REARRESTED 30 DAYS AFTER PLEADING TO SEX CASE IN COLUMBIA COUNTY

Former Gainesville and Lake City music teacher David O’Neill was labelled a sex offender under Florida law on December 19, 2016.  According to police and court records, O’Neill, who actually has a doctorate degree in music, education  or music education from the University of Florida, awarded in 2013, was rearrested right at 30 days(January 19, 2017) from his December 2016 sentence of five years probation in a Columbia County sex case.  This is according to a report out of Gainesville, Florida, http://www.gainesville.com/news/20170120/gpd-sex-offender-violates-registration-in-online-ads, 

Columbia County Sex Case

The two charges Dr. O’Neill was arrested  on in Columbia County Florida, back on February 15, 2016,  were originally a result of his actions communicating with a minor online in an attempt to have sex with that minor and the transmitting of material harmful to minors.  He entered a plea to the one count of the transmission of harmful materials to a minor and was placed upon 5 years of felony probation by the judge in Columbia County or Lake City, Florida.  Apparently O’Neill taught music in the Columbia County School system at one time.  He has also taught in the Alachua County school system prior to these arrests. At the time of this writing, it appears that the Judge in Columbia County originally sentenced Dr. O’Neill to five years of sex offender probation but then court records show that his probation was corrected to be five years of standard felony probation.  The difference between the two categories of felony probation are very significant.  Although any felony probation is something to contend with, sex offender probation under Florida law, carries the following additional conditions, restrictions and requirements:

  1. mandatory curfew from 10 p.m. to 8 a.m.
  2. cannot reside within 1000 feet of a place where children regularly congregate( some counties such as Duval expand this to 2500 feet)
  3. active participation and successful completion of a sex offender treatment program
  4. no contact with the victim unless approved by the victim, the sentencing judge and the professional treating the sex offender
  5. if the victim was under 18, no contact with minors unless, same conditions as #4 above and the offender must be in sex therapy or have completed it
  6. if the victim was under 18, the offender cannot work for pay or volunteer at any place where children regularly congregate
  7. a prohibition on viewing, accessing owning or possessing obscene, pornographic or sexually stimulating material
  8. must submit a DNA sample (that is not just on sex cases anymore)
  9. restitution to the victim for all medical and psychiatric or psychological treatment related to the crime
  10. submission to a warrantless search by the probation officer of the person’s residence, person or vehicle (that’s not exclusive to sex cases)
  11. A polygraph exam, at least annually, by an examiner certified as a postconviction sex offender polygrapher
  12. must keep a driving log
  13. cannot keep a post office box without approval of probation officer
  14. if the charges allege sexual contact, probationer must undergo an HIV test and results provided to victim and/or victim’s parents or guardian
  15. electronic monitoring by GPS
  16. cannot access the internet until a risk assessment is completed and a safety plan implemented by the treating professional
  17. for offenders with victims under 18, the offender cannot hand out Halloween candy, dress as Santa Claus or the Easter Bunny

 

The Alachua County Arrest

Dr. O’Neill was arrested on January 19, 2017,  on three new charges.  As stated earlier it appears the sentencing judge in Coumbia County had placed him on a standard felony probation as opposed to the above described sex offender probation.  Although not on sex offender probation, the doctor was still labelled a Florida sex offender with the Florida Department of Law Enforcement and had requirements placed upon him with that designation. The narrative portion of his arrest report states that the doctor had been observed standing on a street corner in Gainesville advertising his business by holding a sign.  His business was apparently teaching piano lessons.  The sign contained a web address. When the officer went to the web address the site contained, according to the officer, a link to the doctor’s email and his cell number.  Further investigation by the officer revealed a Craigslist ad listing the doctor’s services.  Quoted from the arrest report, “The Craigslist ad, the website selling his services, and the contact e-mail are all NOT listed as internet identifiers on the DEF’s sex offender registration form, yet they facilitate communication through the internet, a violation of his conditions. ”  The officer arrested Dr. O’Neill for the three charges in violation of FS 943.0435(2)(4)(D).  Continue reading

