1.14 Miscellaneous Laws
Florida Statute Chapter 849 makes it a felony for any person by himself, his servant, clerk or agent, or in any other manner, to have, keep, exercise or maintain a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter, or other place for the purpose of gaming or gambling.
The Florida law makes it a misdemeanor of the second degree to engage in gambling activities. In addition, the state gambling laws prohibit lotteries other than the state lottery.
Whoever engages in bookmaking, or is engaged in a common bookmaking scheme with three or more
persons is guilty of and may be punished as a third degree felony.
The elements of a lottery include:
Florida Law exempts Bowling Tournaments, and Bingo for charity from the Gambling Laws.
A person who engaged in sexual conduct with another for pay is considered to be a prostitute. In Florida, prostitution is a misdemeanor.
It is a felony in Florida to maintain a house for the purpose of prostitution. It is a felony violation to procure for purposes of prostitution any unmarried female under the age of sixteen years of age. It is also a felony to purchase the services of a prostitute or to pimp for a prostitute.
At the common law, perjury was defined as deliberately and knowingly testifying falsely in court proceeding, when the false testimony given pertained to a matter which was material to the issue being decided before the court.
For most perjury violations, some type of oath must be administered by an individual authorized to do so, and the false statement must be given under oath with the individual knowing at the time the statement is given that it is false and untrue.
Whereas under the common law, perjury occurred only in judicial proceedings, this has been extended by statute in most jurisdictions, including Florida. Florida Statute 837 provides as follows:
One who falsely swears in regard to any material matter or
thing while under oath, commits the felony of perjury.
The law defines oath as including affirmation or any other form of attestation required or authorized by law by which a person acknowledges that he is bound in conscience or law to testify truthfully in official proceeding.
"Material matter" means any subject regardless of its admissibility under the rules of evidence, which could affect the course or outcome of the proceeding. Whether a matter is material in a given factual situation is a question of law.
Perjury committed in circumstances other than in an official proceeding is punished as a misdemeanor.
The fact that the defendant believes that the false statement is not material is not a defense to perjury.
In Florida, whoever in one or more official proceedings willfully makes two or more material statements under oath when in fact two or more of the statements contradict each other, is guilty of a felony. It is a defense to this charge, if the defendant believes each statement to be true at the time he made it.
Whoever knowingly gives false information to any law enforcement officer concerning the alleged commission of any crime is guilty of a misdemeanor in Florida.
In the case of Gonzalez v. State, 220 So. 2d 393 (Fla. 3d DCA 1969), the court held that the offense of perjury must be proven by the oath of at least two witnesses, or by the oath of one witness and other independent and corroborating circumstances which are deemed of equal weight to the testimony of another witness.
In Florida, to constitute perjury, the false statement upon which the prosecution is founded must be made in a proceeding or in relation to a matter that is within the jurisdiction of the court or officer before whom such a proceeding is held or by whom such matter is being considered. Nix v. State, 173 So. 2d 465 (Fla. 1st DCA 1965).
With regard to the issue of materiality, the test in Florida, as enunciated in Wells v. State, 270 So. 2d 399 (Fla. 3d DCA 1972), is whether or not the alleged false statement which is made under oath is capable of influencing the court on an issue that the court is considering in the pending matter.
GIFTS AND FAVORS
THE LAW ENFORCEMENT OFFICER, REPRESENTING GOVERNMENT, BEARS THE HEAVY RESPONSIBILITY OF MAINTAINING, BY HIS/HER OWN CONDUCT, THE HONOR AND INTEGRITY OF ALL GOVERNMENT INSTITUTIONS.HE/SHE SHOULD NOT PLACE HIMSELF/HERSELF IN A POSITION IN WHICH ANY PERSON CAN EXPECT SPECIAL CONSIDERATION OR IN WHICH THE PUBLIC CAN REASONABLY ASSUME THAT SPECIAL CONSIDERATION IS BEING GIVEN.THE OFFICER SHOULD BE FIRM IN REFUSING GIFTS, FAVORS, OR GRATUITIES, LARGE OR SMALL, WHICH CAN, IN THE PUBLIC MIND, BE INTERPRETED AS BEING CAPABLE OF INFLUENCING JUDGMENT IN THE DISCHARGE OF OFFICIAL DUTIES.
