SUBURBAN LEGAL MYTHS
There are numerous Urban Legends. The criminal defense lawyer deals with many Suburban Legal Myths. Below is a list of some of the more popular Suburban Legal Myths, and a possible explanation of why they are believed to be true.
1. When the police arrest a person they have to read the person his Miranda rights.
2. A person has to leave the store to be arrested for shoplifting.
3. An undercover police officer has to admit she is a police officer if asked.
4. A police officer cannot wait for a person to drive away from a bar and follow that person, nor can a police officer run a person’s tag for no reason.
5. A person does not need a driver’s license to drive a moped, go-ped, scooter or the like on the highway.
6. A parent can give consent for his or her minor child to have sex with an adult.
7. A person cannot be found guilty of a crime involving a weapon if no weapon is ever found.
8. Drug residue is not enough for a person to be convicted of possession of cocaine, or any other controlled substance.
9. The police have to videotape and or audiotape everything they do.
10. The police cannot videotape and or audiotape a person without the person’s consent.
11. There has to be an exchange of money for a person to be arrested for giving drugs to someone.
12. An off-duty police officer cannot arrest a person.
13. Testimony alone is not evidence, or one person’s word alone is not enough for a person to be found guilty of any crime.
14. She’s going to change her story at trial.
15. She’s not going to show at trial, or doesn’t she have to show every time I have to be in court or the case is dropped.
16. If my witnesses cannot appear in court they can submit affidavits.
17. A person can marry a witness to prevent that witness from testifying against the person.
18. It is double jeopardy to use a person’s prior record against him.
19. The Judge threw the case out.
20. The Judge will throw the case out.
21. I must have a speedy trial.
22. A person’s probation cannot be violated for committing a new criminal offense that was dismissed, or that the person was found not guilty of.
23. A person’s probation cannot be violated for just committing technicals.
24. The Public Defender is not a Real Lawyer.
25. A person can always win on appeal, or you can appeal anything.
26. Murderers get less time than that. It’s not like I killed anyone.
27. I know someone with the same charge as me, or an even worse charge, and that other person’s case was thrown out, or, that other person pled to a lesser charge or got no time at all, etc…
“ I WASN’T READ MY RIGHTS.”
The most popular Suburban Legal Myth deals with the person who was arrested, but was not read his Miranda rights. He thinks because he wasn’t read those magical words that his triple homicide will get thrown out of court. Actually, he’s usually hoping his DUI will get thrown out.
Most of the time when a person complains about not having been read his rights, he had been placed under arrest and therefore was in custody.1 But he was not interrogated,2 or if he was questioned what he said was non-testimonial3 in nature. So the fact that he was not read his rights is irrelevant.
However, not being read Miranda rights can in some cases result in a successful motion to suppress a confession, and if without the confession the charge cannot get passed a Judgment of Acquittal, then the case will be dismissed.4 So there is a basis in truth to this myth.
“ I NEVER LEFT THE STORE.”
The next most popular myth is the shoplifter who believes that because she hasn’t yet left the store when she is apprehended the charge must be dismissed. She doesn’t understand that there is no such crime as attempted theft.5 Once she endeavourers to commit the crime she’s already committed it.
However, there is in rare cases a basis in truth to this myth. It is found in the defense of voluntary abandonment.6 The voluntary abandonment defense allows a person who has committed a theft to change her mind and abandon the theft. To get the voluntary abandonment jury instruction a person must show that she voluntarily abandoned the theft (i.e. before she noticed someone had witnessed her commit the theft), and naturally before she had left the store.
“SHE SAID SHE WASN’T A POLICE OFFICER.”
The next Suburban Legal Myth deals with the prostitution and or drug deal scenario where someone asks the undercover police officer if he or she is a police officer and the officer says, ‘no.’ The defendant thinks that because the police officer lied about her true identity that the case has to be thrown out. The only possible basis in truth for this rather ludicrous myth that if true would hamper all undercover police activity7 is found in the defense of entrapment. 8
Most clients think that if an informant or under cover police officer set them up, then it has to be entrapment. They have trouble understanding that their predisposition to commit the crime tends to negate the entrapment defense. And that the negation is even more so with those who have a prior record for committing the same crime. 9
Of course, it is usually a good rule of thumb that if a person is even thinking about asking whether someone is a police officer, to not go through with the deal.
“THE POLICE OFFICER HAD NO REASON TO FOLLOW ME WHEN HE SAW ME PULL OUT OF THE BAR, AND A POLICE OFFICER CANNOT RUN MY TAG FOR NO REASON.”
Even though it doesn’t seem fair for a police officer to be allowed to wait for a person to drive away from a bar, follow that person, and then stop the person for driving in a manner that makes the officer think the person is ill, injured or impaired (or really just impaired or why else would the officer wait until the person left the bar), it still isn’t entrapment when the person is arrested for DUI.
And even when the three illusory I-words or buzzwords10 found on every officers’ cheat sheet (right along with such other fraternal favorites as: training & experience, spontaneous utterance, furtive movements, bulge, plain view, Officer safety, and odor of cannabis) do not exist, a police officer can still pull up behind any automobile for no reason and run its tag number.
And if the tag comes back registered to a person with a suspended license, or no driver’s license, the officer can make a lawful stop.11 Unless of course it is obvious that the person driving the car does not match the description of the owner.12 However, the officer does not have to try to confirm this prior to the stop, but if after the stop as the officer is approaching the vehicle he realizes the driver is obviously not the registered owner, then all the officer can do is make personal contact with the driver to explain the reason for the stop.13 The officer cannot ask to see the person’s driver’s license14 or in any other way continue to detain the person, unless as the officer approaches he observes one of the aforementioned buzzwords15 or recognizes the person as being on the FBI’s Most Wanted List, having an active warrant16 or suspended license, and the information is not stale.17
Speed traps are not entrapment, either. Police officers can hide at night with their lights out in an unmarked vehicle to catch a person speeding.
These myths besides finding their basis for truth in the fourth amendment and entrapment also find their basis for truth in the belief that the police are not allowed to use trickery and deception to enforce the law. But as long as the police do not take it too far, trickery and deception are allowed.18
“I DON’T NEED NO STINKING LICENSE TO DRIVE A SCOOTER.”
The Moped-Myth comes in and out of vogue every few years. People swearing that they were told by the person who sold them the moped, the manufacturer of the moped, a police officer, a lawyer, a Judge, their bunkmate in the county jail or it was written in the box it came in or in the operators’ manual, that it was legal to drive a moped without a driver’s license. But no one can call forth a credible witness or produce a box or manual supporting their claim.
Basically, if a person is driving a motor vehicle upon a highway,19 he needs a driver’s license. Only a golf cart,20 vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles are exempt from the license requirement.21 Just because it has a motor with a displacement of 50 CCs or less does not eliminate the need for a driver’s license to operate it. It just means it is not a motorcycle,22 and a motorcycle endorsement is not necessary to drive it. A driver’s license is needed to operate a moped,23 a go-ped,24 and even an ATV25 on a highway. Calling it a scooter, moped or go-ped doesn’t make a difference unless whatever it is called fits the definition of a motorized bicycle.26
A basis in truth to the Moped-Myth and the Scooter-Saga is fueled by the confusion found when people start reading Chapter 316 of the Florida Statutes, which excludes a moped and a motorized scooter from the definition of motor vehicle.27 But the rules of statutory construction dictate that the definition used in the chapter making the restriction (Chapter 322), unless deemed ambiguous shall be used before resorting to definitions found in other chapters.28 Obviously, another basis in truth to the Scooter-Saga is that a person can drive a motorized-bicycle without a license. The problem is that what most people are driving on the highway without a license is not a motorized-bicycle, despite all the unhelpful legal advice they claim to have been given to the contrary.
However, that bad advice could possibly be transformed into a basis for a Mistake of Fact defense29 when defending a suspended license case by arguing that the person mistakenly believed that he was driving a motorized bicycle. And if that works the Moped-Myth can become a reality.
“I CAN HAVE SEX WITH A MINOR IF HER PARENTS CONSENT.”
Some people actually believe that if the parents of a minor child give their consent to an adult to have sex with their child then the sex is legal. I’m not sure how one would go about getting consent from the parents, and whether or not the consent would have to be in writing, notarized and witnessed by two people, but I’m pretty sure DCF would try to take the child away if they could prove the consent was given. Consent is not a defense to statutory rape no matter who gives it.30 However, if the child is emancipated then as long as a person has consent from the emancipated child the sex is legal.31
The consent myth may find its truth from the fact that in certain situations for a person under eighteen to get married they must have the consent of their parents.32
“THEY NEVER FOUND A WEAPON.”
Then there is the person accused of any crime with a weapon who believes that since no weapon was recovered or introduced into evidence at trial, that he cannot be found guilty of having a weapon. Unfortunately, this is not the case.33 And ironic as it may seem, in certain cases where the so called weapon used is not a firearm or otherwise capable of causing death or serious bodily injury or not even a weapon at all, a defendant may be better off having the police finding the alleged weapon than not finding it.34 The reason being is that without the weapon all the jury has to rely on for the existence of the weapon is the witness or witnesses’ word versus the word of the defendant.
The basis in truth for the no weapon myth may come from the line of cases that state in a possession of a controlled substance case if the drug in question is not introduced into evidence the defendant prevails.35 In a forgery or uttering a forgery case if the document that was forged or uttered is not introduced into evidence then the defendant may also prevail.36
“IT’S ONLY RESIDUE.”
When evidence is actually found, particularly in a possession of a controlled substance case, a person doesn’t understand how he can be charged when residue is all that is found. Sometimes even if it’s not just residue, but a little small rock of cocaine, the person still can’t understand how he can be charged when so little was found.
There is some truth to the myth that residue is not enough to convict, but for the most part it is just a myth.37 On the flipside, a person usually cannot be found guilty of possession of paraphernalia if no residue is found on the alleged paraphernalia.38
“BUT, THERE’S NO VIDEOTAPE.”
