Can My Juvenile Record Make Me Ineligible to Seal or Expunge?

The attorneys at the Sammis Law Firm help people throughout Florida seal or expunge a criminal history record. We charge a flat fee of $950 which also includes everything need to seal or expunge the record. For your convenience, we also contact data mining companies to demand they take down your mug shot from sites such as mugshots[dot com] or arrests[dot com].

When people call us, they often ask: "Will my juvenile record make me ineligible?" 

The current answer is that if you were "adjudicated guilty" of any of the following offenses in juvenile court, then you are not eligible for the court-ordered process to seal or expunge any other record as an adult. Those offenses include:
  • Assault, as defined in s. 784.011; 
  • Battery, as defined in s. 784.03;
  • Carrying a concealed weapon, as defined in s. 790.01(1);
  • Unlawful use of destructive devices or bombs, as defined in s. 790.1615(1);
  • Neglect of a child, as defined in s. 827.03(1)(e);
  • Assault or battery on a law enforcement officer, a firefighter, or other specified officers, as defined in s. 784.07(2)(a) and (b);
  • Open carrying of a weapon, as defined in s. 790.053;
  • Exposure of sexual organs, as defined in s. 800.03;
  • Unlawful possession of a firearm, as defined in s. 790.22(5);
  • Petit theft, as defined in s. 812.014(3);
  • Cruelty to animals, as defined in s. 828.12(1);
  • Arson, as defined in s. 806.031(1); and 
  • Unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property, as provided in s. 790.115.
Currently, if you were adjudicated guilty of one of these offenses, even a misdemeanor, then you become forever ineligible for the once in a lifetime court-ordered process to seal or expunge any other record. 

A bill pending in the Florida legislature would change that, making an exception to this rule if the adjudication of delinquency was for a misdemeanor and more than 10 years had passed.

The Impact of Florida's 2018 CS/SB 298


Florida law currently prohibits a person who has ever been adjudicated delinquent of a misdemeanor specified in s. 943.051(3)(b), F.S., from being eligible to have any criminal history record sealed or expunged. A bill pending in the Florida legislature, CS/SB 298, would allow a person who has not been adjudicated delinquent of a misdemeanor specified in s. 943.051(3)(b), F.S., in the past 10 years to be eligible to seek a sealing or expunction of a criminal history record.

Florida law currently requires a person to have a criminal history record sealed for a minimum of 10 years before seeking an expunction if their criminal history record resulted in a  judgment of acquittal or a not guilty verdict at trial. CS/SB 298, if passed, would also enable a person to seek the immediate expunction of a criminal history record associated with a judgment of acquittal or a not guilty verdict.

If it passed, the proposed legislation would become effective on July 1, 2018, and would increase the number of people eligible to have a record sealed or expunged. 

Additional Resources

2018 CS/SB 298: Criminal History Records - Read more about changes to Florida's rules to seal or expunge a criminal history record and pending legislation to revise the facts that must be attested to by a petitioner in a statement submitted in support of the expunction of a criminal history record so that an adjudication of delinquency for a specified misdemeanor that is more than 10 years old would not make a person ineligible to seal or expunge another record. The bill is currently pending in the Judiciary. 

Finding Tampa Attorneys to Seal or Expunge a Criminal Record


If you want to seal or expunge a criminal record through the court ordered process described in Section 943.0582, F.S., then give us a call to determine if you might be eligible. 

We also represent clients in other types of processes to seal or expunge a criminal record including the administrative expunction explained in Section 943.0585, or the juvenile diversion expunction described in Section 943.0585(5).

Call 813-250-0500 to discuss your case.

Attorneys for Backpage Prostitution String Operations in Polk County, FL

If you were arrested for soliciting a prostitute for a lewd act in a Polk County sting operation, then contact an experienced criminal defense attorney at the Sammis Law Firm. We represent clients in the criminal courtrooms in Bartow, FL, by fighting the case aggressively at every stage.

Most of these sting operations involve posting or responding to ads on the "dating" section of the Backpage website found at backpage.com. Although many consider "sex workers" to be engaged in the oldest profession, in Polk County, crimes related to prostitution are aggressively investigated and prosecuted.

In these cases, our criminal defense attorneys are experienced in asserting the "entrapment defense." The entrapment defense can be asserted anytime law enforcement officers created the crime and entrapped a person to participate when that person was not otherwise predisposed to engage in any prostitution-related crime.

The best results in these cases are getting the charges dropped completely by the prosecutor with the State Attorney's Office in Polk County or dismissed by the judge. If the charges are dropped, dismissed, or reduced to a less serious offense such as "disorderly conduct," then you may qualify to seal or expunge any record of the arrest or prosecution.

Call us at 813-250-0500 for a free and confidential consultation to discuss your case with one of the experienced criminal defense attorneys at the Sammis Law Firm. We fight charges related to "soliciting another to commit prostitution" in the criminal courtrooms in County Court in Bartow, FL.

Recent Prostitution and Solicitation Sting Operation in Polk County, FL

After a week-long undercover investigation, law enforcement officers in Polk County arrested 277 people for soliciting another person to commit prosecution, offering to commit prosecution, or deriving proceeds from prostitution.

The most recent sting operation was named "Operation No Trick, No Treats" which occurred on or around October 10, 2017, at an "undisclosed" house in Davenport, FL.

The agencies that participated in the prosecution sting ring include:
  • the Polk County Sheriff’s Office; 
  • the Haines City Police Department;
  • the Lakeland Police Department; 
  • the Lake Wales Police Department; and 
  • the Winter Haven Police Department. 
 The most common offenses in these sting operations include:
  • offer to commit prostitution
  • soliciting a prostitute to commit a lewd act
  • use of a 2 way device in a felony
  • remaining in structure for prostitution
  • driving proceeds from prostitution
These sting operations are supposed to target "human trafficking" but really just create and manufacture crime by encouraging men and women to engage in prosecution through very aggressive online solicitations.

