Finally a Reasonable Way to Afford a Good Defense Attorney Without Breaking the Bank – Discount Legal Plan

“…lawyers in criminal courts are necessities, not luxuries.”[i] For many “blue collar,” working class Americans, hiring the best and brightest criminal defense attorneys is simply impossible because it is too expensive. Most people simply do not have a few thousand dollars sitting in a bank account to hire an attorney and pay for the best defense. Adding this unwanted anxiety to the already great strain of being prosecuted, and you have a recipe for devastating effects on the accused and their family.

In 1963, the Unites States Supreme Court handed down Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Going forward from then Gideon, the Supreme Court interpreting the Sixth Amendment held that it was required that indigent persons accused of criminal offenses which may result in incarceration would be entitled to an appointed attorney paid for by the government. It was an attempt to level the playing field and, for a long-time, it did.

What happens when the person is not quite indigent or poor, but not that much better off either? They have a good job and make a decent living but cannot afford to drop a few thousand dollars in an instant to retain an attorney (or the attorney does not want to do an interest free loan payment plan). What do they do? And, what happens to that person who is making it in society, but barely holding their own? It goes without saying that they would want the best attorney they could afford if the court is not inclined to appoint because the accused is slightly more affluent than indigent. The whole thing is downright terrifying.

In some instances, the person borrows money from a family member or friend. Or maybe holds a car wash, rakes leaves, mows lawns, or conducts a neighborhood bake sale. Or worse, opens a high interest credit card (provided he or she can) to try to pay for good representation. Sometimes, the person or their family turns to some sort of crowdfunding. In many cases, desperate times call for desperate measures. And with desperation comes all the anxiety (on top of defending oneself).

Well please breathe a long sigh of relief because there is finally a reasonable solution to the nightmarish problem that faces many persons accused of crimes. Introducing the Discount Legal Plan.[ii] Discount Legal Plan is finance assistance for ordinary, “blue-collar,” working class people (who are employed and doing alright, but do not have any disposable income to drop on an attorney.) Discount Legal Plan is here to provide a pathway to assistance to pay the legal fees for criminal defense, appeals, and post-conviction matters. Medical services have companies like CareCredit® that provide funding for procedures; criminal legal matters now have Discount Legal Plan.

Essentially, it is legal credit service for the accused. The plan is reasonable and understands that people need help with their legal bills. With a simple application and some limited documentation, the accused or their family can pay for a legal defense up front. The fee is then spread over many months with a marginal interest rate in payment amounts the accused or their family can reasonably pay over time. With the legal fee paid, the accused and their family, and the attorney can focus all of their energies on the defense instead of how do we pay for this representation.[iii]

It truly levels the playing field because now everyone can hire and afford the best criminal defense or appellate attorneys. No longer are the most expensive defense or appellate attorneys relegated to the rich, affluent, or well-to-do (and, therefore, out of reach for most folks). Now everyone can hire the best and brightest. Discount Legal Plan offers piece of mind in a scary time. Discount Legal Plan allows the accused to focus on the defense or the appeal instead of focusing on whether the attorney will get paid and can we afford it.

“There’s no dollar sign on a piece of mind this I’ve come to know…”[iv]

NOTE: Most assistant public defenders are super litigators that fight day in and day out for their clients. They are truly tireless legal warriors, but there are limits to what they can do to assist the accused. Mainly, there are only so many assistant public defenders to go around. There are only so many brave individuals to fight for the accused or stand with the damned. And that main resource is strained every day because the public defenders are not allowed to pick and choose who they represent. If they get appointed (and there is no ethical conflict), and the “green light” flashes, then off they go to defend that soul like a paratrooper out the door of the plane. The Trial Dog was an assistant public defender in Tampa for the better part of ten years in the major crimes division handling homicides and sex offenses before moving on to other endeavors.

Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

Discount Legal Plan can be found at https://www.discount-legal-plan.com/  For terms and conditions, click the link.

If you liked this article, please like it, and share the blog. All the Trial Dog’s blog can be found on www.ihearyoubarking.com or in the blog section of www.candelalawfirm.com Please like and share. Thanks.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com

No. 21-011 Discount Legal Plan


[i] Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

[ii] https://www.discount-legal-plan.com/  For terms and conditions, click the link.

[iii] The defense, appellate, or post-conviction attorney likes that the quoted fee is paid up front. With a completely paid fee, the attorney can focus on the case. The attorney does not have to chase down the client for payments (or worse – does not have to withdraw for contractual dissatisfaction).

[iv] Zac Brown Band (“Chicken Fried”)

Please Stop Live Streaming Your Crimes

“Live streaming” is a popular way to share your life experiences with the world. It is a wonderful marketing tool. It makes the world a smaller place.

Long before smart phones that could “live stream,” people had to communicate in vastly different ways. Communication was more purposeful and less careless. People would write letters about their experiences. People would call people far away on the telephone and tell their story. Nowadays with the push of a button, people can share their experiences in “real time” for the world to see (and record).

“Live streaming” committing a crime sounds dumb. So why then did hundreds of people “live stream” and record their involvement in the insurrection? If you can answer that question, then you are smarter than me.

“Live streaming” can a be a useful tool for shedding light on injustices. It can also back-fire and create unwanted evidence against the live-streamer. It all depends on the context.

Putting aside whatever political persuasion one might believe in, committing a crime and broadcasting the evidence from their own phone might be one of the dumbest things an accused could ever do. Although some of the insurrectionists mistakenly believed that they were justified in their actions, what they failed to understand is that there is no defense to those open admissions of their crime.

The video evidence makes for an open and shut case. While the people may not have intended to behave a certain way or thought that they were committing crimes, the videos show various crimes. It is all the prosecutor needs to prove the case.

For instance, if the “live stream” shows the person entering a restricted room the in capitol, then the person has created the evidence to proves beyond a reasonable doubt that they trespassed. If the person “live streamed” them picking up and walking off with a lectern, then the person created the evidence that proves beyond a reasonable doubt that they committed some type of theft. If the person “live streamed” themselves fighting with capitol police, then the person created the evidence that proves beyond a reasonable doubt that they committed a battery. And so, on and so forth.

Let me explain. Hearsay is classically defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[i] Typically, hearsay is inadmissible as evidence for various reasons.[ii] There are a couple dozen exceptions to the hearsay rule. These exceptions are traditionally accepted concepts that make the “out-of-court statement” reliable and, therefore, admissible in court as evidence.

The admission of the party opponent is one such exception.[iii] The scope of the exception can be massive. The admission or statement can have been made to anyone or anytime before, during, or after the litigation as long as it may prove an issue in the case.

Subsection (18) states:

(18) ADMISSIONS.—A statement that is offered against a party and is:

(a) The party’s own statement in either an individual or a representative capacity;

(b) A statement of which the party has manifested an adoption or belief in its truth;

(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;

(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or

(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

§90.803(18), Fla. Stat. The “live streamed” video is the statement and qualifies as an admission against the defendant.

The Miranda warnings are based upon an understanding that ordinary citizen need to be advised of their rights before they make a statement in custody.[iv] However, the warnings do not apply to Joe-citizen on the street committing a crime. By virtue of being an American citizen, one is warned, and it is understood (whether one actually understands) that anything you say or do can be used against you as an admission.

“Live streaming” one’s crimes is neither cool nor smart. In fact, it is one of the dumbest things a person can do. So, think twice before “live streaming” your participation something questionable. You have been warned.

Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this article, please like it, and share the blog. All the Trial Dog’s blog can be found on www.ihearyoubarking.com or in the blog section of www.candelalawfirm.com Please like and share. Thanks.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com or from Paramount Pictures.

No. 21-010 Stop Live Streaming Your Crimes


[i] §90.801(1)(c), Fla. Stat.

