FloridaDefense.com

Brad Post

Michael D. Kenny, Attorney

Brad Post: All right. Welcome to floridadefense.com podcast. We are speaking to Tampa burglary charges defense lawyer Mike Kenny, at the Bauer, Crider, and Parry, law firm in Tampa, Florida.

Michael D. Kenny, Attorney: Morning.

B: Mike, we’ve been speaking on theft crimes. Last edition we talked about robbery charges. Today, we’re going to be talking about burglary, which are two different areas. Correct?

M: That’s right. It’s kind of funny, people use those terms, you hear people discuss them. I think lay folks might use the term robbery when they say, “My house was robbed.” But there’s specific terms, these are like “terms of art”, in the legal world. A burglary specifically means a theft from a particular location. And there's certain elements that have to be established in order for something to qualify as a burglary. Whereas robbery is like what we talked about before. Robbery means that the way the item was taken. Whether the person used some kind of force to take it, some threat of force, or that the victim at some point became aware during the course of the taking that an item is being stolen from them.

They're all theft related, but a burglary specifically means the entering, or remaining, in a dwelling (which is basically a home), structure (which is something that is not a home, but like a business), or conveyance (which is an automobile or anything that basically transports folks) with the intent to commit an offense therein. Then there is an exception: unless the premises that are at the time open to the public, or the defendant is licensed, or invited to enter. So, that’s your basic burglary: a person enters a home, with the intent to commit a crime inside, and that essentially is a burglary. And it doesn't have to be that they have to steal something. In the vast majority of burglary crimes, that's what happens - a person breaks into a home and steal some items (a television, property, medicine) any one of those items. And depending upon what type of place of that they enter determines the severity of the crime. Generally speaking, a burglary of a conveyance, like a car, is a third degree burglary. A person walking down the street, they’re an opportunist, and they check the door handles to find out what cars will open in the middle of the night. And they find one that opens. Once they reach inside and take whatever items they can get, that’s a burglary of the third degree. That’s a burglary of a conveyance.

A person goes to a home, enters the home, and walks out with a television set. That’s a burglary of the second degree. Punishable by up to 15 years in prison. A person who gets convicted for the first-time burglary, even if they have no prior criminal history, scores on the score sheets that we use in Florida, a minimum of 21 months in the Department of Corrections. So, almost 2 years, even with no prior criminal history, and that doesn't change unless there's some type of reduction to the charge, or some negotiation in a plea disposition. The judge really doesn't have any discretion.

And then there's the third degree burglary that comes up businesses. A person breaks into a store that may be closed at night, and walks out with something. So, that's the basic definition of a burglary: that you enter with the intent to commit an offense therein. So why that matter, the intent to commit an offense therein? That’s pretty important because that's what separates a felony in a lot of cases from a misdemeanor. So say a person, which I’ve seen as a prosecutor, a lot of times you might have some homes that were abandoned for a while, and maybe there's some homeless individuals who ended up spending the night in the home. And after spending the night in the home, maybe they damaged some of the property. Well, in that case, probably most the time the person when they entered the home didn't have an intent to commit an offense therein. Just walking into a home and taking a nap, or going to sleep, is not really anything other than a trespass. Which is a misdemeanor. It doesn't carry any kind of prison sentence whatsoever. If the person enters the home, and end up stealing something, or enters the home and end up causing some type of criminal mischief or damage, courts have decided that you can use that the act that is committed to prove that that was the initial intent upon entering.

There's another way to prove intent, and they say that you don’t have to prove intent to commit offense therein if the person is entering the home surreptitiously (meaning entering the home under cover of darkness, maybe disguised the middle of the night, sneaking in). If that's able to be established you don't have to prove what the person’s intent was. But in all burglary cases, a basic element the prosecutor has to prove to the jury, is that the time of the entry this person intended to commit a crime.

I've have seen plenty cases, both as a prosecutor, as a defense lawyer, where you have individuals who are friends, or associates, or acquaintances who know each other. A person is invited into the home. At some point there's an argument, and maybe a battery happens, somebody hits somebody inside the home, or somebody breaks some items and maybe even walks out with something. None of those instances are burglaries, unless certain elements are established, because the person was invited into the home. So, you don't have the unlawful entry into the home. You have maybe a crime that happened inside, which would be no different really than if it happened outside. A battery, a theft, a criminal mischief. So, what a person can however, a homeowner can remove that person's invitation to enter. That has to be announced, “Hey, you’re no longer welcome here. You need to leave.” Then if a crime is committed, then potentially the state can establish a burglary charge.

But burglaries can be pretty serious because they carry pretty stiff sentences. Like the robbery charges they elevate depending upon how the crime is committed, and whether or not a weapon is used. If, during the course of committing a burglary, a person is armed, well then you end up getting yourself in a situation where you have a life felony. And that is obviously the ultimate sentence you can get, aside from capital punishment of death cases, life imprisonment. So, if a person enters a home with a firearm, or with a deadly weapon like a knife, or a billy club, that is punishable by life. The other thing that makes it punishable by life is if someone breaks into a home, and at some point during that entry to the home there’s someone inside the house, and that person gets hit, or there's a threat to hurt that person that is punished much more severely. And that's punishable by life felony. So, once there's a person inside the home things kind of elevate a little bit especially if there's some threat to be made.

Now, the unique that I have seen, as both a prosecutor and as a defense lawyer, what happens a lot, and what makes what seem like very insignificant crimes in the grand scheme of things very serious are these road rage type cases. These are the cases where somebody determines that somebody's driving wasn't courteous, or wasn't proper. At some point some guy gets out of his car, and walks over to the other person, and maybe punches him while he’s seated inside of his car. Well, that could be two things. That could be a battery – hitting somebody. That could be a trespass and a battery. Meaning once the hand crosses the threshold of the window the car. Or, that could be a punishable by life first degree burglary. Because it's a burglary of a conveyance, it’s the unauthorized entry into the car, and there's an intent to commit a crime inside. And that intent to commit a crime happens to be during the course of committing that, is an assault or battery. There have been a lot of cases with some famous folks who have been involved in situations like that. And it's one of those things that happens to a lot of people. It’s that one moment in life that somebody maybe loses composure. They end up doing what in all cases would be something punishable by probation. They end up committing a crime that's has a very severe punishment - a minimum amount of time in Department of Corrections- up to a maximum of life.

B: You mentioned that there is a difference between home and also property or business.

M: Correct.

B: I was teenager once. I didn't do it, but a lot of people will go into the store, grab a case of beer, and run out. But you said that they had to prove that they had intent to do that I guess beforehand.

M: There's more than that. Because one of the essential parts to prove a burglary is that the person entered unlawfully. So, when you enter a business, obviously everyone is invited to enter a business. So,   that's why when a person walks into a business during regular hours and steals a case of beer – that’s a theft. That’s not a burglary.

B: Okay. That would be under the robbery sudden snatching?

M: It wouldn’t even be under that. It’s a theft because unless the attendant is the person you're stealing from, or the person behind the counter. When you walk in you steal a beer from the cooler and you’re walking out, that person may see it and realize it but you're not taking it from that person.

B: Okay.

M: If you walked in and you took something that was on the attendant, like you picked his pocket, and he turned around and saw you, that might change things. So, the way you transition that, what we're just talking about, from a theft to a burglary, you have to break into the store in the middle of the night when the store’s closed, and not open it to the public.

There is another scenario, where if you're in a place that’s open to the public, but you cross the threshold and go into an area that's closed off. For instance, where you see a door that says “Employees Only”, if you open that door, and the section of the store, the State might be able to establish the elements needed to prove that you entered somewhere unlawfully that you had no invitation to enter. And you took something from there, and that would be a burglary.

B: This isn’t necessarily under burglary, but you know, how you see the people that walk in and they act like they have a gun in their pocket.

M: That’s a robbery.

B: Okay, and they don't necessarily have a gun, but that's with force or threat. Correct?

