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Criminal Defense - Criminal Appeals - Civil Appeals

Articles

Articles and Papers Written by J. Andrew Crawford, Esquire

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SHOULD I SPEAK TO THE POLICE?

Posted by Administrator on October 9, 2018 at 2:50 PM

      After there has been an allegation or report of a criminal offense, law enforcement officers will respond to the scene, investigate, and speak to various witnesses, including the person who they suspect of committing the crime. If you are suspected of a crime, the responding officers may try to question you at the scene or detectives assigned to the case may attempt to question you at a later time. When law enforcement suspects you of a crime, it is ALWAYS best not to answer any questions and to consult with an experienced defense attorney. Officers are trying to gather incriminating information against you and, anything you say, can be used against you later in court.


      As a Floridian and a United States citizen, you have certain rights guaranteed by both the Florida and Federal Constitution, including the right to remain silent and the right to an attorney, the well known Miranda rights. Officers involved in investigating a crime do not usually have a legal obligation to read you these rights if questioning you on the roadside, in a public place, or if you voluntarily go to the police station for a interview. In Florida, it is very important to invoke these rights at the earliest opportunity. If you tell law enforcement that you have nothing to say and want to invoke your right to remain silent, then police officers must "scrupulously honor" your request and cease asking you questions. If you tell officers that you want an attorney, officers must immediately stop questioning you until you have had an opportunity to consult with your attorney. Law enforcement is not generally supposed to reinitate contact with you after you have invoked your rights, but may after a sufficient period of time has passed. It is usually best to invoke both the right to remain silent and the right to an attorney at the same time unequivocally. In Florida, you cannot selectively invoke these rights. For example, you cannot say I want to answer some questions but not others. This will be deemed a waiver of these rights.


      Prior to speaking with the police, it is extremely important to speak with an experienced defense attorney especially if the police are investigating a serious criminal offense. Should you have any questions please give our office a call.

 

WHAT HAPPENS AFTER AN ARREST-THE CHARGING DECISION

Posted by Administrator on October 3, 2018 at 2:10 PM

      If you are arrested in Pinellas, Hillsborough, Manatee, or Sarasota county, the case is then transferred to the State Attorney's Office to make a decision on whether formal charges will be filed. A few weeks to a month after your arrest, a prosecutor is assigned to your case.  He or she will conduct an investigation into the allegations and may even call in witnesses to testify under oath. Frequently, people who are arrested for an alleged crime will sometimes think that nothing will happen and it is best to just wait and hope that the prosecutor will not file charges before hiring an experienced defense attorney.  This is a BIG MISTAKE.


      You should hire a defense attorney immediately after your arrest. First, an attorney can help review the facts with you, review the charge(s) with you, and develop defenses by locating favorable witnesses and evidence. Second, an attorney can contact the State Attorney's Office to find out which prosecutor has been assigned to your case, make contact with prosecutor, and ask him to hold off filing charges until such time as favorable evidence can be presented.  Third, after an attorney has found out which prosecutor has been assigned to your case, he can then present to the prosecutor favorable facts, witnesses, law and evidence to hopefully prevent charges from being filed. 


        Relatively speaking, it  is much easier for an attorney to prevent a prosecutor's initial filing of charges than to ask a prosecutor to dismiss a charge that has already been filed.  If you wait and assume that a prosecutor will not file charges, then the prosecutor will only have one version of what happened...what law enforcement and/or what an alleged victim said.  Essentially, he or she will only have one side of the story without your side being properly presented.  This is why is it so important to hire an experienced defense  attorney immediately after your arrest. 


    

Cyberstalking Injunctions and the First Amendment

Posted by Administrator on June 18, 2018 at 3:20 PM

      In the age of email, electronic communications, and social media, the Florida Legislature now allows an individual to petition for protection against cyberstalking. Florida Statutes § 784.048(1)(d) defines cyberstalking as “engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”


      “Whether a communication caused substantial emotional distress should be narrowly construed and is governed by the reasonable person standard.” David v. Textor, 189 So. 3d 871, 875 (Fla. 4th DCA 2016). “In determining whether substantial emotional distress occurred, the courts look to the standard of a reasonable person in the petitioner's shoes.” Florida Statutes § 784.048(1)(b) defines "course of conduct" as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” The terms do not include constitutionally protected activity such as picketing or other organized protests.  In reviewing the validity of a cyberstalking injunction, the appellate courts have been especially sensitive to two issues: constitutionally protected activity implicating the First Amendment and conduct directed at a particular person.