There is the belief that in a drug transaction with an undercover police officer or a confidential informant if there is no audiotape or videotape the defendant cannot be found guilty. The same thinking applies when no audiotape or videotape is used in a prostitution sting. There is also the belief that in a DUI case if there is no videotape of the field sobriety exercises then the case has to be dismissed. There is a basis in truth to the no videotape myth in DUI cases if it can be shown that the police are selectively videotaping DUI suspects.39
But the police are under no duty to videotape anything.40 If the police do videotape the field sobriety exercises and the videotape machine malfunctions, or the videotape is somehow destroyed or lost then unless bad faith can be shown the client has to once again be convinced that the no videotape myth is in fact a myth. 41
However, if it can be shown that a videotape of the field sobriety exercises was made and it was exculpatory in nature, but for whatever reason has been destroyed, lost or somehow become unwatchable, then a motion to dismiss may prevail, lack of bad faith notwithstanding.42 Unfortunately, most of the time the only way to prove the videotape is exculpatory is through the testimony of the defendant, and there is no myth to the fact that most Judges won’t believe a word the defendant says.
The police do not even have to videotape or record a person’s confession.43
“THEY DIDN’T TELL ME THEY WERE VIDEOTAPING ME.”
Of course, when the police do videotape and or audiotape a person’s confession or anything else for that matter, there is the myth that they cannot do this without the person’s permission. But a police officer can always without permission tape a conversation he has with a person if the purpose of the recording is to obtain evidence of a criminal act.44 A person’s private telephone conversation with the alleged-victim of a crime can also be taped by the police if the police have the alleged-victim’s consent, and the purpose of the taping is to obtain evidence of a criminal act.45
The police can tape an interrogation in the police station or jail cell without the person’s consent.46 They can tape the conversation that takes place in the back of the police car between two or more unsuspecting arrestees,47 detainees, or even people voluntarily sitting there for safety and comfort reasons.48
The basis in truth for this myth probably stems from the belief that judicial approval of a wiretap49 is needed before certain communications can be intercepted and recorded. But in the aforementioned cases, no wiretap is necessary, because in none of the instances did the person have an expectation of privacy in their conversations.50
Apparently, there isn’t even an expectation of privacy during a conversation over the phone between an inmate and his attorney,51 and no one can blame any client or for that matter any attorney for believing that it would be a myth to think the attorney-client privilege would not protect this type of conservation. But apparently, the old saying, “the Fourth Amendment protects people, not places”52 may also be a myth.
“IT’S JUST HER WORD AGAINST MINE.”
Another popular myth is the one based upon a person’s belief that if any case comes down to one person’s word against another’s then it’s impossible for a person to be found guilty. Despite the fact that the police do not have to videotape and or audiotape a person or when they do they can do so without a person’s consent, there is no requirement that more than a person’s word is necessary to convict a person of a crime.
This myth usually presents itself in cases of domestic battery and sexual battery where there is no hard evidence that a crime took place. Or as mentioned previously, in cases where no weapon is found, but the alleged victim claims to have seen a weapon. In other words, if there is no DNA evidence, weapon recovered, and or evidence of any injury then how can a crime be proven? The ultimate myth that comes out of this is the accused’s belief that a person’s testimony is not evidence. A sub-part to this myth is the false belief that if the only evidence against the accused is the testimony of his co-defendant(s) then this is not enough evidence to convict the accused.53
The only basis in truth that can be found for the myth that the testimony alone of just one person is not enough to convict a person of a crime is the “Physical Facts Rule,”54 also known as the “Rule of Impossibility.”55 This rule stands for the proposition that in certain cases where the testimony is so unbelievable, so ambiguous, so incredible, so impossible, so inherently unreliable, or so irreconcilable with the physical evidence or lack thereof, the Judge can ignore the testimony and enter a judgment of acquittal. 56
“SHE’S GOING TO CHANGE HER STORY AT TRIAL.”
Assuming a client can ever believe that one person’s word is in fact evidence, try convincing that same client that in very limited circumstances he can be found guilty even if the one person’s word is recanted at trial.57
Another daunting task is trying to convince a client that if a key witness recants her testimony after a trial, plea or sentencing, that there is no guarantee that the client will get a new trial, or be allowed to withdraw his plea. In fact, he may not even receive a hearing to determine if he is entitled to a new trial.
The truth is that most of the time if the only witness against a person recants her accusations at trial then the case is usually dismissed.58 There is even an argument that if the state knows the witness is going to recant her testimony it cannot call the witness to the stand for impeachment purposes only.59
Recantations after a plea or trial is another story altogether. Usually, the recantation of a victim or key state witness after a trial will at least result in a hearing to argue for a new trial based on the new recantation evidence.60 But very rarely does the hearing result in the granting of a new trial,61 but it does happen.62 Even after a plea, the recantation of the victim or key state witness may result in a hearing to argue for a new trial.63 But it is even rarer in this circumstance for a new trial to be granted.64 Though again it can happen. 65
The real myth here is the client’s belief that the alleged victim is in fact going to recant her testimony. Though, it does happen, it is not the norm.
“SHE’S NOT GOING TO SHOW AT TRIAL, OR DOESN’T SHE HAVE TO SHOW EVERY TIME I HAVE TO BE IN COURT OR THE CASE IS DROPPED.”
Perhaps the most impossible task is convincing a client he can be found guilty at trial even if the one and only person who said the words that are going to be used against him decides not to show-up at the trial. Usually, if this one and only person does not show at trial, the case is dropped.66 But there are rare instances when a case can be proven against the defendant without the one and only witness/victim appearing at trial.67
Some clients also do not understand why the alleged victim doesn’t have to be in court every time the client is there. The mythical belief that the alleged victim has to appear in court whenever the client appears or the case is dismissed, or the related mythical belief that the police officer has to appear in court every time the client appears or the case is dismissed, finds its basis in truth in traffic court. Traffic court is where if a police officer fails to appear at a hearing the citation is usually dismissed.68
But again the real myth here is the client’s belief that the alleged victim won’t show. It happens, but not as much as clients like to think or believe or hope. And though sometimes this may be a client’s best trial defense, it isn’t always a chance worth taking.
“HE CAN FILL OUT AN AFFIDAVIT.”
Some of the same people who think the testimony of one person isn’t evidence and that any witnesses against them have to appear in court every time they do, like to think that their own witnesses can submit an affidavit without appearing at trial. Many clients do not understand why affidavits are not allowed, but they do understand why the other side should not be allowed to use them.
The only basis in reality to the mythical admissibility of the affidavit is that affidavits are allowed in traffic court,69 and probably in the People’s Court, and on some other television court shows.
“BUT NO MONEY WAS EXCHANGED?”
There is the myth that if a person gives another person drugs, and no money is exchanged then a person cannot be charged with doing anything wrong if the person who exchanged the drugs has a prescription for those drugs. And even if he does not have a prescription he cannot be charged with sale of drugs. It is true that a sale contemplates an exchange of money or some form of consideration.70 However, the statute for sale of drugs also includes delivery of drugs, and an exchange of money or some form of consideration is not necessary to prove delivery.71
The basis in truth for this myth may stem from the fact that in a prostitution case, and as previously mentioned in a drug sale case, money or some form of financial consideration must be exchanged or at least promised.72
“THE POLICE OFFICER WAS OFF-DUTY!”
Some people subscribe to the myth that an off-duty police officer cannot make an arrest. Not only can an off-duty officer make an arrest,73 but a person can actually be charged with resisting an officer with violence even when the officer is off-duty and out of his jurisdiction.74
The basis for truth to this myth stems from the fact that in certain instances a police officer who is off-duty and out of his jurisdiction cannot always detain or arrest a person, 75 even if that same person can be charged with resisting an arrest with violence if he hits the officer. The reason being that a person can never use force to resist an unlawful arrest, detention or investigation unless the officer is using excessive force76 or is acting in bad faith77 or does not reasonably appear to be a police officer.78
An off-duty police officer who is out of his jurisdiction is in no better position than an every-day citizen when it comes to making arrests. A citizen-arrest79 can be made by an off-duty officer out of his jurisdiction or by any citizen when a felony or a crime considered a breach of peace80 is committed in the citizen’s or off-duty officer’s presence. So it is true that in certain instances a person like Gomer Pyle can make a, “Citizen’s arrest! Citizen’s arrest!”81
“IF I MARRY HER SHE CAN’T TESTIFY AGAINST ME.”
“If my girlfriend is forced to show-up at trial, can I marry her and prevent her from testifying against me?”
Besides wondering how long a marriage like this would last, the answer is no. Obviously this myth has its basis in truth from the husband-wife privilege.82 But the privilege only applies to conversations made during the marriage, not before.83 It does not apply when the husband or wife are victims of the other’s criminal act,84 observe the other’s criminal activity85 or to any non-verbal acts. And it only applies to those conversations where there exists an expectation of privacy86 in what is said, and the privilege can only be asserted during a testimonial proceeding.87
“I WAS ALREADY PUNISHED FOR THOSE CRIMES, THAT’S DOUBLE-JEOPARDY.”
There are many myths attributable to the client’s prior record. But before the client can espouse his mythical beliefs relating to his prior record, he first has to acknowledge that he actually has one. Many clients cannot or claim not to remember their prior record. And the longer the record is, the less they seem to recall. When they are confronted with their prior record their first response about each case is they thought it was dropped, sealed, or expunged.