M: Correct. That would be a second-degree robbery, unless they can prove, here's a unique thing about that, in the end that's going to be a jury question. I can tell you that if a guy walks in, and he has his hand in his pocket of his sweatshirt or something like that, and makes it look as if it's a firearm. If that person gets arrested later, let’s say a day later, the testimony is going to be, the attendant is going to say, “I thought I saw a gun.” And that's going to be the evidence. So, obviously a good defense lawyer is going to hone in on “Can they prove that this person was armed?” Because you've just taken a second degree felony and made it a punishable by life felony. But, the jury’s the one that’s going to decide whether the person was armed or not. Just because they don't find a weapon, doesn't mean a prosecutor might not try to convict that person of an armed robbery.

B: Anything else on burglary charges Mike?

M: That pretty much covers the general course of burglaries. There is this element of a burglary that involves, kind of a robbery. And that’s a home invasion robbery. That's when a person breaks into the house and ends up robbing someone using force or threat of force to take something from that person. That is kind of its own unique crime, and that kind of has the same levels if a person uses a firearm or other deadly weapon he can he commits a felony of the first degree punishable by life. If he commits a home invasion robbery, and carries a weapon, he commits a first-degree felony which is not punishable by life, but punishable by 30 years. With no weapon it’s simply a felony of the first degree, again punishable by 30 years in prison.

B: We've got to two more podcasts that we’re going to be recording here, and that will be over property crimes and stolen cars. This is the Tampa burglary charges defense lawyer Mike Kenny at Bauer, Crider, and Parry. Join us for our next edition of floridadefense.com podcast.

Brad Post

Michael D. Kenny, Attorney

Brad Post: Welcome to the floridadefense.com podcast. We are speaking to Tampa robbery charges defense lawyer Mike Kenny. And Mike we’re going to be going over, in the next series, just going over theft crimes. Correct?

Michael D. Kenny, Attorney: That's right.

B: You want to give us an overview of the theft crimes, and then we’ll dive into robbery.

M Sure. So there is, like you're mentioning it, you call them theft crimes, and these crimes we’re going to talk about all have to do with a taking of something from somebody else. Whether it's a permanent taking, or a temporary taking of some item. And depending on how the taking occurs, or where the taking comes from, kind of changes the severity of the crime and the name the crime.

A robbery, which is what we’re going to talk about today, is essentially taking something from another person, but there's an added set of elements, of using force to take that item, or the threat of force. The robbery statute in the state of Florida's is under statute section 812.13, and defines robbery. It says it means the taking of money or other property, which may be the subject of larceny, which basically means theft, from the person or custody of another, with the intent to either permanently or temporarily deprive the person, or the owner, of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear. That’s the actual definition of robbery.

Robbery has different levels. The most basic type of robbery is a third-degree robbery, and that’s called a robbery by sudden snatching. And the name kind of implies that something is taken quickly from another individual. And the way that a person gets charged with a robbery by sudden snatching, the thing that I always kind of think about is a pickpocket. Pickpockets are kind of notorious. The people who are pickpockets are notorious for being a pretty good about sneaking up beside somebody and taking something. There is no threat of violence. There is no force used. There really is no action on the part of the person, other than taking the item from the person. But a robbery from sudden snatching comes up when in the course of that either by snatching a purse from somebody, or taking a wallet from somebody, the “victim” becomes aware some point during the taking that something's being taken from them.

So, let’s say a guy's a purse snatcher. Say he goes in and grabs the purse off of someone, and begins to walk away. If he doesn't use any force to remove that purse, but maybe unclips the purse, somehow takes it from a person. And that person, at some moment, becomes aware that “Oh, my gosh! Someone’s taken my purse!” At that moment, that transitions from theft to a robbery by sudden snatching. Because there's no violence used. There's no force used. The only thing that happens is the person who’s being victimized here realizes that he or she is the victim of a theft. And the legislature has decided that we’re going to punish those crimes a little more seriously. Because, obviously, once a victim realizes he's being robbed from, everything can potentially escalate to another level. So, that’s a robbery by sudden snatching. It is a third-degree felony. And it’s punishable by a maximum of five years in the Florida Department of Corrections. It doesn't score any type of mandatory prison sentencing, but you can get anywhere from probation to five years.

Now, the next level is the type of robbery that we hear about most often, is what's called a strong-arm robbery. That’s a second-degree felony. And, a strong-arm robbery is your basic definition of a robbery, as how most people commonly understand it. That is, the taking of an item from some person, by using force, or threat of force. This can come up, and the most common situation a person is what we use the term ‘mugged’. A person is confronted by another individual, and that individual demands money. He can either use force, and get into fight, and attack somebody and take that. And that’s a robbery by sudden snatching. Or, he can use a threat of force. Say, “I'm going to harm you if you don't give me this money!” That’s a second-degree felony. And that’s punishable by up to 15 years in prison. You can get anything from probation to 15 years in prison for that.

Then there is a next level from that, which things begin to change dramatically as far as the sentence. And that’s if the person is armed. If, in the course of committing the robbery, the offender carries a firearm, or other deadly weapon, then the robbery is a felony of the first degree, and is punishable by a term of imprisonment not exceeding life. So, that’s a punishable by life crime.

So, if you take that same situation you look at the three different robberies we talked about: a guy runs up and snatches a purse off somebody, and that person doesn't become aware of until he’s running away. That could potentially be a robbery by sudden snatching. Then you graduate another level where a guy walks up to someone, and says, “Hey, listen! Give me your purse, or I’m going to hit you!” And the person gives the purse. That’s a second degree robbery. That’s known as a strong-arm robbery. Then, you get to this next level. A person points a firearm at someone and says, “Give me your purse!” That crime is now punishable by life in prison. The first one punishable by five years. The second one punishable by 15. And, obviously the third one punishable by life in prison. That doesn’t have to be a firearm. It could even be a knife. It could be a weapon of some sort. The firearm is still punishable by life, but it changes because there’s a 10/20/life statute in Florida. Anytime firearm is used in the commission of a felony there is a 10 year minimum mandatory prison sentence.

B: Mike, one thing that I like about talking to you, and we’ve talked about this in the previous podcast, is that you’ve worked on both sides of the courtroom.

M That’s right.

B: The plaintiff side, and also the defense side. Do you see very many of these being repeat offenders, very often? And, is there an additional charge, or imprisonment, on repeat offenders?

M: As a prosecutor, obviously I’ve seen pretty much every type of crime you can imagine. Everything from misdemeanor to a capital murder. But, as far as robberies are concerned, those are usually, in my experience as the prosecutor and as a defense lawyer, those are usually crimes of desperation. And, so you don't typically find that people do them regularly. Unless, we’re talking about a serial bank robber which we may have run into those a couple times. Usually, you don't find the same person having a history of committing robberies. What I can tell you is that there are specific penalties, and Florida's pretty tough for people who get convicted of serious crimes, and then when they come out they’re back in the system again. There's one specific, very simple enhancement called the prison releasee re-offender. And, a person who’s a prison releasee re-offender is anybody who gets sentenced to the Department of Corrections for anything. Say you go to prison for any type of charge whatsoever, but within three years of your release, you are convicted of committing a violent felony, basically a forcible felony, and that’s anything like a robbery, a burglary, an arson, any kind of specific crimes known as forcible felonies. But, these are specifically designated by statute. But, if you commit these violent felonies, or forcible felonies, you get the maximum sentence day for day, and the judge has no discretion. As long as the state has served notice that you qualify for prison releasee reoffender, you get the maximum sentence day for day. So a person who may have got a prison for something in the past, and ends up committing armed robbery, even if the judge wanted to, if you get convicted of an armed robbery, the judge has no discretion, but to give you life.

B: All right. We've got a few other topics that we’re going to discuss. So, join us on our next edition of floridadefense.com podcast. We’ve been speaking to Tampa robbery charges defense attorney Mike Kenny.

Brad Post: All right. Welcome to the floridadefense.com podcast. We are speaking to Bauer, Crider, and Parry, Mike Kenny. He’s a Tampa murder defense attorney, same with all the attorneys there at Bauer, Crider, and Parry. Mike, how are you doing today?

