FloridaDefense.com

Mike Kenny, attorney, Bauer, Crider, and Parry: So, the recap is the Miranda warnings themselves have five specific portions that must be read to a suspect. They have to be told they have the right to remain silent. They have to be told that they have a right to an attorney. They have to be told that if they can't afford to hire one, one will be appointed for them. They have to be told that they can exercise those rights at any time.

The setting where Miranda warnings have to be read: it has to be in a custodial interrogation. Custodial meaning the person has to have his freedom of movement limited in .a manner that is objectively reasonable. Like people would expect. “Yeah, I can't go. I’m not free to go. I’m answering these questions.” Now, that particular aspect is a very heavily litigated aspect. Because there are times that the officer’s going to say, “Hey, listen. He wasn’t in custody. I was just, you know, I was just walking up to him and we are having a consensual encounter. This was just a normal conversation.”

So, the inquiry to whether, or not. a person is in custody is very fact-specific and they look at the manner of questioning. They look at whether the person was told he or she was free to leave. Whether the officers came up with some show of force that would cause a reasonably objective person to believe that he wasn't as free to turn around walk away, or refuse to answer questions. And the courts are going to look at all that to determine whether, or not, that first box has been checked. “Is he in custody?”

And then the second box, which is a little bit easier - interrogation. You know? Has he been asked questions designed to eliminate an incriminating response? Well, they look at what was asked? How was the conversation made? Is it that Christian burial speech which was clearly designed to get this person in the backseat to feel remorseful? And say, “All right. Let me tell you where the bodies are.” That is also heavily litigated.

But the biggest issue is is the person custody or nor? Because putting handcuffs on you isn't the only time a person is in custody. And these Miranda warnings matter because what happens is that they're not read when they should have been, an admission to a crime is kept out of evidence. Or, not even an admission to a crime, but maybe an admission to being present when a crime was committed. Sometimes, you know, that's very important. Obviously, if a prosecutor is going to convict you of a crime they’ve gotta prove that you were there. And just being there puts you one step closer to committing the crime.in a law-enforcement officer’s perspective, perhaps.

So, you get to keep all of that out, if a person should have been warned, and they weren’t. It doesn't make the crime go away. It doesn't mean that the arrest was bad. All it means is that the answers that you may have given in response to interrogation should have been warned. And because they weren’t, the cure is we keep those statements out. That's the punishment. It’s basically pursuant to the exclusionary rule, they keep that set of factors out of evidence. A.nd this comes up in every single crime there is. It comes up in DUI arrests. It comes up in robbery arrests. It comes up in homicide cases. Sexual battery cases. I can't tell you how often in a sexual battery case the investigation involves two people. Most the time, people don't commit a sexual battery in the middle of a football field. Most the time it happens, most crimes,, most very serious crimes, happen away from public view. So, you have one witnesses account, the victim, perhaps. And then you have what the defendant said. What the suspect said. And there are plenty cases where a suspect may be thinking he’s doing himself a lot of good by saying, “I didn't do anything. I didn't touch her. She was there, but we didn't have sex.” But, maybe, he think that's very helpful. But it’s not helpful if a DNA test is performed, and they actually find the suspect’s DNA. That just shows that he lied. And lying, is maybe enough for this prosecutor to present to the jury that this victim accuses him of a sexual battery. This person lied about a consensual encounter. And this prosecutor would ask a question, “Why on earth would he lie about had it not been because he was afraid of getting caught?”

And that's why it's crucial, when a person gets contacted by law enforcement, and they say, ”Hey, listen. We’re investigating something. We need to answer some questions.” The first thing you do is, is tell him. “Hey, listen. I don’t want to answer any questions right now.” And you contact a lawyer. You find a lawyer. You tell the lawyer what's going on, and then that lawyer would reach out to the law-enforcement officer to get an idea. “Is my client suspect? Are you investigating his potential involvement in a crime?” And then, we can make an educated decision on whether or not we’re going to answer any questions, or answer no questions at all.

B: So, I mean, the best advice I’m hearing out of all this, is a experienced criminal defense attorney, Mike. Those two, you know, first important factors: the right to an attorney, and then the right to remain silent. Those are the things that you recommend most. Right? Get the attorney.

M: Sometimes, yes. Everybody in the United States has a shield. And that shield is the right to a lawyer, and that right to remain silent. Everybody has that shield. The problem is that shield’s no good if it's sitting on your back and you're not using. So, the Miranda warnings are designed to let you know you've got the shield. You can use it if you want. But the people have to understand that you’d better use that shield.

B: Right.

M: It’s much better to decide later, after contemplation of looking at what's at stake, and looking at what the facts are, to decide whether to answer a question. Than on a whim; not use your shield and just walk into the lions’ den, as I’ve said.

B: All right. You’ve been listening to Mike Kinney floridadefense.com podcast. That concludes our series on discussing the Miranda rights.

Mike Kenny, attorney, Bauer, Crider, and Parry: Now, this changes a little bit when we’re talking about not adults. When we’re talking about juveniles. I mean, these are very significant rights. And these rights have a very significant consequence on a person's future, on that person's liberty. So, we can understand when an officer reads, perhaps, a 16-year-old or 17-year-old his Miranda warnings. You know, that 16 or 17-year-old might not have that same capacity to understand the gravity of where he is, and to understand that hey, he’d better exercise his rights. So, in the state of Florida, what has happened as a sort of protection in juveniles circumstances, is that law enforcement must make an effort before interrogating a juvenile suspect. Must make an effort to contact the parents, and notify the parents of that interrogation or that questioning is going to take place.

B: How is that effort documented?

M: How is it documented? A lot of times it’s documented through the officer writing a report, and saying whether or not he or she attempted that contact. A lot of times, whether they wrote it, or not, in felony cases we’re allowed to subpoena the officer in and have them testify and talk about the whole process. I don't want to know just about know what crime that the officer’s investigating. I want to know from point A to point B how we got, you know, to my client and how this whole identification of my client as a suspect, and how we began to question my client.

So, you know, that's one of the first questions that I would ask when it comes time to find out how they questioned him is, “Did you did you attempt to reach the parents?” They don't have to make contact. They don't have to get then. They don't have to wait an inordinate amount of time. What they have to show is they made an effort to reach the parents. Obviously, one of the other things I do is I talk to the parents of my client. And say, “Hey, did anyone try to contact you when he was at school and they were asking questions?” So, you usually get to the answer very quickly. And if the officer demonstrates that he made an effort to reach out, then he may have met that hurdle. That one necessary hurdle to show that our client's rights were protected.

Now, I will tell you that the failure for the officer to reach out to the parents isn't an absolute. It doesn't mean that any statements made must be suppressed. But it tends to show that the officer failed. That he didn't follow a specific protocol, and he's got more of a difficult battle trying to establish that our client's rights were diligently protected. And, even more so, they’re going to have to explain how this sixteen-year-old, who may have waived his rights, was of the capacity to understand the rights, and know that the significance of waving those rights.

The aspect that is to me, that I see often in juvenile cases, and I represent plenty of juvenile clients, and I have plenty of cases pending right now with very similar factual situations, is when the officer is questioning the person, “Is that person in custody, or not?” What I can tell you is, on some cases that I've had very recently, what you have is the questioning occurs at school. In Florida there’s a lot of school resource officers and they have an office in the school. And sometimes what will happen is that a detective whose investigating a crime may contact the school resource officer and confirm a particular student is in attendance at that school. And ask that resource officer to reach out and talk to this student. Now, this is important, because how does that happen? How does a school resource officer make contact with a suspect in school? I can tell you what normally happens, what happens in every case probably that I've had, is that the school resource officer sends a note to the classroom asking the teacher to send the student to his office.

Now, why is that significant? Well, when a student is sitting in a classroom he can't just go wherever he wants. He’s got rules he’s got to follow. And when his teacher says, “John Smith, you need to go to officer Smith's office.” Well, obviously, the question is is he in custody? And my argument is: you bet the is. The student’s got no other choice when he sitting in a classroom where to be. And then when his teacher says, “You go there.” He’s essentially been directed to go into the interrogation room. And that is an instance where I would argue that that person needs to be read his Miranda warnings because he is definitely not free to leave. The student walks up to the school resource officer's office, and as nice as they may make the setting seem, and as conversational they may make things seem, my argument and my position is once he gets commanded to go to that office ,he is in custody. If this officer is going to ask my client any questions that are designed to elicit a response that may incriminate him, then I’m going say the warnings better have been read. And if they’re not, officer maybe asking questions at the detriment of his case.