Bribery has been defined as receiving or offering any undue reward by or to any person concerned in the administration of public justice or any public officer in an attempt to influence his behavior in office.
The victim in a bribery case, of course, is the general public, who suffers for the corruption of a public servant. Common law bribery was limited to the corruption of judges and other court officials involved in the administration of justice. However, by statute, this concept has been expanded considerably to cover all public officials.
Under the law, both an individual who offers to bribe and one who accepts a bribe are guilty. The act involved, of course, is the offer or acceptance of a bribe. The intent is said to involve a corrupt intent. A bribe may involve not only offers of money but may involve promises of favors or property. Florida Statute S.838.06, making it unlawful for officers to accept unauthorized compensation for performance or non-performance of duties, is one example of how the common law has been expanded by statute. Florida statutes also outlaw bribery in connection with athletic contests.
Under the statute, "corruptly" means done with a wrongful intent or for the purpose of obtaining or compensating or receiving compensation for any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duty.
In Florida, it is a felony of the third degree to threaten harm to a public servant or his immediate family or to any other person whose welfare the public servant is interested in an effort to influence his official conduct. If harm actually occurs, the offense becomes a second degree felony.
It is a felony in Florida for a public servant with corrupt intent to: (1) knowingly refrain or cause another to refrain from performing a duty imposed by law; (2) knowingly falsify or cause another to falsify any official record or document; (3) knowingly violate or cause another to violate any statute or lawfully adopted regulation or rule relating to his office.
E. Unlawful Assembly
Florida Statute 870.02 provides that if three or more people meet together to commit a breach of the peace, or to do any other unlawful act, each of them shall be guilty of a misdemeanor of the second degree. It is a misdemeanor of the first degree to engage in an affray and it is a felony of the third degree to participate, incite or encourage a riot.
F. Criminal Mischief
A person commits the offense of criminal mischief if he willfully or maliciously injures or damages by any means any real or personal property of another. If the damage is less than $1,000.00, it is a misdemeanor. If the damage is $1,000.00 or more, or if there is an interruption or impairment of a business operation, or public communication, transportation, supply of water, gas, or power, or other public service which costs $1,000.00 or more in labor and supplies to restore, it is a felony.
The elements of criminal mischief include:
(1) The injured property has an identifiable owner.
(2) The injury was done wilfully and maliciously.
(3) The defendant damaged the property.
Damage done to a place of worship or a religious article which exceeds $200.00 is a felony.
Damage which renders a public phone inoperative, or the illegal opening of the coin box is a felony.
G. Child Abuse
Florida Statute 827 defines child abuse as the intentional infliction of physical or mental injury upon a child; an intentional act that could reasonably be expected to result in physical or mental injury to a child; or active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child. The law also provides that whoever commits an aggravated battery on a child; willfully tortures a child; maliciously punishes a child; or willfully or unlawfully cages a child is guilty of aggravated child abuse, a felony of the first degree.
If the abuse does not cause great bodily harm, permanent disability, or permanent disfigurement to the child, the crime is a felony of the third degree.
"Torture" is generally described as every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused.
Child neglect is defined as a caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; or a caregiver’s failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person. The neglect may occur as the result of a willful act, or by culpable negligence. If no permanent injury, disfigurement, or great bodily harm occurs it is a felony of the third degree. If it does occur, the crime is a second degree felony.
