Domestic Violence Battery

Between the NFL and pop music, Domestic Violence cases often make the news. Battery, striking someone against his or her will, makes up a ton of those cases. But what’s the difference between Battery and Domestic Violence Battery? In Narvaez v. State, the Fourth District Court of Appeal looks at a case where the lawyers mix the two of them up at trial.

The Difference Between Battery and Domestic Violence Battery

There are two differences between Battery and Domestic Violence Battery: the relationship between the parties and the punishment. Indeed, there’s no relationship requirement for Battery. Anyone can hit anyone and be charged with Battery. On the other hand, Domestic Violence Battery occurs between a family or household member. It also must result in physical injury or death. Without being family or sharing a home, it’s a simple Battery.

Additionally, Domestic Violence Battery includes extra rules at sentencing. Under Florida Statute § 741.281, offenders must serve a minimum 1 year of probation and complete a batterer’s intervention course. Under Florida Statute § 741.283, some offenders must serve jail as well.

Jury Instruction Mix Up of the Battery Crimes

The State of Florida tries Narvaez on a bunch of serious felonies and Domestic Violence Battery. When the lawyers prepare the jury instructions, they use a Battery instruction instead of Domestic Violence Battery. Although the State charges Narvaez with Domestic Violence Battery, the jury convicts him of Battery instead. Thus, his lawyer files a Motion to Correct Sentence under Rule 3.800 that the judge ignores. So he appeals.

On appeal, the Fourth District agrees that the judge sentenced Narvaez for the wrong crime. Battery and Domestic Violence Battery are two different crimes. Clearly, the jury never found him guilty of the extra elements of Domestic Violence Battery. Therefore, the Court reverses his sentence. On remand, the State can decide to sentence him for simple Battery or empanel a new jury to try him for the proper crime.

Read the Narvaez opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

Just because you’ve been arrested for Domestic Violence Battery, 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 find the proof you need to avoid charges. Also, filing charges isn’t always in everyone’s best interest.

For years, Mr. Brown worked with a family law firm handling criminal cases for their clients. He’s prosecuted and he’s defended them. He’s even defended a client facing both a Domestic Violence Battery injunction and criminal charge 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.

Proving a Violation of Probation

Instead of prison, Probation gives you the chance to close your case without being locked up. In exchange, Probation Officers keep track of you while you’re free. They give you rules to follow and check on you often to make sure you follow them.

When you make mistakes, Probation Officers violate you. But this doesn’t mean you broke the law. The State of Florida must prove you violated the terms of Probation. In Weaver v. State, the Second District Court of Appeal holds the State to its burden during a Violation of Probation hearing.

Probation Orders

After Weaver pleas to Theft, the judge sentences him to 12 months of Probation and community service. The judge orders Weaver to pay some fines and court costs as a condition of Probation. Besides paying moneys, Weaver needs to meet with his Probation Officer as scheduled.

Appearing at Probation is a standard condition. All judges make you show up, normally once or twice a month. Although all cases include court costs, each judge chooses whether to make paying them a condition of probation.

Once Weaver breaks enough rules, his Probation Officer issues an affidavit. The Probation Officer alleges that Weaver failed to report three times, pay the fines and costs, and complete community service. Then the judge signs a warrant to bring Weaver to court to answer for the violations. These are called technical violations because Weaver made mistakes which weren’t new crimes.

Violation of Probation Hearing

At the Violation of Probation Hearing, sometimes called a Final Hearing, the State must prove the alleged violations. First, Weaver testifies. He admits he knew the terms of Probation. He admits that he had to pay moneys and report. However, he explains that he has no job and that right arm paralysis keeps him from driving. Also, he lacks a car and license. No one talks about the community service with him.

Next, the Probation Officer testifies. She confirms that Weaver knew and understood the terms of Probation. She says she knows he violated because the Probation office had no proof he did these things in the affidavit.

Once evidence closes, Weaver argues that he couldn’t afford the monetary conditions. He doesn’t mention the other issues. The judge finds no violation of the financial conditions. Nevertheless, the judge finds that Weaver willfully violated the reporting and community service allegations. Then the judge revokes Probation and sentences Weaver to 120 days in jail. He appeals.

Violation of Probation Law As Applied

The State bears the burden of proof in a Violation of Probation hearing. This means that if they don’t do their job, you win. They must prove the violation is substantial and willful by a greater weight of the evidence. An accidental violation won’t count.