The other aspect that is that is crucial here is a lot of times conversations start before a person is fully identified as a suspect. A lot of times, or maybe a brief description about a person who may have been involved, and so, sometimes officers if they don't have a person fully developed yet. Especially, maybe a schoolyard setting, like we were talking about before, may have a conversation with someone and begin to talk with them. And maybe, during that conversation when the officer’s asking questions the suspect may elicit a response admitting to being present when a crime was committed. Or, admit to being involved in a crime. And at that point, maybe the officer is clued in. “All right, this is the guy. I’ve got my guy. And then the officer reads the Miranda warnings.

Now, there has been a lot of litigation about this particular issue. It’s almost kind of liked to ‘letting the cat out of the bag’. And what used to be a very common practice, with some investigators, is that they would have a person who’s sort of stopped. Not really in custody. And they begin to just have a conversation with that person. Ask that person questions. And that person fully admits to being involved in a crime. At this point, the officer then would read Miranda warnings after the fact. And then after the fact, say, “Hey, listen. You just told me you committed this aggravated battery on this person here at school. I’m going to read you your rights. You the right to remain silent. You the right to an attorney. If you can't afford one, one will be appointed for you. You can exercise these rights at any time.” He would tell them all those things, and then say, “Hey, everything that you just told me, was that true?” And the person would shake his head, “Yeah.” And then the officer would write in his police report, “Client just admitted, post-Miranda, meaning after I read him his warnings, that he was involved in this crime.”

Well, a lot of lawyers in the area said, “Well, this doesn't make any sense. I mean obviously this guy, once he answers questions before, and he hasn't been warned, and he said ‘Yes, I am involved in this crime.’” “What’s he going to do? Change his story after the officer reads him his Miranda warnings?”

So, the courts have said that you can't cure the defect by reading him his rights and getting him to admit again. And you kind of ‘let the cat out of the bag.’ The protections that the Miranda warnings were designed to provide have absolutely no impact when the person’s already admitted. And say we’re not to introduce that admission into evidence; we’re going to introduce the post-Miranda admission in. But what's the point? What is any reasonable person going to do what he just realizes he admitted to a crime, and the officer Mirandizes him, he’s probably going to say the same thing. “Yeah. I guess I already told you. So, here I am. I guess I'm ‘in for Penny in for a Pound.’”

So, courts have had said that law enforcement needs to be very careful about having this sort of interrogation, and then Mirandizing after, and then asking follow-up questions after that. In most cases, and obviously it’s very factually specific, most cases that would be deemed to be a violation of the Miranda warnings.

So, the reason Miranda warnings are so important, they may not make an arrest go away or charge go away. But they're so important because a lot of cases the interview of the suspect, or the admission of the client, is a very crucial piece of evidence for the prosecutor.

And that's why, you know, for my position, I really never see the benefit, and just walking in and answering a whole bunch of questions. I really never see the benefit because if the office’s believe a person committed a crime, and they believe they have probable cause to make the arrest - they're going to make the arrest whether you say you did it, or you didn't do it. And all a person walking in there, answering questions, is going to do, is potentially add evidence to the case. And if the case is weak, and the officer doesn't know whether a crime happened, you walking in there and telling him you didn't do it, isn't necessary going to help the case. And potentially, it could lay the groundwork that you said something that isn’t particularly helpful down the line.

So, if the case is weak, they’re not going arrest if they don’t have probable cause. And if the case is strong, they're going to arrest. So, walking into the lions’ den and answering the questions probably isn't the best strategy. And, I at least would want to know about what the facts of the case are, and what this officer’s looking for beforehand.

So, the Miranda warnings, as I was talking about, the failure for an officer to read them, may not have the impact that everyone expects. It may not make the crime go away. And in certain crimes it may have absolutely no impact at all. The state may still have enough evidence that they believe that they can prove, beyond a reasonable doubt, that a person committed a crime.

The cure for, if a person answers questions when he’s in custody and he’s interrogated, the cure for that defect is that they keep all the statements out. So, all the evidence is still there they had up to that point, but any statements or admissions would be kept out. So, in some cases it’s crucial. In some cases, those cases like constructive possession cases, or those cases where there really isn't an identity of a suspect, it's a major piece of evidence that, you know, prosecutors are going to fight like heck to keep in. And, obviously, I’m going to fight like heck to keep out.

In a nutshell, Miranda warnings stand for the proposition that you the person being questioned have these rights. Although, you’re intimidated, although you have this fear of being investigated by law enforcement, you still have that power to say, “No. I don't want to answer any questions.” You still have that power to say, “I want my attorney here, by my side.” And if you don't have the financial means, you have the understanding that even if you don't have the money to, one will be provided for you. These are pretty crucial rights that a lot of us have heard time, and time again.

It’s not necessarily the words that matter so much, as the act of the person asking the question. Saying, “Hey, listen.” You have this right. You have this power. Officers, oftentimes, don't want to get to that Miranda portion until they have too, because it does at times have a chilling effect on a conversation. And sometimes, when officers are talking with a person and it’s a freewheeling conversation, and it's a is a conversation where he's providing a lot of details and information, officers are kind of loathe to put a chilling effect on that by reading these Miranda warnings. And that’s what it does. It does have a bit of a chilling effect on the interaction. But they have to be very careful. Because if the person is in custody, and they’re asking him questions, they’re going to have to read him Miranda warnings.

Mike Kenny, attorney, Bauer, Crider, and Parry: The second portion of it, on Miranda, or I'm sorry interrogation. Interrogation is essentially what it is - a question designed to elicit an incriminating response. And, a lot of that, sometimes, believe it or not, is litigated. There have been cases where a person may have invoked his right to remain silent, and said he did not want to answer any questions. And officers would begin to have a conversation and begin talking. But not, claim they’re not asking questions. But, maybe in the way they design their questions.

There is a famous case where there was a homicide, and there was a discussion about, you know, where, you know, the these poor victims that were killed, you know. Wouldn’t the parents like to see where they are? And just help these parents come find the body and give them a Christian burial, so to speak. And the conversation between the officers in the front seat of the car, where the gentleman in the back is hearing all this, the court was inquiring, “Was that conversation designed to elicit an incriminating response for him?” Where he says, “Well, all right. Listen, you go around the corner you’re going to find, you’re going to find where I buried everybody.”

And courts look at the actions and intent upon the person making the statement. So, the short idea is, not every interrogation, necessarily, is a question. But it's, “Was it designed to elicit an incriminating response?” And, in that particular example, about talking about giving these children a Christian burial, you know, the courts were asked to interpret whether, or not, that conversation between two officers in the front seat driving the suspect around was designed to elicit an incrementing response from him.

So, that’s the basics of Miranda. And when you get your Miranda warnings you have to be in custody, and you have to be propounded questions or you have to be questioned or spoken to in a manner that is designed to elicit an incriminating response. Now, when that comes up, when the person is in custody the officer has to read these warnings. And I get, all the time, people when they come, after they get arrested, oftentimes they tell me, “Hey, listen. Nobody read me my rights. You know? So, what does that mean?”

And that’s the question, right? What does it mean if an officer has you in custody and does not review your Miranda warnings? And what it means is, it depends. That’s the short of it. It depends.

There are plenty of cases were officers make an arrest and they don't ask any questions. And if they don't ask any questions the failure to read Miranda warnings is a irrelevant. It only matters whether, or not, a person is answering questions. And the reason why it only matters, is what some people might believe, “If I don't get my read my rights the arrest goes away, or the charge goes away,” is not accurate. The cure for the error in law enforcement, in failing to read Miranda warnings, the cure for that is that any statements made without being warned, when they should have been warned, any statements made are suppressed. Meaning they are kept out evidence. So, they don't make the charge go away, and they don't make the arrest go away.

So, sometimes that matters, and sometimes it's completely has no impact on the arrest. And I’ll give an example when it matters. What comes up very often in drug possession cases. In Florida, we have an understanding of the law possession where it’s called constructive possession. And constructive possession means where a controlled substance may be in the possession of more than one person. And it’s not in the hands of the person, and it’s not in the pocket of the person, or on the body, or so near to them to be considered on their person. But it's maybe in the area.

For instance, a car is the best example I can come up with. Two occupants in a vehicle. The vehicle is stopped for some for some traffic violation. An officer comes over the driver side of the window and maybe even notices in plain view a controlled substance sitting in the center console. Or, sitting on top of the center console. In that particular case you have a constructive possession issue. If the officer takes both of the individuals out of the car and begins to interrogate them. At that moment you would have a custodial setting, and you would have interrogation asking, “Hey, whose drugs are these? Where do they come from?” You know? “Who was using it.” That part is when the Miranda warnings would matter. If a person answered the question, and they said, “It was mine.” Or, another person said, “It was mine.” Those are very critical responses. Those responses are what the state would be able to use to show that this particular individual was in constructive possession of that controlled substance.

