One of the most common arrests criminal defense attorneys see are for driving while license suspended. Part of the reason that we see so many of these cases is that it is incredibly easy to lose your driving privileges in Florida and sometimes near impossible to get them back. Often the reason that a person’s license was suspended was because of inability to pay tickets, and this financial mountain is compounded with criminal cases which can exponentially increase financial hardships. In addition, it is extremely difficult to live one’s life in Florida, where the availability of public transportation is limited at best. The hard truth is that often people who have lost their driving privileges continue to drive because driving is the only way they can get to and forth to work to support themselves and their family.
There is a provision in Florida law that can assist people in this situation. Florida Statute Section 318.14(10) allows defendants to avoid criminal convictions for driving while license suspended if the reason for that suspension is a failure to appear, failure to pay a civil penalty, failure to attend a driver improvement course, failure to pay child support, truancy, or failure to pay a financial obligation. If the reason for your suspension is one of those listed above, you can take what is called the “clerk’s option”. If you can get a valid driver’s license, pay costs, and sign an affidavit, you or your attorney can get rid of the criminal charge and instead receive a withhold of adjudication for a civil citation or ticket. The reason this is important is that criminal driving while license suspended charges “stack”, with the penalties increasing each time, and can lead to habitual license revocation. Electing the clerk’s option will not “stack”, but can only be utilized once a year and not more than three times in a lifetime.
Many people do not know about this option, and indeed not all criminal attorneys are aware of its existence or how to utilize it. This choice can literally save you from losing your driving privileges for five years. If you find yourself charged with driving while license suspended please take the time to consult with a criminal attorney regarding the possibilities that are available to you in resolving your case with an eye towards minimizing the possibility of future suspensions or criminal charges.
Many people are familiar with the concept of entrapment from movies and television. This is what is referred to as an affirmative defense, which means that a person who uses the defense admits to the commission of a crime, but argues that the commission was legally justified, or should not be prosecuted. Entrapment is essentially a defense of “the cops tricked me into committing the crime”.
In Florida, there are two types of entrapment; objective and subjective. Objective entrapment focuses on the conduct of law enforcement and “operates as a bar to prosecution in those instances where the government’s conduct so offends decency or a sense of justice that it amounts to a denial of due process.” State v. Henderson, 955 So.2d 1193 (Fla. 4th DCA 2007). Examples of police conduct that have been held objective entrapment are undercover officers promising sex in exchange for drugs, or getting a defendant’s boss to threaten to fire the defendant if the defendant did not provide narcotics.
The defense of subjective entrapment falls under Florida Statute 777.201and focuses on the inducement of an accused based upon an apparent lack of predisposition to commit the offense. In determining whether subjective entrapment exists, the Courts look at whether law enforcement induced or encouraged the commission of the crime using methods of persuasion which create a substantial risk that a crime will be committed by someone other than a person ready to commit it; and whether the accused was predisposed to commit the crime. A defense of subjective entrapment can be raised in a motion to dismiss, but a Court may elect to allow a jury to decide whether or not a person was entrapped.
Issues of entrapment are commonly raised in law enforcement “sting”, or proactive, investigations regarrding drug trafficking and crimes involving criminal use of the internet. The most recent decision by Florida’s appellate courts finding that law enforcement had entrapped the defendant was in the case of Gennett v. State, 124 So.3d 273 (1st DCA 2013). In that case, law enforcement posted an on-line advertisemant that a pair of sisters were looking for a “hot night”, only later hinting that one of the sisters was under 18 years old. When the defendant appeared reluctant, law enforcement challenged his nerve and said he was “scared”. The Court decided that use of this type of pressure was overstepping, and upheld the trial court’s decision to dismiss the case.
Entrapment issues are constantly evolving in the state of Florida, and if you or a loved one feel that you have been entrapped by law enforcement it is important to find a lawyer who is willing and able to litigate the issue, and preserve the issue for appellate review should the trial court rule against you.
Florida Statutes set out the elements of an attempt to include (1) a specific intent to commit an offense; (2) an overt act done toward the commission of the offense that is beyond mere preparation; and (3) failure to successfully commit the offense.
Where this gets confusing is in determining what separates an overt act from mere preparation. This distinction becomes important because without an overt act in furtherance of a crime, any act of preparation may only rise to the level of conspiracy or solicitation. Florida’s courts have provided some inconsistent guidance in deciding what acts are overt and sufficient to justify a conviction for an attempt and what are merely preparatory.
For instance in 2014, the Second District Court of Appeal decided the case of Mizner v. State, 154 So.3d 391 (2d DCA 2014), ruling that an adult travelling to met a minor at a restaurant to “get to know each other” before deciding whether or not to engage in sexual activities did not rise to the level of an overt act, and overturned the defendant’s conviction of attempted sexual battery. However, in 2010 the Fifth District Court of Appeal decided that a man travelling to a home to meet with what he thought to be a minor for sex and bringing condoms to the rendezvous amounted to an overt act toward attempted lewd and lascivious molestation in Bist v. State, 35 So.2d 936 (5th DCA 2010).
Even if an overt action is taken towards the commission of a crime, Florida Statute Section 777.04 provides that it is a defense to the crimes of solicitation, conspiracy and attempt if a defendant (a) abandons his or her attempt to commit the offense or otherwise prevents its commission; (b) after soliciting another to commit a crime either persuades that person not to do so or prevents the offense; or (c) after conspiring with others to commit the offense, persuades such persons not to do so or otherwise prevents the offense.
Charges of attempted offenses are complicated to defend, because the State does not even need to prove that a crime was successfully committed. The courts have been of little guidance with regards to what actions rise to the level of prepartation and what constitutes an overt act, addressing the issue on a case by case basis. Abandonment is a viable defense to the crime of attempt, but requires an affirmative showing by the defense, often forcing a defendant to take the stand when he or she may have otherwise wished to remain silent.
When facing a charge of attempt, conspiracy or solicitation it is important to have the assistance of a competent, aggressive trial attorney. We would be happy to discuss your case with you at any time.