Criminal Defense Attorney | Criminal Defense Law

Blog Published By Kenneth Padowitz, P.A.

‘Appeal’

Double Jeopardy | Tuttle v. State

Burglary | Double Jeopardy

Double Jeopardy Tuttle v. State Depending on which crime an individual is charged with determines the severity of penalties someone may face if ultimately convicted. As we have discussed in other posts, the prosecutor’s decision on which charge to file matters. In Tuttle v. State, Florida’s Second District Court of Appeals reviews a case in which the double jeopardy rule applies, and the definition of “lesser offense” is disputed. Timothy Tuttle, Jr., was charged with second-degree murder, as well as armed burglary and attempted home invasion; this is a result of a fatal incident involving Tuttle and an accomplice. Masked and armed with guns, Tuttle and his colleague broke into a home in Florida and demanded money and drugs. After looting the house, Eric Stuebinger was shot and the men fled; Stuebinger later died from the gunshot wound. The victim’s girlfriend was able to positively identify Tuttle in trial, and the jury reached a verdict of guilty on the charges of manslaughter with a firearm, armed burglary, and attempted home invasion robbery. Both the State and Tuttle agreed on the fact that he cannot be found… Read More

Florida Supreme Court | Recording Cannot Be Used As Evidence

Recording as Evidence

Two-Party Consent Law The Florida Supreme Court ruled in McDade v. State of Florida, that secretly recorded statements by the victim of a crime cannot be used as evidence against the defendant; this applies even in cases of child sex abuse, or neglect. It was unanimously decided by the justices that the FloridaLegislature would have to change the current law as it stands to allow any such evidence to be allowed as evidence into court. Within the 18-page decision, Justice Charles Canady made it clear that there is no exception to this ruling: “The recordings supported the victim’s testimony that McDade would regularly ask her to have sex with him after school. On both occasions, though he did not use sexually explicit language, he appeared to be asking her to have sex with him. He pressured her by suggesting that if she did not have sex with him he would get physically sick. McDade also indicated he was doing her a favor by not telling her mother that they were having sex because if the mother knew she would take the victim back to Mexico.”… Read More

Colorado v. Schaufele | Driving Under the Influence

Criminal Attorney Kenenth Padowitz discusses the issue of a search and seizure involving BAC in a DUI case

Driving under the influence of alcohol is a common offense in the United States of America. Sobriety tests and blood analysis are two common ways of testing for alcohol consumption. The offense is a misdemeanor and therefore rarely gets to the Supreme Court. Recent questions have however arisen pertaining as to whether warrants to conduct blood tests should be obtained or not. The United States Supreme Court was engaged in the case of The People of the State of Colorado v Jack Lee Schaufele. Schaufele was charged with driving under the influence of alcohol on May 30 2012. He was involved in a car accident on that day. Two officers who arrived at the scene recalled that the accused had a “thick tongue” and “sluggish speech”. They however associated these to the impact of the accident and as such felt no need to draw a blood sample from him. Furthermore, a paramedic at the scene smelled Schaufele’s breath and did not suspect or detect possible alcohol consumption. A third officer who arrived at the scene later was briefed on the situation and accompanied the victim… Read More

Drug Trafficking | State v. Sanchez

Drug Trafficking | State v Sanchez Criminal Defense Attorney

Drug Trafficking Charge Not All Charges Are Equal There are often completely different outcomes in similar criminal cases depending on the statute an individual is charged with. Prosecution must be accurate and precise in their charging decisions. Charging someone with the wrong crime can result in charges being dropped; cases are lost all the time due to technicalities. In State v. Sanchez, Florida’s Fourth District Court of Appeal acknowledges the importance of being charging an individual under the correct statute, but then goes ahead and reverses the trial court’s decision based on an interpretation of the law. Betsy Sanchez, a nurse practitioner, was charged with nine conspiracy and drug trafficking offenses. The prosecution claimed she had been selling prescription drugs, including various painkillers such as Oxycontin. They went further to say that these prescriptions were “written in bad faith and not in the course of professional practice.” At trial, prosecution had a debate over whether the charges filed were correctly chosen; 893.135(1)(c) or 893.13(8). The section under 893.135(1)(c) does not apply to medical practitioners; and penalties range up to first degree felonies. Statute 893.13(8), specifically applies… Read More