[ii] §90.802, Fla. Sta. The idea is that hearsay evidence is inherently unreliable. Additionally, in a criminal trial, the declarant (or person that made the statement) is not present in court to be subject to (a) the oath and (b) cross-examination, and for both of these reasons its admission is closely regulated as to not run afoul of the Sixth Amendment.

[iii] §90.803(18), Fla. Stat.

[iv]  Miranda v. Arizona, 385 U.S. 436 (1966)

Choose Wisely.

If you don’t think that hiring a good lawyer matters, think again. Not having the best advocate arguing for you in a criminal matter can cost you your freedom. Worse, it can cost you your career, your family, or your life. Or maybe all of it.

Don’t believe me – ask any of the individuals that have been exonerated[i] from prison over the past 20 years about their attorneys.[ii]

Many of those individuals probably wish that they had a better attorney representing them at the start of their case (or on their direct appeal.) Luckily for all the exonerated, some super attorney or a group of exceptional attorneys (backed by hard work, grit, determination, science, and a little luck) were able to eventually find these damned individuals to unwind their cases, clear their names, and get them released from their own personal hells.

Those individuals had a somewhat happy ending to their story. Not everyone is so lucky.

Understand what I am saying. I am not saying that those individuals that were exonerated automatically had a bad attorney, but (like anything else in life) it was a factor at some point in the case. Maybe it was a missed objection or two that failed to preserve an error for appellate review. Maybe it was a slight change in a witness’s testimony that was missed on cross-examination. Maybe it was a lack of preparation and experience in selecting the jury or understanding how to question potential jurors to determine who should and should not serve on this jury. There are so many variables it is mind-boggling.

In many of the exoneration cases, there were a plethora of messed up things that contributed to the conviction (like lying informants/ “jail-house” snitches, prosecutorial misconduct, hidden exculpatory evidence, dirty cops…etc.)[iii] While it may not have been the main culprit, subpar attornery-ing was probably a factor at some point. In many instances, it was a lack of experience and skill to recognize the problem (and not some apathy towards the client)

The quality, experience, and skill of the defense attorney is always a factor in the outcome of a case. Having the best attorney around may not guarantee a legal victory, but it slants the odds in the defendant’s favor to some extent (and any advantage is important in a criminal case). To use a baseball analogy, you can’t win the game in the first inning, but you sure can lose it if you don’t play well. The same is true for criminal litigation leading up and at trial.

Every single case (whether civil or criminal) is entirely driven by the facts. This is universally true. If both sides are represented by equally skilled and experienced attorneys, then the case should be decided on the facts. Whichever side has better facts will most likely prevail. It is that simple (provided both sides are represented by similarly skilled and experienced attorneys) and all things being equal.

This cannot be said when the defendant is represented by a lessor skilled and/or experienced attorney. Without the proper skill and experience, the chances increase that the defense attorney may miss an objection or motion or make a serious mistake. That is not to say that the best attorneys do not make mistakes, but the better skilled and experienced attorneys make every effort to avoid mistakes because they have the experience to recognize the problems as they develop. Typically, these attorneys are better at using the rules to their client’s advantage. These attorneys are also better at adapting “on the fly” as the situation changes.

Like the Grail Knight in Indiana Jones and the Last Crusade said, “You have chosen wisely.”[iv] You want to have the piece of mind that comes from knowing you chose the best attorney you could to represent you. In the end, (win or lose) – you will have the confidence to meet the challenges of the criminal case head on knowing you have chosen wisely.

Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this article, please like it, and share the blog. All the Trial Dog’s blog can be found on www.ihearyoubarking.com or in the blog section of www.candelalawfirm.com Please like and share. Thanks.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com or from Paramount Pictures.

No. 21-009 Choose Wisely.


[i] “Exoneration” is defined as “the act of clearing someone of blame or of an accusation or criminal charge.” https://www.dictionary.com/browse/exoneration?s=t

[ii] http://www.law.umich.edu/special/exoneration/Pages/about.aspx

[iii] For example, think about Christopher Williams from Pennsylvania. He was acquitted of two homicides and exonerated of four more after thirty years. https://www.inquirer.com/news/philadelphia-conviction-integrity-christopher-williams-exoneree-20210210.html?fbclid=IwAR0GwQcJevSP9fowIt6TJNGHJ3SAZezGk5mHFCP4TBSOvfLNtLUku_etLD4

[iv] Paramount Pictures. Indiana Jones and the Last Crusade. 1989

4 Parts of the Miranda Warnings

“They didn’t read me my rights. They have to dismiss my case, right?” This is a common refrain from the accused. Unfortunately, the answer is almost certainly “no.” This is super common misunderstanding that people have about their constitutional criminal rights. People mistakenly believe that because the police did not read them their [Miranda] rights, the case must be “thrown out of court.”[i] Sadly, this is not how it works.

The typical Miranda warnings state, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

There are four main points: (1) You have the right to remain silent; (2) Anything you say can and will be used against you in a court of law; (3) You have the right to speak to an attorney, and to have an attorney present during any questioning; and (4) If you cannot afford a lawyer, one will be provided for you at government expense.

Let me break this down further for you and explain the purpose of these prophylactic protections.

The right to remain silent.

The Fifth Amendment reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Ratified 1791)

After the ratification of the U.S. Constitution, the new citizens of the United States fearing that the federal government might become too strong and return to the old habits of the Crown demanded their coveted rights be enshrined in the establishing documents. The new citizens also believed that Article I and II of the Constitution were not enough to protect their rights. These citizens demanded a “Bill of Rights” to outline the parameters of their rights.[ii] Obviously, the people at the time of the Bill of Rights understood the meaning of their rights better than contemporary society does now.[iii] At the time of the revolution, it was not uncommon for British Troops to do all sorts of nasty things to the colonists in the name of justice.[iv] In response, the Madison fashioned a Bill of Rights a patterned after George Mason’s Virginia Bill of Rights. And the rest is history.

Anything you say can and will be used against you.

This is an understanding. It is also traditional rule of evidence. Typically, an out of court statement (offered to prove the truth of the matter asserted) is hearsay and not admissible in any court as positive evidence.[v] Statements of the accused (because they are a party to the action) are an exception to the hearsay rule and admissible as admissions of a party opponent (and can be offered to prove a crime or an element of a crime).

You have a right to an attorney.

The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (1791)

The Sixth Amendment outlines that anyone charged or suspected of a crime has the right to an attorney to assist in their defense. The admonition from Miranda warnings provides an outright and explicit warning to the detained person that questioning is about to begin and whatever they say in response to that questioning may be used against them. It further points out that you might want to speak with an attorney before you speak with the police (because you may say something that can be used to prosecute you.)

Keep in mind, as the potential suspect, you have no idea what the police are looking for when they are questioning you. It is not they outline the interview before they start. It is always better to politely defer, tell them you do not want to speak with them, and request an attorney.[1] If after consultation with a criminal defense attorney, then you and the attorney can make a decision about speaking with the authorities.[vi]

If you cannot afford an attorney, one will be appointed free of charge.

This protection comes from the Sixth Amendment and enshrined in the holding of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The next step in the Miranda warnings requires an action on your part: do you want to waive (or give up these rights) and speak with me without an attorney? Or do you want to remain silent and protect yourself.

Here is the crux… the Miranda warnings are simply an informed warning. Knowledge is power if you know what to do with it. The idea is this- once you are warned, if you waive (give up the rights outlined in the warnings) then you did so under the idea of informed consent (and the waiver is then deemed to be “knowingly, intelligently, and voluntarily” done. This is one of the most important legal decisions you may ever make – why not speak to an attorney before doing it?

