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Heisman Trophy winning quarterback Jameis Winston was accused this week of stealing crab legs from a Tallahassee, Florida Publix. Since the time of the incident, media outlets, NFL scouts, and fans of certain rival teams have taken issue with Winston’s actions, making fun, questioning his character and showing concern over his draft stock. Perhaps these concerns are warranted and perhaps not, all are certainly entitled to their opinion. At the end of the day, Winston wasn’t charged with a criminal offense for retail theft or petit theft but rather was issued a civil infraction requiring him to perform public service hours and pay a nominal fine. His eligibility for the civil infraction program was reviewed by local law enforcement in Tallahassee and Winston was ultimately deemed a proper candidate for diversionary action. I’ll be the first to admit I’m biased as I’m both a Tampa criminal lawyer and a Garnet and Gold bleeding, armchair quarterbacking, TV yelling, die hard Florida State alum. Though many believe Winston intended to steal the items from Publix, could it possibly be that this really was what just began as an innocent mistake followed by poor judgment? I’m confident my friends from that school in Hogtown will insist on his criminality but could it be possible that there was no criminal intent here?

As with most other crimes, an allegation of petit theft requires that the person accused possessed the requisite mental state to commit a crime. In English, the State Attorney must show, in order to prove a theft crime has occurred, that one intended to deprive the victim of their property either temporarily or permanently. Generally proof of intent is found circumstantially through an effort to deceive a victim, an effort to conceal the stolen item or an admission of guilt. Had the State charged Winston with a crime in this instance, it would have been for a second degree misdemeanor petit theft count as the value of the property taken was less than $100.

Though I wouldn’t normally recommend someone roll the dice and take their theft allegation to trial on a lack of mental state defense (unless the facts are completely legitimate), Winston’s initial actions in leaving the store without paying may be a decent situation where that defense could work. After winning the Heisman Trophy Winston is arguably one of the biggest sports celebrities going today. No doubt he is approached constantly by students and grown men alike asking for an autograph or picture, or doing anything they can to get his attention. If this occurred while he was in Publix, it is possible that in a moment of distraction, Winston did leave with his food, not realizing his mistake. Not to make excuses for my alma mater’s quarterback, but unfortunately being a criminal defense attorney doesn’t provide the same kind of entertaining schedule one who is a dual sport athlete on two nationally ranked collegiate teams has. He is an everyday player in two sports that overlap. He’s taking a full load of classes. The guy has to be busy. He’s probably a bit tired at times too. Could it be that that added to this incident? What of the fact that he left without concealing the items? Witnesses stated that he left holding the items in plain view. That’s not very good thievery in my opinion.
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In nearly every Federal drug charge I’ve handled in Tampa, my client has been charged as part of a Federal drug conspiracy. Depending on my client’s role or position within the alleged conspiracy, he or she is often approached, through me, to cooperate with the United States Attorney’s investigation in an attempt to bolster their Federal prosecution of co-conspirators or to seek information on other conspirators higher up the in the criminal organization. Depending on the stage of the investigation and very likely my client’s role, the Feds may defer on seeking a Federal Indictment against my client. Considering the Indictment system of charging a crime is a mechanism meant to protect the suspect from unsubstantiated prosecution, there could be risk in waiving the right to a Grand Jury. That said, there could be benefit in waiving that right as well…