So, if we have a case where there's occupants in a vehicle, and an officer stops the car. And an officer pulls both occupants out of the vehicle and begins to ask them questions without providing Miranda warnings. And maybe one of those individuals says, “Yes, the drugs are mine.” Well, that would be a crucial aspect in the defense of this case. Because what I would look at say, “Well, listen. My client was in custody. The officer began to ask my client incriminating questions, and the officer should had read him Miranda warnings.” The failure of the officer to do that means that I would ask the court to suppress my client's admission to the possession of the controlled substance found inside the vehicle.

Now what does that mean in the big picture? Well, in the big picture, like I told you, Florida has a possession called constructive possession. In a constructive possession case, the State is required to prove that the person possessed a certain item. And in a constructive possession case they have to prove that the person knew of the item, and the illicit nature of that substance, and that the person had the ability to exercise dominion and control over that substance in the car. So, if you suppress a statement from my client where he admits knowledge of it, or he admits ownership of it, and all we have is a car with two people inside and a control substance found inside. Without that admission, I would argue there's a very good case to make that that possession case can't stand. The reason why it can't stand is because the State is without any evidence to show that my particular client, as opposed to the other individual in the car, was in constructive possession. Without that admission, the State will have a very hard job showing my client exercise dominion and control. The State would have maybe a less difficult time, but still a difficult time showing that my client had knowledge of it. In a constructive possession case you have to both know it's there, but knowing it’s there is not enough. You have to know is there, and you have to exercise that control over it like that substance is yours.

You can think of plenty situations where a person may get into a car, and see maybe the driver of the car doing some that that is illegal, or that he would necessarily do it. Because you know the driver has a controlled substance doesn't mean you're exercising dominion and control over it. And that's what the courts are concerned about. So, that's where Miranda warnings and any maybe a motion to suppress the statement matters. That’s where if a cop fails to read you Miranda warnings, and the statement gets suppressed, that may have an outcome where the case actually gets dismissed.

In another case, where officers observe a bank robbery, and see a person running out of a bank with a bag full of cash and a firearm in his hand. They can run up, they can arrest him, they can fail to read him warnings and the guy may make no statements. It really won't have much of an impact whether, or not, he read Miranda warnings or not because you have evidence that tends to suggest the officers observed a robbery in progress.

B: Right.

M: So, it matters. It's very fact specific what actually happened in the particular case. Now, we talked about it’s up to the person, it’s up to the client to exercise that right to remain silent. So, what happens if an officer reads a person Miranda warnings and the client says, “Listen. I’d like to remain silent. I don't want to answer any questions.” All questioning must cease. They don't get to ask him any more questions at that moment.

There's also what must be understood there's two specific rights: there's a right to an attorney and there’s right to remain silent. So the person says, “I want my lawyer.” That's a very different right. That’s a right saying, “I want to have a lawyer. Either have one appointed for me before anything happens, or I don't want to do anything until I have a lawyer present.”

A right to remain silent is saying, “I don't want to answer any questions at that moment.” That right can later be waived at some point. If an officer comes and asks a person a question again,, after a period of time, but an officer still has give the person a Miranda warning.

So, the power, in essence, as far as the questioning of whether answer questions with the suspect. The suspect has that right to waive. And the suspect has that right to invoke his rights. And, of course, my advice to anybody is whether you think you're as innocent as possible, you never want to find yourself involved in a conversation with law enforcement where they’re investigating a crime without at least having a lawyer present. My advice is until we know what, in fact, the law enforcement is looking into. Until we know what the circumstances are, you always want to have a lawyer present with you, and you probably don't want to answer any questions.

B: Use that right to remain silent?

M: Absolutely. Absolutely.

Brad Post, host: Welcome to floridadefense.com podcast. We are speaking to Tampa defense attorney Mike Kenny. Mike, how are you doing?

Mike Kenny, attorney, Bauer, Crider, and Parry: I'm doing well. How are you?

B: I’m doing good. Well, today we’re going to be talking about Miranda rights. You always see on TV, you know, police officers reading criminals their rights.

M: Sure.

B: Talking about kind of when, why they’re being read those. When. Just kind of the purpose behind them. I'm sure you get a lot of questions on Miranda rights?

M: All the time. All the time.

B: So, let’s talk about it.

M: All right. Well, so, the first thing is the rights that we talk about. Probably, as you mentioned, everyone, who's seen a TV show involving police, probably, at some time or another, have heard what these rights are.

And they, the Miranda warnings, are very specific. The courts have ruled that there have to be essentially five warnings that are given to a person. And those five warnings are they have to be told that they have the right to remain silent. That’s the first one. The second one is that anything they say can be used against them, or will be used against them. The third one is that they have a right to a lawyer. The fourth one is that if they cannot afford to hire a lawyer one will be appointed to represent them. And finally, that they can choose to exercise these rights at any time. And it's these five rights, in a sense, sometimes different states, state attorney offices kind of hand out cards, to the local law enforcement, to read these cards that meets those five very crucial points in order to interrogate a suspect.

And really, the real point of a Miranda warning is: most people probably have at least an idea that they don't have to answer questions. It’s not really designed to remind somebody of something. The Miranda warnings were developed in response to, you know, years ago people think about being interrogated, and they think about this dark room where they’re sitting under a bright light and there’s a whole bunch of officers propounding questions against a person. And it's designed to, kind of, take that stigma away from the questioning.

Because when you're when you're answering questions, or being questioned by law enforcement, it has a very, quite frankly, scary impact. Even a person who’s a 100% innocent might feel nervous, might feel compelled to do something that he normally wouldn't do. Or, invite questions that he normally wouldn't invite. So, the idea was to take that stigma out of it, and to have the actual person interrogating you actually tell you, “You have these rights.” Sort of shows a transition of power. The person being asked is the person who has that power, and the power to exercise those rights.

Now, Miranda warnings only come up in one specific legal setting. And that is during a custodial interrogation. All right? So, what that means is, a law-enforcement officer, if he engages someone in a conversation, and he's not in custody, that is not a situation that might require Miranda warnings. A lot of times, what I see in police reports, officer’s use the term ‘spontaneously stated.’ And spontaneously, obviously, by the definition means just uttered it without even being primed. Without even being questioned. And the reason why it’s significant is people can obviously say something on their own, offer something on their own; that might incriminate them. And the difference is, “Was that a setting where a person should have been warned?” And, not only should the person have been warned, but, “Was the statement that was made in response to a question, an interrogation?”

So, the first thing that you have to have evaluated when a person provides statements. When I have a client who comes in, and there's there is some evidence to suggest that he or she may have made some statements that may be an admission to a crime, or tend to incriminate, the first question we have to ask is, “Was this a custodial interrogation?” That means you have to look at two aspects. Not only, “Was the person questioned?”, which is the interrogation aspect, but, “Was the person in custody for the purposes of Miranda?”

What most people think of when they hear the term ‘custody’, is they think, you know, under arrest. And obviously when a person’s handcuffed, sitting in the back of a patrol car, or sitting in a jail cell, I don’t think there’s going to be any argument that that person is not in custody. But there are other instances where a person is in custody - for the purposes of Miranda. Meaning, he or she is not handcuffed, necessarily. He or she is not sitting in the back of a police cruiser, or sitting in a jail. There are some instances where a person willingly walks down to a police station to answer questions, and he sits inside a police station. And he is free to leave, and he's free to not answer those questions. For Miranda purposes, that is not a custodial interrogation. So, that wouldn't be a situation where a person would be required to have their Miranda warnings read to them.

So, the custody part is a part that gets litigated at times, and it's very significant. And, for the purposes of this podcast, the idea that we need to understand is that a person has a freedom has been limited. That this person's freedom of movement has been limited by law enforcement. And that's the part where we ascertain that that person is in custody. Meaning, an officer’s conducting an investigation of some type. A person has been seized. He may not be handcuffed. He may not be under arrest. But at this particular moment he is not free to leave. And in that particular situation, he understands that he is not free to leave. And in that particular situation, he is in and custody for Miranda purposes. So, that's the first box that you have to check off – that the person's actually in custody.