Once they get passed this step and acknowledge that they do in fact have a prior record, the first myth that comes to mind is their belief that if adjudication was withheld the crime is no longer on their record (i.e. because it was dropped, sealed, or expunged), or because withholds just don’t count. The basis in truth for this myth comes from the fact that certain withholds can be sealed and ultimately expunged. But a person is only allowed to seal or expunge one case per lifetime,88 it doesn’t just happen all by itself, and a sealed or expunged case can still be counted on a person’s scoresheet.89 A withhold for a felony charge prevents a person from losing their civil rights, which allows the person to continue to vote, serve on a jury, apply for Occupational Licenses, hold office, and bear arms.90 However, a person must still register as a felon,91 and wait three years after his sentence is over to apply for a concealed firearm’s permit, unless the felony case has been sealed or expunged.92
Some people have mythical beliefs about clemency and pardons. They mistakenly believe that the former and latter take the charge off of a person’s record. Clemency gives a convicted felon most of his civil rights back. A convicted felon can apply for the kind of clemency that gives a person his civil rights back minus the right to bear arms as soon as his sentence is completed and complied with. But convicted felons have to wait eight years after their sentence is complete and complied with to apply for the kind of clemency that reinstates their right to bear arms.93 A person has to wait ten years until after his sentence is complete and complied with to even ask for a pardon.94 Only a full pardon includes the right to bear arms.95 But neither clemency nor a full pardon result in a convicted felon being eligible to seal and or expunge his record.96
There is also the myth that if the crime was committed along time ago it will no longer appear on a person’s record. Most clients cannot understand how their DUI from the seventies still shows up on their driving record. They think that after a certain amount of time it just magically falls off or just no longer counts. This myth has some basis in truth since some crimes can be deemed too remote in time to score on a person’s scoresheet,97 and too remote to be used for impeachment purposes.98 Also certain traffic citations that result in points on a person’s driver’s license stop counting towards a license suspension after three years,99 which may be why some people think certain crimes just vanish from their driving record. And of course some people are lucky and certain charges do somehow get lost, destroyed or magically disappear.
Some people also believe that a person’s juvenile record will not count against them, and that all juvenile records are confidential. For the most part this myth has for a long time been a reality, but the legislature has seen fit to make sure in certain instances a juvenile’s record is not so confidential100 or forgotten.101
Of course, the final response people give when they are confronted with their prior record and convinced it does in fact exist and count against them is that since they were already punished for those crimes they should not keep counting against them. “That’s double-jeopardy. I already did my time for those crimes. I was already punished.”
Perhaps this is more wishful thinking than a myth, since most people when confronted agree that a person with no prior record should not be treated the same as a person who has a prior record. In fact, this is the very same argument these people made when they were first charged with a crime. They even made this argument when their first crime was quite serious, and their lack of prior record really didn’t matter.
“THE JUDGE THREW MY CASE OUT.”
Then there are the myths that come from the people who are released from jail because the Judge did not find Probable Cause to detain them,102 or thirty-three days have passed without the state filing an information against them. 103
These clients naturally believe that their case has been thrown out by the Judge and they no longer have to appear in court. The reality is sometimes this ends up being the case, but it’s not for certain, which is why some clients end up with a warrant for failing to appear that quickly brings them back to reality.
“THE JUDGE WILL THROW MY CASE OUT.”
Some people think that if they write a letter to the Judge or are allowed to talk to the Judge alone that they can get their case thrown out or the Judge will allow them to plea to a lesser offense or just sentence them to probation no matter what the charge. Obviously this myth comes from the fact that people naturally assume the Judge can do whatever she wants because she’s the Judge.
The reality is that in most instances, though not always, it is the prosecutor who has the most power in the courtroom. Only the prosecutor in almost all but the rarest instances can waive a minimum-mandatory.104 Only the prosecutor in most instances can dismiss a case.105 Only the prosecutor can amend the charges to a lesser offense, or less serious charge.106 And when no downward departure exists, only the prosecutor can agree to one. But clients don’t always see it that way. And sometimes, despite their lawyer’s advice they write a letter to the Judge, and or try to explain their case to the Judge at first appearance or any other time they think they can.
The defendant doesn’t understand that any letter he writes to the Judge will be given to the State attorney’s office. Some client’s even send letters directly to the State attorney’s office. At least these clients have a better idea of who is in charge, and a better chance of keeping the letter from being used against them at trial, since it is easier to argue that a letter sent to the state attorney’s officer is an inadmissible confidential plea-bargain negotation,107 as opposed to a letter sent to the Judge. But either way, Judges and State attorneys are not good pen pals for defendants to have.
Luckily, however, not every correspondence between defendant and Judge, and defendant and the State attorney can be used against the defendant.108 And despite the prosecutor’s power, the Judge can dismiss a violation of probation warrant, and enter a Judgment of Acquittal before a jury verdict, and the state cannot do anything about either situation.109 And of course the Judge has the power to accept or reject any and all negotiated pleas.110
“I WANT A SPEEDY TRIAL.”
The myth of the speedy trial is that some clients think that if they ask for a speedy trial or do not waive their right to a speedy trial, then their case will automatically be dismissed.111 These clients don’t necessarily understand that very rarely has time ever hurt a defendant’s case. They do not understand that distance and time does tend to heal all wounds, make people forgive, forget, leave the county, state, or country without a forwarding address, and sometimes even die.
Speedy trial makes sense in any case where the alleged victim wants the case dropped, and has no intention of appearing in court, even if subpoenaed. But when the police are the only witnesses or the witnesses are gung ho to go forward, the client eventually starts to believe that speedy trial is not always such a good idea.
The reality is sometimes demanding a speedy trial works,112 either because certain state witnesses are unavailable or the state has no case, or the client is in jail, and the case is never going to get any better no matter what, or for whatever reason the state just isn’t ready to try the case.
“MY PROBATION CAN’T BE VIOLATED FOR A COMMITING A CRIME THAT WAS DISMISSED.”
The client on probation who violates her probation by committing a new criminal offense has the mythical belief that if the new crime is nolle prossed, no filed or dismissed then it cannot be used against her in a violation of probation hearing. And who can blame her for thinking this way? It makes sense. Naturally, the client also mythically believes his probation cannot be violated if he is found not guilty at trial of committing the crime he was violated for committing. Which is why no matter how many times it is explained to the client that the burden of proof is different in a violation of probation hearing than it is in a jury trial, and that a Judge not a Jury presides over the hearing, no one can ever really understand how they can still be violated.
The truth is it’s pretty much impossible to explain to a person that she can still be violated even though the crime resulting in her violation was dismissed,113 or she was acquitted of the crime by a jury,114 or even when a motion to suppress evidence was granted in the new offense’s case resulting in a dismissal.115 These are myths that it makes perfect sense to believe are true.
“IT’S ONLY A TECHNICAL VIOLATION.”
Most clients who do not violate their probation with new crimes think they won’t or shouldn’t be violated for just committing technical violations. They don’t think it’s a big deal that they failed to report in person,116 failed to file a monthly report,117 failed to make any restitution payments,118 failed to pay cost of supervision,119 failed to pay their fines or court costs,120 failed to complete their classes,121 failed to perform their community service,122 or changed their address without permission,123 left their place of residence without permission,124 absconded,125 or committed any other technical violations. The truth to this myth is unless the violation is willful and substantial then it doesn’t matter, and sometimes Judges understand that it’s worth giving the client a break as long as he hasn’t committed any new crimes.
Of course the clients who violate their probation with a new crime are always quick to point out that they’ve completed all their conditions of probations and have not committed any technical violations. Therefore, they mythically believe that they should not be violated for committing a new crime, especially if it’s just for what they consider a minor misdemeanor offense. The truth is that depending upon what the new crime is, some Judges will again give the client a break, but not always.126
“BUT I WAS ALREADY VIOLATED.”
Some people mythically believe that once their probation has been violated they don’t have to report to probation anymore. These people are quickly brought back to reality when their warrants are amended to add a violation for failing to report to probation. However, there are times when after being violated a person is told by his probation officer that he no longer has to report.
Unfortunately, the myth some clients cling to is that since they’ve already been violated then that means they have already been found guilty, and not only is there no point in reporting anymore, but they might as well commit a few more violations. Some of these people don’t realize that an arrest alone for a new crime127 or just being arrested on a Violation of Probation warrant, or sometimes even pleaing to a new charge128 while on probation, is not enough to violate them, and that they are entitled to a violation of probation hearing where they could prevail.
It is interesting to note that once a warrant is issued, the probationary period is tolled until the hearing, but a person can still be violated during this tolled period, and be ordered to continue reporting to probation, even though there is no provision in the statute awarding credit for probation served during this tolled time.129 It is almost like a person is on invisible, fake, or fictitious-probation, because it doesn’t really count, unless of course a person violates this mythical or tolled probation. Then it becomes all too real. Luckily, even though a person cannot demand a speedy probation hearing, the hearing is supposed to happen sooner rather than later.130
“I WANT A REAL LAWYER.”
Many people believe that Assistant Public Defenders are not lawyers. Some clients refer to them as “Public Pretenders” and “Public Offenders.” These clients are often heard saying, “I want a real lawyer” (AKA private attorney), and “if I had a real lawyer I would have gone to trial and won.” Some people believe that lawyers have to apprentice at the Public Defender’s Office before they can practice as “Real Lawyers.” The myth that Assistant Public Defender are not real lawyers is perpetuated first by the defendants assigned to the Public Defender’s Office, who no one ever believes except when they say Assistant Public Defenders are not a real lawyer. Then by some Private attorneys who want people to believe if they have the Public Defender they will go to jail or prison forever so they should hire a private attorney. And even by some Judges who criticize Public Defenders.