WHAT ALL OF THESE PROGRAMS HAVE IN COMMON, STARTING WITH PRETRIAL SERVICES

The three different programs mentioned above have one major factor in common.  Any defendant that is offered programs such as these probably has a pretty minimal record. Secondly, the charges are not going to be serious charges along the lines of violence or concerning victims that need to be protected.  That’s because these offerings are about 95% within the discretion of the state attorney’s office whether to afford a criminal defendant the chance at one of these programs.  Outside of the state attorney’s office, Pretrial Services in Duval County affords the recently arrested a chance to be released from jail on a cheaper bond or an ROR, release on one’s on recognizance.  The decision to place a person on Pretrial services in Duval County is up to a few select correctional officers who are assigned to the first appearance courtroom at the jail.  These officers first read the arrest dockets looking at the nature of the charges across the board for individuals in the session of first appearance or “bond setting” court.  Many defendants will not even be considered for Pretrial Services, again, due to the nature of their charges.  Once the officer has his stack of individuals whom he thinks might qualify for Pretrial Services release, he pulls their local criminal history as a minimum and nationwide history if he or she has time.  The corrections officer then makes a recommendation to the first appearance court judge for the defendant to be placed into the program.  The defendant then signs an agreement to adhere to the conditions of the program.  Most judges set very reasonable bonds or ROR defendants once a Sheriff’s representative (the corrections officer) makes the recommendation.  Some of the common conditions of Pretrial Services are: weekly drug screening by urinalysis, the wearing of a drug patch, reporting in once a week to a Sheriff’s office location, community service hours, some type of classes trying to help the defendant with identified problems and, if there is a victim, no victim contact or no violent victim contact.  Some particular judges add that no guns or ammunition may be possessed and that the person remain “crime free.”  This writer has had plenty of experience with the program and the assigned officers running this program at the Duval County Pretrial Detention Facility.  This is a program that works.  If offered the opportunity to enter this program, every defendant should take advantage of it.

PRETRIAL INTERVENTION, BOTH MISDEMEANOR AND FELONY

Once a criminal defendant’s case leaves first appearance court, a prosecutor will be assigned to the case.  An exception to that would be if a person was arrested on a warrant which means a prosecutor, as well as a judge has already looked at the case and followed through with a warrant.  The space in time between first appearance court and arraignment is when individual prosecutors are reviewing their respective newly assigned cases and considering options or “filing decisions” setting the case on a path to a just disposition(at least in their mind).  Factors considered in  a filing decision that would result in a Pretrial Intervention, or PTI, offer would be a person’s criminal history, the nature of the immediate crime, any mitigation supplied by the defense attorneys, input from any victims and any possible repayment or restitution keeping the victim whole when a property crime is involved.  In North Florida, a person offered felony PTI will have a meeting set up at the Florida Department of Corrections, Probation and Parole Office.  This makes it seem very much like the person is on probation and many times those on felony PTI refer to their handler as their “P.O.” or their probation officer.  Their handler is actually a probation officer but is working in a “court services” position.  At the initial meeting the defendant will sign a PTI contract spelling out the terms.  The terms do come very close to what this writer labels as “probation in advance.”  The defendant is under the control of the state correctional officer at this point.  The defendant is usually restricted from leaving Duval, Nassau or Clay counties, must notify his or her handler within 24-48 hours or changing addresses, may or may not have a GPS ankle monitor, must report in every week, is subject to random drug testing, may have to make restitution payments, attend classes or rehabilitation programs, and, very similar to probation, his court services officer can go visit him at work or at home.  Overall, Pretrial Intervention at the felony level is one hell of a break for most defendants.  Once the conditions are met and/or the time period has passed with no problems, the department of corrections notifies the state attorney office that the defendant accomplished everything, the felony case is dropped, ie, not prosecuted by the state.  This programs works well also.  Thousands of folks arrested in North Florida have successfully avoided lifetime stigmas of a felony record by taking advantage of a PTI offer, commonly called “diversion” offered at the discretion of the prosecutor assigned to the case.  The flip side is one turns into a “PTI reject”(just what it means), and can’t complete the conditions, the state attorney simply, about 95 -99% of the time, simply files the original felony bringing lifelong implications to the defendant.  Misdemeanor PTI is an internal program run completely within the state attorney’s office.  Obviously, it’s a much easier program since the charges are misdemeanors.  Requirements are similar, classes, community service hours, maybe payments to some specified victim’s fund. There is no reporting, however.  The person just provides proof after 75-90 days that all is complete and, again, the charges are dropped.  The two most common misdemeanor charges PTI’ed in our area are marijuana charges and petty thefts. Continue reading

SUSPECT NOT ARRESTED UNTIL MULTIPLE SALES

A recent News4Jax story gives details into the arrest of Reco Benefield and Amber Troutman for drug charges and child neglect.   The news report states that an undercover Jacksonville Sheriff’s Office Detective met with Benefield to purchase crack cocaine on January 11, 2017.   After the alledged  hand to hand drug sale was completed a takedown signal was given and  Benefield was taken into custody.  The same Detectives apparently had previously purchased crack cocaine from Benefield on December 15, 2016.  Benefield was also out on bond for 2016 Drug Charges dealing with the Sale of Pills (Oxycodone and Dilaudid) as well as crack cocaine on September 13, 2016 and September 14, 2016.