Additionally, if you are taken into custody and not free to leave and disregard law enforcement and they read you Miranda, then it is more probable than not that you are going to be arrested. YOU CANNOT USUALLY TALK YOURSELF OUT OF BEING ARRESTED (SO DO NOT TRY. JUST DO NOT DO IT). This also includes any time you spend in a detention or jail facility. All the calls are monitored and recorded. ANYTHING YOU SAY ON THE PHONE OR VIDEO not to an attorney is RECORDED and may be used against you. SO DO NOT DO IT. I understand and appreciate that it is not fair, but this is our system.

I understand and appreciate that it sucks, no one wants to be arrested. No one. But do not exacerbate the problem by adding evidence against yourself. BEST ADVICE – SPEAK TO ATTORNEY FIRST (even if it takes several days because of the system). After you are arrested, if you cannot hire an attorney, the court will appoint one and you can speak to that attorney to discuss your case and how to defend yourself.

As a three-time board-certified criminal trial attorney and experienced criminal appellate attorney, there is not a whole lot that can be done usually to help a defendant who has provided a complete confession, admission, or statement. The U.S. Supreme Court has concluded rightfully so that this is massively powerful evidence against a defendant. Although every case is different, why assist in your own prosecution? Do yourself a favor and do not say anything. It will be the toughest, scariest thing you’ve ever done to protect yourself.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this article, please like it and share the blog.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com

No. 21-00* Miranda Warnings

For more information about Miranda v. Arizona from the U.S. Courts click the following link https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-miranda-v-arizona

For more information about the U.S. Constitution and its amendments click the following link https://constitution.congress.gov/

For more information about the U.S. Declaration of Independence click the following link https://www.archives.gov/founding-docs/declaration-transcript


[1] This is the key. REQUEST AN ATTORNEY. And do not take any nonsense from the law enforcement. DO NOT SPEAK WITH AN ATTORNEY PRESENT. Law enforcement sometimes will hem and haw that they do not have an attorney that they can get there to speak with you and that it will be sometime before one can get there. JUST TELL THEM YOU’LL WAIT.


[i] While the writer understands the colloquial phrase “thrown out of court” to mean dismissed, the saying has been perpetrated by television and radio for years. Cases are actually “thrown out,” but they are dismissed.

[ii] Lesley Kennedy 9 Sept. 2019 https://www.history.com/news/bill-of-rights-constitution-first-10-amendments-james-madison

[iii] Think of it this way. At the time of the revolution, many Americans understood their rights in terms of the language at that time. Fast forward 50 years from now, if we had to look back at the terms and phrases being used in 2021, would we commonly understand certain pop culture words in their natural setting? The question scarcely escapes its own statement. It is the same concept. Words are living entities that subtlety or overtly change and adapt their meanings over time. The same is absolutely true for the terminology and slang used at the time of the drafting of the Constitution and Bill of Rights. See https://www.insider.com/24-slang-words-teens-are-using-2020-what-they-mean-2020-12#slay-to-slay-is-to-do-really-well-or-succeed-at-something-the-term-first-emerged-during-the-1970s-and-80s-in-the-midst-of-black-drag-and-ballroom-culture-17

[iv] https://en.wikipedia.org/wiki/Intolerable_Acts

[v] For further explanation. Hearsay is generally unreliable and not usually admissible as evidence to prove anything (with limited exceptions). As indicated, an out of court statement offered to prove something in court (i.e., hearsay) is generally frowned upon because (a) the declarant (or the person that say it) is not present, under sworn oath (subject to the penalty of perjury for lying) and (b) that person is not subject to cross-examination (the “greatest legal mechanism” for getting to the truth). For example, to prove that Tom was in town, the attorney asks a witness, “What did Susan tell you about Tom being in town?” Since the witness’s answer will rely on an out-of-court statement that Susan made, if Susan is unavailable for cross-examination, the answer is hearsay. (From https://en.wikipedia.org/wiki/Hearsay#:~:text=For%20example%2C%20to%20prove%20that,examination%2C%20the%20answer%20is%20hearsay. ) The law makes a crucial exception for an admission (or statement) made by a party opponent (because it is assumed that parties do not make unwitting admissions that are lies or falsities). In the criminal case, the government (represented by the State, the People, or the Commonwealth) prosecutes the accused. The accused is the second party to the action (and thus anything he says can be offered against him to prove whatever is at issue). Not that complicated, but important to understand (and why never make any statements to law enforcement or anyone about your case other than your attorney.

[vi] THIS IS ALSO SUPER IMPORTANT. There are many different attorneys that practice in many different areas just like there are many different doctors that practice different types of medicine. A dermatologist (skin doctor) might understand the workings of the heart, but it would be better to get the opinion of a cardiologist (heart doctor) when dealing with issues concerning the heart. The same is true. A family friend who is an attorney that practices in estates and trusts, or does insurance defense might understand the basics, but is no substitute for a battle-hardened, board-certified criminal trial attorney that can, has, and will successfully navigate the situation. Simply calling any old attorney is a bad idea. Get the right type of assistance. Get the right type of attorney to assist you. It is no different that using the right types of tools to build something. You wouldn’t use a screwdriver to hammer a nail.

3 Reasons You Want to Hire a Board-Certified Criminal Trial Lawyer [for 2021]

If you are in legal trouble, you want only the best and in Florida that means hiring a board-certified attorney. Former Florida Supreme Court Justice Harry Lee Anstead said, “certification should be the capstone for a lawyer’s professionalism goals.” All board-certified attorneys in Florida exhibit (1) expertise, (2) professionalism, and (3) credibility. While there are some phenomenal attorneys in Florida that are not board-certified, the bulk of the exceptional attorneys have taken the extra-steps to become board-certified by the Florida Bar (www.Floridabar.org) These attorneys have reached the pinnacle of their practice.

Board-certified attorneys are a cut above the rest of the pack both in skill, expertise, and professionalism. Only the Florida Bar can confer board-certification status on an attorney. The honor cannot be purchased from marketing organizations like www.superlawyers.com or others.[i] There is a lot of interesting marketing out there that looks fancy and sophisticated, but it cannot compete with board-certification.[ii]

In terms of expertise, only a select few can attain board-certification. At the moment, there are a little over 400 board-certified criminal trial attorneys in the State of Florida. That means that of the total attorneys in Florida, less than ½ of a percent are board-certified in criminal trial.[iii] The board certification for criminal trial was created by the Florida Bar on 1 July 1986.[iv]

All the board-certified criminal trial attorneys had to demonstrate a higher level of proficiency to be conferred the status of board-certification. To be board-certified in criminal trial, the attorney must meet the following minimum standards:[v]

  • Practice of law for at least five years;
  • Substantial involvement in the specialty of criminal trial law — 30% or more — during the three years immediately preceding application;
  • Handling of at least 25 contested criminal cases, with 20 jury trials, tried to a verdict, 15 which involved a felony, and 10 as lead counsel;
  • 45 hours of approved criminal trial law certification continuing legal education in the three years immediately preceding application;
  • Peer review; and,
  • A written examination.

See Rule 6-8.3.[vi]

Calling the test “a written examination” does not do the test any justice. The test is a 6-hour test similar to the bar exam (only it is one day instead of two) and it rigorously tests the applicant’s knowledge and skill in criminal trial procedure and substantive law (in both state and federal practices). The general topics on this mini-bar exam range from search and seizure issues, to Miranda issues, to right to attorney and fair trial issues, to cruel and unusual punishment issues. Further, the exam tests the applicant’s ability and understanding of the rules of procedure and evidence. To say that the mini-bar exam is grueling is an understatement, but it is a small price to pay to be one of the elite practitioners in Florida. Only the select few survive.

As far as professionalism, the committee that oversees board-certification for criminal trial conducts a lengthy background investigation into all of the trial and substantive motions that the applicant has participated in during the applicable time period. In this regard, the applicant must document all the cases that he or she tried to conclusion in terms of dates, charges, defendant, verdict, and percentage of trial that was conducted by the applicant. The committee then contacts the judges and opposing attorneys or co-chair attorneys to get their input on the applicant. The application process is lengthy, but necessary. If the attorney is not a “straight-shooting” professional, then it will be uncovered during this process.