Law enforcement officers must of course exercise great care and diligence in the investigation of child abuse complaints. There is an increasing body of law arising out of lawsuits filed on behalf of children, who allege the police were negligent in not protecting them from harm, and from defendants, who claim the police negligence resulted in false arrest and imprisonment. The courts in Florida have thus far ruled in a fashion that makes recovery on the theory of negligent investigation difficult, where the actual harm or damage is inflicted by a third party (parent). SeeJ.B., a minor, by and through Lorna Spivak, v. Dept. of HRS, State of Florida, and City of Ft. Lauderdale, 591 So. 2d 317 (Fla. 4th DCA 1991).
The only privilege which exists for confidentiality which includes revelations of child abuse is attorney -client. The following professions or occupations are required to report suspected child abuse or neglect.
(1) Physician, nurse and hospital personnel engaged in the treatment or care of persons.
(2) Health/mental health professionals.
(3) School teacher and staff personnel.
(4) Spiritual healer.
(5) Social worker, day care worker, foster care worker.
(6) Law enforcement officers.
H. Obscenity and Pornography
The law with regard to obscenity and obscene material is controlled by the ruling of the U.S. Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), relevant portions of which are reported as follows:
Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was convicted of violating
California Penal Code 311.2(a), a misdemeanor, by knowingly distributing matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.
The brochures advertise four books entitled, " Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed .
This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles . . . It is in this context that we are called on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment.
The dissent of Mr. Justice Brennan reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U.S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy..." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating:
`All ideas having even the slightest redeeming, social importance ‑‑ unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion‑‑have the full protection of the (First Amendment) guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.... This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572:'
`. . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene.... It has been well observed that such utterances are not essential; and were found to be utterly without redeeming social value.' Id., at 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was "utterly without redeeming social value"‑‑a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id., at 459 (Harlan, dissenting). See also id., at 461 (White, J., dissenting); United States v. Groner, 479 F. 2d 577, 579-581 (CA 5 1973).
Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S., at 770-771. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 704-705 (Harlan, J., concurring and dissenting). This is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities.
The case we now review was tried on the theory that the California Penal Code S.311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, and no Member of the Court today supports the Memoirs formulation .
This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment . Kois v. Wisconsin, 408 U.S. 229 (1972); United States v. Reidel, 402 U.S., at 354; Roth v. United States, supra, at 485. "The First and Fourteenth Amendments have never been treated as absolutes. Breard v. Alexandria, 341 U.S., at 642, and cases cited. See Times Film Corp. v. Chicago, 365 U.S. 43, 47-50 (1961 ); Joseph Burstyn, Inc. v. Wilson, 343 U.S., at 502. We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra at 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts, 383 U.S., at 419; that concept has never commanded the adherence of more than three Justices at one time. See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan J., dissenting); Jacobellis v. Ohio, 378 U.S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284-285 (1964); Roth v. United States, supra, at 497-498 (Harlan, J., concurring and dissenting).
We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated .
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 230-232; Roth v. United States, supra, at 487; Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members.
Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 49 1492. Cf . Ginsberg v. New York, 390 U.S., at 643. If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult like, as indeed, Mr. Justice Douglas contends. As to Mr. Justice Douglas' position, see United States v. Thirty seven Photographs, 402 U.S. 363, 379-380 (1971) (Black, J., joined by Douglas, J., dissenting); Ginzburg v. United States, supra, at 476, 491-492 (Black, J., and Douglas, J., dissenting); Jacobellis v. Ohio, supra, at 196 (Black, Jr., joined by Douglas, J., concurring); Roth, supra, at 508514 (Douglas, J, dissenting). In this belief, however, Mr. Justice Douglas now stands alone.
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.
As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole.... appeals to the prurient interest" and in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community standards of decency," it was to apply "contemporary community standards of the State of California."
We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter of fact.