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

B: Good. Good. Well, we’re in the series. Basically we talked about violent crimes. We’ve talked about assault and battery. You mentioned a little bit on homicide in the last one, and we’re going to be talking more about homicide and murder in this one. Correct?

M: That's right.

B: All right. So I’ll turn it over to you.

M: Sure. So, in the state of Florida murder has a couple of different categories. There’s the murder that probably a lot of us are kind of accustomed to. We’ve heard about premeditated murder. That’s first-degree murder. So, in the state of Florida when a human being is killed from a premeditated design to affect the death of that person. What that simply means is the thought and the intent, to bring about somebody else’s death, and the forethought, the thinking about it ahead of time. That’s a first-degree murder. The reason why that's so significant is because the penalties that that charge is punishable by. In the state of Florida, only first-degree murders are punishable by death, by capital punishment. There’s a certain process that has to be gone through in order to in order to get that penalty, because of some cases that have come out in the past several years the juries have to make certain findings. And the juries actually have to make certain recommendations that the courts are, although the final decision makers, and what the penalty is. The jury has to make certain findings on whether certain actions would warrant the death penalty.

The next category is a second-degree murder. And a second-degree murder is what is commonly called the depraved heart murder or depraved mind murder. And that's something that comes up when a person ends up bringing about the death of another person, but they don't have a premeditated design to do that. It’s simply one of those acts where the person hates the other person so much, or wants to harm the other person so much that they don't think about it. There isn’t some preplanning. And usually when you see that come up, it’s usually what comes up when two people meet each other and in a heated moment, get into a fight, and the other person ends up committing some significant injury or harm to the person, and ends up the killing the person. So, it's significantly different, it’s still punishable by life in prison, but a second-degree murder is not punishable by death. And the second-degree murder basically talks about a person who ends up doing an act that’s imminently dangerous to another person, which shows that he got depraved mind, and he’s regardless of human life, without any premeditated design to effect that death of any particular person. So, the idea is that it just shows that this person hates this other individual so much, that he doesn't really care, he just commits this act that brings about somebody’s death.

After that, you get into a category that is known as manslaughter. The manslaughter category is kind of anything else that a person is killed where you didn't plan to kill that person. That's really the layman’s explanation of it.

B: Kind of like a car wreck, or something like?

M: Correct. You can get in a car accident. Obviously, you have to show that there was some culpability, some criminal culpability involved there but a lot of times it’s somebody being careless with a firearm. But the manslaughter definition is defined as the killing of a human being, by the act, procurement or culpable negligence of another, without lawful justification, and in cases in which such killings shall not be excusable homicide, or murder, according to the provisions of this chapter.

Manslaughter is a second-degree felony punishable by a maximum of 15 years in jail. Now, manslaughter changes if a death happens, that’s considered a manslaughter, but a firearm is used. That takes it out of the second-degree felony range, and it’s punishable by up to 30 years in prison. So, it changes things a little bit.

So, that’s the basic categories of homicide. And, all these other little categories that kind of change depending upon other aspects, but those of the basic categories.

Then, as far as first-degree murder, there's a lot of ways you can get first-degree murder without the prosecutor having to show that you had a premeditated design to bring somebody’s death. And that's obviously sometimes difficult. Human beings, it's really had a hard to know it's going on inside somebody's mind. And especially because most people don't talk about what their thinking when their doing it. So, it’s one of those things that you have to look at the actions.

But, in the state of Florida there is a thing called the felony-murder rule. And felony murder is a rule that says if you commit one of these listed felonies, and they’re basically forcible felonies. If you commit one of these listed felonies, and a person dies in the commission of this forcible felony, you are guilty of first-degree murder. And that's punishable by just the way a premeditated murder is, it’s punishable by the death penalty. So, that comes up in the specific scenarios where a person commits a trafficking offense, for instance, trafficking in controlled substance, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, unlawful throwing, placing or discharging of a destructive device or bomb, carjacking, home-invasion robbery, aggravated stalking, murder of another human being, resisting an officer with violence, aggravated fleeing or eluding with serious bodily injury or death, a felony that is an act of terrorism, or in furtherance of an act of terrorism, or which resulted in the unlawful distribution of a controlled substance (e.g. cocaine, opium) that ended up bringing about the death of the other individual. So, all those specific charges I just listed, if a death happens, and the person involved in it is committing one of those acts, and ends up causing the death of another injured individual, that could be charged as a first-degree premeditated murder punishable by the death penalty.

There is another category called second-degree felony murder. Second-degree felony murder is very unique. That comes up when a felony is being committed, just like the list of felonies that we were talking about, and a person dies, but the person who does the killing is not one of the people involved in the commission of the felony murder. So, the best example to come up with is three guys go into to rob a bank, and they go into to rob a bank, and during the commission of the bank robbery the bank guard pulls out a firearm ends up shooting one of the codefendants of the bank robbery. In that instance, the two living codefendants are guilty, if they go to trial, guilty of second-degree felony murder. They didn’t do the shooting, they didn't bring about the death of anybody, but the idea behind it is that they engaged in a clearly imminently dangerous act to the life and liberty of other individuals, and they’re going to be held responsible for the death of anyone involved.

B: Would another example be, Mike that if somebody say hires a hitman, or pays somebody to…

M: No, that’s a little different because if that person hires a hitman, and a hitman does the killing, that means that the people engaged in the common plan brought about the death. So, that will be a first-degree. That would basically be principle first-degree murder. But, the reason why second-degree murder comes up in these situations is because nobody involved did the actual killing. It came from an outside party. A party not involved in the commission of a felony. I think the reason why that came up is because this is a crime punishable by death, and perhaps the legislatures thought that the death penalty is maybe not necessarily appropriate for when somebody else commits an act that ends up causing the death of one of these people involved. Especially, when somebody has no role in bringing about the death, other than committing the felony.

B: You mentioned that the last podcast about the under-21 rule.

M: Yes.

B: That's kind of the same in this as well?

M: You don't get the benefit for capital felonies. You don't get the benefit of a youthful offender designation. So, anybody who commits a first-degree murder does not get that gift. A youthful offender designation is you have to be sentenced as a youthful offender before your 21st birthday. And it caps whatever your sentence is at six years. And can that can be six years of anything. Six years of probation. Six years prison. A combination of probation and prison. But no, it's not that, it's not that easy to avoid the maximum penalties involved in cases like this.

B: All right. Anything else Mike?

M: So, we just talked a little bit about the about the categories of murder. There’s a third degree of murder. And, a third-degree murder only comes up when a death is brought about in the commission of a non-listed felony. That means, I went through a list. Any felony that isn’t on that list does not qualify you for a first-degree murder. But, if you committed some other felony, let’s say grand theft, for instance, which isn’t on that list, and somebody dies in the commission of the grand theft that is a third-degree felony murder. And, that’s considered a felony in the second-degree punishable by a maximum of 15 years in prison.

Now, we talk a little about the penalties are. It's probably good to know a little bit about some defenses available in murder-type cases. Obviously, in murder, one of the things that you have to prove is that somebody’s been killed. But I think what’s important for a defense attorney to know and be able to show is maybe the “why” and “how”. How these things happen. Because sometimes the “why” makes a big difference. In the state of Florida, there is a unique statute called excusable homicide. Excusable homicide has three categories. It says that a homicide is excusable when committed by accident and misfortune, in doing any lawful act, by lawful means with usual ordinary caution. So, that could be anything. If you're just doing what you're supposed be doing, driving your car, and someone ends up getting killed, but you’re following the law and doing what you’re supposed to do, than that would be excusable. There is another section that says or by accident and misfortune, in the heat of passion upon any sudden and sufficient provocation. So, that’s a unique scenario. Some categories that might qualify is people getting into fight. People getting into a fight, and one person just ends up maybe getting the better of the other person who attacked him, who came after him. A lot of times when somebody gets killed a law-enforcement office does an investigation to determine whether or not that death could have been prevented. And maybe they make a determination that this person ended up killing the other individual illegally. There is a specific statute that says if this act was done in the heat of passion upon a sufficient provocation, then that could be considered (a jury has to find that) excusable homicide. For instance, or upon sudden combat, without any dangerous weapon being used, and not done in a cruel and unusual manner. So, those are those are three different ways that you can be found to have committed a murder, actually killed a person, but that act is found to be excusable homicide.