EVERYDAY TECHNOLOGY AND CELL PHONE USE COMES BACK TO HAUNT THE ACCUSED

Benefield’s cases all involve Undercover Narcotics Detectives utilizing cell phones to contact Benefield as well as to text Benefield.  The live phone calls between Benefield and JSO certainly will be recorded as evidence setting up the transactions.  Further it is fairly simple for JSO to print out copies of the text messages to utilize as evidence against Benefield.  Video recording devices are also often utilized to capture the transactions and the Jacksonville Sheriff’s Office Arrest and Booking Reports reflect that they were used in all of the transactions with Benefield.

Mr. Benefield already has a tough road in front of him.  Each drug sale he is charged with carries a maximum of 15 years in Florida State Prison.  He currently has four separate and individual sales.  The maximum Benefield faces on just the drug sales is 60 years in Florida State Prison.  Further the State of Florida will be able to try each sale individually against Benefield.  Benefield would have to be found not guilty at trial four separate times.  The State of Florida can sit down and pick which case to try first, likely their strongest one.  The State of Florida gets to choose which case is tried first, as they have the burden to prove the case beyond a reasonable doubt.  Many times, the local police will set up several “buys” with the same dealer.  Rather than arresting the dealer after the first sale, the police will leave a known dealer on the street, knowing full well that he or she is still selling.  The objective is to load the soon to be arrested dealer up with multiple cases.  If undercover police or a confidential informant conduct a purchase of drugs and the seller is arrested on the spot, that is called a “buy-bust.”  Here, the method employed originally was a “buy-walk” where the drugs were bought but law enforcement did not arrest the seller until later, and when arrested later, that was a “buy-bust” arrest.   The accused is entitled under the rules of discovery to see all of the evidence against him. In most of these drug sale cases the police have fairly decent videos of the transactions.  It is not known to this writer if the videos of Benefield show him doing anything illegal.  While he awaits trial he is also presumed to be innocent.

A NEW ARREST WHILE OUT ON BOND EQUALS A BOND REVOCATION

Since Mr. Benefield was out on bond for his earlier drug sales accusations, he likely will remain in the Duval County Jail until his cases resolve.  Anytime an individual is arrested for new charges, commonly referred to as “New Law Violations,” the State of Florida is able to file a Motion to Revoke Bond.  All that is required by the State to have a Motion to Revoke Bond Granted, is that probable cause existed for the arrest of Benefield on new charges.  Attaching an Arresting and Booking Sheet is all that is typically needed.  The State of Florida filed a Motion to Revoke bond against Benefield, which is almost automatically  heard by the Judge.  The Judge heard the State’s motion and in fact revoked Benefield’s bond on January 18, 2017.  Benefield is now being held with No Bond until his case is resolved.  Possibly down the road Benefield’s lawyer may be able to file a Motion to Set Bond, similar to a Motion to Reduce Bond, however the chances of the Court granting that motion are very slim. One additional concern, for those defendants that remain in jail, is the recording of all phone calls they make.  Local Prosecutors have made hundreds of cases simply because the inmate or his or her family bring up and discuss the facts of the case, even with a recorded warning issued at the start of every call.

Continue reading

Teens Steal Purses in Coordinated Theft

A recent report by News4Jax states that nearly $18,000 of high end purses were stolen from a Kate Spade store at the St. Augustine Outlet Mall.  The theft happened during normal business hours.  The police report states that between seven or eight teens “burst” into the store, spread out, and grabbed 46 handbags/purses and ran out of the store.  A store employee attempted to block the door, but was unable to stop the thieves.  The teens were observed getting into a vehicle and the tag number was forwarded to law enforcement.

