September 2008 Archives

It's easier than you may think.  A charge of assault or battery or both can arise out of a road rage incident, a verbal confrontation with a stranger, even coming to the defense of someone you perceive as being harassed.  You need to know the law and act accordingly.  First, let's look at how the law defines assault and battery.

Assault is the threat of doing violence to another person.  This threat can come in the form of a gesture, words, or a physical movement which is perceived as threatening.  In order to quality as an assault, the one accused of assault must be considered capable of carrying out the threat.

Battery is the infliction of physical harm to another person.  This can arise as a result of a touch or a strike. 

Now that we've defined the words in terms that law enforcement understand it, perhaps you can see how easy it can be to be charged with one or the other of these crimes.  An assault and battery conviction will harm your reputation, have negative consequences on your job or your future job prospects.  If you're charged with an assault or a battery, you need a good criminal defense lawyer that has experience dealing with these types of charges.

In defending these types of charges, an experienced criminal defense attorney will look at whether or not the the "assault" was really a matter of self-defense or the defense of another.  In order to do this, there are many factors involved including gathering witness statements, a criminal history of those involved, and the account given by the accused.

Another defense may be application of what is known as the "Castle Doctrine".  The Castle Doctrine is an exception to what the law sees as a "duty to retreat" in cases of physical confrontation.  The Castle Doctrine permits use of deadly force if attacked in your own home or if you are in your place of business and in fear for your life. 

In other assault cases where the issue of self defense is raised as a legitimate defense the amount of force must not be considered excessive.  For instance, if someone is swinging a garden hose at you and you feel threatened, you would not be justified in using a firearm to defend yourself.

Speaking of firearms, never display a firearm, even if it's not loaded or you have no intention of using the firearm.  The mere display of a firearm in this situation will land you in jail and if convicted, you'll face the mandatory minimum three year sentence. 

More and more people are arrested, charged and convicted of possession of marijuana and the paraphernalia associated with the drug.  Recently, a Tampa teacher was arrested for growing marijuana plants with the intent to distribute.  These are serious charges that will affect her career, her livelihood, as well as hamper her job search efforts in the future. 

If you're arrested on a marijuan possession charge, you need an aggressive criminal defense attorney who has trial experience.  A conviction of possession of 20 grams or less of marijuana can carry a penalty of one year in jail with a $1,000 fine.  A conviction of more than 20 grams of marijuana is a felony that carries with it a 5 year jail sentence and a $5,000 fine.  These are serious charges with deleterious consequences. 

On September 11, 1995, a young boy named Jimmy Ryce stepped off his school bus never to be heard from again.  Months later, the missing boy's backpack was found on the property where the perpetrator worked.  The perp, Juan Carlos Chavez, was convicted of Jimmy's murder September 12, 1998. 

The death of the young boy led his parents to lobby politicians and elected officials to protect other children from falling victim to sexually violent predators like Juan Carlos Chavez.  The Jimmy Ryce Act became law January 1, 1999.  It was an obvious, emotional response to the murder of a young child at the hands of a sexual predator.  While the Act was lauded at the time it was signed into law, the Act has proven controversial among judges, constitutional scholars, and civil rights activists because it poses questions about potential violations of Ex Post Facto and Double Jeopardy Clauses of the United States Constitution. 

The Ex Post Facto argument states that a convict can't come under the Jimmy Ryce Act is that convict was convicted before the Act became law. 

The other interesting and controversial aspect of the Jimmy Ryce Act is that it seeks to label these predators as mentally insane rather than as criminals.  In dealing with sexual predators, there is no blanket proof that all sexual predators suffer from mental deficiencies. 

Let's examine the details of the Act for a moment.  The Act directs the Secretary for Children and Family Services to create a team that will determine if someone convicted of a sexual crime is indeed a sexually violent predator.  180 days prior to the convict's prison release, the team must start this process.  According to the Act, a sexually violent predator is defined as "any person a)who has been convicted of a sexually violent offense; and b)suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment."

