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In many instances in which a defendant is charged with a sex crime, the court will instruct the jury not only as to the elements of the charged offense but also as to the elements of a lesser included offense. Thus, it is not uncommon for a jury to find that while the defendant is guilty, it is of a lesser charge rather than the offense the defendant is accused of committing. A criminal defendant does not have an automatic right to a jury instruction regarding a lesser included offense, however, as demonstrated in a recent Florida case in which the defendant was charged with multiple sex crimes. If you are accused of committing a sex crime in Tampa, it is prudent to speak to a knowledgeable Tampa sex crime defense attorney to assess your options for seeking a favorable outcome in consideration of the facts of your case.

Facts and History of the Case

Reportedly, the defendant was charged with lewd or lascivious exhibition, and three counts of sexual battery, two of which were allegedly committed against a victim that was less than twelve years old, which constituted capital battery. During the trial, the victim testified that the first incident of abuse occurred when she was nine years old, and the second act of abuse occurred when she was eleven. The defendant requested that the court instruct the jury that sexual battery was a lesser included offense of capital sexual battery. The court denied the request, stating that it was illogical based on the fact that it was undisputed that the victim was under twelve when the abuse occurred. The defendant was found guilty of all charges, after which he appealed, arguing that the trial court erred by not instructing the jury regarding a lesser included offense.

When Jury Instructions Regarding Lesser Included Offenses Are Appropriate

Under Florida law, a trial court is obligated to provide the jury with a requested instruction on a necessarily lesser included offense, but only if the judge determines that the offense is a necessarily lesser included offense. While sexual battery is included in the schedule of lesser included offenses, a court may nonetheless contest the legal correctness of instructing a jury on the elements of sexual battery.

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In some instances in which a criminal defendant suffering from a mental health condition is convicted of a sex crime, rather than sentencing the defendant to incarceration, the court will involuntarily commit the defendant. A defendant that is involuntarily committed is entitled to a yearly mental health evaluation, though, and if the court finds that a defendant should be released, the involuntary commitment will end. The grounds for ending an involuntary commitment were recently discussed in a Florida case in which an appellate court overturned the lower court ruling. If you suffer from a mental health condition and are charged with a sex crime, it is wise to consult a dedicated Tampa sex crime defense attorney to discuss whether you may be able to avoid a conviction.

Facts and Procedural History of the Case

It is reported that the defendant was charged with numerous counts of sexual battery and rape. Following a jury trial, the defendant was convicted and deemed a sexually violent predator. It was determined that the defendant was suffering from a mental health condition as well. Thus, he was involuntarily committed under the Florida Civil Commitment of Sexually Violent Predators Act (the Act). The defendant appealed his involuntary commitment, which was affirmed by the appellate court. Pursuant to the Act, the defendant underwent an annual review of his mental health in 2019.

Allegedly, at a limited probable cause hearing, the defendant’s expert testified that it was safe to release the defendant and that he was not likely to commit acts of sexual violence. At a subsequent non-jury trial, the State’s witness testified that she examined the defendant on numerous occasions and that his mental condition had changed, and he no longer posed a risk of sexual violence. The court nonetheless continued the defendant’s commitment, finding that his condition had not changed. Thus, the defendant appealed.

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Many criminal convictions result in sentences that include probation. While a person is not incarcerated during a probationary period, he or she must nonetheless comply with the terms of probation, and a person who willfully violates the terms of his or her probation may be sentenced to imprisonment. Recently, a Florida court discussed what evidence the State may introduce to show a willful violation of probation. If you live in Tampa and are accused of a probation violation or a crime, it is in your best interest to meet with a skillful Tampa probation violation defense attorney to discuss your options.

Factual History of the Case

It is reported that the defendant was convicted of multiple sex crimes for which he was sentenced to five years in prison, followed by ten years of sexual offender probation. His probationary period began in 2013. In 2014, the defendant’s probation officer filed a notification of a technical violation due to the defendant’s failure to take a polygraph test, but no affidavit of a violation of probation was filed. In 2015, a violation of probation violation was filed, but the defendant was found not guilty, and in 2018 the defendant was found to have violated the terms of his probation, after which his probation was reinstated.

Allegedly, in 2019 the defendant’s probation officer submitted an affidavit of violation of probation due to the fact that the defendant missed his curfew. The defendant denied that he committed a willful violation, but following a hearing, the defendant was found guilty of a violation. He was sentenced to concurrent fifteen-year prison terms, after which he appealed, arguing that the court violated his rights during the hearing and sentencing process.

