Does Law Enforcement need a Warrant to Access Cell Phone Site Location Information

Cell phones must be in communication with a tower to receive phone calls or messages and to transfer data. Phone companies record people’s historical cell-site location information (“CSLI”), which can be imported onto a mapping program to show the location of the towers that received the phone’s data at certain times.

Since nearly everyone has a cell phone, Law enforcement often uses this information to track suspects whereabouts.  The government can use this tool to place individuals at the scene of a crime, thus negating the defense that some other dude did the crime.

HOW IS A CELL PHONE’S LOCATION IDENTIFIED?

A cell phone’s location can be detected through cell site location information (CSLI) or global positioning system (GPS) data. CSLI refers to the information collected as a cell phone identifies its location to nearby cell towers.  CSLI from nearby cell towers can indicate a cell phone’s approximate location.  With information from multiple cell towers, a technique called “triangulation” is used to locate a cell phone with greater precision.  A cell phone’s GPS capabilities allow it to be tracked to within 5 to 10 feet. Cell phone location information can be “historical” or “prospective.”  In addition to the location information cell phones ordinarily generate, a cell phone may be “pinged” to force it to reveal its location.

HOW IS CELL PHONE LOCATION INFORMATION USED?

Cell phone companies store historical and prospective CSLI and prospective GPS data, which law enforcement authorities can request from them through court processes.  Historical CSLI enables law enforcement to piece together past events,  for example, by connecting a suspect to the location of a past crime. Prospective location information, on the other hand, helps law enforcement trace the current whereabouts of a suspect, which can lead to arrest.

DOES LAW ENFORCEMENT NEED A WARRANT?

In Carpenter v. United States, 138 S. Ct. 2206, 2221 (2018), the Supreme Court held that historical CSLI data is protected by the Fourth Amendment, and thus, the government’s acquisition of such data constitutes a search which requires a warrant supported by probable cause. The Supreme Court’s opinion is binding upon Florida courts under article I, section 12 of the Florida Constitution, and an appellate court applies the law in effect at the time of its decision. See State v. Glatzmayer, 789 So. 2d 297, 303 n.10 (Fla. 2001).   In Tracey v. State, 152 So. 3d 504, 525-26 (Fla. 2014), the Florida Supreme Court held that real time CSLI data was protected by the Fourth Amendment, and thus, its use by law enforcement constituted a search which required a warrant based upon probable cause.  The message of the United States Supreme Court and Florida Supreme Court is unmistakable to law enforcement: “Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one — get a warrant.”   Thus, the acquisition of this data without a warrant based on probable cause constitutes an illegal search pursuant to the Fourth Amendment.

If you or a loved one has been arrested and you believe the police violated your Fourth Amendment rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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Miranda Warnings – The Interrogator has a duty to clarify an ambiguous waiver

As we have previously discussed, Miranda Warnings are only required when someone is in custody and subject to interrogation.  An interrogation refers to direct questioning by police after a suspect has been taken into custody. The Supreme Court ruled as much in 1980 after Thomas Innis, a man who had been arrested for robbing a taxi driver at gunpoint, ended up leading his arresting officers to the gun he used in his crimes. He did this after hearing two officers discuss their concern for mentally disabled children in the area who might find the gun and hurt themselves. The Supreme Court ruled that the shotgun was admissible in court because Innis’s statement had been spontaneous, and was not technically the product of “interrogation.” Remember, voluntary statements are admissible.

No matter how serious the crime, you are protected by your Fifth Amendment right against self-incrimination and your Sixth Amendment right to counsel.  Anyone who is in custody and being questioned should specifically invoke your rights.  Unless you explicitly say that you are invoking your right to remain silent, you might not actually be exercising it, the Supreme Court ruled in its controversial 2010 decision in a case called Berghuis, Warden v. Thompkins. The defendant, Van Chester Thompkins, was interrogated by police for three hours without saying a word. Towards the end of the interrogation, when asked if he prayed to God to forgive him for the shooting he was suspected of, he answered, “Yes.” The majority ruled that his offhanded confession was unprotected by Miranda. Justice Sonia Sotomayor, dissenting, remarked that the court had concluded “that a suspect who wishes to guard his right to remain silent … must, counterintuitively, speak.”

So here is an example of a recent case involving a waiver of the Miranda warnings.  At the beginning of the interrogation,  the following exchange took place:

Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?

A: Uh-huh.

Q: Anything you say can and will be used against you in a court of law.

A: Uh-huh.

Q: You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.

A: Uh-huh.

Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning.  So if you don’t like the way it’s going, you can say, whoa, [detective].

