Criminal Defense Attorney | Criminal Defense Law

Blog Published By Kenneth Padowitz, P.A.

‘Criminal Procedure’

Tattoos and Rap

tattoos in court | Broward criminal lawyer Kenneth Padowitz

Several members of the Latin Kings gang were arrested in Florida for racketeering and other charges. 23 of its members were incriminated in the process of indictment, as associates of one of the biggest and most well organized gangs in the country. The trial sparked controversy and great surprise when the most powerful evidence presented for the case included gang-related tattoos, symbols, and handshakes. People asked, was this a violation of the First Amendment – the right to free speech? Criminal Procedures Guided by Federal Rules Courts are bound by Federal rules of criminal procedure when evaluating and determining when and how they can use evidence in a case. Some submitted evidences may bear insignificant probative value but the defendant may find it highly detrimental to his defense. One example is: a defendant that was arrested for beating up a neighbor does not immediately prove that he also stole a different neighbor’s car. While these two events were unrelated and does not necessarily have bearing for the defendant, the mere presence of sharing the first crime’s incidence with the jury will put the defendant at… Read More

How Far Can The Government Go In Freezing Untainted Assets of Individuals Charged With Crimes?

frozen assets | Broward criminal lawyer Kenneth Padowitz

The constitution basically provides protection for an individual who has been arrested for committing a crime. There are rights that remain effective even before court procedures commence. Because freedom is at stake in the process, the 5th and 6th Amendment ensures that an individual will have legal assistance. An accused can choose the attorney to represent him most especially if he has the financial capacity to do so. The close relationship between an accused and his attorney is important for the success of the defense. It has been proven over and over again that those who have no choice but to be contented with state-provided attorneys lose in court battles. This is due to the fact that such lawyers are often burdened by a lot of work brought by too many cases they are handling. How A Criminal Defendant’s Assets Are Frozen Asset freezing can be ordered by the government if the crime committed by an individual falls under the “white collar” category. The logic here is easy to see. Since white collar crimes involve money, the monetary assets of an accused are basically evidences… Read More

What Kinds of Testimonial Privileges Do We Have In a Criminal Case?

Fort Lauderdale DUI Attorney Kenneth Padowitz explores the various privileges against incriminating testimony when facing a criminal charge.

Do we have any privileges that will prevent people from testifying against us in a criminal case? While most people are aware of, or partially understand the rights afforded to them, including the protection from self-incrimination, it is less commonly known that there are laws that can aid an individual in preventing others from testifying against them. Different privileges are available under state and federal law, and are often recognized in both state and federal courts. Although we may have certain privileges available, it is usually up to the defendant or attorney to assert their intentions of using these protections. The defendant usually must knowingly object to any testimony that may potentially be protected by a recognized privilege. Attorney-Client Privilege This is one of the most commonly known, and exists to allow the attorney and client to be able to discuss all aspects of a case, without the client fearing that their attorney will end up using the information that was provided against them in trial. Religious Confession (Clergy Privilege) The Federal Rules of Evidence recognize the clergy privilege, protecting both the individual making the… Read More

Boynton Beach Police Officer Accused Of Rape | Seeking Pretrial Release

DUI | Sexual Battery| Police officer

Stephen Maiorino, a married Boynton Beach police officer and a father of two, has been accused of on-duty rape and is seeking pretrial release. The prosecutor called the officer a danger to the victim and the rest of the community. The defense attorney claims the sexual encounter was “consensual”. Maiorino is facing two counts of sexual battery by a law enforcement officer with a firearm, armed kidnapping, and a bribery-type offense; if convicted he faces a maximum sentence of life in prison. On October 15, police pursued an individual who was later arrested for DUI, fleeing and eluding, and resisting arrest without violence. The passenger of this vehicle, the accuser, was left stranded with no working cell phone after police towed the vehicle. According to court records, Maiorino was supposed to take the alleged victim back to the police station so she could call family for a ride. In her statement, the officer began to threaten her with arrest unless she performed oral sex on him upon arrival to the police station parking lot. Soon after, the officer drove her to an “abandoned field” to… Read More

Ineffective Assistance of Counsel | Florida Rule of Criminal Procedure 3.850

Attorney | Appeal

Ineffective Assistance of Counsel Florida Rule of Criminal Procedure 3.850 An appeal based on the Florida Rule of Criminal Procedure 3.850, is an appeal of last resort. It is used when all other appeals have been exhausted. This appeal is a claim of ineffective assistance of counsel, in which the defense attorney was unprepared, or incompetent in representing the client. An appeal of this type suggests that if it weren’t for the incompetent attorney, the end-result of the case would have been different; for this appeal to be effective, the appellant must substantiate this claim. The United States Supreme Court decision of Strickland v. Washington established the standard to determine the legitimacy of the claim of ineffective assistance: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is… Read More

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

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

Federal Crimes

Fort Lauderdale Criminal Defense Attorney | FBI & Federal Crimes

Federal Crimes What are Federal Laws? Federal laws are passed by Congress and apply throughout the United States, including Washington D.C. Often times, criminal acts are considered offenses in both State and Federal law; prosecutors must then decide whether the perpetrator should be tried in State or Federal Court. Some crimes are written in Title 18 of the United States Code, which is the Federal criminal code; others will be listed under other titles, for example: possession of banned firearms which is listed under the National Firearms Act, and tax evasion are both criminalized in Title 26 of the United States Code. What Does it Mean to be Charged with a Federal Crime? When charged with a federal crime, you will be dealing with local or State law enforcement, along with any Federal agencies (FBI, U.S. Immigrations and Customs Enforcement, DEA, U.S. Secret Service, or Criminal Investigation division of the IRS) involved in the investigation. The FBI is the agency that investigates and prosecutes the majority of Federal offenses. With extensive resources, sweeping authority, and highly trained personnel, these Federal agencies allow the prosecution to… 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