Only the most professional attorneys can attain board-certification. These attorneys are respected by the peers (although they might not be liked or friends, a good adversary’s praise is often a sign that the attorney is a quality attorney). Board-certified attorneys are professional through and through.

Lastly, credibility. The Florida Bar (www.floridabar.org) is the only organization in Florida that can grant board-certification after the applicant has been thoroughly vetted by his or her peers, met tough criteria, and passed a grueling examination process. Only then has the attorney earned the right to call themselves an expert in a specific field in Florida. Florida does not allow non-certified attorneys to call themselves experts (while they be specializing in a particular field only board-certified attorneys are experts in a field of law in Florida.)

If you are in trouble with the law and desperately need help, then get yourself the best help you can get by hiring and retaining a board-certified criminal trial attorney to get you through the crisis. Less than ½ of 1 percent of attorneys in Florida are board-certified in criminal trial. You will be glad you hired a board-certified criminal trial attorney.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com @candelalawfirm

If you liked this article, please like it and share the blog.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on https://www.avvo.com/attorneys/33602-fl-anthony-candela-1291219.html (Anthony Candela)

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No. 21-007 board-certification

If you have been arrested and/or convicted of misdemeanor domestic violence battery in the past 40-years, or have a friend, or family member that has, please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 immediately to discuss your case. You may be entitled to relief. We cannot help you attempt to clear this up unless you contact the office. For more information click on the following blog

https://ihearyoubarking.com/2021/01/21/contrary-to-popular-belief-misdemeanor-domestic-violence-battery-is-not-a-crime-in-florida/


[i] The list of attorneys listed at www.superlawyers.com are usually very good attorneys, but many are not board-certified. Only the Florida Bar can grant board-certified status to an attorney that meets exacting standards.

[ii] There are a lot of interesting marketing in terms of awards (that no one has ever heard of before) and paid memberships (to groups or organizations that place placards and logos on websites). Some of these are valid, many are not. Many are paid forms of advertising that suggests skill and expertise are nothing more than paid advertising. Ask yourself, do you want an attorney with verifiable skills and expertise that is recognized for that expertise or the attorney that bought some cool swag and put it on his website, but has no idea what he is doing? The question scarcely escapes its own statement.

[iii] https://www.americanbar.org/news/abanews/aba-news-archives/2018/05/new_aba_data_reveals/#:~:text=Among%20other%20findings%20from%20the,)%20and%20Illinois%20(63%2C422). (2018 78.244 attorneys in Florida) and https://www.galiganilaw.com/attorney-profiles/board-certified-specialist-in-criminal-trial-law/#:~:text=Out%20of%20all%20attorneys%20in,specialist%20in%20criminal%20trial%20law. (2019 443 board-certified in criminal trial)

[iv] https://www-media.floridabar.org/uploads/2020/07/200-Florida-Certification-Plan.pdf

[v] https://www.floridabar.org/about/cert/cert-applications-and-requirements/cert-cr/

[vi] https://www-media.floridabar.org/uploads/2020/09/Ch-6-2021_03-SEP-RRTFB-9-3-2020.pdf

Contrary to Popular Belief, Misdemeanor Domestic Violence Battery is NOT a Crime in Florida

Contrary to popular belief, there is no misdemeanor crime of domestic violence battery in Florida. A thorough review of the statutes supports this shocking conclusion. Stated another way, Florida does not recognize “domestic violence battery” as a crime, only misdemeanor battery.[i]  

Unenhanced battery is a first-degree misdemeanor.[ii] Contrary to years of mistaken popular belief and local practice, Florida does not have a crime called “domestic violence” (simple) battery misdemeanor. It is not a thing; it does not exist. And no one can be convicted of it because it is a non-existent offense under any circumstances. Ever.       

Without exception, a person cannot be convicted of a non-existent offense in Florida.[iii] Additionally, a person cannot agree to be convicted of and/or plead to a non-existent offense in Florida. [iv] As far as the Florida Supreme Court is concerned, conviction of a non-existent criminal offense in Florida is a fundamental error.[v]

It is well-established that criminal statutes are to be strictly construed (without exception) against the government and in-favor of the accused.[vi] Further, the courts are not free to make up criminal offenses (or create local criminal practices outside of the established statutes). To do so would be to violate the separation of powers between the branches of government.[vii] Only the Legislature (with the governor’s ratifying signature (or a majority veto override in both houses)) can enact a criminal statute.

In fact, criminal statutes cannot be created by local practice or common usage. It is not a thing. Any judicially created criminal statute (or conviction by a judicially created criminal statute) is unconstitutional. Period.[viii]

In Florida, there is battery, §784.03, Fla. Stat., and there is domestic violence battery by strangulation (a felony offense), §784.041(2), Fla. Stat. Putting aside that one is a misdemeanor and the other is a felony, the two offenses are vaguely similar. The elements of simple misdemeanor battery do not concern itself with any special relationship between the batteror and batteree; whereas domestic violence battery by strangulation absolutely concerns itself with the relationship between the batteror and batteree in that it must be proven that the batteror and batteree are either family, household members, or in a dating relationship. The latter offense further limits the battery to only strangulation as defined in the statute and not a simple touch or strike.

A plain language comparison of §784.03(1) and §784.041(2), Fla. Stat., clearly demonstrates that the latter offense makes “domestic-ness” an element of the offense (and not of the former offense). Section 784.03(1), Fla. Stat., reads in pertinent part:

784.03 Battery; felony battery.—

(1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.

(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Id. On the other hand, §784.041(2), Fla. Stat., proscribes the felony offense of “domestic battery by strangulation.” Section 784.041(2), Fla. Stat., reads in pertinent part:

(2)(a) A person commits domestic battery by strangulation if the person knowingly and intentionally, against the will of another, impedes the normal breathing or circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person. This paragraph does not apply to any act of medical diagnosis, treatment, or prescription which is authorized under the laws of this state.

(b) As used in this subsection, the term:

1. “Family or household member” has the same meaning as in s. 741.28.

2. “Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.

(3) A person who commits felony battery or domestic battery by strangulation commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—s. 1, ch. 97-183; s. 1, ch. 2007-133.

Id. Section 784.041, Fla. Stat., purposely adds a domestic element to the charge which must be proven beyond a reasonable doubt at trial or stipulated to during a plea for the accused to be convicted. Section 784.041(2), Fla. Stat., is new and was passed in 2007 (or nearly 175 years after the battery statute was adopted in Florida). On the other hand, §784.03, Fla. Stat. (simple battery), has no such “domestic-ness” element proof.[ix]

          By way of further comparison, a review of the standard jury instructions for these offenses shows a massive difference between the offenses.[x] The battery instruction reads:

8.3 BATTERY

§784.03, Fla. Stat.

To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:

Give 1 and/or 2 depending on the charging document.

  1. (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.
  2. (Defendant) intentionally caused bodily harm to (victim)

Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001)

A battery may be found as a result of the intentional touching or striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

The domestic violence battery by strangulation instruction reads:

8.5(a) DOMESTIC BATTERY BY STRANGULATION

§ 784.041(2)(a), Fla. Stat.

          To prove the crime of Domestic Battery by Strangulation, the State must prove the following three elements beyond a reasonable doubt:

1.       (Defendant) knowingly and intentionally impeded the normal [breathing] [circulation of the blood] of (victim) against [his] [her] will [by applying pressure on the throat or neck of (victim)] [by blocking the nose or mouth of (victim)].

2.      In so doing, (Defendant) [created a risk of great bodily harm to (victim).] [caused great bodily harm to (victim).]