Then there’s the justifiable use of deadly force, which we see coming up in a lot of cases ever since Florida had the “Stand Your Ground” amendment to the statutes. The justifiable use of deadly force statute specifically says a person cannot be charged with a homicide, if they were found to have been defending themselves. And, that falls under the justifiable use of deadly force section. Justifiable use of deadly force says that you're allowed to defend yourself. You're allowed to use deadly force if you feel it is necessary to prevent imminent death to yourself, or serious bodily harm to yourself, or another. And then the “Stand Your Ground” is not all of the justifiable use of deadly force statute. But the stand your ground statute specifically stands for the idea that before you use deadly force you don't have to turn and run. It used to be, a long time ago, that you did. So, in situations where people are killed either through gunshot, or some weapon, and a person claims that he felt he had to do it because he thought he was going to be attacked by the other individual, you find a lot of times the justifiable use of deadly force, and the “Stand Your Ground” defenses raised. And that pretty much covers the substance of the homicide statutes.

B: You’ve been listening to the floridadefense.com podcast we been speaking to Bauer, Crider, and Parry, Tampa murder defense attorneys. We’ve been speaking with Mike Kenny. And join us on our next podcast.

Brad Post: Welcome to the floridadefense.com podcast. We are speaking to St. Petersburg drive-by shootings attorneys Bauer, Crider, and Parry. It's also Pinellas County correct? St. Petersburg, Mike?

Michael D. Kenny, Attorney: That's right.

B: We’re speaking to attorney Mike Kenny, and Mike let’s talk a little bit about that drive-by shootings today.

M: Sure. Drive-by shootings is the way most people understand, it's a crime where a person fires a gun while they’re in a vehicle, and potentially driving by a location. So, Florida has designed a couple of statutes that specifically try to address that scenario. There isn’t a drive-by shooting crime per se. Shooting at somebody is a crime. Killing somebody is a crime. Those kind of take care of themselves. But they do have some shootings, some crimes that involve shooting from a car, or into a car. So, one of that one of the crimes that Florida has is discharging, or shooting from a vehicle, discharging a firearm from a vehicle. So, if you’re inside a car and you shoot, you shoot from a car, there is a specific statute that addresses that. And, that’s a felony. That's actually because there's a discharge of a firearm. Carries with it a pretty significant minimum mandatory prison sentence.

And then there's shooting into an occupied vehicle which can happen whether you're standing on the street and a car drives by and you shoot into it, or you're in a car and you shoot into another car you can imagine that scenario. So, that's designed to address people who are being victimized while they’re inside of a car. And there’s a scenario where you can be in one car, and shoot into another car, and you get charged with two counts - shooting from and shooting into. A lot of times you see people, I've had cases where a person is charged with discharging a firearm while shooting from a vehicle and into a house. Because shooting into an occupied dwelling is another category of crime. So, the way the legislature has done it, they’ve kind of gotten specific scenarios all seem to address that issue that apparently was a concern about people basically exploiting opportunities to shoot people by surprise without them without being aware.

So, the penalties are significant, like I said, because they involve Florida's 10/20 life statute. And the 10/20 life statute is specifically going to give you a 20 year minimum mandatory prison sentence if it’s been found that you have discharged a firearm. Mere possession of the firearm is a 10 year minimum mandatory sentence. And, obviously if somebody gets hit, and seriously injured or killed, a person can get 25 years to life, and often times it's, it's a life for these types of cases. And the unique thing about Florida is that they kind of have catchall crimes to begin with. Any one of the things that we just described could easily fit the category of an aggravated assault with a firearm, or an aggravated battery with a firearm. But a discharging from an occupied vehicle is just more, has a little bit more to it, a little bit more teeth to the charge, versus an aggravated assault with a firearm without discharging it. While it’s significant, it is a three year minimum mandatory prison sentence where you get 20 years on one of these shooting from an occupied dwelling type cases. Like I said, I've been involved in plenty of these cases, and they obviously come up in situations where a lot of times there is witness issues, and not everybody knows even who it was or where it was. So, a lot times piecing these things together by the by the physical evidence and the forensic evidence. What I have found to be an issue a lot of times is these crimes often come in when they’re involving occupied vehicles by more than one person. And, the idea of getting law enforcement to be able to say who the exact shooter was is isn’t always that easy. They try to do an investigation and piece it together, and some things that they use, gunpowder residue test. Obviously witness statements and witness testimony. But these things happen so fast sometimes that it's not always that easy to have reliable witness information. I’ve been involved in plenty of these types of cases, both as a prosecutor and a defense lawyer. And it's very important, probably from the law enforcement perspective, to kind of figure out who is involved very early on, and try to have contact because as time goes on things get much harder for them to piece together a case. Especially if the evidence isn’t always going to be there anymore as far as the firearm, or the gunpowder residue, and gunshot residue tests that they perform in people's hands to show whether not they’ve discharged a firearm. But, that's as far as drive-by shootings in particular, those categories are really the categories of crimes that the specific types of crimes that kind of encompass that drive-by shooting scenario. That that pretty much wraps it up.

B: All right. You’ve been listening to the floridadefense.com podcast. You can check them out online: Bauer, Crider, and Parry. We been speaking to Mike Kenny.

Brad Post: Alright. Welcome to the Florida Defense podcast, floridadefense.com podcast. We are speaking to Clearwater assault and battery defense lawyer with Bauer, Crider and Parry, Mike Kenny. And Mike we talked a little bit about assault and battery in the podcast before this one, but we’re also going to be talking a little bit more about violent crimes in this one. Correct?

Michael D. Kenny, Attorney: Sure, yes.

B: So, I’m just going to turn it over to you.

M: All right, so we talked before the previous podcast about assault and battery charges, and how these things get enhanced. You know, violent crimes in general, the way they get treated Florida – they’re very specific, every type of action probably has a specific criminal act outline. For instance, people have mentioned the term “drive-by shooting”, and there is actually a specific charge called shooting from an occupied vehicle. And there is actually another charge shooting into an occupied vehicle. And those could be two separate counts. So, you can imagine a situation we have a person driving his car, shooting out of his car, into another car. While that’s one act, they could be two separate charges there. There is obviously also shooting into house. There’s shooting into an occupied dwelling. And, those are pretty serious charges.

Any kind of shooting charge carries with it a very significant penalty. Because in the state of Florida there has been a very strong act to swiftly and significantly punish firearms-type charges. In Florida we have a 10/20/life statute. And kind of what the 10/20/life statue stands for - there are these three aspects: 10 years is supposed to be if you possess a gun during the commission of a felony you get 10 year minimum mandatory prison sentence, 20 years is the part where that 10 years goes up to 20 if you discharge a firearm, and then life, life means if you kill a person or cause serious bodily injury in the state of Florida (if you use a firearm to do that) you get 25 years to life. So, any time there is a discharge of a firearm case, there is a 20, potential 20 year minimum mandatory sentence you’re looking at. Now, obviously depending upon if anyone was hit, and will it gets a lot more significant than that.

Firearms charges cover the whole gamut. You have firearms charges included in battery cases, in assault cases. The unique thing is when a person commits an aggravated assault with a firearm. Instead of getting that ten year minimum mandatory prison sentence, it’s only three years. That’s just specifically because of the way the statue was written saying aggravated assault with a firearm that’s what makes it the charge a felony in and of itself, so we’re not going to say you carried a firearm during the commission of this felony. But everything else, a burglary, a person commits an armed burglary, for instance, that’s something actually punishable by life. But, if a person commits certain charges with a firearm, you significantly impact the minimum amount of time that these people are facing. And, in the state of Florida, it's been, according to the statistics that the numbers of been very on helpful in combating things like recidivism. I think some of the problem of having these minimum mandatory sentences as you take away a little bit of discretion, or a lot of discretion from the judge. A lot of times you have some folks who maybe find themselves for the first time involved in a bad situation, and unfortunately there is a firearm involved, and they automatically graduate “big boy school” and they're looking at spending decades in prison for one event in their life that probably they if they could do everything to take it back they would. And there are probably some cases where you know where discretion would help. And I think sometimes that that the judges should be given that ability to look at who the individual is, and see where they’re going, and see if there’s any help in reform.

