Florida Criminal Law Blog

Pensacola Circuit Court in Pensacola, Florida is currently involved in a case you don't see often in this "neck of the woods" - a gang related case. In Florida is someone commits a crime while part of a gang they are subject to enhanced penalties under Florida's Criminal Street Gang Prevention Act, Fla. Stat. 874.04. As an example of this Florida law, someone who is charged with a crime that is otherwise a 3rd degree felony, is subject to the penalties of a 2nd degree felony. In other words, every degree of crime, be it a third, second or first degree, felony or misdemeanor, is enhanced one offense level merely because the defendant was involved in a gang. The problem arises when and how do you, or the State, define what is or isn't a gang or if a person is involved in a criminal gang.

In many cities, if young people are not in a "gang" they have no one to socialize with. They are not involved in the gang to commit crimes. Are these "gangs" more like clubs? If someone is a member of a club should they be subject to enhanced penalties? We always have thought that "mere association" with a group is no basis for an enhanced penalty or for that matter a crime. In State v. O.C. 748 So.2d 945 (Fla.,1999), the Florida Supreme Court answered this question to some extent. The court held in O.C. that the statute providing for enhancement of degree of a crime for sentencing purposes based on membership in a criminal street gang did in fact punish mere association and violated a defendant's substantive due process rights, as the statute punished gang membership without requiring any nexus between criminal activity and gang membership and thus lacked rational relationship to legislative goal of reducing gang violence or activity. In other words if the person committing the crime did so without any relation to gang activities he should not be subject to enhanced penalties. The Court found the statute over broad and too vague to be constitutional.

In Wyche v. State, 619 So.2d 231, 237-38 (Fla.1993), the Florida Supreme Court invalidated a Tampa ordinance making it illegal to loiter in a manner manifesting the purpose of procuring sex for hire. Under the ordinance, a person who was a “known prostitute” could be convicted for beckoning to motor vehicle operators to stop. See Id. at 235. The Court found that not only was the statute vague and over broad, but it also violated a citizen's substantive due process rights because it “ ‘unjustifiably transgress[ed] the fundamental restrictions on the power of government to intrude upon individual rights and liberties' ” by “punish[ing] entirely innocent activities” such as hailing a cab or signaling to a friend in an automobile. Id. at 237. Can you imagine the potential problems of such an ordinance. You and your spouse take a cab to a restaurant, eat, enjoy the meal and while you are fumbling to pay the bill, your wife or husband hails a cab and the next thing you know is a tired law enforcement officer think he recognizes your spouse as someone he has seen on the street before and before you know it she or he is hauled off charged with "beckoning a motor vehicle to stop." What a way to spoil an evening in Florida.

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On January 17th, 1977, after a four-year moratorium against capital punishment in the United States, Gary Gilmore was executed in Utah. His death, along with his bold last words ("let's do it") prompted a media and pop culture feeding-frenzy, inspiring songs by The Police and British punk band the Adverts, a "Saturday Night Live" sketch and numerous books and films.

Thirty years ago today, Johnny Cash reportedly called Gilmore to sing him a final song. Shortly afterward, Gilmore ate his last meal: a hamburger, hard-boiled eggs, a baked potato, a few cups of coffee and three shots of whiskey. As I recall, shortly after 8:00 AM, he was executed by firing squad.

Since that day, over 700 Americans legally executed in this country, and this tonight in Texas, between 4:00 and 7:00 PM, there will likely be one more.

Texas has more executions than any state in the nation. Florida is another state with a high number of killings by the state. A friend of mine who practices law in Texas, and who specializes in representing people who the State seeks to execute, told me there were 45 executions in Texas last year. Remember, studies have shown that a small percentage of people who are sentenced to death are innocent. I wonder of the 45 killed in Texas, how many of them may have been not guilty?

I have seen the methods and tactics of law enforcement in Florida in driving under the influence cases greatly improve over the last ten (10) years or so. Now, there are special units within almost all law enforcement agencies who’s job it is to specifically detect DUI (drunk driving) drivers. These roving units are sometimes called “DUI Task Forces.” Officers of these units are sometimes given awards based on the number of arrests they make. Both the Escambia County Sheriff's Office and Pensacola Police Department have these units.

