Stalking Injunction Res Judicata

In math, two plus two always equals four. If you add it again in the calculator, the answer doesn’t change. However, that’s not the case in law. When the judge, jurors, lawyers or witnesses change, the same facts often result in different outcomes. But do you always get a second chance to argue an issue if you lose the first time? Well, it depends. Res judicata might interfere. The Fourth District Court of Appeal discusses a second chance at a stalking injunction in Klement v. Kofsman o/b/o A.K., a child.

Res Judicata

Res judicata sounds confusing, but the idea is simple: you can’t get two bites at the same apple. Or, it is what it is. Both sayings fit. Res judicata bars parties from relitigating claims previously decided by a final adjudication on the merits, though it doesn’t apply at all times. For res judicata to apply, there must be four identities: (1) identity of thing sued for, (2) identity of cause of action, (3) identity of persons and parties to the action, and (4) identity of quality or capacity of persons for or against whom the claim is made.

Here’s an easier way to look at it. So if you file for an injunction against someone and lose at a final hearing, you can’t file the same injunction for the same reason against the same person again hoping for a better outcome. There’s no do over. It just is what it is.

Stalking Injunction Hearings Before the Trial Judges

Kofsman files a petition for a stalking injunction against a neighbor Klement. At a final hearing, the judge denies the petition for a stalking injunction. Klement wins on the merits.

Months later, Kofsman files another petition for a stalking injunction against Klement. This time, a new judge hears the second petition. Even though the petition includes a couple different new issues, it mostly recounts the same old matters as the first petition.

Although injunctions and restraining orders involve criminal issues like stalking, they’re bound by civil procedure. There isn’t a double jeopardy issue like in criminal court. That’s why Klement files a motion to dismiss arguing res judicata. The second judge denies the motion and rules for Kofsman at the final hearing. She enters an injunction so Klement appeals.

The Fourth District Dissolves the Injunction on Res Judicata

Because the first judge ruled on the same exact issues, the second judge couldn’t now find them stalking or harassment. Res judicata bars it. This doesn’t stop Kofsman from filing another petition against Klement. He just has to raise new facts. Here, the judge could only look at the new facts.

But that’s not how the second hearing plays out. Rather than admit proof at the hearing of the new facts raised in the petition, Kofsman just brings up the same old facts again. Then when ruling, the second judge says that she’s not basing her ruling on the new facts in the petition. She decides this case on the old ones.

Therefore, the result is obvious. The second judge should have granted the motion to dismiss on res judicata because Kofsman proves nothing new at the final hearing. The old grounds had been decided and can’t support the injunction. The petition as presented has to be denied. Thus, the Fourth District vacates the injunction.

Read the Klement v. Kofsman o/b/o A.K., a child opinion here!

If you’re curious to learn more about injunctions, check out my page on Injunctions and Restraining Orders.

Talk to an Experienced Florida Criminal Defense Attorney!

For years, Mr. Brown worked with a family law firm handling injunctions for their clients. He’s filed them and he’s defended them. He’s even defended a client facing both an injunction and criminal charges at the same time.

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Diminished Capacity

Intent is a big issue in criminal defense. It means the difference between Murder and Manslaughter, or a Battery and innocence. Sometimes, the evidence is obvious. Maybe you tripped and bumped into someone, rather than intentionally touching him. But when it takes an expert to explain intent, it gets more complicated. Can a mental health expert testify that someone lacked intent due to a diminished capacity? The Fourth District Court of Appeal discusses this matter in T.E.B. v. State. Also, it considers whether it can reverse a conviction if someone didn’t commit a crime as a matter of law.

Attempt to Raise Diminished Capacity at Trial

The State of Florida charges T.E.B. with Attempted First Degree Murder, Robbery and two counts of Felony Battery after he attacks multiple people while living in a juvenile facility. Because T.E.B. is a minor, Florida hides his full name. In his defense, T.E.B. challenges the Attempted First Degree Murder charge claiming that he lacks the mental ability to commit this crime. He raises a diminished capacity argument.

In Florida, the law requires you to act with premeditation to commit First Degree Murder. It takes a greater degree of intent than other offenses where people die. Check out my page discussing Murder charges to get a better idea about the different intents needed to prove these crimes.