This style of theft is commonly referred to as a “Flash Mob.”  The goal is to get enough people involved knowing that a small store will not have the man power loss prevention people in place to stop everyone involved.  Here the seven to eight teens were able to storm the store and take 46 handbags/purses, and the employees of Kate Spade were not able to stop a single teen.  Across the country these types of thefts have occurred on a larger scale at larger retailers like WalMart and Target.

SANTA COULD MISS CHRISTMAS

On December 19, 2016 undercover detectives from the Jacksonville Sheriff’s Office arrested Isaac Earl Geiger for several narcotics charges.  Per a News4Jax story, the Sheriff’s office were conducting an investigation on Golfair Boulevard based on recent complaints regarding drugs and/or illegal narcotics.  During the investigation, the Sheriff’s Office noticed Geiger standing at the door of a U-Haul rental truck in the parking lot.   Geiger was dressed in a red Santa Suit.  The Sheriff’s Office reports that they observed Geiger go to and from the U-Haul several times, retrieving items, and walking away.  Upon Geiger detecting the police presence, Geiger fled on foot.  The report states that Geiger “Tripped” over his Santa pants while fleeing from the police.  While being taken into custody, Geiger refused to take his hands out from underneath his body.  A search of Geiger revealed a large sum of cash and a plastic baggie containing narcotics.  The Sheriff’s Office returned to the U-Haul and observed a large amount of marijuana in plain view on the driver’s seat of the U-Haul.   A search of the U-Haul revealed additional marijuana, a scale, MDMA commonly referred to as ecstasy, Molly (another purer form of MDMA) and additional money.  It is unclear based on the report if Geiger was the target of the complaints or not. Geiger was arrested and charged with several violations of Florida State Statute 893.13 which deals with illegal drug possession, sale of drugs, possession of drugs with intent to sell, and paraphernalia.  Specifically, Geiger was charged with three counts of Possession of Methamphetamine with Intent to Sell within 1000 Feet Public Housing (First Degree Felony), two counts of Possession of Cannabis with Intent to Sell within 1000 Feet of Public Housing (Second Degree Felony), Resisting an Officer without Violence (First Degree Misdemeanor), and Possession with Intent to Use Drug Paraphernalia (First Degree Misdemeanor).

THESE CHARGES COULD MEAN SANTA MISSES THE NEXT FEW CHRISTMASES

Geiger faces a maximum of one hundred and twenty two years in the Florida State Prison system as he is currently charged.  The defendant faces thirty years for each first degree felony, fifteen years for each second degree felony, and one year for each first degree misdemeanor.   However, the State likely is barred from filing multiple counts regarding the same illegal substance.  For example the State likely will be unable to prove two separate counts of Possession of Marijuana or three separate counts of Possession of MDMA. Furthermore, it is almost impossible for the State to file and prove that the Narcotics found inside of the U-Haul were placed or possessed there with the intent to sell.  Even with large sums of money, scales, and even a confession that narcotics were possessed with the intent to sell at a later date is usually not enough for a conviction.

Another burden the State will have to overcome is the “Possession” element of the crimes charged.  Florida law defines Possession in two ways, Actual Possession and Constructive Possession (Florida State Statute 893.13(6)).  Actual Possession means the person is aware of the presence of the substance and the substance is in the hand of or on the person, or, the substance is in a container in the hand of or on the person, or the substance is so close as to be within ready reach and is under the control of a person.  If Geiger actually did have a plastic baggie containing narcotics in his Santa suit, then the State may move forward under the actual possession theory as the argument is that the substance is within ready reach and is under the control of the person.   Constructive possession means the person is aware of the presence of the substance, the substance is in a place which the person has control, and the person has the ability to control the substance.  Mere Proximity to a substance is not sufficient to establish the power and intention to control that substance when the substance is in a place that the person does not control.  All of the items found within the U-Haul the State will be required to prove the defendant’s knowledge and control.  This is often times were the hiring of defense lawyer  comes in to play.  Often times the defense attorney is able to have cases completely dropped based on this very simple analysis of the Florida Law defining possession. Continue reading

INVESTIGATION LEADS TO ARREST AND RESIGNATION

According to a report, a Jacksonville firefighter has resigned his employment following his arrest for petit theft.  Firefighter Joshua Williams was arrested on November 22, 2016, subsequent to an investigation by the Jacksonville Sheriff’s Office Integrity Unit. Williams was assigned to a “tactical support unit” keeping himself busy delivering supplies to various fire stations around town.  The Jacksonville Sheriff’s Office had received a complaint regarding several thefts of money at different fire stations throughout town.  It was determined that Williams had been present at the various stations where the money came up missing.  Police set up a sting operation by placing cash inside a fire station’s kitchen area.  The kitchen area was placed under video surveillance.  Williams made a delivery to this station and upon his departure it was determined that $167.00 of cash placed in the kitchen by the police integrity unit was missing.  Police detained Williams at a nearby gas pump and located the missing $167.00.

