Author Archives: Jay Butchko
How Federal “Habeas” Relief Can Affect Your Florida Criminal Trial
Most criminal cases are heard in state court. This means that if you are tried and convicted of a crime in a Florida state trial court, your only avenue for appeal is normally through the state’s appellate courts. It is possible to seek what is known as habeas relief from a federal court, but… Read More »
How Selling “Counterfeit” Illegal Drugs Can Still Get You Into Serious Trouble In Florida
You probably know that it is a crime to sell certain “controlled substances,” i.e., drugs. But under Florida law it is also a criminal offense to sell (or possess with intent to sell) a “counterfeit controlled substance.” Basically, if you are caught selling something that is labeled as a controlled substance but is not,… Read More »
U.S. Supreme Court Holds “Affirmative Indication Of Innocence” Not Required To Sue Police Officers For Civil Rights Violations
Far too many Florida residents have been arrested and charged with crimes that they did not commit. In some cases the innocent victims of such malicious prosecution can file a federal civil rights lawsuit and seek compensation. And thanks to a recent United States Supreme Court decision, such claims are now easier to pursue…. Read More »
When Is Evidence Of Other Crimes Admissible At Trial?
A criminal trial must be decided based on the evidence the defendant committed the alleged crimes. A trial is not a forum to try the defendant’s character or other unrelated crimes. That said, Florida courts have long followed a principle known as the Williams Rule that does allow a jury to consider a defendant’s… Read More »
What Is A “True Split” Sentence?
A Florida judge will often suspend a prison sentence in favor of a period of probation. In some cases, the judge will impose what is known as a “true split” sentence. Basically, this means that the judge imposes a specific prison sentence but suspends a part of it contingent on the defendant completing a… Read More »
Can My Florida Criminal Conviction Be Overturned If The Eyewitness Changes Their Story?
Once a person is found guilty of committing a crime, it is an uphill process to overturn that conviction. But there are circumstances when a Florida court must at least consider the possibility the conviction was tainted. For example, what happens if a key prosecution witness later recants their trial testimony? In and of… Read More »
Does A Florida Police Officer Need A Warrant To Arrest Me?
A person is under arrest when they are “seized” by the police. That is, an officer must apply some form of physical force–usually placing handcuffs on the suspect–and taking them into custody. Under the Fourth Amendment to the United States Constitution, the police may not make an “unreasonable” seizure of an individual and must… Read More »
Does A Judge Have To Advise You Of Your Right To Counsel Before You Enter A Plea?
In any criminal proceeding, you have the right to consult with an attorney at every stage of your case. This right is especially crucial when it comes to an arraignment. An arraignment is usually the first time that a person appears in court to answer the charge against them. The judge will ask the… Read More »
How Medicare And Medicaid Billing Fraud Can Lead To Serious Criminal Consequences
When you hear about criminal fraud, you might think of elaborate Ponzi schemes or large corporations engaged in complex plots. But perhaps the most commonly prosecuted type of fraud in the United States involved medical bills. Specifically, Medicare and Medicaid billing fraud. As you probably know, Medicare and Medicaid are government-run health insurance programs…. Read More »
What Inferences Can A Florida Jury Make In A Stolen Property Case?
We all know that theft is a crime. You cannot take someone else’s property without their consent. Along similar lines, it is also a crime to sell or “deal in” stolen property. Under Florida law, anyone who “traffics in, or endeavors to traffic in, property that he or she knows or should know was… Read More »
Can I Be Suspended Or Fired From My Job Following An Arrest?
A criminal arrest will seriously upend your life. Even if the charges or dropped–or you are ultimately tried and acquitted–the arrest alone can have negative consequences in the interim. For example, you could face suspension or termination by your employer. Florida is an “at-will” state when it comes to employment. This means that in… Read More »
What Does A Defendant Need To Allege To Support A Self-Defense Claim?