And things like this may come up when an officer’s doing a DUI investigation. And during a DUI investigation, the first thing that happens is the officer turns on his overhead lights, and a person has stopped the car. The officer maybe walks over to the car, as soon as the office has contact initially, he doesn't have to come out and just start reading Miranda warnings. He might have a conversation. and maybe when the officer detects some signs of impairment, and then begins a DUI investigation, it’s really at this point where it's clear, both to the officer and the person being questioned, that this person can’t just walk away. And at that point, if the officer’s going to start to ask some questions like, “Where we’re you coming from tonight?” How many drinks did you have?”, anything like that. That is something where he would be in custody, and any question that are going to be asked have to be warned first.

floridadefense.com Podcast - #4FDP - Juvenile Battery

Brad Post, Host, Create the Movement

Mike Kenny, Attorney, Bauer, Crider and Parry

Brad Post, Host, Create the Movement: All right. Welcome to floridadefense.com podcast. We are speaking to criminal defense attorneys in the Tampa-area Bauer, Crider, and Parry. We are speaking to Mike Kenney. And we are in this series on juvenile crimes. And we’re going to be talking basically today about a Tampa juvenile battery. And we're speaking to Tampa juvenile battery defense attorney Mike Kenny. And Mike, how are you?

Mike Kenny, Attorney, Bauer, Crider and Parry: I’m doing well. How are you?

B: Good. Good. Let’s kind of started on battery.

M: Sure. Sure.

B: Kind of mentioned before the podcast - fights in school.

M: Oh, yeah. Yeah. It used to be maybe, when I was a kid going to school that if kids got in a fight they went to the principal's office. But nowadays, if kids get in a fight in school, a lot of times they go to jail, or the juvenile detention center.

B: Right.

M: And there is law enforcement involvement in most schools nowadays, at least in the state of Florida. And what happens with that is, obviously, a lot of things are better as a result of that. But there's also probably, a higher likelihood of there being state involvement on behavior that didn't always get that.

So, fighting in school, and two kids get into fight in school, the likelihood is someone's going to get arrested, or charged. And when you have that, it's going to have, obviously, a significant impact on a young man or woman's life. And I'm sure a lot of parents would be very concerned, and want to do whatever they can to keep that child as mark-free as possible, as far as the criminal justice system is concerned.

So, you know, battery, in the state of Florida, is defined as an intentional touching or striking of another individual, against that person’s will. Or, an intentional act causing bodily harm to another individual. And that can either be a misdemeanor or a felony - depending upon how the touching happens and the level of harm caused. So, in juvenile cases, it’s same exact statute as it is an adult court. So, you can have an aggravated battery, which could be the use of a deadly weapon to make contact with somebody. Or, the use of a deadly weapon to make contact with somebody that causes serious bodily harm. A felony battery would be causing serious bodily harm, but, without maybe, the use of a deadly weapon and without intent to cause serious bodily harm.

And then you have your misdemeanor batteries. Which could be anything from a push, a punch, a slap -all of those things. And they all have different levels of punishment. But what’s important to note is, that when a juvenile’s accused of a crime, if it’s a felony, he doesn't have that same protection that he may have it was a misdemeanor, as far as juvenile court is concerned. There is a confidentiality that juveniles are afforded in Florida, but that confidentiality doesn't really exist at the same level, if at all, when juveniles are accused of felony cases.

So, it’s very important to make sure, that if that comes up, that you have an attorney who knows what he or she is doing to best protect and insulate your child from having a very public record of a, what I would say, is a momentary lapse in judgment, or blip in his or her life. As a criminal defense lawyer, when you’re representing juveniles, your job is to make sure that one mistake doesn't become a lifetime of grief. And that's kind of what you have to be aware of when one you have a child who gets in trouble. And nowadays, when children get into fights, nowadays, there is a higher likelihood that the police are going to get called. And there’s a higher likelihood that there’s going to be an investigation.

So, what I want to tell my clients, and the family members of my clients, is it's very important to understand that when someone from school wants to send your child to the police officer’s office there, that it's very important that everyone understands that their children still have a right to not incriminate themselves. They still have a right to have an attorney present. They still have a right to ask an attorney questions, and they still have a right to not be part of that interrogation.

The biggest problem I've had, is I’ve represent plenty of juveniles who end up getting requested to go from their classroom to the police officer’s office, and the biggest problem I have is when juveniles walk into that office they believe that they have to go. They believe that they have to go in there because their teacher sent them there. And they believe that, I guess, it’s their job to sit there and answer the questions. And a lot of times that child is doing himself no good. Because he's basically providing the information to the person who’s one day going be on the opposite side of the courtroom trying to prosecute him for a criminal act.

So, my job is to get involved early. My suggestion is if the parents know that something is going on, as far as the criminal act involving juvenile, you want to get involved early so you can prevent mistakes like these. I can do a great job, but it's always a lot harder to go back and try to make up for some mistakes that were made along the way before I got involved.

And in battery cases, the biggest concern, obviously, is whether it's a felony or misdemeanor. And probably the second concern is going to be the cost of restitution, if there is any. Restitution being criminal courts order the defendant in a juvenile case to pay any medical expenses that the victim may have suffered as a result of this criminal act. And a lot of times the juvenile can’t afford that. So, the real person who’s on the hook is mom and dad. And these are important aspects to understand when you're getting involved in a criminal case. Which is why you want to hire a lawyer who knows what he’s doing.

B: All right. Anything else on battery?

M: No, sir.

B: It seems, I agree with you, and when I was in school there was a little bit more discipline involved by the school than getting the police involved immediately. And nowadays, it’s just kind of an immediate.

M: Right.

B: A lot of schools even have police.

M: Sure. Probably every public school in Florida probably has a school resource officer of some type at this stage of the game.

B: Right. So, if you’re charged with that, it's important to contact Tampa juvenile battery defense attorneys like Bauer, Crider and Parry, that are experienced in juvenile matters. All right. You’ve been listening to the floridadefense.com podcast. Join us for our next edition.

Floridadefense.com Podcast - #3FDP - Juvenile Sex Crimes

Brad Post, Host, Create the Movement

Mike Kenny, Attorney, Bauer, Crider and Parry

Brad Post, Host, Create the Movement: All right. Welcome to floridadefense.com podcast. We are speaking to criminal defense attorneys at Bauer, Crider and Parry, Mike Kenny. Mike, how are you doing today?

Mike Kenny, Attorney, Bauer, Crider and Parry: I’m doing very well. How are you doing?

B: Good. We are in the juvenile crimes, and today we’re going to be talking about juvenile sex crimes in Tampa. Previously, in our podcast, we did one on sexting. So, you guys can go back and listen to that. I think it was our number three podcast. But Mike, can you kind of give us an overview of juvenile sex crimes?

M: Well, sure. There's a couple of major concerns in juvenile sex crimes. Sex crimes, in and of themselves, have that very daunting perspective from a person who’s accused. Nobody wants to be accused of something like that. It's kind of one of those things that once that bell is rung, it's really hard to escape that type of accusation in your normal life. Even if you're successful in being acquitted. It has a very significant impact on a person's life.

And the sex crimes in juvenile court are going to be the same types of sex crimes that are prosecuted in adult court. You have crimes like sexual battery. Which is essentially what some people might commonly understand is what's called a rape. You have lewd or lascivious molestation which is the touching of a person, under the age of 16, over their clothing, on their chest, buttocks or crotch. You know? The sexual organ area. You have lewd or lascivious battery which is the penetration of the genital area by another person, and the victim is under the age of 16-years-old.

They’re all the same types of crimes. What's unique is that in juvenile cases age of the offender is very significant. And I can tell you the biggest reason why it’s significant is the registration requirement. A lot of people out there might realize that people who were convicted of sex crimes may have to register as sexual offenders. That's the case in the state of Florida. Anybody who’s convicted of a sex crime has to at least register as a sexual offender.

Well, when you're a juvenile, depending on how old you are, if you're convicted of a sex crime you're going to have to register as a sexual offender. And that's something that your lawyer is going to want to know. Because, he’d better know, I should say, what the age is, and what the age requirements are. And in Florida, the age is 14. A person is accused of committing a crime at the age of 14, and is convicted of committing a sex crime, he or she is going to have to register with the state of Florida as a sexual offender.

That means this 14-year-old, going on 15, 16, is going to register. And it’s going to be public record, this person is convicted of committing a sex offense. Now, just imagine what kind of impact that has on a 14 or 15-year-old. And just imagine how difficult that's going to be for a person of that age to ever start life off on the right foot. Now, if the person was just a few months younger, 13-years old, and is convicted the same exact act, that person is not going to have to register.

So, it's very important for the lawyer fighting this type of sex crime case to know what it is he or she is dealing with. And a lot of times, your battle isn't always with the facts, but your battle is with the state attorney's office trying to get them to maybe agree to negotiate this charge as something that does not require a sex offender registration. There have been plenty cases that I've been involved in, that were juvenile cases, where someone 14 years of age may have been accused of committing a sex act, and I have been able to get the prosecutor either to not to make a filing decision. That means is no charge at all. Or, sometimes agree to amend the charge to something, like I said, would not be necessarily a sex crime, but maybe addresses some elements the prosecutor was concerned about. And you have the juvenile getting whatever attention that he needs as far as counseling is concerned. And you also have a second chance. A second chance meaning this juvenile isn’t going to have the rest of his life marred by this conviction.