MARKED MONEY

A common tactic used by Law Enforcement is to “Mark the Bills” or record the serial numbers on cash used in sting operations.  It is especially common in narcotics related investigations where law enforcement purchases illegal narcotics from a drug dealer.  When the drug dealer is arrested the goal is to catch him or her with the same dollar bills handed over by law enforcement.  In the case of Williams, the integrity unit photocopied the bills’ serial numbers before placing them inside of the station’s kitchen.   Since serial numbers are unique, the integrity unit can now show that Williams possessed the stolen money from within the Station’s Kitchen.

AMOUNT OR ITEM STOLEN TYPICALLY DICTATES THE CHARGE

There are several different types of theft charges in the State of Florida governed by Florida State Statute Chapter 812.  The most common are Petit Theft and Grand Theft.  Often times the difference between the charge being a Felony Theft Charge or Misdemeanor Theft Charge is the amount of money the item is valued at or what particular item was stolen.    In Florida if the amount stolen is valued at more than $300.00 the charge involved is Grand Theft, a third degree felony, punishable by up to five years in Florida State Prison.  If the amount is valued at $100.00 or more but less than $300.00 the charge involved is a Petit Theft, a first degree misdemeanor, punishable by up to one year in the County Jail.  If the amount involved is less than $100.00 the charge is Petit Theft, a second degree misdemeanor, punishable by up to 60 days in the County Jail. Certain items stolen are automatically considered Grand Theft regardless of the amount the item is worth.  For example if someone were to steal a firearm, regardless of the value, the individual could face a felony Grand Theft charge.In the case of Williams, he faces a first degree misdemeanor Petit Theft based on the amount of cash stolen totaling $167.00.  It is not known if the Integrity Unit placed more cash inside of the kitchen in an attempt to have Williams steal a felony amount which would be $300.00 or more. Continue reading

FLORIDA AMENDMENT #2 TO EXPAND MEDICAL MARIJUANA GETS 71.3% OF VOTES

Florida voters took to the polls on November 8, 2016, this last Tuesday to decide the heated political race for the white house.  In Florida, as in many states, there were what could be characterized as marijuana legalization amendments on the ballots.  Several states are apparently receptive to the idea of medically prescribed marijuana and more states are moving to the legalization of marijuana for what is termed “recreational” use.  According to a report,  the majority of voting citizens in every county in Florida voted in favor of Amendment 2. This amendment, a version of which failed two years ago, passed with the serious efforts and financial contributions of powerhouse Orlando trial attorney, John Morgan, of the Morgan and Morgan firm. For months as this writer was entering or exiting the Duval County Courthouse, activists with clipboards were gathering signatures on petititons in support of this movement.  Under the terms of the amendment, people suffering from “debilitating illnesses” can have medical marijuana prescribed to them by their physician.  This medical marijuana is to be regulated by the Department of Health. The states of Arkansas, Montana and North Dakota also voted like Florida to allow medical use of marijuana. Now 29 states are looking to have legalized medical marijuana.

SEVERAL STATES NOW ALLOW RECREATIONAL USE OF MARIJUANA

Citizens in the states of California, Massachusetts and Nevada voted to allow the legal smoking of weed.  For some reason this is termed “recreational” use.  This writer has never heard alcoholic beverages being bought or consumed for “recreational” use.  Perhaps it is just a term used to distinguish casual weed smoking from the prescribed use designated by one’s health care provider. The following states had already legalized weed: Alaska, Colorado, Oregon, Washington and the District of Columbia. This legalization also includes the government taxation that comes along with it. Continue reading