Now all this negative press spreads into the community at large. And before long television shows are airing episodes demeaning Public Defenders. One aired a story where at first appearance it looks like the Judge is going to give the client the death penalty right there in the courtroom as her Public Defender stands around hopelessly not knowing what to do, and may even be getting ready to assist in the execution of her client. The tension mounts as the moment nears to the time the electric chair is going to be wheeled into the courtroom. Then at the last moment in comes a Superhero to save the day, or its equivalent; a high paid private attorney who shouts out some words, while waiving some papers around, and the case is miraculously dismissed and an apology issued to the Defendant. This of course perpetuates the myth to the point that when it comes to the Public Defender the general public feels: You get what you pay for. And then there are ironically the times a person didn’t get what he didn’t pay for, and it was a good thing.131
The only basis in reality to this myth is that some Assistant Public Defenders are right out of law school, and therefore will not usually be as good as a more seasoned private attorney. But usually, neither will the brand new private attorneys who right after Law School open their own Law Firms. The Assistant Public Defenders are also overworked, and burdened with too many cases. They are similar to a chef who has to make dinner for a hundred people. No matter what there will always be some people who don’t like the food. But the truth is, some Assistant Public Defenders are just as good as some private attorneys, and some are even better, and some are of course worse. In other words the percentage of Assistant Public Defenders who don’t perform up to standards is the same as the percentage of private attorneys who don’t.
“I’LL WIN ON APPEAL.”
Then there is the myth of the appeal. Now I’m all for defendant’s being informed of their rights, but perhaps the most deceiving information a defendant is given is the one that comes right after the Defendant has pled and been sentenced. That’s when he’s told, “you have thirty days to appeal your sentence.” He doesn’t know what, “for collateral purposes only” means. He doesn’t understand that for the most part these are mere obligatory words. That the chances of winning an appeal after a plea and sentence are highly unlikely to say the least. No, he like just about every other client is under the long-standing myth that he can appeal and he will win his appeal, whether he lost at trial or pled.
The basis in truth here of course is that a small number of people do win their appeals, and sometimes appeals are even won when the appellate attorney has given up on winning by filing an Anders brief.132 For those unfamiliar with the term, an Anders brief is an appellate brief filed in cases where appellate counsel believes that there is no basis for an appeal. That an appeal in fact would be frivolous. An Anders brief is basically code for, “nothing here.”
The Appellate court Judges or rather their Law clerks then review the record on appeal to confirm that there is in fact, “nothing there.” But what if there is something there. What if appellate counsel missed something or was too lazy to even look for it because he didn’t feel like writing an appeal. Now, a lot can be said for getting other people, especially Appellate Judges and or their Law clerks to do your work. But if they find something worth overturning on appeal, then shouldn’t the attorney who submitted the Anders brief be billed costs and reasonable attorney’s fees.
“IT’S NOT LIKE I KILLED SOMEONE,” OR “MURDERERS DO LESS TIME THAN THAT.”
It is a common belief among the family members and friends of the accused, as well as the accused, that unless a person kills someone the accused should get little to no jail or prison time. Perhaps this is why a person who is sentenced to probation for a not so serious crime, doesn’t understand why after numerous violations of probation and or community control that he will do time. After all, “it’s not like he killed someone.”
These same people also believe that people charged with murder either end up having their cases dropped, or receiving a non-prison sentence, but in any event the killers usually end up doing less prison time than people who commit crimes where no one is killed. Causing people to say, “I could murder someone and get less time” or “I would have been better off killing someone,” or “Murderers get less time than that.”
It is a myth to believe that there are a bunch of convicted killers walking the streets, but with the draconian drug laws and various other minimum-mandatory sentences, and enhancements in place a person could kill someone and get less time than a drug addict.133
“I KNOW SOMEONE WITH THE SAME CHARGE AS ME AND THEIR CASE WAS THROWN OUT.”
The last myth I will discuss is the myth of the “other person” that every client knows. This other person had the same charge as the client or an even worse charge. And this other person either had their case thrown out or they were treated much more leniently than the client, and it was due to one of the myths listed above.
The basis in truth to this mythical other person who no doubt hangs out with The Reasonable Person (AKA The Reasonable Man),134 and Elvis is that depending upon the crime charged, the facts of the case, the defendant, the defendant’s prior record, the alleged victim(s), the police officers, the Judge, the prosecutor, the defense attorney, and luck, anything can happen in any case, and any myth can become a reality.
1 Seminal cases on custody: Traylor v. State, 596 So.2d 957 (Fla. 1992); Ramirez v. State, 739 So.2d 568(Fla. 1999); Traffic Stop cases where custody was found: England v. State, 35 FLW D2302(Fla. 2nd DCA 2010); State v. Hackett, 944 So.2d 399(Fla. 4th DCA 2006); Fowler v. State, 782 So.2d 461 (Fla. 2nd DCA 2001); State v. Evans, 692 So.2d 305(Fla. 4th DCA 1997); Tucker v. State, 622 So.2d 1362(4th DCA 1993); Morales v. State, 557 So.2d 893(Fla. 2nd DCA 1993); State v. Hall, 537 So.2d 171(Fla. 1st DCA 1989); Handcuffed, but not in custody: Lukehart v. State, 776 So.2d 906(Fla. 2000); Incarcerated, but not in custody: State v. Russell, 814 So.2d 483(Fla. 5th DCA 2002)
2 Traylor v. State, 596 So.2d 957(Fla.1992); Interrogation: Kight v. State, 512 So.2d 922(Fla. 1987); Jones v. State, 497 So.2d 1268(Fla. 3rd DCA 1986); Tierney v. State, 404 So.2d 206(Fla. 2nd DCA 1981); Not Interrogation: State v. Alexander, 810 So.2d 552(Fla. 5th DCA 2002); Steverson v. State, 997 So.2d 1251(Fla. 2nd DCA 2001)
3 Traylor v. State, 596 So.2d 957(Fla.1992); Non-Testimonial: State v. Foster, 562 So.2d 808(Fla. 5th DCA 1990)(General booking information.) Testimonial: Allred v. State, 622 So.2d 984(Fla.1993)(Mistakes made in counting and alphabet during field sobriety exercises.)
4 J.J.N. v. State, 877 So.2d 806(Fla. 5th DCA 2004)(Without confession constructive possession could not be proven.)
5 State v. Sykes, 434 So.2d 325 (Fla. 1983)
6 Voluntary abandonment is a defense to petit theft: Carroll v. State, 680 So.2d 1065(Fla. 3rd DCA 1996); Webber v. State, 718 So.2d 258 (Fla. 5th DCA 1998)(Defense to sale of stolen property); Voluntary abandonment is not a defense to petit theft: Dixon v. State, 559 So.2d 354(Fla. 1st DCA 1990)
7 State v. Purvis, 560 So.2d 1296(Fla. 5th DCA 1990) at 1300: As to the offers of remuneration and the lies, it must be recognized that, unless an undercover officer misrepresents his identity, states what it is that he wishes to buy, and shows an indication that he will deliver the financial reward for the illegal transaction, an undercover drug purchase would never be possible.
8 Florida Statute, 772.01; For a good explanation of Subjective and Objective Entrapment, SEE Hernandez v. State, 17 So.3d 748(Fla. 5th DCA 2009)
9 Garzon v. State, 939 So.2d 278(Fla. 4th DCA 2006)(Husband’s prior record used to show pre-disposition to commit crime charged.)
10 State v. Cohen, 13 FLW Supp. 886(Fla. Leon County Court, 2006)(However, courts have been wary of the emphasis on the officer testimony on the key buzz words that the stop was to make sure that the driver is not ill, tired or impaired.; State v. Bahouth, 12 FLW Supp. 577(Fla. 15th Cir. Court, 2005) The stated “to uphold traffic stops simply because a police officer testifies that he was concerned that the driver was sick, injured, or impaired without any other lawful basis would render the Fourth Amendment meaningless.”)
11 Smith v. State, 574 So.2d 300(Fla. 5th DCA 1991); Hoover v. State, 880 So.2d 710(Fla. 5th DCA 2004); State v. York, 14 FLW supp. 1006(Fla. Cir. Ct. 6th Jud. Cir. 2007)
12 Simpson v. State, 970 So.2d 463(Fla. 2nd DCA 2007)
13 State v. Diaz, 850 So.2d 435(Fla. 2003)
14 Simpson v. State, 970 So.2d 463(Fla. 2nd DCA 2007); Fernandez v. State, 917 So.2d 1022(Fla. 1st DCA 2006)
15 Zeigler v. State, 922 So.2d 384(Fla. 1st DCA 2006)(Odor of Cannabis led to further detention and search.)
16 State v. Frierson, 926 So.2d 1129(Fla. 2006)(Active warrant deemed an intervening cause that dissipates taint of unlawful stop.)
17 Moody v. State, 842 So.2d 754(Fla. 2003)(Knowledge of suspension three years old.); Stone v. State, 856 So.2d 1109(Fla. 4th DCA 2003)(Knowledge of suspension five weeks old.); State v. Leyva, 599 So.2d 691(Fla. 3rd DCA 1992)(Knowledge of suspended license five weeks old.); State v. Carrs, 568 So.2d 120(Fla. 5th DCA 1990)(Knowledge of expired license a week old.)
18 Okay for police to lie to defendant about evidence they have against defendant: State v. Moore, 530 So.2d 349 (Fla.2d DCA 1988); State v. Manning, 506 So.2d 1094(Fla. 3rd DCA 1987)( …when dealing with suspects deception short of an overbearing inducement is a valid weapon of the police arsenal.); Burch v. State, 343 So.2d 831(Fla. 1977); Halliwell v. State, 323 So.2d 557(Fla.1975); Paramore v. State, 229 So.2d 855(Fla.1969); Not okay for police to lie to defendant about evidence they have against defendant: State v. Kobielnik, 18 So.3d 1046 (Fla. 2nd DCA 2000); State v. Cayward, 552 So.2d 971(Fla. 2nd DCA 1989); Williams v. State, 441 So.2d 653(Fla. 3rd DCA 1983)
19 Florida Statutes, 322.02, 322.01(39); Hinson v. State, 710 So.2d 678(Fla. 1st DCA 1998)(Shoulder of road considered highway.); State v. Tucker, 761 So.2d 1248(Fla. 2nd DCA 2000) and Lopez v. State, 633 So.2d 1150(Fla. 5th DCA 1994)(Parking lot open to public is a highway); BUT SEE Galston v. State, 943 So.2d 968(Fla. 5th DCA 2006)(Roadway closed for construction is not a highway.)