The unique thing we have is the youthful offender statute when it comes to these violent crime type cases. In any case, even though there is a minimum mandatory prison sentences, a person who is under the age of 21 – that’s the one situation where the judge is allowed to depart from what the mandatory minimum sentences might be. And give these folks almost like a second shot.

So violent crimes covers a whole host of things obviously including homicide. There are certain changes to the homicide statute that impact who the victim might be. There are certain enhancements depending on who the victim might be in a homicide. And there’s a whole lot different ways that homicides get punished in the state of Florida. And, that’s something we’re going to talk about during our next podcast.

B: All right. Anything else and Mike?

M: No sir.

B: All right. You’ve been listening to the Florida Defense podcast. We’ve been speaking to Clearwater assault and battery defense lawyer Mike Kenny and at the Bauer, Crider and Parry, law firm. And check us out on the next podcast.

Brad Post: Alright. Welcome to the floridadefense.com podcast. We are speaking to Pasco County (Florida) violent crimes lawyer Mike Kenny. Mike, how are you doing today?

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

B: Doing well. Doing well. Well, we’re going to be talking basically about violent crimes today. And, so, I’m going to turn it over to you.

M: Okay. Alright. Well violent crimes is kind of a big category. It covers a lot of things. We could start talking a little bit about assault charges and battery charges. In the state of Florida, they are separate charges actually. Assault is one act, and battery is another act. In Florida, an assault is essentially a threat. It’s a threat where a person makes a threat to make contact or do some type of physical harm to another individual, and has the apparent ability to carry out that threat. Usually that comes up where a person maybe raises a fist in an argument with somebody else, and looks like he’s about to take a swing or punch somebody. That’s your classic assault. In the state of Florida, a misdemeanor assault like this is a second-degree misdemeanor. That means it is punishable by a maximum of 60 days in jail, or six months of probation. Now, what bumps that assault up is depending upon who the person that’s threatened is. So, if you do that same act, and you raise your fist like you’re about the strike somebody, but the other person happens to be a law enforcement officer, that’s assault on law-enforcement officer. So it takes it from a second-degree misdemeanor to a first-degree misdemeanor. Still a misdemeanor - punishable by up to a year in jail as opposed to 60 days initially for your probation.

Battery is a first-degree misdemeanor. And battery is what most people may understand what that is already. That’s just the physical touching or the contact another person that’s unwarranted, done without that person’s consent. So it’s either offensive touching, or causing an injury to another person. And those are first-degree misdemeanor punishable up to a year in jail. That’s your basic section of misdemeanor crimes, violent crimes of assault and battery.

Then there’s all these little changes that can happen that can significantly enhance the crimes for misdemeanors to felonies. So, for instance, I talked about law-enforcement officer, and an assault on a law-enforcement officer being a first-degree misdemeanor. If a person commits an aggravated assault on law-enforcement officer, and that’s a situation where a person uses a weapon to threaten a law-enforcement officer, and a weapon could be anything that is capable of inflicting death or serious bodily harm. So, that could be a firearm. That could be a knife. That could be a baseball bat. Shoot that could be a car. Any one of those things. Then you’re talking about a felony with a three-year minimum mandatory prison sentence. So, there’s taking the fist and raising up like your going to strike the officer, and then threatening to do some harm is punished significantly more, and there’s actually a minimum amount of time a person will have to be in prison. It’s a third-degree felony punishable up to five years maximum. And finally, an aggravated battery on law-enforcement officer, that’s something that gives you a five-year minimum mandatory prison sentence. That’s a second degree felony. That’s where there is an actual battery, like we talked about before, but this time there’s a deadly weapon used, or weapon that can cause death or serious bodily harm. A regular battery of a law-enforcement officer is still felony, it’s a third-degree felony punishable by up to five years in jail.

B: You mentioned that they don’t even have to this actually strike them it’s more for

M: Not for the assault. Not for the assault. Any time you hear term battery in the state of Florida that means contact has been made.

B: Okay.

M: When you hear the term assault that means it was either an attempted battery, or it was simply a threat. Assault means no physical contact has been made.

B: Does that include verbal threat?

M: Generally not.

B: Okay.

M: Generally, saying, “I’m going to kick your butt,” to somebody else in a conversation does not rise to the level of a crime.

B: Okay.

M: Thankfully. We’ve all been to football games, and baseball games, and any other event

B: Right.

M: Some people have not had the full judgement that they should normally have.

B: Right.

M: And, we don’t want to be arresting people for just running their mouth.

B: Yes.

M: But, there are some threats that you can make, that there are specific crimes for. Like threats online. Making threating phone calls. The words, in and of themselves, aren’t crimes, but it depends on how they are used. And there are certain categories, and boxes that you check off, that maybe it rises to the level of a different crime.

B: Okay.

M: Once you start talking about felony assaults, and felony batteries, the general area that were talking about is whether or not there was a weapon used. Or, whether or not, there was a serious bodily injury. So, an aggravated assault on a person is the same thing as a misdemeanor assault, a threat to carry out some type of harm to the other person with the apparent ability to do so. But it’s done while the person, making the threat, has a weapon. This comes up a lot with a firearm. In the state of Florida, pointing a firearm, at another individual, clearly would qualify as an aggravated assault. And, because it’s a firearm charge it has a specific minimum mandatory prison sentence which is three years in the Department of Corrections. Otherwise, if it’s not a firearm, if it’s a knife, a bat, some large object capable of causing harm, then there is no minimum mandatory prison sentence. But, it is punishable by up to five years in prison.

The unique scenario is when we start talking about felony batteries and aggravated batteries. So, those are when you actually make contact and hurt the person. And there’s two ways to have an aggravated battery. You can have an aggravated battery by taking a weapon, and hitting somebody with it. Or, you can have an aggravated battery by hitting somebody and intentionally causing serious bodily harm. For instance, a punch to somebody’s face can break an orbital bone in the face, maybe knock out a tooth. Those might qualify as aggravated batteries. Even if no weapon was used. Even if somebody just used their fists.

But to be convicted of an aggravated battery which, at a minimum, is 21 months in prison on Florida scoresheet. The way to get aggravated, without a deadly weapon, you have to prove that the person had the intent to cause that serious bodily harm. As a defense attorney I’d say a lot of the cases we get people arrested for aggravated battery when the have those lucky punch cases. Where there’s one punch, the guy ends up knocking a guy out and he falls to the ground and maybe fractures something. A lot of time they get arrested for an aggravated battery, but it’s very difficult I think for the state to prove what was the intent of the person striking the other individual. It’s hard to say that you hit somebody one time, and you intended to cause bone breakage. It’s one of those situations where a lot of times it’s a fluke. It happens. Maybe it’s just the right hit at the right moment and other things happen. So, what typically happens in those situations the more appropriate charge is if you hit somebody, and you don’t plan to cause serious bodily injury, but serious bodily injury does occur like you break an orbital bone, break a nose, knock out a tooth, that is what would be better classified as a felony battery. So, felony battery involves a serious bodily injury just like an aggravated battery, but the intent is different. That the person doing the hitting did not necessarily intend to cause that serious bodily injury, but he still responsible. And, it’s not a significant of a crime. There isn’t a minimum mandatory prison sentence typically associated with the felony battery charge. The other aspect of aggravated battery comes up where you can cause no harm to the other person all. Just the fact that you use a deadly weapon, and you hit that person with it. Maybe you hit the person with it and doesn’t cause any harm. That’s still aggravated battery punished the same way as if you caused serious bodily injury, and a person with no prior criminal history can get 21 months in Department of Corrections on Florida’s sentencing guidelines scoresheet. So, it’s a pretty significant type of charge to get involved with. It’s a second-degree felony punishable by up to 15 years in prison. That’s why a lot of work in the beginning is to determine whether, was there a weapon used, and if there wasn’t a weapon used, maybe this is something that we can show the prosecutor, show the court that the intent wasn’t there.