Unfortunately, Weaver objects to nothing during this hearing so he must show fundamental error to win. Fortunately, revoking Probation for an unproven allegation is fundamental error. Here, the Second District shows how little the State proved.

First, the State never proved Weaver willfully failed to report. There was no evidence about how, when or why he failed to report to Probation. They just stated the simple fact that he failed to report. Second, there was no testimony about whether he did the community service at all. The order required he perform the service, not turn in proof. Just because he didn’t turn in any documentation, doesn’t mean he failed to do service. Therefore, the Second District reverses the conviction.

Read the Weaver opinion here!

Talk to An Experienced Florida Criminal Defense Attorney

Violations of Probation are considered sentencing hearings. Like with open cases, you can file motions to suppress and make the government prove the allegations. But your constitutional protections don’t extend as far as they do before conviction. Mr. Brown has handled hundreds of these and argued lots of full blown evidentiary Final Violations of Probation. 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.

Competency

The news reports wild crimes all the time. Sometimes people watch and wonder why a person would ever do such a crazy thing. Indeed, that guy must be nuts. Well….there’s a good chance he might be. Florida law calls this incompetence.

Basically, competency is the ability to rationally work with your lawyer. Florida defines competence in Florida Statute § 916.12 and sets out the procedure for filing the Motion for Examination. Competency matters because only competent people can participate in hearings. Thus, incompetent people cannot plea or go to trial. But what happens if a judge won’t address your client’s competence? The Fifth District Court of Appeal looks into this in King v. State.

How to Check if Your Client is Competent

If a lawyer reasonably thinks the client is incompetent, then Rule 3.210 lets a lawyer ask the judge for an examination. The judge should immediately set a hearing to determine the client’s mental condition. It should be held no later than 20 days after the motion is filed. Next, the judge will appoint two or three mental health experts to check the client. Of course, the Department of Corrections keeps a list of the approved doctors. These experts write reports for the judge and lawyers. If needed, they will testify at a hearing on the client’s competency.

What is Competency?

Rule 3.211 explains competence. Generally, experts look at whether the client appreciates the charges, appreciates the penalties, understands the process, shares facts with the lawyer, behaves nicely in court and testifies relevantly. If the person is competent, the expert reports this. If the person is incompetent, the doctor writes why. The report mentions the type of illness, treatments, whether the treatment is available, whether the treatment will work and how long it will take.

How is Competency Decided?

Under Rule 3.212, judges hold hearings to decide if someone is competent. The experts who met with the client testify to the judge. Then the judge rules based upon the evidence. If someone is found incompetent, then the judge enters an order to treat the client to restore competence. Sometimes, the parties agree to incompetence and there’s no need to hold a hearing.

How Long Does this Last?

Once the doctors restore the client, the case continues and the client participates as before. However, doctors can’t restore some clients. Under Rule 3.213, judges dismiss cases for incompetent clients. For misdemeanors, it takes 1 year. People with autism or intellectual disability require 2 years. Some crimes may be dismissed after 3 years. If a person remains incompetent for 5 continuous years, then the court shall dismiss a felony.

What if a Judge Won’t Rule?

In King, the lawyer filed a motion to have King evaluated. Unfortunately, the judge didn’t act. Therefore, the lawyer filed a Writ of Certiorari asking the appellate court to make the trial judge hold a hearing within 20 days. Check out my page on Appeals and Petitions to learn more about Writs of Certiorari. The Fifth District reads Rule 3.210, which says the hearing must be held within 20 days. Accordingly, the Fifth District issues an order making the judge hold the hearing within 20 days.

Read the King 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 to see if he can help you with your defense! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Zoom Sentencing Isn’t Fundamental Error

Because the Constitution guarantees you certain rights, Criminal and Civil courts differ greatly. Most people know the right to a lawyer, to confront your accuser and to remain silent. In civil court, you don’t have a right to a lawyer. You don’t have the right to confront your accuser. You don’t have the right to remain silent either. Most importantly in this case, you don’t have the same Due Process rights.

To protect some of these rights, the courts consider moments “critical stages” of a prosecution. Sentencing, when a judge decides your punishment, is a critical stage. Can a judge sentence you over Zoom and protect these rights? The Fourth District Court of Appeal looks at this issue in Brown v. State. No relation.