End of Opinion
The Miller test for obscenity was upheld in the 1980 decision by the Fifth Circuit Court of Appeal inPenthouse International, Ltd. v. McAuliffe, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980). In that decision the Fifth Federal Circuit Court of Appeals found that the magazines Penthouse and OUI were obscene under Georgia Law. The same decision determined that Playboy magazine was not obscene. The three-prong test set forth in Miller was followed by the Court. That test is as follows:
A. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
B. Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
C. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
This test is conjunctive. That means that each and every element must be met before a publication may be found to be obscene as a matter of law. The first two aspects of the test apply community standards to questions of fact. The third prong of the test does not apply community standards. In the Penthouse case the local sheriff embarked upon a program of harassment with attendant publicity. The sheriff made repeated warrantless arrests on the basis of those officers viewing the magazines in retail stores and determining those magazines to be obscene. The Court had difficulty with this, however, in that the ability of the officer to make a warrantless arrest for an offense committed in his presence assumes that the officer has the ability to determine that an offense has actually been committed without the prior determination of obscenity by an impartial judicial magistrate. The court found that the sheriff's officers in possession of no formal instruction or written guidelines were unable to determine whether or not the magazines were obscene in view of the complicated test set forth in the Miller case.
The state has a right to regulate pornography by passing laws designed to protect children from the effects of pornographic activity.
In Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691 (1990) the Court ruled that a State may prohibit possession and viewing of child pornography even in one's home. The Supreme Court recognized the legitimacy of the state's interest in protecting the children from pornography.
I. Racketeer Influenced and Corrupt Organization Act
This Act, is designed to permit prosecution under numerous statutes where there is an identifiable organized criminal participation. One of its primary functions is to prohibit the investment in business of money obtained by criminal activity. The Act provides for fines as well as criminal penalties and seizure provisions.
Florida provides for a procedure whereby the State may file liens on real property (and ultimately forfeit the land to the State) involved in illegal activity. Also, Florida law requires that all foreign and alien corporations register their ownership with the State in an attempt to prevent hoodlums from hiding ownership of property.
J. Obstructing Justice
Florida Statute §843.02 provides that whoever shall obstruct or oppose any police officer in the execution of his legal duty, without doing violence to the person of the officer, is guilty of a misdemeanor of the first degree. When the resistance is with violence to the person of the police officer, the crime becomes a felony of the third degree.
Most jurisdictions hold that citizens do not have the right to resist arrest made by police officers acting under color of authority. In Florida, a person is not justified in the use of force to resist an arrest by a law enforcement officer who is known or who reasonably appears to be a law enforcement officer. On the other hand, however, no law enforcement officer or any person summoned by him to aid in an arrest may use force if at the time he knows or has reason to believe that the arrest is unlawful.
"Deadly force" is defined as that amount of force which is likely to cause death or great bodily harm. This includes shooting in the direction of a person, or at a vehicle which is occupied by the person to be arrested.
A law enforcement officer who has an arrested person in his custody is justified in the use of any force which he reasonably believes necessary to prevent the escape of the arrested person from custody. See, Florida Statute Chapter 776.
In the case of Williams v. State, 250 So. 2d 11 (Fla. App. 1971), the fact that an individual was intoxicated did not prevent his being held to account for his violence in resisting arrest.
In the case of City of St. Petersburg v. Waller, 261 So. 2d 151 (Fla. 3d DCA 1972), cert. denied, 409 U.S. 989, 93 S. Ct. 312, 34 L. Ed. 2d 256, the court held that the arrest of the defendant was lawful when the defendant, with an amplified megaphone, yelled "pig" at officers in a police car. The defendant, when he was arrested, spat upon them and cursed them, and the court held he was properly found guilty of simple assault in the violation of one ordinance, obscene language in violation of another, and verbal abuse of a police officer in violation of a third ordinance.
Intentionally inflicting great bodily harm, death, upon a police or fire dog, or police horse is a felony of the third degree. Other offenses constituting Obstruction include: refusal to assist an officer; impersonating an officer; compounding a felony; unlawful use of police radio frequency; obstruction by disguised person; and depriving an officer of his/her means of communication and protection; and taking the officer's weapon.
Under the old common law rule, individuals seven years and under were conclusively presumed to be unable to commit a crime. In the age bracket from seven years to fourteen years, there was a rebuttable presumption in the law that they were unable to commit a crime. Thus, the prosecutor had the burden of proving criminal capacity .
