Every party to a lawsuit and their lawyers who are before the Court representing the parties, are all subject to certain rules of procedure and customs governing judicial decorum in every courtroom in the country.

If the Court sees a party recklessly act in a manner that suggest a violation of these rules, the Court will cite the violator with a charge of “civil contempt” and conduct a separate hearing regarding the charges.

If the Court feels that the party’s conduct is “intentional” the Court can charge the violator with “criminal contempt and conduct a separate hearing regarding the charges.

Contempt is defined as “[a]n act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen its authority or dignity.” Garcia v. Pinellas Cty., 483 So. 2d 443, 444 (Fla. 2d DCA 1986) (quoting Thomson v. State, 398 So. 2d 514, 517 (Fla. 2d DCA 1981)).

A court employs its power of criminal contempt “to vindicate the authority of the court or to punish for an intentional violation of an order of the court.” Parisi v. Broward Cty., 769 So. 2d 359, 364 (Fla. 2000) (quoting Bowen v. Bowen, 471 So. 2d 1274, 1277 (Fla. 1985)).

Accordingly, when an alleged criminal contempt is based upon the violation of a court order, the contemnor’s intent to violate the order is a necessary element of the offense. Id.; see also Roberts v. Bonati, 133 So. 3d 1212, 1216 (Fla. 2d DCA 2014).

“Intent, absent a statement thereof or an admission by the accused . . . must be inferred from the acts of the accused and the surrounding circumstances.” Garcia, 483 So. 2d at 444-45 (alteration in original) (quoting Thomson, 398 So. 2d at 517).

To support a finding of contempt, an individual’s intent to disobey the court’s order must be proved beyond a reasonable doubt. Smith v. State, 954 So. 2d 1191, 1194 (Fla. 3d DCA 2007); see also Parisi, 769 So. 2d at 364.

Moreover, “[f]or a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order.” Reder v. Miller, 102 So. 3d 742, 743 (Fla. 2d DCA 2012) (quoting Paul v. Johnson, 604 So. 2d 883, 884 (Fla. 5th DCA 1992)). A trial court cannot make a finding of contempt for violation of a court order based upon its intent in issuing the order when the court’s “intent was not plainly expressed in the written order.” Id. (quoting Minda v. Ponce, 918 So. 2d 417, 421 (Fla. 2d DCA 2006)). In other words, a finding of contempt for violating a court order cannot be based upon something the order does not say. Id.; see also Menke v. Wendell, 188 So. 3d 869, 871 (Fla. 2d DCA 2015).

The Florida law recognizes that a judgment of contempt will not be overturned unless the trial court either abused its discretion or departed so substantially from the law that fundamental error occurred. See DeMello[v. Buckman], 914 So. 2d [1090,] 1093 [(Fla. 4th DCA 2005)]. However, a trial court’s discretion is limited by rules, statutes, and case law, and a trial court abuses its discretion when its ruling is based on an erroneous view of the law. See McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007).Reder, 102 So. 3d at 744. In addition, a judgment of contempt must be supported by competent, substantial evidence in the record. See Pearson v. Pearson, 932 So. 2d 601, 602 (Fla. 2d DCA 2006); see also Smith, 954 So. 2d at 1194.

If you don’t know how to dress, act, address the court, then make an effort to go to the county courthouse website in the county where you will be appearing and read the rules, polices and guidelines of what is expected of you while you are there as a party, witness or juror. It may be very helpful to you to know what is going to be expected.

Otherwise, you may be hiring your own lawyer to represent you regarding a charge of civil or criminal contempt.

Well, to begin with its only a misdemeanor and carries only a fine of up to $1000.00 and 1 year in the county jail. Whereas, if you were charged with resisting arrest with violence, it would be a felony punishable by up to 5 years in a Florida State prison and a five thousand dollar fine or both. It does not take much to be charged with a misdemeanor offense in Florida.

To support a conviction for resisting an officer without violence, the State must show that (1) the officer was engaged in the lawful execution of a legal duty and

(2) the action by the defendant constituted obstruction or resistance of that lawful duty. Jones v. State, 955 So. 2d 1208, 1211 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D1237b].

The element of the lawful execution of a legal duty is satisfied if the officer has reasonable suspicion to stop the defendant. Mosley v. State, 739 So. 2d 672, 675 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D1980c] (citing Calliar v. State, 714 So. 2d 1134, 1135 (Fla. 1st DCA 1998) [23 Fla. L. Weekly D1674b]). ”

An individual may be guilty of unlawfully obstructing an officer if he flees while knowing of the officer’s intent to detain him and the officer is justified in making a stop pursuant to the Stop and Frisk Statute.” Id. (citing F.E.C. v. State, 559 So. 2d 413, 414 (Fla. 2d DCA 1990)

For example, in one Florida case, a Sheriff’s Office Deputy Esteban Gonzalez testified that on March 7, 2012, he conducted a buy/bust operation with other deputies at a residence.

Deputy Gonzalez observed a suspect sell drugs to an undercover detective, and flee back in to the residence after the sale.

Deputy Gonzalez testified that he went to the back of the residence and saw the Appellant attempt to exit through the back door but the Appellant went back into the residence when he saw other deputies outside.

Deputy Gonzalez testified that he was wearing a sheriff’s office tactical uniform marked “Sheriff” on the front and back when he made contact with the Appellant. Deputy Gonzalez and another deputy yelled “Sheriff” and gave other verbal commands.

The Appellant retreated into a back bedroom in the residence and tried to conceal himself. Deputy Gonzalez again told the defendant to come out, but he refused for a couple of minutes but then came out. He was arrested and charged with resisting an officer without violence. He was convicted and his conviction was affirmed.