       As the Third District Court of Appeal noted in Chevaldina v. R.K., 133 So. 3d 1086 (Fla. 3d DCA 2014):


Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, “DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!” Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.


 

Precluding such conduct could constitute a prior restraint on a person’s First Amendment right to free speech which is impermissible. Id.  “Where comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.” David v. Textor, 189 So. 3d 871 (Fla. 4th DCA 2016).  Similarly, a "report to an arm of government, concerning a matter within the purview of the agency's responsibilities," such as a complaints, serves a legitimate purpose and was a constitutionally protected activity. Curry v. State, 811 So.2d 736, 741 (Fla. 4th DCA 2002)

When reviewing cyberstalking injunctions, courts and attorneys should pay particular attention to whether the conduct in question is protected by the First Amendment and whether such conduct is actually “directed” at a particular person.

 

Immigration Consequenses of a Criminal Conviction-A Real Life Problem

Posted by Administrator on June 18, 2018 at 2:35 PM

        Attorneys practicing criminal law should be extremely careful when representing foreign citizens in criminal cases, even minor misdemeanors. Even if your client has been a legal permanent resident for decades, a conviction for a specified offense could pose serious immigration problems. Once a conviction becomes final, it is extremely difficult to get it vacated. The following article details the unique procedural hurdles that a family had to endure and illustrates an extreme example of this process.


        In 2004, after spending their working years in New York, Bernard and Josephine Storey, decided to move to Clearwater, Florida and retire near the beach. Bernard, a legal permanent resident of the United States for over forty years, a father, and grandfather, developed bipolar disorder after suffering a head injury sustained during a car wreck. In 2005, after Bernard suffered a psychological breakdown, he was arrested in Clearwater, and subsequently placed on probation. Almost a year and a half later, in 2007, Bernard violated his probation with a new misdemeanor charge. Without the benefit of his medication and thinking there was no immigration issue, he pled to the misdemeanor and admitted his probation violation. The circuit court sentenced Bernard to a year and a day in jail. Immigration Customs Enforcement (ICE) put a hold on Mr. Storey, which mandated his deportation once he completed his sentence. According to ICE, Bernard was now convicted of an aggravated felony and deportable since the original charge was aggravated assault and his sentence was over a year, literally one day over. Once he was transferred from the Pinellas County Jail to the Department of Corrections, correctional officers noted Bernard acting strange and he was sent to the Crisis Stabilization Unit and given injections of psychotropic medication.


         Faced with the possibility of her husband’s deportation, Josephine retained counsel and a legal battle that would take almost a decade began. First, we filed motions for postconviction relief in the circuit and county court and argued amongst other things that Bernard’s pleas were involuntary due to the lack of his medication and his mental health. After the motion was partially denied without a hearing, I appealed the denial to the Second District Court of Appeal. The appellate court reversed and remanded Bernard’s case back to the trial court for an evidentiary hearing on his motion. Storey v. State, 32 So. 3d 105 (Fla. 2d DCA 2009). The trial court denied the motion a second time after a hearing despite hearing expert testimony from a forensic psychologist confirming Bernard’s psychosis at the time of the admission to the violation of probation, the basis for his removal from the United States.


       For a second time, I appealed Bernard’s case to the Second District Court of Appeal, which became extremely complicated. After complete briefing, oral argument, and while the appeal was pending, immigration decided to deport Bernard back to his native country of Trinidad, away from his wife, Josephine, his children, and grandchildren, all of whom were American citizens. Six months after the oral argument, the Attorney General’s office found out about the deportation and filed a motion to dismiss the appeal, which was granted without an explanation. The admission to the violation of probation and the resulting sentence, the basis of the appeal, was the sole reason Bernard was deported. Despite pointing this out to the appellate court, it denied a motion for rehearing and motion for rehearing in banc. Bernard was banished to Trinidad and Josphine’s health seriously deteriorated requiring multiple hospitalizations, including visits to the intensive care unit.


     We determined that the proper procedural remedy was to file an extraordinary writ, a petition for a writ of mandamus, in the Florida Supreme Court, SC12-2504. In the petition, we argued that it was improper for an appellate court to dismiss an appeal merely because defendant was deported, when the sole basis for the deportation was the issue on appeal. The Florida Association of Criminal Defense Lawyers and the Catholic Charities Legal Services filed amicus briefs in support of Bernard’s position. After a year, the Florida Supreme Court agreed and ordered the Second District Court of Appeal to rule on Mr. Storey’s case. On May 24, 2014, the Second District reversed the denial of Bernard’s motion, found that his plea was involuntary, and remanded the case back to the circuit court. Storey v. State, 139 So. 3d 448 (Fla. 2d DCA 2014). After some negotiation, the State Attorney’s Office elected not to pursue Bernard’s probation violation and the state conviction that gave rise to his deportation was dismissed.


