Criminal Defense Attorney | Criminal Defense Law | Page 8 of 9 | Blog Published By Kenneth Padowitz, P.A.

Ineffective Assistance of Counsel | Florida Rule of Criminal Procedure 3.850

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

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Double Jeopardy | Tuttle v. State

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

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Florida Supreme Court | Recording Cannot Be Used 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

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Child Neglect | Gun in Toddler’s Mouth

Video of Toddler Gun in Mouth | Child Neglect

Video of Toddler with Gun in Mouth Parents Arrested | Child Neglect & Criminal Recklessness Parents from Evansville, Indiana, are facing charges of criminal recklessness and child neglect after police found a video of their one-year-old child placing a gun in her mouth, which police later identified as a .40-caliber handgun. According to the report, a man can be heard saying “pow”, and encouraging the child to do the same. Michael Barnes was arrested after attempting to sell a gun to an undercover police officer that he met online, which then led to the discovery of the video on the phone. It is still unclear whether or not police legally obtained the video from the cell phone; according to the U.S. Supreme Court opinion in Riley v. California, police need to obtain a warrant to go through the contents of a suspect’s phone. If the video was illegally obtained, a criminal defense attorney may file a motion to suppress the evidence due to an illegal search or seizure. Assuming there was no error on the police’s part, the video will be used against Michael Barnes during… Read More

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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

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Drug Trafficking | State v. Sanchez

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

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Most Common DUI Question Answered

Most Common DUI Question Answered: What Do I Do If I Am Pulled Over? The moment you see those blue lights flashing in the mirror, your heart skips a beat and you begin to have sweaty palms. Your mind starts to race and you ask yourself – what do I do now? Knowledge is power. If you remember these simple facts you will be in the best legal position should you be arrested for DUI. Don’t Drink and Drive. If you are like millions of Americans and do frequent restaurants, bars, nightclubs, sporting events or anywhere that legally serves alcohol, do not drink until your “normal faculties are impaired”, or you have a “Blood Alcohol Level” (BAC) of .08 or above if you’re an adult. It is perfectly legal to drink and drive, just not beyond the limits just described. The Police are Gathering Evidence To Be Used Against You. As citizens, we want the police to keep our streets safe and conduct criminal investigations of motorists when appropriate. If you are pulled over after drinking alcoholic beverages, the police officer may very well begin… Read More

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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

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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

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Drug Conspiracy Law In Florida – Hampton v. State

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

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