Florida’s “Stand Your Ground” law is often misunderstood. You cannot simply say, “I acted in self-defense,” and expect to be acquitted of a murder charge. Rather, there is a multi-step process involved once a defendant moves to invoke Stand Your Ground immunity. Let’s start with when Stand Your Ground even applies. Under Florida law,… Read More »
Understanding The “Forcible Felony” Rule In Florida Stand Your Ground Cases
Florida’s “Stand Your Ground” law permits someone to use or threaten “deadly force” in certain cases where it otherwise would be a criminal act. For example, you may use or threaten deadly force to “prevent the imminent commission of a forcible felony.” This assumes that you have a right to be in the place… Read More »
Does Robbing 10 Storage Units On The Same Night Constitute 10 Different Criminal Episodes?
Many criminal statutes base their penalties on a defendant’s prior record. For example, a federal law called the Armed Career Criminal Act (ACCA) imposes a mandatory sentence of at least 15 years in prison for unlawful gun possession by an offender with three or more prior convictions for certain violent felonies that were “committed… Read More »
How Asset Forfeiture Works In Federal Criminal Cases
A criminal charge can not only lead to the loss of your freedom. It can also lead to the loss of your property as well. It is common practice for prosecutors to seek “forfeiture” of any assets that are allegedly connected to criminal activity. Criminal forfeiture is part of the sentencing process. In the… Read More »
Can A Florida Judge Clear You Of A Probation Violation Without A Hearing?
Probation is not, contrary to what many people think, a “free ride” for a convicted felon. To the contrary, probation requires a defendant to strictly adhere to a number of restrictions and other conditions in their daily life. If a probation officer has reason to believe a probationer has violated any of these rules,… Read More »
When Is A Probation Violation Considered “Willful And Substantial” Under Florida Law?
A person placed on probation in Florida faces many challenges. The court requires any probationer to comply with a number of terms and conditions. If a probation officer or any member of law enforcement has reason to believe the probationer has violated these terms, that person may be hauled before a judge to explain… Read More »
Can You “Plead The Fifth” In A Civil Lawsuit?
The Fifth Amendment to the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.” Most people understand the concept of “pleading the Fifth.” It means you do not have to answer any questions that may be used as evidence against you in a… Read More »
Proving Race Discrimination With Circumstantial Evidence
Proving illegal employment discrimination can be tricky. In many cases there is no “direct” evidence of discrimination–i.e., your boss said you are fired because you are Black. That is why Florida courts permit plaintiffs in these cases to prove discrimination entirely through circumstantial evidence. The most common way to do this is by satisfying… Read More »
Can Prosecutors Introduce Evidence From A Witness Who Cannot Testify At The Trial?
A crucial legal protection for anyone on trial for a crime is the right to confront and cross-examine the witnesses against them. The Sixth Amendment’s “Confrontation Clause” guarantees this right. In general, this means that with few exceptions, a prosecutor cannot introduce as evidence any out-of-court hearsay statements made by a person who is… Read More »
How A Brady Violation Can Overturn A Criminal Conviction
In a criminal trial, the prosecution is not supposed to “ambush” the defense. Nor can the state intentionally withhold information that might undermine their case. To do either is what is called a Brady violation, named for a 1963 United States Supreme Court decision. A Brady violation occurs when three conditions are met: The… Read More »
What Is A “Bill Of Particulars” In A Federal Criminal Case?
In any criminal prosecution, the defendant has the right to know the specific charges against them. This typically comes in the form of an information or indictment. An information is a charging document filed by the prosecutor spelling out the basis for the defendant’s arrest and charge. An indictment is similar, but it is… Read More »
Florida Supreme Court Overturns Murder Convictions Due To Improper Deposition Format
There are strict rules governing the admission of testimony in a Florida criminal trial. Both the prosecution and the defense need to follow these rules. And if testimony is admitted in violation of the rules, it can taint the outcome of the trial. Even a seemingly small deviation from the rules of evidence can… Read More »
Is There A Difference Between Pleading “Guilty” And “No Contest”?
If the police arrest you on suspicion of committing a crime, you must be taken before a judge and arraigned. The main purpose of arraignment is for the defendant to enter a plea to the charges presented. If the defendant pleads “not guilty,” then the case will be held over for trial. The defendant… Read More »
Does Police Negligence Always Invalidate A Criminal Search?
There is something of a misconception that just because the police conduct an illegal search and seizure, that the evidence obtained must automatically be “suppressed” at trial. In fact, the rules are a bit more complicated than that. Even when the prosecution concedes a Fourth Amendment violation, the evidence in question may still be… Read More »