Evidence inextricably intertwined with the crime charged is admissible under section 90.402 because “it is a relevant and inseparable part of the act which is in issue. . .[I]t is necessary to admit the evidence to adequately describe the deed.” Griffin v. State, 639 So. 2d 966, 968 (Fla. 1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)). “Evidence is inextricably intertwined if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose, or (4) adequately describe the events leading up to the charged crime(s).” McGee v. State, 19 So. 3d 1074, 1078 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2056b] (quoting Dorsett v. State, 944 So. 2d 1207, 1213 (Fla. 3d DCA 2006) [32 Fla. L. Weekly D13a].

This Court finds Deputy Gonzalez’s testimony regarding the buy/bust operation conducted immediately before the Appellant was arrested is inextricably intertwined with the Appellant’s charge of resisting arrest without violence. Knowledge of the buy/bust operation is necessary to establish the entire context out of which the Appellant’s charge arose and to adequately describe the events leading up to the charge. Law enforcement went to the residence for the specific purpose of conducting a buy/bust operation, and Deputy Gonzalez would not have seen the Appellant attempting to leave the residence through the exit in the back of the house without first having observed a suspect sell drugs to an undercover detective in front of the residence.

No one disputes that enforcement fo the traffic laws of each state is for our common safety and well being until we get a speeding ticket. Yes, the long arm of the law reaches most citizens by law enforcement officers doing their jobs. Yet, it hits the wallet hard when its time to pay for driving at an excessive speed and being caught. We do all understand that our communities operate in part, on the revenues generated by strict enforcement of the traffic laws, is just a fact of life.

Just like in criminal court the judge in traffic court can be subject to reversal. It is best to bring your own court reporter to record the testimony and evidence received into evidence by the judge. In this case the appeal was based on a stipulation by the lawyers as well as the trial judge as to what transpired.

In one Florida case, the driver went to trial on a speeding charge which involved the officer’s use of a radar gun. The driver was was found guilty of speeding at a traffic infraction hearing. The sole focus of the driver’s appeal is that the trial Court erred in admitting the results of the radar into evidence.

The driver’s lawyer argued that the evidence of the radar test was not obtained in compliance with Rules 15B-2.007 and 15B-2.009 of the Department of Highway Safety and Motor Vehicle Administrative Rules.

Rule 15B-2.007[2] does not allow the admissibility of radar tests unless the radar device was tested according to Rule 15B-2.009.

Subsection 2 of Rule 15B-2.009 requires that every radar unit be tested after each citation issued and a written log shall be kept of such tests.

A Court Reporter was not present at the traffic infraction hearing, so there is no transcript of the actual proceedings, but an ORDER OF SETTLEMENT AND APPROVAL OF STATEMENT OF THE PROCEEDINGS was agreed to by Attorney David Ege for the driver and Attorney Ben Fox for the State and approved by the presiding County Judge by his signed order.

That statement of the proceedings and the attached copy of the daily radar test log indicates that the radar unit was not immediately tested after each citation as required by Rule 15B2.009[2], but was not in fact tested until approximately twenty-three (23) hours after citation issued to the driver.

The driver in his answer brief concedes that the trial Judge may have been in error in admitting the radar evidence, but argues that the driver’s lawyer did not timely object to such admissibility.

Though there is not an actual transcript of the proceedings, the stipulated statement of the proceedings referred to earlier does indicate that Mr. Ege objected to the admissibility of the radar results citing Rule 15B-2.009[2). This statement of the proceedings indicates that the objections was sufficient to preserve the matter on appeal.

We, therefore, hold that the admission of the radar test was in error and the conviction must be reversed and a new trial afforded the driver.

What is unusual is that the costs to the driver has to be 5 times the fine and court costs associated with the initial hearing, the appeal and now the new trial at which the driver may still face a fine and court costs.

772.11 Civil remedy for theft or exploitation.—(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.

This statue can be applied in different situations whether the defendant is in a civil case or a criminal case. The statue may apply if you are going have an insurance agent, care giver, home contractor, landlord or your neighbor.

In one Florida case, homeowner was really unsatisfied with the contractor in connection with a project to expand and remodel their home. The homeowner sued the contractor for civil theft When the contractor failed to file any paper with the Clerk of Court, a default was entered.

Thereafter, the trial court awarded the consumer unliquidated damages without an evidentiary hearing. The contractor appealed.

A default admits all well-pleaded allegations of a complaint, including a plaintiff’s entitlement to liquidated damages; but a default does not automatically entitle a plaintiff to unliquidated damages. Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 712 (Fla. 2d DCA 2005) (quoting Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662-63 (Fla. 5th DCA 1983)).

Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Bowman, 432 So. 2d at 662. Damages are unliquidated, however, if testimony is required to ascertain facts upon which to base the exact sum. Medcom U.S.A., Inc. v. Ryder Homes & Groves Co., 847 So. 2d 594, 596 (Fla. 2d DCA 2003).

The appellate court also considered claims for reasonable attorney’s fees, too, as unliquidated damages. Holiday Gulf Builders, Inc. v. Tahitian Gardens Condo., Inc., 443 So. 2d 143, 145 (Fla. 2d DCA 1983).

The trial court awarded the consumer damages of $237,000. This amount consisted of a $15,000 deposit, $30,000 for demolition work, and $34,000 for unaccounted-for building materials. Under the civil theft statute, section 772.11, Florida Statutes (2011-12), the trial court tripled the claimed actual damages for a total of $237,000.

Although the consumer claimed what they perceived to be a liquidated damage amount, their saying so does not make it so. See Rich v. Spivey, 922 So. 2d 326, 327 (Fla. 1st DCA 2006);United States Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So. 2d 169, 172 (Fla. 3d DCA 1996) (“The fact that [plaintiff] alleged in its complaint that the value of the stolen inventory was a certain amount does not make the claim liquidated”). “If the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true . . . .” Rich, 922 So. 2d 326 at 328 (quoting Charles A. Wright, Arthur R. Miller, & Mary Kane, Federal Practice & Procedure Civil § 2688, at 58-59).

