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If you are currently facing sex crime charges, it is important to be aware of both the elements of the crime charged and the elements considered for sentencing if you are convicted of the crime. The elements weighed for sentencing may be different than those needed to find a defendant guilty, and if certain elements are present it may result in increased penalties.

For example, in a recent federal appellate case which arose out of a Florida district court, the court held that the sentencing guidelines for child pornography allow for enhanced sentencing for a person convicted of possession of child pornography, if the offender is determined to have produced or caused the production of such pornography. If you are a resident of Clearwater currently facing sex crime charges, you should consult a skilled Clearwater sex crimes defense attorney to help you develop a plan to help you retain your rights.

Defendant’s Conviction and Sentencing

Allegedly, the defendant was convicted of conspiring to receive and possess child pornography and receiving child pornography. He was sentenced to 480 months in prison. He appealed his sentence on the grounds that the trial court erred when it determined that he’d produced or caused the production of child pornography in determining an appropriate sentence. He further argued his sentence was unreasonable due to certain mitigating factors such as his lack of criminal history, his record of public service, and his unstable childhood. On appeal, the court affirmed his sentence.

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One of the protections afforded criminal defendants is the prohibiting of hearsay testimony as evidence of a crime. While there are certain exceptions to the rule against hearsay, they are strictly construed. As shown in a recent case ruled on by a District Court of Appeal of Florida, if a trial court erroneously allows the admission of hearsay evidence, it can result in a conviction being overturned. If you live in Clearwater and are charged with a crime, it is in your best interest to meet with an experienced Clearwater criminal defense attorney to help you retain your rights.

Reported Facts

Allegedly, the defendant went to the apartment of his friend’s neighbors to question them about reportedly harassing his friend. It is undisputed that the neighbors’ door was knocked down, the defendant entered the apartment, a fight ensued, and a gun was discharged. The exact details of what happened after the defendant arrived at the neighbor’s apartment were disputed, however. Following the incident, the defendant was charged with multiple crimes.

At the trial, the defendant testified that he asked the neighbors to leave his friend alone, accidentally knocked the door down, and was pulled into the apartment, and one of the neighbors’ had a gun that discharged. In contrast, the neighbors testified that the defendant kicked in the door, pointed a gun at them, assaulted them, and discharged the gun. The defendant’s friend did not testify at the trial. The state admitted out-of-court statements made by the friend into evidence at the trial, despite objections by the defendant’s counsel that they constituted hearsay. The statements indicated the friend was going to send someone to “put a cap in” the neighbors and beat them up. The state argued these statements were evidence the defendant intended to assault the neighbors when he went to their apartment. The defendant was ultimately convicted of burglary of an occupied dwelling and assault, but the jury specifically found that the defendant did not use or possess a firearm or commit a battery. The defendant appealed, arguing the evidence regarding his friend’s out-of-court statements constituted inadmissible hearsay.

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Double jeopardy principles prohibit the state from charging or trying a defendant more than once for the same crime. In some cases where dual offenses result from the same factual scenario, double jeopardy precludes a defendant from being convicted for both crimes. This is not true with all crimes involving multiple offenses, however, as illustrated in a recent case arising out of a Florida court of appeals.

The court, in that case, rejected the defendant’s argument that he could not be convicted of both robbery and theft because it constituted double jeopardy, affirming his conviction of both charges.  If you face criminal charges in Clearwater, you should confer with a seasoned Clearwater criminal defense attorney to help you develop a strategy for your defense.

 Factual Scenario

Reportedly, an armed robbery occurred at a convenience store. Police suspected the defendant committed the robbery as well as other robberies and conducted an investigation. The defendant was subsequently charged with armed robbery, grand theft, and possession of a firearm by a convicted felon, based on the results of the investigation. A jury convicted the defendant of armed robbery and petit theft. The defendant was sentenced to life in prison. He appealed his conviction arguing, among other things, that he could not be convicted of both robbery and theft because it constituted double jeopardy. The court of appeals rejected his argument and affirmed his conviction.