PENDING PROMOTIONS PLACED ON HOLD

The content of the most recent promotional exam administered to the approximately 70 Clay County Sheriff’s Deputies striving to make the rank of sergeant or lieutenant may have been leaked in advance.  According to a report, and statements made by outgoing Sheriff Rick Beesler’s department along with quotes directly from incoming Sheriff-elect Darryl Daniels, apparently some deputies who took the test may have had advance knowledge of what was to be included on the exam.  Incoming Sheriff Daniels has stated that officers who received a promotion based upon this compromised exam will have to resume their former rank until a new test can be administered.  Taking off rank in the world of law enforcement or the military is not a small move.  While physically all the officer has to do is unpin his lieutenant bars on his collar or cut the sergeant stripes off of his sleeves, the amount of authority leaving the deputy coupled with a probable change in duty assignment is huge. If officers had been promoted, then demoted, one obvious change would be the officer’s pay reverting to the former, less paying position.  Promotional testing of police officers usually involves the hiring of an outside firm to develop, administer and score the written test.  Officers then usually go before oral review boards of higher ranking officers in their own department.  According to the news article, Sheriff Beesler is conducting an investigation.

“THE INTEGRITY OF THE RESULTS HAVE BEEN CALLED INTO QUESTION”

That quote is from, according to news media, a statement issued by the Clay County Sheriff’s Office.  In other words, Sheriff Beesler must have concerns that some officers had advance knowledge of what was on the exam.  Some officers may have gained an unfair advantage over their fellow officers.  Perhaps the most qualified officers didn’t score as high as those who had the inside track on the questions.

“THE INTEGRITY OF THE PROCESS IS MOST IMPORTANT”

That’s a quote, according to news reports, of incoming Sheriff Darryl Daniels.  Incoming Sheriff Daniels also stated he was “disappointed to learn of the leak” due to the amount of time and effort officers devote into getting a good score. Daniels is further quoted, “if they truly want the promotion, they’ll do whatever it takes to apply themselves to do the same thing they did before to reach the position they did the first time.” This investigation is ongoing and this writer has no information on how that is proceeding.  With the outgoing Sheriff questioning the integrity of the test results and the incoming Sheriff questioning the integrity of the test process, it begs the question if any officers used the information to cheat.  If cheaters are uncovered, hopefully they will be removed from the department at a minimum.  This would preclude them from just retaking the test and “doing the same thing they did before” to gain an advantage over their fellow officers.

NO MENTION OF THE INTEGRITY OF THE OFFICERS

This writer’s position is that although the integrity of the test results(sheriff #1 concern) and the integrity of the process(sheriff #2 concern) are valid concerns, these are not the real integrity concerns.  The test results and the process, the integrity of both being questioned by top leadership, if compromised, could only have been compromised by someone knowing what was on the exam and some amount of officers who had that knowledge passed along to them.  The test results will probably never be public information; however, something was noted as being out of the ordinary.  If this test was compromised, it was most probably compromised by law enforcement.  Bottom line is that law enforcement cannot even trust their own.  The lack of integrity of the results and process can only be due to, as a perception at present, a lack of integrity by law enforcement.  Hopefully, any and all cheaters that happen to be uncovered are removed from sworn law enforcement.  If an officer would cheat on an exam to bypass his fellow officer careerwise, would he be above cheating, or doing “whatever it takes” to effect an arrest of a suspect or cheating on his attempts to create an honest affidavit for a warrant to submit to a judge? Also, it appears that the current Sheriff is conducting this investigation utilizing the department’s own integrity unit.  The public might question how a department that potentially  compromised test results and the testing process could conduct an impartial, uncompromised investigation of itself. Continue reading

Students Arrested Were 17, 18 and 19 Years of Age, Dodged a Sex Crime

According to a report, three male students at Terry Parker High School in Jacksonville were arrested in April for having sex with a female student on school grounds.  The four students met up at a athletic field house on the high school campus.  One of the male students filmed portions of the sexual activity that occurred.  It appears the allegations came forth from the victim when she was being questioned about being late for class or asking for a “late” pass. Two of the young men went to the police station and were arrested.  Another young man was arrested days later.  They were all charged with Lewd or Lascivious Battery and also Lewd Battery with enticement of a person less than 16 years old to engage in any type of sexual activity.  A conviction of either charge would have devastated these young men with incarceration and the lifelong requirement of sex offender registration.  For several reasons, the State Attorney’s  office exercised discretion and reduced these charges to misdemeanors with probationary sentences.