The police reports in these cases often say:

"Polk County Sheriff's Office Vice Unit began conducting a human trafficking undercover operation by targeting subjects soliciting prostitution online within Polk County, FL. This operation is intended to locate and rescue victims being trafficked or sexually exploited by unknown suspects."

If that were really the goal, the officers could do a much better job by investigating actual crimes. People that are engaged in human trafficking are almost NEVER caught in these elaborate string operations in Polk County. If you think otherwise, give me one example in the comments below.

This stated purpose announced by the sheriff's office in Polk County is NOT true because the "uncover" officers don't pose as victims of sexual exploitation at all. Instead, the undercover officers pose as independent, financially secure, sophisticated, educated, attractive, and responsible adults who enjoy an unexpected sexual encounter with a new acquaintance.

The fact that money exchanges hand is often the last part of the trap and not the real reason the person accused agreed to meet the undercover detective.

Types of Criminal Charges Related to Prostitution Crimes


When prosecution crimes were investigated during this recent Backpage Escort sting operation in Polk County, the following crimes were charged:
  • 51 arrests for advertising as prostitutes online; 
  • 209 arrests for soliciting undercover detectives who posted ads posing as prostitutes; and
  • 17 arrests for deriving proceeds from prostitution or other offenses. 
During the sting operation in Polk County, undercover officers posed as prostitutes or those soliciting prostitutes by posting fictitious ads online or by creating profiles on several different social media platforms, websites, and mobile phone applications.

In other cases, the undercover detectives responded to profiles and online ads posted by prostitutes. Many of the detectives were targeting transgender people, especially since Backpage now has a "transgender" dating section.

Although Polk County is famous for these operations, many of the people arrested live outside of Polk County or the state of Florida including people vacationing in Orlando.

The Setup of the Sting Operation


In the typical set up for these recent sting operations in Polk County, very attractive undercover detectives posing as a (male or female) (gay or straight) (cisgender or transgender) "john" or "escort" working in an undercover capacity. Traditionally, the female detectives would post fictitious ads online posing as escorts and the male detectives would reply to the escort ads on Backpage. Although recent sting operations have focused more on gay, bi-sexual and transgender ads.

Because EVERYONE living in Polk County knows about these string operations, the detectives will often target people living in other parts of the state or people visiting the Orlando area on vacation. As a result, only unsophisticated participants are caught in the trap and actual sex workers and experienced johns known better.

The suspect in these cases will be arrested inside the residence in Polk County, FL, where audio and video recording devices were used to record parts of the investigation. Each suspect is supposed to be read their rights per a Miranda card before a recorded interview is conducted.

In this most recent sting operation for prostitution in Davenport, FL, a total of 31 law enforcement officers and one analyst were involved in the set up including:
  • one captain
  • one lieutenant
  • four sergeants
  • twenty-four detectives 
  • one civilian analyst
This list of participants including two technical services detectives, nine detectives handling and processing evidence and charging documents, four detectives handling take down arrests, two detective working as scribes, four detectives on perimeter surveillance, three detectives handling vehicle impounds, one detective deputy transporting prisoners, one detention deputy sheriff handling suspect book in and one undercover detective for each case.

Entrapment in Soliciting a Prostitute for a Lewd Act


When an unsuspecting "john" replies to a fictitious escort ad, the undercover officers AGGRESSIVELY seeks out a meeting at a nice house in Davenport, FL. The undercover officers will flirt, laugh, engage in small talk, tell stories, and do anything possible to convince the "john" to meet, sometimes during hours of phone calls or text messaging. 

Although the "john" might not be predisposed to actual meet, the Polk County Sheriff's Office has become very good at setting this trap and entrapping the most unsophisticated participants. If you ask me, these are not men who usually engage in such behavior because if they had any experience with an actual prostitute, they would immediately know that these scenarios are too good to be true and an obvious undercover police sting operation. 

As a result of this wide net being cast, only those people unfamiliar with the sex industry are unlucky enough to participate in meeting the pretty lady that is suddenly showing them a lot of attention.

When the "john" arrives at the string operation in Davenport, FL, he will enter the house. Once inside the residence, the undercover officer will attempt to entrap the suspect into soliciting an engagement in protected sexual intercourse or oral sex in exchange for a specific amount of money.

The police report ALWAYS says that there was an agreement for a specific sex act in exchange for a specific amount of money, but when listening to the tapes over the years, we often discover that no real agreement was ever reached.

Then detectives will enter the room and place the "john" under arrest and bring him to second location where he is interrogated. In this room, the pre-Miranda conversations are rarely recorded. Over the years, we have seen many cases in which the detectives go out of their way to make promises and threats before turning on the recorder.

Post-Miranda, many of these suspects break down and confesses under the pressure. Officers are specifically looking for any type of statements that would interfere with an entrapment defense such as "I've done this before" or "I've thought about doing this before."

Although rarely are those statements enough to defeat an entrapment defense that on this occasion the suspect would not have engaged in the activity "but for" the extra efforts of the undercover detective and team of law enforcement officers that manufacture the crime.

Instead of being issued a notice to appear in court so that the suspect can be released at the scene, the Polk County Sheriff's Office always makes a formal arrest and books the suspect into the jail with a mug shot. The Polk County Sheriff's Office then goes out of its way to drum up as much media attention as possible in these cases.

The news media participates in the shenanigans by pretending that these sting operations are for some purpose other than getting publicity for the Polk County Sheriff, embarrassing the accused, and collecting the $5,000 fine, exaggerated costs of investigation, costs of prosecution, court costs, impound fees (because they always impound the suspect's vehicle) and other related expenses. 

