In the case of VFD versus the State of Florida, the issue was whether a judge was correct in denying VFD's petition to expunge his criminal record without first hearing evidence and giving specific reasons as to why she was denying his petition. An article that I wrote on my website Florida Criminal Records: Frequently Asked Questions examines how this issue was resolved by one Florida appellate court.
In the case of Peter Price versus the State of Florida, the issue was whether Mr. Price was a sex offender who had to register under Florida law even though adjudication was withheld in his case.
The relevant facts of this case are that in 1994 Mr. Price pled nolo contendere to two counts of lewd and lascivious assault upon a child. Both crimes were committed between 1987 and 1990. The judge withheld adjudication and sentenced Price to five years of probation. In 1999, Price successfully completed probation.
In 2008, Price was charged with committing the crime of failing to register as a sex offender. His lawyer filed a motion to dismiss the charge in which he argued that because adjudication had been withheld, Price had not been convicted and was therefore not a sex offender who was required to register with the Florida Department of Law Enforcement. Additionally, Price had pled nolo contendere. The judge denied the motion.
Price appealed the judge's ruling to Florida's Fifth District Court of Appeal which agreed with the lower court's decision to deny Price's motion to dismiss.
The appellate court began its analysis by noting that Florida's sex-offender registration law was first enacted in 1997 while Price was still on probation. At that time, the word "convicted" meant that "the person has been determined guilty as a result of a plea or a trial, regardless of whether adjudication is withheld."
When Price's probation ended in 1999, "convicted" meant that "regarding the person's offense, there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld."
When Price was charged with failure of a sex offender to properly register in 2008, "convicted" meant that "there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld, and includes an adjudication of delinquency of a juvenile as specified in this section...."
The appellate continued on to state that:
"Under the 1999 and 2008 language of [the sex offender registration law], 'convicted' for purposes of sex offender registry included entry of a plea of nolo contendere, regardless of whether adjudication was withheld. Based upon the record, Price indisputably met the criteria under the 1999 and 2008 versions of [the sex offender registration law] to be a sex offender who was required to register. Price relies on the fact that the language of the 1997 version of [the sex offender registration law] does not mention a plea of nolo contendere where adjudication was withheld under the definition of 'convicted.' Rather, it provides: ' "Convicted" means the person has been determined guilty as a result of a plea or a trial, regardless of whether adjudication is withheld.'
The fact that Price met the criteria under the 1999 and 2008 versions of [the sex offender registration law], rather than the 1997 version, is controlling because the sex offender registry requirements commenced when Price's probation ended in 1999, and the State alleged in the [charging document] that Price failed to properly register in 2008. Even if the 1997 statutes were applicable, however, 'convicted' for purposes of sex offender registry under the 1997 version of [the sex offender registration law] also included the entry of a plea of nolo contendere where adjudication was withheld. In Montgomery v. State . . . the Florida Supreme Court 'h[e]ld that a no contest plea followed by a withhold of adjudication is a conviction for purposes of sentencing under [Florida statute] section 921.0014.' Importantly, '[s]ection 921.0021 define[d] a conviction as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." ' . . . Since the definition of 'convicted' in the 1997 version of [the sex offender registration law] is essentially the same as the section 921.0021 definition of conviction, Montgomery supports the conclusion that 'convicted' under the 1997 version of [the sex offender registration law] included the entry of a plea of nolo contendere where adjudication was withheld."
In the case of Sheriff versus State of Florida, an individual named Myron Sheriff was convicted of conspiracy to traffic in heroin. He appealed his conviction to Florida's Fourth District Court of Appeal. That appellate court reversed his conviction and in doing so stated the following:
1. A conspiracy is either an express or implied agreement between two or more persons to commit a criminal offense.
2. In order to prove the crime of conspiracy, a prosecutor must prove an agreement and an intention to commit a criminal offense.
3. Conspiracy is a separate and distinct crime from the offense that is the object of the conspiracy.
4. Evidence that an individual assisted in the commission of the criminal offense is not, by itself, sufficient to prove that he participated in the conspiracy.
5. In this case, the prosecutor failed to prove that Mr. Sheriff entered into an agreement to traffic in heroin with codefendant Laura Arroyo or with an unindicted co-conspirator identified as “Solon." At most, the evidence showed only an agreement between Sheriff and someone named Siegel who was working for the police as a confidential informant. However, a conspiracy does not exist if one of the two co-conspirators is a government agent.
Continue Reading...In the case of Gregory Schlicher versus State of Florida, Mr. Schlicher was convicted of six counts of conspiracy to purchase cocaine as well as two other charges. The facts of his case are as follows:
"During the trial, the [prosecutor] presented a number of police witnesses who testified that the police were conducting an investigation, primarily
Schlicher appealed the jury's verdict, arguing that the prosecutor failed to prove that he committed the crime of conspiracy to purchase cocaine. Florida's Fourth District Court of Appeal agreed with him stating:
1. A conspiracy exists when there is either an express or implied agreement between two or more persons to commit a criminal offense, as well as an intention to commit that offense.
2. Direct proof of the agreement is not necessary; it may be inferred from the surrounding circumstances.
3. Florida appellate courts have typically upheld convictions for conspiracies to buy or sell drugs when the "defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase."
4. The agreement that constitutes the conspiracy must be an agreement to commit the same criminal offense.
5. In a buy-sell transaction, that agreement usually does not exist because the buyer and seller each intend to commit a different crime. As a result, there is no criminal conspiracy to achieve a common goal.
6. There was no criminal conspiracy to pursue a common goal in this case because Schlicher was charged with conspiracy to buy cocaine while Jose was charged with conspiracy to sell cocaine. Therefore, no evidence was presented proving either an express or implied agreement between the two men to commit the same crime of purchasing cocaine.
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