Jacksonville Criminal Attorney Blog

Two JSO police officers have been arrested for lying. Sgt. Marc Garza and Off. David Cervone were arrested on Tuesday for official misconduct, a third degree felony, and falsely reporting the commission of a crime, a first degree misdemeanor.

They wanted to get into what they believed was a drug house, but no one answered the door. They attempted to use a technique called "Knock and Talk". This is when JSO does not have a warrant, but knock on someone's door to try to get consent to search the house. When the person refuses to let them in, the police inevitably smell the odor of burnt marijuana or see drugs, paraphernalia, or a weapon in plain sight. This makes it easier for the police to search the house.

In the case of Garza and Cervone, since no one was home, Garza is accused of moving an air conditioning unit and his officers entered the house without a warrant. Neither of the officers has been charged with burglary in Jacksonville, but they should be. In order to sustain a charge of burglary, the officers had to enter the house with the intent to commit a crime therein. The crime the officers intended to commit was official misconduct. Police are not allowed to enter a home without a warrant and these officers clearly did not have one. These officers then went further. They intentionally falsified a police report by stating that a woman flagged them down and reported that she saw someone break into the house. There was no such woman.

All of these officer's cases are now subject to scrutiny. How many other citizens have they arrested under false pretenses?

The California Supreme Court has upheld California's law restricting where registered sex offenders live, according to the L.A. Times. The law mandated that a registered sex offender had to live at least 2000 feet away from schools, parks, or any other place where children congregate. This law was challenged by sex offenders who claim there is no place they can live inside a city with this law.

Florida has a similar living restriction for sex offenders. They are not allowed to live within 1000 feet of places where children regularly congregate. Jacksonville is even more restrictive because it imposes a 2500 feet rule. This law has also been challenged by Jacksonville sex crime attorneys and is in the appellate process.

There are many sex crimes one can be arrested for in Jacksonville and all of Florida. In addition to committing the actual offense, you may be committing a crime if you don't report a sexual battery (rape).

If you see the someone rape someone else and:

1. have reason to believe that you saw the commission of a rape;

2. have the present ability to get assistance for the victim by immediately reporting the sex crime to the police;

3. do not call the police;

4. you would not be threatened with any harm if you called the police;

5. you are not the husband, wife, grandparent, child, grandchild, sister, or brother of either the suspect or victim; and

6. you are not the victim,

you can be arrested for a first degree misdemeanor in Florida. This crime is punishable for up to one year in jail and a fine.

As a Jacksonville gun crime lawyer, I see people charged with many crimes involving weapons. Here are some gun crimes JSO can arrest you for:

1. Carrying Concealed Firearm, a third degree felony.

2. Open Carrying of a Firearm, a second degree misdemeanor.

3. Improper Exhibition of a Firearm, a first degree misdemeanor.

4. Discharging a Firearm in Public, a third degree felony. It will be upgraded to a second degree felony if the gunshot is within 1,000 feet of a person.

5. Possession of a Short-Barreled Rifle, a second degree felony.

6. Possession of a Firearm by a Convicted Felon, a second degree felony.

Gary Coleman, the child actor who appeared on the TV show Diff'rent Strokes, has been arrested on a domestic battery warrant. Allegedly, Coleman did not appear in court on his scheduled court date.

If you are arrested in Jacksonville and fail to appear in court, a judge will issue a "capias". This is a bench warrant where the judge tells JSO to bring you before him or her. A capias in Jacksonville will usually have a bond attached to it. That means once you are arrested on the capias, the only way you can get out of jail is to pay that bond. Sometimes, judges issue a "no bond" capias. This means you will not be able to bond out of jail and will not get out until your case is disposed of.

If you find out you have an outstanding capias, call a Jacksonville Capias Lawyer right away. A Jacksonville criminal attorney can possibly get you on the judge's calendar without you having to turn yourself in to jail.

The Dubose brother's murder trial came to a temporary end on Saturday in Jacksonville. The juries for 2 of the brothers reached verdicts, but the jury for the remaining brother was deadlocked. That means the 12 panel jury could not come to a unanimous verdict. Apparently, one person would not change her mind about what the verdict should be.

When a jury can't reach a decision in Florida, the judge has to read a certain jury instruction, commonly known as an Allen charge. It is:

"I know that all of you have worked hard to try to find a verdict in this case. It apparently has been impossible for you so far. Sometimes an early vote before discussion can make it hard to reach an agreement about the case later. The vote, not the discussion, might make it hard to see all sides of the case. We are all aware that it is legally permissible for a jury to disagree. There are two things a jury can lawfully do: agree on a verdict or disagree on what the facts of the case may truly be. There is nothing to disagree about on the law. The law is as I told you. If you have any disagreements about the law, I should clear them for you now. That should be my problem, not yours. If you disagree over what you believe the evidence showed, then only you can resolve that conflict, if it is to be resolved. I have only one request of you. By law, I cannot demand this of you, but I want you to go back into the jury room. Then, taking turns, tell each of the other jurors about any weaknesses of your own position. You should not interrupt each other or comment on each other's views until each of you has had a chance to talk. After you have done that, if you simply cannot reach a verdict, then return to the courtroom and I will declare this case mistried, and will discharge you with my sincere appreciation for your services. You may now retire to continue with your deliberations."

If the jury still cannot reach a decision, a mistrial is declared and the state attorney can elect to conduct another trial or try to work out a plea agreement.