The unique thing is, in the state of Florida, the age of the victim is really “the one that drives a bus”. So, if you have two consenting 15-year-olds, theoretically they have both committed a sexual crime if they both engage in either lewd or lascivious molestation or battery, or something of that nature. So, it's not necessarily the consent of a party. And because you really aren’t at liberty to consent at the age of 15 in the state of Florida. So, it’s the age that kind of “drives the bus” in all these crimes.

My experience has been one that would, really, I think the most important thing to do is when you get a call from a family member who says, “Hey, I got a son or daughter is accused of this type a sex offense,” my experience has been that the best the do is, you know, depending on the facts, obviously, talk about getting the child an evaluation. You know? When you hire a lawyer, and a lawyer who knows what he or she’s doing, they’re going to have some experience knowing, you know, who's out there in the community who might be appropriate to handle certain types of cases like this as far as sexual evaluations.

There are plenty of psychologists out there, and psychiatrists out there, who deal in sex-type crimes. And a lot of times, these evaluations can sometimes give a message to the prosecutor that this kid is just a kid, and this criminal act isn’t necessarily an indication of some deep-rooted sexual deviancy. But sometimes, it’s just, you know, a period that this kid is a little confused and doing some exploration. My experience has been that when prosecutors realize that it's more of a confused child, as opposed to somebody who's got a prolific problem, the prosecutor may be more willing to work with you as far as what the outcome of criminal case is.

And it really is something that is so crucial, that when a lawyer’s handling a juvenile accused of a sex crime, that you hire somebody who knows what he's doing. Because every step along the way is going to have an impact on the rest of this child's life.

B: And it’s important again, and we say this always, but early in the process, Because, like you said, it could affect them for the rest of their lives.

M: Absolutely. There are cases that I've had, and not even that long ago, that you usually get a sign pretty quickly that there's a criminal case coming. When I say “you”, the family member. A lot of times the cases that that you get involved in are that there's some conversation between two juveniles, and maybe a parent of one of the juveniles gets wind of it, and they call the police. The police come out, and they start asking questions. It’s usually around that time that mom and dad of the juvenile accused                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 realize that there’s something that’s happening. And at that moment, is probably when you want to get a lawyer involved.

Having a child answer questions from law enforcement, while maybe seems in everybody’s mind is a good idea to be cooperative, sometimes can have a very negative impact on the future of that case and how it’s handled. So, my advice obviously is don't talk to the police until you talk to a lawyer. And that lawyer will be able to give you some advice as far as whether it's a good idea to cooperate, or not. In a lot of cases, if not most cases, it’s probably not a good idea to have a conversation with law enforcement.

But if you get involved early, sometimes, you can address whatever issues might be out there. You can get this sexual evaluation that might be helpful for the prosecutor to make the appropriate assessment. And there have been plenty cases where the prosecution has decided not to file charges based upon those facts and circumstances. And that's huge, because if they don't file charges everything is over. There isn’t any criminal history. There isn’t any registration that this juvenile has to deal with. It’s a lot easier for me to have a conversation about a prosecutor maybe not filing charges, that it is for me to have a conversation after charges are filed and ask the prosecutor to change his or her mind. I mean, I can tell you it's, I know it’s impossible for me to get my wife to change her mind, let alone a prosecutor.

B: Right.

M: You always want start in the beginning before they make that decision.

B: All right. If you’ve been charged with a sex crime, a juvenile sex crime, it is important to hire experienced juvenile sex crime lawyers in Tampa like about Bauer, Crider and Parry. And join us for our next edition of floridadefense.com podcast.

Floridadefense.com Podcast - #2FDP - Juvenile Theft

Brad Post, Host, Create the Movement

Mike Kenny, Attorney, Bauer, Crider and Parry

Brad Post, Host, Create the Movement: Welcome to floridadefense.com podcast. We are speaking to Mike Kenny of Bauer, Crider and Parry. They’re criminal defense lawyers in the Greater Tampa area. And this is their second edition, and we’re talking about juvenile crimes. Now, we’re going be talking to Mike Kenny, Tampa juvenile theft defense attorney. Mike how are you?

Mike Kenny, Attorney, Bauer, Crider and Parry: I'm very well. How are you?

B: Good. Good. You gave us an overview in the previous podcast about juvenile crimes in general. Now we’re going to dig down a little bit more into the theft.

M: Right.

B: Do you see a lot of theft in juvenile crimes?

M: Yeah. That's certainly a common accusation that you see in in juvenile court. There’re some unique things when it comes juvenile crimes that don't necessarily come into play in adult crimes. Obviously, the statutes are the same. You know? A theft is a theft. And it’s punished the same way, as far as it prescribed, the same way as it would be in juvenile court. The theft of a certain amount of money, $300 or more, is a grand theft; anything below that is a is a misdemeanor. So, that's kind of the basic stuff.

But what normally is the issue in a theft, is things like prior history and restitution. A restitution is: if something is stolen, and it's not replaced or returned, there is an amount of money that often the offender would have to pay to make the victim whole again. Well, in juvenile court, that restitution amount can sometimes be placed against the family to pay back. And that's important because in some cases the amount is very expensive. In adult court, you’re on your own. You’re an adult. You’re a grown person. And it’s your responsibly to meet your requirements. But obviously, in juvenile court, a lot of times these kids don't have jobs, and the only way they meet the requirements is through the help and assistance of the family.

So, sometimes the person who’s really on the hook, at least financially, in a lot of respects, could be mom and dad. So, it's important for mom and dad to kind of realize that when we’re talking about these types of crimes. And why it's so important to have somebody get involved early to kind of know what the issues are, and try to remedy whatever can be remedied through this process. So, everyone has a good idea and understanding what's going on, and how to best represent the families of the loved one - this child.

So, the unique thing about juvenile court is there is no prison, and there is no jail. So, the punishments are going to be generally probation, or depending on how significant the crime is, maybe if it’s really significant, and there’s some significant prior history, the juvenile goes to some type of program. A program meaning, he actually leaves his home and gets shipped off somewhere to address the issue. In theft cases, you don't see that happen all the time, but you do see it happen occasionally.

What I have seen happen, in my experience as a juvenile criminal defense lawyer, is a lot of times there's car thefts. You know? Kids who think that they’re going to take a car out for a ride, and a lot of times there’s accidents that happen, and the damage is significant. And that's what kind of has the overriding impact on juvenile cases - is the amount of money that has to be paid back to the victims. And that's been a very heavily litigated issue, a lot of times. Because not everyone always agrees on how much the item is worth, that has been either stolen or destroyed. So, I find in juvenile cases, not only are you arguing whether or not a crime has been committed, but you're also arguing what is the actual damage or the impact of that alleged crime if the juvenile’s convicted.

In juvenile cases, as I was mentioning before, they’re not technically convicted of crimes. They’re adjudicated “delinquent” or not, and sometimes there's a withhold of an adjudication of delinquency, which means the same thing in adult court. It's not a conviction of a crime, but it is sometimes something that can have a serious impact on a juvenile. Any felony, there are certain ways that the public can see a juvenile who's got a felony charge. So, for instance, everyone has this this belief that if you’re a juvenile nobody knows about it. It’s not in the public record. And it goes away when they hit the age of 18. That is not the case in the state of Florida. Although, some misdemeanors, you're never probably going to be able to view it. The Clerk’s website does not post juvenile crimes, but on felony-type cases those arrests can be, it does not have the same protection. There are juveniles who are arrested for felony charges. And I've have seen cases where those juveniles arrested were literally posted in the jail, and when they post in the jail they’re obviously public record. Then you see them on those websites that post people's arrest pictures.

So, it's the false belief that, “It doesn't matter if it’s a juvenile crime” is really misleading, and it's damaging. Because you want to handle things in a juvenile case just as well as if you would be doing an adult case. Quite frankly, I think a juvenile matter can sometimes be more important because this is before person even gets, you know, his foot out the door, as far as starting his life, his or her life. And you want to make sure that he or she has every option available to him. And if somebody does a background check and they find out that this juvenile may have had a felony conviction some time ago, you know, that’s going to be tough for him or her find a job.

B: Now, in the first one you talked about a risk assessment that that the DJJ does. Part of that risk assessment in a theft case would be probably based on what was stolen. Correct? Whether it be a car, or you know, a six-pack of beer.