20 Florida Statute, 322.04(1)(e); Cooper v. DHSMV, 15 FLW Supp. 1068(Fla. 20th Jud. Cir. Ct. Appellate 2008)(DUI on a Golf Cart, but not driving while license suspended.)
21 Florida Statue, 322.01(27)
22 Florida Statute, 322.01(26)
23 Larason v. State, 729 So.2d 494(Fla. 2nd DCA 1999); Soto v. State, 711 So.2d 1275 (Fla. 4th DCA 1998); Wood v. State, 717 So.2d 617(Fla. 1st DCA 1998)
24 State v. Riley, 698 So.2d 374(Fla. 2nd DCA 1998)
25 Hinson v. State, 710 So.2d 678(Fla. 1st DCA 1998)
26 Florida Statute, 316.003(2)
27 Florida Statute, 316.003(21)
28 Hinson v. State, 710 So.2d 678(Fla. 1st DCA 1998)
29 In Interest of B.P., 610 So.2d 625(Fla. 1st DCA 1992)(Mistake of Fact Defense used in Trespass of property case.); J.L. v. State, 566 So.2d 1383(Fla. 1st DCA 1990)(Mistake of Fact Defense used in theft case.); BUT SEE Bedoya v. State, 634 So.2d 203(Fla. 3rd DCA 1994)(Mistake of Fact Defense rejected in Trafficking and Conspiracy to Traffic in Cocaine case.)
30 Florida Statute, 800.04
31 Florida Statute, 794.05(2); Hodge v. State, 866 So.2d 1270(Fla. 4th DCA 2004); Campbell v. State, 771 So.2d 1205(Fla. 2nd DCA 2000)
32 Florida Statute, 741.0405
33 Akins v. State, 838 So.2d 637 (Fla. 5th DCA 2003); Flowers v. State, 738 So.2d 412(Fla. 5th DCA 1999); T.T. v. State, 459 So.2d 471(Fla. 1st DCA 1984); Shelby v. State, 541 So.2d 1219 (Fla. 2nd DCA 1989).
34 It is better to be found with a fake gun or starter pistol, than with no gun at all. (Toy Guns) SEE Wilson v. State, 823 So.2d 855 (Fla. 1st DCA 2002); Paul v. State, 421 So.2d 696(Fla. 2nd DCA 1982); I.O. v. State, 412 So.2d 42 (Fla. 3d DCA 1982); (Starter Pistols) SEE Hutchinson v. State, 816 So.2d 1186(Fla. 2nd DCA 2002); Evans v. State, 758 So.2d 1282(Fla. 3rd DCA 2000); Brooks v. State, 605 So.2d 874(Fla. 1st DCA 1992); Ridley v. State, 441 So.2d 188(Fla. 5th DCA 1983); Harpham v. State, 435 So.2d 375(Fla. 5th DCA 1983); For a good explanation of what is and what is not considered a deadly weapon, SEE Mitchell v. State, 698 So.2d 555(Fla. 2nd DCA 1997) affirmed in Mitchell v. State, 703 So.2d 1062 (Fla. 1997).
35 D.R.S. v. State, 912 So.2d 1280(Fla. 2nd DCA 2005); R.R. v. State, 846 So.2d 608 (Fla. 4th DCA 2003); Ortiz v. State, 843 So.2d 313 (Fla. 2nd DCA 2003); Marrisette v. State, 780 So.2d 1020(Fla. 4th DCA 2001); In the Interest of C.C.S. v. State, 729 So.2d 1016(Fla. 1st DCA 1999); Mack v. State, 711 So.2d 1154(Fla. 2nd DCA 1998); Trinidad v. State, 615 So.2d 806(Fla. 3rd DCA 1993); Cabral v. State, 550 So.2d 47(Fla. 2nd DCA 1989); G.E.G. v. State, 417 So.2d 975(Fla. 1982). BUT SEE Morra v. State, 467 So.2d 742(Fla. 3rd DCA 1985)
36 Threadgill v. State, 77 So. 880(Fla. 1918); Dixon v. State, 812 So.2d 595(Fla. 1st DCA 2002) (Traffic Citation)
37 Peterson v. State, 841 So.2d 661 (Fla. 4th DCA 2003); Gilchrist v. State, 784 So.2d 624(Fla. 3rd DCA 2001); Lupper v. State, 663 So.2d 1337(Fla. 4th DCA 1994); Jones v. State, 589 So.2d 1001(Fla. 3rd DCA 1991); Jefferson v. State, 549 So.2d 222(Fla. 1st DCA 1989); Evans v. State, 543 So.2d 326 (Fla. 3d DCA 1989); State v. Eckroth, 238 So.2d 75 (Fla.1970) BUT SEE Lord v. State, 616 So.2d 1065(Fla. 3rd DCA 1993)(Miniscule amount of cocaine residue on dollar bill not enough to convict for possession of cocaine.)
38 Gordon v. State, 639 So.2d. 188(Fla. 4th DCA 1994) (Rolling papers); Dubose v. State, 560 So.2d 323(Fla. 1st DCA 1990)(Rolling papers); Frazier v. State, 608 So.2d 530(Fla. 5th DCA 1992)(Scale); Williams v. State, 529 So.2d 345(Fla. 1st DCA 1988)(Scale); Dubose v. State, 560 So.2d 323(Fla. 1st DCA 1990)(Razor blade and Beer Can); Goodroe v. State, 812 So.2d 586(Fla. 4th DCA 2002)( Pipe); Nixon v. State, 680 So.2d 506(Fla. 1st DCA 1996)(Pipe); Lord v. State, 616 So.2d 1065(Fla. 3rd DCA 1993)(Dollar bill with miniscule amount of cocaine residue not found to be drug paraphernalia.)
39 Smiddy v. State, 627 So.2d 1257(Fla. 3rd DCA 1993)
40 State v. Powers, 555 So.2d 888(Fla. 2nd DCA 1990)
41 State v. Betts, 659 So.2d 1137(Fla. 5th DCA 1995)
42 State v. Powers, 555 So.2d 888(Fla. 2nd DCA 1990)
43 State v. Dupont, 659 So.2d 405(Fla. 2nd DCA 1995); State v. Williams, 386 So.2d 27(Fla. 2nd DCA 1980)
44 Florida statute, 934.03(2)(c)
45 State v. Sobel, 743 So.2d 38(Fla. 5th DCA 1999); Thompson v. State, 731 So.2d 819(Fla. 5th DCA 1999); Florida statute, 934.03(2)(c)
46 Bedoya v. State, 779 So. 2d 574(Fla. 5th DCA 2001); Allen v. state, 636 So.2d 494(Fla. 1994)
47 State v. McAdams, 559 So.2d 601 (Fla. 5th DCA 1990)
48 State v. Smith, 641 So.2d 849(Fla. 1994)
49 Florida statute, 934.07; State v. Mozo, 655 So.2d 1115 (Fla. 1995)( Expectation of privacy exists for communications originating from a person’s cordless phone used inside the person’s home making wiretap necessary.); State. McCormick, 719 So.2d 1220(Fla. 5th DCA 1998)(Wiretap properly authorized for Cell phone.)
50 Cincy v. State, 645 So.2d 572 (Fla. 4th DCA 1994)(No expectation of privacy found for conversation that took place in apartment complex courtyard.); State v. Inciarrano, 473 So.2d 1272(Fla. 1985)(No expectation of privacy found when Defendant committed criminal act to victim in victim’s home, and victim recorded it.); State v. Sells, 582 So.2d 1244(Fla. 4th DCA 1991)(Referring to holding in Inciarrano case as narrow “criminal act” exception.)
51 McWatters v. State, 36 So.3d 613(Fla. 2010)
52 Katz v. U.S., 389 U.S. 347(1967)
53 Poller v. State, 778 So.2d 541(Fla. 3rd DCA 2001)
54 State v. Hornesby, 858 S.W. 2d 892(Tenn. 1993)
55 Wood v. United States, 342 F.2d 708(8th Cir. 1965)
56 Means v. State, 814 So.2d 1136 (Fla. 1st DCA 2002); P.A. v. State, 712 So.2d 464(Fla. 5th DCA 1998); Gay v. State, 607 So.2d 454 (Fla. 1st DCA 1992)
57 Standing for the proposition that hearsay alone can be enough for a conviction if the hearsay that the alleged victim is impeached with, is a firmly rooted exception to the hearsay rule: Werly v. State, 814 So.2d 1159(Fla. 1st DCA 2002)(Excited Utterance used to impeach victim and convict Defendant.) Williams v. State, 714 So.2d 462(Fla. 3rd DCA 1997)(Victim and witness recanted at trial, but their excited utterances were allowed to be used to convict Defendant.); Rivera v. State, 718 So.2d 856(Fla. 4th DCA 1998)
58 Standing for the proposition that hearsay alone is not enough for a conviction if the alleged victim is impeached with hearsay that is non-substantive evidence, and there is no other evidence to corroborate the hearsay: Baugh v. State, 961 So.2d 198(Fla. 2007); Santiago v. State, 652 So.2d 485(Fla. 5th DCA 1995); R.T.L. v. State, 764 So.2d 871(Fla. 4th DCA 2000); Hammer v. State, 768 So.2d 521(Fla. 2nd DCA 2000); State v. Green, 667 So.2d 756(Fla. 1995)
59 Laur v. State, 781 So.2d 452(Fla. 4th DCA 2001); Morton v. State, 689 So.2d 259(Fla. 1997)
60 Victim recanted testimony: Venuto v. State, 615 So.2d 255(Fla. 3rd DCA 1993); Norris v. State, 586 So.2d 1320(Fla. 2nd DCA 1991); Key State Witness recanted testimony: Robinson v. State, 678 So.2d 1232(Fla. 4th DCA 1999); State v. Spaziano, 692 So.2d 174(Fla. 1997); Roberts v. State, 678 So.2d 1232(Fla. 1996); Cammarano v. State, 602 So.2d 1369(Fla. 5th DCA 1992)
61 Victim recanted trial testimony: Linkous v. State, 585 So.2d 486(Fla. 2nd DCA 1991); Borgess v. State, 455 So.2d 488(Fla. 1st DCA 1984); Key State witness recanted trial testimony: Montgomery v. State, 826 So.2d 531 (Fla. 5th DCA 2002);
62 State v. Spaziano, 692 So.2d 174(Fla. 1997)(Key state witness recanted.); Collins v. State, 423 So.2d 516(Fla. 5th DCA 1982)(Victim recanted.)