For example, the consumer included in the damage calculation amounts paid for completed work. The consumer must concede that the contractor finished the demolition work.

Yet, they included $30,000 for demolition as a damage item. The $34,000 item for missing building materials appears to be based only on the Floyds’ estimation.

This is not an exact calculation as required for liquidated damages. “Damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.” Szucs, 893 So. 2d at 712 (quoting Bowman, 432 So. 2d at 662-63).

An evidentiary hearing is necessary to determine the amount of damages owed to the consumer. The appellate court determined that the judgment in favor of the consumer must be reversed and the case remanded to the trial court for further proceedings.

Our criminal laws are hard enough to keep up with even without all the electronic devices which come into existence before the state legislatures can enact laws to deal with new and unseen criminal conduct.

Fortunately, the laws against destroying or tampering with evidence were on the books when cell telephone and other electronic devices came along which can capture text messages, videos, facebook messaging etc.

In one Florida case, a defendant went to jury trial on three charges after he deleted a video on his cellular telephone. He was charged with and found guiltily of tampering with evidence contrary to 918.13, Florida Statutes (2013).

The appellate court reversed the conviction because the State failed to establish a violation of section 918.13, Florida Statutes (2013).

The evidence tampering charge arose from appellant’s deletion of a video from his work cellular phone. On January 20, 2012, a suspect in a case made statements about an unrelated criminal case where the defendants were two other officers, Koepke and Dodge, friends of appellant. Appellant made a video of these statements with his phone.

He then texted the video to Koepke, showed the video to his supervisor, and used his work e-mail account to send the video to the general counsel for the Police Benevolent Association. Ten days later, appellant’s cell phone was seized by an investigator with the State Attorney’s Office. The January 20 video could not be located on appellant’s phone and an expert concluded that the video had been deleted.

The January 20 video was ultimately recovered from two locations — Koepke’s Sprint/Nextel account and the e-mail servers at the Broward Sheriff’s Office. Both versions of the video were played for the jury.

Both at the conclusion of the State’s case and after the defense rested, appellant moved for a judgment of acquittal on the evidence tampering count. After the jury verdict, he filed post-trial motions directed at the evidence tampering conviction.

Section 918.13, Florida Statutes (2013), provides in pertinent part:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:

(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation . . . .

To establish a violation of the statute, “the State must prove a defendant ‘had knowledge of an impending investigation and destroyed evidence in order to impair its availability for the investigation.’ ” State v. Major, 30 So. 3d 608, 609 (Fla. 4th DCA 2010) (quoting C.K. v. State, 753 So. 2d 617, 618 (Fla. 4th DCA 2000)).

Appellant admitted he was “buddies” with Koepke, so he knew that there was a pending investigation into the matter; that was why he recorded the conversation in the first place. There is thus no issue with the “knowledge” element of the crime. Appellant takes issue with the second element — that he intentionally deleted the video from his phone with the purpose to impair its availability for the investigation.

We have held that a defendant’s equivocal conduct toward evidence is insufficient to demonstrate the intent necessary for a section 918.13 violation; merely discarding evidence from one’s person, without more, does not amount to a violation of the statute.

“[T]he offense of tampering is committed only when the defendant takes some action that is designed to actually alter or destroy the evidence rather than just removing it from his or her person.” E.I. v. State, 25 So. 3d 625, 627 (Fla. 2d DCA 2009).

In Obas v. State, 935 So. 2d 38, 38 (Fla. 4th DCA 2006), for example, the defendant emptied a pill container of crack cocaine rocks as police approached. He tossed the container five feet away after police ordered him to stop. This Court reversed the defendant’s conviction for tampering with evidence, stating:

We are unable, on these facts, to accept the state’s argument that defendant violated the statute. If defendant had dropped or thrown the items so that they could not have been retrieved, it would be another matter, like swallowing. In this case, however, where he merely dropped the cocaine rocks and tossed the container on the ground, and both were easily found, the evidence was insufficient. Otherwise a tampering conviction could be obtained whenever a suspect merely drops drugs on the ground.

Similarly, in Evans v. State, 997 So. 2d 1281 (Fla. 4th DCA 2009), we held that the trial court erred in denying a motion for judgment of acquittal on a charge of tampering with evidence where the defendant threw a crack cocaine rock onto sandy ground as officers approached for a stop. We held that the fact the officers were unable to find the drugs due to the nature of the surface of the ground did not demonstrate the necessary specific intent to tamper with or conceal the evidence.

Such equivocal conduct differs from that conduct that completely destroys potential evidence, such as swallowing an object. See State v. Jennings, 666 So. 2d 131, 133 (Fla. 1995); McKenzie v. State, 632 So. 2d 276, 277 (Fla. 4th DCA 1994) (holding that “swallowing a substance” demonstrates the necessary intent to amount to a violation of section 918.13, just like “flushing it down a toilet”).

In this case, after appellant recorded the video on his cell phone, he showed it to his supervisor, texted it to Koepke, and e-mailed it to an attorney for the Police Benevolent Association. As we know from videos that have gone viral, texting or e-mailing a video is the antithesis of trying to destroy it. In fact, with the assistance of technology, the video was recovered from two separate locations. There was insufficient evidence of appellant’s intent to violate the tampering statute. In addition, there was insufficient evidence that the video was “destroy[ed]” within the meaning of the statute; the statute does not criminalize deleting evidence existing in the memory of a particular electronic device, particularly where such evidence resides elsewhere in the electronic ether. The trial court’s denial of appellant’s motion for judgment of acquittal was therefore erroneous.

We reverse the conviction and remand to the circuit court with direction to grant the motion for judgment of acquittal.