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It is well-known that a person cannot be forced to make incriminating statements and that people who are taken into police custody must be advised of their Miranda rights before they are interrogated. It is not always clear, however, when a person is considered to be in the custody of the police or when the need for Miranda warnings arises due to interrogation, as discussed in a recent Florida sex crime case in which the State appealed the trial court’s order granting a defendant’s motion to suppress incriminating statements. If you are a resident of Tampa and were recently charged with a sex crime, it is advisable to contact a dedicated Tampa sex crime defense attorney regarding your options for protecting your rights.

Facts of the Case

It is reported that the defendant was charged with numerous sex crimes. Prior to trial, he filed a motion to suppress statements he made to detectives during an interview and written statements after the interview that contained an apology and a suicide note. During the interview, the defendant admitted to masturbating in front of the minor victim. In his motion, the defendant alleged that while the beginning of the interview may not have constituted a custodial interrogation, the latter portion of the interview was custodial in nature and that he was not given the required Miranda warnings. Further, the defendant argued that his written statements were unreliable. The trial court ruled that the defendant was interrogated and that the interrogation became custodial, and therefore Miranda warnings should have been administered. Thus, the court granted the defendant’s motion to suppress. The State subsequently appealed.

What Constitutes Custodial Interrogation

Under Florida law, interrogation happens when a state agent engages in actions or asks a person questions that a reasonable individual would believe are intended to elicit an incriminating response. Miranda warnings are required when an interrogation becomes custodial. In other words, they must be administered when a person who is both under interrogation and in custody is being questioned. If Miranda warnings are not administered, statements made during a custodial interrogation will be precluded at trial.

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In Florida, drivers suspected of intoxicated driving have a legal duty to submit to a breath test. Should you violate this obligation, you could lose your license. Indeed, a DUI refusal can lead to immediate penalties—even if you are not actually intoxicated. In this article, our Tampa DUI defense attorney explains the most important things you need to know about Florida law and breathalyzer refusals.

Implied Consent in Florida: Breathalyzer Tests

As a starting point, all drivers should know that Florida has an implied consent law on its books (Florida Statutes § 316.1939). Any person who operates a motor vehicle in the state has, by law, already consented to submit to a breathalyzer test if they are arrested for drunk driving. If you refuse to submit to the test, you will be subject to an immediate license suspension. 

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Florida has some of the toughest drug laws in the entire country. If you are arrested for drug possession in our state, you could be looking at serious criminal penalties—potentially including a lengthy prison sentence. 

Did you know that you can be charged with and convicted of drug possession even if a controlled substance is never actually discovered in your hands or on your person? 

It is called “constructive possession”—and it occurs when someone maintains control over a banned substance without having it within their physical grasp. 

In many cases in which a defendant is charged with a sex crime, both the State and the defendant will rely on testimony and other circumstantial evidence to support their position. The testimony that is admissible in sex crime cases is limited, however, to protect the alleged victims of such crimes. For example, Florida’s Rape Shield law prohibits a criminal defendant from introducing evidence of the victim’s sexual activity. Recently, the District Court of Appeal of Florida, First District, discussed the parameters of the Rape Shield law, in a case in which the defendant was charged with sexual battery. If you live in Tampa and are charged with a sex crime it is critical to meet with an experienced Tampa sex crime defense attorney to discuss what evidence the State may introduce against you and what you can do to protect your rights.

Facts of the Case

It is reported that the victim met the defendant, a pastor when she was in fifth grade and established a relationship with him when she was a freshman in high school. She reported that the defendant would buy her gifts and that she would occasionally spend the night at his house. On several occasions, the defendant reportedly sexually assaulted the victim. The victim stated the defendant stopped giving her gifts when she stopped attending church. She cut ties with the defendant in November 2014, after which she reported to her family what happened.

It is alleged that the victim was interviewed during a counseling session in 2013, during which she reported three incidents of sexual abuse, none of which were perpetrated by the defendant. The victim stated during the session that those were the only times she was touched inappropriately. The defendant was charged with lewd or lascivious battery and sexual battery. Prior to trial, the State moved to preclude evidence of the victim’s prior sexual relationships pursuant to Florida’s Rape Shield law. The court granted the motions, and the case proceeded to trial. The defendant was convicted, after which he appealed, arguing in part that the trial court erred in precluding evidence of the victim’s sexual abuse history.