Definitions Related to Prostitution

Prostitution is defined as the practice or occupation of engaging in sexual activity with someone for payment. One of the preferred terms for sex workers is "call girl" which often refers to a female prostitute who accepts appointments and has a higher income clientele. Other terms considered derogatory in the sex industry include the word "streetwalker," "hooker," "woman of the night," "working girl," "tart," or "harlot."

More and more, sex workers are advertising online on social media sights such as Facebook or online billboards such as Backpage. Many of these sex workers are moving online entirely by using video and other electronic communications although those crimes are rarely prosecuted.

Should prostitution be a crime? We believe the answer is "no." Law enforcement officers have better ways to spend their resources. Unfortunately, in Polk County, the sheriff's officer creates these sting operations which often entrap people into committing crimes that they are not predisposed to commit.

Additional Resources on Prostitution


Recent Press Release for Prostitution Sting Operation in Polk County, FL - Read the press release dated October 17, 2017, from the Polk Sheriff’s Office News Release on “Operation No Tricks, No Treats” Sheriff's Office New Release. The sting operation involving posting and responding to ads on the Backpage website found at backpage.com.

This blog article was last updated on Monday, November 13, 2017.

Is ATF Coming for your Guns because of a Prohibited Firearm Transactions?

If you acquired or attempted to acquire a firearm from a federally licensed firearm dealer (FFL) and failed the background check, then you might receive a call from an ATF agent after the non approval or conditional non approval. An experienced criminal defense attorney can help you deal with resolving the issue as quickly as possible, including filing an appeal of the non-approval under the procedures outlined in Chapter 11C-8, Florida Administrative Code.

Call an attorney before making any statement to a ATF agent that can be used against you.

The ATF Agent might also serve you with a letter entitled “Warning Notice of Prohibited Firearm Transaction” from the ATF Resident Agent in Charge. The letter is an indication that the AFT believes you were prohibited from receiving or possessing a firearm because of an indictment, a pending felony charge, a conviction for a felony, an allegation that you are a current user of an illegal narcotic (drug), or other firearm disabilities under Federal Law.

The number of warning notices have increased dramatically as the ATF is becoming more aggressive in investigating violations of federal firearm laws, particularly after a person that attempts to purchase a firearm from a FFL and doesn’t pass the background check after a conditional non approval.

In fact, recent federal grants are funding new "comprehensive gun crime reduction strategies" using ATF agents. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is a government agency responsible for enforcing the firearm laws at the federal level.

If you live in the Tampa Bay area, then an attorney at Sammis Law Firm can help you understand the law so that you avoid any prohibited acts, understand your rights to contest a wrongful action or illegal seizure and forfeiture of your firearms.

Nothing in this article should be considered to be legal advice. If you are suspected of a prohibited firearm transaction, you need a criminal defense attorney to represent you so that you understand whether an illegal transaction actually occurred, how to avoid a further accusation by coming into compliance with the law, or what to do if you have been falsely accused.

Call us at 813-250-0500 to schedule a consultation in our office in Tampa, FL, to discuss your case.

What is a Federally Prohibited Firearm Transaction?

The "Warning Notice of Prohibited Firearm Transaction" official notifies you that, because of the felony indictment, conviction, or other prohibiting federal firearm disability, Federal law prohibits you from receiving or possessing a firearm or ammunition and from providing false information to an FFL during the acquisition or attempted acquisition of a firearm or ammunition.

For example, 18 U.S.C. § 922[g](1)- (9) prohibits certain individuals from possessing firearms, ammunition, or explosives. The penalty for violating this federal law is ten years imprisonment and/or a $250,000 fine.

Specifically, 18 U.S.C. § 922(g)(1-9) prohibits the following from possessing, shipping/ transporting, or receiving any firearm or ammunition:
  1. a person convicted of a crime punishable by imprisonment exceeding one year (a felony offense);
  2. a person who is a fugitive from justice (this could include having an outstanding arrest warrant or a capias after a failure to appear in court);
  3. a person who is an unlawful user of or who is addicted to a controlled substance (this can sometimes be demonstrated by a recent conviction or withhold of adjudication for a drug charge including misdemeanor possession of marijuana or even obtaining a medical marijuana card if the person also makes statements admitting the narcotics use);
  4. a person who has been adjudicated as a mental defective or who has been admitted to a mental institution;
  5. an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
  6. a person who has been discharged from the Armed Forces under dishonorable conditions;
  7. a person who, having been a citizen of the United States, renounces his citizenship;
  8. a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child (sometimes called an injunction for protection);
  9. a person who has been convicted of any misdemeanor crime of domestic violence (sometimes even if the court did not officially designate the offense as “domestic violence”).

What is Possession of a Firearm?

Under federal law, the possession of a firearm may be either actual or constructive. The term "actual possession" includes holding the firearm in your hand or a bag that you are carrying.

The term "constructive possession" can cover a far broader range of activity. The courts have defined constructive possession to include: knowingly [having] the power and intention at a given time of exercising dominion and control over the object or over the area in which the object is located....” See U.S. v Booth, 111 F.3d 2 (1st Cir. September 1997).

In other words, if you know the firearm is present in your residence, vehicle, or business, and if it can be shown that you have the ability to access and exercise control over that firearm personally or through another individual, then you might be considered to have constructive possession of the firearm.

Under these conditions, you could be subjected to new criminal charges and/or revocation of supervision. For these reasons, all firearms are to be removed from your residence during the term of supervision.

Prohibitions Against Making False Statements to a FFL

Title 18, Chapter 44 U.S.C., Section 922(a)(6) and 924(a)(1)(A), provide that it is unlawful for any person to make a false statement to a federally licensed firearm dealer (FFL), when acquiring or attempting to acquire a firearm or ammunition.

For example, it is unlawful to misrepresent on a Firearms Transaction Record Part 1 - Over-the-Counter, ATF  Form 4473, that you are not prohibited from receiving or possessing a firearm by answering “No” throughout Question 11, or making any other false representations.