T.E.B. plans to call a neuropsychologist to say that his sickle cell trait and mental illness prevent him from forming the required premeditation. In response, the State of Florida files a motion to keep this evidence out. The judge agrees with the State of Florida and bars T.E.B. from admitting this testimony from the doctor. At trial, the judge finds T.E.B. guilty on all four counts. Then T.E.B. appeals.

Limited Grounds for Arguing Diminished Capacity

In Florida, most people plead not guilty when charged with a crime. However, they can be found not guilty by reason of insanity. Rule 3.216 talks about when and how to handle matters when insanity is an issue.

Unfortunately, for T.E.B., the Fourth District relies on the case law discussing this rule in relation to diminished capacity defenses. These cases keep out the doctor’s testimony on diminished capacity because T.E.B.’s lawyer didn’t file a notice under Rule 3.216 asking him to be found not guilty by reason of insanity.

Florida law says that these issues can become very confusing to juries so it limits the times when someone can raise a mental health defense. You must commit to an insanity defense to argue diminished capacity. Evidence of medication issues, epilepsy, infancy or senility are exceptions. Yet, T.E.B. never filed that notice. His diminished capacity dealt with issues outside the exceptions so the judge did the right thing by keeping this evidence out of the trial. The Court affirms the conviction.

Felony Battery Enhancement

T.E.B. also faces two Felony Battery counts. In Florida, you can be charged with a Felony Battery if you commit a simple Battery and have been convicted of Battery in the past. For more info on Battery offenses, check out my page on Assault and Battery. The need for conviction is very important.

Although T.E.B. never challenges his Felony Battery history at trial, he does on appeal. For the first time, he argues the evidence is insufficient to prove a prior offense. He claims his lawyer provided ineffective assistance of counsel and the Fourth District agrees.

The Felony Battery law enhances the charge if you have been convicted of Battery in the past. But the rules for prosecuting minors differ from the rules for prosecuting adults. Florida law doesn’t convict minors. It finds them delinquent. The statute even says that a delinquent act is not a conviction. Because a prior judge found T.E.B. delinquent, the Fourth District tosses out the conviction for the Felony Battery charges.

Read the T.E.B. v. State opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Pleading to a Crime You Didn’t Commit

Can you plead guilty to a crime you didn’t commit? Unfortunately, you can. But what happens if you do? Are you stuck with that conviction on your record? The Second District Court of Appeal addresses this in Patlan v. State.

Patlan Pleads to Sexual Predator Registration Violations

In Florida, Sex Offenders live by different rules than any other resident. They can’t live wherever they want. For obvious reasons, they can’t visit elementary schools and a bunch of other places. For a run down on Registration Offenses, check out my page on Sex Crimes.

Here, Patlan pleads to two Registration Offenses for Sexual Predators. During the plea colloquy, his lawyer tells the judge that there’s a factual basis for this plea. Interestingly, Patlan isn’t a Sexual Predator; so, in reality, there’s no basis for the plea.

After the judge sentences him, Patlan realizes the mistake. On appeal, he argues that his lawyer was ineffective by pleading him to a crime he didn’t commit.

Court Reverses Pleas to Crimes Patlan Didn’t Commit

Courts rarely reverse cases when the lawyer doesn’t object. But they do when there’s fundamental error. Fundamental errors reach down into the foundation of the case so the Court can fix them even when lawyers fail to object. In this case, the Second District sees the fundamental error.

The record makes it clear that Patlan plead guilty to crimes he didn’t commit. It’s not a factual issue. There’s zero chance he’s guilty.

Legally, he’s not a Sexual Predator. Therefore, he’s not bound by the rules for Sexual Predators. Accordingly, he didn’t commit a crime when he failed to follow the rules for Sexual Predators. Thus, the Court reverses his convictions.

Read the Patlan opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Burden of Proof at Injunction Hearing

Most injunction hearings become a he said, she said. Often no one else sees what happens. Still, the petitioner must show a preponderance of the evidence. Although a lower standard, the one on one nature makes the burden of proof tough to meet. Judges consider the credibility of the witnesses to figure out if the burden has been met. But what if the judge finds both witnesses in a he said, she said credible? The Fifth District Court of Appeal looks at that issue in Rollins v. Rollins.