Certain crimes which are classified as second and third degree felonies have to be prosecuted within three years of the offense date. Well, every good thinking person who commits such a crime would be best served by leaving the state for that period or longer to avoid any prosecution, right? Well, prosecutions in this state must be commenced without unreasonable delay.

Section 775.15(4)(b) provides that process must be executed without unreasonable delay and:

In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

But if law enforcement does not try to find you are you off the hook? The answer is no. Section 775.15(5) provides, in pertinent part, that “[t]he period of limitation does not run during any time when the defendant is continuously absent from the state. . . .”

In one Florida case, the defendant claimed that once he was arrested that the charges should be dismissed because he had been absent from the State of Florida for over 4 years. The trial court denied his motion to dismiss. The trial court stated that the State established that Robinson was continuously absent from the state between May 2008 and May 2012.

On appeal the defendant asserts that the State may not avail itself of this tolling provision, however, because it failed to demonstrate that it made a diligent search for Robinson or that his absence from the state hindered prosecution.

We do not agree. This court has held that, where the defendant is continuously absent from the state, the express language of section 775.15(5) does not require that the State undertake a diligent search or that the defendant’s absence hindered the prosecution for the statute of limitations to be tolled. Pearson, 867 So. 2d at 519. As we noted in Pearson, id., our reading of section 775.15(5) conflicts with the second district’s interpretation of that statute in Netherly v. State, 804 So. 2d 433, 437 (Fla. 2d DCA 2001), and State v. Perez, 72 So. 3d 306, 308 (Fla. 2d DCA 2011). Accordingly, since Robinson’s continuous absence from the state resulted in the tolling of the statute of limitations, prosecution in this matter was timely commenced.

The same result may not be if the defendant had been charged with a misdemeanor. If you have outstanding warrants or you have failed to clear up pending traffic matters and did not appear in court, you may be a wanted man or woman and have no valid driving privileges. Any random traffic stop may result in your arrest. If you have doubts call your lawyer who may be able to assist you before you are arrested and booked.

Florida’s criminal sentencing guidelines were developed to accomplish more consistent criminal sentences in all the state courts. There are times a judge can make a downward or upward departure from the recommended guideline sentencing range for legally valid reasons.

In one Florida case, in 2012, Henderson entered an open plea to driving under the influence (her fourth DUI), resisting an officer with violence, and driving while her license was suspended or revoked.

Originally, the trial court departed from the sentencing guidelines on the basis that Henderson was in need of rehabilitation for substance abuse, and that she was needed at home to be “financially, physically, mentally and emotionally supportive of her minor son,” who himself was at risk due to his mother’s addiction.

On appeal, this Court reversed and remanded for resentencing, finding that the nonstatutory mitigators used by the trial court “failed to comport with legislative sentencing policies as interpreted by Florida courts.” State v. Henderson, 108 So. 3d 1137, 1141 (Fla. 5th DCA 2013).

At resentencing, Henderson again argued for a downward departure, this time based upon section 921.0026(j), Florida Statutes. That section provides for a downward departure when “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(j), Fla. Stat. (2013).

Henderson argued that her offense was isolated because it was her first felony DUI. The trial court agreed, finding that Henderson was remorseful, that the offense was unsophisticated, and that it was an isolated incident. The trial court reasoned: “Henderson has never before had a felony DUI, so that meets the legal test. And . . . it had been some ten months or more before she had had a previous DUI.” The trial court then re-imposed the identical sentence that was originally imposed.

Florida’s sentencing scheme requires the trial court to impose a sentence that comports with the guidelines unless a valid basis for departure is established. See § 921.0026, Fla. Stat. Section 921.0026(j) cannot, and should not, be read to mean that as long as the defendant has never committed the exact offense for which he or she is currently being sentenced, the offense can be considered isolated regardless of the defendant’s criminal history.

For example, a person being sentenced for sexual assault who has numerous prior robbery convictions cannot be eligible for a downward departure simply because he has never previously been convicted of a sexual assault.

In this case, Henderson had three prior DUI convictions. The second, third, and fourth DUIs were committed within a two-year period. The fourth DUI occurred just ten months after the third DUI, while Henderson was still on probation.

The fact that she was able to avoid being arrested for ten months does not render her last DUI isolated. See State v. Stephenson, 973 So. 2d 1259, 1263-64 (Fla. 5th DCA 2008) (holding that incident was not isolated where defendant had a “substantial criminal record prior to the current offense”); State v. Bell, 854 So. 2d 686, 691 (Fla. 5th DCA 2003) (noting that multiple driving while license suspended convictions prove that crime was not isolated).

Additionally, as to the resisting arrest with violence charge, the record does not support the trial court’s finding that Henderson was remorseful. As the trial court acknowledged, Henderson denied resisting the officer with violence at the sentencing hearing. See State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005) (holding that the record did not support element of remorse where defendant continued to deny responsibility for the offense); State v. Chestnut, 718 So. 2d 312, 313 (Fla. 5th DCA 1998) (“We are certain that [the defendant’s] denial of doing ‘what [he] was accused of’ is not the kind of remorse contemplated by the legislature.”).

In sum, the trial court erred in granting Henderson a downward departure. Accordingly, we are compelled to reverse with instructions to the trial court to impose a sentence within the statutory guidelines.

There is a reason airport security agents ask you whether the luggage is yours and whether you allowed anyone else to pack you bags or open your luggage. To often lawyers faced with representing a client charged with some variation or degree of misdemeanor or felony theft will say that “someone just gave me this bag” or “I was just standing there and someone just left the object in front of me.” What are the chances of that? Well, not very high but many strange things are possible!

Florida law provides that “proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.” § 812.022(2), Fla. Stat. (2012).

However, the mere possession of stolen property is insufficient to establish guilt when there is an unrefuted, exculpatory, and not unreasonable explanation for the possession.” M.M. v. State, 547 So. 2d 139, 140 (Fla. 1st DCA 1989).