Under Florida law, persons of the age of seventeen or under are considered to be juveniles. Persons eighteen years of age or older are tried as adults. By statute in Florida, under certain circumstances, a juvenile may be charged, tried and punished as an adult.
In all jurisdictions, juvenile offenders are handled differently than adult offenders. Most jurisdictions provide for a completely separate court system. In Florida, there is a Juvenile Division of the Circuit Court which handles offenses against juveniles. Working in conjunction with the Department of Juvenile Justice, the concept of the Juvenile Division of Circuit Court is one of "parens patriae." The concept of parens patriae has as its basis the underlying philosophy that the courts will do what is best for the juvenile offender. This is in opposition, of course, to the philosophy of the adult criminal justice system, which is concerned with what is best for society.
Florida's official policy is to first protect the public from acts of delinquency and then to focus on reduction of delinquency and methods of maintaining and strengthening the family. This recent approach is in direct response to society's concern with rising juvenile crimes of violence.
Juveniles may be retained in custody if their arrest involves a crime of violence or would constitute a felony if committed by an adult. Also, children who commit domestic violence may be placed in detention or other facilities.
Juveniles may be finger printed and photographed, but such records, while available to criminal justice agencies, are otherwise restricted by law.
Florida and other states are now utilizing the concept of "boot camps" in an effort to effectively deal with juvenile crime.
Children 14 years of age or older at the time of an offense may be tried as adults pursuant to a procedure called "certification" initiated by the State Attorney. Children tried and determined to be guilty as adults, may still be subjected to juvenile sanctions as punishment.
Florida also enhances penalties imposed if the offender is a member of a criminal street gang at the time of the offense.
A delinquent child is a child who has committed a violation of law. A child is dependent who has been abandoned or neglected; surrendered to a licensed child-placing agency for adoption; or who is at substantial risk for abuse or neglect. A child in need of services is one who is not currently being aided who habitually disobeys, or is a persistent runaway or truant.
A juvenile is protected by the Fourth Amendment in the area of searches and seizures, by the Fifth Amendment privilege against self-incrimination and by the Sixth Amendment right to counsel. Juveniles however, do not have a constitutional right to bail or to a jury trial.
When an officer has arrested a juvenile, the officer should:
(1) Notify the parent or guardian.
(2) Transport without unreasonable delay to the intake facility.
(3) Keep the child separated from adult offenders.
(4) File a written complaint within 24 hours if the child is detained. If the child is not detained, the complaint should be filed within 7 days.
In instances of particularly violent or terrible offenses committed by individuals close to the age of eighteen, a juvenile may stand trial for the charge as an adult in an adult court. The reason that this is done is that the Juvenile Court retains jurisdiction for purposes of punishment until the juvenile reaches the age of twenty-one. When the individual reaches the age of twenty-one, he must be discharged from the custody of the juvenile authorities.
The function of the court in dealing with juveniles is one of treatment and rehabilitation and not necessarily one of imprisonment or punishment. The case of In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) has drastically affected the roles of the juvenile court. That decision provided that the juvenile court must take many of the same measures required of adult court in protecting the rights of the accused. It also provided for more formal hearing conditions and greatly restricted the flexibility with which the juvenile judge may respond to a given situation.
Florida law and procedure with regard to juvenile offenders is constantly being revised by the legislature. An attempt is made to balance responsibility between the Circuit Court, the State Attorney, and the Department of Health and Rehabilitative Services. The object is to provide adequate control and punishment for serious and incorrigible juvenile offenders, while providing compassion and guidance for less serious and experienced offenders.
The U.S. Supreme Court has approved the pretrial detention of an accused juvenile delinquent where it can be shown a serious risk exists that the child may commit a crime if released. Schall v. Martin, 467 U.S. 253, 104 S. Ct. 2403,81 L. Ed. 2d 207 (1984).
L. Child Custody Offenses
It is unlawful for any person, in violation of a court order, to lead, take, entice or remove a child beyond the limits of this state, or to conceal the location of a child with personal knowledge of the order.
