Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors At Law
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Posts tagged "Bryan DeMaggio"

How Prosecutor Misstatements Overturn DUI Convictions

A defendant's right to a fair trial imposes important limitations on how prosecutors can characterize evidence or argue their case before the jury. If a prosecutor makes objectionable comments during trial, the court has wide discretion whether to let the comment slide or declare a mistrial and force the State to start its case over in front of a new jury. However, if a prosecutor repeatedly makes inflammatory or misleading comments, the cumulative effects of those statements may require the defendant to receive a new trial.

Can Officers Without Jurisdiction Perform DUI Stops as a "Citizen's Arrest?"

Police officers have limited authority to conduct traffic stops when they encounter a driver suspected of DUI outside of their jurisdiction. Sometimes a "mutual aid agreement" between municipalities will allow police officers to make traffic stops and arrests outside of their city limits. An officer can also conduct a traffic stop if they are in "fresh pursuit" of a fleeing felon or misdemeanant from their own jurisdiction. Finally, a police officer may justify an out-of-jurisdiction stop as a "citizen arrest," based on their authority, not as a police officer, but as a private citizen.

Rooming Houses and the Fourth Amendment

The Fourth Amendment provides citizens with the most protection inside their own homes. A recent decision by the Florida Second District Court of Appeal-Davis v. State-addressed which areas in a rooming house constitute a Defendants' "home" for the purposes of such protection. Davis involved a defendant who stashed a pill bottle containing cocaine inside a lattice beneath the rooming house where he sometimes stayed. A police officer proceeded to remove the lattice and search the pill bottle. Davis's criminal defense attorney sought to suppress the results of the search. He argued that removing the lattice constituted an unlawful search of the defendant's home.

Supreme Court Expands Right to Effective Assistance of Counsel for Defendants Facing Deportation

The Sixth Amendment guarantees defendants the right to effective assistance of counsel during all "critical stages" of a criminal proceeding. In the context of plea negotiations, this means that criminal defense attorneys must convey plea offers to their client in a timely fashion and give adequate advice about the consequences of accepting or rejecting the offer. The United States Supreme Court previously held, in a case called Padilla v. Kentucky, that this duty extends to advice about the immigration consequences of entering a plea. In an opinion rendered last week, Lee v. United States, the Supreme Court held that bad advice about immigration consequences can support post-conviction relief, even in situations where the defendant did not have any reasonable hope of winning at trial.

Knowledge That Victim Is a Law Enforcement Officer Now Required to Convict for Attempted Murder of Law Enforcement Officer

Florida law imposes harsher penalties on defendants who knowingly commit crimes of violence against law enforcement officers. For instance, a defendant found guilty of attempted murder of a law enforcement officer is subject to a mandatory life sentence. Understandably, a criminal defense attorney who represents a client faced with one of these charges will strive to remove the law enforcement victim enhancement, if possible. A recent decision out of the Florida Supreme Court-Ramroop v. State-has made it easier for defendants to do just that, by holding that the defendant must have known the victim was a law enforcement officer for the statute to apply.

Nation's Courts Divide on Whether Title VII Protects LGBT Workers

We previously posted about a decision from the Northern District of Florida-Lafayette v. Winstead County-holding that Title VII of the Civil Rights Act of 1964 protected employees from discrimination based on sexual orientation. Our own Elizabeth White's article on courts' growing recognition of this new theory was also featured in this Spring's business edition of Best Lawyers Magazine. Since we wrote those two pieces, there have been some major shake-ups in this area of employment law.

Black Box Recorders and the Fourth Amendment

Approximately 96% of all vehicles manufactured since 2013 are equipped with devices called event data recorders-or "black boxes"-that keep track of data such as when the driver brakes, steering, engine rpm during a crash. More sophisticated black boxes record a wealth of information about a person's driving habits ranging from where they go, how fast they drive, and even whether the vehicles systems are in working order. In the hands of law enforcement officers or prosecutors, such data can become powerful evidence in a criminal case.

Disabled Students Have the Right to Make Meaningful Educational Progress

In 1973, Congress enacted legislation which would later become the Individuals with Disabilities Education Act (IDEA). The act gives students with certain disabilities the right to a "free appropriate public education." Each student under IDEA is given an individualized education plan (IEP), which sets forth educational goals for the student and lays out a roadmap for services that will be provided to ensure disabled students can meet those goals. Under the IDEA, each IEP must ensure that disabled children are receiving sufficient help to make progress toward their education. If the IEP fails to provide such support, the IDEA allows parents to sue for tuition at a private school that can meet the student's needs.

Florida Supreme Court Clarifies Definition of "Sexual Intercourse" In Criminal HIV Case

In Florida, it is a crime for anyone infected with the human immunodeficiency virus to have sexual intercourse with another person unless they first disclose the infection and obtain that person's consent. HIV can spread through a range of sexual activities. Until recently, however, some Florida courts used a very limited definition of "sexual intercourse" that only applied to heterosexual encounters that involve contact between male and female sexual organs. A recent decision by the Florida Supreme Court-Debaun v. State-clarified the definition so that it now applies to all types of sexual encounters.

Supreme Court Allows Inquiry into Juror's Racial Bias to Challenge Criminal Conviction

In an opinion rendered this week-Pena-Rodriguez v. Colorado-the Supreme Court carved out an important exception to a longstanding rule prohibiting jurors from being questioned about conduct during deliberations after a verdict has been rendered. The case involved a Colorado man who was convicted for sexually assaulting two teenage girls. The jury returned a verdict against him. After the trial, two jurors approached Mr. Pena-Rodriguez's criminal defense attorney and expressed concerns about another juror's racial comments during deliberations. Specifically, the juror went into a lengthy tirade about Mr. Pena-Rodriguez's Hispanic heritage, noting that he "believed the defendant was guilty because, in [the juror's] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women."

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  1. Martindale Hubbell AV Preeminent Peer Rated for highest level of Provisional Excellence 2016 Best Lawyers Best Law Firms US News 2016 American College of Trial Lawyers William J.Sheppard Best Lawyers Lawyer of the year 2014 The Florida Bar Board Certified Best Lawyers|Best Law Firms US News|Criminal Defense: White-Collor|Tier 1|Jacksonville|2017
  2. Best Lawyers Best Law Firms US News 2017 AV Martindale Hubbell Peer Review Rated For Ethical Standards and Legal Ability Super Lawyers Best Lawyers Linking Lawyers And Clients Worldwide

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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