3.       (Defendant) was [a family or household member of (victim).] [in a dating relationship with (victim).]

          Give as applicable.

 “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.  With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

 “Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.

Id. Putting aside the strangulation element, the later offense requires proof of “domestic-ness” which is not an element of the misdemeanor battery offense.

The Legislature clearly understands the difference between misdemeanor battery and domestic violence battery by strangulation. The Legislature’s understanding is clearly demonstrated by the fact that domestic battery by strangulation includes as an element of the offense a domestic component. The Legislature is deemed to know the law when it enacts legislation.[xi]

Likewise, in Williams v. Jones, the Florida Supreme Court explained:

Our conclusion is further buttressed by the principle of statutory construction which provides that the Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted. (internal citations omitted)

Williams v. Jones, 326 So.2d 425, 435 (Fla. 1975) (emphasis added). The Court went on to explain that the legislature was deemed to be aware of the trends in the case law when it enacted the ad valorem tax. Nonetheless, the reverse must be true too as well (that the Legislature is aware that battery (domestic violence) is not a crime in Florida).

Furthermore, the Legislature has over the years created several battery reclassification statutes. These reclassification statutes reclassify with additional elements of proof a simple misdemeanor battery to all sorts of various felony offenses. The base offense is misdemeanor battery plus something or things else that need to be proven. See §784.07 (Assault or battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers; reclassification of offenses; minimum sentences), 784.074 ( Assault or battery on sexually violent predators detention or commitment facility staff; reclassification of offenses), 784.075 (Battery on detention or commitment facility staff or a juvenile probation officer), 784.076 (Battery on health services personnel), 784.08 (Assault or battery on persons 65 years of age or older; reclassification of offenses; minimum sentence), 784.081 (Assault or battery on specified officials or employees; reclassification of offenses), 784.082 (Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee; reclassification of offenses), and 784.083 (Assault or battery on code inspectors), Fla. Stats. It is hard to argue (or even suggest) that the Legislature was not aware that there was no such thing as misdemeanor “domestic violence” battery when it has created at least eight (8) reclassification statutes for assault and battery (not including aggravated battery …etc., that has slightly different elements of proof).

It may be suggested that §741.28, Fla. Stat., corrects this problem. Unfortunately, §741.28, Fla. Stat., cannot correct the problem because that section is not a criminal statute and/or enhancement statute as written. It is not a reclassification statute. There is nothing in that section that magically authorizes §741.28, Fla. Stat., change the character or nature of the basic offense. On the other hand, §741.28, Fla. Stat., is merely classification statute outlining certain definitions that apply to that chapter.[xii] The plain language of §741.28, Fla. Stat., further clearly demonstrates that it is not a criminal statute as it does not prohibit any specific behavior and/or define a penalty for violating the section. And §741.28, Fla. Stat., as enacted cannot magically transform the misdemeanor battery into some other offense.

Further, §784.03(1), Fla. Stat., (simple battery) does not relate back to §784.03, Fla. Stat., in any fashion.[xiii] Section 741.28, Fla. Stat., appears to be merely a classifying statute for some type of reporting purposes (e.g., statistics of some kind). It defines what crimes may or may not be characterized and/or classified as “domestic violence” for some type of reporting purposes, but it goes no further.

The crime charged can only be §784.03, Fla. Stat., (a simple misdemeanor battery) and not any made up crime (like witchcraft). Any deviation from the statute results in a nullity. This error is fundamental, automatically reversible, and requires no contemporaneous objection to preserve the error.[xiv] As the Florida Supreme Court clearly annunciated in Achin, “We hold that one may never be convicted of a nonexistent crime…” 436 So.2d at 30. Achin was reversed and remanded for a new trial. Id.[xv]

Additionally, “domestic violence” is not a sentence enhancement to this battery or to a felony, like an express firearm finding is for “10-20-Life.”[xvi] Misdemeanor battery, characterized as “domestic,” does not increase the maximum statutory penalty beyond the statutory maximum of one year.[xvii] In fact, there is no fact under Florida law that can enhance the sentence of a misdemeanor battery beyond one (1) year. By operation of law, Appendi and its progeny cannot apply.[xviii] As such, “domestic violence” is not a required factual finding that the jury has to make (or a defendant must stipulate to) to allow for the sentencing court to exceed the statutory maximum sentence. The finding of “domestic-ness” is irrelevant and prejudicial to the factual determination because it is not an element of §784.03(1), Fla. Stat.[xix]

It is “manifest injustice” and “fundamental error” to be convicted of a non-existent criminal offense in Florida. The prosecution, incarceration, and levying of fines, costs, and fees of a non-existent crime serves no legitimate governmental purpose. If this situation does not define “manifest injustice,” than nothing does.

Any conviction for misdemeanor battery domestic violence prejudices the wrongfully convicted defendant in several profound ways.[xx] The obvious prejudices, inter alia, are an indelible stain and stigma on the defendant’s permanent record for an arrest for domestic violence battery, a conviction (regardless of withhold of adjudication or not) for domestic violence battery, loss of money in terms of securing a surety bond, payment of court costs, cost of supervision, cost of prosecution …etc., and an automatic federal prohibition on the possession, use, and/or enjoyment of the Petitioner’s second amendment rights under 18 U.S.C. §922.

Under 18 U.S.C. §922, the conviction in this case for this non-existent criminal offense automatically disqualifies defendant from owning, possessing, and/or transporting a firearm. Further, the defendant is automatically barred from certain federal employment with the government where the employee must ship, transport, possess, or receive firearms or ammunition.[xxi]

This is an unbelievable breach of Florida’s criminal justice system.[xxii] The wrongfully convicted defendant has been convicted of a crime that does not exist and “but for” seeking legal assistance on another matter this egregious legal error would not have seen the light of day. This is not a scrivener’s error; there is no potential remedy that can correct this manifest injustice other than withdrawing the plea, vacating the conviction, and zeroing out the case.[xxiii] In Jolly, the Fifth District explained:

As the negotiations were based on a material mistake of law, the plea was invalid and no legal sentence could be imposed. The remedy, in these circumstances, is not to correct the sentence but to set aside the plea (and the consequent judgment and sentence), …

Id, at 56. The remainder of the paragraph discusses reinstituting the original charges before the illegal plea in Jolly occurred. Id.

In the case of the wrongfully convicted defendant, the Jolly outcome is impossible and cannot happen here because the wrongfully convicted defendant was arrested and charged with a non-existent offense. There is no unwinding it. There is no resurrecting the offense or recalibrating the past with a guess as to what the charge should have been or might have been or ought to have been. This is not some strange historical mistake in negotiating that led to the defendant pleading to an offense that does not exist based on an original offense that does legally exist. The offense the defendant was arrested and charged with an offense that has never existed. The charge may as well have been witchcraft. And there is no special Delorean to back in time to fix this horrible injustice.

The only viable remedy is completely unwinding this conviction and wiping it from all ledgers.

Additionally, the system must return all moneys excised and retained from the wrongfully convicted defendant because the court system, clerk, sheriff, local law enforcement, probation, and prosecutors have all been unjustly enriched with the defendant’s money that these government agencies have no lawful right to under law.[xxiv]

Further, this matter is a not a scrivener’s error (fancy word for typo); it is a fundamental breakdown of the criminal system. If being convicted of a non-existent criminal offense does not qualify as a “manifest injustice” warranting immediately relief in the form of the plea being withdrawn, then there is hardly legal scenario that one might imagine that might fit the bill.

Understand the importance, anyone arrested and/or convicted by plea or by trial in the past 40-years to domestic violence battery may be entitled to have the arrest and/or conviction wiped from the records. These individuals may be entitled to lawfully carry a firearm without fear of criminal reprisal from the federal government. This cannot be stated enough – there is no misdemeanor crime of domestic violence battery in Florida (until the Legislature decides to enact it). And even then it cannot go backwards in time to correct this complete misfortune. See violations of ex post facto.