M: Sure. The actual crime itself is looked at. And then the family environment is looked at. Maybe the educational level that the juvenile has, the intellectual ability that the juvenile has, all of that is looked at, and then viewed to see whether, or not, this person is likely to reoffend. Most the time, a person, whose first foray it is into the juvenile world, is probably not to be found to be a very high risk of reoffending. But there are certain things that can have an impact on whether or not that risk is considered high risk or not. And obviously the higher the risk assessment, the higher the level of supervision the Department of Juvenile Justice is going to request from the court, as far as the sentence is concerned.

That's what it all really boils down to. What it boils down to, is when you represent a juvenile in a theft case, you want to have the Department of Juvenile Justice make the best recommendation possible for your client if you believe it’s a case you’re going have to resolve with a plea. And the reason why you want to do that is because you don't want someone to start off in the juvenile justice system with a very difficult sentence, that he or she may not be able to complete.

So, you want to make sure that the Department of Juvenile Justice gets all the information they need to make a good assessment on your client. To realize that your client is a person that mom and dad say he is. And a lot of times that’s putting the best foot forward. That’s making sure mom and dad are advised of what the procedures are in a juvenile case. That they go to these meetings with the Department Juvenile Justice, and they show they’re willing participants in the program. And a lot of times when the DJJ sees that there’s a family that's motivated, involved to bring a child out of this area where he or she may have made a mistake, a lot of times the assessment is viewed to be lower than some high risk. You know? When you have certain individuals who maybe have no one there to help them through this program, you know, it's a much less optimistic outlook.

B: All right. Anything else you want to cover on theft?

M: No. I think that’ll cover it.

B: All right. You’ve been speaking to Tampa juvenile theft defense attorneys at Bauer, Crider and Parry, and Mike Kenny. And join us for our next edition of floridadefense.com podcast

Floridadefense.com Podcast - #1FDP-Juvenile Crimes

Brad Post, Host, Create the Movement

Mike Kenny, Attorney, Bauer, Crider and Parry

Brad Post, Host, Create the Movement: Welcome floridadefense.com podcast. We are speaking to Tampa juvenile defense lawyer Mike Kenny. Mike, how are you doing?

Mike Kenny, Attorney, Bauer, Crider and Parry: I'm doing very well. How are you doing?

B: Good. Good. We are just going to be talking about juvenile crimes during this series of podcasts. And the first one we’re going to do an overview of the different juvenile crimes that you guys work with.

M: Yes. The juvenile area is kind of a unique area. The state of Florida prosecutes crimes. There’s a statute, every crime, every criminal act that is that is determined to be illegal, there's a specific statute for it. So, everything that is prosecuted in an adult court can get prosecuted in juvenile court, but there's a completely different way that it's handled. They’re called delinquency actions. And if a person is convicted of committing a crime while a juvenile they’re adjudicated delinquent. They're not really convicted of a crime, so to speak, at least technically speaking.

So, there’s a whole different process involved. And it's really important if someone's involved in a juvenile matter that they seek advice and representation from a lawyer who's got some familiarity with that area. Because while a lawyer may know criminal law very well, juvenile court is a completely different arena. There’s certain practices, and obviously some policy, that a lawyer’s going need to know to most effectively represent his or her client.

So, what happens is in a juvenile case a person is either arrested, or not. If they’re arrested they’re taken to the juvenile detention center. And there is an assessment. And an assessment is – a thing called Face Sheet is drawn up, and it basically scores the particular criminal act the juveniles is accused of, as well as any prior history. That Face Sheet is going to come up with a number. And that number will tell the court whether or not this juvenile is supposed to stay in secure detention for a specific period of time - the maximum being 21 days, essentially. Or, home detention, or maybe some other pretrial limit or pretrial requirement.

So, secure detention means that the judge, if the judge looks this person's crime and determines that there is probable cause a crime has been committed, and determines that the person scores for secure detention, that person is going to stay in a juvenile detention center for 21 days. There is no bond. A person can't be bonded out. There is no amount of money that can be paid to secure person’s release until they come back to court.

Now, what a person can do, and what I have done, is lawyers can file a motion with the court, and ask the court to consider releasing the person to home detention from the juvenile detention facility. And at that point in time there could be hearing where the judge is presented with facts that demonstrate that there is no risk of harm to the public if the juvenile is released. And that the juvenile will be assuredly coming back safely to court at his next hearing. And sometimes judges will agree to release, especially if there’s some issues with the factual scenario described. A lot of times things change once police are called, and some new facts come to light. And sometimes that can be helpful in presenting some scenarios to the judge where it might be more appropriate to have a juvenile at home in the care of his parents.

And that's the first detention - secure detention. It’s the highest form detention. And the court will actually charge for any type of detention. He’ll charge the family an amount to keep that person in custody. It’s not huge amount, but the judge will make a determination if the family has an ability to pay, and then assess that person a cost-per-day for that type of detention.

The next level of detention is home detention. And that's where the judge will order that the juvenile stay at home, and have certain conditions like maybe a curfew, follow certain rules at home, and follow certain rules at school. That also will have a certain cost assessed per day. Which is usually somewhere from 1 to 3 dollars a day. To where the court will determine that that person has to pay that amount in order to have that home detention supervised by the Department of Juvenile Justice.

I mentioned the Department of Juvenile Justice. That's why when a person is involved in a juvenile matter, you’re going to want a lawyer that has some familiarity with the area. Because the Department of Juvenile Justice is a very major aspect of juvenile court. The Department of Juvenile Justice has a role to where they advise the court of what an appropriate sentence would be.

When a juvenile is arrested for juvenile crime, or at least charged with a juvenile matter, the Department of Juvenile Justice does an investigation. They meet with the family. They look at the allegations of the crime, and the DJJ makes an assessment of whether, or not, this juvenile is at risk to reoffend. They have categories. They have high risk down to moderate risk, or low to moderate risk, and finally low risk. And the DJJ will make an assessment based upon the level of risk a juvenile has, and that assessment is pretty much what the judge’s limit is. Meaning, the DJJ may make an assessment for probation, a withhold of adjudication, and things like that. And when they make that assessment the judge is pretty much going to have to follow that assessment, unless he or she makes specific findings on the record why the judge would like to depart, or go above, that recommendation from the Department of Juvenile Justice.

It’s been my experience, a lot of times, when a person gets charged with a juvenile matter, when I see what the recommendations is from DJJ, I kind of realize that that is kind of what the cap is going to be, so to speak. Things can get worse, of course, as time goes on, but you at least know in the very beginning that the DJJ’s making a certain recommendation. That’s what the judge is essentially going give. And that's when it becomes crucial for the attorney to know whether or not that's a that's a good way to resolve the case. Or, whether they need to come up some type of maybe plea negotiation with the prosecutor to sometimes avoid certain things that that might have a negative impact in the future on a juvenile’s life.

B: What is that risk assessment based on?

M: They talk about prior history, the home environment, whether not there’s a stable home environment, education - there's a whole bunch of things that go into it.

B: Okay.

M: A lawyer, who’s representing someone on a criminal matter, oftentimes knows before this assessment happens, that a juvenile’s been arrested. So, I get called all the time when a juvenile gets arrested. And one of the first things I’m going to tell the families is, “Listen, you’re going to get a call from the Department of Juvenile Justice. They’re going to want to have a meeting with you and the family.” That’s when you talk to the family, and say, “We want to put our best foot forward in the situation.” And you kind of explain the process to them. And a lot of times you can reach out to whoever's doing the assessment to kind of give them, you know, your family’s side. What may not necessarily be reflected in some paperwork. And that can sometimes have an impact on the assessment. I think the more information that someone from the Department of Juvenile Justice has, the better at making an appropriate recommendation, at least a recommendation that is more appropriate for what the needs of your client might be.

B: So, the DJJ, they come back with the recommended sentence. And have you seen very many times where they go above and beyond? Or, it’s usually less? Or, it just kind of depends?

M: Well, the DJJ makes a recommendation, and then what the sentences is going to be up to the judge. But case precedent is pretty significant.

B: Okay.

M: To suggest that judges really can't go beyond what's recommended, unless there are unique circumstances that the judge can demonstrate on the record why he or she might give someone a harsher penalty. For instance, you know, a person who first gets charged the juvenile crime, most of the time is going be either given something from a very minimum of judicial warning, to maybe some pure supervision probation to get certain requirements performed. It's very rare that they’re going to be sent away to a program. Almost never happens the first time. The judge can't just go from a recommendation of a judicial warning, to sending some juvenile away to a program. Unless, there's a really good record demonstrated why the judge is going to depart from the findings of the Department of Juvenile Justice.

B: So, it's important for a parent, or even a juvenile, to hire a defense attorney like Bauer, Crider and Parry early in the process. Correct?