63 Victim recants testimony: Scott v. State, 629 So.2d 888(Fla. 4th DCA 1993); Ferguson v. Stone, 415 So.2d 98(Fla. 4th DCA 1982)(Overturned on other grounds.)
64 Scott v. State, 629 So.2d 888(Fla. 4th DCA 1993); Ferguson v. Stone, 415 So.2d 98(Fla. 4th DCA 1982)(Overturned on other grounds.)
65 Riddle v. State, 212 So.2d 122(Fla. 2nd DCA 1968))(The victim’s mother claimed she made her daughter lie about being raped.)
66 Baker v. State, 959 So.2d 1250(Fla. 2nd DCA 2007)(Without testimony of victim state could not prove that biting (battery) was nonconsensual.); In The Interest of MM., a Child, 571 So.2d 112(Fla. 4th DCA 1990)(Without testimony of victim to prove ownership of house, burglary could not be proved.); Everhart v. State, 592 So.2d 353(Fla. 4th DCA 1992)(Without testimony of eye witness, identification of defendant could not be established.); Cruz v. State, 557 So.2d 668(Fla. 5th DCA 1990)(Without testimony of victim, identification of defendant could not be proved.)
67 Rodriguez v. State, 696 So.2d 533(Fla. 3rd DCA 1997)(A pre-Crawford (Crawford v. Washington, 541 U.S. 36 (2004)) case stating that excited utterance alone without the victim testifying was enough to convict. If the excited utterance in Rodriguez were deemed non-testimonial then it would survive Crawford. SEE Walden v. State, 979 So.2d 232(Fla. 2nd DCA 2008)(Post-Crawford case)
68 There are of course times even in Traffic court where the officer does not have to appear, and the case is not dismissed. Cases where officer was not a witness to accident and did not have to appear for case to be heard: Depriest v. State, 13 FLW Supp. 936(Fla. Cir. Ct. 9th, Cir. 2006); State v. Silva, 8 Fla. L. Weekly Supp. 459a (Fla. 15th Cir. Ct. 2001).
69 Florida Rules of Traffic, 6.150(b)
70 Henderson v. State, 594 So.2d 336(Fla. 1st DCA 1992)
71 Florida Statute, 893.02(6), 893.13(1)(a)
72 Haddaway v. State, 891 So.2d 631(Fla. 5th DCA 2005)
73 State v. Gallet, 7 FLW Supp. 415(Fla. Broward County Court, 2000)
74 Ruggles v. State, 757 So.2d 632(Fla. 5th DCA 2000)
75 Pipkin v. DHSMV, 11 Fla. L. Weekly Supp. 788a (11th Cir. 2004); State v. Alcorn, 12 FLW Supp. 156(Fla. Miami-Dade County Court, 2004)
76 Jackson v. State, 463 So.2d 372(Fla. 5th DCA 1985)
77 Florida Statute, 776.051
78 Florida Statute, 776.051
79 Phoenix v. State, 455 So.2d 1024(Fla. 1984)
80 Edwards v. State, 462 So.2d 581(Fla. 4th DCA 1985)
81 The Andy Griffith Show, episode: Citizen’s Arrest (Gomer Pyle makes a citizen’s arrest of Deputy Barney Fife)
82 Florida Rule of Evidence, 90.504
83 State v. Norris, 352 So.2d 875(Fla. 3rd DCA 1977)
84 Florida Rule of Evidence, 90.504
85 State v. Grady, 811 So.2d 829(Fla. 2nd DCA 2002); Kerlin v. State, 352 So.2d 45(Fla. 1977)
86 Boyd v. State, 17 So.3d 812(Fla. 4th DCA 2009) (Husband spoke to wife in Interrogation room of police station and conversation was overheard and secretly taped by third party police officer, so privilege does not apply.); Johnson v. State, 730 So.2d 368(Fla. 5th DCA 1999)(Same as Boyd); Taylor v. State, 855 So.2d 1(Fla. 2003)(Husband and wife had conversation at jail that was not overheard or taped by third party so privilege remains.); Bolin v. State, 796 So.2d 511(Fla. 2001)(Communications privileged and not waived.); Yokie v. State, 773 So.2d 115(Fla. 4th DCA 2000)(Telephone conversation between husband and wife deemed privileged.)
87 State v. Grady, 811 So.2d 829(Fla. 2nd DCA 2002)(Statements can be used as a tip to start an investigation into a crime.)
88 Florida Statutes, 943.059; 943.0585
89 Florida Rule of Criminal Procedure, 3.704(14)(C)
90 Martin v. State, 667 So.2d 931 (Fla. 2nd DCA 1996)(A person with a withhold of adjudication for a felony cannot be charged with possession of a firearm by a convicted felon.); A person on felony probation cannot possess a firearm without the permission of the court and the consent of his probation officer: Florida statute, 948.03(l)
91 Florida Stature, 775.13
92 Florida statute, 790.06(2)(k)
93 Florida Rules of Executive Clemency, 5D
94 Florida Rules of Executive Clemency, 5A
95 Florida Rules of Executive Clemency, 4A
96 R.J.L v. State, 887 So.2d 1268(Fla. 2004)
97 Florida Rule of Criminal Procedure, 3.704(14)(A)
98 Too remote in time to be used for impeachment purposes: Braswell v. State, 306 So.2d 609(Fla. 1st DCA 1975)(24 year-old larceny conviction in summary court martial.) Not too remote in time to be used for impeachment purposes: Riechmann v. State, 581 So.2d 133(Fla. 1991)(13 year-old perjury, 21 year-old grand theft, 14 year-old forgery.); Ward v. State, 343 So.2d 77(Fla. 2nd DCA 1977)( 20 year-old perjury conviction.); State v. Swartz, 734 So.2d 448(Fla. 4th DCA 1999)(1974 and 1975 DUI convictions.)
99 Florida Statute, 322.27(3)(a)
100 Florida Statute, 985.04; K.J.F. v. State, 44 So.3d 1204(Fla. 1st DCA 2010(Defining when a juvenile has to register as a sex offender.)
101 Florida Rule of Criminal Procedure, 3.704(14)(B)
102 Florida Rule of Criminal Procedure, 3.133
103 Defendant must file a motion to be released, Florida Rule of Criminal Procedure, 3.134 is not self-executing: Ford v. Campbell, 697 So.2d 1301(Fla. 1st DCA 1997)
104 State v. Couch, 896 So.2d 799(Fla. 1st DCA 2005); State v. Haddad, 750 So.2d 139 (Fla. 1st DCA 2000). But Judge does have discretion to waive min-man in youthful offender cases: Bennett v. State, 24 So.3d 693(Fla. 1st DCA 2010)
105 Notwithstanding Florida Rule of Criminal Procedure, 3.190(c)4; AND SEE State v. Kalogeropolous, 758 So.2d 110(Fla. 2000)
106 Cox v. State, 412 So.2d 354(Fla. 1982)
107 Florida rule of evidence, 90.410; Florida rule of criminal procedure, 3.172(i)
108 Letter to Judge inadmissible: Hill v. State, 768 So.2d 518(Fla. 2nd DCA 2000); BUT SEE Serrano v. State, 15 So.3d 629 (Fla. 1st DCA 2009); Traylor v. State, 498 So.2d 1297(Fla. 1st DCA 1986). Letter to State Attorney’s office inadmissible: Debsiasio v. State, 801 So.2d 197(Fla. 4th DCA 2001); McCray v. State, 760 So.2d 988(Fla. 2nd DCA 2000); Russell v. State, 614 So.2d 605(Fla. 1st DCA 1993)
109 State cannot appeal a Judgment of Acquittal entered before a Jury Verdict: Florida Rule of Appeal, 9.140(C); State cannot appeal a dismissal of a warrant for violation of probation: State v. Jones, 488 So.2d 527(Fla. 1986); State cannot appeal modification of conditions of probation when probation is not revoked after a violation hearing: State v. Gray, 721 So.2d 370(Fla. 4th DCA 1998)
110 Florida rule of criminal procedure, 3.172; Fairweather v. State, 505 So.2d 653 (Fla. 2nd DCA 1987); Jernigan v. State, 608 So.2d 569(Fla. 1st DCA 2992); Gamble v. State, 449 So.2d 319(Fla. 5th DCA 1984)(Judge can even reject offer after accepting it.)
111 State v. Kruger, 615 So.2d 757(Fla. 4th DCA 1993)(Client brought unsuccessful motion for ineffective assistance of counsel because attorney waived his right to speedy trial without client’s consent.)
112 Landry v. State, 666 So.2d 121(Fla. 1995)(State and Judge not paying attention, and defendant demands speedy trial, and gets away with murder.)
113 State v. Brown, 762 So.2d 589(Fla. 4th DCA 2000); State v. Jenkins, 762 So.2d 535(Fla. 4th DCA 2000); Jolly v. State, 756 So.2d 142 (Fla. 4th DCA 2000). BUT SEE Pendergrass v. State, 601 So.2d 1250(Fla. 2nd DCA 1992); Graddy v. State, 517 So.2d 772(Fla. 2nd DCA 1988), both distinguished in: Swilley v. State, 781 So.2d 458 (Fla. 2nd DCA 2001) and State v. Jenkins, 762 So.2d 535(Fla. 4th DCA 2000).
