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George Zimmerman, the man who stands accused of Second Degree Murder for the death of teenager Trayvon Martin will not be going forward on a Motion for Immunity previously scheduled for April 2013. A Motion for Immunity, otherwise known to the world outside the legal community as a “Stand Your Ground” motion is a pretrial motion asserting that an individual is immune from prosecution for an allegation of violence levied against an individual. In essence a Stand Your Ground motion asserts that an individual had a right to use such force so as to protect themselves against the unlawful force of another. On February 5th of this year George Zimmerman’s criminal attorney requested that Zimmerman’s trial be continued beyond the June date citing the need for more time and money to lay the groundwork for the trial. This request was denied, ultimately to be the catalyst for Zimmerman’s lawyer’s decision to forego the Motion for Immunity and focus on the trial.

Florida Statute 776.012 justifies the use of deadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or another against the other’s imminent use of unlawful force and he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony. Florida Statute 776.012 is cited in Florida Statute 776.032 where it says that a person who uses force as permitted in 776.012 is justified in doing so and is immune from criminal prosecution and civil action for the use of such force unless the person against whom the force is used is law enforcement acting in the performance of their duties and the officer identifies themselves.
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Attorneys for the State of Florida and alleged Tampa Police Officer shooter Dontae Morris continue to quest to pick a jury for Morris’ upcoming murder trial for the death of Rodney Jones outside of a Tampa nightclub. Morris’ name may sound familiar as he is the suspect accused of killing Tampa Police officers Jeffrey Kocab and David Curtis on June 29, 2010 after a routine stop of his girlfriend’s vehicle. Because of the media coverage of the death of the two officers, Morris’ jury selection has been moved to Orlando in an effort to find a jury pool less familiar with the allegations in the hope of finding a jury of individuals unbiased and unfamiliar with this case. Though this practice has been used for years, the Tampa criminal lawyers at The Mayberry Law Firm have doubts as to its effectiveness in our day of modern technology.

In any high profile criminal trial, be it Casey Anthony and the accusation of murder for the death of her little girl, Jodi Arias and the accusation of murder for the death of her boyfriend or anything involving the death of a local police officer there gives the rise of doubt that a jury free from bias can be seated in the county holding jurisdiction over the allegations. Tampa criminal lawyer Jason Mayberry blogged in May 2011 about this very issue as it concerned the jury selection for Casey Anthony held in Pinellas County. Within that blog our firm expressed doubt that the change of venue protection still legitimately exists.

Article I, Section 16 of Florida’s Constitution guarantees an accused will receive an impartial trial in the county holding jurisdiction over the criminal allegation. In conjunction to that Constitutional guarantee, Florida Rule of Criminal Procedure 3.240 provides that either the State Attorney or the Defendant may move the Court for a change of venue, alleging that a fair and impartial trial cannot possibly be had in the home county of jurisdiction. Florida Statute 910.03 says that in ordering a change of venue for jury selection the Court must “give priority to any county which closely resembles the demographic composition of the county wherein the original venue would lie.” In this instance it appears that Judge Fuente feels that Orange County satisfies the dictate of 910.03.
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Chinese food takeout driver Stan Worby, 39, can be said to be West Yorkshire, England’s very own version of Bruce Wayne for his actions last Monday morning. Worby, after attending a soccer game dressed in full Batman attire, brought a man wanted for handling stolen goods and fraud to the police station and told the officers in his presence that he had “caught this one for you.” At the time Batman left ,he failed to give his information and vanished into the night, much like the superhero for whom he was dressed.