Federal Rule of Criminal Procedure 7 states that an offense other than criminal contempt must be prosecuted through a Grand Jury Indictment if the punishment for the offense is death or by jail for longer than one year. In other words, we the people have the right to have a Grand Jury hear charging evidence against us in all Federal felonies. Under Federal Rule of Criminal Procedure 7(b) a defendant may waive a Federal Indictment and be charged by an Information so long as that waiver is made in open court and the waiver of the indictment is made after the defendant has been advised of the nature of the charge against him or her and has been fully advised of their rights. This is generally accompanied by a written waiver of a Federal Indictment that is then filed with the applicable Court.
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Meet Patricia Ann Jamison. Ms. Jamison was recently accused of the odd act of pooping in a courthouse elevator and subsequently arrested for the same event. According to a Huffington Post story, on March 7, 2013 security staff at the St. Lucie County Courthouse was notified that there was a mysterious pile of poop located in the corner area of a public elevator. When Security investigated this crime scene, to their dismay lay a steaming pile of pew poo thought to be left by a human animal. Security staff consulted security video of individuals coming in and out of the elevator in question and noticed that Ms. Jamison was the last to enter the elevator prior to the poo appearing and first to leave. Specifically and possibly the damning piece of the puzzle for her criminal lawyer to deal with, Jamison was witnessed before the elevator doors closed to “pull her pants down and back up toward the interior elevator buttons consistent with someone using the bathroom.” Ultimately when the elevator arrived on the first floor of the courthouse Ms. Jamison was witnessed “fixing her pants and pulling her shirt out of her pants as if she pulled her pants up over her shirt.” After she was alleged to have pooped in the elevator Ms. Jamison then made her way to her criminal defense attorney‘s office where she was ultimately identified based on her signing in to her attorney’s office.
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Many believe this week is the greatest week in all of sports. Work efficiency goes in the can, attention is diverted, and more than 50 million red blooded Americans will be living and dying on whether the sophomore shooting guard from Dingleberry Tech can finish the back half of his two free throws to knock out a national power like Duke or Michigan State. Hopes that are so high in the opening round are often crushed like an egg in round two or three. This, my friends is March Madness. The thrill of not only watching your team play for it all, but also having the chance to win a little cash in your local pool is, in my opinion, one of America’s greatest sports traditions. But are these sports pools legal? Like any other question to a lawyer, the answer is going to be a resounding and useless, “it depends.” Wa wa wa… In all actuality the answer hinges on whether you pay to play.

If you are in a pool where everyone just plays for “fun,” and submits a bracket with no hope of sweet, sweet, beer money victory then you’re going to be ok and you haven’t done anything wrong, other than maybe be a little boring. It is highly unlikely that in this situation you’ll need to buzz your criminal attorney friend after being arrested for violating a Federal or State law or gaming regulation. No reason to get your Mom jeans in a bundle. As a law-abiding attorney, I reside in the village of Mom jeans basketball brackets.

Now, if you, like the other 49,999,995 American basketball tournament fans drop at least a twenty spot in support of your favorite round ballers, you could be in violation of a few Federal and State laws. Back around 1961 our friends up in DC decided to poo in America’s cheerios yet again (see prohibition) by passing the “Interstate Wire Act of 1961” coded as 18 USC 1084. In passing this law, these boring folks made it illegal and punishable by up to two years in the Federal poke to engage in the business of betting or wagering by using a wire communication facility for the transmission into interstate or foreign commerce bets or information assisting a bet. What the hell does that mean? May need a Federal criminal lawyer to figure it out. Where could we find one of those? It means that if you get on the phone, dial up your interweb, shoot a text to your buddy, send an IM, tweet, Facebook a friend, or use any other electronic method that hasn’t been ruled out of this statute, that you could be getting a visit from Federal Officer Friendly. My definition could be a little over or underbroad in reality but you get the gist. Technically you OR your buddy running the pool could get popped under this statute. In all seriousness though, this act was aimed at organized crime to shut down their book making ventures. In all actuality it probably was a decent thing.

What about your buddy that may think he’s a bookie or your favorite sports bar that hosts your favorite March Madness pool? Again, see above. They could also find trouble through the Professional and Amateur Sports Protection Act. This Federal law, codified at 28 USC 3701, makes it illegal for a private individual to run a betting scheme based on a competitive game in which a professional or amateur athlete plays. What this statute also did was fill in gaps left by the Interstate Wire Act of 1961 with respect to intrastate (occurring wholly within a State) gambling activities. The Interstate Wire Act of 1961 only dealt with interstate gambling activities. In other words, the Feds can now slap around those that run our pools for activity completely within our respective State of residence. Organized crime, blah blah blah.
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Teacher’s Aide by day, pantless driver by night? That’s what Pasco County deputies claim after pulling over Kristi Steuber earlier this week. According to a police report, Steuber was pulled over in Pasco County for speeding when deputies detected an odor of alcohol on her breath after making contact. Deputies claim Steuber attempted to explain where she had been and what she was doing but simply mumbled when asked. As is standard protocol when an officer has reasonable suspicion of DUI, Steuben was asked to exit the vehicle to perform field sobriety exercises. This is when things went downhill quickly for Steuber according to the police. Police allege Steuber had nothing on from the waist down when she exited her car and didn’t acknowledge this fact until asked twice to put on some pants. As one could imagine, based at least in part on the allegation of a breezy booty and her mugshot, Steuber was arrested for DUI and later is alleged to have blown a .135 and .137.