Victim Originally Stated She Was Forced Into Sex Only to Admit Later it Was Consensual

As is common in many sex cases a person who the arresting officers and detectives determine to be a victim later recants his or her story.  In the above case, the female victim later stated the sex was consensual.  One of the young men had recorded the acts on his cell phone. That defendant also had an additional felony charge of “making/printing or publishing computer pornography” which under Florida Law is a third degree felony.  The young girl in this case was not of age to give or not give consent under Florida law; however, a supervisory prosecutor, after viewing the video contained on one defendant’s cellphone, determined that the young girl was not being forced into any participation by the three young men.  As the case unfolded, the video, the recording of which was an felony charge, seems to have helped all of the young men with the prosecutor’s decision to not bring the felony sex charges.

Sex Charges Can Surface Years Later

Under Florida law a person can be arrested for allegations of sexual misconduct years, even decades after the alledged behavior.  Most readers should be familiar with the multiple allegations against the popular comedian Bill Cosby.  Several women have brought up incidents from years past and at least once case is reportedly going to trial.  It is commonplace in Florida for a person with no criminal history to be arrested for sex crimes which supposedly occurred fifteen or twenty years prior.  The worst situation is Capital Sexual Battery, meaning, at the time of the incident, the victim was less than 12 years of age with the accused being over 18 years of age.  A person arrested on this charge is not entitled to a bond under Florida Law and is facing mandatory life imprisonment if convicted.  This writer has seen victims come forward with very old  allegations numerous times.  The motivation of the victim coming forward years later varies. It can be for “closure” as directed by their counselor or psychologist, the taking away of a 13 year old’s cell phone, refusing to let a rebellious 14 yr. old date the 16 yr. old who has his license and a car, the backing out of a promise to buy a child a car or truck when they turn 16, or mom is finally divorcing the stepdad.  Many times, other family members are aware of the allegations and families will try to just handle the matter internally without it getting out to law enforcement. Continue reading

Florida Legislators  Vote 122-5 To Repeal Law Passed In  1868

Florida lawmakers have apparently taken a small step to enter the modern day world by sending a bill to Governor Rick Scott.  The bill would eliminate Florida Statutes 798.01 and 798.02 which have been in effect since 1868, or essentially 148 years.  The two laws had their origins shortly after the end of the Civil War and the prevention of race mixing was probably a large part of the legislative intent.  Until Governor Scott signs the bill repealing the draconian law, under S798.01, it remains a second degree misdemeanor in Florida to “live in an open state of adultery” and both parties would be subject to a maximum of 60 days in jail and a maximum fine of $500. Got the wayward married folks covered there.  Under S798.02 non-married and married florida residents who have sex, or as described by the statute, “if any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree.”  One would think these laws would be rarely enforced but according to an article in Police State USA, between 2007 and 2011, nearly 700 Florida residents were charged with misdemeanors for living together.  Additionally, these statutes don’t punish same sex couples for living together.  If  almost 700 Florida residents were in fact charged with crimes under these two statutes between 2007 to 2011, when that number is compared to the hundreds of thousands of Floridians living together as unmarried couples, the arrest and any prosecution is extremely rare. Any arrest and prosecution would also have to be very arbitrary.  This writer has handled thousands of criminal cases and works in about eight different counties without ever seeing anyone charged with violating these two laws.  What this writer does find noteworthy is the five elected lawmakers casting dissenting votes about overturning a seldom enforced law, regulating sex between consenting adults, from 1868, still consider this law necessary.  Can’t be too careful sometimes.

Regulation of Marriage

The second degree misdemeanors mentioned in the above paragraph are part of a regulatory attempt by government despite containing references to sexual activity that were incorporated as elements of the crime.  In our county alone, law enforcement’s number one or two arrests  by pure numbers on a daily basis (Duval County runs 35-40%) is for folks driving without a license.  The above law in the first paragraph is akin to having sex without being in a government licensed marriage, ie, an unlicensed marriage.  Locally our courthouse and the State of Florida just recently decided if gay couples could even be granted a marriage license.  The State of Florida now grants same sex couples the right to apply for and receive a marriage license, the right to marry and the right to divorce.  Our Duval County Courthouse had performed marriages for years up until the law changed granting gay couples marriage licenses.  Once the law changed and gays could marry, our Clerk of Court, Ronnie Fussell, decided that his courthouse and his court personnel would perform no weddings going forward. That was the only way he could avoid his people performing the ceremony for a gay couple.  The move was very coincidental with Mr. Fussell  simply stating it was a shortage of resources issue causing him to cease marriage operations 100% across the board, straight and gay alike.  Certain Judges and lawyers do, however,  perform marriages in the courthouse without the assistance of the clerk’s office. Continue reading