M: It’s very important. Early in the process is, a lot of things that happen, and it’s kind of hard to go back and fix things. I’ll tell you one of the most important things when we’re talking about early in the process, in juvenile cases there's this rare benefit that juveniles occasionally have. And that's called the Juvenile Arbitration Program. And the Juvenile Arbitration Program, there are certain crimes that aren't significant, to the extent that they may not be felonies, or very serious felonies. They may be some misdemeanors of sorts. And an officer, who say investigates the juvenile, has the discretion to refer the case that he's investigated to the Department of juvenile Justice for the Juvenile Arbitration Program. In that circumstance, the officer does not submit a report or a complaint to the state attorney's office. The state attorney’s office never even sees it. It goes to the Juvenile Arbitration Program. And if the juvenile agrees to comply with the program, he’s given certain requirements to perform. And if he performs them appropriately the case is closed. Essentially it never gets filed, and there's really no criminal history at all, except for maybe some type of investigation. That is a wonderful benefit. Why it's important to get involved early, because, if the officer does not exercise his discretion to do that, and he submits it to the state attorney's office, once the prosecutor files charges, the Juvenile Arbitration Program is no longer available.

So, timing is very important. I have in cases tried to intervene if I see that the prosecutor hasn’t made a filing decision yet, and if I can convey to the prosecutor that, “Hey this is more appropriately handled in the Juvenile Arbitration Program.” Sometimes, the prosecutor will send it back and recommend it going to the Juvenile Arbitration Program, and the case gets dismissed. And the reason why that's so important is because, even though these are juvenile cases, there’s still a history of some type. And you can end up having a case closed out without there being any history at all. The last thing any mom or dad wants is to have their 12, 13, 14-year-old child to start life off with a criminal history before he’s even gotten his foot in the door in the world - as far as finding a job and going to college.

B: Good. We’re going to be breaking it down over the next few podcasts. We’re going to be going over theft, and sex crimes, and battery. So join us for our next edition of floridadefense.com podcast.

Tampa Stolen Car Defense Lawyer

Michael D. Kenny, Attorney

Brad Post: Welcome to floridadefense.com podcast. We are speaking to Tampa stolen car defense lawyer Mike Kenny. Mike how are you?

Michael D. Kenny, Attorney: I’m doing well. How are you?

B: Good. Mike is with the Bauer, Crider, and Parry, law firm out of the greater Tampa area. And we have been in this series talking about a robbery, burglary, and theft, property crimes and we’re going to wrap it up with stolen vehicle, stolen cars.

M: So, in the state of Florida stolen cars is characterized as a grand theft of a motor vehicle. Any time a person takes a car, or endeavors to take a car, he commits a third-degree felony.

B: Doesn't depend on the value of the car at all?

M: No. You can steal a Hyundai, or you can steal a Cadillac, and it’s basically the same punishment. Now, it’s funny that you mentioned that. Because one of the issues that comes up on every criminal charge, a person gets convicted of a crime is ordered to pay any restitution as a result of that that criminal act. So, that maybe the restitution in the theft of Hyundai, and the damage to that vehicle might be not as significant as it is on a more expensive car. So, that something to think about. That might be the difference financially, but other than that, they’re punished the same. So it’s the grand theft of a motor vehicle. As I said before, it’s a third-degree felony which means it has a five-year cap, punishable by up to five years in prison. There is no minimum mandatory prison sentence for it. So, a person essentially can get probation, up to five years in prison.

One unique thing with a car type theft, we were talking about various types of theft charges and robbery charges when you combine a robbery with a car theft you get what we commonly refer to as carjacking. In Florida statute 812.133 there is a carjacking statute. Carjacking is the taking of a motor vehicle, which may be the subject of theft, for instance from someone else, and that a person uses force, violence, or assault, or putting in fear. Almost a same exact reading that the robbery statute has. Most of the time when I’ve handled carjacking cases, both as a prosecutor and otherwise, I usually see some type of weapon is used. And that's significant because if a firearm or other deadly weapons is used, then a carjacking is a felony of the first-degree punishable by imprisonment not exceeding life, meaning punishable by life.

So if a person uses a gun, or if the person uses a knife, or any other object to take a car from another individual, that person has just graduated into a punishable by life felony. A regular carjacking, if there's no weapon used, is still a first-degree felony punishable by up to 30 years in prison. So, carjacking becomes a very serious crime. When we start talking about the Florida criminal punishment code and what things are punishable by, you generally have three degrees of felonies. You have a first-degree, a second-degree, and a third-degree. First-degree is pretty serious. That means it’s the most serious degreed crime punishable by up to 30 years in prison. And carjacking, any type of carjacking is a first-degree felony. Then you can do something to go past that 30 year cap, and make it a life felony, and that's if you are using a firearm. So carjackings are punished very severely. I can remember when I was a prosecutor, years and years and years ago, like I said like robberies are crimes of desperation. Some elderly woman was getting her car in a grocery store to go shopping. Another person got inside the car and began to drive off, but the woman unfortunately wasn't able to get herself unhinged, either her purse, if I can remember correctly, somehow got hooked into the car and this person drove, and ended of dragging her behind the car for some period of time. And I can remember being a prosecutor, the first thing prosecutor says, “Wow! Carjacking.” That is serious, and a prosecutor is going to come at you pretty seriously. Then add to that any damage or harm by another person, and needless to say, this person can face a very significant term of years the Department of Corrections.

It's one of those cases that, if you're involved in something like this, you’re going to want to make sure that you have somebody who knows what he's doing, who knows the differences between the degrees, and what the State has to prove to establish a carjacking, and how this can be resolved most favorably.

B: Could you think of maybe one of the most interesting cases and that you've worked?

M: The most interesting case that was probably theft related. I’ve had plenty of theft-related cases on the defense side, and quite frankly that’s a lot of what I do. Especially when you start to get into some of the white-collar thefts. But, those aren’t always exciting. For some reason as a prosecutor you get to see the most exciting stuff because you see everything. Now, that the difference between a defense lawyer and a prosecutor, is a prosecutor sees every case there is. A defense lawyer sees the cases that come to him. So, the prosecutor sometimes sees the worst of the worst.

I can remember one case, I vividly remember, was basically a bank burglary. Where a person, in the middle of the night, went up to an ATM machine, and the thing about ATM machines is they all have video recording. This person out of his truck and begin to take a sledgehammer and smash the ATM machine and damaged it so much that he began to try to access the inside of the vault of the bank. And he crawled through, his body actually crawled through the ATM machine. And you have to think, when you cut this metal, and rip this metal apart, and he was there for like a half hour. What shocks me is that security did not arrive, you know, at that moment when he was there. But he rips through this metal, gets into the bank, and he’s actually made access inside of the bank. I remember one of the arguments that the defense lawyer was having was, “How can you prove he was inside the bank? Maybe he was inside the ATM machine.” And the unique thing is, this defendant cut himself inside by crawling through this machine, and his blood dripped onto the inside of the floor of the bank. And, of course that blood was tested for DNA, and that DNA matched this individual. But, what I think is the most unique thing about this case, that particular case, besides everything I’ve just said, was I'll never forget, we have these surveillance pictures from the ATM machine, and I printed up these pictures that I plan to use in the trial, and I remember the defense lawyer showing the client the pictures. And the defense lawyer comes back and says, “My client says that’s not him.” It’s one of these cases where the guy looks right at himself and says, “That’s not me.” Which is, I guess, a tactic that some people might want to use. Very interesting.

B: All right. You have been listening to the floridadefense.com podcast. We've been in series on theft crimes. Today, we talked about Tampa stolen cars. And you’ve been speaking to Tampa stolen car defense lawyer Mike Kenny of the Bauer, Crider and Parry law firm. Join us for our next series of podcasts at floridadefense.com

Michael D. Kenny, Attorney

Brad Post: Welcome to the floridadefense.com podcast. We are speaking to Tampa property crime charges defense attorney Mike Kenny. Mike, how are you doing?

Michael D. Kenny, Attorney: I'm doing pretty well. How are you?

B: Good. We’re going to be basically talking about the overall theft today. We’ve been in a series over robbery and burglary. Mike is with the Bauer, Crider, and Parry law firm there in Tampa and the surrounding areas. Mike, let’s talk about property crimes today.

M: Sure. What we've been talking about for a while, a lot of it centers around theft, the taking of an item. Florida has taken any kind of way you can steal something, whether it be embezzlement, whether it be theft by misrepresentation, and they pretty much put all under this one statute and it starts off at 812.014 in Florida statutes and that's called Theft. It's basically designed to say any time a person takes something knowingly, either permanently, or temporarily, commits a theft. The statute specifically says a person commits a theft if he or she knowingly obtains, or uses, or endeavors to obtain, or to use, the property of another, with the intent to either permanently, or temporarily deprive the other person the right to the property, or benefit from that property. So, that part “endeavors to obtain” that’s even an attempt. In Florida, there is no attempted theft. If you attempt to commit a theft you still fall under that theft statute, if they can prove that you endeavored to take something from someone either permanently or temporarily. That’s your basic theft definition. But, theft is, as you might know, it can vary depending upon the item that is taken. So, there is a large variety of ways a person be prosecuted for a theft.

