West Palm Beach Criminal Lawyer Blog

Mother’s Convictions for Culpable Negligence Overturned on Appeal

Friday, September 12th, 2014  |   No Comments »

In the case of Jennifer Kish versus the State of Florida, Ms. Kish was convicted of the crime of culpable negligence for allowing her three children–ages 10, 8, and 7–who were sick with cold and upper respiratory symptoms, to be left unsupervised for two to three hours after school until adults arrived home from work.  The facts of Ms. Kish’s case are as follows:

Ms. Kish was called away to Jacksonville in the middle of the day because her mother had a medical emergency.  Ms. Kish expected to return home late, after her children’s school day had ended, so she called the school and arranged for the school bus to drop off her three children at the home of her former husband and his wife (the “Meadows”). Ms. Kish had not done that before, but she trusted the Meadows.

Ms. Kish did not tell the Meadows about her emergency or that the children would be coming over after school.  Although no one was at home when the school bus dropped off the children at the Meadows home at about 3:45 in the afternoon, the children let themselves in the house, did some homework, and watched TV. At some point during the next few hours, the 8–year–old began vomiting, the 7–year–old’s nose began to run, and the 10–year–old began running a high fever and panicking. Nevertheless, the 10–year–old cared for the other two children by cleaning them up in a bath and looking for medicine. When the Meadows arrived home around 6 o’clock that night they were surprised to see the children in their home, sick and unsupervised. And they were quite upset with Ms. Kish.

Ms. Meadows took the children to a hospital where the 10-year-old was diagnosed with bronchitis and the other two children were diagnosed with upper respiratory infections. When Ms. Kish arrived back from Jacksonville at about 9 o’clock that night, she didn’t find anyone at the Meadows’ house. She looked for them for a couple of hours before finally going to the hospital at around 11 o’clock. Later, the police arrived, questioned Kish, then arrested her.

The court of appeals reversed Kish’s convictions for culpable negligence because:

1.  Ms. Kish encountered a family emergency in the middle of the day while her children were at school.

2.  She immediately called her children’s school and arranged to have them taken to the home of people whom she trusted.

3.  The children were not sick when Ms. Kish made those arrangements.

4.  The three children were not so young that leaving them alone in familiar surroundings for a couple of hours could be considered culpable negligence.

5.  The 10-year-old provided appropriate care for the other two children until the Meadows arrived home.

How to Avoid Mandatory Minimum Penalties in Federal Court

Monday, September 1st, 2014  |   No Comments »

A “mandatory minimum penalty” refers to a federal law that requires a judge to sentence a person convicted of that law to a specified minimum term of imprisonment in the Federal Bureau of Prisons.  There are approximately 200 federal laws that carry a mandatory minimum penalty.  According to statistics published by the United States Sentencing Commission, there are primarily two ways to avoid a mandatory minimum sentence.

The first way is called the safety valve provision, and it has the following five requirements:

1. The person to be sentenced does not have more than one criminal history point under the federal sentencing guidelines.

2.  The person to be sentenced did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce someone else to do so) in connection with the crime.

3.  The crime did not result in death or serious bodily injury to any person.

4.  The person to be sentenced was not an organizer, leader, manager, or supervisor of others in the crime, and was not engaged in a continuing criminal enterprise; and

5.  Not later than the time of the sentencing hearing, the person to be sentenced has truthfully provided to the United States Attorney’s Office all information and evidence the person has concerning the crime.

The second way of avoiding a mandatory minimum penalty is called substantial assistance.  It refers to assisting the U.S. Attorney’s Office in the investigation or prosecution of another person who has committed a crime.  If the person to be sentenced has, in fact, rendered substantial assistance, some of the things the judge will look at are:

1.  The significance and usefulness of the person’s assistance, taking into consideration the prosecutor’s evaluation of the assistance rendered.

2.  The truthfulness, completeness, and reliability of any information or testimony provided by the person to be sentenced.

3.  The nature and extent of the person’s assistance.

4.  Any injury suffered, or any danger or risk of injury to the person or his family resulting from his assistance; and

5.  The timeliness of the person’s assistance.

Aggravated Assault and Cars

Friday, August 29th, 2014  |   No Comments »

In order to prove the crime of aggravated assault, a prosecutor in Florida has to show that the person accused of committing that crime had a specific intent to do violence to someone else.  What is important is the intent of the accused person and not the reaction of the victim.

For example, in the case of Reginald Swift versus the State of Florida, a police officer stopped Mr. Swift’s SUV and ended up pointing his gun at Mr. Swift.  Swift didn’t like that so he drove off.  In the course of doing so, the officer had to step out of the way of Swift’s oncoming car in order to avoid being hit.  Swift was later charged with aggravated assault on a police officer.