However, “unless it is grounded in credibility, an accused’s explanation does not automatically entitle him or her to a judgment of acquittal.” Haugabrook v. State, 827 So. 2d 1065, 1069 (Fla. 2d DCA 2002).

Well, this presents a dilemma when the officer asks you how you came into possession of the object when you consider your constitutional right to no incriminate yourself. The best thing is to say you wish to speak to your lawyer. Your lawyer can discuss the matter in a privileged manner so that what is said cannot be revealed or discovered by the prosecution or law enforcement.

In one Florida case involving an adjudication of delinquency of a minor the minor challenged his adjudication of guilt by appealing to the appellate court seeking a reversal of his adjudication.

S.M., a child, appeals the trial court’s adjudication of delinquency for second-degree petit theft of a bicycle. Appellant claims the trial court erred by denying his motion for judgment of dismissal, because the state failed to prove that appellant knew or should have known the bicycle was stolen.

Appellant further claims that the trial court erred in admitting into evidence a DVD and photograph which were copies of an “original” video. We find that the state presented sufficient evidence to support appellant’s conviction for second-degree petit theft, and we find the trial court did not err in admitting the DVD and photograph into evidence. We affirm the adjudication of delinquency.

The victim in this case is the grandmother who purchased a bicycle for her grandson. She left for work one morning, leaving the bicycle she bought for her grandson by the front door. When the victim came home from work, the bicycle was gone. Her grandson did not know where the bicycle was. Another boy in the neighborhood showed the victim a cell phone video of an individual later identified as appellant riding the bicycle in a canal located up the street from the victim’s home.

The police arrived and watched the cell phone video. The victim’s grandsons both identified appellant as the individual riding the bicycle. A police officer drove to appellant’s home and spoke with appellant, who denied ever being in possession of the bicycle. The police officer asked appellant to get the bicycle and return it to the victim. Appellant brought the bicycle back to the victim’s house thirty to forty minutes later. Appellant did not say anything, but appellant was wet and the bicycle was damaged.

At the trial, the police officer testified that appellant “denied being on the bike, having the bike, didn’t know anything about the incident.” Then the officer told appellant there was a video “showing him on the bike and that it would probably be to his best interest that if he knew the whereabouts of the bike that he find the bike and return it to the victim.” Appellant told the officer something to the effect of “I’ll go get the bike.”

In N.C. v. State, 478 So. 2d 1142 (Fla. 1st DCA 1985), the appellant was charged with possession of stolen tools. Appellant’s “trial account of his possession,” that he found one item and traded something for the other item, “did not match his pretrial explanation,” that someone gave them to him “to hold for awhile.” Id. at 1143-44. The appellate court affirmed the trial court’s finding of delinquency, stating that “the judge could reasonably view the trial account as merely a search for a more acceptable excuse, rather than the truth” due to the inconsistency.

Likewise in P.N. v. State, 443 So. 2d 193 (Fla. 3d DCA 1983), the juvenile was arrested for grand theft upon being discovered in possession of a stolen moped. “When he was stopped by the police, [the juvenile] told the officer first that he had borrowed the moped from a cousin, then a brother, and finally — as he testified at trial — from an otherwise unidentified friend.”

The appellate court affirmed the juvenile’s adjudication of delinquency, because the juvenile failed to present a satisfactory explanation for his possession of a stolen moped given the “multiplicity of alternative versions advanced by the juvenile.” Id.; cf. Bertone v. State, 870 So. 2d 923, 925 (Fla. 4th DCA 2004) (where appellant’s trial version of his possession of the stolen property did not conflict with any pretrial explanation).

Thus, “[e]ven when a defendant’s theory of events is not clearly contradicted by direct evidence, a judgment of acquittal is not required if a common sense view of the circumstantial evidence might lead the jury to disbelieve the defendant’s theory.” Leasure v. State, 105 So. 3d 5, 16 (Fla. 2d DCA 2012).

In this case, the trial court, as the trier of fact, was allowed to make a credibility determination and disbelieve appellant’s proffered explanation for his possession of the stolen bicycle.

At trial, the officer testified that appellant initially denied “being on the bike [and] having the bike.”

Appellant returned the bicycle after being told of the existence of a video depicting him riding it.

Although appellant claimed at trial that “Jeffrey” gave him the bicycle and that he told the officer about his friend having the bicycle, the officer, in rebuttal, denied appellant told him about any friend named “Jeffrey.”

This conflict in testimony between appellant and the officer allowed the trier of fact to make a credibility determination.

The trial court was free to disbelieve appellant and determine that the motive for the conflict in testimony emanated from guilty conduct. The fact-finder was also entitled to believe appellant’s possession of the bicycle, as documented on the DVD and in the photograph, was indicative of guilty conduct, especially in light of appellant’s initial denial of involvement or possession of the bicycle.

The fact-finder could believe that appellant retrieved the bicycle only when confronted with ostensibly incriminating evidence. The fact-finder could believe the change in appellant’s explanation and the change in admission of knowledge was, in fact, indicative of guilty knowledge.

In conclusion, we find that the trial court did not err in denying appellant’s motion for judgment of dismissal.

Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction. in addition, the double jeopardy bars conviction for both offenses committed in a single criminal episode. See Blockburger v. United States, 284 U.S. 299, 304 (1932)

Here is an example of how it works in one case where the elements of each separate offense were close but not identical. Stated differently, the State of Florida brought two separate charges against a defendant arising out of a single episode of sexual battery for which the defendant was also charged with lewd or lascivious.

Although a precise structure of greater and lesser offenses, both the common law and the more recent legislative criminal codes, have clearly viewed lewd and lascivious conduct as a crime that can be distinguished from sexual battery and one that is less serious than sexual battery.