A: I don’t have no lawyer, so —

Q: You — –

A: I don’t even have no money to call a lawyer.

Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?

A: Uh-huh.

Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now. (emphasis added).

Too often people waive their rights to remain silent and have an attorney present.  Once the Miranda warnings are read and then waived, then the interrogator uses his training and expertise to illicit incriminating statements that are recorded and will be used later in trial.   In the scenario above, the Defendant waived his rights and admitted to committing the crimes charged.  Luckily for this Defendant, the Miranda warnings were captured on video.

A Motion to Suppress was filed and argued to the Court because the waiver of his Miranda rights (“I don’t have no lawyer, so — I don’t even have no money to call a lawyer.”) was ambiguous.   The Courts have held that the Interrogator has a duty to clarify that there is a knowing and intelligent waiver.  “[A]n ambiguous waiver must be clarified before initial questioning.” Alvarez v. State, 15 So. 3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.” U.S. v. Rodriguez, 518 F. 3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”). See also Miles v. State, 60 So. 3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”)

Even if an interrogation has begun and you have answered some questions, you can stop the questioning by telling police that you are exercising your right to stay silent.

If you or a loved one has been arrested and you believe the police violated your Miranda rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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Everything you need to know before accepting a plea to probation.

Often I am asked, what are the requirements for probation.  Before entering into and accepting a plea to probation, the client should understand the terms and requirements for probation.   While the court determines the specific terms and conditions of a defendant’s probation, the standard conditions of probation under Florida law are as follows:

  • Report to the probation supervisor as directed by the court
  • Allow the probation officer to visit the probationer’s home, place of employment, or other places
  • Remain gainfully employed in a suitable job
  • Stay within a specific area, such as within county or state limits
  • Do not break any new laws
  • Make restitution to any parties who were harmed by the crime
  • Financially support one’s dependents
  • Do not associate with any people who are engaged in criminal activities
  • Willingly submit to random drug and/or alcohol testing
  • Do not possess, own, or carry any firearms
  • Do not use any controlled substances unless they were lawfully prescribed by a doctor

For additional information, the terms and conditions of probation are found under Section 948.03 of the Florida Statutes.

While there are different levels of probation, such as administrative (non-reporting), reporting, sex offender, drug offender, and Community Control (the strictest type of probation also known as “house arrest”), they all require absolute compliance with the various terms and conditions. The state has zero tolerance for violators, who are penalized for their noncompliance.

As a general rule, criminal defendants find probation to be a favorable alternative to being behind bars for reasons we can understand.   Still, probationers must not take probation for granted; while on probation, they must adhere to strict terms and conditions.

If the terms and conditions of probation are violated, there are severe consequences.    If a probationer violates one of their terms of probation, it can lead to an arrest warrant being issued. Generally, a probation officer (PO) learns that a probationer violated one of the terms of their probation, then the PO can either make a “warrantless arrest,” or they can prepare an affidavit and present it to the judge.

From there, the judge examines the affidavit and if they agree with the PO, the judge will issue an arrest warrant. Once issued, the defendant will likely be arrested and held in custody without bond until the pending violations are resolved.

If you violated your probation and suspect an arrest is imminent, contact our office to speak with Criminal Defense Attorney Neil Kerch immediately. Unless you can prove to your Probation Officer without a doubt that you were compliant, you are not likely to dissuade your Probation Officer from finding you in violation and imposing harsh consequences.

If you are accused of violating your probation, your best option is to contact Criminal Defense Attorney Neil C. Kerch so I can defend the matter on your behalf.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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The False Confession based on Police Interview Tactics

Often I have clients tell me they are 100% innocent of the crime they are accused of committing.  Then, the State Discovery Submission comes with a DVD of my client’s confession.  How can that be?

Many police investigators are trained in use of the Reid technique, a multistep approach to interrogation that is designed to increase the anxiety associated with denial while reducing the anxiety associated with confession.  Perhaps, the most controversial tactic permissible within this approach involves the false evidence ploy by which interrogators bolster an accusation by presenting the suspect with supposedly incontrovertible evidence of his or her guilt (e.g., a fingerprint, blood or hair sample, eyewitness identification, or failed polygraph)—even if that evidence does not exist.  In the United States, this type of deception is permitted by law, recommended under certain circumstances, and occasionally used by police. See Inside Interrogation: The Lie, The Bluff and False Confessions by Jennifer T. Perillo and Saul m. Kassin

Drawing on the distinction between coerced-compliant and internalized false confessions there are two mechanisms by which innocent suspects might confess when confronted with false evidence. First, research has shown that people in general confess as an act of social compliance when they feel trapped by the apparent strength of the evidence against them and perceive no other means of escape.  Second, research has shown that false evidence, a strong form of misinformation, can create confusion and lead people to doubt their own beliefs, at times internalizing guilt and confabulating memories for crimes they did not commit. See Inside Interrogation.