The court of appeals ruled that Swift was not guilty of aggravated assault because:

1.  Although the officer was in fear of being struck by Swift’s SUV when it was backing up towards him, the officer’s reaction was not enough to prove that Swift intended to threaten him.

2.  No evidence was presented at Swift’s trial proving that Swift knew that the officer had run behind his SUV during the short amount of time that passed after Swift had pulled forward and before he began to back up a second time.

3.  Although evidence was presented that Swift disregarded the officer’s command to turn off his engine, that by itself didn’t prove that Swift specifically intended to threaten the officer when he backed up.

Aggravated Battery With a Deadly Weapon and Cars

Wednesday, August 27th, 2014  |   No Comments »

In Florida, you can commit the crime of aggravated battery with a deadly weapon if you use your car to hit someone else’s car when they are inside it.  For example, if you use your car to hit someone else’s car and the person in the other car  is injured, or if he had to brace himself when the collision occurred, or if the collision jostled him about, or spun him around, or moved him about within his car, then you may be guilty of aggravated battery.

In the case of Maurice Walker versus the State of Florida, Mr. Walker was accused of aggravated battery on a police officer with a deadly weapon after the police tried to make a traffic stop by turning on their lights and sirens.  Walker sped up and during the chase twice struck one of the patrol cars that was chasing him.  Walker ended up losing control of his car and crashing into a median.

The court of appeals decided that Walker was not guilty of aggravated battery because:

1.  Photographs showed that the exterior of the patrol car sustained only minor damage.

2.  Although there was evidence that a police dog was injured when Walker’s car struck the patrol car, the officer driving the patrol car was not himself physically injured in any way by the collision.

3.  Although the officer testified that he was scared when the collision occurred, no evidence was presented at Walker’s trial that the officer was ever jostled when his patrol car was struck twice by Walker’s car.

82-Year-Old Man Not Guilty of Animal Cruelty

Sunday, August 17th, 2014  |   No Comments »

In the case of Hume Hamilton versus the State of Florida, Mr. Hamiton was an 82-year-old man who was out walking his dog on a leash when a cat got too close to the dog.  The two animals began fighting, so Mr. Hamilton tried to separate them while keeping the leash on his dog.  Unfortunately, the dog killed the cat, and Mr. Hamilton ended up being charged with the crime of animal cruelty.  But not only was he charged with animal cruelty, he was also eventually convicted of that crime and sentenced to three years in prison.

Hamilton appealed his case, and the court of appeals ruled that he was not guilty of animal cruelty because he did not intend for his dog to kill the cat.  The court of appeals said that Hamilton would have been guilty if he had taken the leash off of his dog so that it could attack the cat.

Posted in: Animal Cruelty

Drug Convictions Overturned Where Drugs Were Found in Girlfriend’s Home

Tuesday, August 12th, 2014  |   No Comments »

In the case of Thomas Smith versus the State of Florida, Mr. Smith was convicted of possession of methamphetamine and possession of chemicals used to make methamphetamine.

The case began when the police executed a search warrant at a home that was leased by a woman named Kelly Jiminez.  The police found a Gatorade bottle containing methamphetamine as well as chemicals used to make methamphetamine.   Both Smith and Jiminez were at home when the police executed the warrant.  One of those officers later testified at Smith’s trial that he believed the apartment belonged to Jiminez and that she was Smith’s girlfriend.

The prosecutor relied on the following pieces of evidence to prove that Smith lived in Jiminez’ home and therefore had control over the methamphetamine and the chemicals used to make methamphetamine:

1.  One athletic shoe size 11 or 11 1/2 that was located on top of a bookcase in a bedroom.

2.  A picture found on a nightstand located in another bedroom which showed two men, one of whom was wearing a gas mask and holding a Gatorade bottle containing a white substance that might have been methamphetamine.

3.  A gas mask found on a shelf in the same bookcase where the athletic shoe was located.

Smith was convicted of the drug charges.  However, the Court of Appeals found that:

a.  There was nothing unusual about Jiminez having a picture of her boyfriend located on her nightstand.

b.  The fact that the man in the picture was holding a Gatorade bottle that might have contained methamphetamine was not evidence that Smith had control over the bottle that the police found during the search, which the evidence showed was actually a different bottle.

c.  The fact that Smith posed for a photo wearing a gasmask similar to the one found by the police did not prove that he lived in Jiminez’ house on the day the police entered because no evidence was presented showing when or where that picture was taken.

d.  The existence of a single shoe on the top shelf of the bookcase also did not prove that Smith lived in Jiminez’ house the day the police executed the search warrant.

Because the prosecutor’s evidence did not prove that Smith had what the law calls “dominion and control” over the methamphetamine and chemicals, the Court of Appeals reversed Smith’s convictions.

When is Evidence About Guns Not Allowed at Trial?

