Criminal Procedure

Published on: October 20, 2012

Court Decides if 3 Petit Larceny Convictions Amounts to a Felony

by Stephen Bilkis

In this case, the Appellant sought review of the sentences imposed based upon inaccurate sentencing guidelines scoresheet, and a written probation order that included a condition which was not pronounced orally at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing.

A New York Criminal Lawyer said the predicate offenses, kidnapping and armed robbery with a weapon, were committed June 8, 1990. The guidelines scoresheet used at sentencing shows a total of 316 points, for a recommended sentencing range of twelve to seventeen years, and a permitted sentencing range of nine to twenty-two years. The trial court imposed a sentence of twenty years on the kidnapping conviction, and a probationary term of twenty years on the armed robbery with a weapon conviction. The probation was to be served consecutively to the kidnapping sentence.

Published on: October 19, 2012

Court Discusses Due Process Clause

by Stephen Bilkis

In this criminal case, petitioner fired several shots into the home of an African-American family and made a statement which he later retracted that he did not want the family in his neighborhood because of their race. A New Jersey Criminal Lawyer said that, he was charged under New Jersey law with, second-degree possession of a firearm for an unlawful purpose, (possession of a weapon), which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence if a trial judge finds, by a preponderance of the evidence, that the defendant committed the crime with a purpose to intimidate a person or group because of, inter alia, race. After petitioner pleaded guilty, a New York Criminal Lawyer said that the prosecutor filed a motion to enhance the sentence. The court found by a preponderance of the evidence that the shooting was racially motivated and sentenced petitioner to a 12-year term on the firearms count. In upholding the sentence, the appeals court rejected petitioner’s claim that the Due Process Clause requires that a bias finding be proved to a jury beyond a reasonable doubt. The State Supreme Court affirmed.

The issue in this case is whether petitioner has been denied of his right to due process.

The Court held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

Published on: October 19, 2012

Court Discusses Impeachment with Evidence of Prior Conviction

by Stephen Bilkis

This case is about an appellant who was adjudicated guilty, after a jury trial, for inciting a riot under Section 870.01(2), Florida Statutes (1981). Appellant argued that the evidence presented by the prosecution was insufficient to support his conviction. Although the sufficiency of the proof presented a close question, after thorough review, the court held that the State did present a prima facie case and that a judgment of acquittal was not required.

A New York Criminal Lawyer said the case however was reversed on the ground of evidentiary rulings as to prior convictions. The question concerns the impeachment of appellant under Section 90.610, Florida Statutes (1981), on the basis of two prior petit larceny convictions. The trial court ruled that these prior petit larceny convictions could be used for impeachment purposes and threatened to hold appellant in contempt if he took the stand and testified that he had not been convicted of a crime. Appellant did testify and on direct examination stated he had been convicted of a crime twice.

The old rules on Evidence provide that a witness was subject to being impeached with evidence of a prior conviction of any crime, excluding violations of a municipal ordinance. Jurisprudence prior to the amendment of the rules established that “a crime is a crime”. The argument that discrediting crimes must involve moral turpitude was expressly rejected.

Published on: October 18, 2012

Defendant Says Court Failed to Instruct the Jury Properly

by Stephen Bilkis

Appellant was charged with and convicted of robbery of property having a value of less than $100. He raises four points on appeal, one of which requires discussion and reversal. A Palm Beach Petit Larceny Lawyer said that, although the evidence presented at trial would have supported a conviction of petit larceny, appellant’s request for a jury instruction on that crime was denied. In a 1979 case, the Court held that larceny is necessarily included in the crime of robbery and that it is legally impossible to prove robbery without proving larceny.

The issue in this case is whether appellant is entitled to the reversal of his conviction for robbery.

The Court held that the Florida Rule of Criminal Procedure 3.510 expressly requires the trial court to charge the jury on any offense which is necessarily included in the offense charged. Appellee concedes it was an error not to do so, but argues the error was harmless. The Supreme Court held that it is reversible error per se not to instruct on the next immediate lesser included offense, while it may be harmless error not to instruct on an offense two steps removed from the offense charged. In reference to the charge sub judice “the determination of whether the refusal to instruct on larceny was reversible error would depend upon an application of the case to the facts of what transpired in the trial court.” Here, a New York Criminal Lawyer said there was neither charge nor evidence of property having a value of $100 or more. Consequently, petit larceny was the next immediate lesser included offense and the trial court committed reversible error when it failed to instruct on said crime.

Published on: October 18, 2012

Court Discusses Elements of Petit Theft

by Stephen Bilkis

This case is about an appeal filed by a juvenile from an adjudication of delinquency for robbery and a subsequent commitment to the Florida Department of Health and Rehabilitative Services.

A New York Criminal Lawyer said the central question presented for review is whether the state established a prima facie case that the respondent juvenile employed force, violence, assault or putting in fear–an essential element of robbery–in effecting a theft of jewelry from a three-year-old child.

The respondent was charged in a petition for delinquency before the Circuit Court for the Eleventh Judicial Circuit with the offense of robbery.

Published on: October 17, 2012

Defendant Claims Jury Instruction was Inappropriate

by Stephen Bilkis

In this case, Appellant appeals from a judgment convicting him of the crime of robbery. Appellant’s only contention on appeal is that the trial court erred in failing to give proper instructions as to the lesser included offenses of grand larceny and/or petit larceny. Appellant conceded that he did not request such an instruction or object to the charges actually given.