There are certain DUI cases that make DUI lawyers cringe. This, my friends, is one of them. Compared to many DUI’s I’ve handled, this breath test isn’t remarkable. As most know, in Florida, to be convicted of driving under the influence the State must prove the defendant drove or was in actual physical control of a vehicle and while doing so was either under the influence of alcoholic beverages or a chemical substance or a controlled substance to the extent that his or her normal faculties were impaired or had a blood or breath-alcohol level of .08 or more. The .13 breath test Steuber is alleged to have given, though above the legal limit isn’t a rockstar level. The struggle for her attorney will be the issue of pants. Having pants on when pulled over by the police is helpful when trying to convince them or a jury that the driver was sober. Obviously no pants isn’t proof positive that one is impaired, however one could safely say most prosecutors would rely heavily on this fact while making their case. Free legal advice- when driving home from the bar, wear pants.
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The Tennessee Supreme Court ruled last week that one suspected of driving under the influence can still be arrested in spite of passing field sobriety tests, a decision overruling a case from 2012 that ruled when a motorist passed six field sobriety tests that he could NOT be arrested. As most assume, field sobriety tests can be the deciding factor as to whether a motorist goes to jail for DUI or whether they go home. While this is generally correct, probable cause for a DUI arrest is generally established by observation of both field sobriety tests and other signs of impairment.

As with any arrest there must be sufficient probable cause to make the arrest legal within the bounds of the Fourth Amendment. Specifically for a DUI arrest it is often the case that the officer detects, upon contact with the motorist, certain impairment indicators that give rise to the officer’s reasonable suspicion that the motorist is committing the crime of DUI. Generally if the officer sees that the motorist has bloodshot and watery eyes, smells of alcohol, has slurred speech amongst other factors, the officer will have reasonable suspicion to request the individual to perform field sobriety tests. If the motorist agrees to perform field sobriety tests and performs in an insufficient manner, the officer will have probable cause to make an arrest. What makes this Tennessee ruling questionable is that even if a motorist passes the exercises put in place by the State to determine impairment, he could still take a ride to the poke. In other words, now it seems that in Tennessee if Officer Friendly subjectively thinks that a motorist is impaired, in spite of sufficient field sobriety test performance, he can now make an arrest. What’s unnerving is that though one can pass objective tests in place to measure impairment and still get arrested, assuming a proper detainer, I know of no case in which one has failed field sobriety tests and a court has found that probable cause did not exist for an arrest for DUI.
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Video of former Tampa Police Captain Curtis Reeves, Jr. shooting and killing local man Chad Oulson will be viewed in open Court according to Pasco County Circuit Judge Pat Siracusa. Reeves Jr. has been charged with second-degree murder for his actions. Several media outlets have requested footage of the video. Pasco County Prosecutors sought a Judicial order prior to turning over footage of the alleged second degree murder citing Florida Statute 406.136, a statute that makes it a third degree felony to turn over footage of a “killing of a person” to a third party not enumerated within the statute. The Statute was created to protect the families of victims from further emotional damage.

In this instance, the Florida statute’s restrictions tend to conflict with Section 21 of Florida’s Constitution. Section 21 states, “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” This Florida Constitution clause is in accord with the Sixth Amendment of the United States’ dictate that a defendant is entitled to a “public trial by an impartial jury.” Traditionally this clause has been interpreted to allow for spectators to observe Court proceedings unless the excess publicity would serve to undermine the defendant’s right to due process.” Sheppard v. Maxwell, 384 U.S. 333 (1966).
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Polk county resident David Scott Schultz, 32, delayed his arrest last week when Polk County deputies attempted to serve a search warrant on his residence for suspicion that Shultz was using his home as a marijuana grow house. According to deputies, after knocking on Shultz’s door and speaking with him he refused to allow them in. After some time went by deputies smelled the odor of marijuana and ultimately learned that Shultz simply wanted to smoke one last joint before being taken in to custody. Shultz eventually opened the door and was taken in to custody without incident. Shultz was arrested on charges of maintaining a dwelling for drug manufacturing, cultivation of cannabis, possession of cannabis with intent to sell and possession of drug paraphernalia.