Remote Sentencing using Zoom to Videoconference

Brown pleads open to Robbery with a Deadly Weapon while wearing a Mask and Armed Burglary with an Assault or Battery while wearing a Mask before the pandemic begins. He scores 75.75 months at the bottom to life in prison. Unfortunately, the judge moves back Brown’s sentencing hearing and then the Covid-19 pandemic stops people from going to court.

Once Covid-19 begins, the Florida Supreme Court issues an order allowing judges to hold court over the internet. Eventually, it allows judges to complete Zoom sentencing hearings. Then, the judge sets Brown’s case for sentencing. Because Brown remains in jail, he appears over Zoom. Everyone else appears in person in court.

Initially, the judge asks if there’s any reason why this hearing should not happen. Neither Brown nor his lawyer object. Then the videoconferencing creates a bunch of issues.

First, Brown testifies while wearing a mask. People often tell him to speak up. Second, the video misses his face around half the time he speaks. During cross examination, the video shows the top of his head at times. Interestingly, Brown calls the prosecutor “Your Honor,” thinking he’s the judge. Third, the prosecutor plays the video from the robbery on a laptop that Brown can’t see from jail.

At the end of the hearing, the judge denies Brown’s request for a downward departure. He finds Brown remorseful, but sentences Brown to 15 years in prison. Accordingly, Brown appeals arguing that the Zoom sentencing violates his right to be present in the courtroom.

Judges Can Hold Sentencing Hearings Remotely……Maybe

Essentially, Brown argues that he has the constitutional right to appear in court at the critical stage of sentencing. Florida Rule of Criminal Procedure 3.180 says he “shall be physically present for sentencing.” Due to his absence, he could not talk in private with his lawyer or see everything that happened. Thus, the court violated his constitutional right to fully participate in his own defense.

The State responds that the Florida Supreme Court changed the rules for appearing because of Covid-19. Now, it allows for Zoom hearings. Also, the defense never complained that it had any of these issues in real time.

To begin its analysis, the Fourth District Court of Appeal notes that Brown’s lawyer did not object to the issues raised in the appeal. Therefore, the Court applies the fundamental error standard. Fundamental error is one of the toughest standards to meet. Normally, denying someone the right to appear at sentencing is fundamental error. However, Brown appearing by video in this case did not thwart fundamental fairness.

The Court relies on two recent cases. In Clarington v. State, the Third District Court of Appeal says that holding a remote violation of probation hearing does not violate the right to confrontation or Due Process. Because the court resolved a writ and the final hearing did not happen yet, it does not address Zoom and the right to counsel. In E.A.C. v. State, this Court allows a Zoom non-jury trial in a juvenile case. It notes that the rules for juveniles aren’t as strong as they are for adults.

Zoom Sentencing Does Not Violate Due Process As Applied to Brown

Here, the Court gives six reasons why the remote sentencing over Zoom did not violate Brown’s Due Process rights. First, neither Brown nor his lawyer requested confidential access to the other. Second, Brown, through his lawyer, had the meaningful opportunity to be heard. Third, Brown presented all the evidence he sought to produce. Fourth, even though he thought he was talking with the judge, Brown’s answers would not have differed. Fifth, the judge found Brown remorseful even though he couldn’t see Brown’s face. Sixth, Brown would not have been able to see the video even if he sat in the courtroom. Also, he lived the video so he knows what it shows. Thus, these practical reasons mean that Brown’s Due Process arguments don’t reach fundamental error.

Lastly, the Court certifies a question to the Florida Supreme Court about whether this is fundamental error. This means it’s asking for help. More importantly, it gives the Florida Supreme Court the ability to address the issue.

Read the Brown opinion here!

Check out my blog post on Zoom use during a hearing on the termination of parental rights to see the difference between the criminal and civil court approaches to videoconferencing.

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 to see if he can help you with your defense! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Waiver of Attorney Client Privilege

Although the Attorney Client Privilege keeps what you say to your lawyer a secret, it’s not absolute. If you share the secrets, then they’re no longer protected. To help their clients, criminal defense attorneys share information with the government all the time. We share information to reduce bond, fight the charges and win lower sentences. But what happens if your lawyer shares something that waives the Attorney Client Privilege? The Third District Court of Appeal writes about waiver in Nelson, et al. v. State of Florida.

Facts of the Nelson Case

Police arrest Mr. Nelson for the Armed Robbery of Ms. Jones. According to this NBC Miami article, he robs Ms. Jones on behalf of another woman. Three days later, someone murders Ms. Jones while Mr. Nelson remains in jail. Here’s where things become curious.

