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While every suspect is presumed innocent until proven guilty, in some cases it makes sense for a person charged with a sex crime to enter into a plea agreement or to plead guilty and allow the court to assess a penalty based on that plea. Even if a defendant concedes guilt to a crime, however, the law still affords the defendant the right to a fair and appropriate sentence for the offense charged.

Recently, in a case arising out of the Court of Appeals for the Eleventh Circuit, the court vacated a sentence for a defendant who entered an open plea for the charge of lewd and lascivious behavior, due to an error on the sentencing scoresheet. If you are charged with a sex crime in Clearwater, you should retain a knowledgeable Clearwater sex crime defense attorney to discuss which plea option is in your best interest.

Defendant’s Plea and Subsequent Sentencing

Reportedly, the defendant entered an open plea to lewd or lascivious battery, burglary, and grand theft. In Florida, an open plea is essentially a guilty plea without an agreement with the state regarding sentencing. Rather, an open plea allows the judge to determine the appropriate sentence for the crimes charged.

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Florida law affords individuals convicted of crimes certain rights with regards to sentencing. For example, certain sentences must be orally pronounced, and with few exceptions, a defendant has the right to be present at his or her sentencing hearing.

As the District Court of Appeal for the Second District of Florida recently held in Darwin v. Florida, if the trial court imposes a sentence without the presence of the convicted party, it can result in the sentence being reversed. If you were charged with a sex-crime in Clearwater, it is important to retain an experienced Clearwater sex crimes attorney who will fight diligently to protect your liberties.

Defendant’s Sentencing

Allegedly, the defendant was convicted and sentenced for uninformed HIV-infected sexual intercourse. His sentence included a $525 discretionary fine. During the sentencing hearing, the fine was not orally pronounced; therefore, the defendant filed a motion to correct the sentence, arguing that the fine was improperly imposed due to the fact that Florida law requires discretionary fines to be orally pronounced to ensure due process. The trial court agreed and scheduled a status conference during which the court orally pronounced the fine, but made no other changes to the sentence. The defendant was not present at the status conference. He subsequently appealed the discretionary fine, arguing that the trial court erred by imposing the sentence without his presence at the hearing. The court agreed and reversed.

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Under Florida law, a lesser included offense is a less serious crime that is incorporated into a more serious crime. For example, a lewd and lascivious act, which is a misdemeanor, is a lesser included offense in several felony level sex crimes. In cases where the jury is permitted to evaluate whether a defendant is guilty of a lesser included offense, a defendant may avoid the risk of a felony conviction. Therefore, if a defendant is tried for a crime that has a lesser included offense it is essential that the jury is instructed regarding the lesser offense.

As the court recently affirmed in Calhoun v. Floridaa case arising out of the First District Court of Appeal of Florida, the failure to ensure a jury is properly instructed regarding lesser included offenses results in a waiver of the right. If you are charged with a sex crime in Clearwater it is essential to your defense obtain a skilled Clearwater sex crime defense attorney to evaluate your case.

Factual Background

Purportedly, in Calhoun, the defendant was charged and convicted of sexual battery by multiple perpetrators. He appealed, arguing that the trial court erroneously failed to instruct the jury regarding the lesser included offense of a lewd and lascivious act. The court affirmed the defendant’s conviction, finding that the defendant did not argue at trial that the court erred in failing to instruct the jury on a lesser included offense, and therefore did not preserve the issue for appeal.

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If a defendant is asking the court for something, usually they need to file a motion. A motion is a document that asks the court to take a specific action. When a defendant files a motion with the court, there are specific requirements that the motion must conform to in order for the court to be willing to consider it. Generally, the motion must include the relief requested and the reasons the court should grant the relief. One of the things that defendants need to be aware of is if that some motions are only allowed to be filed once, and so must include all of the requisite information. It can be confusing, which is where your skilled Clearwater sex crimes defense attorney comes in. They can help you to make sure that any motions you file are complete.

Florida Post-Conviction Relief: 3.850

In a case heard by the Fourth District Court of Appeal of the State of Florida, the motion at issue was a motion for post-conviction relief, based on rule 3.850 in the Florida Criminal Code. The defendant here was convicted of two counts of lewd or lascivious battery on a child over 12 and one count of lewd of lascivious molestation. After his conviction was affirmed on direct appeal, the defendant filed a rule 3.850 motion with the assistance of counsel from the public defender’s office.

Post-conviction relief may be available for defendants when there has been ineffective assistance of counsel, when there are requests for DNA testing, and when there are concerns that the sentence may be illegal. Since this motion is seeking post-conviction relief, it can only be filed after there has been a conviction. Generally a motion of this kind is asking for the original verdict to be vacated and for there to be a new trial.

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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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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 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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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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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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“You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney…” You have probably heard this recitation on legal procedural TV shows dozens (or hundreds) of times. This is called the “Miranda” warning. The purpose is to give potential criminal defendants an understanding of their rights. It was named after the Supreme Court case that mandated that law enforcement give this announcement before questioning defendants.

Florida Miranda Requirements

Florida law requires that police give the Miranda warning when a defendant is arrested or taken into custody. It is such an important requirement, in fact, that any information admitted by the defendant before the Miranda warning is given may not be admissible in court. However, there are some exceptions to this general rule.

Initially, Miranda warnings only need to be given to potential defendants after someone is taken into custody. So if the police stop you on the street and ask you questions – and you are free to leave at any time – they do not need to give you the warning. However, if you are arrested and brought into the station, then your Miranda rights need to be given to you before you are interrogated. Keep in mind that this does not necessarily apply to statements that you make voluntarily and without being asked.

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