For example, one question provides:

Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance? Warning: The use or possession of marijuana remains unlawful under Federal law regardless of whether it has been legalized or decriminalized for medicinal or recreational purposes in the state where you reside. 
If federal law enforcement priorities shift in the future, the ATF could start taking the firearms of anyone who has recently admitted to using marijuana or obtains a medical marijuana card, even if the use of cannabis is legal under state law.

Penalties for a Prohibited Firearm Transaction

Under Title 18, Chapter 44 U.S.C. Sections 922(g), 922(n), 922(a)(1)(A), 924(a)(2), any person under a Federal firearms disability who acquires a firearm or ammunition or who makes a false statement or misrepresentation to a FFL when acquiring a firearm or ammunition may be imprisoned for up to ten (10) years and/or fined up to $250,000.

Consequences of Getting the Warning Notice

If you receive this prohibited firearm transaction notice, then the ATF is taking the position that you are prohibited from receiving or possessing a firearm or ammunition because of your prior conviction or other Federal firearms disability.

Options to Resolve the Prohibited Firearm Transaction
If you are currently in possession of a firearm and/or ammunition that you receive while under Federal firearms disability, then you have three options:

  1. Hire an attorney who can tell the ATF agent where the firearms are located, don’t go to the location until the firearms have been seized by the ATF (or do anything else to “possess” the firearms until they have been seized) and then contest the forfeiture of the firearm and/or ammunition;
  2. Voluntarily provide the firearm and/or ammunition to the ATF or other law enforcement agency and agree not to contest the forfeiture of the firearm and/or ammunition;
  3. Transfer the firearm and/or ammunition, preferably through an FFL, to a third party non-prohibited resident of your State who does not reside in your hushed and who is not employed by you; or
  4. Sell the firearm and/or ammunition to a FFL, or arrange for an FFL to sell the firearm and/or ammunition on your behalf.
The Warning Notice does not, in any way, prohibit a federal prosecutor from prosecuting you for any criminal offense related to the unlawful firearm transaction.

Additionally, after you receive the Warning Notice, a future violation is more likely to be investigated by the ATF and prosecuted by a prosecutor with the United States Attorney’s Office.

Additional Resources

Tampa Field Division of the ATF - Visit the website of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Tampa Field Division to learn more about its criminal enforcement efforts. Find information on news from the Tampa Field Division News and Reward Notices.


Appealing the FFL Non Approval under Chapter 11C-8, Florida Administrative Code - Learn more about the procedures to appeal the FFL non approval after an attempt to purchase a firearm.

Attorney to Contest the ATF Seizure or Forfeiture of the Firearm

If an ATF agent recently seized your firearms because of an allegation that you were involved in a prohibited firearm transaction in the Tampa Bay area, then contact an experienced criminal defense attorney at the Sammis Law Firm.

We help individuals who have been wrongfully targeted by the ATF. Call 813-250-0500 to schedule an office consultation to discuss your case.

If the Officer Can't Remember the Case At All - Can He Just Read His Police Report Outloud to the Jury at Trial?

What happens if the police officer cannot remember anything about a portion of a criminal investigation? For example, in many driving under the influence (DUI) cases in Florida, the arresting officer has a very difficult time remembering the details about how the subject did on field sobriety exercises. This problem is particularly common when there is no video recording of the exercises.

Although some officers pretend to remember after looking at their report, what if the officer just admits that he doesn't remember? In other words, what if the officer says he has no present independent recollection whatsoever and that there is no way to refresh the recollection by looking at the report?

Can the prosecutor just ask the officer to read the police report concerning field sobriety exercises as a past recollection recorded under Section 90.803(5)? Especially in misdemeanor cases when the officers are less experienced and less prepared, the issue comes up all the time.

The answer is no and this article explains why.


What is a Past Recollection Recorded?


When the proper predicate is laid, a past recollection recorded is admitted as substantive evidence. Section 90.803(5) provides:

(5) RECORDED RECOLLECTION.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
To lay a proper foundation, the prosecutor would ask the witness the following questions:
  • does the witness now has insufficient recollection to enable the witness to testify fully and accurately? 
  • was a memorandum or record was created concerning the officer's observations?
  • did the witness once have knowledge about it?  
  • was the memorandum or record report made by the witness when the matter was fresh in the witness's memory? 
  • does the memorandum or record reflects that knowledge correctly?

The Police Report isn't a Qualifying Memorandum or Record


Assuming that the prosecutor can lay the proper predicate, the defense attorney should argue that the past recollection recorded exception to the hearsay rule under Section 90.803(5) does not apply to the reading of a police report because the report would not qualify as a "memorandum or record."

That term "report" is not defined in subsection (5) of Section 90.803, but under Section 90.803(8), the public records or reports exception specifically excludes reports made in criminal cases.

Section 90.803(8) provides:

(8) PUBLIC RECORDS AND REPORTS.—Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

This provision shows that the legislature draws a distinction between "records" and "reports," which supports the position that reports are not including within "records" as contemplated by the hearsay exceptions.

Although that same exclusion for police reports (created by the officer concerning his observations in a criminal case) is not specifically included in subsection (5), it is required by Florida law for several reasons.

The court in State v. Donner, 11 Fla. L. Weekly Supp. 976b (2004), explained it this way:

Under this section [Section 90.803(8) for public records and reports], the [officer's] report would not have been admissible since it was a police report, and such report are excluded from the public records hearsay exception. The Florida Supreme Court clearly stated this interpretation in Burgess v. State, where it would not allow admission of a police report since it was hearsay and therefore inadmissible in an adversarial criminal proceeding. 831 So.2d 137, 141 (Fla. 2002). 

The court also cited Professor Ehrhardt, who found that this limitation is "based on the belief that observations by officers at the scene of a crime or when a defendant is arrested are not as reliable as observations by public officials in other cases because of adversarial nature of the confrontation between the police and the defendant." Charles Ehrhardt, Florida Evidence 786 (2003 Ed.).

