Pre-trial diversion and pre-trial intervention can help offenders avoid getting convictions on their record in Pensacola and Northwest Florida.Everybody makes mistakes.

For some people, those mistakes bring them into conflict with the law. Thankfully, Florida law recognizes that, in some cases, offenders deserve a second chance.

In Pensacola, Milton, Fort Walton, Destin, and all over Northwest Florida, our State courts offer two programs that defer some offenders away from the criminal justice system who have never been in trouble with the law, generally for certain types of first offenders.

Keeping a gun in your car in Pensacola, Milton, Navarre and Gulf Breeze, Florida.As most of us are aware, the Second Amendment to the U.S. Constitution guarantees every American’s right to own a gun. That right doesn’t stop when you get into your vehicle.

In fact, in communities like Pensacola, Navarre, Milton and Fort Walton Beach – really, anywhere in this part of Florida — it is quite common for drivers to keep firearms in vehicles. Who hasn’t seen trucks with gun racks in their windows, sporting one or more hunting guns?

In fact, it’s just as legal to keep your handgun in your car depending on how and where you keep it.  Making sure your gun is in plain sight – that is, not concealed – is the key to its legality. The legal definition of “concealed firearm” is contained in Fla. Stat. §790.001. This statute defines a “concealed firearm as any firearm carried on or about a person (or car) in such a manner as to conceal the firearm from the ordinary sight of another person.” (Emphasis added).

no contest plea, pensacola, florida, Gulf BreezeMany of us have heard the term “no contest,” or in Latin “nolo contendere,” which means “I do not wish to contend,” on television or maybe during a trip to court here in Pensacola, but what does that mean and what is the difference between a plea of no contest and a plea of guilty in Florida?

Sometimes there is, effectively, no difference and sometimes there is a considerable difference.

If someone pleads guilty, they are admitting to the facts and legal consequences of those facts.  However, by entering a no contest plea, a person is not admitting their guilt but is admitting there are facts the prosecution can prove that would result in a conviction.  Specifically, by entering a plea of no contest a person is neither denying their guilt or admitting it. Rather, they are admitting that it is in their best interest to enter the plea.  The sentencing consequences can be, and usually are, the same.

plea agreement, Pensacola, attorney, crimeA plea agreement is a negotiated contract between a defendant’s attorney and the prosecutor that spells out the sentence that is acceptable to both parties. That sentence is then recommended to the court; it is then up to the court to accept or deny the terms of the plea agreement.

Provided the court accepts the terms agreed to, there will be no need for a trial. If the court does not accept the conditions, the defendant is generally allowed to withdraw the plea and choose to either plea without a plea agreement “straight up” to the court or go to trial.

Plea agreements have the advantage of certainty for the defendant. Almost always, the sentence agreed upon in the plea agreement is something less severe that the maximum allowable punishment under the law – otherwise there would be no reason to enter into a plea agreement.

Like anyone doing their job, law enforcement officers should be treated with kindness and courtesy. They put their lives on the line every day in the name of public safety. The role police officers play in our society deserves a high degree of respect.

However federal and state law enforcement officers, which include Pensacola Police Officers, Escambia Sheriff’s Deputies, and other law enforcement officials operate under certain limitations enshrined in the U.S. Constitution’s 4th amendment protections, other federal and state laws and court cases interpreting those laws of how they can search your person and your property — and that includes your car!

Fourth Amendment Protections Applies to Your Car

expungement sealing arrest attorney
If you’ve ever been arrested but you were not convicted, you may think you have a clean criminal record. A prosecutor, defense attorney or perhaps even a judge may have told you that.

However, your criminal record may not be as clear as you think it is. But an attorney can help that arrest virtually disappear through processes called expungement and sealing allowed in Florida under Fla. Stat. §943 (2015).

In most cases, being arrested for a crime will result in a permanent record of the arrest regardless of the charge being dismissed or adjudication being withheld.  In some situations, expungement and sealing can keep an arrest from showing up on background checks.

spring break partyFew things can put a damper on a spring break trip to Pensacola Beach, Navarre, Ft. Walton Beach or Destin like getting arrested.