In addition to the dispositional and situational factors that can increase one’s vulnerability to false confession, research shows that innocent people who stand accused believe that their innocence will become apparent to others, a naive belief that leads them to waive their Miranda  rights to silence and to an attorney. See Inside Interrogation.

If you or a loved one has been arrested and or the police want to question you,  ask for an attorney to be present before and during all questioning.  Contact Broward Criminal Defense Attorney Neil C. Kerch to safeguard your rights.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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Police/Citizen Encounters

Broward Criminal Defense Attorney Neil C. Kerch explains Police/Citizen Encounters…by Neil C. Kerch

Before an officer can stop an individual, the police officer must have “founded” or reasonable suspicion that the individual has committed, is committing, or is about to commit a crime.  § 901.151(2), Fla. Stat. (2004).  A “mere” or bare suspicion will not suffice.  State v. Beja,451 So. 2d 882 (Fla. 4th DCA 1984).

However, not all encounters with Law Enforcement fall into this requirement.  A consensual encounter is a police-citizen encounter where a citizen may either voluntarily comply with police requests or choose to ignore it, and does not give rise to constitutional safeguards because the citizen is free to leave.  United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed.2d 497(1980); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993); Brye v. State, 927 So. 2d 78, 81 (Fla. 1stDCA 2006).  Unfortunately, many people do not realize they are free to leave when Law Enforcement is making a consensual encounter.  This often plays a pivotal role in the arrest of criminal suspects and the search and seizure of evidence to be used in trial.

As a Criminal Defense Attorney, I always check to see if the consensual encounter has become an investigatory stop — where an officer may reasonably detain a citizen temporarily — once a police officer displays authority in a manner that would lead a reasonable person to conclude, under the totality of the circumstances, that he/she is not free to leave and feel compelled to comply.  Popple v. State,supraat 186; Williams v. State, 874 So. 2d 45 (Fla. 4thDCA 2004); Errickson v. State, 855 So. 2d 700 (Fla. 4th DCA 2003).

To justify a police officer’s investigatory stop, the officer must have reasonable, articulated suspicion of criminal activity. Mere suspicion is not enough to support an investigatory stop.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, supraat 186; Daniels v. State, 543 So.2d 363 (Fla. 1st DCA 1989).  If a reasonable person would conclude, based on the totality of the circumstances, that he/she is not free to leave, then the police-citizen encounter is a seizure under the Fourth Amendment and requires, at a minimum, reasonable suspicion.Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L.Ed.2d 389 (1991); Ripley v. State, 898 So.2d 1078 (Fla. 4th DCA 2005); Miller v. State, 865 So.2d 584 (Fla. 5th DCA 2004).  If the Government violated the Fourth Amendment rights, then the arrest and evidence gathered may not be able to be used in trial.

If you or a loved one has been arrested and you believe the police violated your Fourth Amendment rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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The Evolvement of Florida’s Controversial Stand Your Ground Law

Broward County Criminal Defense Attorney explains Florida’s controversial Stand Your Ground Law…by Neil C. Kerch

In 2005, the Florida Legislature enacted the Stand Your Ground law and by statute eliminated the common law duty of an individual to retreat before using force in self-defense. § 776.012(1), Fla. Stat.; Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017). The statute also provides immunity for those who lawfully use force in self-defense. § 776.032, Fla. Stat. The Florida Supreme Court subsequently determined in Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015), that a defendant has the burden of proof in a pre-trial Stand Your Ground immunity hearing and that the defendant has to prove by a preponderance of evidence that the defendant’s “use of force was justified, as specified by statute.”

Following the issuance of Bretherick in 2015,  the Florida Legislature amended section 776.032 and added subsection (4), which states:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

The legislature provided that “[t]his act shall take effect upon becoming a law,” which occurred when the governor signed the bill into law on June 9, 2017. Ch. 2017-72, § 1-2, Laws of Fla.

The amendment shifted the burden of persuasion from the defendant to the state. The amendment also changed the quantum of proof required from preponderance of the evidence previously required of the defendant to clear and convincing evidence now required of the state, after the defendant makes a prima facie claim of self-defense immunity.

As you can see the Florida Stand Your Ground Law is evolving and with this evolvement it opens up new legal challenges.  For example, are the changes in subsection (4) procedural or substantive? Should we apply the changes retroactively or prospectively from the date the changes became law?