Mr. Nelson tells his lawyer Mr. Saiz that Ms. Jones is dead. To help Mr. Nelson, Mr. Saiz tells the State of Florida (State) that the robbery victim died. Mr. Saiz says his client learned this on the news. He hopes this would assist in Mr. Nelson’s defense. Evidently, the news had not reported the name of the victim.

In response, the State issues a subpoena to Mr. Saiz asking to produce audio and video recordings, billing and payment records and telephone numbers. Also, it seeks to depose Mr. Saiz. Obviously, he objects claiming work product and Attorney Client Privilege.

At a hearing, the State argues that it can’t obtain this information without undue hardship. Next, it argues that Mr. Saiz waived Attorney Client Privilege by sharing this with the State. Ultimately, the judge denies his objections so he files a Writ of Certiorari. In case you want to learn more about Writs of Certiorari, check out my page on Appeals and Petitions.

Work Product and Attorney Client Privilege Waiver

The Third District agrees that Mr. Saiz can file this Writ of Certiorari. But it rules that the judge did not err compelling Mr. Saiz to turn over this evidence. At best, the State seeks “fact” work product. This information doesn’t contain mental impressions from the lawyer.

However, the Third District takes a different approach to the deposition. Because the State argues waiver, it bears the burden of proof. Additionally, the State must prove the client waived Attorney Client Privilege. Although an attorney has an implied right to waive it, the hearing did not focus enough on the facts behind the waiver. Because the record does not support the waiver, the State cannot depose Mr. Saiz. Nevertheless, the Third District writes that the State can try to prove Attorney Client Privilege waiver at another hearing.

Read the Nelson, et. al. v. State opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

Not all lawyers can handle Attorney Client Privilege issues and Writs of Certiorari. They’re very nuanced and require someone who can persuasively convey your point using the written word. Fortunately, Mr. Brown has filed appeals in State Court, Federal Court and has even argued an appeal before the Florida Supreme Court.

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 an Mr. Brown to see if he can help you with your matter! Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Can Police Perform Probation Searches?

Criminal defense attorneys always deal with probation searches because judges sentence lots of people to probation. When a judge sentences you to probation, he or she gives you a bunch of rules to follow. Some are obvious. Don’t commit crimes. Don’t use drugs. Report to the probation office once a month. These rules don’t cross any of your constitutional rights. But what about allowing police and probation officers to randomly search you and your home at any time? The Fourth District Court of Appeal addresses this in Bowman v. State.

Trial Judge Orders Probation Searches

In 2017, Bowman pleads open to the judge to Possession of Cannabis over 20 Grams, DUI, Fleeing and Eluding and Reckless Driving. The judge sentences him to 3 years of probation. While on probation, Bowman picks up a new Felony DUI, Felony DWLS and Refusal in 2020. The judge sentences him to 1 year in jail followed by 2 years of drug offender probation. Interestingly, both probation orders allow random, warrantless searches and seizures of your person, then current location and/or residence and your vehicle by probation officers and/or law enforcement.

Analysis of Probation Searches

On appeal, Bowman challenges police’s ability to randomly search him and his home without a warrant. In Grubbs v. State, the Florida Supreme Court allows random probation searches because they’re necessary to ensure that you follow the rules of supervision. But it specifically bans police searches. They can’t perform random warrantless searches because you’re on probation.

The State of Florida argues that the United States Supreme Court overruled Grubbs in US v. Knights in 2001. Knights lets police search probationers’ homes when supported by reasonable suspicion of criminal activity and authorized by the condition of probation. Under the Conformity Clause of the Florida Constitution, Florida courts follow the interpretations of the United States Supreme Court with respect to the Fourth Amendment. Thus, police can search Bowman and his home.

However, the Fourth District sees that Knights only lets police search you and your home with reasonable suspicion of criminal activity. Here, the orders allow searches without any reasonable suspicion. Therefore, that requirement is unconstitutional and the Fourth District strikes it from the probation order.

Read the Bowman opinion here!

To read more about violations of probation, check out my page on Violations of Probation!

Talk to An Experienced Florida Criminal Defense Attorney!

Talk to Jared at Brown Legal PLLC about probation searches! The majority of cases include some sort of probation. Jared is an Ivy League educated former prosecutor with over 15 years experience!