      Even though the state conviction that gave rise to Bernard’s deportation was reversed, his case still had to go before the immigration court in Miami. Thankfully, in March 2016, He was able to visit Josephine in the hospital and they currently live in Clearwater.

Domestic Violence, Repeat Violence, Dating Violence, and Stalking Injunctions in Pinellas County

Posted by Administrator on June 18, 2018 at 2:30 PM


      Florida law provides that any citizen can petition the circuit court for an injunction for protection against domestic violence, dating violence, sexual violence, repeat violence, and stalking. If an injunction is granted, the implications for a respondent can be severe, including, but not limited to: the loss of firearms, the use of the injunction during a custody or timesharing dispute , and an arrest without a warrant if there is a violation of the injunction. This article will discuss some general observations and legal issues that occur during these proceedings.


      Injunction hearings in Pinellas County are held at the St. Petersburg courthouse, the Clearwater courthouse, and stalking/cyberstalking injunctions are held at the Criminal Justice Center. The overwhelming majority of petitioners and respondents represent themselves and are unware of the rights they have. Frequently, the presiding judge will explain what the injunctions are and then call the respective parties. Many judges will ask the respondent whether he or she agrees to the injunction and, if a person agrees, then the injunction is granted without the respondent really knowing the collateral effects of agreeing to the injunction.


     Somewhat recently, judges and attorneys have had two very reasonable compromises in lieu of an evidentiary hearing and a final judgment of injunction. First, presiding judges have suggested that one or both parties agree to continuing or allowing a temporary injunction to remain in place for an extended period of time and then, provided no one moves for a hearing or to extend the injunction, the temporary injunction is dismissed. This is beneficial because it provides protection to a party or parties, firearms are still removed, and, if there is unwanted contact, the violator can still be arrested without a warrant. It also allows the respondent to be able to say that a final injunction was never entered against them, but was instead dismissed. Second, if there is a pending dissolution of marriage or a paternity action, the parties could dismiss the injunction petition in favor of a chapter 61 “no contact” order. If the no contact order is violated, the petitioner can file a motion for contempt in the pending dissolution or paternity action, have a hearing before a judge, and have the respondent incarcerated for up to six months upon the finding a violation of the “no contact” order. The respondent can say that the injunction was dismissed and not worry about being arrested without a warrant. Both are good compromises for attorneys representing a petitioner where the evidence is weak or when representing respondents when the allegations are particularly bad.


     If a compromise is not reached, the petitioner has the burden to prove the incidents by the greater weight of the credible evidence and both parties are entitled to a full panoply of due process rights, including notice, cross-examination, adequate hearing time, and the ability to present witnesses and evidence. The Second District Court of Appeal has repeatedly reversed injunctions when a trial court violates any of these rights. On occasion when the evidence is lacking, judges will only grant an injunction for a short period of time, 30 days to three or six months, some may say to prevent meaningful appellate review since the injunction would expire prior to an appellate decision rendering the appeal moot. The Second District has also held that this procedure does not make the appeal moot because, even though the injunction expired, the collateral consequences that follow from the injunction, make the injunction reviewable. Uncivil behavior and general relationship problems are insufficient to grant an injunction.


     Attorneys and judges must be aware of a specific due process right that appellate courts have paid particular attention to and which has been the subject Pursuant to Florida Statute and case law, petitions for injunctions must specifically allege the acts that the petitioner believe give rise to the injunction. Florida appellate courts have determined that a petitioner must state what events occurred in an injunction petition in order to be able to testify to those events at the return hearing. If a petitioner testifies to acts not alleged in the petition, a respondent is not properly put on notice of those acts, he or she cannot properly defend against them, and it thus violates due process. A respondent should object during the return hearing if this ever happens or else risk an argument from the petitioner that the issue was waived for appellate review due to the lack of a contemporaneous objection.


     In conclusion, civil injunctions in Florida are very serious proceedings and great care should be taken when representing an individual on an injunction case or presiding over return hearings. Due process rights apply to both parties, the allegations must be alleged in the injunction petition, and appellate courts are especially sensitive to these injunctions and the collateral consequences that follow.



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