The answer is it depends on where you live in Florida.  If you live in the area that is covered under the the Third or Fourth District Court of Appeals, then the the amendment adding subsection (4) is a substantive change to the law, and as such, applies only prospectively from the date of enactment. If you live in the area that is covered under the the First or Second District Court of Appeals, then the the amendment adding subsection (4) is a procedural change to the law, and as such, applies retroactively.

If you or a loved one is facing Criminal Charges in Broward, Miami-Dade, or Palm Beach, Criminal Defense Attorney Neil Kerch has the knowledge and experience to guide you through Florida’s Controversial Stand Your Ground Law.

 

Disclaimer:

This Post is informational in nature and is not intended to provide or substitute for legal advice.  Each case is unique and should be evaluated by a Criminal Defense Attorney.

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Terminating a Permanent Injunction

Broward County Criminal Defense Attorney talks about terminating a permanent injunction in Florida…by Neil C. Kerch

Domestic violence is an extremely serious issue, and can give grounds for a restraining order, also known as a domestic violence injunction.  An injunction is a court order commanding or preventing an action, which is often sought under exigent circumstances.  Many of my criminal cases often involve some sort of domestic violence injunction.

Domestic Violence Injunction Court is especially busy in Florida, with dozens of daily cases filed in every Florida County. Restraining orders and domestic violence injunctions can have an earth-shaking effect on the individual. A restraining order is free to file, is quick in its effect, and can give an incredible tactical advantage to the filing party. Too often people try to go at it alone and suffer consequences of having a permanent injunction enforced against them.  That is why it is important to hire competent legal help from the beginning.

Even if a permanent injunction has been granted, there is still a chance to have the injunction dissolved.  Section 784.046(10), Florida Statutes (2009), allows the court to modify or dissolve an injunction at any time on the motion of an interested party. Likewise, Florida Rule of Family Procedure 12.540 allows a final injunction to be set aside under specified circumstances. In either event, due process requires that Respondent be given an opportunity for a hearing. See Kugler v. Joosten, 58 So. 3d 323 (Fla. 1st DCA 2011); Raymonvil v. Lewis, 46 So. 3d 139 (Fla. 5th DCA 2010); McCormick v. Shannon, 32 So. 3d 787 (Fla. 2d DCA 2010); Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010).

In order to establish entitlement to dissolution of an injunction, the movant must prove that there has been a change in circumstances since the injunction was entered. Baker v. Baker, 112 So. 3d 734, 735 (Fla. 2d DCA 2013); Alkhoury v. Alkhoury, 54 So. 3d 641, 642 (Fla. 1st DCA 2011). This requires the movant to “demonstrate that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose.” Alkhoury, 54 So. 3d at 642.  “As a general rule, permanent injunctions, which remain indefinitely in effect, may be modified by a court of competent jurisdiction ‘whenever changed circumstances make it equitable to do so.’ ” (quoting Hale v. Miracle Enters. Corp., 517 So. 2d 102, 103 (Fla. 3d DCA 1987))). Baker v. Baker 112 So. 3d 734, 38 Fla. L. Weekly D1007a.   If you or a loved one needs help with any type of injunction issue, please contact the Law Office of Neil C. Kerch LLC.

Disclaimer:

This Post is informational in nature and is not intended to provide or substitute for legal advice.  Each case is unique and should be evaluated by a Criminal Defense Attorney.

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Minimum Mandatory Sentences

Broward County Criminal Defense Attorney explains Florida’s Minimum Mandatory Sentences…by Neil C. Kerch

Often, I am asked, “How can I get around the minimum mandatory sentence?” Florida has minimum mandatory sentences that judges cannot usually override.  Some examples of Florida Mandatory Minimum Sentences for First-Time Offenders:

  • Aggravated assault with a firearm (10-20-Life offense): Three years
  • Armed burglary, including armed breaking and entering a car (10-20-Life offense): 10 years
  • Felon in possession of a firearm: Three years
  • Heroin, cocaine or oxycodone possession: Less than 14 grams, three years; more than 14 grams, 15 years; more than 28 grams, 25 years
  • Possession, cultivation of marijuana with intent to distribute: Three years

Examples of Florida Mandatory Minimum Sentences for Repeat Offenders:

  • Repeat murder or homicide: Life imprisonment
  • Repeat first-degree felony: 30 years
  • Repeat second-degree felony: 15 years
  • Repeat first-degree misdemeanor: One year
  • Repeat second-degree misdemeanor: 60 days

Minimum mandatory sentences are among the most counterproductive and they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.