Injunction Hearing

Florida offers five types of injunctions. To read about them, click on my page about Injunctions. Here, Ms. Rollins seeks a Sexual Violence Injunction against Mr. Rollins. At the final hearing, the judge says that she finds both parties credible in this he said, she said. But Ms. Rollins does not meet the preponderance of the evidence standard. The judge rules against Ms. Rollins and denies a permanent injunction. She then denies a motion for reconsideration and a motion for rehearing. Thus, Ms. Rollins appeals.

Burden of Proof and Credibility at a Hearing

On appeal, Ms. Rollins argues that the judge found her credible. Therefore, she met her burden of proof. Unfortunately, the burden of proof and credibility are two different issues. Also, she misses the boat on how an appellate court looks at this matter.

First, the burden of proof is a party’s burden to show the charge. Because Ms. Rollins filed the petition, she needed to meet the burden. In a civil case, the burden of proof is the preponderance of the evidence. Simply put, that’s the greater weight of the evidence. It just means more.

Next, credibility means whether the witness is believable. A judge may find witnesses for both sides credible. Or neither credible. Surely, it depends upon how and what the witnesses say.

Lastly, the Fifth District does not hear the matter anew. It does not hear evidence. It does not reweigh the evidence. On appeal, it looks to see whether competent substantial evidence supports the judge’s decision. This is called the standard of review. The standard of review changes depending upon the issue on appeal.

Burden of Proof and Standard of Review Applied to Ms. Rollins

Basically, the Fifth District explains that Ms. Rollins confuses these three issues. Despite Ms. Rollins testifying credibly, Mr. Rollins did so too. However, her credibility is not the issue before either court. Initially, she either meets the burden of proof or she doesn’t. The judge rules that she doesn’t.

Now the Fifth District must consider whether the competent substantial evidence shows the judge ruled properly. It looks at other cases where equally credible witnesses conflicted with each other at the hearing. In those examples, the courts found the petitioner failed to meet its burden. Following those cases, the Fifth District affirms the denial of the injunction.

Read the Rollins v. Rollins opinion here!

Applicability to Criminal Cases

Although Rollins involves a civil injunction matter, these concepts apply to criminal cases too. Judges consider whether the evidence meets the burden of proof at motion hearings and trials all the time. Credibility matters, but it’s not the legal standard. Nothing matters more to the trial judge than the burden of proof.

Talk to an Experienced Florida Criminal Defense Attorney!

For years, Mr. Brown worked with a family law firm handling injunctions for their clients. He’s filed them and he’s defended them. He’s even defended a client facing both an injunction and criminal charges at the same time. Because these matters are especially tricky, call Mr. Brown as soon as you can!

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Judge Enforces Negotiated Plea

Although judges often decide sentences, they accept negotiated pleas too. In Florida, the prosecutor can agree to a deal with you to resolve your case. The State can make deals the judge can’t offer because it can go below minimum sentences. Then the judge enforces the terms of the agreement like a contract. But what happens if someone claims the judge changes the deal? See how the Third District Court of Appeal responds in Cebez v. Daniel Junior, etc., et al.

Negotiated Plea

Cebez negotiates 5 years of probation followed by 18 months of prison after committing insurance fraud. As a special condition, he has to pay restitution of $174,770 to the Fireman’s Fund Insurance Company. However, if he violates, he faces 25 years in prison.

Cebez finishes the 5 years without issue, so the judge enters an order ending the supervision. Yet Cebez refuses to report to prison. The prosecution files a motion to enforce the plea agreement. At the hearing, Cebez argues that the court has no jurisdiction over him because his probation ended. The judge grants the State’s motion because the prison sentence was not a condition of probation. Cebez surrenders to prison and files a Writ of Habeas Corpus arguing that the termination of probation ended his sentence. This writ would free him from jail.

Plea Agreement is a Contract

The Third District rules against Cebez and makes him serve his sentence. It treats the negotiated plea agreement as a contract. Although the judge terminated probation, the judge did not sentence Cebez to prison as a condition of probation. According to the agreement, the judge sentences Cebez to probation followed by prison. Once the probation ends, prison begins. The judge has jurisdiction to enforce the contract. Therefore, Cebez must serve the 18 months in prison.