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. Jared has represented people as far away as Pensacola and as far south as Key West. Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Standing in Domestic Violence Injunctions

Criminal defense attorneys deal with Domestic Violence injunctions because injunctions apply criminal laws through trials in a family court setting. In Florida, you can file five types of restraining orders to keep someone away from you. To learn more about them, check out my page on Domestic Violence. Of the five, only Domestic Violence injunctions require a special relationship between the parties. To file, you must prove a familial or household member relationship. In Alcon v. Collins, the First District Court of Appeal looks into a person’s standing to file this type of injunction.

Standing in General and Domestic Violence Injunctions

Simply put, standing defines the right to sue. For example, only the government may bring charges in criminal cases. Even if someone punched me, I don’t have standing to bring criminal Battery charges. The law reserves this right to the State of Florida.

To file Domestic Violence restraining orders, the State of Florida says that you must share a familial or household member relationship. The law defines it. It’s pretty wordy.

A family or household member means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Facts of the Case

Ms. Collins, while engaged to another man, becomes friends with Mr. Alcon. She visits Mr. Alcon in California on a couple occasions. After her last visit, she files a Domestic Violence injunction in Florida against him. On a related note, you can file an injunction wherever you live.

At the hearing, Mr. Alcon challenges her standing to file this type of injunction. Ms. Collins testifies that she’s engaged to another man and that nothing romantic happened with Mr. Alcon. She visited California and stayed with him looking for a job. Despite this testimony, the judge denies his objection. He finds standing and rules for Ms. Collins.

In California, Mr. Alcon files a Domestic Violence injunction against Ms. Collins. At that hearing, Ms. Collins again says the relationship was platonic, seeking to dismiss the case. Moreover, she says they weren’t living together. Eventually, her lawyer sees the conflict. If they were platonic and never lived together, how could Ms. Collins get a restraining order in Florida? When questioned by the judge, Ms. Collins says she chose a Domestic Violence petition because a clinic told her she should. Obviously, she filed it without help from a criminal defense attorney.

With this new testimony, Mr. Alcon files a motion in Florida, looking for relief from the injunction. Nevertheless, the judge denies the motion. Then Mr. Alcon appeals.

Familial or Household Relationship

Clearly, the Court rules that Ms. Collins lacks standing to file a Domestic Violence restraining order. Because she files the case, she bears the burden to prove standing. To meet her burden, she must show shared legal residence. Ultimately, legal residence is the concurrence of the fact and intention.

Despite this burden, she insists in both hearings that they never shared a familial or household relationship. Later, she testifies they weren’t living together in California. Accordingly, the Court uses her words against her. Because she swears they never resided together in the past as a family, she fails to prove legal residence. Therefore, they lack a familial or household member relationship and the Court dismisses the injunction.

Read the Alcon v. Collins opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

While we sympathize with Ms. Collins, this sort of mistake gets made by people who file motions without help from a lawyer. 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.

Zoom and Videoconferencing

For months, Covid-19 stopped courts throughout the country from operating normally. In 2020, people avoided indoor gatherings as disease and uncertainty swept the nation. This unwillingness to meet in person gave technology the chance to solve that problem in the courtroom. Whether Zoom, Microsoft Teams or Cisco’s Webex, technology paved the way for courts to handle matters without risking spread. But, does videoconferencing, rather than appearing in person, violate Due Process during a hearing to terminate parental rights (TPR)? The Third District Court of Appeal answers the question in the coincidentally titled I.T. v. Department of Children and Families.

Court in a Covid Reality

The Department of Children and Families (DCF) seeks to terminate a mother’s parental rights to four of her five children. I.T., to protect the mother’s identity, objects. At a final hearing held over Zoom, a judge terminates I.T.’s rights to all four children. Despite some glitches, I.T. participates in the hearing. On appeal, I.T. argues that videoconferencing in general, and specifically in her case, violates her constitutional right to Due Process.

To begin, the Third District discusses the state of Florida’s judicial system. Besides writing opinions, the Florida Supreme Court handles court administration for the whole state. Sometimes it issues rules about legal procedure. Sometimes it issues rules address practical situations.

To stop pandemic related delays in March 2020, the Florida Supreme Court authorizes the use of videoconferencing to conduct court. In May 2020, Miami Dade County authorizes the use of Zoom to conduct TPR hearings if the parties consent. Thus, the Court explains the ability to hold a hearing over Zoom.

