West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          It has long been the law in Florida that a person's probation cannot be violated based solely upon hearsay.  This particular rule of law was at issue in the case of Lewis v. State of Florida which was decided in 2008 by Florida's Fourth District Court of Appeal.

          In the Lewis case, Monica Lewis was initially placed on probation for the crime of felony petit theft.  However, Ms. Lewis's probation officer later filed an affidavit of violation of probation alleging that Lewis had been arrested twice while on probation and that she had failed to provide her probation officer with that information when asked.

          In attempting to prove that Ms. Lewis had in fact violated the conditions of her probation, the prosecutor presented the following evidence at Lewis's probation violation hearing:

• The orders of supervision in Lewis's case;
• A written monthly probation report; and
• An arrest affidavit which stated that Lewis had stolen merchandise valued at over $259.00 from Home Depot.

          Lewis's most recent probation officer also testified to the following at that same hearing:

• She speculated that Ms. Lewis's prior probation officer had instructed Lewis about her probationary conditions;
• She was not present when Lewis had allegedly signed the monthly probation report that was admitted into evidence;
• Lewis told her that she had not been arrested;
• The probation officer had reviewed a police report which stated that Lewis had been arrested.  However, she was not physically present when that arrest occurred; and
• She discovered that Lewis had a pending charge in Dade County.

          Not surprisingly, given all this evidence, the judge deciding the case ruled that Lewis had indeed violated her probation and sentenced her to three years in prison.

          On appeal, however, the appellate court that reviewed Ms. Lewis's case ruled that the lower-court judge erred when he held that Lewis had violated her probation because "only hearsay evidence was presented to prove [that Lewis] had been arrested for new charges.  The probation officer based her testimony on supposition, the probable cause affidavit, and the court file.  She had no personal knowledge of the alleged new arrest."

         Although Ms. Lewis won her case on appeal, her victory may be short-lived.  That is because the court of appeal sent her case back to the trial court with instructions that the prosecutor could once again try to prove that Lewis violated her probation as long as her probationary term had not yet expired.

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          It is common knowledge that it is illegal for someone who has been convicted of a felony to possess a firearm.  But what is not so commonly known is that it is also a federal crime for a person who has been convicted of a misdemeanor crime of domestic violence to possess a firearm.

          In 1996, Congress extended the federal Gun Control Act's prohibition on possession of a firearm by a convicted felon to include individuals "convicted in any court of a misdemeanor crime of domestic violence."  Moreover, Congress also made it illegal for employees of such individuals to possess firearms "in the course of such employment."

         My hunch is that very few people who are convicted of a misdemeanor crime of domestic violence know that they are committing a federal crime by possessing a firearm.  In fact, a recent U.S. Supreme Court called United States v. Hayes seems to provide an example of this very thing happening to someone.  Hopefully this article will help prevent the same unfortunate thing from happening to someone else.

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          It used to be the case that anyone convicted of driving with a suspended license in Florida three or more times was guilty of a third-degree felony carrying with it a maximum penalty of five years in prison.  But in July 2008 the law changed to the extent that certain individuals convicted of driving with a suspended license three or more times are now guilty of only a first-degree misdemeanor which carries with it a maximum penalty of just one year in the county jail.

          I say "certain individuals" because a person who has previously been convicted of a forcible felony would still be guilty of a third-degree felony if he is convicted of driving with a suspended license three or more times.  However, if a person's license is suspended for any of the following reasons, the most serious punishment that he can receive is one year in the county jail:

          1.  He failed to pay court-ordered child support;

          2.  He failed to pay any other financial obligation that he was legally obligated to pay;

          3.  He failed to comply with a civil penalty;

          4.  He failed to maintain financial responsibility for his vehicle;

          5.  He failed to comply with attendance or other requirements for minors; or

          6.  He has been designated a habitual traffic offender because his license was suspended for any of the reasons stated above in numbers 1 through 5.

          It seems ridiculous to me that anyone should be sent to state prison for simply driving with a suspended license regardless of how many times that person has been convicted of that particular crime.  I therefore think that the change in law discussed in this article is a long-overdue step in the right direction.

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       Florida law provides that under certain circumstances an individual may have his name removed from the sex offender or sexual predator registry.  However, before that can occur, the judge deciding the matter must determine that removal of the person's name will not conflict with federal law.

        In a recent case called Miller v. State of Florida, a judge denied Mr. Miller's request to have his name removed from the sex offender registry because it conflicted with a federal law commonly known as the Adam Walsh Act.  More specifically, the judge found that the Adam Walsh Act permits only persons who have been convicted of consensual sexual activity to be exempt from registering as sex offenders.  Because Mr. Miller was unable to prove that the sexual activity that he was convicted of was consensual, the trial judge refused to order the Florida Department of Law Enforcement to remove Miller's name from the sex offender registry.

          In response, Miller made three arguments:  

          1.  The crime that he pled guilty to (lewd or lascivious battery), does not require proof that the sexual act was not consensual;

          2.  The Florida law that permits an individual to have his name removed from the sex offender registry does not explicitly require that the crime in question involve consensual conduct; and

          3.  The sex act that occurred between Miller and the victim in his case was, in fact, consensual.

          On appeal, Florida's Fifth District Court of Appeal rejected each of these arguments.  From now on, therefore, one of the things that a person trying to get his name removed from Florida's sex offender registry will have to prove is that the sexual activity he was convicted of was consensual in nature.

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          A criminal conviction (which includes a withhold of adjudication) can have serious ramifications pertaining to the deportation of someone who is not a United States citizen but who wishes to remain lawfully in the U.S.

          The Immigration and Nationality Act sets forth various criminally-related grounds for deportation.  Some of those grounds are:

• Crimes of moral turpitude;
• Aggravated felonies;
• Controlled substance violations;
• Firearms violations;
• Domestic violence charges;
• Offenses pertaining to national security.

          Because a criminal conviction can have such serious deportation consequences for an individual who is not a U.S. citizen but who wishes to remain legally in the United States, I always ask my clients whether they are naturalized citizens of the United States.  If they are not, I routinely suggest that they consult an attorney who specializes in immigration law in order to determine how their pending criminal case might impact their immigration status.

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