Read the Cebez opinion here!

Talk to an Experienced Criminal Defense Attorney!

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you best defend yourself! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

True Split Sentence Violation

When a judge sentences you to probation, there’s always a chance you violate. If you violate, you face jail or prison. To scare, sometimes a judge offers a suspended sentence. In a suspended sentence, the judge lets you know the punishment when you violate. It suspends the tough part for those who finish the easy part. Florida courts also call this a True Split Sentence.

For instance, a judge can sentence you to 1 year in prison suspended by the successful completion of 1 year of probation. That means that if you finish the probation clean, you never serve the prison. But if you violate, can the judge sentence you to more than the suspended sentence? Can the judge sentence you to 5 years in prison instead? The Fifth District Court of Appeal answers that in Dalton v. State.

Suspended Sentence, Violations and Modifications

In September 2016, Dalton pleas to Possession of Methamphetamine With Intent to Distribute and Simple Possession of Methamphetamine. Florida punishes these crimes by up to 15 and 5 years in prison respectively. Then the judge sentences her to 5 years of prison suspended by the successful completion of 2 years of Community Control. So if Dalton finishes Community Control without issue, she never serves any prison. To learn more about how Community Control varies from Probation, check out my page here!

Unsurprisingly, Dalton violates two months later. At a hearing in December 2016, the judge sentences her to 5 years in prison. While in prison, she enters a youthful offender basic training program. This program is like a boot camp. In exchange, the judge agrees to modify her sentence upon successful completion.

In March 2018, the judge converts Dalton’s prison sentence to probation. Significantly, he says he may “impose any sentence which it might have imposed before placing you on probation.” Unfortunately, after years without issue, Dalton admits testing positive for methamphetamine in January 2021. Thereafter, the judge sentences her to 5 years in prison for Possession and 11 years in prison for Possession with Intent. She files a Motion to Correct Sentence, which the judge denies.

Initial Sentence is a True Split Sentence

Dalton argues that the judge cannot sentence her to more than 5 years in prison. She claims he’s bound by the True Split Sentence. Because he suspends 5 years, that’s the max. The State claims that the judge can sentence her to up to 15 years because she accepts the youthful offender modification of her sentence. This change opens her up to the 15 year max.

The Fifth District disagrees with the State of Florida. It realizes the importance of the True Split Sentence. It sees that the terms never really change. First, the judge issues the True Split Sentence. Next, it sends Dalton to prison to the term of the suspended sentence. Then it releases her to finish the term out of custody. Most importantly, the judge says during the modification that he may “impose any sentence which it might have imposed before placing you on probation.” 5 years in prison is the most he could have sentenced Dalton under the suspended sentence of the True Split Sentence. Therefore, the court must change the 11 years to 5 and Dalton gets credit for all time served in prison.

Read the Dalton opinion here!

Talk to An Experienced Florida Criminal Defense Attorney

Violations of Probation become tricky because there are lots of rules to consider. Mr. Brown has handled hundreds of these and even argued lots of Final Violations of Probation hearings. Upon arrest, you should speak with him immediately to see if he can help you fight the allegations.

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown to see if he can help you with your case! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Leaving the Scene of an Accident

Cars crash all the time, especially in South Florida. When they do, drivers must stop and share their name, address and registration info. Upon request, they must show their driver’s license too. If the crash injures someone, the driver must provide reasonable assistance if the injured person requests it or treatment is necessary.

Sometimes, people leave the scene of an accident without sharing their info and offering help. If so, they face arrest for Leaving the Scene of an Accident. But what happens if you crash into one car, two people get hurt and you leave? Do you face one count of Leaving the Scene of an Accident or two? The Florida Supreme Court answers this question in State v. Johnson.

Johnson Case

The State of Florida charges Johnson with four counts of Leaving the Scene of an Accident after he flees from a three-car crash, which kills one person and injures three others. A jury finds him guilty of all four counts. After the trial, the judge dismisses one the counts because two victims were in one car.

On appeal, Johnson argues that Double Jeopardy prevents him from being convicted of multiple counts of Leaving the Scene of an Accident. The law says that the driver of a vehicle involved in a crash shall immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and shall remain at the scene of the crash until the driver shares information and helps the driver. Here, only one crash happened. So Double Jeopardy prevents the State from convicting Johnson three times for the same crime.