Due Process Applied to Videoconferencing

Interestingly, I.T. never raises this issue to the trial court. Normally, parties must raise arguments to the trial court for an appellate court to consider them. Check out the discussion on Appeals to learn more about the process. However, this is a unique situation. Because the denial of Due Process creates fundamental error, I.T. can assert this for the first time on appeal.

At its core, Due Process affords people the opportunity to be heard at a meaningful time and in a meaningful manner. To evaluate a Due Process violation, the court considers three factors: the private interest affected, risk of erroneous deprivation of such interest and the government’s interest. Then, the court weighs all the factors to find the proper result.

First, the court says the private interest favor the mother. It knows the importance of taking away children from a parent.

Second, the risk of erroneous deprivation favors the DCF. You don’t have the absolute right to physically appear in court. Courts can hold probation violation and sentencing hearings over videoconference. If the connection fails, there could be an issue. But when I.T. experienced technical difficulties, the court stopped the hearing to help her. In this case, the court gave I.T. the chance to see the evidence, present argument, examine witnesses just as if she appeared in person.

Third, remote hearings serve the government’s interest. Congested dockets slow down justice. Nothing gets done. They keep children from finding permanence. They cost the taxpayers more. Because videoconferencing reduces these issues, it promotes efficiency.

Zoom in General and As Applied

When weighing the three factors, the Third District rules for the DCF. In general, the use of Zoom does not offend Due Process. Courts can use videoconferencing for these TPR hearings. As Applied, Zoom did not affect I.T.’s ability to defend herself. When tech problems arose, the court stopped the hearing until I.T. could participate again. She had the opportunity to examine witnesses, etc. as if she attended in person. Therefore, the factors balance in favor of the DCF.

Read the I.T. v. Department of Children and Families opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

On a related note, criminal court judges have used videoconferencing for years. When judges set bonds at first appearances, they do so over video. In the past, every single person traveled to the courthouse after they were arrested to see a judge. But there’s a big problem. Transporting around 100 inmates daily at the same time to the same place creates lots of safety concerns. For these short hearings, it makes little sense. Now, inmates can appear in court from jail.

Talk to Jared at Brown Legal PLLC about Zoom or videoconferencing! He’s an Ivy League educated former prosecutor with over 15 years experience! 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. He’s represented people as far away as Pensacola and as far south as Key West. Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Adult on Minor Sentencing Multiplier

State of Florida Criminal Sentencing Basics

Florida criminal sentences consider two main factors: the statutory maximum sentence and a scoresheet. The statutory maximum varies by degree of the crime. It’s pretty simple to understand. Florida punishes third degree felonies up to 5 years in prison, second degree felonies up to 15 years and first degree felonies up to 30 years.

On the other hand, the scoresheet is much more complex. The scoresheet totals points assigned to your pending charges, past offenses and includes other factors like multipliers. It creates a lowest permissible sentence in months, casually called the score. Normally, the score sets the lowest sentence and the statutory maximum sets the highest sentence. Judges may sentence someone in the range in between.

When people face serious or lots of charges, they might score above the statutory maximum. If that happens, the score becomes the maximum sentence too. There’s only one possible sentence for those situations and it’s the score.

Adult on Minor Sentencing Multiplier

In Millien v. State, the Fourth District Court of Appeal considers the sentence when the score exceeds the statutory maximum and the defendant qualifies for a multiplier. Millien pleads open to two counts of Lewd and Lascivious Battery on a Person 12 years or Older but less than 16 Years Old. Pleading open means he asks the judge to decide his sentence without any idea what sentence might come.

He scores 182.25 months, which exceeds the 15 year (180 months) statutory maximum. As there’s one possible sentence, the judge sentences Millien to 182.25 months. But the parties never discuss the adult on minor multiplier with the judge. Millien mentions the Adult on Minor multiplier in a Motion to Correct Sentence, saying it capped his sentence at 180 months. The court denies the motion.

On appeal, the fight occurs over this language in the multiplier statute: “If applying the multiplier results in the lowest permissible sentence exceeding the statutory maximum sentence for the primary offense under chapter 775, the court may not apply the multiplier and must sentence the defendant to the statutory maximum sentence.” Under this statute, Millien argues that the statutory maximum sentence equals 180 months so he should receive a shorter sentence.