The state attorney's office has announced new procedures on how Jacksonville, Clay County, and Nassau County will be dealing with worthless check cases. The new procedure requires merchants in Florida who want to prosecute someone for a bad check to have a photo of the alleged check writer or a copy of his or her driver's license. If they don't have these items, a criminal check case will not be opened in Jacksonville.

Before the change, the only thing people who claimed they were written a bad check had to produce was the check. After a period of time, a criminal charge was filed and a capias (bench warrant) was issued for the check writer's arrest. In order to convict someone of writing a worthless check, the state attorney must prove several things. They are:

1. The defendant drew, made, uttered, issued, or delivered the check.

and

2. When the defendant did so, there was not enough money in the bank to pay the check.

and

3. The defendant knew when he or she wrote the check that there was not sufficient money in the bank.

and

4. The defendant knew he or she had no arrangement or understanding with the bank for hte payment of the check.

There are some defenses to a worthless check charge in Florida even if all of the above elements are proved. They are:

1. The payee knew that the defendant lacked the funds when they deposited or cashed the check.

or

2. The payee should have known (good reason to know) that the defendant didn't have the money in the bank.

or

3. The check was post-dated.

There is a case being appealed in Jacksonville that deals with what the police can do if they suspect someone is driving under the influence. There are a few cases recently where JSO got a warrant to draw a DUI suspect's blood if they refused to blow into the breathilizer. Having the government hold you down and forcibly take your blood is the most invasive thing that can be done to a citizen. A preliminary circuit court opinion ruled that the police could do this. The case is being appealed.

Under Florida law, the only time police can forcibly take your blood is when you are involved in an accident that causes death or great bodily harm and a breath test cannot be performed. If the Florida legislature intended to allow the police to draw blood in every suspected DUI case, they would have written it into the law.

JSO police officer, James Toner, was arrested in Neptune Beach for false imprisonment and simple battery earlier this week. Police were dispatched to Pete's Bar in reference to a disturbance. When they arrived, the alleged victim was handcuffed in the rear and Toner was standing over him. The victim told police that the officer approached him and asked if he could buy cocaine from him. They started to argue and Pete's bouncer told Toner to leave. Toner was escorted out of the bar and Toner allegedly hit the victim several times on the head while yelling at him. While the victim was lying in the middle of 1st St., Toner allegedly put the victim in handcuffs and put him in Toner's patrol car. There were 3 witnesses who saw Toner hitting the victim and putting him in his patrol car.

Toner drove his patrol car up to the bar where he consumed alcohol. He was also carrying a gun on his person while, according to Neptune Beach Police, he was intoxicated. Before going to the bar, Toner was at a restaurant.

If a normal citizen is arrested for a felony, the police will seize anything used in the commission of that felony. False imprisonment is a felony in Jacksonville and anywhere in Florida. A non-officer would have had his car seized and the gun placed in the property room. Toner's weapon was released to JSO and so was his car.

As Jacksonville criminal attorneys, we are constantly visiting our clients at the Jacksonville Pretrial Detention Facility, better known as the jail. Criminal lawyers can see their clients face to face in a small room. If you are not a criminal defense attorney and want to visit an inmate in Jacksonville, you will see be behind a glass wall and will be able to communicate with a telephone.

Certain jails in our area have switched over to video visitation. Family and friends of the inmate will sit in front of a video monitor and conduct their visit. The monitor does not have to be at the jail and reduces the amount of traffic in the actual jail. This type of visit also reduces the chances of a visitor bringing contraband into the jail. Right now, St. Johns County Jail and Baker County Jail both have this technology.

Duval County jail has about 200 inmate visitors per day and is considering the video system. The system costs around $1.5 million.

As a Jacksonville Juvenile Lawyer, I can tell you that juvenile law is different than the adult criminal process.

If a child is arrested in Jacksonville, that child has certain rights. A juvenile criminal attorney is required at each stage of a juvenile proceeding. The juvenile has to be told of his right to counsel and if he or she wants to waive counsel, the court has to conduct an extensive inquiry to determine whether the child freely and intelligently made the waiver.

This "waiver" of counsel occurs only if the child had the opportunity to confer with a juvenile defense lawyer regarding:

1. the child's right to counsel
2. the consequences of waiving counsel
3. any other factors regarding the child's rights.

When conducting the inquiry of the child, the judge has to tell the juvenile the benefits he or she would give up and the danger of representing him or herself, determine whether the child's choice was voluntarily and intelligently made, and determine whether any unusual circumstances existed which would prevent the child from exercising the right to represent him or herself.

After the inquiry is conducted, the waiver has to be in writing and given to the court in the presence of a parent, legal guardian or custodian, or a Florida criminal defense attorney.

As a Jacksonville Criminal Defense Attorney, I deal with gun charges on a daily basis.

If you are arrested for possession of a firearm by a convicted felon, the state attorney has to prove several things. First, they have to prove beyond a reasonable doubt that you did in fact possess the gun. Possession can be actual or constructive. Actual possession is when you have the gun in your hands or on your person. Constructive possession is when the gun is under your control. For example, if the gun is under the driver's seat and you are the driver when no one else is in the car.

The prosecutor also has to prove that you are a felon. Specifically, the state has to prove the historical fact of a prior felony conviction and that felony was committed by you. Just having your name on the judgment and sentence is not enough. A judgment and sentence is a form that is generated whenever someone enters a plea or is convicted of a crime in Jacksonville. The form states whether or not the person was convicted, the sentence they received, and will usually have fingerprints. The state attorney usually proves identity by taking your fingerprints and compares them to the prints on the judgment and sentence.