Mr. Drawdy raped his young teenage stepdaughter. While doing so, he touched her breasts. A jury convicted Mr. Drawdy of sexual battery. The jury also convicted him of lewd or lascivious molestation for touching the breasts. The trial court sentenced him to thirty years in prison for the sexual battery, followed by five years of probation for the molestation. Mr. Drawdy argues that his convictions violate double jeopardy and constitute fundamental error. The appellate court agreed and reversed the lewd and lascivious conviction.

The following statutory provisions apply:

§ 794.011 Sexual battery. —

(1)(h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object

(8) Without regard to the willingness or consent of the victim, which is not a defense to prosecution under this subsection, a person who is in a position of familial or custodial authority to a person less than 18 years of age and who:

(b) Engages in any act with that person while the person is 12 years of age or older but less than 18 years of age which constitutes sexual battery under paragraph (1)(h) commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 800.04(5) Lewd or lascivious molestation.

(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

Although sexual battery statute includes an element not included in lewd or lascivious statute, the converse is not true of the elements of the crime of lewd and lascivious. The simultaneous convictions of two separate crimes arising from a single sexual episode violates the prohibition against double jeopardy.

Where multiple convictions arise from a single episode, a court must determine whether the offenses constitute single or distinct acts. Blockburger aids in that determination. “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304.

The Florida sexual battery statutes are particularly susceptible to the distinct acts exception because the statutes ‘may be violated in multiple, alternative ways . . . .’ ” Partch, 43 So. 3d at 761 (quoting Saavedra v. State, 576 So. 2d 953, 956-57 (Fla. 1st DCA 1991)).

Multiple Sexual Penetration or Union Crimes

Separate convictions for more than one type of sexual battery described in section 794.011 in a single episode do not violate double jeopardy; each battery is of a separate character and type that requires a different element of proof. Saavedra, 576 So. 2d at 957 (“Sexual battery of a separate character and type requiring different elements of proof warrant multiple punishments.”); accord Schwenn v. State, 898 So. 2d 1130, 1132 (Fla. 4th DCA 2005). See, e.g., Duke v. State, 444 So. 2d 492, 493-94 (Fla. 2d DCA), aff’d, 456 So. 2d 893 (Fla. 1984) (vaginal penetration followed by anal penetration a moment later); Grunzel v. State, 484 So. 2d 97 (Fla. 1st DCA 1986) (cunnilingus followed by vaginal intercourse seconds later); Bass v. State, 380 So. 2d 1181 (Fla. 5th DCA 1980) (oral sex followed by rape). In each of these cases, the distinct acts were committed sequentially. See Schwenn, 898 So. 2d at 1132 (distinguishing Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001), where, because defendant fondled victim’s breast and vagina at practically the same time, he did not have time to reflect and form new criminal intent).

Although appellate courts affirmed separate convictions for more than one type of sexual battery in a single episode, they did not do the same for section 800.04(4) lewd or lascivious batteries, despite the fact that the prohibited acts of oral, anal, or vaginal penetration or union were the same as those in the sexual battery statute.

See, e.g., Capron v. State, 948 So. 2d 954, 959 (Fla. 5th DCA 2007) (two lewd or lascivious acts of kissing victim’s vagina and touching genital area with penis in one episode not sufficiently discrete to deem separate offenses). To this point, the evolving judicial interpretation of sections 794.011 and 800.04 precluded conviction for both sexual battery and lewd or lascivious molestation in the same episode. State v. Meshell, 2 So. 3d 132, 133 (Fla. 2009), changed the landscape, extending the exception for distinct acts of sexual battery to the different types of lewd or lascivious battery identified in section 800.04(4) because the elements were the same. Meshell upheld dual convictions for lewd or lascivious battery — by penetration or union with the victim’s vagina and by penetration or union with the victim’s mouth in the same episode — “[b]ecause the oral sex described in Count 3 is a criminal act distinctively different from the vaginal penetration or union in Count 1 . . . .” Id. at 136; see also, e.g., Schuster v. State, 17 So. 3d 304 (Fla. 4th DCA 2009) (upholding four convictions for serial, distinct lewd and lascivious batteries in same episode); State v. Gonzalez, 24 So. 3d 595 (Fla. 5th DCA 2009) (approving dual convictions for lewd and lascivious battery in single episode). Meshell, of course, involved section 800.04(4), and its holding did not extend to section 800.04(5), the statute under which the State charged Mr. Drawdy. See Meshell, 2 So. 3d at 134 (specifically limiting its double jeopardy review to section 800.04(4)); Brown v. State, 25 So. 3d 78, 80 (Fla. 2d DCA 2009) (observing that Meshell limited its holding to section 800.04(4)).

Sexual Penetration or Union Crimes

with Lewd or Lascivious Molestation

Historically, sexual battery subsumed acts of lewd or lascivious molestation in the same episode. We have held that double jeopardy precluded convictions for both. See Johnson v. State, 913 So. 2d 1291 (Fla. 2d DCA 2005) (sexual battery and lewd or lascivious molestation in one criminal episode are one offense of sexual battery). Similarly, we have held that double jeopardy precluded conviction for a lewd or lascivious molestation in the same episode as a lewd or lascivious battery. See, e.g., Johnson, 913 So. 2d at 1291-92 (double jeopardy prohibited convictions for both sexual battery and lewd and lascivious molestation during same episode); Gisi v. State, 909 So. 2d 531 (Fla. 2d DCA 2005) (convictions for lewd and lascivious acts in same episodes as sexual intercourse with a child violated double jeopardy). Some courts reasoned that the defendant could not form a new criminal intent for acts involving simultaneous offenses. See, e.g., Leyva v. State, 925 So. 2d 393 (Fla. 4th DCA 2006) (holding attempted sexual battery and lewd and lascivious conduct of touching hand and leg in same episode were one offense because there was not time to form new intent); Mijarez v. State, 889 So. 2d 827, 828 (Fla. 4th DCA 2004) (reversing convictions for two counts of lewd or lascivious molestation in same episode as lewd or lascivious battery where it could not be said that defendant paused, reflected, and formed new criminal intent each time he fondled victim during sexual encounter). But see Darville v. State, 995 So. 2d 1025, 1027 (Fla. 4th DCA 2008) (“We have no difficulty in ascertaining that the lewd and lascivious molestation offense contains an element not found in the sexual battery conviction, and vice versa.” (citing Binns v. State, 979 So. 2d 439, 442 (Fla. 4th DCA 2008) (“Based upon a Blockburger analysis, the crimes of lewd and lascivious acts1 and sexual battery each contain an element that the other does not;” therefore dual conviction would not violate double jeopardy))).