The Fourth District disagrees. It would agree if the statute cites chapter 775 in both references to the statutory maximum sentence. That’s because Chapter 775 sets the statutory maximum sentences by degree, not score. As the second clause doesn’t mention Chapter 775, the score becomes the statutory maximum. Therefore, the judge correctly sentenced Millien to 182.25 months on the first count. The multiplier doesn’t affect the second count, but the judge must give Millien the lowest permissible sentence there too.

Conflict with the First District

Sometimes, the five appellate districts in Florida look at the same issue differently. When that happens, one of them can certify a conflict. Again, the Fourth District Court of Appeal certifies conflict with the First District Court of Appeal. It recognizes that both courts ruled differently facing the same issue. The First District would sentence Millien to 180 months. This conflict gives the Florida Supreme Court jurisdiction to review Millien’s case and decide which district properly interprets the statutes. Now Millien just has to file a Petition to see if the Florida Supreme Court shows interest.

Read the Millien opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

Talk to Jared at Brown Legal PLLC about Florida criminal sentencing! He’s an Ivy League educated former prosecutor with over 15 years experience! 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. Jared has represented people as far away as Pensacola and as far south as Key West. Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.

Double Credit Sentencing Error Corrected

Probation Sentences

Probation sentences seem like a blessing, but they often end up a trap. You can live clean up to the day before it ends, violate and go to prison. Time spent on probation doesn’t count toward a prison sentence, but jail sentences do. A mix-up over jail credit while on probation leads to an interesting sentencing error in State v. Blair.

Confusing Sentencing Hearing Leads to Sentencing Error

In 2009, a judge sentences Blair to 12 years of probation for a Second Degree Grand Theft. Shortly thereafter, Blair violates probation, receiving 3 years in prison as a condition of reinstating his probation. That means Blair still has to serve probation upon release from prison. If the judge revokes probation and sentences Blair to 3 years in prison, the sentence ends when he leaves prison.

In 2019, Blair violates probation. Now the problems begin. During sentencing, the judge announces: “Sentence you to 60 months Department of Corrections. Give you credit for time served of 300 days, county jail, 300 days and all—and give you credit for all DOC, uh, prior credit which they’ll calculate.” This confuses the person writing the sentencing order.

The sentencing order reads “300 days time served between date of arrest as a violator following release from prison to the date of resentencing.” This order accidentally doubles the 300 day jail credit award. Blair served 300 days for his first violation. This order also gives him Blair gets 300 days credit time served for his second violation when he only spent 2 days in custody. No one notices the error.

In January 2021, the Florida Department of Corrections discovers the error and contacts the judge. In February 2021, the judge amends the sentencing order to give Blair 2 days credit instead of 300. Blair files a Motion to Correct Sentence. Then the judge returns the extra 300 days credit. Now the State of Florida files a Motion to Correct Sentence and the judge, after holding a hearing, reduces the credit to 2 days. Blair appeals the order.

Correcting Scrivener’s Error in Sentence Doesn’t Violate Double Jeopardy

Blair raises two issues on appeal. First, could the judge change the sentence so late after its imposition? People can’t file these motions at any time for any reason. Second, does Double Jeopardy prevent the judge from taking away the credit? Double Jeopardy prevents a sentence from increasing after the fact. Sentences can only shorten in length.

The Fourth District rules against Blair on both issues. First, it says Florida Rule of Criminal Procedure 3.800(b) allows the resentencing “to correct a scrivener’s error.” Scrivener’s errors are “clerical or ministerial errors in a criminal case that occur in the written sentence, judgment, or order of probation or restitution.” Jail credit mistakes count as clerical errors. Second, the change doesn’t violate Double Jeopardy because correcting an erroneous jail credit calculation in no way increases the sentence.

Conflict in the Florida District Courts of Appeal

In ruling, it points out that the First and Second District Courts of Appeal disagree with the Fourth District on this issue. If this happened to Blair in Tallahassee, Jacksonville or Tampa, then he’d receive the extra jail credit. The Fourth District certified the conflict, which lets Blair file a Petition to the Florida Supreme Court for discretionary review. Most cases end when a district court rules, but the Florida Supreme Court can intervene when the courts below disagree. We’ll see if Blair files a Petition.

Read the Blair opinion here!

Talk to an Experienced Florida Criminal Defense Attorney!

Talk to Jared at Brown Legal PLLC about Florida criminal sentencing! He’s an Ivy League educated former prosecutor with over 15 years experience! 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. He’s represented people as far away as Pensacola and as far south as Key West. Reach out over the phone at (954) 524-6700 or through the Contact Page if you have any questions.