NOTE: the Trial Dog does not encourage, accept, and/or condone violence and/or domestic violence in general. In most instances, violence is unacceptable. Equally as unacceptable, unfair, and repugnant to our constitutional form of government is being convicted of a crime that does not exist. These individuals might as well have been convicted of witchcraft (which is not a thing and does not exist). As it stands, misdemeanor domestic violence battery is not a crime in Florida, and everyone arrested and/or convicted of it may be entitled to relief immediately.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

If you have been arrested and/or convicted of misdemeanor domestic violence battery in the past 40-years, or have a friend, or family member that has, please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 immediately to discuss your case. You may be entitled to relief. We cannot help you attempt to clear this up unless you contact the office.

If you liked this article, please like it and share the blog.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

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No. 21-006 DV Battery


[i] See Swanson v. Allison, 617 So.2d 1100 (Fla. 5th DCA 1993); and Crockett v. State, 91 So.3d 872 (Fla. 2d DCA 2012), rehearing denied. (Misdemeanor domestic violence battery not a crime).

[ii] See §784.03, Fla. Stat.

[iii] See Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1982), rehearing denied, approved, Jordan v. State, 438 So.2d 825 (Fla. 1983); State v. Sykes, 434 So.2d 325 (Fla. 1983); Achin v. State, 436 So.2d 30 (Fla. 1982), rehearing denied (1983) (“We hold that one may never be convicted of a nonexistent crime….”); and Plummer v. State, 455 So.2d 550, rehearing denied (1984).

[iv] See Hoover v. State, 511 So.2d 629 (Fla. 1st DCA 1987), rehearing denied; Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006), rehearing denied; and Jordan v. State, 801 So.2d 1032 (Fla. 5th DCA 2001).

[v]  See Achin, supra. The Fourth District in Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009) defined “fundamental error” as follows: “The ‘fundamental error’ terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox, [760 So.2d at 95-96]. Nevertheless, some errors, which have also been referred to as ‘fundamental errors,’ are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).”

[vi] See §775.021, Fla. Stat., (Rules of construction (e.g., the Rule of Lenity)); McLaughlin v. State, 721 So.2d 1170 (Fla. 1998); and Wallace v. State, 860 So.2d 494 (Fla. 4th DCA 2003), rehearing denied.

[vii]  See Art. II, Sec. 3, Fla. Const. (1968 Revision). SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

[viii]  It does not matter which rule or philosophy of statutory construction the reviewing court applies (i.e., textualism, originalism, spirit of the law, plain meaning, …etc.) there is no domestic violence battery misdemeanor in Florida until the Legislature decides to make it a crime.

[ix] The undersigned fully admits that it has been a nearly universal practice all over Florida to prosecute (simple) battery under some pseudo-guise of “domestic violence (battery).” Nevertheless, it is not a thing. The practice has grown up over decades, but it is not sanctioned by the Legislature and codified as a crime. As such, battery (domestic violence) is not a thing, only (simple) battery. The undersigned understands and appreciates that this may be difficult to accept at first blush, but the black and white law could not be clearer. A crime cannot be enacted by judicial practice (outside of contempt). The undersigned fully understands and appreciates that this contention is no small problem in Florida. As the current illegal practice goes, an arrest and/or conviction for “domestic violence” battery has far-reaching collateral consequences from firearm restrictions to certain license restrictions and other statutory penalties, costs, fines. Nevertheless, there is no criminal offense in Florida codified as “domestic violence battery.”

[x] https://jury.flcourts.org/criminal-jury-instructions-home/criminal-jury-instructions/

[xi] See B.K. v. S.D.C., 122 So.3d 980 (Fla. 2d DCA 2013) (However, “the legislature is presumed to know the existing law when a statute is enacted, including judicial decisions on the subject concerning which it subsequently enacts a statute.” Seagrave v. State, 802 So.2d 281, 290 (Fla. 2001) (internal quotation marks omitted))

[xii] The undersigned surmises that the local sheriffs/law enforcement, state attorney offices, clerks, and court administrative offices used the “domestic violence” classification to detail and catalogue the instances of domestic violence, but for all the years that this practice has been employed there has never been an offense called battery (domestic violence) and there isn’t a Legislatively enacted crime with a domestic violence element. Ergo, there is no such crime of battery (domestic violence).

[xiii] See Exposito v. State, 891 So.2d 525, 528 (Fla. 2004) (courts cannot add words not added by the legislature). See also Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005) (statute is “clear and unambiguous,” courts cannot look outside the plain language or resort to other rules of statutory construction).

[xiv] See Jordan, supra; Plummer, supra.

[xv] The Florida Supreme Court in Achin also reviewed the matter for “invited error.” Id. “Invited error” is a situation where the defense sets up an error, has the court commit the error, makes no objection, and then attempts to benefit from the error on appeal having “invited” the error.

[xvi] See §775.087, Fla. Stat.

[xvii] The statutory maximum for a misdemeanor battery is one (1) year of probation or one (1) year in the county jail and/or up to a $1000.00 fine U.S. Currency. See §775.082, 775.083, and 775.04, Fla. Stat. It cannot be made longer by the court or any jury finding.

[xviii] See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

[xix] See §90.403, Fla. Stat. (Irrelevant evidence is not admissible).

[xx] The arrest alone for a non-existent offense listed on the various sheriff’s office websites, the clerk’s websites …etc. are ongoing and continuing torts – libel, libel per se, and slander. Additionally, the sheriff, state attorney, and local clerks update their arrests and convictions both with the Florida Crime Information Computer (“FCIC”) (maintained by the Florida Department of Law Enforcement (“FDLE”)) and the National Crime Information Computer (“NCIC”) (maintained by the Federal Bureau of Investigations (“FBI”). Law enforcement agencies all over the country and around the world access that information to make decisions daily about thousands of consequential and inconsequential matters. And this information has been abhorrently incorrect for 40 plus years.

[xxi] See Public Law 1-4-208 Omnibus Consolidated Appropriations Act of 1997. Additionally, a conviction for this non-existent criminal offense may affect a person’s professional license with the respective licensing board.

[xxii] It goes without saying that there are potentially millions of convictions in Florida for this non-existent criminal offense.

[xxiii] Like in civil court, the wrongfully convicted is most likely entitled to interest on the money that was unconstitutionally detained for all these years.

[xxiv] See Nelson v. Colorado, 581 U.S. – – -, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017) (Petitioners have an obvious interest in regaining the money. The state may not retain these funds simply because their convictions were in place when the funds were taken; once the convictions were erased, the presumption of innocence was restored. The Fourteenth Amendment’s “due process” guarantee requires complete repayment to make the Petitioner whole.) See also Eighth Amendment (excessive fines); and Art. I, Sec. 17 and 19, Fla. Const.

Rotten Apples

While there are many good law enforcement officers out there, there are just as many that are terrible. Some of the worst are worse than the criminals they purport to protect society against. This is no longer about the “good cops,” it is what are we as a society going to do about the “bad cops?”[i]

Without a doubt, law enforcement officers put their lives on the line everyday to ensure that everyone can be safe and sound. In many, many instances, law enforcement officers do unbelievable good things for the communities they serve. Unfortunately, there are those amongst the enforcement community that believe that the “ends justify the means”[ii] and use deplorable methods to intimidate citizens they police. And it is these law enforcement bullies that we can do without.

By way of recent example, a very reputable, criminal defense attorney (and former state prosecutor) was pulled over the other night by three Pinellas County sheriff’s deputies. This in the Tampa Bay Area of Florida. According to his account, the deputies approached his car from both sides. They requested and were supplied his driver’s license and registration. The attorney complied and waited with the deputies surrounding his car.