114 W.B.S. v. State, 851 So.2d 802 (Fla. 2nd DCA 2003); Louis v. State, 797 So.2d 1281(Fla. 4th DCA 2001); Gonzales v. State, 780 So.2d 266(Fla. 4th DCA 2001); Bones v. State, 764 So.2d 888(Fla. 4th DCA 2000); Morris v. State, 727 So.2d 975(Fla. 5th DCA 1999); State v. Green, 667 So.2d 959(Fla. 2nd DCA 1996); Cavalcante v. Florida Parol and Probation Commission, 414 So.2d 658(Fla. 1st DCA 1982); Russ v. State, 313 So.2d 758(Fla. 1975).
115 State v. McCord, 402 So.2d 1147(Fla. 1981)
116 Violated for failing to report in person: Odom v. State, 15 So.3d 672(Fla. 1st DCA 2009); Guderian v. State, 933 So.2d 17(Fla. 2nd DCA 2006) Not violated for failing to report in person: Wilson v. State, 781 So.2d 1185(Fla. 5th DCA 2001); Rodriguez v. State, 768 So.2d 1234(Fla. 5th DCA 2000); Robinson v. State, 744 So.2d 1188(Fla. 2nd DCA 1999); Faulkner v. State, 706 So.2d 948(Fla. 2nd DCA 1998); Remich AKA Remick v. State, 696 So.2d 1270(Fla. 2nd DCA 1997); Cason v. State, 623 So.2d 824(Fla. 2nd DCA 1993); Harris v. State, 610 So.2d 36(Fla. 2nd DCA 1992); Johnson v. State, 561 So.2d 1254(Fla. 2nd DCA 1990); Hightower v. State, 529 So.2d 726(Fla. 2nd DCA 1988); Drayton v. State, 490 So.2d 229(Fla. 2nd DCA 1986); Grant v. Jones, 461 So.2d 1375(Fla. 4th DCA 1985); Shaw v. State, 391 So.2d 754(Fla. 5th DCA 1980)
117 Violated for failing to make on written report: Williams v. State, 811 So.2d 814(Fla. 3rd DCA 2002); Strunk v. State, 728 So.2d 320(Fla. 5th DCA 1999); Schwartz v. State, 719 So.2d 965(Fla. 4th DCA 1998); Thompson v. State, 710 So.2d 80(Fla. 4th DCA 1998); Diller v. State, 711 So.2d 54(Fla. 5th DCA 1998); Burgin v. State, 623 So.2d 575(Fla. 1st DCA 1993); Jordan v. State, 610 So.2d 616(Fla. 1st DCA 1992); Mcpherson v. State, 530 So.2d1095 (Fla. 1st DCA 1988); Neves v. State, 502 So.2d 1343(Fla. 2nd DCA 1987); Warren v. State, 499 So.2d 55(Fla. 4th DCA 1986); Boynik v. State, 480 So.2d 210(Fla. 1st DCA 1985); Davis v. State, 474 So.2d 1246(Fla. 4th DCA 1985); Sampson v. State, 375 So.2d 325(Fla. 2nd DCA 1979); Watkins v. State, 368 So.2d 363(Fla. 2nd DCA 1979); Page v. State, 363 So.2d 621(Fla. 1st DCA 1978). Not violated for failing to file one monthly report: Lee v. State, 717 So.2d 1088(Fla. 4th DCA 1998); Smith v. State, 711 So.2d 100(Fla. 1st DCA 1998); Lynom v. State, 816 So.2d 1218(Fla. 2nd DCA 2002); Butler v. State, 775 So.2d 320(Fla. 2nd DCA 2000); Hendrix v. State, 754 So.2d 801(Fla. 2nd DCA 2000); Lee v. State, 717 So.2d 1008(Fla. 4th DCA 1998); Smith v. State, 711 So.2d 100(Fla. 1st DCA 1998); Monroe v. State, 679 So.2d 50(Fla. 1st DCA 1996); Sanders v. State, 675 So.2d 665(Fla. 2nd DCA 1996); Moore v. State, 632 So.2d 199(Fla. 1st DCA 1994); Goley v. State, 584 So.2d 139(Fla. 5th DCA 1991); Glenn v. State, 558 So.2d 513(Fla. 2nd DCA 1990); Hoshaw v. State, 533 So.2d 886(Fla. 3rd DCA 1988); Hightower v. State, 529 So.2d 726(Fla. 2nd DCA 1988); Drayton v. State, 490 So.2d 229(Fla. 2nd DCA 1986); Hilton v. State, 469 So.2d 932(Fla. 3rd DCA 1985); Jordan v. State, 437 So.2d 185(Fla. 2nd DCA 1983); Jordan v. State, 412 So.2d 970(Fla. 2nd DCA 1982); Shaw v. State, 391 So.2d 754(Fla. 5th DCA1980);
BUT SEE Carter v. State, 835 So.2d 259 (Fla. 2002 ) (There is no per se rule that states failing to file one monthly report cannot be a violation of probation. It is always in the court’s discretion whether to violate a person’s probation for failing to file one monthly report.)
118 Violated for failing to pay restitution: Francois v. State, 923 So.2d 1219(Fla. 3rd DCA 2006); Dirico v. State, 806 So.2d 581(Fla. 4th DCA 1998); Not violated for failing to pay restitution: Muthra v. State, 777 So.2d 106( Fla. 3rd DCA 2001); White v. State, 736 So.2d 1226(Fla. 3rd DCA 1999); Perito v. State, 727 So.2d 1031(Fla. 4th DCA 1999); Moore v. State, 724 So.2d 117(Fla. 3rd DCA 1998); Cherry v. State, 718 So.2d 294(Fla. 2nd DCA 1998); Llumbet v. State, 698 So.2d 381 (Fla. 4th DCA 1997); White v. State, 693 So.2d 119(Fla. 2nd DCA 1997; Fichera v. State, 688 So.2d 453(Fla. 1st DCA 1997); Tracy v. State, 673 So.2d 544(Fla. 4th DCA 1996); Campbell v. State, 660 So.2d 1134(Fla. 4th DCA 1995); Hillman v. State, 636 So.2d 181(Fla. 5th DCA 1994); Thomas v. State, 635 So.2d 1009(Fla. 1st DCA 1994); Mayer v. State, 632 So.2d 678(Fla. 5th DCA 1994); Ashlock v. State, 632 So.2d 213(Fla. 5th DCA 1994); Stevens v. State, 630 So.2d 1090(Fla. 1994); White v. State, 627 So.2d 599(Fla. 1st DCA 1993); Lang v. State, 622 So.2d 560(Fla. 3rd DCA 1993); Hewett v. State, 613 So.2d 1305(Fla. 1993); Boss v. State, 613 So.2d 525(Fla. 5th DCA 1993); Jordan v. State, 610 So.2d 616(Fla. 1st DCA 1992); Kolovrat v. State, 574 So.2d 294(Fla. 5th DCA 1991)
119 Violated for failing to pay cost of supervision: Moore v. State, 623 So.2d 795(Fla. 1st DCA 1993); Not violated for failing to pay cost of supervision: Reed v. State, (Fla. 2nd DCA Iaconetti v. State, 668 So.2d 1079(Fla. 2nd DCA 1996); Pinder v. State, 653 So.2d 469(Fla. 4th DCA 1995); Neves v. State, 502 So.2d 1343(Fla. 2nd DCA 1987); Shaw v. State, 391 So.2d 754(Fla. 5th DCA 1980); Watkins v. State, 368 So.2d 363(Fla. 2nd DCA 1979); Chatman v. State, 365 So.2d 789(Fla. 4th DCA 1978)
120 Violated for failing to pay court costs and or fines: Shepard v. State, 939 So.2d 311(Fla. 4th DCA 2006); Francois v. State, 923 So.2d 1219(Fla. 3rd DCA 2006); Not violated for failing to pay court costs and or fines: Robinson v. State, 773 So.2d 566(Fla. 2nd DCA 2000); McCoy v. State, 730 So.2d 803(Fla. 2nd DCA 1999); James v. State, 718 So.2d 365(Fla. 4th DCA 1998); Antoine v. State, 684 So.2d 266(Fla. 4th DCA 1996); Allen v. State, 662 So.2d 380(Fla. 4th DCA 1995); Moore v. State, 623 So.2d 795(Fla. 1st DCA 1993); Neves v. State, 502 So.2d 1343(Fla. 2nd DCA 1987)
