including mandatory minimums and increasing penalties for subsequent crimes of the same nature (think of DUI, for example). Your skilled Clearwater criminal defense attorney can help you to minimize the amount of time you need to serve by taking advantage of statutory opportunities to reduce the sentence.

Consecutive vs. Concurrent

Another example of a way that sentencing laws can affect the amount of time actually served is whether a sentence is served consecutively or concurrently. Let’s say someone is convicted of two crimes arising out of the same incident, with minimum penalties of five years each. The judge can order the defendant to serve the sentences consecutively, which would lead to a total of ten years in prison, because the sentences are served one after the other. However, in many circumstances, the judge can order the sentences to be served concurrently. Concurrent sentences mean that the sentences for all the crimes are served at the same time. So in this example it would be a total of five years, because both charges’ sentences would be served concurrently.

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Florida law allows a defendant to have their sentence reduced in certain specific situations. This is called a “downward departure.” Generally, defendants are eligible for a downward departure in their sentence when there has been a specific extenuating circumstance that makes a downward departure just. Your knowledgeable Clearwater criminal defense attorney can tell you whether you may be eligible for a downward departure based on the circumstances of your case.

Florida Downward Departure Law

When someone is convicted of a felony in Florida, they are sentenced using guidelines in the Florida Criminal Punishment Code. Essentially, the code has a scoresheet that it uses to determine the amount of prison time that someone should serve. However, in some cases with extenuating circumstances, the court may want to sentence the defendant to less than the minimum sentence determined by the code. This is called a downward departure. Courts can issue a downward departure provided that two conditions are met.

The first thing that the court must find for a downward departure is that there is evidence of mitigating circumstances that supports a downward departure. The code lays out 14 circumstances that may be considered mitigating for a downward departure. These include: the defendant was a relatively minor accomplice, the departure comes from a plea bargain, the defendant’s capacity was substantially impaired, the defendant requires specialized mental health treatment, or the defendant was going to be sentenced as a youthful offender.

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The Constitution guarantees that all criminal defendants get a “speedy trial.” If you are familiar with the law, you will know that speedy is relative. If a defendant is denied a speedy trial, then they may be able to be released. The definition of what constitutes “speedy” will vary depending on the circumstances, and your knowledgeable Clearwater criminal defense attorney can help you to determine whether the speedy trial provision of the Constitution was violated in your case.

Clothing and Prejudice

While this case revolves centrally around a speedy trial issue, it is also about clothing. Defendants have a right to a speedy trial, and they also have a right to a fair and unbiased jury. One of the things that can prejudice the jury is when the defendant appears in front of them in jail clothing. In this case, a defendant was charged with battery on a law enforcement officer and aggravated assault on a law enforcement officer. He was on pretrial release when he was brought back into custody after allegedly committing another offense.

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Rape shield laws were created to help protect sexual assault victims from invasive inquiries into their sex life. Florida law prohibits the defense from entering into evidence any specific instances of consensual sex between the victim and anyone other than the defendant. In this case, the victim allegedly had consensual sex with her ex-boyfriend before going to a party with him. At the party she allegedly had too much alcohol and passed out. While her ex-boyfriend was gone getting more alcohol, three of the partygoers – including the defendant – allegedly sexually assaulted her. At trial, the defendant was convicted of sexual battery with specified circumstances by multiple perpetrators.

Evidence of Prior Consensual Sex

The defendant in this case alleged several grounds for appeal. One of the grounds for appeal was that the judge did not allow him to admit evidence of the victim’s consensual sex with her ex-boyfriend before the party. The Florida Third District Court of Appeal relied on the rape shield law explained above to uphold the conviction on this argument. The court explained that a defendant’s Sixth Amendment right to confront his accuser can come into play if there are unreasonable limits placed on a defendant’s right to cross examine witnesses.

The defendant here argued that he wanted to introduce this evidence to show that the victim wanted to get back together with her ex-boyfriend. Therefore, the defendant argued, she lied about the sex being consensual at the party in order to preserve her relationship with her ex-boyfriend. However, the appeals court here held that there was adequate other evidence that was introduced at the trial to show the relationship between the victim and her ex-boyfriend. Thus, on this ground the conviction could stand.

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The justice system understands that sometimes an individual needs to use deadly force against another in order to defend themselves. “Self-defense” is what is called an affirmative defense. An affirmative defense means that the defendant is acknowledging that they committed the crime they are charged with, but that they had a reason that is legally sufficient to make them not culpable. In other words, typically the prosecution is the only side that needs to prove something. However, with an affirmative defense, the defense also has a burden now to prove the elements of the defense. This case addresses what specifically the defense needs to prove, and the jury instructions around this proof. If you are involved in a situation where you needed to use self-defense to protect yourself or another, you should contact a knowledgeable Clearwater violent crimes defense attorney to help you with your defense.

Facts of the Case

The defendant was charged with the first-degree murder of his employer/landlord and the attempted first-degree murder of a neighbor. There was a confrontation between the defendant and his landlord and he began shooting. The defendant alleges that he acted in self-defense based on his landlord reaching for a dark object in his pocket and previous threats by his landlord. The defendant also alleged that the neighbor threatened him as well and attempted to throw a microwave at him. The neighbor survived the shooting but the landlord did not.

The state’s version of events differed. They alleged that the defendant was the aggressor and that both of the victims were unarmed. Under this version of events, self-defense would not be an applicable affirmative defense, since it cannot be used when the defendant was the aggressor.

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When a defendant is charged with a crime, at trial the only evidence that should usually be put forward by the state is evidence related to those crimes charged. However, sometimes there are circumstances for the crimes alleged that require explanation. In some of those situations, the state will need to bring in evidence of other crimes that were committed in order to help the jury understand the circumstances in which the charged crimes were committed. This may seem confusing, and it can be, which is why you should consult an experienced Clearwater criminal defense attorney to help you understand whether it is proper for collateral crimes evidence to be introduced during your trial.

Collateral Crimes

An example may help make the concept of collateral crimes more understandable. In a case that was recently heard by the Florida Third District Court of Appeal, a man appealed his conviction for attempted second-degree murder with a deadly weapon, witness tampering, and criminal mischief. One of the errors he alleges is that the court impermissibly admitted evidence of a collateral armed robbery allegedly committed earlier in the day by the defendant.

The prosecution alleges that the defendant went to the home of his ex-girlfriend a few hours before the incident that the charges came from. He is alleged to have held her up at gunpoint and demanded her phone from her. The defendant returned to her house with her phone a few hours later, and then began shooting. The attempted murder and other charges that he was convicted of all stem from this shooting.

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