Then, obviously you move out of those areas, and there’s differences of who the victim is. For instance, you have an aggravated battery on a law-enforcement officer, is the same thing as an aggravated battery only the fact he’s a law-enforcement officer, carries with it a five year minimum mandatory prison sentence. So, it starts to get very serious when specific classes of persons are affected. There’s charges that specifically protect children from these types of crimes. There are charges that specifically protect elder individuals, that is that people over the age of 65. For instance, battery on an elderly individual is a felony. It’s a third-degree felony, but certainly can carry with it a significant prison sentence up to five years. And then there’s battery on a pregnant female. That’s where an individual is pregnant, and any kind of touching that would qualify as a battery, even misdemeanor, a push, would be a felony in that instance, and it’s a second-degree felony (Level 7) punishable by up to 21 months. I’m sorry, a minimum of 21 months in prison.

B: Mike, you mind if I ask a question real quick?

M: Yeah, sure.

B: We’re talking specifically on this, just Pascoe County violent crimes. But, I know you guys cover the greater Tampa area. And you might not have these numbers, but do you get, you know a lot of these cases, violent crimes cases, from Pascoe County or Pinellas County or do you notice a different area? And I’m not trying to say what part of Tampa’s bad.

M: I can tell you we get calls from all over the Tampa Bay area. I can’t say necessarily there’s one, you know, violent type of crime that I get from one area more than another.

B: Okay.

M: I think it’s pretty evenly divided. A lot of times is, the ideas is, there is sometimes a very aggressive push on enforcement to charge with the highest crime possible.

B: Okay.

M: It’s kind of the way that their trained. And, it’s the way their taught. You look for the highest crime you can arrest a person for. So, I think you kind of see that happen in a lot of areas. There are people who get arrested for a second-degree felony, are facing prison for getting an argument with maybe their wife who happened that just find out she’s pregnant, and there’s a push. And don’t get me wrong, it’s completely inappropriate, unwarranted, but to go to prison for a push is something that might shock the conscience of a lot of folks out there.

B: Okay.

M: So, that pretty much wraps up the battery and the assault charges. Obviously, there’s a lot of ways you can find a specific category. But, that’s the general understanding for what Florida punishes for violent crimes like assault and battery.

B: And that’s what we’re going to be talking about on the next podcast – assault and battery. We’ll go a little bit more in depth on that. You’ve been listing to the floridadefense.com podcast, and we been speaking to Pascoe County violent crimes lawyer Mike Kenny. And, join us on our next podcast.

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Firearms Defense Lawyer Mike Kenny. Mike, how are you today?

Mike Kenny: I’m doing great. How are you?

BP: Doing well. Let’s kind of get into—A concealed firearm: that’s kind of a big thing going on.

MK: Sure. You know, the firearms law in the state of Florida is—I don’t want to say simple—but there aren’t a lot of restrictions on ownership of a firearm. There’s nothing really illegal about owning a firearm. You don’t need a special permit to own one. You don’t need a special permit to keep one in your house. Obviously you have to keep one safely in your home, especially if there are children in your home, but there’s nothing to where there’s a registry of people in Florida or you have to apply to have permission like you might in some other states. The unique thing about firearms is it comes up in two different areas where it becomes a crime. If it’s used in a criminal manner (if you’re shooting at somebody or committing a robbery), that brings you into a whole different scenario into Florida’s 10-20-Life law where possession of a firearm gives you a minimum mandatory of at least 10 years in prison if you’re using it to commit an enumerated felony. But what you normally see in firearms cases is just the possession of it in and of itself. A person who possesses a firearm, if they have it concealed on their person or so near their person that it’s considered on their person, that’s carrying it concealed. That’s illegal in the state of Florida unless you have a special permit that allows you to carry a concealed firearm. The alternative to that is, you also can’t just go walking around with a gun in your hand in the state of Florida. For instance, you can’t walk into a store and have a gun sitting on your hip in an open holster. That’s open carry, and that’s illegal. Walking around with a firearm in your hand is called an improper exhibition of a firearm potentially, depending on how it’s being held or displayed. So you can’t really have it open and you can’t have it concealed unless you have a license. Some people find themselves getting into trouble. The best way to go is—for anybody who is going to own a firearm, it makes a lot of sense to get a concealed weapons permit, and they require you to take certain firearms safety courses and go through specific background checks. (You obviously can’t be a convicted felon.) And that would allow you to carry a firearm in places you’re allowed to carry it. There are certain places you may not be allowed like an airport or bar, obvious places of nuisance. The unique thing about the carry and conceal firearm statute is there’s been a lot of cases addressing the two things the state needs to prove to convict someone of carrying a concealed firearm. For instance, I had a trial just last week where a person was charged with carrying a concealed firearm, and that case was unique. In that case, my client was pulled over, subject to a complaint about firearms being used in a potential crime. Officers came out, and officers, when they do a stop in a situation where they believe a person in the vehicle might be armed, they do what’s called a felony traffic stop. A felony traffic stop is when the officers come out with their guns already drawn, and it’s not like they turn their lights on and walk up to your window nicely and say, “Hey, I want to talk to you.” They’re concerned and want to make sure they get home to their families. So they come out with their guns drawn, and they have all of their lights on. They have special take down lights. They have special spotlights. They want to see every aspect of the car. And at the trial, the testimony was the officer saw my client, who was seated in the back of the vehicle, holding a firearm essentially over his shoulder, and kind of turned a little bit and throw his firearm over his shoulder into the back compartment of the car. And it went basically from the passenger component of the car into the trunk. They said they ordered my client out of the car, they secured him, they spoke with him, and my client maybe made some incriminating statements, according to the officers. And then the officers searched the trunk and found a gun sitting right there in the open compartment. Seeing this, the officers charged my client with carrying a concealed firearm. So instantly, when I was hired for that case, a couple of questions went through my mind. Question one was, I’m not really sure how concealed that is. Question two was, if it is concealed, is that firearm considered carried? Is that on the person or so near to the person that it’s readily accessible and considered on the person? Those are the two things the prosecutor has to establish. During the testimony at the trial, surprisingly, no one knew how the firearm got from the passenger part of the vehicle into the trunk. And we all probably can surmise how it happened—these backseats have these fold-back seats, and you can reach right into the trunk if you wanted to. For whatever reason, and it kind of surprised me in the middle of the trial, but there were really no photographs of what these seats looked like, just testimony of my client dropping something over his shoulder. There were no measurements performed when the firearm was seized. No pictures taken. So all you have was the officer’s word saying the guy dropped something over his shoulder, and then I found, when I cross-examined them, the officers could not clearly tell us where it was found in the trunk. So I told the judge, “That raises some issues.” The issue that it raises is, if they were going to consider that a concealed firearm, how could they show that my client could easily reach that? I don’t even know how it got back there. I don’t know if it was a big hole, a little hole. I don’t know if he could fit his body in there. In the end, the court agreed—although I think the court reluctantly agreed. I think the court was concerned about the facts in that case. The court had to abide by the law, and with the law as it is, the state wasn’t able to prove that my client could have accessed that firearm because there was no testimony that showed that. So the bottom line is, I think my client especially walked into that case thinking things weren’t going to be particularly great for him. Don’t ever do your own lawyering. Don’t ever do your own thinking. I mean, you can have some common sense and kind of see a picture on the wall and realize, “This isn’t very good.” But don’t ever wave the white flag before you hire a lawyer. Hire a lawyer. Have somebody do the work for you. Have somebody do the research because amazing things can happen when somebody sits down and dedicates themselves to defending you. In that set of circumstances, things worked out really well.

BP: All right. Anything else on firearms?

MK: No.

