Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors At Law
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Advice Archives

Courts Can Revoke Sex Offender Probation for Refusing to Admit Guilt

When judges sentence sex offenders to probation, they often require the defendants to "actively participate" and "successfully complete" a sex offender treatment program. The law does not specify what "successful completion" requires. It is generally understood that a defendant must cooperate with the treatment program's requirements in order to complete probation. This can create problems where treatment programs impose requirements that defendants were unaware of when they entered a guilty plea. 

Involuntary Consent: When Permission Is Not Enough to Justify a Search

One of the first things we tell clients in our criminal defense practice is never give a law enforcement officer permission to search anything. The Constitution places strict limits on when law enforcement can perform a search, and oftentimes officers won't have a warrant or the probable cause they require when they want to search a suspect's property. However, the moment that a suspect consents to a police officer's search, most of that suspect's constitutional protections disappear. For this reason, "consensual encounters" are one of the most popular techniques that officers use to collect evidence. When an officer asks if he can search a vehicle, he usually is not just being polite, but likely has doubts about whether the constitution allows him to perform a search without the suspect's permission. 

The Plain Feel Exception to the Warrant Requirement

Most people are familiar with the "plain view" doctrine, which permits police officers to seize items without a warrant, if those items are clearly visible while the officer is performing his or her official duties. For instance, if an officer observes contraband after a lawful traffic stop, that contraband can be immediately seized. What happens when the officer "feels" an item; does the same doctrine apply? Beginning with the case of Terry v. Ohio, 392 U.S. 1 (1968), courts have not hesitated to apply the plain feel exception to warrantless searches. 

Open Carry Ban Upheld Against Second Amendment Challenge

On February 18, 2015, the Fourth District Court of Appeal decided the case of Norman v. State, 2015 WL 669582 (Fla. 4th DCA 2015). The defendant in Norman was arrested and charged with the offense of open carrying of a weapon, in violation of §790.053, Fla. Stat. (2012). He filed a motion to dismiss, which was denied by the trial court. However, the court certified three questions to the Fourth District Court of Appeal, all of which related to the constitutionality of Florida's open carry laws. Those questions were: (1) is Florida's statutory scheme related to the open carry of firearms constitutional; (2) do the exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry, or does the State need to prove beyond a reasonable doubt that a particular defendant is not conducting himself or herself in the manner allowed; and (3) does the recent "brief and open display" exception unconstitutionally infect the open carry law by its vagueness?

Medical Marijuana "Certificates" in Florida: A Legal Non-Entity

Our ever vigilant clients recently brought to our attention a website claiming to be able to provide medical marijuana certificates. The website states that medical marijuana is already legal in Florida for those with a medical necessity. The website also claims that if a patient can prove medical necessity to a law enforcement officer, they are not subject to arrest. However, these claims are completely untrue. 

Leaving the Scene of an Accident

There are three types of leaving the scene of an accident charges in Florida:

Opinion Issued by the First District Court of Appeal

The First District Court of Appeal has issued an opinion in a case in which we represent the Appellant. It states:

Law Enforcement's Use of Social Media: User Beware

For many people, especially those of certain age, life is lived in the social media spotlight. Twitter, Facebook, and Instagram have become the popular way to communicate. Ordinary citizens are not the only people who use social media. User beware: If your friends can see your posting, so can law enforcement. A recent survey of agencies throughout the country found that over 80% of those agencies use social media in their criminal investigations. Lawyers also routinely use it to discover evidence about litigants, witnesses and even jurors. 

Bloggers, the First Amendment And Cyber-Stalking

Where there once was the town-crier, today there is the internet. Those unhappy with a person or business now have, as they should, the means to express their dissatisfaction to all who choose to view their complaints on the web. Many people are under the mistaken impression that they can blog anonymously without repercussions. This view is incorrect, particularly once a lawsuit is filed and civil discovery commences. At that point, internet host sites are required by law to supply identifying subscriber data via the discovery process. 

Bloggers, the First Amendment And Cyber-Stalking

For those who find themselves in the cross-hairs of a lawsuit for blogging, there is one guiding principle: the First Amendment to the United States Constitution. Because blogs enjoy such protection, they do not constitute "cyber-stalking" for injunctive purposes, unless they are being used "to communicate, or to cause to be communicated, words, images or language...directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose." §784.048(1)(d) (Fla. Stat. (2013); Chevaldine v. R.K./Fl. Management, Inc., ___ So.3d ___, 2014 WL 443977 (Fla. 3d DCA Feb. 5, 2014); Murphy v. Reynolds, 55 So.3d 716, 717 (Fla. 1st DCA 2011).

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
215 N. Washington Street
Jacksonville, FL 32202

Phone: 904-701-0589
Phone: 904-727-7191
Fax: 904-356-9667
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Regular office hours are 7:30 a.m. to 6:30 p.m.

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