The court did note that while some statutes provide for the use of a police report in trial proceedings; this applies only when the legislature has expressly permitted such use. Burgess, 831 So.2d at 141. Since no such statute exists which would have expressly allowed [the officer's] arrest report to be introduced, it therefore was inadmissible pursuant to Section 90.803(8). 

Additionally, in Burgess v. State, 831 So.2d 137 (Fla. 2002), the Florida Supreme Court found:
[T]he information contained in police reports is ordinarily considered hearsay and inadmissible in an adversary criminal proceeding. See Bolin v. State, 736 So. 2d 1160, 1167 (Fla.1999). Nor does the information contained in the report in question fall under any recognized exception to the hearsay rule. See §§ 90.801-805, Fla. Stat. (1999). 
Id. 

So the correct objection for the criminal defense attorney is that:
  • the officer has a lack of personal knowledge (since the officer is relying on hearsay statements instead of his present recollection as he sits on the stand); 
  • the hearsay statements are also "not relevant" since the witness has no recollection that can be refreshed;
  • the words in the police report are "hearsay" and do not fall under the hearsay exception contained in Section 90.803(5) (for the reasons explained above) or any other hearsay exception; and 
  • if the judge finds that the statements are not hearsay because they are not offered for the truth of the matter asserted then they are especially "irrelevant" because what relevant purpose would those statements serve if not for the truth of the matter asserted?
Also, you can't confront a witness about what they can't remember, so I would also add a "confrontation clause" argument.

This issue has come up in my last three jury trials and now I just print out this article and read a shorter version of it into the record (outside the presence of the jury) when the judge tries to tell me it is a "past recollection recorded" or somehow not hearsay.

It also helps have the argument typed up and ready to go in case the issue comes up. In my last trial, the judge actually listened to the argument outside the presence of the jury and changed his ruling and told the jury that he made a mistake because the officer is not allowed to read from a police report when he can't remember what actually happened.

Nothing is more devastating to the case then watching the officer read from a report. Hold the prosecutor's feet to the fire when they try this. Also, by objecting, you are making the point to the jury that the officer can't remember these important details and shouldn't be trusted on any of the details he claims to remember.

Let me know how you handle this issue or whether you have ever seen it come up in trial in the comments below.

Florida’s Stand Your Ground Statute - the Pretrial Immunity Hearing

This article is not intended to be legal advice. If you need legal advice about a criminal accusation involving something that happened in the past, seek out the services of a criminal defense attorney. If you need advice about what might happen in the future, you probably need advice from someone other than a criminal defense attorney.

These areas of the law are not well settled under Florida law and speculation about what the pending litigation might mean for people facing prosecutions if the legislation is passed.

2017 SB 128

Senate Bill 128, proposed in 2017, might change who has the burden of proof during pretrial hearings to evaluate a defendant’s claim of immunity based on a justifiable use of force under Florida’s Stand Your Ground Statute. Florida law currently provides the defendant a right of immunity from criminal prosecution and civil action if the person is justified in using force.

In criminal prosecutions, the courts often determine on a pre-trial basis whether immunity should apply. The current statute is unclear about whether the prosecutor for the state or the defense should have the burden of proof during that pre-trial immunity hearing.

Because of that lack of clarity in the current legislation, the majority of the Florida Supreme Court in Bretherick v. State, 145 So.3d 821 (Fla. 2014) clarified the procedures the court should use. Under that decision, a defendant claiming immunity must prove by a preponderance of the evidence the entitlement to immunity at a pretrial hearing.

In the dissenting opinion, the court concluded that the Florida legislature intended for the state to have the burden of proof at pretrial immunity hearings.

The proposed legislation, 2017 Senate Bill 128, shifts the burden of proof to the prosecution in pretrial hearings to determine whether a defendant is immune from criminal prosecution based on a claim involving the justifiable use of force.

To receive protection, the defendant must file a motion that clearly states the reasons the defendant is immune and alleges the facts on which the immunity claim is based. The bill does not expressly require the defendant be sworn or admit the facts in the motion.

The bill also requires the state to prove its burden beyond a reasonable doubt. The burden of proof of beyond a reasonable doubt is the same burden of proof imposed on the state in the prosecution of criminal cases. Even if the defense loses on a pre-trial basis, the issue of self-defense can also be raised at trial as an affirmative defense.

Senate Bill 128 also provides that the state must prove its burden by the beyond a reasonable doubt standard instead of the lower standards used during other types of pre-trial hearings.


The History of Florida’s Stand Your Ground Statute


In 2005, the Florida Legislature enacted chapter 2005-27, commonly known as the “Stand Your Ground” law. The Stand Your Ground law expanded the common law Castle Doctrine. The new legislation also changed the defender’s common law duty to retreat.

The changes to Florida’s self-defense laws were incorporated into chapter 776, F.S., which applies to the justifiable use of force.

The History of the Castle Doctrine in Florida


The Castle Doctrine dates back to common law. Florida’s Castle Doctrine establishes that when faced with an intruder, a person had no duty to retreat from his or her home. Instead, under Florida’s version of the Castle Doctrine, the defender had the right to stay in the home and protect himself or herself with force. That force can include even deadly force.

Florida’s Stand Your Ground statute in 2015, expanded the Castle Doctrine. The Stand Your Ground provisions extended the “castle” to include more than just a residence. Under Florida’s Stand Your Ground statute, the protections also apply to a dwelling, residence, or occupied vehicle.

In fact, Florida Statute Section 776.013(5), defines a dwelling as a temporary or permanent building or conveyance of any kind, including an attached porch with or without a roof, mobile or immobile, including a tent, provided that it is designed for nighttime lodging.

The term “residence” is defended to include a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

The term “vehicle” means a conveyance of any kind, whether or not motorized provided that it is designed to transport people or property.