The State argues for a per victim basis, not per crash basis. That means that they can convict Johnson for four counts because four people got hurt. It doesn’t matter that he left one crash.

The Florida Supreme Court claims this an issue of statutory interpretation. Then it finds the Leaving the Scene of an Accident statute a victim-centric statute. Further, the duty to render aid statute creates a duty to each victim. It doesn’t matter that the statute punishes the leaving and that a person only leaves once. It also requires the driver to help each victim. Therefore, the jury justly convicted Johnson of the four counts. This per victim approach is the right method and does not violate Double Jeopardy.

Read the Johnson opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

These aren’t the type of cases that every lawyer can properly defend. They’re very nuanced and require someone with an expertise in this field. Fortunately, Mr. Brown worked in a special unit as an Assistant State Attorney where he only investigated and prosecuted people for driving deaths and Leaving the Scene of an Accident with Death.

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you best defend yourself! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Proof Evident, Presumption Great

Normally, when you’re arrested for a crime in Florida, you’re entitled to bond. However, if you’re arrested for a crime punishable by death or life in prison, judges can deny you bond. To do so, the law requires that proof of guilt is evident or the presumption is great. Commonly, people shorten the phrase to Proof Evident, Presumption Great. Judges consider this at an Arthur Hearing. But should they consider it at First Appearance? The Florida Supreme Court answers in Thourtman v. Daniel Junior, etc. et al.

First Appearance at Magistrate Court

In Florida, everyone must appear before a judge within 24 hours of arrest. It’s called First Appearance, or Magistrate Court. Check out Rule 3.130. At Magistrate Court, a judge looks at a police report to see if there’s probable cause to hold you in jail. That means the judge looks for some proof of all of the elements of the listed crime. The judge doesn’t hear testimony or look at evidence. It must come from the police report.

If a judge finds probable cause, then the judge can set a bond amount. If there’s no probable cause and the State of Florida fails to correct, then you’re set free. The judge can’t restrict your release.

In reality, Magistrate Court parallels a fast food drive through. Lots of people waiting in line for their turn. There’s little prep work. It’s just a short hearing that lasts a couple minutes at most. Judges don’t have time to pay each case a ton of attention. They rarely take testimony. They move onto the next one.

Arthur Hearing to Find Proof Evident, Presumption Great

Unlike a First Appearance at Magistrate Court, you request an Arthur Hearing. It’s not automatic. You have to file a motion. Once you file a motion for an Arthur Hearing, the burden shifts to the State of Florida to show Proof Evident, Presumption Great. The Florida Constitution requires this standard. If a judge finds Proof Evident, Presumption Great, then the judge can hold someone without bond. That said, it’s similar to a regular bond hearing with that extra factor.

While Magistrate Court moves like a drive through window, Arthur Hearings parallel fine dining. Judges schedule the hearing in advance. One case gets attention in detail. Prosecutors share evidence with the judge and defense before the hearing. The judge reviews evidence and testimony. Sometimes they take hours to complete.

Thourtman’s Robbery Firearm First Appearance

Police arrest for Thourtman for Robbery Firearm. Robbery Firearm defendants face life in prison. Thus, the judge can hold Thourtman without bond. Check out my page on Firearm Offenses to learn more about how Firearms increase punishments.

At First Appearance, the judge looks at the police report and holds Thourtman no bond. There’s no Arthur Hearing or finding of Proof Evident, Presumption Great. Weeks later, Thourtman files a motion for an Arthur Hearing. At the hearing, the judge finds Proof Evident, Presumption Great that Thourtman committed Robbery, but not that with a firearm. Robbery isn’t punishable by life so the judge must set bond. Bond is set at $25,000.

How Did this Get to the Florida Supreme Court?

If the case wasn’t over, how did it get to the Florida Supreme Court so quickly? Interestingly, the day before the Arthur Hearing, Thourtman files a petition for Writ of Habeas Corpus. A writ lets an appellate court look at certain urgent issues. Check out my page on Writs and Petitions to learn more about how you file a Writ.