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While every suspect is presumed innocent until proven guilty, in some cases it makes sense for a person charged with a sex crime to enter into a plea agreement or to plead guilty and allow the court to assess a penalty based on that plea. Even if a defendant concedes guilt to a crime, however, the law still affords the defendant the right to a fair and appropriate sentence for the offense charged.

Recently, in a case arising out of the Court of Appeals for the Eleventh Circuit, the court vacated a sentence for a defendant who entered an open plea for the charge of lewd and lascivious behavior, due to an error on the sentencing scoresheet. If you are charged with a sex crime in Clearwater, you should retain a knowledgeable Clearwater sex crime defense attorney to discuss which plea option is in your best interest.

Defendant’s Plea and Subsequent Sentencing

Reportedly, the defendant entered an open plea to lewd or lascivious battery, burglary, and grand theft. In Florida, an open plea is essentially a guilty plea without an agreement with the state regarding sentencing. Rather, an open plea allows the judge to determine the appropriate sentence for the crimes charged.

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Florida law affords individuals convicted of crimes certain rights with regards to sentencing. For example, certain sentences must be orally pronounced, and with few exceptions, a defendant has the right to be present at his or her sentencing hearing.

As the District Court of Appeal for the Second District of Florida recently held in Darwin v. Florida, if the trial court imposes a sentence without the presence of the convicted party, it can result in the sentence being reversed. If you were charged with a sex-crime in Clearwater, it is important to retain an experienced Clearwater sex crimes attorney who will fight diligently to protect your liberties.

Defendant’s Sentencing

Allegedly, the defendant was convicted and sentenced for uninformed HIV-infected sexual intercourse. His sentence included a $525 discretionary fine. During the sentencing hearing, the fine was not orally pronounced; therefore, the defendant filed a motion to correct the sentence, arguing that the fine was improperly imposed due to the fact that Florida law requires discretionary fines to be orally pronounced to ensure due process. The trial court agreed and scheduled a status conference during which the court orally pronounced the fine, but made no other changes to the sentence. The defendant was not present at the status conference. He subsequently appealed the discretionary fine, arguing that the trial court erred by imposing the sentence without his presence at the hearing. The court agreed and reversed.

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Under Florida law, a lesser included offense is a less serious crime that is incorporated into a more serious crime. For example, a lewd and lascivious act, which is a misdemeanor, is a lesser included offense in several felony level sex crimes. In cases where the jury is permitted to evaluate whether a defendant is guilty of a lesser included offense, a defendant may avoid the risk of a felony conviction. Therefore, if a defendant is tried for a crime that has a lesser included offense it is essential that the jury is instructed regarding the lesser offense.

As the court recently affirmed in Calhoun v. Floridaa case arising out of the First District Court of Appeal of Florida, the failure to ensure a jury is properly instructed regarding lesser included offenses results in a waiver of the right. If you are charged with a sex crime in Clearwater it is essential to your defense obtain a skilled Clearwater sex crime defense attorney to evaluate your case.

Factual Background

Purportedly, in Calhoun, the defendant was charged and convicted of sexual battery by multiple perpetrators. He appealed, arguing that the trial court erroneously failed to instruct the jury regarding the lesser included offense of a lewd and lascivious act. The court affirmed the defendant’s conviction, finding that the defendant did not argue at trial that the court erred in failing to instruct the jury on a lesser included offense, and therefore did not preserve the issue for appeal.

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If a defendant is asking the court for something, usually they need to file a motion. A motion is a document that asks the court to take a specific action. When a defendant files a motion with the court, there are specific requirements that the motion must conform to in order for the court to be willing to consider it. Generally, the motion must include the relief requested and the reasons the court should grant the relief. One of the things that defendants need to be aware of is if that some motions are only allowed to be filed once, and so must include all of the requisite information. It can be confusing, which is where your skilled Clearwater sex crimes defense attorney comes in. They can help you to make sure that any motions you file are complete.

Florida Post-Conviction Relief: 3.850

In a case heard by the Fourth District Court of Appeal of the State of Florida, the motion at issue was a motion for post-conviction relief, based on rule 3.850 in the Florida Criminal Code. The defendant here was convicted of two counts of lewd or lascivious battery on a child over 12 and one count of lewd of lascivious molestation. After his conviction was affirmed on direct appeal, the defendant filed a rule 3.850 motion with the assistance of counsel from the public defender’s office.