As disheartening as that can be, the right attorney may be able to help you avoid a mandatory court appearance or, possibly, even having a blemish on your record. Here are some common reasons – and remedies – for spring break arrests:

Minor in possession of alcohol or marijuana: Although those arrested for being a minor in possession are not usually taken to jail, they are issued what’s called a “Notice to Appear.” That is a legal requirement to appear in court on a particular date, usually a few weeks later. In Florida,  it has the same effect as an arrest, unfortunately. The defendant must appear at that court date unless he or she hires an attorney who can waive the requirement to appear.  Sometimes an agreement can be reached with the prosecutor eliminating the need to appear or even come back to Pensacola.

traffic stop
Often times a police officer will ask someone who they have stopped to issue a traffic citation to if the officer can search their car. It surprises me sometimes how often a person consents to allowing the officer to search when the officer has no grounds to do so and when the person has drugs or something illegal in their car!

Generally the only time an officer can search a person’s car without consent is if they have probable cause to believe that the car contains drugs or contraband or if an individual in the car is arrested and the car is searched “incident to that arrest.” I think most of the time people who consent to their car being searched knowing that there are drugs or contraband in the car do so because they believe if they didn’t consent the officer will search it anyway. This is not true. In the situation where the officer can search pursuant to probable cause, there must be some indication that drugs or contraband are in the car, e.g. they smell marijuana or drugs or contraband is in plain or open view. “Plain view” means that the drugs or contraband must be visible from the position the officer is in outside of the vehicle.

So what do you do if an officer asks you for consent to search your car? The best thing to do is to politely refuse. You may want to say something like this, “Officer, I know you are only doing your job, but a friend of mine who is a lawyer told me that I don’t have to give consent and I don’t really want to be inconvenienced by staying here while you search through my car, so I respectfully decline,” or, more simply, “No sir, I don’t give consent. Now may I be on my way?” The officer may be disgruntled or upset about not allowing him to search your car but so be it. The officer, if he or she is finished writing you a citation cannot legally keep you at the scene of the stop any longer. It is better to be on your way than to be held up by an officer going on a fishing expedition inside your vehicle and probably calling a canine unit to perform a dog sniff on the interior or your car as well. Although you may not have any drugs or contraband in your car and you don’t think anyone who has been a passenger ever has had drugs if the prior owner used drugs or if a passenger unbeknownst to you has had drugs in their possession, something could be found or a drug sniffing dog could alert.

Often times, upon stopping a motor vehicle, police will claim they smell marijuana leading to a search that yields not only marijuana but other controlled substances. If the officers claim they smell marijuana, under current case law, law enforcement has a right to search the individuals in the car as well as the interior of the car. The leading original case that gives law enforcement this right is State v. Betz, 815 So. 2d 627 (Fla. 2002), a Florida Supreme Court case.

We’ve handled countless cases in which a vehicle was stopped and the law enforcement officer claims to have smelled marijuana. However, in some scenarios, when the officer searches the vehicle and people or person within the car, no marijuana is found yet the search yields other types of controlled substances, often resulting in a felony arrest.

The facts must be thoroughly analyzed by an attorney experienced in search and seizure law. This scenario may come down to credibility of the officer or officers compared to the individual or persons within the car. Issues to consider are “How many officers were at the scene when the marijuana was allegedly smelled?” “Did more than one officer smell the marijuana?” Were there other people in the car that are credible individuals that could testify unequivocally that marijuana was not being smoked or that a person could not smell fresh marijuana itself that was seized? Would such an individual be willing to testify in court at a motion to suppress hearing or trial? What kind of criminal arrest or conviction history do witnesses have? Does the officer claiming he or she smelled marijuana have issues within his or her personnel or human resource file which are available through a public records request in Florida? Or, in some circumstances, the question may be, “If the officer claims he smelled marijuana, why there was no marijuana found in the car?!”

Florida judges have a special authority vested upon them to “withhold adjudication” in a criminal matter pursuant to Fla. Stat. §948.01. This means that the person who enters a plea of “no contest” or guilty plea to a felony charge may, depending on the nature of the felony, not be considered a “convicted felon” under current Florida law. To be offered or receive a withholding of adjudication a citizen generally will not have a much of a preexisting criminal history or has not been convicted of a felony in his or her past. The individual who receives a withholding of adjudication will not lose his or her voting rights and, again, under current Florida law, will not lose their right to possess a firearm in Florida once they have successfully completed probation.

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However, a more complex and precarious situation exists in our federal court system for Florida citizens who have received a withholding of adjudication for a felony. Under currently existing federal law, a person currently may be prosecuted under 18 USC §922(g), possession of a firearm by a convicted felon, in federal court even if they have received a withholding of adjudication for a Florida felony. The United States Court of Appeals for the Eleventh Circuit (11th Circuit) is the federal court with appellate jurisdiction over all of the federal district courts in Florida, Alabama and Georgia. Pensacola is within the Northern Federal District Court of Florida.
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