It is reported that the man delivered by the Caped Crusader was on the lamb for a while with British authorities making diligent inquiry locally in an effort to apprehend him. The equivalent Tampa criminal charges for which he was wanted in merry ole England would likely be dealing in stolen property and perhaps scheme to defraud though it’s impossible to speculate without the specific facts. For argument’s sake, a Tampa criminal lawyer would have to defend on accusations that one trafficked in or endeavored to traffic in property that he or she knew to be stolen. Florida Statute 812.019 governs dealing in stolen property and a conviction for a charge of the like can be a second-degree felony, or a first-degree felony if the individual is found to be an organizer in the scheme. A Tampa criminal attorney must overcome proof that one actually engaged in a scheme to defraud someone out of property or anything of value. Depending on the monetary value of the property at issue will be the level of felony charged. As with any other theft related crime, the higher the value of the subject of the crime the more serious the charge will be. Scheme to Defraud is governed by Florida Statute 817.034. Lastly, depending on whether the wanted man was previously issued a bond after initial arrest, he could be subject to similar repercussions as Florida’s Failure to Appear Statute provides. In Florida, under 843.15, if one is arrested and posts a bond and then fails to appear they can be guilty of a third degree felony if their initial crime was a felony, or a first degree misdemeanor if their original charge was a misdemeanor.
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Erik Brown, 36, is alleged to have committed a misdemeanor battery upon his brother in law in Port St. Lucie, Florida with, of all things, a Taco Bell burrito. The Burrito Battery occurred after a verbal altercation between the victim and his mother overheated. Brown, feeling the argument was disrespectful to his mother in law and the victim’s mother, launched the victim’s burrito at his face after the victim asked his mother to bring it to him, according to a police report. When interviewed by police Brown explained that the alleged victim was being disrespectful to the mother in law and had cursed at her. It was at that point Brown delivered the burrito to the victim. Upon police electing to arrest Brown, Brown proceeded to inform the victim that he would be promptly knocked out when Brown returned home. Brown was taken into custody and transported to the St. Lucie County Jail without further incident. He will be charged with battery per Florida Statute 784.03.

Regardless of the fact that Brown used his burrito as a weapon in his battery of his brother in law, he could only legitimately be charged with a Florida misdemeanor. Because any Tampa criminal attorney would be able to successfully argue that a burrito is not a deadly weapon, the prospect of a felony charge just isn’t there. For the State to prove that Brown is guilty of a misdemeanor battery they would have to show that Brown actually or intentionally touched or struck his brother in law against his brother in law’s will or that Brown intentionally caused bodily harm to his brother in law. Where things could get rather sticky for Brown is if this is charged as a domestic battery under 741.28. In this case if the State Attorney can show that Brown and his brother in law are related by marriage which clearly they are or that they either live or have lived together, they may elect to charge this battery as domestic in nature.
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A man in Iran has been charged with bank robbery after purchasing a faulty spell from a local sorcerer to make him invisible and then taking money from bank patron’s hands. For the Iranian bank robber, he would have been best served to either look in a mirror prior to testing out his purchase or at the very minimum to have asked for a test run before shelling out the $500 for the invisibility cloak. When questioned by an Iranian Judge about the allegations, the man explained that he purchased a set of spells to tie to his arm that would make him invisible. He further explained that the sorcerer from whom he made his purchase explained to him that he could rob banks to his heart’s content due to the invisibility provided by the spell pack. Unfortunately for our Iranian friend when he entered the bank and began taking money from patrons’ hands, he quickly learned that he was very visible.

Though we’re in Iran for purposes of this blog, if one elected to purchase invisibility and perform a bank robbery in the United States, they would be staring down the barrel of a Bank Robbery charge under 18 USC 2113. The Federal Bank Robbery statute says that whoever by force and violence, or through intimidation, takes, or tries to take from another, or obtains or attempts to obtain something by extortion belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association or whoever enters or attempts to enter any bank, credit union, or any savings and loan association, with intent to commit any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny–
Shall be fined under this title or imprisoned not more than twenty years, or both.
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A threesome didn’t quite go as planned for one unlucky participant when his request to switch sexual positions with another man resulted in him being chased and ultimately stabbed with a butcher knife. This tale of lusty lovers began in prison when Ashley Hunter, 33, and Orlando Dewitt, 37 became friends. Upon their release they were lucky enough to finally party with real women when one misplaced request to move to the back sent Ashley Hunter into a knife wielding rage. According to the news report, Orlando Dewitt and a lady friend got friendly on a couch and soon shucked their pants. One thing led to another with Dewitt and his lady friend ultimately engaging in a sexual encounter only to be interrupted by Hunter. Hunter, who was watching from a nearby bedroom, began kissing the unknown woman’s breasts and ultimately she engaged him in oral sex. When Hunter grew tired of his position, he requested a Chinese fire drill of sorts and things got sticky in a hurry. Words were exchanged between the two jail mates until Hunter produced a large butcher knife from a couch. When the blade was brandished Dewitt and the lucky lady retreated to the bathroom as Hunter waived his swords from the living room. Ultimately Dewitt made a break for the front door but was caught from behind by Hunter and stabbed in the arm.