Mr. Schultz has pretty run of the mill Florida drug charges though he could benefit from the help of a Polk county criminal lawyer. Shultz’s charge for being in possession of a dwelling used for drug manufacturing is no doubt his biggest concern when defending against these charges. This Florida crime is a second degree felony punishable by up to 15 years in the Florida Department of Corrections. Florida statue 893.1351(2) makes it a crime for a person to knowingly be in actual or constructive possession of any place, structure, or part thereof, trailer, or other conveyance with the knowledge that the place…. will be used …. for the sale of a controlled substance, as provided in s. 893.13; or for the manufacture of a controlled substance intended for sale or distribution to another.
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19-year-old Canadian pop star Justin Bieber was arrested early this morning by Miami Beach police for allegedly driving with an expired driver’s license, DUI, and resisting arrest without violence, all misdemeanors. According to Officer Medina’s Complaint/Arrest affidavit Bieber was observed in a yellow Lamborghini racing or at least “start a contest of speed (drag racing) from a start” with an accompanying red Lamborghini. Officer Medina claims two large black SUVs were following the Lamborghinis in an effort to block off traffic to facilitate the race. Upon detainer Bieber is said to have questioned why he was stopped while emanating an odor of alcohol, was slow and deliberate in his movements and had bloodshot eyes. After becoming rather nasty with responding officers Bieber is alleged to have resisted the investigation leading to his arrest. In spite of his arrest Bieber is said to have advised that he was not drunk and that he was coming back from recording music at a studio. Officers were not “beliebers” and arrested the pop prince anyway.

I’m not a fan of Justin Bieber. I don’t know what he sings but even if I did I don’t think my taste in music is the same as my 6 year old niece’s or that of a 15 year old high school sophomore’s. I’m sure he’s great in his own right and if he wants to gift me a few million who am I to be rude and say no? All that said, I’d love to defend him on his recent snafu as this case may present some issues to huff and puff over. Will the huffing and puffing blow the case down? Probably not but it could provide leverage to free The Biebs on lesser charges. Lets start with the resisting arrest without violence charge.
Officer Medina claims in his Complaint/Arrest Affidavit that Bieber was pulled over for “drag racing with the other Lamborghini.” In other words, his reasoning for detaining “The Biebs” was reasonable suspicion that a crime had been committed. Upon detainer Officer Medina asked the Canadian sensation to step out of his car and allow for a safety pat down. Officer Medina tried to effect this brief search for weapons and contraband and Bieber bucked, leading to his pulling his arms away after Officer Medina elected to cuff Bieber, likely more so for being a smartass than anything else.

In Florida to support a finding of guilt for the offense of resisting arrest without violence, “the state must show: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of that lawful duty.” See S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995). See also Jay v. State, 731 So.2d 774, 775 (Fla. 4th DCA 1999). In this case the State would argue that the Officer was engaged in a legal duty of his racing investigation and Bieber wouldn’t submit to a brief pat down. J-Beebs then pulled his arms away when the pretty bracelets came out. It’s not necessary that the underlying criminal activity providing the basis for the arrest result in a charge or conviction; it is only necessary that the officer has a founded suspicion of criminal activity to make the detention. See State v. Dwyer, 317 So.2d 149, 150 (Fla. 2d DCA 1975). In other words, the “[f]acts constituting probable cause [for an arrest] need not meet the standard of conclusiveness and probability required to support a conviction.” See Seago v. State, 768 So.2d 498, 500 (Fla. 2d DCA 2000). Officer Medina had reasonable suspicion to investigate the racing charge. As he was doing so, Bieba Baby resisted.
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Ah the infamous DUI charge. It’s the crime that can happen to anyone, anywhere, anytime without regard for who you are or what your criminal history is. Our firm has represented all walks of life on DUI charges and as a general rule the individual has very little if any criminal history. Quite simply the most prevalent scenario is the one in which an individual has an evening out, drinks a bit, and miscalculates his or her ability to drive their vehicle without impairment. That said, the individual shows some sign of impairment as they drive or violates a traffic law and gets pulled over, ultimately to go to jail for a DUI arrest. Be that as it may, one of the most common questions or concerns we hear is whether or not an individual is eligible for a hardship license. The short answer is generally yes, with some exceptions.

Assuming the DUI charge is a person’s first DUI arrest they will have a few options with the Department of Highway Safety and Motor Vehicles (DHSMV), some much more appealing than others. Until last year an individual had two DHSMV options if they were charged with a DUI in Florida; challenge the suspension through a formal or informal review hearing or don’t. Now an some individuals charged with DUI in Florida can elect to waive their review hearing and instantly get a hardship license. Here are the options as they currently stand in Florida.
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