Necessity Defense

DUI |Driggers v. State | Brooks v. State

Florida’s Take On The Necessity Defense In The Context Of A DUI Charge Under certain circumstances, any individual charged with DUI in Florida may argue that they were justified in driving under the influence due to an emergency situation. As explained by the Fifth District Court of Appeal in Florida in Driggers v. State, there are six elements to the defense of necessity: The defendant must reasonably believe there was danger or an emergency existed that was not intentionally caused by the suspect The danger or threat of danger must be “real, imminent, and impending” The danger or emergency must threaten significant harm to themselves or another person The defendant must have had no other way to avoid the emergency or danger except by committing the crime The crime must have been committed out of duress, with the purpose of avoiding the danger or emergency The harm the defendant potentially avoids must outweigh any potential harm caused by committing the crime In Newsome v. State, a trial court ruled that in favor of a man claiming that it was necessary for him to move the… Read More

Drug Conspiracy Law In Florida – Hampton v. State

Drug Trafficking Cocaine

Interpretation Of Criminal Law Hampton v. State A conspiracy is defined in law as an agreement between two or more individuals to commit a crime. Although this may seem like a pretty straightforward definition, as with most criminal law, it is up to interpretation. The focus of this post will be to discuss Florida’s Fifth District Court of Appeals interpretation of a conspiracy charge, and how it applies to those accused of drug trafficking. In Hampton v. State, Albert Hampton appeals a guilty verdict of conspiracy to traffic cocaine. The City County Investigative Bureau of the Seminole County Sheriff’s Office found a mid-level supplier of cocaine named Marcel Crichlow. Police were able to tap his phone, which resulted in recordings of Crichlow and Hampton discussing their illicit business, often using code words. With these series of conversations available to police, Hampton was arrested and charged with conspiracy to traffic cocaine. During trial, Crichlow testified against Hampton; claiming up to five ounces of cocaine were sold to Hampton at regular intervals; an explanation as to the meaning of the code words that were used in their… Read More

Self-Defense and Florida’s New Perspective | Criminal Defense Law

Self-Defense Criminal Law

 Florida’s New Perspective on Self-Defense Florida Governor Rick Scott made it official that the use of defensive threats of force, such as “warning shots”, is considered self-defense. By signing HB89, Floridian’s are now allowed to use a defensive threat as a means of self-defense, without the fear of going to prison. An Affirmative defense is defined as one in which a defendant admits to all elements of the crime but is not held criminally liable. Affirmative defenses fall into two categories, either an excuse or justification. In a justification defense, the defendant admits to all elements of the crime, but argues there is no criminal liability because the acts are justified. Where as in an excuse defense, the defendant argues the wrongdoing is excused for some reason that is personal to the defendant. Lack of mental capacity, insanity, and duress are all examples of an excuse defense. Self-defense is a justification defense. The defendant is a non aggressor who reasonably believes that force is necessary to protect themselves from the imminent use of unlawful force by another. The force used by the defendant must be… Read More

Search And Seizure | Appeals Court Decision

Search and Seizure | Fort Lauderdale Criminal Defense Attorneys

The Search and Seizure Law | When Does It Apply? The Fourth Amendment of the Constitution protects its citizens by placing limits on the power of law enforcement to search people and their property, seize objects, or make arrests. These checks and balances are put in place to ensure that we as American citizens have the right to a certain degree of privacy. The Fourth Amendment protects us against any unreasonable searches and seizures by the government, both state and federal law enforcement. If there is probable cause of a crime committed, or a Judge has issued a warrant, police may override your right to privacy and conduct a search of you or your property. As long as an individual has a legitimate expectation to privacy, the Fourth Amendment applies and is there to protect you. Unfortunately, the meaning of what is written in the constitution and it’s amendments, is up to interpretation. Unreasonable, and legitimate expectation to privacy can mean completely different things to two individuals. This is where the important role of the judicial branch of the government comes in; to interpret the… Read More

Mistaken Police Officer

Chief Justice John G. Roberts Jr

Mistaken Police Officer Now An Exception to Unreasonable Search The United States Supreme Court has ruled that a police officers good faith reasonable mistake on the law does not run afoul of the 4th Amendment to the constitution that bans unreasonable searches and seizures. In Heien v. North Carolina, the Court in a 8-1 decision written by Chief Justice Roberts that searches and seizures based on an officer’s reasonable misunderstanding of the facts has been permissible for a some time. Roberts stated that same reasoning should apply to mistaken interpretations of the law. In a case from North Carolina based on a 2009 traffic stop from a broken brake light, the court expanded further into the erosion of our fourth Amendment protections of civil liberties. A police officer pulled a car over for a broken brake light not realizing the state law allowed only a single working light, which this car had. Sgt. Matt Darisse conducted the traffic stop of the vehicle that Nicholas Hein had been sleeping in the back seat as his friend drove. Hein, who was the cars owner, agreed to a… Read More