Hunter was later arrested and charged with aggravated assault and is currently being held in a North Dakota jail on a $5,000 bond. I believe most Tampa criminal lawyers would agree that this is a relatively low bond for such a crime. Were Hunter’s deeds performed in Florida, he would be facing at minimum an aggravated battery with a deadly weapon under Florida Statute 784.045. In Florida one is guilty of an aggravated battery if it can be proven that a person committed a battery and in doing so causes great bodily harm, permanent injury, permanent disfigurement or uses a deadly weapon in the commission of the battery. In a case similar to Mr. Hunter it seems a Tampa criminal attorney may have some difficulty in forming a defense to this allegation unless other facts are presented that contradict this news story.
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Fanatical Alabama supporter Harvey Updyke had his pretrial release revoked yesterday after Prosecutors moved the Court to take him back into custody. Updyke is infamous for allegedly poisoning the Auburn Oaks at Toomer’s Corner and later appearing on a high traffic Alabama sports radio program to boast about his deeds. At Updyke’s pretrial hearing Prosecutors showed Judge Jacob A. Walker III a video of a recent arrest of Updyke on a terrorizing charge in Louisiana after an altercation with Louisiana home improvement store workers. The video was shown to prove that Updyke violated a pretrial release term of not getting arrested while on bond. Despite Updyke’s lawyers lobbying to keep him out of jail by citing the notion that the Louisiana arrest was without just cause, Updyke’s bond was revoked and he was taken into custody. Updyke awaits trial on criminal mischief charges for the Auburn Oaks incident scheduled for April 8, 2013.

In Florida if one is arrested they will generally at the very least have a bond amount set. If they can post that amount or hire a bondsman to provide a surety bond they can get out of jail during the pendency of their case. With a Judge’s granting of a bond generally comes certain standard conditions pursuant to Florida Statute 903.047. An obvious condition is to refrain from criminal activity of any kind. If there is a victim of a crime, the defendant cannot have contact with them and for all those out on bond, they must comply with other conditions of pretrial release specially imposed. Any Tampa criminal attorney will have the coming to Jesus meeting with his client insisting that they absolutely not put themselves in bad situations in order to avoid criminal activity. As our Tampa criminal lawyers have often said, we can protect our clients against most things but we cannot protect them from themselves. In other words, if someone is hell bent on putting themselves in arrestable situations, there isn’t much the criminal defense attorney can do about it.
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Brooksville, Florida man, Timothy Carr, was issued a DUI for driving through a Brooksville Walmart on a motorized shopping cart earlier this month. It is reported that Mr. Carr was quite intoxicated while cruising through the store drinking alcohol that he had plucked from the shelf while inside and also knocked several additional items from their shelves. When confronted by police, Mr. Carr told them that he had no money to pay for any of the items he was drinking and carrying in his cart. Police learned during questioning of Mr. Carr that he is homeless and has two prior arrests or convictions (the report was unclear) for theft. Based on police observations and their impression of his criminal history they have recommended that he be formally charged with disorderly intoxication, DUI and felony theft.