When Do Stand Your Ground Protections Apply

The Stand Your Ground statute in Florida also created a presumption that a person within these protected areas has a reasonable fear of imminent peril of death or great bodily harm under the following two conditions:
  • the offender must have entered or be in the process of unlawfully and forcibly entering the dwelling, residence, or occupied vehicle or be attempting to forcibly remove a person; and
  • the defender must know or had reason to believe that an unlawful and forcible entry had occurred or was occurring.
The Stand Your Ground law in Florida does not impose a duty to retreat on a person who acts in self-defense in his or her castle and other protected areas. Under Florida Statute Section 776.032(1), the defender will generally receive a grant of immunity from arrest, criminal prosecution, and civil action when those conditions are met.

When Do Stand Your Ground Protections Not Apply

Under Florida Statute Section 776.013, the presumption does not apply under the following circumstances:
  • if the person against whom defensive force is used or threatened has the right to be in or is a lawful resident of the location and against whom there is no injunction for protection;
  • the person sought to be removed is in the lawful custody or guardianship of the person against whom the defensive force is used or threatened;
  • the person who uses or threatens to use defensive force is committing a crime or using the location to further a criminal act;
  • the person against whom defensive force is used or threatened is a law enforcement officer entering the premises pursuant to an official duty and who identifies him or herself as a law enforcement officer.
In fact, under Florida Statute Section 776.013(4), a person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to intend to commit an unlawful act involving force or violence.
2005 Changes to Florida’s Self-Defense Laws
Under the 2005 changes to Florida’s self-defense law under Section 776.012(1), a person does not generally have a duty to retreat before using force outside of a person’s dwelling, residence, or occupied vehicle.

When acting in self-defense or in defense of others, a person does not have a duty to retreat and may use non-deadly force, if the person reasonably believes the force is necessary to defend himself or herself or another against an imminent use of unlawful force.

Instead, the person may use deadly force, if the person reasonably believes the force is necessary to prevent imminent death or great bodily harm to himself or herself. Under Section 776.012(2), the common law duty to retreat before using deadly force still applies to a person who is engaged in criminal activity or is not in a place where he or she has a right to be.

Standing Your Ground in Defense of Property

For claims involving acting in defense of property, a person does not have a duty to retreat and may use non-deadly force under the following circumstances:
  • if the person believes that the force is necessary to stop a trespasser’s entry on personal or real property other than a dwelling; and
  • the belief is reasonable under the circumstances.

Deadly force may be used if the person reasonably believes deadly force is needed to prevent a forcible felony. The term “forcible felony” is defined to include;
  • any felony which involves the use or threat of physical force or violence against any individual specifically including:
    • treason;
    • murder;
    • manslaughter;
    • sexual battery;
    • carjacking;
    • home-invasion robbery;
    • robbery;
    • burglary;
    • arson;
    • kidnapping; 
    • aggravated assault;
    • aggravated battery;
    • aggravated stalking;
    • aircraft piracy; or
    • unlawful throwing, placing, or discharging of a destructive device or bomb.

See Section 776.08, F.S.

Immunity from Civil Action under Stand Your Ground

Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from and any civil action. Under Section 776.032(3), a defendant to a civil action based on a use of force is entitled to reasonable attorney’s fees, court costs, lost income, and all expenses related to the defense of the action if the defendant prevails in a claim of immunity.

Immunity from Criminal Prosecution and the Peterson Hearing


Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from criminal prosecution. Under Section 776.032(1), the concept of immunity is supposed to apply to all phases of the criminal prosecution including the arrest, being detained, being charged, or facing a criminal prosecution.

The Stand Your Ground statute is silent on how to procedurally determine the right to immunity before trial. As a result, the procedures for determining when immunity applies have largely been determined by the courts.

The courts have recognized that the procedures for claiming immunity are different than the procedures for asserting an affirmative defense. In many cases, the defense will file a pretrial, adversarial motion and the court will set a hearing on the motion to determine immunity. Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008).

The standard used by some trial courts during the immunity hearing was a showing by a preponderance of the evidence. Even if the court denies the immunity claim, the defense can still introduce the claim as an affirmative defense at trial. Id.

In Bretherick v. State, 170 So. 3d 766, 722 (Fla. 2015), the Florida Supreme Court attempted to clarify the issues by finding that the defense bears the burden of proof in immunity hearings and that the required showing is beyond a reasonable doubt. The dissenting opinion argued:
By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law. There is no reason to believe that the Legislature intended for a defendant to be denied immunity and subjected to trial when that defendant would be entitled to acquittal at trial on the basis of a Stand Your ground defense. But the majority’s decision here guarantees that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.
Id. at 780.

Additional Resources

Governor’s Scott’s Task Force on Citizen Safety and Protection - The task force was convened by Florida Governor Rick Scott for the purpose of reviewing Florida’s Stand Your Ground law. A detailed report was issued by the task force on February 21, 2013, which was before the Florida’s Supreme Court Decision in Bretherick. The report found that all persons who are conducting themselves in a lawful manner have the right to defend themselves and to stand their ground when attacked.

Recent Statistics on Civil Violation Citations for Marijuana in Tampa

Earlier this year, the City Council in Tampa passed a city ordinance, Tampa Code Section 14-62.

The ordinance attempted to decriminalize the possession of marijuana less than 20 grams and the possession of marijuana paraphernalia. 

The problem is that officers with Tampa Police Department are not issuing the citations in all cases. 

Our last blog article explains why TPD officers are still taking people to jail. In many of these cases, TPD officers are seizing vehicle so they can collect the $500 civil penalty (with an additional $450 being paid for towing and storage).

Read more about how marijuana citations are issued under Tampa Code Section 14-62.

In fact, TPD is issuing the citations less than half of the time in these cases. The other half of the time, TPD is still arresting people for a criminal charge under state law. During the last six month period, 409 citations were issued but 529 people were arrested for marijuana.