Under the United States and Florida Constitutions, all traffic stops must have “reasonable suspicion.”[iii] In simple-speak, it means that the officer must be able to state a reasonable reason for pulling the car over that includes some justification for the traffic stop- like he believes a crime has occurred. An officer may not pull over (or detain anyone) on a mere hunch, conjecture, or speculation. The Florida Supreme Court explained, “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).” Popple v. State, 626 So.2d 185, 186 (Fla. 1993)

As they began the traffic stop, they then asked him why he was in such a hurry. Unsure of the purpose of the question, the attorney asked them what they meant because he was not speeding or otherwise driving erratically. What happened next shocked the attorney to his core.

The deputies then claimed that they witnessed the attorney run a red light and squeal his tires. Assuming this was a mistake (and giving the deputies the benefit of the doubt), the attorney pushed back and told them that was not true. The attorney then asked the deputies which intersection he had supposedly run and/or squealed his tires. The deputies appeared dumbfounded and could not provide the information.

A few minutes later after running the information in their computer, the deputies learned that the attorney was a former state prosecutor and current defense attorney. They returned to his car, immediately apologized, and informed him that they had not seen any of the criminal activity that they originally claimed, but that his car was in a “high crime” area.[iv]

They informed him that they had lied. In fact, they never had any “reasonable suspicion” to pull his car over. They just did it because they could and because they wanted to investigate for suspected criminal activity.[v]

The supposed “high crime area” was the Courtney Campbell Causeway which connects Hillsborough and Pinellas Counties.[vi] They were interested in investigating and making narcotics arrests. They returned his documents. Again, the attorney pushed back, told them what they were doing was highly illegal, and that they should be ashamed of themselves. At that, he was free to go. As the attorney proceeded to leave, the same deputies pulled over the very next car in the same fashion.      

Oh, and the attorney was “white.” Just imagine if the driver had been anyone else who was black or brown. Would they have gotten the same treatment? No one can say for sure, but it begs the question. And it is doubtful. It is not okay. It is not 1963. It is 2021 for crying out loud. This type of police activity is unacceptable and cannot be tolerated anymore.

This is law enforcement corruption at its finest and it defines what it means to be a “bully.” Make no mistake, this is the modus opperendi and when they get the matter to court – believe you me that they count on the judges believing their word over the defendant’s. That is why they do it. And they did not just start doing this. It is safe to assume that they were shown this by some supervisor or authority figure.

Illegally pulling automobiles over under false pretenses is unconstitutional, not sanctioned under the Fourth Amendment, and it is not lawful policing. At the very least, it is, inter alia, false imprisonment,[vii] a third-degree felony. It could be a number of other crimes. Those sheriff’s deputies should be arrested and lose their law enforcement certifications. It is also a massive abuse of public trust.[viii]

Anthony Candela is the Trial Dog and a Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this article, please like it and share the blog.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com

No. 21-005


[i] We can no longer stick our collective head in the sand and ignore the problem. Black and brown people all over America are harassed on a daily basis. It is not acceptable and we as a society can no longer tolerate this behavior.

[ii] “A Machiavellian Perspective.  A characteristic behavior in today’s society is the belief that the ends justifies the means. This means actions people take are justified regardless of how they go about achieving their desired end result. For example, some students I have taught justified lying on their resume because it could help them get a job.” https://www.ethicssage.com/2018/04/do-the-ends-justify-the-means.html#:~:text=A%20characteristic%20behavior%20in%20today’s,achieving%20their%20desired%20end%20result.&text=The%20statement%20that%20the%20ends,traced%20back%20to%20Niccolo%20Machiavelli.

[iii] See Popple v. State, 626 So.2d 185, 186 (Fla. 1993) (The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Sec. 901.151 Fla.Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).))

[iv] See Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (Headlong unprovoked “flight” (fleeing) from law enforcement can form the basis of “reasonable suspicion” in a “high crime area.”) It is important to note that the United States Supreme Court has never defined “high crime area.”

[v] This is beyond outrageous. This is no different that being stopped and told, “Your papers, please?” https://en.wikipedia.org/wiki/Your_papers,_please   Duncan Long (1 January 2007). Protect Your Privacy: How to Protect Your Identity as Well as Your Financial, Personal, and Computer Records in an Age of Constant Surveillance. Rowman & Littlefield. pp. 223–. ISBN 978-1-59921-687-4.

[vi] The causeway is a beautiful stretch of property between Hillsborough and Pinellas Counties. It is surrounded on both sides by water. People fish along the causeway. There are a couple beaches and trails for people to walk, bike, and run. At night, there are a few who illegally race their cars along the causeway. Occasionally, there have been some horrific sex crimes and/or homicides in the mangroves along the causeway.  Additionally, there is sometimes underage drinking or narcotics use on the causeway at night. Whether it qualifies as a “high crime area” is highly doubtful, but who knows?

[vii] 787.02 False imprisonment; false imprisonment of child under age 13, aggravating circumstances.—

(1)(a) The term “false imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.

(2) A person who commits the offense of false imprisonment is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat.

[viii] It is also why judges and prosecutors should not simply take law enforcement officers at their word.

Banned!

Over the past couple of days there a been a lot of outrage amongst some that the censoring of the President’s various social media accounts by the social media companies is violation of “free speech.” While it might seem like an oxymoron and counter to popular belief, the simple answer is there is no violation of the “free speech” in terms of the constitution when a private company limits speech regarding its private products and platforms. The First Amendment which guarantees “freedom of speech” does not apply to private companies; it applies only to situations were the federal or state governments unlawfully attempts to stifle speech.[i]

 The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(1789) The key to understanding the Amendment regarding in what situations it applies to is the word “Congress.”[ii] The First Amendment was originally only applicable to the federal government, but the Supreme Court remedied that in Cantwell v. Connecticut, 310 U.S. 296 (1940) making the Amendment applicable to all the states.

 Cantwell was one of the first cases to define the “incorporation doctrine.” Id. The “incorporation doctrine” is the idea that the fundamental rights contained within the Bill of Rights would apply to the several states via the Fourteenth Amendment’s “due process clause” and that the states would not be allowed to infringe upon any of those constitutional rights without a compelling reason. Id. Overruling Barron v. Baltimore, 32 U.S. 243 (1833). The Court wrote:

We hold that the statute … deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. … The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. …

Id., at 303. Cantwell was a religious freedom case and not a “free speech” case.[iii]

When dealing with Twitter, Facebook, Instagram, Pinterest, Parler, these apps and computer services are owned and operated by private companies. Although these applications have created a public forum for all sorts of speech, these applications are not operated by the local, state, or federal governments. In fact, these apps are exclusively run by private companies.

Being private companies, these entities can change and alter what types of speech will or will not be tolerated. Contrary to popular sentiment, private companies can limit, restrict, or outright ban certain speech, topics, or speakers. Think employee handbook as an example of the type of things that a private company may require or forbid. So long as the employee handbook and workplace policies do not violate your civil rights (different from the fundamental rights contained within the Bill of Rights), private employers can limit and/or restrict your First Amendment “free speech” rights at work (because the companies are not government agencies).[iv] The ban gets a little more complicated when the employer is a governmental agency.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this article, please like it and share the blog.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com

No. 21-004


[i] https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-social-media-first-amendment/

[ii]  After the Constitution was ratified, the people of the several states pushed for a “Bill of Rights” because of the governmental abuses the colonists had endured at the hands of the British Troops and the Crown. The Bill of Rights Institute writes: The first 10 amendments to the Constitution make up the Bill of Rights. James Madison wrote the amendments, which list specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the First Amendment. Congress is prohibited from making laws establishing religion or abridging freedom of speech. The Fourth Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant. The Bill of Rights was strongly influenced by the Virginia Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties. One of the many points of contention between Federalists, who advocated a strong national government, and Anti-Federalists, who wanted power to remain with state and local governments, was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty. Madison, then a member of the U.S. House of Representatives, altered the Constitution’s text where he thought appropriate. However, several representatives, led by Roger Sherman, objected, saying that Congress had no authority to change the wording of the Constitution. Therefore, Madison’s changes were presented as a list of amendments that would follow Article VII. The House approved 17 amendments. Of these, the Senate approved 12, which were sent to the states for approval in August 1789. Ten amendments were approved (or ratified). Virginia’s legislature was the final state legislature to ratify the amendments, approving them on December 15, 1791. https://billofrightsinstitute.org/e-lessons/bill-of-rights-of-the-united-states-of-america-1791

[iii] See Barron v. Baltimore, 32 U.S. 243 (1833). The first case to announced that the Bill of Rights did not apply to the several states. It was overruled by the XIV Amendment to the United States Constitution.