Friday, August 1st, 2014  |   2 Comments »

In the case of Dwight Parker versus the State of Florida, a police officer made a routine traffic stop of Mr. Parker’s car after which he found a gun and some drugs located in the car.  Before trial on the drug charges, Parker’s lawyer asked the judge to not let the prosecutor mention the gun to the jury because it wasn’t relevant to the drug charges, and it was very prejudicial.  However, the judge disagreed saying that evidence of the gun was necessary to explain why the police searched Parker’s car.  Parker was convicted of the drug charges and appealed. The court of appeals reversed Parker’s conviction for the following reasons:

1.  The gun found in Parker’s car should not have been admitted into evidence at his trial.

2.  The gun should not have been shown to the jury.

3.  The jury should not have been told that Parker was arrested for a gun-related charge and that he attempted to reach for the gun after being stopped by the police.

4.  Even though Parker was on trial for drugs and not the gun, the gun still became an improper feature of his trial.

Posted in: Evidence

When Can a Prosecutor Not Subpoena Your Medical Records in a DUI Manslaughter Case?

Friday, July 25th, 2014  |   1 Comment »

In the case of Juan Guardado versus the State of Florida, Mr. Guardado was involved in a three-vehicle crash.  Two of the passengers in Guardado’s car were killed.  When a Trooper from the Florida Highway Patrol arrived at the scene of the accident, he saw Guardado in the driver’s seat with injuries to his face, and the two passengers in Guardado’s car appeared to be dead. Guardado was taken to a hospital where the Trooper asked hospital personnel to take blood samples from Guardado in order to find out if he  had been drinking alcohol or taking drugs before the accident occurred.  Those samples were sent to the medical examiner’s office where it was determined that Guardado’s blood-alcohol level at the time of the accident was more than twice the legal limit.  Guardado was later charged with DUI manslaughter.

The prosecutor’s office notified Guardado that it intended to subpoena his medical records from the hospital so that it could show the jury that his blood-alcohol level was above the legal limit at the time of the accident.  Guardado objected.  At the hearing that was held on Guardado’s objection, the prosecutor acknowledged that the Trooper did not have probable cause to request that blood samples be taken from Guardado at the hospital.  Nevertheless, the prosecutor argued, the hospital still had a right to draw Guardado’s blood because of the injuries he sustained in the accident, and it was that evidence that the prosecutor wanted access to.

On appeal, the court said that the prosecutor should not have been allowed to get Guardado’s medical records because the only evidence it relied upon to get those records was the Trooper’s illegal request for blood samples at the hospital.  The prosecutor did not present any lawful evidence such as police reports that established a connection between the blood samples taken by the hospital for medical reasons and the accident investigation.  Therefore, the prosecutor should not have been allowed access to Guardado’s medical records.


Retroactive Federal Drug Sentence Reductions

Monday, July 21st, 2014  |   No Comments »

Last week, the United States Sentencing Commission voted to retroactively cut federal prison sentences for drug crimes.  The Commission voted to retroactively decrease the drug table by two offense levels for all drug types.  The result is that approximately 50,000 people who are currently incarcerated in the federal prison system for drug crimes could be eligible for a reduction of their sentence by an average of about 2 years.  Provided Congress takes no action to nullify the Commission’s vote, federal courts can begin granting motions for sentence reductions on November 1, 2014.  However, the Commission delayed the actual release date for inmates to November 1, 2015 in order to provide the courts with time to consider motions and to provide the Federal Bureau of Prisons and other agencies with time to prepare for the upcoming changes.

The Police Need a Search Warrant to Obtain Information About the Location of Your Cell Phone

Friday, July 11th, 2014  |   1 Comment »

In the case of the United States versus Quartavious Davis, Mr. Davis was convicted of several armed robberies that occurred at different times and in several different locations.  In order to prove that Davis was in the general vicinity of the robberies when they occurred, the prosecutor presented “cell site location information” at Davis’ trial.  That information consisted of a record of the calls supposedly made by Davis as well as calls that he received.  It also consisted of information about which cell phone towers carried those calls to and from Davis.  Typically when you make a call using your cell phone, the cell tower that is closest to you will carry that call to whomever you are calling.  By knowing which cell towers were used to send Davis’ calls, the prosecutor was able to show approximately where Davis’ phone was located on certain dates and at certain times.  Coincidentally, the prosecutor argued, Davis’ phone was located in the same general vicinity as the robberies that occurred and at the same time that they occurred.  Therefore, the prosecutor argued, Davis was one of the robbers.

Davis objected to the cell cite location information being presented to the jury because the government agents who obtained that information did so without first getting a search warrant.  They instead obtained the information by getting a court order.

The court of appeals deciding Davis’ case agreed that the Fourth Amendment to the United States Constitution required that the agents get a warrant before they could obtain the cell cite location information.   Davis, the appellate court said, had a “reasonable expectation of privacy” in that information. The agents mere reliance upon a court order was not good enough.

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