People identified as "black" were cited and arrested more often than those identified as "white." During that period 243 black people were issued a civil violation citation for possession of marijuana while only 160 white people were cited for the same violation.

For those people arrested for misdemeanor marijuana charges during that period, 306 were identified as black and 222 were identified as white.

I recently obtained a report filed by TPD at the request of the Tampa City Council to address the effectiveness of the program during a six-month period from March 31, 2016, through September 30, 2016. That report provided these statistics: 

ADULT MARIJUANA CIVIL CITATION STATISTICS:

Time Period: March 31 through September 30, 2016.

1. Total number of citations issued?                 409
2. How many paid civil fine within 30 days? 198
3. How many had previous citation issued?      3
4. Racial distribution: 1-0, A-3, B-243, W-160, U-3
5. Ethnicity:         Hispanic 27 Non-Hispanic 148

Adult Misdemeanor Marijuana Arrests (Charges) Total: 529
1. Racial distribution: 1-0, A-I, B-306, W-222, U-O
2. Ethnicity:         Hispanic 61 Non-Hispanic 359
3. Reason arrest instead of citation:
a. Other charges:         135
b. Insufficient ties to Hillsborough County:    9
c. Prior unpaid marijuana citation:    1
d. Officer discretion:   41

Same Time Period 2015 Adult Marijuana Arrests: 921

Code Descriptors: 
I - American Indian / Alaskan Native 
A - Asian / Pacific Islander
B - Black
W - White
U - Unknown
Demographic Detail of Unpaid Marijuana Civil Citations
Total 211 records
Total Male Female
Black                      148      120      28
White                         61        42      19
Asian/Pacific Islander                           2          1         1
American Indian/Alaskan Native                           0
Unknown                           0


Tampa Code Section 14-62 - Civil Violation Citation for Marijuana and Paraphernalia

Map of Marijuana Citations Issued
During the First 30 Days 
On March 28, 2016, the Senior Assistant City Attorney of the Tampa Police Department issued Legal Bulletin #2016-08 dated March 28, 2016. 

The legal bulletin addressed the new civil citation process for marijuana violations within the City of Tampa. These civil violation citations for marijuana and paraphernalia are issued under Tampa Code Section 14-62.

According to the bulletin, it appears the goal of the program is to give the subject an incentive to “modify his [or her] illegal behavior based on the threat of further fines.” The ordinance itself states that the purpose of the program is to help a person in possession of marijuana or marijuana paraphernalia to avoid “criminal penalties and [a] potentially life-long criminal record… disproportionate to the severity of the offense.” 

Read more our next blog article to learn more about why subjects identified as Black are given marijuana citations and arrested for marijuana-related misdemeanors more often than those identified as White by the Tampa Police Department under these new procedures over the last 6 months.
I was unable to find any information about racial disparity when TPD decides to seize vehicles pursuant to Tampa Code Section 14-30 after an arrest for even a tiny amount of marijuana found in the vehicle. Under that section, if you are arrested for marijuana found in your vehicle TPD officers can seize your vehicle until you pay a $500 civil penalty and more than $450 in towing and storage fees.  

Problems with Tampa’s Marijuana Citation Program by TPD


From reading the legal bulletin, it appears that one of the biggest problems with the way TPD is implementing this policy revolves around the tremendous discretion given to the officers in the field who decide whether to make an arrest or just issue a citation.

It would be easier if all TPD officers were just told to issue the citations and never make an arrest for possession of these small amounts of marijuana. Of course, if the officers discover some other criminal offense, then they would still make an arrest for any other crime. 
Instead, the officer has wide discretion to decide whether to proceed with formal misdemeanor arrest and seize the subjects vehicle subject to the payment of an additional $500 civil penalty (along with another $450 in towing and storage fees) in any particular case because:  
  • if the citizen has failed to pay a previously issued civil citation, then the arrest is processed as usual with an arrest and criminal prosecution for the misdemeanor (so it makes sense to pay the first citation and every subsequent citation within the 30 days);
  • the officer gets to decide if the citizen cannot be released on his own recognizance under SOP 307.2 (which also gives the officer tremendous discretion); 
  • the officer can decide to proceed with an arrest as long as the officer justifies that decision with a “legitimate, non-discriminatory reason.” 
The bulletin makes it clear that the officer gets to name the reason for making an arrest instead of issuing a citation. The memo gives several examples of why an officer might want to make an arrest. The examples used in the bulletin include: 
  • the subject has a recent criminal history involving the illegal sale of cannabis or other drugs (although was otherwise eligible for the citation); or 
  • the subject has received several cannabis citations in a short period of time, even when the citations are promptly paid (although was otherwise eligible for the citation). 
The officers can easily determine whether the subject has an unpaid prior civil citation for marijuana possession by checking the subject’s name in Versadex. The unpaid citation will appear as a general offense report with the offense being “Unpaid Civil Citation.” See TPD SOP 340. 
 

Who Is Eligible for the Marijuana Violation Citation in Tampa? 