121 Violated for failing to finish classes: Lawson v. State, 969 So.2d 222(Fla. 2007); Woodson v. State, 864 So.2d 512(Fla. 5th DCA 2004); Cunningham v. State, 795 So.2d 219 (Fla. 4th DCA 2001); Mitchell v. State, 717 So.2d 609(Fla. 4th DCA 1998); Robinson v. State, 689 So.2d 1147(Fla. 4th DCA 1996); Mackey v. State, 778 So.2d 1090 (Fla. 4th DCA 2001); Antoine v. State, 684 So.2d 266(Fla. 4th DCA 1996); Fields v. State, 737 So.2d 1156 (Fla. 2nd DCA 1999); Boyd v. State, 756 So.2d 1114 (Fla. 1st DCA 2000); Arias v. State, 751 So.2d 184(Fla. 3rd DCA 2000); Monroe v. State, 679 So.2d 50(Fla. 1st DCA 1996); Miller v. State, 661 So.2d 353(Fla. 4th DCA 1995); Archer v. State, 604 So.2d 561(Fla. 1st DCA 1992); Bell v. State, 643 So.2d 674(Fla. 1st DCA 1994); Not violated for failing to finish classes: Slovak v. State, 862 So.2d 875(Fla. 2nd DCA 2003); Reed v. State, 865 So.2d 654(Fla. 2nd DCA 2004); Wilkerson v, State, 2004 WL 1618529(Fla. 2nd DCA 2004); Rubio v. State, 824 So.2d 1020(Fla. 5th DCA 2002); Marcano v. State, 814 So.2d 1174(Fla. 4th DCA 2002); Buckins v. State, 789 So.2d 1184(Fla. 4th DCA 2001); Padelt v. State, 793 So.2d 30(Fla. 2nd DCA 2001); Meade v. State, 799 So.2d 430(Fla. 1st DCA 2001); Rothery v. State, 757 So.2d 1256(Fla. 5th DCA 2000); Lane v. State, 762 So.2d 560(Fla. 5th DCA 2000); Cowart v. State, 754 So.2d 813(Fla. 1st DCA 2000); McCoy v. State, 730 So.2d 803(Fla. 2nd DCA 1999); Barnes v. State, 739 So.2d 1181(Fla. 1st DCA 1999); Faulk v. State, 743 So.2d 1183(Fla. 1st DCA 1999); Carter v. State, 763 So.2d 1091(Fla. 4th DC 1999); Cyr v. State, 747 So.2d 1005(Fla. 2nd DCA 1999); Talley v. State, 708 So.2d 333(Fla. 4th DCA 1998); Larangera v. State, 686 So.2d 697(Fla. 4th DCA 1996); Jackson v. State, 685 So.2d 7(Fla. 4th DCA 1996); Antoine v. State, 684 So.2d 266(Fla. 4th DCA 1996); Bennet v. State, 684 So.2d. 242(Fla. 2nd DCA 1996); Sanders v. State, 675 So.2d 665(Fla. 2nd DCA 1996); Thomas v. State, 672 So.2d 587(Fla. 4th DCA 1996); Waldon v. State, 670 So.2d 1155(Fla. 4th DCA 1996); Washington v. State, 667 So.2d 255(Fla. 1st DCA 1995); Bingham v. State, 655 So.2d 1186(Fla. 1st DCA 1995); Salzano v. State, 664 So.2d 23(Fla. 2nd DCA 1995); Melecio v. State, 662 So.2d 408(Fla. 1st DCA 1995); Rainer v. State, 657 So.2d 1230(Fla. 4th DCA 1995); Diaz v. State, 629 So.2d 261(Fla. 4th DCA 1993); Grant v. State, 616 So.2d 1184(Fla. 3rd DCA 1993); Gibbs v. State, 609 So.2d 76(Fla. 1st DCA 1992); Stevens v. State, 599 So.2d 254(Fla. 3rd DCA 1992); Haynes v. State, 571 So.2d 1380(Fla. 2nd DCA 1990); Young v. State, 566 So.2d 69(Fla. 2nd DCA 1990); Bell v. State, 543 So.2d 674(Fla. 1st DCA 1994); Morales v. State, 518 So.2d 964(Fla. 3rd DCA 1988); Henderson v. State, 461 So.2d 1008(Fla. 5th DCA 1984); Hutchinson v. State, 428 So.2d 739(Fla. 2nd DCA 1983); Davidson v. State, 419 So.2d 728(Fla. 2nd DCA 1982); Holterhaus v. State, 417 So.2d 291(Fla. 2nd DCA 1982); Clark v. State, 402 So.2d 43(Fla. 4th DCA 1981); Curry v. State, 379 So.2d 140(Fla. 4th DCA 1978)
122 Violated for failing to complete community service: Legree v. State, 739 So.2d 616(Fla. 1st DCA 1999); Not violated for failing to complete community service: Brown v. State, 813 So.2d 202(Fla. 2nd DCA 2002); Muthra v. State, 777 So.2d 1067(Fla. 3rd DCA 2001); Nichols v. State, 747 So.2d 1015(Fla. 1st DCA 1999); Willis v. State, 727 So.2d 952(Fla. 4th DCA 1998); Davis v. State, 697 So.2d 895 (Fla. 2nd DCA 1997); Tracy v. State, 673 So.2d 544(Fla. 4th DCA 1996); Green v. State, 620 So.2d 1126(Fla. 1st DCA 1993); White v. State, 619 So.2d 429(Fla. 1st DCA 1993)
123 Violated for changing address without permission: Weissbard v. State, 764 So.2d 842 (Fla. 3rd DCA 2000); Mosley v. State, 735 So.2d 547 (Fla. 4th DCA 1999); Dunham v. State, 683 So.2d 507(Fla. 1st DCA 1996); McPherson v. State, 530 So.2d 1095(Fla. 1st DCA 1988); McNealy v. State, 479 So.2d 138(Fla. 2nd DCA 1985); Watkins v. State, 368 So.2d 363(Fla. 2nd DCA 1979); Not violated for changing address without permission: Copeland v. State, (Fla. 1st DCA ); Rodriguez v. State, 768 So.2d 1234 (Fla. 5th DCA 2000); Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000); Larangera v. State, 734 So.2d 515 (Fla. 4th DCA 1999); Tornas v. State, 742 So.2d 472 (Fla. 2nd DCA 1999); Jones v. State, 730 So.2d 349(Fla. 4th DCA 1999); Palinski v. State, 739 So.2d 1168 (Fla. 2nd DCA 1999); Cito v. State, 721 So.2d 1192(Fla. 2nd DCA 1998); Chamness v. State, 697 So.2d 961(Fla. 2nd DCA 1997); Van Wagner v. State, 677 So.2d 314(Fla. 1st DCA 1996); Thomas v. State, 672 So.2d 587(Fla. 4th DCA 1996); Johnson v. State, 668 So.2d 240(Fla. 1st DCA 1996); Tobias v. State, 641 So.2d 194(Fla. 4th DCA 1994); Shaw v. State, 391 So.2d 754(Fla. 5th DCA 1980); Kotowski v. State, 344 So.2d 602(Fla. 3rd DCA 1977)
124 Violated for leaving approved residence without permission: Hurst v. State, 941 So.2d 1252(Fla. 1st DCA 2006); Tobias v. State, 641 So.2d 194(Fla. 4th DCA 1994); Not violated for leaving approved residence without permission: Brown v. State, 813 So.2d 202 (Fla. 2nd DCA 2002); Jackson v. State, 85 So.2d 524 (Fla. 4th DCA 2000); Butler v. State, 775 So.2d 320 (Fla. 2nd DCA 2000); McCray v. State, 754 So.2d 776 (Fla. 3rd DCA 2000); Riddle v. State, 755 So.2d 771 (Fla. 4th DCA 2000); Hern v. State, 747 So.2d 1039 (Fla. 4th DCA 1999); Milbry v. State, 722 So.2d 834 (Fla. 2nd DCA 1998); Zelaya v. State, 713 So.2d 1079 (Fla. 4th DCA 1998); Thomas v. State, 672 So.2d 587(Fla. 4th DCA 1996); Williams v. State, 666 So.2d 187(Fla. 2nd DCA 1995); Jackson v. State, 622 So.2d 1027(Fla. 4th DCA 1993); Morse v. State, 604 So.2d 496(Fla. 1st DCA 1992); Stevens v. State, 599 So.2d 254(Fla. 3rd DCA 1992)
125 Violated for absconding: Ware v. State, 474 So.2d 332(Fla. 1986); Not violated for absconding: Young v. State, 739 So.2d 1179(Fla. 4th DCA 1999)
126 Violated for committing misdemeanor: Hoffman v. State, 743 So.2d 130(Fla. 4th DCA 1999)(DUI); Turner v. State, 711 So.2d 1321(Fla. 5th DCA 1998)(DWLS/R); Jacobs v. State, 668 So.2d 294(Fla. 1st DCA 1996)(DWLS/R); Not violated for receiving a Speeding ticket: Benitez v. State, 744 So.2d 1088(Fla. 4th DCA 1999)
127 Arrest alone not enough to violate a person: Ontiveros v. State, 746 So.2d 1174 (Fla. 2nd DCA 1999); Thompson v. State, 710 So.2d 80 (Fla. 4th DCA 1998); Maines v. State, 621 So.2d 679(Fla. 2nd DCA 1993); Hines v. State, 358 So.2d 183(Fla. 1978)
128 No contest plea not necessarily enough to violate a person: Smith v. State, 936 So.2d 755 (Fla. 1st DCA 2006); Grizzard v. State, 881 So. 2d 673 (Fla. 5th DCA 2004); Maselli v. State, 446 So. 2d 1079 (Fla. 1984); Certified Judgments of conviction not always enough to violate person: Cox v. State, 816 So.2d 160 (Fla. 2nd DCA 2002); Sagner v. State, 776 So.2d 1088(Fla. 4th DCA 2001); Lester v. State, 745 So.2d 1058(Fla. 4th DCA 1999)
129 Florida Statute, 948.06(1)(d)
130 United States v. Gernie, 228 F. Supp. 329(U.S. S.D. N.Y. 1964)(Right to Constitutional Speedy trial for probation hearing.); Hill v. State, 739 So.2d 634(Fla. 4th DCA 1999)(Four weeks too long to wait before first appearance was held on VOP warrant.)
131 State v. Kelly, 999 So.2d 1029(Fla. 2008)(Indigent client not appointed Assistant Public Defender for prior DUI, prevents that DUI from being used to enhance pending DUI to felony DUI.)
132 Anders v. California, 386 U.S. 738 (1967); In Re Anders Briefs, 581 So.2d 149 (Fla. 1991); Burgess v. State, 830 So.2d 950(Fla. 5th DCA 2002)(Anders brief filed, but case reversed and remanded for a new trial.)
133 Paey v. State, 943 So.2d 919(Fla. 2nd DCA 2006)(Addict received twenty-five year minimum-mandatory sentence for possession of trafficking amount of oxycodone.)
134 State v. Gentry, 19 So.3d 389(Fla. 2nd DCA 2009)