Criminal Record Expungements: More Good Stuff

In the realm of law, in between the nether world and the iclouds, there is a place where things sometimes seem pretty darn good. Doesn’t mean it is! Or forever will be – but, for now, good. This This is where we find the following two cases (case law):

Shanks v. State, 83 So.3d 1226 (Fla. 1st DCA 2012)

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011)

Both of these cases, for the time being, stop the practice of the State Attorneys going to court unarmed and arguing away a client’s chance to seal or expunge their criminal record without producing a single shred of evidence on which the Court could hang its hat.  With these cases (and others) defense counsel is now sitting in the cat-bird’s seat!

Er, ahh, … for now…

English: Excerpt from the swiss criminal recor...
Redacted Record.

September 2011 Updates (Part IV)

State v. Carter, 18 Fla. L. Weekly Supp. 782 (7th Jud. Cir., May 27, 2011): Order on Defense Motion to Suppress – Very interesting case regarding probable cause to arrest for a DUI.  Court found stop legal and there was justification to perform FST’s.  However, the court found that the FST’s, video, and observations were insufficient and did not rise to the level of probable cause to arrest.  This resulted in a felony amount of marijuana which was found during the inventory search of the vehicle to also be suppressed.

M.N. v. State, 18 Fla. L. Weekly Supp. 804 (9th Jud. Cir., Apr 25, 2011): Defense Appeal, Reversed – Court denies defendant’s petition to seal.  Appellate court finds the judge abused his discretion.  Good case for citations in support of granting petition to seal.

This concludes the September updates…

Eric J Dirga, PA 

More Stuff From the Ministry of Love

Introduction to the Global Positioning System
Image via Wikipedia

I know I am a bit behind on this stuff but then again it is summer and there are better things to be doing with life,… right?  Anyhoo, straight from “1984” here goes…

JL v. State, 36 Fla. L. Weekly D918 (Fla. 1st DCA, May 2, 2011): Defense Appeal, Reversed  Apparently, a plastic fork is NOT a deadly weapon. I really want to know what the person who charged this case was thinking.

Moss v. State, 36 Fla. L. Weekly D940 (Fla. 4th DCA, May 4, 2011): Defense Appeal, Reversed – “I want a lawyer” and “I want a lawyer” is NOT an equivocal response from the defendant.  So says the 4th, anyway.

Washington v. State, 36 Fla. L. Weekly D977 (Fla. 1st DCA, May 9, 2011): Defense Appeal, Reversed – An inability to pay for the electricity that makes the GPS monitor work is NOT a “willful” violation of conditions of probation.

Metz v. State, 36 Fla. L. Weekly D1008 (Fla. 4th DCA, May 11, 2011): Defense Appeal, Reversed – the rule of completeness apparently means if the LEO, testifying about a dealing in stolen property case,  gets to say that the defendant admitted to “selling” the stuff then he also has to tell the jury that the defendant also told him that he did NOT know the property was stolen.  Just takes all the fun out of testifying…

I’m back from learning to sail so these may be coming more frequently.  We’ll see…

Justice Pariente and the Use of Dissent

Cuffed Defendant before criminal court (Transp...
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State v. Hankerson, 36 Fla. L. Weekly S182 (Fla. Apr 21, 2011): State sought review from DCA reversal of lower court denial of Motion to suppress, reversed/quashed – Defendant observed doing several quick hand to hand transactions.  Law enforcement suspected criminal activity and had defendant stopped (investigatory detention) at which point the defendant is described as voluntarily removing his shoe where cocaine was found.  Lower court denied motion to suppress.  Issue resolved was that appellee can raise any grounds to sustain the lower courts ruling even grounds not raised at the trial level.  Justice Pariente’s dissent really addresses dicta but provides a guide to determining when law enforcement has “probable cause” and when they only have “reasonable suspicion.”  The dissent is worth a read.  The opinion really deals with an appellate issue.

Pariente utilizes Revels v. State, 666 So.2d 213 (Fla. 2d DCA 1995) as a guide.  Probably also a good read (but what isn’t out of the Second District?)

Another Important Florida Supreme Court Case: Dog Sniff = PC? Answer, No.

Gibson ES-175
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Harris v. State, 36 Fla. L. Weekly S163 (Fla. Apr 21, 2011): Defense Appeal, Conflict Resolved, Denial of MTS Quashed – LEO pulls over defendant for expired tag.  Defendant seemed nervous and open container was in plain view.  LEO gets his drug detection canine and it alerts on driver’s side door.  LEO find precursor chemicals for making meth.  Defendant files motion to suppress based on reliability of drug detection canine.  Conflict between Gibson v. State, 968 So.2d 631 (Fla. 2d DCA 2007), Matheson v. State, 870 So.2d 8 (Fla. 2d DCA 2003) and State v. Laveroni, 910 So.2d 333 (Fla. 4th DCA 2005), State v. Coleman, 911 So.2d 259 (Fla. 5th DCA 2005) resolved in favor of Gibson and Matheson.  Underlying DCA opinion, Laveroni and Coleman are all quashed.

The Florida Supreme Court held that the state has the burden to establish probable cause for a warrantless search.  When probable cause is based on a drug detection canine, the reliability of the drug detection canine falls to the state.  The state may establish probable cause by demonstrating that the officer had a reasonable basis for believing the dog to be reliable based on the totality of the circumstances.  “[T]he state must present the training and certification records, an explanation of the meaning of the particular training and certification of that dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability in being able to detect the presence of illegal substances within the vehicle.”