Appellant was charged by information with the crime of robbery in that he did by putting in fear, unlawfully and feloniously rob, steal and take away from the person and custody of the complainant, one (1) lot of coins and currency of the United States of America, of the value of Fifty-nine Dollars and Seventy-two cents ($59.72).

The night manager of a service station was working on the date of the alleged robbery. He testified that Appellant and his co-defendant held him up late one night with a pistol, robbed him of all the bills and change he had on his person, and also took a sum of money out of a cigar box. A New York Criminal Lawyer said the arresting officer, who seized defendants in close proximity to the service station immediately after the robbery, testified that he found in defendants’ possession the sum of $59.72, and put this money in a sack which was introduced into evidence and which included one roll of pennies wrapped in a distinctive wrapper used by the service station.

Published on: October 17, 2012

Appellate Court Agrees Prejudicial Error Committed at Trial

by Stephen Bilkis

In this criminal case, defendant was convicted by a jury on three counts of willful attempt to evade or defeat his federal income tax due for the years 1970, 1971 and 1972, in violation of 26 U.S.C. § 7201. He was sentenced to one year imprisonment on each count, the sentences to run concurrently, and a $5,000 fine on each count. A New York Criminal Lawyer said the issues raised by defendant on appeal can be grouped into three categories: (1) government misconduct before the grand jury; (2) Jencks Act material; and (3) introduction of a 16-year-old military conviction for larceny.

The issues in this case are whether the issues raised by the defendant on his appeal that was grouped into three categories have merit.

The Court held that it finds no merit to the claims under the first two headings but concludes that it was prejudicial error to admit the military conviction into evidence. We reverse and remand.

Published on: October 16, 2012

Court Reverses Grand Larceny Charges

by Stephen Bilkis

An owner of a truck appeals for the convictions of grand larceny of a truck, petit larceny of its contents, and trespass on property.

It was started when a man took possession of the truck and began making monthly installment payments after agreeing to purchase it from a long-time friend. But before the full purchase price of two thousand dollars had been paid, the owner of the truck lent the man another sum of money. Eventually, because that sum had not been repaid, the owner of the truck took the truck, asserting in effect a security interest in the truck and a right to repossess it, even though the originally agreed-upon installment payments had by then been made.

The man assumed what had happened and he did not report the truck as stolen for seventeen days. A New York Criminal Lawyer said he merely thought that his friend had repossessed the truck because of his outstanding debt. Consequently, the deputy sheriff testified about his conversation with the owner of the truck. The sheriff further testified that the owner told him that he will not give back the truck to the man until he pays backs what the man owes.

Published on: October 16, 2012

Appellant Claims Statute of Limitations Had Run

by Stephen Bilkis

In this case, the Appellant raised on appeal his conviction on charges of conspiracy to commit a felony, to wit: grand larceny; and petit larceny. He was initially charged by information with grand larceny, conspiracy, and several counts of forging and uttering uniform air bills.

A New York Criminal Lawyer said the first information, filed on June 1, 1977, alleged that the offenses occurred between November 30, 1975 and June 14, 1975. The State filed a second information in open court on November 3, 1977, without objection from the defense counsel and with court approval. Thereafter, the appellant moved to dismiss the information on the ground that it had not been filed within the two-year Statute of Limitations. His motion was denied.

The informations alleged that Appellant was operating a kickback scheme with another person who worked for a company that provided air trays and livery service for transporting bodies by plane. A New York Criminal Lawyer said the accomplice entered a nolo plea to similar charges and turned State’s evidence. During the trial, he testified that he made out false air bills with information given to him by Appellant, inflating the shipment costs. After the company paid the bill, the accomplice claimed that he delivered the excess money to appellant either in person or through a jointly held safety deposit box.

Published on: October 15, 2012

Defendants Claim Insufficient Evidence in Theft Charges

by Stephen Bilkis

The petitioner was adjudicated delinquent on the charge of petit larceny of items valued at $100 or more but less than $300, a first degree misdemeanor. Although the State presented evidence about the items taken, it offered no evidence of their value. The petitioner failed to object, however, or to move for judgment of acquittal on this ground. The petitioner raised the claim for the first time on appeal, asserting fundamental error. The Fourth District held that the issue must be preserved for appeal. Similarly, in the conflict case, another petitioner argued for the first time on appeal that a delinquent adjudication for first-degree petit theft must be reduced to second-degree because the State failed to prove the value of the stolen items. The Second District Court of Appeal, relying on a similar case decision receded from on other grounds concluded that the failure of proof on the essential element of value was fundamental error and reversed.

In a similar case, the opponents were convicted of two counts of breaking and entering with intent to commit grand larceny. As did the petitioner, on appeal they alleged that the evidence was insufficient to sustain the conviction on the element of the value of the property stolen. The opponents contended that the State thus failed to present a legitimate case and that it constituted fundamental error. A New York Criminal Lawyer said citing a line of prior decisions, the court rejected the argument and held that unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment. Because the issue was not preserved, the court held that it was not open to appellate review.

After resolving the conflict issue presented, the Court turned to the petitioners’ contention that there was fundamental error committed as to them in that they were convicted of grand larceny when the State’s evidence did not support a conviction of grand larceny. Again, the petitioners claimed that the State failed to present sufficient evidence of the value of the items stolen. The court reviewed the record and held that the evidence was insufficient to support a grand larceny conviction. The court reversed for entry of a petit larceny conviction.