In this Writ, Thourtman challenges the ruling at First Appearance. It doesn’t matter that a judge held an Arthur hearing the next day. The Third District Court of Appeal can hear a moot issue when it’s capable of repetition, yet evading review. Undoubtedly, Thourtman isn’t the first or last person in this situation. Furthermore, the Third District rules opposite to the Fourth District Court of Appeal on this matter, which lets the Florida Supreme Court sort out the answer.

Must a Judge Hold an Arthur Hearing at First Appearance?

Article I, section 14 of the Florida Constitution says that every person charged with a crime shall be entitled to release unless there’s Proof Evident, Presumption Great of a crime punishable by life or death. Rule 3.130 makes everyone see a judge within 24 hours of arrest to sort out release conditions. In these First Appearance hearings, judges ignore the Arthur Hearing standard. Therefore, the conflict is obvious. Will the Florida Supreme Court require fine dining at the drive through window?

Nope. The Florida Supreme Court allows judges to defer on the Arthur Hearing issue at Magistrate Court. The judge does not need to find Proof Evident, Presumption Great at First Appearance to hold someone without bond.

From a legal standpoint, the Court points out that the right to pretrial release isn’t lost until a judge rules against it. Also, requiring Proof Evident, Presumption Great at First Appearance creates a perverse outcome. Under the same logic, the police could not even arrest someone unless a judge found Proof Evident, Presumption Great in advance. It would become impossible to arrest people for life or death crimes without a prior court order. From a practical standpoint, the Court explains how difficult it would be to require such a highly specialized hearing to happen so soon after arrest.

Read the Thourtman opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

Just because you’ve been arrested, it doesn’t mean the State will file charges. The State reviews evidence, talks to witnesses and gathers proof. Without proof, the case ends quickly. A good lawyer can help you avoid charges. Sometimes, filing charges isn’t in everyone’s best interest.

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you best defend yourself! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Do Domestic Violence Injunctions Last Forever?

Dating and marriage can be tough, especially during an argument. When you live together, it’s not as easy to separate until you become calm enough to move on. Unfortunately, this tension leads to violence sometimes and Domestic Violence Injunctions help settle things down.

Domestic Violence Injunctions force you to avoid someone. The idea is that upset people make bad decisions. Therefore, keep the upset person away until the person isn’t upset. Time heals all wounds.

Although the dust might have settled long ago, these injunctions come with rules. For instance, you can’t possess a gun in Florida while a Final Injunction is in effect. So then how long is enough? Do Final Injunctions last forever? The First District Court of Appeal takes a look at this in Labrake v. Labrake.

Temporary vs. Final Injunction

Courts issue two types of injunctions: temporary and final. If you write a petition for Domestic Violence Injunction that follows the rules, they issue a temporary one. This order protects you like a Final Injunction, but it only lasts until the judge holds a hearing. The idea is that the judge would rather know that you’re safe right away in case a harmful person is after you.

If the judge rules for you at the hearing, then the judge enters a Final Injunction. It can last for as short or long as the judge decides. Sometimes, they last forever. If the judge rules against you, the Temporary Injunction ends.

For more information on Domestic Violence crimes, Domestic Violence Injunctions and the other four injunctions, visit my page on Domestic Violence.

Court Entered Domestic Violence Injunction Over 15 Years Ago

In 2003, a judge grants a Final Injunction against Michael Labrake. At a hearing, the judge finds that he abused his then wife. In 2020, Labrake asks a judge to dissolve the Final Injunction. Labrake testifies that he hasn’t contacted his ex-wife since the injunction and did not wish to contact her now. His ex-wife says that Labrake violated the injunction in 2004 or 2005, but hasn’t since. Also, she’s still afraid of him and mentions the surgeries she needed from the abuse. The judge denies the request and Labrake appeals.

Change in Circumstances Needed to Dissolve Final Injunction

The First District looks at these appeals through the abuse of discretion standard. That’s a tough standard to meet. Basically, the Court defers to the trial judge unless it made a big mistake. However, whether the evidence is legally sufficient to dissolve an injunction is reviewed de novo. That’s a much easier standard to meet. Instead, the Court gets to look at the facts as if it’s the trial judge.

First, it confirms Labrake can file a motion to dissolve. The Court says that either party can move to modify or dissolve a Final Injunction at any time. Next, it looks at how. To do so, you must show a “change in circumstances.” This means that the situation in place during the injunction hearing no longer exists so that continuation serves no valid purpose. The party against the modification must show an objective fear of becoming a domestic violence victim.