BP: All right. You’ve been listening to the FloridaDefense.com Podcast with the Bauer, Crider, and Parry Law Firm, and we’ve been speaking to Tampa Firearms Defense Attorney Mike Kenny. 

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Drug Crimes Attorney Mike Kenny. Mike, how are you doing today?

Mike Kenny: I’m doing well. How are you doing?

BP: Good. Well, we’ve been in this series on drug crimes. We’ve talked about cocaine. We’ve talked about marijuana. We’ve talked about the overview. Today we’re going to be talking about prescription pills, and just kind of the other drugs.

MK: Right, and this is probably the category that has, in the past five years, risen steadily. I think it’s because of the ease of access—anybody could open up their bathroom cabinet or their aunt’s bathroom cabinet, and they’re probably going to find these controlled substances. As a result, the ease of access has made it a bigger problem for law enforcement and definitely a bigger problem for young adults. These controlled substances are pills that you might get a prescription for from your doctor such as oxycodone, hydrocodone—even morphine, which is a lot higher-powered of a substance—those items are punishable if you do not have a prescription. It’s really called “possession of a controlled substance without a prescription”. And those crimes are punished the same way as possession of cocaine, for instance. They’re third-degree felonies, and they’re punishable by up to five years in prison. And weight is significant here, because if a person has a significant weight of that controlled substance, simple possession can bring you into a trafficking amount. I mentioned in a podcast some time ago about a person who might be an addict—an addict who has maybe taken a jar of pills of oxycodone when they were visiting a friend’s house or a relative’s house—and they have this legally obtained jar of pills that is no longer in the house where it should be. They can be charged—even though they’re addicted and plan on using it themselves—with a trafficking amount of possession and sent to prison for a minimum of three years. The trafficking statute, the way it’s laid out, addresses all of these types of controlled substances. It’s any person who possesses a minimum of four grams of more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroine, is guilty of trafficking. Four grams or more or any mixture containing any such substance but less than 30 grams commits a felony of the first degree, punishable by three years with the Department of Corrections and a $50,000 fine. The next level up from that, 14 grams or more but less than 28 grams, is a 15-year mandatory prison sentence and a $100,000 fine. I will tell you, it’s not impossible to get 14 grams in one or two pill bottles. For 28 grams or more but less than 30 kilograms is a 25-year minimum mandatory prison sentence and a $500,000 fine.

BP: And those are all listed at the 893.135 trafficking statute?

MK: Right. And that last level is 30 kilograms or more, and that’s the same thing as cocaine—it’s a life felony.

BP: Wow. And what are some of the other drugs that you see?

MK: Some other things that come up, which I’ve found to be very common, are Xanax—the brand name for alprazolam, which is the generic term for it—that’s a third-degree felony to possess. That’s not punished as a trafficking amount. It doesn’t matter the weight in that scenario; you can’t have a trafficking amount of Xanax. But it’s something that, the more it is (the more you have), the prosecutor might be thinking you’re not using it for private consumption and might want to consider a sentence that might be appropriate based on the weight. So I don’t want to say the weight is completely irrelevant, but it doesn’t bring you into a trafficking amount. What else you see now is—and we’ve all probably heard about it; you’ve seen it on TV shows—is meth. Crystal meth is something that is very cheap to acquire, cheap to produce, and you find it in a lot of communities where these people are making these items. It’s a very dangerous drug. You see the effect that it’s having on these individuals, and it’s punished very severely. Just the chemicals—just having a combination of chemicals, maybe like Sudafed and a couple of different items together—can get you a charge of a felony, which is called “possession of listed chemicals” because there’s been an all-out desire to eradicate that drug and make it very difficult to create. That’s why, when anyone goes into the store and buys these Sudafeds and stuff like that, they basically have to sign their name on a list, and that list is actually put into a database where, if law enforcement was to view later who made certain purchases at certain times, they can do that because it’s a problem they’re trying to get their head around.

BP: Anything else, Mike, on these other types of drugs?

MK: No.

BP: All right. You’ve been listening to the FloridaDefense.com Podcast, and this is Mike Kenny, Tampa Drug Crimes Attorney with the Bauer, Crider, and Parry Law Firm.  You can find out more on their website atFloridaDefense.com.

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Cocaine Defense Lawyer Mike Kenny with the Bauer, Crider, and Parry Law Firm. How are you doing, Mike?

Mike Kenny: I’m doing well. How are you?

BP: Well let’s kind of talk about today. We’ve talked about an overview of the three different categories of drug crimes. We’ve talked about marijuana. Now let’s talk about cocaine. Crack cocaine. Is it kind of the same? Different categories?

MK: Yes, we do have different categories. The first thing we should point out is that cocaine or crack, as a lot of people might refer to it—that hard, rock-like substance that has a cocaine mixture in there—both are treated exactly the same. There isn’t a harsher punishment for one versus the other.

BP: Whether it’s a powder or a rock, I guess?

MK: Exactly. Whether it’s in powder or rock form, what’s punished in the state of Florida is the ingredient that makes it illegal, and it doesn’t matter because with the way the statute is written, it’s “any mixture thereof.” So it can be a mixture of anything, and if it has cocaine in it, then you have yourself in a situation where you’ve got a possession of a controlled substance. It kind of reminds me—talking about that “any mixture thereof”—when I was a prosecutor several years ago, I had a very unique trial where an individual literally had a bag of baby powder. It was 99.9% baby powder, and for whatever reason—and you kind of figure out why these folks do what they do—but for whatever reason, there was just a pinch of cocaine added to that powder. And I don’t know if the pinch was added so it would look like it for testing, but it was going to be sold to basically trick someone who was buying it. But whatever the reason, there was just this very small amount, and I remember when we sent that item away for testing, they said they had to take several testings that came out powder, powder, powder, powder, and there was just one small—I mean not even maybe one-tenth of a gram that they were able to find—and it tested positive for cocaine. Now, I can tell you that, if you wanted to be an absolute literalist to the statute, because there was one-tenth of a gram of cocaine in there “and any mixture thereof”, and then you weigh the entire amount—and the entire amount could be 30 grams or 40 grams—that person was facing a trafficking charge of cocaine for having one-tenth of a gram, a very decimally small amount of cocaine mixed in this bag. I will say the prosecutor has discretion, and in that particular set of circumstances, we decided not to prosecute that person with a trafficking charge. But it’s a dangerous scenario when people start thinking all they have to be concerned about is the amount of the drug. But it’s not the amount of the drug, it’s whatever it’s mixed with to make it the product that is that’s penalized, and that’s what’s weighed—the total product.

BP: So is there the misdemeanor, the felony, the trafficking with cocaine?

MK: Well, with cocaine, there is no misdemeanor possession charge. Now, there is the paraphernalia used to hold the cocaine, to store the cocaine, and to maybe ingest the cocaine—like a pipe that might be used to smoke the cocaine or a crack rock—that would be a misdemeanor. But the actual substance itself is always punished as a third-degree felony, punishable by up to five years in the Department of Corrections. And then, there’s the other level, which is the trafficking level. Like I mentioned in a podcast or two ago, trafficking can be accomplished in a couple of different ways. It can be accomplished by transporting drugs into the state. It can be constituted by selling, so if you sell a certain amount and it’s over a certain weight. Or it can be just simple possession, and when I say simple possession, I mean just being in possession of an item that weighs a certain amount is enough to basically get yourself situated with a trafficking charge. So the minimum amount you have to have to qualify for a trafficking charge is 28 grams. With 28 grams or more, but less than 200 grams—with that comes a three-year minimum mandatory prison sentence if convicted and a $50,000 fine. The next level up from that is 200 grams, so if a person has 200 grams or more but less than 400 grams, that carries with it a seven-year minimum mandatory prison sentence and a $100,000 fine. The next category up from that is 400 grams or more but less than 150 kilograms, and that carries with it a minimum mandatory sentence of 15 years in prison and a $250,000 fine. And the last one is 150 kilograms or more commits a first-degree felony of trafficking cocaine, and you get life imprisonment. There is nothing less that you can get. I mean, less than 150 kilograms is a significant amount, but it’s also life imprisonment just for possessing that amount.