In Beahr v. State, 992 So. 2d 844, 845 (Fla. 1st DCA 2008), the jury convicted the defendant of sexual battery by placing his penis in the victim’s mouth and for lewd or lascivious molestation by touching the child’s genitals in the same criminal episode. The First District conducted a double jeopardy analysis, beginning by examining whether the statutes showed a ” ‘clear statement of legislative intent’ to have the crimes punished separately in all cases.” Id. at 845 (quoting State v. Paul, 934 So. 2d 1167, 1171 (Fla. 2006), receded from on other grounds in Valdes, 3 So. 3d at 1077). It found “no clear statement of legislative intent to punish sexual battery and lewd or lascivious molestation separately, nor any basis for believing Appellant had the opportunity to form a new criminal intent between the commission of the crimes . . . .” Id. The next step was to apply the Blockburger test to determine “whether each crime contains an element that the other does not, by reference to the statutory definitions only.” Beahr, 992 So. 2d at 846 (citing Paul, 934 So. 2d at 1173).2 The Beahr court examined the applicable elements of sexual battery and lewd and lascivious molestation, which read as follows:

§ 794.011 Sexual battery. —

(1)(h) “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object . . . .

§ 800.04(5) Lewd or lascivious molestation. —

(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

Applying the Blockburger test, the Beahr court determined that sexual battery included an element not included in lewd or lascivious molestation — penetration or union — but the converse was not true; rather, “the elements of lewd or lascivious molestation [were] subsumed by the elements of the more serious crime of sexual battery.” Beahr, 992 So. 2d at 847. The court continued, “sexual battery cannot occur without a touching of one of the body parts listed in section 800.04(5). Because sexual battery requires such touching, one cannot commit sexual battery without simultaneously committing the crime described in section 800.04(5).” Id. at 847 (citing Capron, 948 So. 2d at 960 (recognizing that committing “any kind of battery” requires “a touching”)). The court concluded that sexual battery and lewd or lascivious molestation were the same offense for double jeopardy purposes. Id.

Later, however, the First District concluded that Meshell had “superseded [its] decision in Beahr that double jeopardy principles preclude[d] convictions for sexual battery and lewd or lascivious molestation which occurred in a single criminal episode.” Roberts v. State, 39 So. 3d 372, 374 (Fla. 1st DCA 2010). The court stated:

Considering the supreme court’s conclusion in Meshell that double jeopardy principles do not necessarily preclude multiple convictions for the same sexual offense committed by different actions during the same criminal episode, it necessarily follows that double jeopardy principles would not necessarily preclude convictions for two different sexual offenses committed by different actions during the same criminal episode.

1. The First District expanded Meshell’s holding beyond section 800.04(4) lewd or lascivious battery. In doing so, it stretched the holding to cover multiple acts involving penetration or union in the same episode to combinations of penetration or union, and of touching without penetration or union in the same episode. Roberts, 39 So. 3d at 374. In Roberts, the jury convicted the defendant of two sexual batteries, one oral and one vaginal, each in a separate episode. Id. at 373. It also convicted him of two counts of lewd or lascivious molestation, one by touching the victim’s genitals with his hand in one sexual battery episode, the other by touching the victim’s breasts and/or buttocks with his hands and/or mouth during the other sexual battery episode. Id. at 373. Apparently, there was no temporal break between the sexual battery and the molestation in either episode. Id.

The First District upheld all four convictions, reasoning that, like the distinct acts of penetration or union in Meshell, the sexual battery and the lewd or lascivious molestation in each episode were “of a separate character and type requiring different elements of proof.” Roberts, 39 So. 3d at 374. Reading Meshell’s holding to be that double jeopardy no longer prohibited convictions for alternative types of lewd or lascivious battery because it already allowed multiple convictions for the same alternative types of sexual battery, the First District concluded that the legislature also intended to separately punish lewd or lascivious molestation and sexual battery in the same episode because their elements were different.

The Fifth District reached a similar conclusion, holding that the differences in character and type of crime between attempted sexual battery — by union of the defendant’s penis with the victim’s vagina — and lewd or lascivious molestation — by touching her genitals or clothing covering them — in the same episode led to the conclusion that dual convictions did not violate double jeopardy. See Murphy v. State, 49 So. 3d 295, 298 (Fla. 5th DCA 2010), rev. granted, 79 So. 3d 745 (Fla. 2012) (table decision) (citing Meshell, 2 So. 3d at 135).3 The Fifth District interpreted legislative intent to separately punish two crimes arising from a single act even more broadly in Roughton v. State, holding that double jeopardy did not preclude dual convictions for sexual battery and lewd or lascivious molestation for the defendant’s single act of placing his mouth on the victim’s penis. 37 Fla. L. Weekly D1662a, *1-2 (Fla. 5th DCA July 13, 2012) (certifying direct conflict with Robinson v. State, 919 So. 2d 623 (Fla. 2d DCA 2006); Johnson v. State, 913 So. 2d 1291 (Fla. 2d DCA 2005); Berlin v. State, 72 So. 3d 284 (Fla. 1st DCA 2011); and Smith v. State, 41 So. 3d 1041 (Fla. 1st DCA 2010)).