A recent case of the 4thDistrict Court of Appeals reversed a downward departure, whereby the Trial Judge granted a downward departure motion and waived the minimum mandatory sentence without legal justification. The State appealed and was successful in having the case remanded.  The Appeals court stated that  Trial courts have no discretion to grant a motion for downward departure when the conviction implicates the (10-20-Life offense) Florida Statute 775.087(2).

Although the Court did not have discretion in this case, there are limited ways to avoid a minimum mandatory sentence.  One of the ways to avoid a minimum mandatory sentence is through the youthful offender statutes.  Another way is to have an reputable, experienced, professional and personable attorney negotiate with the State Attorney’s Office.  Over the course of my legal career I have successfully negotiated resolutions that waive the minimum mandatory sentences in Broward, Palm Beach and Miami-Dade Counties.  If you are facing a sentence that involves the imposition of a minimum mandatory sentence, you can contact Broward Criminal Defense Attorney Neil Kerch.  I have the professional resources and experience to help you fight for the best possible outcome.

 

174 So. 3d 488

Criminal law — Sentencing — Mandatory minimum — 10-20-Life law — Trial court had no discretion to grant downward departure from three-year mandatory minimum sentence under 10-20-Life law where defendant used firearm during aggravated assault

STATE OF FLORIDA, Appellant, v. STEVEN RAY BRAY, Appellee. 4th District. Case Nos. 4D13-4771 and 4D14-441. August 19, 2015. Consolidated appeals from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562013CF000690A. Counsel: Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.

(MAY, J.) In these consolidated appeals, the defendant appeals his conviction for aggravated assault with a firearm. The State appeals the defendant’s downward departure sentence for that conviction. The defendant argues the prosecutor’s comments in closing argument constituted fundamental error. We disagree and affirm his conviction. The State argues the trial court erred when it failed to impose the three-year mandatory minimum sentence under the 10-20-Life statute. The defendant candidly admits the sentencing error. We therefore affirm the defendant’s conviction in case number 14-0441, but reverse the defendant’s sentence in case number 13-4771, and remand the case to the trial court for resentencing.

The facts underlying the charge and trial are largely irrelevant to our decision. The State charged the defendant by information with aggravated assault with a firearm. The jury convicted the defendant as charged. The trial court adjudicated him guilty, but granted a downward departure motion and sentenced him to one year in county jail, two years’ community control, and two years’ probation over the State’s objection.

In the State’s appeal, it argues the trial court erred when it failed to impose the mandatory minimum sentence under section 775.087(2), Florida Statutes (2013), due to the defendant’s use of a firearm during the aggravated assault. The defendant candidly agrees. Trial courts have no discretion to grant a motion for downward departure when the conviction implicates section 775.087(2). State v. Vanderhoff, 14 So. 3d 1185, 1189 (Fla. 5th DCA 2009) (“The 10/20/Life statute, section 775.087(2), Florida Statutes (2005), removed most sentencing discretion from the judicial branch, and instead, placed it in the executive branch by establishing a mandatory minimum sentencing scheme.”).

We find no merit in the defendant’s appeal of his conviction. We reverse his sentence on the State’s appeal, and remand the case to the trial court to re-sentence the defendant in accordance with section 775.087(2), Florida Statutes (2013).

Affirm Case No. 14-0441. Reverse and Remand on Case No. 13-4771. (WARNER and KLINGENSMITH, JJ., concur.)

Disclaimer:

This Post is informational in nature and is not intended to provide or substitute for legal advice.  Each case is unique and should be evaluated by a Criminal Defense Attorney.

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I have been arrested. What happens next?

Broward County Criminal Defense Attorney explains the Criminal Court Process…by Neil C. Kerch

Being arrested is often a very traumatic and difficult experience.   It is a stressful event that can have a lasting impact on your life.   This post explain the steps you will go though if you are arrested and charged with a crime in Florida.

FIRST APPEARANCE

Once you are arrested, you will appear for a First Appearance if you have not already posted bond.  Florida law requires that all persons arrested will appear before a judge within 24 hours of your arrest. Continue reading I have been arrested. What happens next?

The Officers did not read me my Miranda Warnings

Broward County Criminal Defense Attorney explains when Officers are Required to Read you your Rights…by Neil C. Kerch

I often have many clients tell me that the police officers did not read them their Miranda Warnings.  My automatic response is “did the police officers ask you any questions? Police officers do not need to read Miranda Warnings for every arrest.  The duty to warn only arises when police officers conduct custodial interrogations.”   Custody and interrogation are the events that trigger the duty to warn. Continue reading The Officers did not read me my Miranda Warnings