Most of the squad cars belonging to a DUI task force officer have video cameras that film the driving pattern which may give an officer probable cause to make a stop. Once stopped, and while the officer is at the window of a person’s vehicle, everything being said is also being recorded. The officer wears a wireless remote microphone on his uniform that will record everything the driver says. Many jurisdictions also have a mobile breath testing unit that will respond to the scene where the officer has arrested a suspect. This way, there can be no argument that the person’s blood alcohol was not over the legal amount while he was driving even though an hour later when given the breath test at the jail the alcohol content had risen over the legal amount. Also, after the arrestee is placed in the back of the squad car everything he or she may say is also being recorded. Once case my young lady client, who was so demur and nice to the officer up until the time he arrested her, cut loose with some of the most profane and vulgar language I have ever heard while the officer was searching her car. Her sweet, demur image was tarnished to say the least.

The bottom line: people should not drink and drive. If you don’t, you don’t have to worry about these roving squads of well trained specialists just waiting for a drunk driver to make a wrong move. Different studies have indicated somewhere between 40% to 60% of the drivers on the road after 1:00 a.m. are legally under the influence of alcohol.

The landscape of cases involving domestic violence has drastically changed in the last decade. Once, a matter of intra family resolution, these cases have now become a tremendous burden to the justice system. Prosecutor's offices must now assign special prosecutors to these cases. Judges hand out tougher sentences to those convicted of these offenses. Counseling programs for abused spouses have flourished and are, in part, paid by tax dollars. I believe these cases are serious cases that should be prosecuted if based upon legitimate evidence. They certainly should. Although the judicial system is not designed to help break the cycle of women who are subject to repeated abuses from their mates, it can be useful in conjunction with counseling programs aimed at assisting abused women. However, too often have I seen cases brought against one party merely as leverage to obtain an advantage in a divorce, child custody matter, or, unfortunately, in anger when one mate or partner wants to dissolve the relationship.

Florida’s law now requires law enforcement officer’s make an arrest if the officer observes any signs of a struggle involving the complaining witness. Many times, it may even be the husband or male partner who calls law enforcement yet once the officer responds to the scene, the officer arrests the husband because the officer observes some evidence the wife or girlfriend has been in a struggle. There is definitely a bias I have observed where male police officers arrest the husband or boyfriend even if both parties show signs of being involved in a fight with one another. In one recent case I have, the officer who arrested the man, went to the woman’s home the next day and offered his assistance in replacing all her door locks. He went so far as to cut lumber and made sure ever glass sliding door in her house could not be opened. Many of the cases I have seen also involve one party trying to remove the other from the home, they struggle and police are called.

I have talked with a lot of people who are unaware that they can venture into any courthouse in our country, including any in Pensacola or anywhere in Florida, and watch real life drama unfold. Sometimes, is special cases, for example child abuse cases, the courtroom may be closed when a child testifies. However, 95% of all cases, state or federal, are open to the public to observe. Through the years I have seen “court room junkies,” people, usually retired, who go from courtroom to courtroom watching trials that interest them. Unlike television, many trials are not full of excitement unless you consider watching golf on t.v. an exciting, action packed sport. (No offense to golfers). White collar cases, where large amounts of paperwork are admitted into evidence are generally a bit boring. Also, personal injury cases, although handled sometimes by excellent lawyers, are generally not full of what most of us would consider excitement.

However, there is nothing like a murder case to get one’s interest peaked. Crime scene testimony, photographs, suspect statements, witnesses testimony, etc., can all be observed and heard first hand if one merely wants to take the time to go to the courthouse to watch. The judges in Pensacola welcome observers in the audience. You will see that the magical feats performed on CSI and other crime shows are not often present in real life trials. A good method of finding where “the action is” is to ask a courthouse security person or bailiff which judge is handling a felony trial or if there are any murder, drug, sexual battery cases, etc. being tried that week. Generally, in almost all courthouses, including Pensacola, you will find something interesting to watch. Something else you will find out if you watch trials down at your county courthouse: the O.J. trial was almost "make believe." It’s too bad, in my opinion, that many people believe that the O.J. case is just another example of how our criminal justice system works. The O.J. case was a more of an entertainment show, not a trial. But that is another story in and of itself.