[iv] https://www.business.com/articles/freedom-of-speech-at-work/

Stickler for the Rules: Criminal Laws Must be Strictly Construed to Be Fair

It is well-established that criminal statutes are to be strictly construed (without exception) against the government and in-favor of the accused. It is called the rule of lenity.[i] If there is any confusion or doubt about what the statute might be referring to, then the confusion or doubt must be resolved in favor of the accused citizen. It is a rule of statutory construction (like “plain meaning,” originalism, textualism, or ejusdem generis).

In her concurring opinion in Eustache v. State, 248 So.3d 1097, 1104 (Fla. 2018), Justice Pariente points out the following, “The rule of lenity provides that ambiguities in criminal statutes must be resolved in favor of the defendant. See State v. Weeks, 202 So.3d 1, 8 (Fla. 2016). [omitted] ‘The rule of lenity requires that ‘any ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.’’ State v. Byars, 823 So.2d 740, 742 (Fla. 2002); see also Kasischke v. State, 991 So.2d 803, 814 (Fla. 2008).” It is a rule of just fairness.

Our system of government (whether at the federal or state levels) relies on interrelationship between the branches. These interrelationships create a system of checks and balances between the three branches of government. Each branch has its own lane. In its simplest formulation, the legislature writes the laws. The executive carries out the laws. The judiciary interprets the laws. And that is the way it is. The idea is that no one branch is more powerful than any other and all must work together to sustain our democratic form of government. See Art. II, Sec. 3, Fla. Const. (1968 Revision).[ii]

Fyodor Dostoyevsky stated, “A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.” It makes sense. Criminal statutes need to be fair and just. And these statutes must be created by the legislature.

Respectfully on this point, the judiciary (i.e., the courts) is not free to make up criminal offenses (or create local criminal practices outside of the established statutes or court procedures). To do so would be to violate the “separation of powers” between the branches of government. [iii] Only the legislature (with the governor’s ratifying signature (or a majority veto override in both houses))[iv] can enact a criminal statute.[v]

In fact, any criminal statute created by a court is void ab initio and a nullity because the court does not have the power to make a law. The same holds true for the executive (e.g., the president or the governor) who imposes some type of criminal sanction without any legislative action. That too would be a nullity. For the exact same reason, the executive branch cannot make any laws including criminal laws. Only the legislature can make a criminal statute.

Keep this in mind next time you vote for your congressperson or local legislators. It is these individuals that impact your life on a personal level. Maybe not immediately, but their actions always seem to filter down to the everyday Floridian. And while they might be from the same party as you or look like you or “talk a good game,” the question you must ask yourself – – is this, “do they really have my best interests at heart?”   

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.ihearyoubarking.com

If you are looking for representation, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this blog article, please like and share the blog. All the Trial Dog’s blog can be found on www.ihearyoubarking.com or in the blog section of www.candelalawfirm.com Please like and share. Thanks.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela) https://www.avvo.com/attorneys/33578-fl-anthony-candela-1291219.html

Image source: Schoolhouse Rock! 1979. “I’m Just a Bill.” ABC https://www.cnn.com/2013/01/14/politics/schoolhouse-rock-40/index.html

No. 21-003


[i] See §775.021, Fla. Stat., (Rules of construction (e.g., the Rule of Lenity)); McLaughlin v. State, 721 So.2d 1170 (Fla. 1998); and Wallace v. State, 860 So.2d 494 (Fla. 4th DCA 2003), rehearing denied.  

[ii] SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Art. II, Sec. 3, Fla. Const. (1968 Revision).

[iii] “Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.”  https://www.law.cornell.edu/wex/separation_of_powers#:~:text=Separation%20of%20powers%20is%20a,and%20balance%20the%20other%20branches.

[iv] Majority overrides do not happen often. Since 1789, 106 veto overrides. (And I am not sure that includes the veto override from the other day on the military bills). https://www.archives.gov/files/legislative/resources/education/veto/background.pdf

[v] https://www.cnn.com/2013/01/14/politics/schoolhouse-rock-40/index.html https://www.youtube.com/watch/FBpdxEMelR0

Witchcraft is Not a Crime in Florida

It seems self-evident that a person cannot be convicted of a non-existent offense in Florida. Nowadays (as opposed to 1692 Salem, Massachusetts)[i] if someone were arrested, tried, convicted, and sentenced for witchcraft, the conviction would be void ab initio and nullity.[ii] Obviously, witchcraft is not a real thing unless you are Harry Potter. Therefore, a conviction cannot stand for a crime that does not exist or is not “on the books.”

For the most part, Florida no longer follows the common law in terms of criminal matters. All the crimes in Florida are based on statute. If there is not a statute on the matter precisely outlining the crime, then there is no crime. For instance, Florida does not have a larceny statute.

At common law, larceny was the unlawful taking or theft of the personal property of another person or business with the intent to temporarily or permanently deprive the owner of the item without owner’s consent. It required a picking up and carrying. And the item must have value. Florida has incorporated the larceny concept into its theft statute.[iii] Nonetheless, no one in Florida can be arrested and prosecuted for larceny (because there is not a statute forbidding larceny per se).

Without exception, Florida takes the position a person cannot be convicted of a non-existent offense. See Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1982), rehearing denied, approved, Jordan v. State, 438 So.2d 825 (Fla. 1983); State v. Sykes, 434 So.2d 325 (Fla. 1983); Achin v. State, 436 So.2d 30 (Fla. 1982), rehearing denied (1983) (“We hold that one may never be convicted of a nonexistent crime….”); and Plummer v. State, 455 So.2d 550, rehearing denied (1984).

Additionally, a person cannot agree to be convicted of and/or plead guilty or no contest to a non-existent offense in Florida. See Hoover v. State, 511 So.2d 629 (Fla. 1st DCA 1987), rehearing denied; Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006), rehearing denied; and Jordan v. State, 801 So.2d 1032 (Fla. 5th DCA 2001). In other words, a person cannot agree to plead guilty to witchcraft in exchange for a lessor sentence to say robbery. As far as the Florida Supreme Court is concerned, conviction of a non-existent criminal offense in Florida is a fundamental error (e.g., the most serious legal error that can exist). Achin, supra.[iv]

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this article, please like it and share the blog.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com

No. 21-002


[i] See https://en.wikipedia.org/wiki/Salem_witch_trials or https://en.wikipedia.org/wiki/The_Crucible written by Arthur Miller. 1953. Play – “the Crucible.”

[ii] Latin for “to be treated as invalid from the onset.” https://en.wikipedia.org/wiki/Void_(law)

[iii] See §812.014, Fla. Stat.

[iv] The Fourth District in Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009) defined “fundamental error” as follows: “The ‘fundamental error’ terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox, [760 So.2d at 95-96]. Nevertheless, some errors, which have also been referred to as ‘fundamental errors,’ are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).”