On April 1, 2016, the Tampa Police Department instituted a civil citation procedure applicable to certain cases where a citizen is found to be in possession of 20 grams or less of marijuana or possession of marijuana paraphernalia. 
Instead of bringing criminal charges under state law, the civil citation will be issued only when: 
  1. The officer doesn’t have probable cause for any other criminal offenses except possession of marijuana or possession of marijuana paraphernalia;
  2. The amount of marijuana possessed is 20 grams or less; 
  3. The subject is 18 years of age or older;
  4. No other criminal charges are applicable from the same incident; 
  5. The subject is qualified for release on his own recognizance; and 
  6. The subject has no prior unpaid civil citation. 
If the subject meets this criteria, then the officer can (but is not required to) issue a civil citation for violation of Tampa Code Section 14-62 in lieu of making a physical arrest or issuing a notice to appear for a misdemeanor charge under state law. 
The Legal Bulletin also explains that whenever the civil citation is used, the subject’s vehicle will not be impounded pursuant to Tampa Code Section 14-30. 
The way I read this legal bulletin, the officer has a huge amount of discretion. The officer can either:
  1. issue a civil citation for a violation of the city ordinance for 4-62(b) (possession of marijuana) or 14-62(c) (possession of paraphernalia) but not both; 
  2. issue a notice to appear on a misdemeanor prosecuted under state law for misdemeanor possession of marijuana under F.S. 893.13(6)(b) and/or possession of paraphernalia under F.S. 893.147(1); 
  3. make a formal arrest and take the suspect to jail to be formally booked into the jail; and/or
  4. seize the suspect’s vehicle under Tampa Code Section 14-30 (except the vehicle will not be seized if the civil citation is issued). 

What Happens if You Don’t Just Pay the Civil Marijuana Citation?


Under the city ordinance, the fine for the citation is $75 for the first offense and $150 for a second offense. The amount goes up sharply for additional offenses. If you don't pay it within 30 days then you will NEVER be eligible to receive a citation for a future case and instead the officer will be required to either arrest you and take you to jail or issue you a notice to appear in court on the misdemeanor charges. 

If you don’t pay the citation with thirty (30) days of the date of issuance, the City Attorney's Office shall forward the original and one (1) copy of the citation to the county court. 
The civil infraction is punishable by a civil penalty not to exceed five hundred dollars ($500.00). If you don’t want to pay the citation, then you should contest the citation in the county court. The procedures for contesting the citation shall be set forth in the citation.
If a person fails to pay the penalty within the specified period or fails to appear in court to contest the citation, that person shall be deemed to have waived the right to contest the citation. A judgment may be entered against that person for an amount up to the maximum civil penalty.

What Advice if Given to TPD Officers When Making these Decisions?

The legal bulletin provides this information (paragraph breaks were added):
In the typical street encounter, nothing changes up until the time a charging decision is made. As an example, an officer observes a traffic infraction and stops a citizen’s car. As the officer approaches the car, the distinct odor of burning marijuana is detected emanating from within the car.

The officer explains the reason for the stop and obtains the citizen’s D.L. and registration. The marijuana odor, of course, gives the officer probable cause to search the vehicle and its occupants. The officer should control the scene and ensure his own safety. Obtain backup as necessary and handcuff the citizen(s) prior to searching them or the vehicle. 

Once the search is completed, decide what you have. If the only applicable criminal charge will be possession of 20 grams or less of marijuana and/or possession of marijuana paraphernalia, decide whether the citizen meets the other criteria for civil citation. If so, issue the civil citation charging 14-62(b) (possession of marijuana) or 14-62(c) (possession of paraphernalia) but not both.

If other criminal charges are appropriate, if the citizen cannot be released on his own recognizance under SOP 307.2, or if the citizen has failed to pay a previously issued civil citation, then the arrest is processed as usual, using the CRA and charging misdemeanor possession of marijuana under F.S. 893.13(6)(b) and/or possession of paraphernalia under F.S. 893.147(1).

Juveniles found in possession of 20 grams or less of marijuana or paraphernalia will be processed under SOP 313.4 and future Legal Bulletin. 

To determine whether the subject has an unpaid prior civil citation for marijuana possession, check the subject in Versadex. The unpaid citation will appear as a general offense report with the offense being “Unpaid Civil Citation.” See SOP 340 for additional information.

Again, the decision of whether to proceed with arrest under the state statute or with citation under Tampa’s ordinance can only be made after completion of the full investigation and lawful search. A subject with a recent criminal history involving the illegal sale of cannabis or other drugs is not the intended beneficiary of the Tampa program. 

Similarly, a subject who has received several cannabis citations in a short period of time, even when the citations are promptly paid, is not apparently inclined to modify his illegal behavior based on the threat of further fines. 

When officers elect to arrest (even in ROR cases) under the misdemeanor statute, there is a drop down menu in Versadex for recording the reason(s) for the decision not to issue the civil citation in lieu of arrest. When that decision is based on officer discretion, the specific reason must be articulated in an “explain below” box. 

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Tampa Code Sec. 14-62. - Possession of cannabis or paraphernalia.


(a)   Definitions.

(1)   Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof. The term does not include the resin or oil extracted from any part of the plant or "low-THC cannabis" as defined in F.S. § 381.986 if manufactured, possessed, sold, purchased, delivered, distributed, and dispensed in conformance with F.S. § 381.986.

(2)   Paraphernalia means any object used, intended for use, or designed for use, in ingesting, inhaling, smoking, or otherwise introducing cannabis into the human body.

(b)   Any person who possesses twenty (20) grams or less of cannabis as defined herein except as otherwise authorized by law commits a violation of this subsection.

(c)    Any person who possesses paraphernalia as defined herein except as otherwise authorized by law commits a violation of this subsection.

(d)   A person charged with possession of cannabis under subsection (b) may not be charged with possession of paraphernalia under subsection (c) arising out of the same incident.

(e)   Penalties and procedure.

(1)   The provisions of Tampa Code Chapter 23.5 shall apply to all violations charged pursuant to this section.

(2)   Violation of this section is deemed to be an irreparable or irreversible violation punishable by civil penalty as a Class I offense.

(3)   If the applicable civil penalty is not paid within thirty (30) days from the citation date, in addition to the procedure provided in Tampa Code Chapter 23.5 in the event of such nonpayment, the defendant will no longer be eligible for the alternative enforcement procedures provided by this section.

(Ord. No. 2016-44, § 1, 3-17-16)
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The attorneys at the Sammis Law Firm, P.A., represent clients charged with criminal offenses throughout Tampa Bay. The attorneys also advocate for the reform of marijuana laws and are proud members of the NORML National Legal Committee (NLC).

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