BP: Okay. Anything else on cocaine?

MK: Just the fact that cocaine is a different drug than marijuana. The one unique thing about it is—the state of Florida, in several cases, has determined that with certain drugs, you can prove they are the drugs that they are just by observation, just by looking at it, maybe by the odor that it has. And marijuana is a drug that qualifies for that. An officer can go into court and basically say, “Based on my training and experience, I can tell you that this green, leafy substance with this distinct green odor is marijuana.” An officer can do that—they don’t have to send it away for testing. In a possession of cocaine case, although officers do have significant training and experience, cases still suggest that a person needs to actually test it (and that means chemically test it). What you have happen a lot in the field is a person gets stopped by law enforcement for whatever reason, the officer encounters the individual, and through the investigation, the officer determines that the person is in possession of cocaine. What the officer will do before he actually arrests the person is he will test it. And he will test it with what’s called a field presumptive kit. A field presumptive kit isn’t really something that would be admissible in court necessarily, because the officer is given this little vial, he throws some of the substance in the vial, shakes it, and it turns a certain color. The officer probably couldn’t even tell you how it works, or how it’s performed, or how reliable it is. So that is the presumptive kit—that’s enough for them to arrest you. That’s enough for them to write an affidavit of probable cause for a judge to review and determine that you should be held in custody or at least get a bond. But what has to happen in a trial, if you’re going to be convicted, is they have to send that off to some agency for testing—they need an actual chemist—and the reason why that’s significant is, what happens over time in a lot of circumstances is that certain things, like crack cocaine, for instance—because it’s a water-based mixture, a lot of times that will dry up. And I can tell you again when I was a prosecutor many years ago, I had a trafficking trial with an individual, and in the case, the person disappeared at one period of time, and he was arrested a long time later, so when he finally went to trial, it was a long time after these drugs were sitting in the evidence locker. And over that period of time, when we had it weighed, the drugs ended up weighing about 27 point something grams, and the number I needed was 28 grams. So it just goes to show that, if it sits in a locker and the water evaporates and then you just have the powder left over, then it ends up weighing less. In that particular case, we had evidence that it was weighed at the sheriff’s office prior to being sent off for testing, so we still were able to meet our requirements. But it’s unique that these things have to be tested—they have to be sent off for weighing and testing, and it’s different than marijuana. A lot of times I don’t make the decision when I’m representing a client until I see those results from law enforcement because there have been cases when people will have what they believe is cocaine and it turns out to be something else, or some other controlled substance. Or it turns out the weight isn’t exactly what people think it is.

BP: All right. Anything else, Mike?

MK: That’s it.

BP: All right. You’ve been listening to the FloridaDefense.com Podcast. We’ve been speaking to Attorney Mike Kenny of the Bauer, Crider, and Parry Law Firm. 

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Marijuana Defense Lawyer from Bauer, Crider, and Parry, Mike Kenny. Mike, how are you doing today?

Mike Kenny: I’m doing well. How are you?

BP: Good. Well in the last podcast, we kind of just had a quick one, a drug crimes overview. You talked about the three different categories of crimes, misdemeanor, felony, and trafficking. Today we’re going to be talking about a pretty interesting subject. Marijuana. Cannabis. Pot. Weed. Let’s start there.

MK: All right. Yeah, I think marijuana is an interesting subject. Probably when I was going to law school, I never would have envisioned such a movement that I have seen where different states have actually been successful in having recreational pot use or marijuana use. It’s interesting to me. In this state, there have been attempts to do that, but still, it’s illegal to possess marijuana. It’s illegal to possess marijuana for any use—whether it be medical use or for private use. The possession of marijuana comes in three groupings. The first grouping is simple possession of marijuana, where you’re in possession of marijuana, or a pot plant, or some item that is under a certain weight.

BP: Does that also include certain paraphernalia? A pipe with residue on it, or…

MK: It could. It really depends on the facts and the prosecuting authority. But possession of paraphernalia is technically not a drug in itself. Paraphernalia means a drug used to carry, store, conceal, ingest, or inhale. For instance, a marijuana pipe would be used to inhale or ingest marijuana. So that in and of itself is a misdemeanor of the first degree, and that’s punishable the same way but does not carry with it a driver’s license suspension. So that’s pretty significant with people who are concerned, especially people who may have some significant prior criminal history. Now, if there’s enough residue inside of that pipe—and I’ve seen it happen before, where people are charged with both possession of marijuana and paraphernalia based upon a little oil that’s found, or maybe a little bit of burnt residue that’s found inside the pipe. The prosecuting authority can certainly try to convict somebody based on that if they have it, but the idea is having enough to test it and having enough to show that it actually is something that can be identified as marijuana.

BP: So you said there are three categories, possession…

MK: The next one is felony possession. Felony possession is the possession of any amount of marijuana that’s greater than 20 grams. That would be a more significant amount—it’s a third-degree felony punishable by up to five years in prison for a first-time offense. It’s usually not that significant of a crime; it’s usually a probationary type of sentence. Finally, there’s the trafficking amount of marijuana. Marijuana is unique. It requires a very large amount to be considered trafficking by possession. But the trafficking statute says that any person who is in excess of 25 pounds of cannabis or 300 or more pounds of cannabis plants commits a felony in the first degree known as trafficking. In excess of 25 pounds but less than 2,000 pounds—that’s punishable by three years in the Department of Corrections and a $25,000 fine. If it’s 2,000 pounds but less than 10,000 pounds, or if it’s 2,000 or more cannabis plants, it’s a seven-year minimum mandatory prison sentence and $50,000 fine. And the last category, if it’s 100,000 pounds or more, or is 10,000 or more cannabis plants, the person will be sentenced to a mandatory minimum imprisonment of 15 years in the Department of Corrections and a $200,000 fine. And those are minimum mandatory prison sentences. What that means is that the person serves 100% of that sentence. They don’t get out any earlier than 15 years, for instance, if they are sentenced to that. And the judge has no discretion. If a person is convicted of that charge, the judge must sentence that person subject to a very few exceptions.

BP: Okay. And I’m not trying to encourage our audience by this question, but so you’re saying that if you have 24 pounds—

MK: Then it wouldn’t be trafficking. And that seems like a lot. I mean, marijuana is one of those few drugs that you need a much larger quantity to get into that ultra significant penalty phase, that trafficking amount. For instance, a drug like oxycodone is 4 grams. So we’re talking 4 grams opposed to 28 pounds. A lot of that, I think, is based in large part because, with the marijuana plant in general, there’s a lot of plant materials to that—that thing can get heavy pretty quickly. So that might be part of the reason why there needs to be such a significant amount.

BP: And so, just like in the last podcast we talked about, whether you get a felony or a trafficking, even just possession, the point would be to hire a criminal defense attorney early, right?

MK: Sure, because there are a lot of reasons why you wouldn’t want any kind of conviction, whether it be a misdemeanor or a felony. One of the things that happens is, for every one of these, you’re going to get a driver’s license suspension. And in the state of Florida, we don’t have the same public transportation that they would have in the state of New York. It’s very difficult to maintain a living without the ability to drive to work, drive to school, drive to the store to get what you need like food. So it’s particularly burdensome. Also, to prove possession is unique. A lot of times these possession cases come up involving more than one person, meaning usually it’s not just one person who is stopped. Usually it’s in a group of folks. And a lot of legal issues are raised, because it’s called constructive possession. This comes up when there’s more than one person who could have exercised dominion or control over the substance. It’s very difficult, in my mind, for the prosecutor to prove constructive possession if they don’t have the necessary statements from witnesses or if they don’t have the necessary statements from your client. Some people might think that all is lost and want to just go in and give up, but there’s a lot more to it than just being caught in a car with drugs.

BP: Right. Well, Mike, anything else on marijuana?

MK: No, sir.

BP: All right. You’ve been listening to the FloridaDefense.com Podcast with Attorney Mike Kenny of the Bauer, Crider, and Parry Law Firm.