Both Labrake and his ex-wife agree that nothing has happened in over 15 years. She doesn’t claim any contact or acts of violence. This counts as a change in circumstances. Although the ex-wife may fear Labrake, this fear is subjective, not objective because nothing has happened for years. Accordingly, the Court dissolves the Final Injunction.

Read Labrake v. Labrake here!

Talk to an Experienced Florida Criminal Defense Attorney!

Domestic Violence cases require help right away. Just because you’ve been arrested, it doesn’t mean the State will file charges. The State reviews evidence, talks to witnesses and gathers proof. Without proof, the case ends quickly. A good lawyer can help you avoid charges. And a Final Injunction. Sometimes, filing charges isn’t in everyone’s best interest.

For years, Mr. Brown worked with a family law firm handling injunctions for their clients. He’s filed them and he’s defended them. He’s even defended a client facing both an injunction and criminal charges at the same time. Because these matters are especially tricky, call Mr. Brown as soon as you can to see if he can help you best protect yourself! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Drug Trafficking Home Search Reversed

When you send something through the mail, the police check it for drugs. They have units called Interdiction, which look for drugs sent in transit. If they find something illegal, they don’t tell you right away. Instead, they secretly track the package until it’s delivered. That way, they arrest the person who claims the package.

After they place you under arrest, the police often search you, your car or your home. But does taking a package into a home give the police probable cause to search it? The Second District Court of Appeal answers that question in State v. Smitherman.

Home Search After a Drug Trafficking Arrest

Customs Agents in a Chicago, Illinois airport search a package and believe they find MDMA inside. Next, they insert a tracker inside the package to see where it goes. Then they give it to police in Fort Myers, Florida to deliver to the listed address for Smitherman. Someone from the post office delivers the package and asks if Smitherman lives here. A woman answers the door, says that Smitherman lives there and accepts the package for him. Via drone, police watch Smitherman leave that home with the package and go to another home.

After Smitherman takes the package inside, police arrest him in the open garage. Then they get a search warrant to search this second home because Smitherman brought the package to it. Police arrest him for two counts of Trafficking in Phenethylamine, Possession of Oxymetholone and Possession of Cannabis. He files a motion to suppress the search of the second house, which the judge denies. A jury convicts him on all counts at trial and then he files this appeal.

Package Doesn’t Provide Probable Cause for Search Warrant

Here, the Second District looks at whether the police lacked probable cause to search the second home. It points out that the search warrant affidavit only talks about the first address. Importantly, police deliver the package to the first home. Further, the package was addressed to the first home. The affidavit doesn’t mention the second home besides Smitherman happening to bring the package there. There’s no probable cause to believe any drugs would be found there besides the package. It’s just speculation.

The State argues that the police had probable because they knew there would be drugs at the second home once Smitherman brought the package inside. However, the Court rejects that argument. Basically, that would allow home searches when someone goes straight home after a drug deal. It opens the door to too many searches. Therefore, the Second District excludes from evidence the trafficking amount of Phenethylamine, Oxymetholone and Cannabis found inside the second home. The Court reverses the convictions for these three counts.

Read the Smitherman opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

Drug Trafficking offenses can be extremely complicated cases. Because people take steps to hide their crimes, law enforcement uses wire taps, search warrants, hidden cameras and other tools to gather evidence. In this case, police use a drone and tracker. They also use confidential informants, some of whom get paid or work off their own charges, to negotiate drug deals.

Maybe you’ve been entrapped by a confidential informant. Someone else made you pick up that bag. Maybe the government obtained evidence against you unconstitutionally. There aren’t the types of cases that every lawyer can properly defend. They require someone with an expertise in this field. Fortunately, Mr. Brown prosecuted Drug Trafficking offenses in a special unit dedicated to these crimes. He has also defended people accused of Trafficking in Cocaine, Opiates and more.

The criminal defense firm Brown Legal PLLC operates from Fort Lauderdale, Florida, but regularly handles cases throughout South Florida and the rest of the state. Before it’s too late, talk to Mr. Brown and see if he can help you best defend yourself! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.