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In many Florida sex crime cases there is no direct evidence that a crime was committed. Instead the State relies on circumstantial evidence and victim and eyewitness testimony to establish its case against a defendant. Thus, if a witness in a sex crime case recants his or her testimony, it may necessitate a new trial. A Florida appellate court recently analyzed when the recantation of testimony is grounds for a new trial in a case in which the defendant was convicted of multiple sex crimes. If you are a Tampa resident charged with any sex crime, including sexual battery, it is vital to engage a skillful Tampa sex crime defense attorney to aid you in formulating a defense.

Factual and Procedural Background

Reportedly, the defendant was charged with several sex crimes, including indecent assault, sexual battery, and lewd and lascivious molestation. Following a trial, he was convicted on all charges. The alleged victim’s older sister, who was one of the State’s witnesses, recanted her testimony by stating in an affidavit that she advised a third sister the defendant was innocent. The third sister also signed an affidavit in which she stated that the recanting witness advised her that the defendant was innocent, but she was being pressured by detectives to testify on behalf of the State. The defendant subsequently filed a motion for post-conviction relief, based on numerous grounds including the recanted testimony. The trial court denied his motion. The defendant then appealed.

Impact of Recantation of Testimony

Under Florida law, the recantation of testimony is regarded as exceedingly unreliable. Thus, if a witness for the State recants his or her testimony, a new trial is only required if the court finds that the recantation is truthful and that the witness’s testimony will change so drastically that it would likely cause a different verdict to be rendered.
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In Florida, if a person is charged with a sex crime the State may attempt to introduce proof that the person is guilty by introducing evidence of other crimes or similar acts. Although evidence of other crimes is admissible in some cases, the law protects criminal defendants from the introduction of misleading or prejudicial facts or allegations by strictly limiting what evidence may be introduced by the State. The District Court of Appeals for the Fifth District of Florida recently discussed the grounds for admission of evidence of prior acts, in a case in which it precluded evidence of the defendant’s alleged past child molestation.  If you live in Tampa and are currently facing sex crime charges it is crucial to retain a trusted Tampa criminal defense attorney to help you seek a successful result.

Factual and Procedural Background

Reportedly, the defendant was charged with sexual battery and lewd or lascivious molestation of a child who was less than twelve years old. Prior to trial, the State filed a notice that it intended to introduce evidence of other crimes or acts of child molestation that the defendant allegedly committed. After an evidentiary hearing, the trial court entered an order prohibiting the State from admitting evidence of the defendant’s alleged prior acts of molestation. The State filed a petition for review of the order. Upon review, the appellate court affirmed.

Grounds for Admission of Prior Acts

In Florida criminal cases in which a defendant is accused of child molestation, evidence of other acts of molestation or other crimes or wrongs may be admitted and considered for any matter for which they are relevant. In denying the State’s use of prior acts evidence, the trial court noted that, under Florida law, a court weighing whether to admit evidence of prior bad acts must consider when the alleged acts occurred and the proximity in time between the prior act and current alleged acts.

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Florida’s sentencing guidelines set forth the minimum and maximum sentences that may be imposed for specific crimes. In addition to the standard sentence, the guidelines allow for enhancements if certain elements are met. There are requirements that must be met before an enhanced sentence can be imposed, however, as explained in a case recently decided by the District Court of Appeals of the Fifth District, in which the defendant was sentenced to an enhanced penalty following assault and battery convictions. If you are charged with assault, battery, or any other violent crime it is vital to engage a capable Tampa criminal defense attorney to assist you in formulating a defense and protecting your rights.

Facts Regarding the Charges and Conviction

The defendant was charged with aggravated battery and aggravated assault. The information alleged that the defendant committed an aggravated battery in the alternative. In other words, it alleged that the defendant used a firearm or knowingly caused great bodily harm in committing the battery. Following a trial, he was convicted of both counts. Regarding the aggravated battery charge, the jury included a special verdict that stated that the defendant possessed and discharged a firearm causing great bodily harm. Similarly, the guilty verdict for the aggravated assault charge contained a special verdict stating the defendant possessed and displayed a firearm in the course of committing the crime. The defendant was subsequently sentenced to twenty-five years imprisonment for each charge, after which he moved to correct the sentences, arguing they were illegal.

Enhanced Sentences

The post-conviction relief court granted the defendant relief as to the sentence for the assault charge. Thus, the appellate court only addressed whether the sentence for the battery charge was proper. The court noted that if a person is convicted of aggravated battery in which he or she discharged a firearm and as a result of the discharge caused great bodily harm, the person will be sentenced to an enhanced minimum sentence of twenty-five years imprisonment. To pursue an enhanced mandatory sentence due to the use of a firearm, however, the State is required to set forth the grounds for the enhancement in the charging document. The State’s failure to precisely charge the elements cannot be cured by a jury’s findings.
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