We disagree with Roberts, Murphy, and Roughton. We agree, instead, with the First District’s reasoning in Beahr that, while sexual battery includes an element not included in lewd or lascivious molestation, the converse is not true. Beahr, 992 So. 2d at 847. Here, Mr. Drawdy committed sexual battery by rape. See § 794.011(1)(h). The lewd or lascivious molestation he simultaneously committed was “intentionally touch[ing] in a lewd or lascivious manner the breasts . . . .” See § 800.04(5). The statute does not specify that the touching must be done with hands. And our record does not disclose the manner of the touching. Vaginal penetration without touching the victim’s breasts or buttocks with some part of the perpetrator’s body would be acrobatic. See Beahr, 992 So. 2d at 847 (“sexual battery cannot occur without a touching of one of the body parts listed in section 800.04(5)”). Therefore, we conclude that under Blockburger analysis, double jeopardy prohibits convictions for both sexual battery and lewd or lascivious molestation as separate offenses. We are confident that if the legislature intended to punish sexual battery and simultaneous lewd and lascivious touching separately, it will amend the statutes accordingly. See Aldacosta v. State, 41 So. 3d 1096, 1097 (Fla. 2d DCA 2010).

Conclusion

We reverse and remand for the trial court to vacate Mr. Drawdy’s conviction for lewd or lascivious molestation. As a practical matter, today’s decision is not likely to afford Mr. Drawdy much practical relief because his sentence for lewd or lascivious molestation is only five years’ probation following his thirty-year sentence for sexual battery.

In Florida there is no legal defense to  criminal charge of statutory rape or lewd and lascivious behavior that the girl looked like she was 18 years of age. Even if the girl says she is 18 but is 15 years of age, a crime has been committed regardless of the good faith of the male.  In Florida these two statutes are “strict liability” statues. The consent of the victim is not a defense at all. Stated, differently the consent of the girl is irrelevant to the defendant’s accountability for his actions under these criminal statutes.

The statue makes provisions which address circumstances when the defendant is 18 year or older or under the age of 18. The statutory rape statutory requires that a defendant be 24 years of age and the girl under the age of 16. There are circumstances in which the facts will not support a charge of statutory rape but may support a charge of lewd and lascivious conduct which is a lesser included charge of statutory rape.

F. S. 800.04Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.—

(1)DEFINITIONS.—As used in this section:

(a)“Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose.

In certain cases the evidence may be insufficient to show that defendant acted lewdly or lasciviously toward the girl.

In one case a juvenile touched the buttock and breasts of person under 16 years of age by touching the clothing covering them. The victims were two girls, twelve and thirteen years old at the time of these incidents, testified that on separate occasions M.L.C. touched them on their clothed buttocks or breasts.

M.F. described waiting for the school bus with M.L.C. at their middle-school bus ramp one afternoon. M.L.C. had his arm around her; then he moved his arm down and touched her buttocks over her clothing. V.D. testified that as she waited on the bus ramp with a group of friends, M.L.C. walked up behind her and slid his hand across her buttocks, in a quick second. This was the extent of the evidence undergirding counts one and four of the petition.

The issue for the trial judge was whether the evidence supported the allegation of was sufficient to sustain an adjudication of guilt for lewd and luscious behavior or just simple battery.

As stated in Chesebrough v. State, 255 So.2d 675, 678 (Fla.1971), lewd and lascivious generally refer to “unlawful indulgence in lust, eager for sexual indulgence”; and in Boles v. State, 158 Fla. 220, 27 So.2d 293, 294 (1946), the supreme court noted that “ ‘[l]ewd,’ ‘lascivious,’ and ‘indecent’ are synonyms and connote wicked, lustful, unchaste, licentious, or sensual design” by an alleged offender. Egal, 469 So.2d at 197.

In this case, neither M.F. nor V.D. related any facts from which the court could infer that M.L.C. acted lewdly or lasciviously when he touched their buttocks. Each contact was brief, unaccompanied by suggestive remarks or body language.

As this court observed in Egal, a lewd or lascivious purpose “imports more than a negligent disregard of the decent proprieties and consideration due to others.” 469 So.2d at 197 (quoting McKinley v. State, 33 Okla.Crim. 434, 244 P. 208, 208 (1926) and citing Chesebrough, 255 So.2d at 675).

The evidence is simply insufficient for a finding that M.L.C.’s conduct was grossly indecent, lustful, licentious, or unchaste. We therefore hold, as a matter of law, that the State did not prove that M.L.C. committed the delinquent acts as alleged in counts one and four of the petition charging lewd and lascivious behavior.  See Williamson v. State, 839 So.2d 921, 923–24 (Fla. 2d DCA 2003) (reversing a conviction for lewd and lascivious act “[b]ecause there was no evidence from which the requisite intent could be inferred”); Durant v. State, 647 So.2d 163, 164 (Fla. 2d DCA 1994) (reversing the defendant’s conviction for a lewd or lascivious act when the circumstances did not demonstrate a “wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator” (quoting Egal, 469 So.2d at 197)); Payne v. State, 463 So.2d 271, 272 (Fla. 2d DCA 1984) (holding, as a matter of law, that the defendant’s conduct was not lewd, lascivious, vulgar, or indecent). The evidence was sufficient, however, for the court to conclude that M.L.C. committed the lesser-included offense of misdemeanor battery.

Regardless of what charge the State Attorney’s Office ultimately decides to file, you should not appear to give a “statement” to the investigating police officer. If any officer contacts you, you should contact your attorney and let your attorney advise you of the constitutional rights you have to not give any statement to the investigating officer.