Once the committee makes their recommendations, the state attorney may file a petition with the court requesting the convict's commitment.  Then the judge must determine if there is sufficient probable cause to warrant holding the convict until resolution of the commitment proceeding.  If there is probable cause, the convict then must face what boils down to another trial to determine if he or she should be committed per the terms of the Act.  The accused convict may request a jury trial and the jury must unanimously favor commitment.  If that is not reached, the state attorney may request a new trial.

If that isn't Double Jeopardy, I don't know what is!  I'm not soft on criminals, especially those who would prey on and harm our children.  However, it's my duty as an officer of the court and a defender of the Constitution to ensure the rights of all of those who are accused of crimes, regardless of the heinous nature of the charges.  Our entire judicial system hangs in the balance when rights are quashed or the state does not respect the Constitution. That's why the Jimmy Ryce Act is so controversial.  In my years as a criminal defense attorney, I've worked on this issue and am knowledgable of its defects.  I know the system and how it should work for those accused and the community at large.

Dennis Roache, 40, has already spent the last six years in prison for murder. His trial for a decapitation murder begins today in Clearwater.  It's a particularly gruesome case and it will be difficult for the criminal defense attorney to overcome the emotional pull the jurors are bound to feel when presented with the prosecution's case.  The article in the St. Pete Times mentions that Roache has suffered with mental problems.  He's been found mentally incompetent to stand trial in other criminal cases, he's been institutionalized in a mental hospital and this is probably the best defense that can be presented in his case.  The prosecution will in all likelihood attack this as a defense ploy in order for him to avoid the harshest sentence but a good, competent forensic psychiatrist may prove vital in his defense.  Defense witness testimony could further bolster the claim of mental incompetence. 

It will be an interesting trial and the lawyers skills on both sides will be tested.  This is where criminal trial experience, knowledge of the law and an understanding of the psychology of a jury will play huge roles.

I represent a man who now lives in Clearwater.  As a young boy, he was molested by a Catholic priest in Boston.  As a Catholic, he was seeking guidance, spiritual support, and truth from a Catholic priest.  Instead, what he received was sexual abuse that affected him throughout his life.  Unfortunately, he carried this with him.  It tormented him and led him to a life of alcohol, drugs, and a life with no hope. 

As a young adult, unable to deal with the sexual abuse, he abused another person, a member of his family.  After being incarcerated, he's changed his life and is now living a respectable life.  Yet, his crimes still haunt him.  He's on the registered sexual offenders list and must report to law enforcement.  He hired me recently to have some of his restriction lifted.  I was successful in lifting some of his restrictions.  Yet, the stigma of sexual abuse hovers over him like a dark cloud.  He is gainfully employed, married, and a member of a local church.  He takes full responsibility for his past actions.  However, I am convinced the sexual abuse he suffered as a young boy colored and influenced the direction of his adult life.  Even though he's a convicted felon, he is a victim of a priest's abuse.  He can't live a normal life.  He's a sexual offender and he'll live with that the rest of his life. 

This is a man who has taken responsibility for his actions.  He has law enforcement officials advocating for him, counselors fighting for him, yet he can't have his lfie back due to the effects of one priest who abused him when he was a vulnerable child.  There's something wrong with this picture.  In a very real sense, he's paying for the crimes of a priest who's living free of criminal prosecution.  Sure, the priest is no longer able to serve in ministry.  But he ruined many young lives, including the life of my client.  Where's the justice?  Where's the outrage?

As a St. Petersburg criminal defense lawyer, I've represented thousands of people in all types of criminal cases from misdemeanors to felonies.  I have more than 24 years of criminal trial experience representing citizens regarding DUI offenses, aggravated battery, simple battery, murder, drug possession offenses, trafficking, and sexual offense charges.

As a criminal trial lawyer, the bulk of my time is spent in the courtroom defending the rights of those charged with criminal offenses.  I've been featured on CourtTV and have been recognized as a pre-eminent criminal trial lawyer in the Tampa Bay area.  My blog posts will discuss the nuances of criminal trial practice as well as tips for those accused of crimes ranging from misdemeanors to felony charges.  Clients I've represented come from all over the Bay area including Tampa, Clearwater, St. Petersburg, Pinellas Park, Tarpon Springs, Dunedin and Sarasota.  For more information about me and my practice visit http://www.thecrimelawyer.com/

St Petersburg Crime Defense Lawyer