Unlike some other states, a person can receive a DUI in Florida so long as they are driving or in actual physical control of a “vehicle” as defined in Florida Statute 316.003(75). The motorized shopping cart driven by Mr. Carr fits the definition of vehicle as it is a “device in or upon by which a person or property may be transported or drawn upon a highway, except for devices travelling on stationary rails or tracks.” In other words, because a motorized shopping cart could be driven on a highway, Mr. Carr could be charged with a DUI. Of course conviction could be another story as field sobriety tests would likely need to be conducted and show impairment along with a chemical test or refusal of that test. If no other signs of impairment are present, a Tampa DUI lawyer could argue that Mr. Carr is simply not of sound mind or suffers from collateral medical issues, thereby preventing a shopping experience without incident. Would it work? Who knows. Tampa DUI charges, like other charges, are fact driven and unique. The short answer… It depends.
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18-year-old Penelope Soto was sentenced to 30 days in jail for contempt of court after flipping Circuit Judge Jorge Rodriguez-Chomat the bird on Monday during her first appearance hearing. Oddly enough Soto was arrested and before Judge Rodriguez-Chomat for a first appearance on a possession of a controlled substance charge where he was trying to establish a lower and reasonable bond for her. When the good Judge inquired as to the value of the jewelry Soto possessed it is reported that Soto stroked her hair and laughed at Judge Rodriguez-Chomat in a snarky fashion. To this Judge Rodriguez-Chomat remarked, “it’s not a joke, you know, we’re not in a club now. We are not in a club, be serious about it.” Soto replied, “I’m serious about it, you just made me laugh. You just made me laugh, I apologize. It’s worth a lot of money.” When Judge Rodriguez-Chomat inquired further as to the actual value of the jewelry Soto replied, “like Rick Ross. It’s worth money.” Not understanding Soto’s reference, Judge Rodriguez-Chomat asked if Soto was on drugs and things seemed to turn downhill from there. Judge Rodriguez-Chomat set a $5,000 bond and said “bye, bye” to which Soto sniped “adios.” Annoyed, Judge Rodriguez-Chomat summoned her back to the podium and increased her bond to $10,000 and again sent her on her way. But the altercation would not be complete without Soto flipping Judge Rodriguez-Chomat the bird and blurting “f*ck you” on her way out the door. For this Judge Rodriguez-Chomat yet again brought her back and issued her a 30 day criminal contempt of court sentence.

First and foremost the first thing I and the Tampa criminal lawyers in my firm impress upon our clients is to be mannerly in front of the particular presiding Judge on their case. Alienate the Judge and your difficulties are compounded ten fold. In other words, don’t piss off the person that could eventually sentence you or approve of a plea deal negotiated between your Tampa criminal attorney and the State. Penelope Soto screwed up. Not only is a $5,000 bond reasonable for a third degree felony, Soto will now instantly begin serving her contempt sentence. Unlike civil contempt where a Court’s ruling is made and ignored, direct criminal contempt is governed by Florida Rule of Criminal Procedure 3.830 and offers very little due process. Criminal contempt allows for summary punishment when the contempt is performed in the presence of the Court. The Judge will then allow an opportunity for the Defendant to show cause as to why they shouldn’t be sentenced and depending on the cause, will impose sentence immediately and without a trial.
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A Jacksonville Beach, Florida mother pled guilty in Duval County Circuit Court on January 30th to four counts of Child Neglect. Dalina Nicholas, 36, is accused of repeatedly selling sex with her 6-year-old daughter to drug abusing and homeless men in exchange for drugs and money to support her own drug habit. Nicholas, originally facing a sexual battery charge has agreed to testify against those men alleged to have sexually abused her daughter in exchange for that sexual battery charge being dropped. Sexual battery under Florida Statute 794.011 as alleged against the other defendants and likely as initially alleged against Nicholas is a Capital Felony with the requirement to register as a Sexual Predator. Generally Capital felonies are punishable by death. However, in Capital cases for rape of a woman or child not involving death, execution has been ruled to be unconstitutional by the United States Supreme Court through their decisions in Coker v. Georgia, 433 U.S. 584 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008). As you can imagine, despite the terrible allegations against her, Nicholas has dodged a certain life sentence in her agreement to cooperate with the State. In all candor I believe this is a deal any Tampa criminal lawyer would advise his client to enter into should the implicating facts be overwhelming.
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Mayberry Law Firm
3902 Henderson Blvd, #208-136
Tampa, FL 33629
Phone: (813) 444-7435

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