Articles Posted in Violent Crimes

Florida criminal law proscribes illegal activities through statute. That means that after a legislative session, actions that were once permissible might become unlawful or vice versa. For those accused of crimes, the defendant will likely be subject to the law at the time that the crime occurred. In a jury trial, the court instructs the jury on the law before the jury makes their findings as to the defendant’s guilt or innocence. This month, the Second District appeals court overturned an attempted second-degree murder conviction under the theory that the self-defense jury instructions incorrectly stated the law at the time the crime was committed.

The defendant attended a house party when he was 17. The defendant, along with his friends, got into a confrontation with another group about missing beer, suggesting it was stolen. This first meeting did not become violent. At a second house party, later that night, where both groups were present, tensions boiled over, and a fight erupted. The defendant testified that he tried to break up the fight but was attacked and got stabbed with a pocket knife. The defendant pulled out his own knife to defend himself. He blindly swung his knife around in alleged self-defense because he was scared for his life and didn’t know how else to defend himself. Two people were allegedly stabbed by the defendant’s knife. The State charged the defendant with attempted second-degree murder.

Florida’s self-defense jurisprudence has evolved over the years and is one of the State’s most controversial laws. The appeals court was asked to review the defendant’s conviction under the 2012 version of the law. Although Florida Statutes Section 776.013 negates a self-defense claim for someone engaging in illegal activity at the time force was used, the version of the law in effect in 2012 did not.

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The concept of “scrivener’s error” is certainly applicable to the legal system, although it’s not especially technical. In fact, it’s known by most as a “typo.” Courts systems require human labor to draft legislation, motions, and written judgments, so sometimes mistakes are made. In the criminal law context, the omission of a word or phrase can lead to unintended consequences. Fortunately, there’s a mechanism for addressing scrivener’s error in trial court decisions. In fact, the appellate court for the Second District addressed this issue in a recent Florida burglary case, Morgan v. State.Florida appeals court decisions in criminal cases show that scrivener’s error is not uncommon and can lead to significant changes to a judgment entered against a defendant. In 2004, the Second District Court of Appeals decided a case in which the trial court orally imposed concurrent sentences of 10 years’ imprisonment. The written judgment, however, reflected consecutive sentences for a total of 20 years’ imprisonment.  Moreover, in 2010, the First District Court of Appeals decided a case in which the defendant had been found guilty of a violation of his probation for “not possessing any firearm or weapon.” However, the defendant was only convicted of marijuana possession, and no gun was present. The appeals court ruled that this was a scrivener’s error and that the defendant’s probation violation could not have been attributed to a gun crime. The Florida Rules of Criminal Procedure also allow for the modification of a sentence in order to correct a scrivener’s error, but only if the correction would benefit a criminal defendant.

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As cell phones have risen in popularity, criminal prosecutors now use cell phone records to build their cases. Cell phone records can show such records as calls made or received, text messages, and even proximity to cell towers. Although cell phone records do not provide specific GPS coordinates of a person’s whereabouts, prosecutors often rely on the location of a cell tower to relay the general location of a criminal defendant at the time the alleged crime occurred.The St. Petersburg murder trial of a man accused of killing a confidential informant is relying heavily on testimony derived from a review of cell-tower data that allegedly implicates the defendant. The court heard testimony from a detective who reviewed the defendant’s cell phone records on the night of the alleged murder. His testimony stated that the defendant made calls to the victim moments before the shooting occurred, allegedly to set up a fake drug deal as a way to lure the victim onto a deserted street. In addition, the detective’s testimony traced the approximate location of the defendant, stating that the defendant allegedly picked up an accomplice, drove to the area of the crime, and then went to a hotel room, where he met with other alleged accomplices. The detective tested this theory by driving the same route and confirming that the same cell towers that picked up the defendant’s calls also picked up his calls along the way.

Although criminal prosecutions often rely on cell phone records, Florida law does not give law enforcement free access to those records. Florida Statute section 934.23 authorizes law enforcement to require the disclosure of cell phone records from an electronic communication service only pursuant to a warrant issued by a judge of a competent jurisdiction. In order to obtain a warrant, the law enforcement officer is required to offer specific facts showing that there are reasonable grounds to believe the contents of an electronic communication are relevant to an ongoing criminal investigation.

If law enforcement officials obtain a warrant, the electronic communication service, such as a wireless provider, may be required to disclose certain defined types of information. For instance, records of call duration, cell phone type, subscriber number or identity, credit card associated with customer’s phone, and phone connection records are all available to law enforcement officials under Florida law.  These records may provide the type of evidence prosecutors need to establish the facts of a crime, but they are only legally available with a warrant.