There's two main types of theft. You have your misdemeanor theft which is called petty theft in Florida. Then you have your felony theft which a grand theft in Florida. And that separating line is the minimum to go from a misdemeanor to a felony is $300 or more. So, if a person takes an item that is valued at $300 or more, that person has committed a grand theft which is a third degree felony punishable by up to five years in prison.

B: $300? Wow, okay.

M: That amount can change if the item is taken from a home. If the item is taken from home it is only $100 to be considered a grand theft.

Now, there are two types of misdemeanors. There is a first degree misdemeanor punishable by up to a year in jail. And then there's a second degree misdemeanor punishable by a maximum of 60 days in jail, or six months of probation. And that is value specific. Basically anything under $100 would be a second degree misdemeanor. Or, if a person has a prior theft conviction, no matter what the value is, you would go from a second degree misdemeanor to a first degree misdemeanor. Then, of course, there's a crime called felony petty theft. That means you've been previously convicted of petty theft before, and as a result of that previous conviction you commit another crime of theft (convicted two or more times in the past), and no matter what the value of the item is, it could be a candy bar, if you’ve been convicted two times before, you get tried with potentially a grand theft charge, called felony petty theft. Again, a third degree felony punishable by up to five years in prison.

Obviously, you were talking $300, but there's cases that I’ve handled that we’re talking upwards of hundreds of thousands of dollars. When the amount begins to go up, the degree or level of felony begins to go up. So, the third degree felonies involve when I talked about $300 or more, there’s certain levels. Levels matter in Florida because levels kind of tell you what points your crime gets assigned. And that's probably a little too much detail to get into today, but generally speaking, third degree felony at least, is from $300 or more, up to $10,000 or more, but less than $20,000. That's the whole scheme of third degree thefts, and there is a whole bunch of levels in there that assign more points. Obviously, a $10,000 or more is going to get a higher amount of points assigned to it. And then you go up from there. A $100,000, or more, is where you get to the first degree grand thefts. Those are crimes punishable by up to 30 years in prison. And they carry significant levels assigned to him depending upon the amount. That almost gives you a minimum on the criminal punishing scoresheet where the judge has no discretion if you get convicted of it.

So, those are your basic schemes of theft. Thefts are very value intense. It matters what the amount was, and obviously your history. If you have been convicted of a theft in the past, no matter what the value is, that crime can be enhanced.

One of the unique things I don't think a lot of people know about thefts, is that a conviction of a theft, no matter what the value is, can cause a person to lose his driver's license. That’s obviously a concern. Especially for people who have been convicted on one or more occasions, but the statute specifically says that the judge may revoke a person's driver's license. Statute 812.0155 says that the court may order the suspension of a driver’s license of each person adjudicated guilty of any misdemeanor violation of 812.014 (which is a theft) or 812.015, regardless of the value of the property stolen. The court shall order the suspension a driver’s license of each person adjudicated guilty of any misdemeanor violation who has previously been convicted of such an offense.

So, those are two different statements. The first one says the court may. Meaning the court might say: an appropriate penalty here is a driver's license suspension for a first-time offense. But, the next sentence says the court shall order the suspension. That means the court has no discretion. I can tell you that I’ve handled cases where the court may not have done that, but a lot of times that’s a result of a negotiated disposition perhaps where things occur, or whether the court maybe just simply overlooked it. But this statute says the court does not have the discretion, the court shall order the suspension of a driver’s license suspension for each person adjudicated guilty if they’ve got a previous adjudication.

So, know that these can become, snowball-type offenses. A simple act of stealing something that’s very insignificant. Maybe doing it a couple times. And then you get a driver’s license suspension, and then you find yourself with no way to get around. I have found that people suspended driver's licenses tend to drive anyway. Because they have to. And then you begin just piling up the misdemeanor offenses until things become much more significant. It’s unfortunate.

B: All right. Anything else?

M: We were talking about the levels of theft. There is one avenue of theft that is pretty significant. There is a crime called dealing in stolen property in the state of Florida. Dealing in stolen property, it’s under statute 812.019. It says any person who traffics in, or endeavors to traffic in property, that he or she knows, or should know, was stolen, shall be guilty of a felony of the second degree. What that essentially means is, you know how people buy items occasionally, and they know the deal is just simply too good to be true? Like a television that fell off a truck? That is a potentially dealing stolen property charge. The way I typically see it both as a prosecutor, and as a defense lawyer, a person would take an item that he or she knows to be stolen and pawn it at a pawnshop, and get money for it. That's usually how these dealings in stolen property charges come up. And what the State would have to prove is that that individual knew that this item was in fact stolen. Well, how does the State usually prove that? Well, because usually they know, or they are able to prove that the person who stole the item is the person who’s pawning the item. So, obviously if you stole it, you certainly know that it's a stolen item when you take it to pawn.

I've seen a lot of cases where a person gets arrested for a theft of an item, and then pawning that same item in a pawnshop. The difference is, a dealing on stolen property is a second degree felony punishable by up to 15 years in prison. In the state of Florida, even if you never had a felony conviction before, you don't have any criminal history at all, a second degree felony means the court has to adjudicate a person guilty. Meaning you’re a convicted felon if you're convicted of this particular charge.

A grand theft, for instance, or a misdemeanor theft, say you steal a candy bar from a store, that you've never been in trouble before in the state of Florida, you get the benefit of what is called, on most cases, a withhold of adjudication. That means this court has not given a formal finding of guilt. And you can say you have not been convicted of a crime.

Dealing in stolen property, if you’re a convicted felon, your life substantially changes - very difficult to get a job, you can't vote, can't possess a firearm. And life gets a lot harder, if it wasn't hard before. It is a lot harder and to be a convicted felon. So, what you see a lot is people steal items, and they pawn them, and there's a lot of discussion about maybe allowing a person to plead to an amended charge, or doing something to where they're not a convicted felon, if they’ve really got no prior criminal history.

The state of Florida also offers pretrial intervention which is if the prosecutor handling the case determines that you qualify for a diversion-type program, where you're not in the court system, and the charges later get dismissed. That's a wonderful benefit for folks who never been convicted of crimes before. The problem is that if you get a dealing in stolen property charge, it’s a second degree felony, and that's not eligible for PTI-type charge. Of course, a lawyer can try to work to get that changed for you, but dealing in stolen property changes a lot when we’re talking about a theft charge.

The Florida statute stated that a person cannot be convicted of both a dealing in stolen property and a theft of the same item. So, if a person gets arrested for stealing a necklace, and then pawning it at a pawnshop. And he gets arrested. And he goes to trial on it. A verdict cannot be returned as guilty as the theft and to the dealing in stolen property. You can only be convicted of one. Usually what happens is the prosecutor picks which one to charge the person with. And in most cases they pick the highest charge - the dealing in stolen property. At least that’s been my experience as a prosecutor. So, it's almost like playing chess sometimes. You figure out all these little moves that can happen, that can have an impact on the on the ultimate outcome which is which is a person's life.

B: And that's why you need an experienced Florida defense criminal attorney like you guys. Right?

M: There's no doubt about it. What you don't want when you're when you're talking about your life, when you talk about your future, what you don't want is someone to do some on-the-job training with you. You want somebody who you are confident knows what he or she is doing. There is only really a couple ways to get there, right? Any lawyer can tell you he's great. I can tell you I’m great trial lawyer. I can tell you that, but how do you know I’m telling you the truth?

One of the ways you know that the lawyer knows what he is talking about, is whether or not he is a board-certified criminal trial lawyer. That's the highest recognition of a lawyer’s skill, competence, and ethics in a particular field. It shows that a lawyer has been in the business, and trying criminal cases for a period of time. He’s had a minimum amount of criminal trials tried to verdict, minimum amount of jury trials, had a minimum amount of felony trials, pass a specific rigorous examination designed to show that person can represent himself as an expert in that particular field. So, a lot of people can say something, but very few people, very few lawyers in the state of Florida, quite frankly, have that on have that distinction of being a board-certified criminal trial. My firm is lucky to have me, and another lawyer at my firm, have that designation.

B: Great. Anything else in property crimes?

M: No, sir.

B: All right. We’ve been speaking to Tampa property crime charges defense attorney Mike Kenny of the Bauer, Crider, and Parry law firm. Check them out at floridadefense.com