Post-conviction relief may be available for defendants when there has been ineffective assistance of counsel, when there are requests for DNA testing, and when there are concerns that the sentence may be illegal. Since this motion is seeking post-conviction relief, it can only be filed after there has been a conviction. Generally a motion of this kind is asking for the original verdict to be vacated and for there to be a new trial.

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Unless the weapon used to commit a crime is recovered, it may be unclear what kind of weapon it is. In a case heard by the Florida First District Court of Appeal, a defendant argued that his conviction for a Florida robbery with a firearm should be overturned. His position was that the trial court erred in their jury instructions and thus the court committed fundamental error.

What is a Firearm?

It may seem like a straightforward question, but your experienced Clearwater violent crimes attorney can tell you it is not as simple as it sounds. In this case, there was surveillance footage that showed the defendant holding up the clerk at gunpoint. The defendant alleges that the “weapon” he was using was actually a BB gun, though the prosecution showed evidence that would tend to indicate that it was not. However, the main argument in this appeal was over jury instructions.

During closing arguments, the defense explained that a firearm is a weapon that expels a projectile through the use of an explosive. At trial, and with the consent of defense counsel, the jury was given instructions that once again explained that a firearm requires an explosive action. As they were deliberating, the jury asked the court to clarify whether a BB gun counted as a firearm or not. The prosecution noted that there was a case that specifically held that a BB gun was not a firearm. The judge decided to tell the jury that they have heard the evidence and referred them back to the jury instructions. The jury returned with a verdict that found the defendant guilty of robbery with a firearm and he was sentenced to 30 years in prison with a mandatory 10 years due to possession of a firearm.

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In Florida, as in all states, defendants need to be competent in order to stand trial. If a defendant is not sufficiently competent enough to meaningfully participate in their own defense, then they are not constitutionally allowed to stand trial. In a case that was recently heard by the Fourth District Court of Appeal of Florida, a defendant argued that his conviction should be overturned because the court did not make a competency determination before trial.

Competency Hearings

A defendant’s qualified Clearwater sex crimes defense attorney can make a motion for a competency evaluation under Florida Rule 3.210. In this motion, the defense attorney explains the reasons behind asking for an evaluation, including expert reports, statements by family members, and any attorney observations. However, all parties, including the judge and prosecutor, have a responsibility to inquire into the defendant’s competence if they have reason to suspect that the defendant might not be fully competent.

Once a competency hearing is ordered, the court will appoint experts to interview and examine the defendant. The experts will then offer opinions of the defendant’s competency. If the defendant is not found to be competent to stand trial at that time, they are then moved to a locked facility. These facilities are specialized to help defendants regain competency so they are able to stand trial. Once the defendant’s competency is restored then the trial can proceed.

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Florida law allows a defendant to have their sentence reduced in certain specific situations. This is called a “downward departure.” Generally, defendants are eligible for a downward departure in their sentence when there has been a specific extenuating circumstance that makes a downward departure just. Your knowledgeable Clearwater criminal defense attorney can tell you whether you may be eligible for a downward departure based on the circumstances of your case.

Florida Downward Departure Law

When someone is convicted of a felony in Florida, they are sentenced using guidelines in the Florida Criminal Punishment Code. Essentially, the code has a scoresheet that it uses to determine the amount of prison time that someone should serve. However, in some cases with extenuating circumstances, the court may want to sentence the defendant to less than the minimum sentence determined by the code. This is called a downward departure. Courts can issue a downward departure provided that two conditions are met.

The first thing that the court must find for a downward departure is that there is evidence of mitigating circumstances that supports a downward departure. The code lays out 14 circumstances that may be considered mitigating for a downward departure. These include: the defendant was a relatively minor accomplice, the departure comes from a plea bargain, the defendant’s capacity was substantially impaired, the defendant requires specialized mental health treatment, or the defendant was going to be sentenced as a youthful offender.

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