M. Child Care Programs and Personnel
Florida regulates all child care facilities and personnel. It is a felony to make a material false statement or misrepresentation on an application for license. It is a misdemeanor to make any material false statements or misrepresentations in any application for approval as a caretaker, mental health worker, foster home or treatment resource worker. Personnel who provide care to children for 15 hours or more per week must furnish fingerprints, provide an application, are subject to record checks, and must be approved by the State.
N. Baker Act / Marchman Act
The Florida Mental Health Act, also known as the Baker Act (F.S. 394), defines "mental illness" as an impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with a person's ability to meet the ordinary demands of living, regardless of etiology. Retardation or developmental disability, intoxication, or conditions manifested only by antisocial behavior or substance abuse impairment are excluded.
The act provides for the involuntary commitment of such a person by a law enforcement officer for
temporary treatment and evaluation. Such persons may be detained at a receiving facility up to 72 hours for diagnosis and evaluation. Detention after that time will be pursuant to a court hearing and judicial order. The officer should take the person to jail only if such person has committed a crime. Otherwise, the person is transported to the receiving facility by the officer. A report must be made to HRS by filing a report upon admission.
Those agencies that may initiate an involuntary examination include:
(1) Law enforcement officers.
(2) The Courts.
(3) Physicians, psychologists, psychiatric nurses or clinical social workers.
Before conducting an involuntary examination under the Baker Act there must be reason to believe:
(1) That the person is mentally ill.
(2) That the person has refused voluntary examination after conscientious attempts to explain the need for such examination and revealing the purpose of the examination.
(3) The person is unable to determine for himself whether the examination is necessary and that without the examination the person is likely to suffer from neglect or there is a substantial likelihood that he will cause serious bodily harm to himself or others as has been evidenced by recent behavior.
Once an individual is taken into custody by a law enforcement officer the person should be delivered for involuntary examination to a receiving facility where the individual may be held for a period of 72 hours. At the end of 72 hours the person must either be released, agree to continued voluntary commitment, or appear before a Judge for a hearing as to the need for further commitment on an involuntary basis.
We do not treat alcoholics as criminals unless they have committed a separate offense such as disorderly intoxication. A person so impaired by alcohol that he cannot care for himself, and is in need of emergency medical care, or who is otherwise incapacitated and in danger of injury or neglect, shall be taken by the officer to a designated resource facility or hospital and admitted pursuant to the Marchman Act (F.S. 397).
The criteria for an involuntary admission involves a good faith reason to believe that the person is substance abuse impaired and because of such impairment:
(1) Has lost the power of self-control with respect to substance use; and either
(2) (a) Has inflicted, threatened or attempted to inflict, or unless admitted is likely to inflict, physical harm on himself or another; or
(b) Is in need of substance abuse services and, by reason of substance impairment, his judgment has been so impaired that he is incapable of appreciating his need for such services and of making a rational decision in regard thereto; however, mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his need for such services (F.S. 397.675).
A law enforcement officer may take a person into protective custody when a minor or an adult who appears to meet the involuntary admission criteria cited above is:
(1) Brought to the attention of law enforcement; or
(2) Is in a public place.
A person found in circumstances which would justify protective custody, may consent to be taken by a law enforcement officer to his home, to a hospital, or to a licensed detoxification or addictions receiving facility.
If a law enforcement officer finds a person in circumstances which would justify that person being taken into protective custody, but the person fails or refuses to consent to assistance, and the law enforcement officer has determined that protective custody is most appropriate, the officer may take the person to a hospital or to a licensed detoxification or addictions receiving facility against the person's will but without using unreasonable force. In the case of an adult, the officer may cause the person to be detained for his own protection in any municipal or county jail or other appropriate detention facility.
When a minor is taken into protective custody under this act the nearest relative must be notified by law enforcement. An adult's nearest relative must be notified unless the adult specifically requests that there be no notification.
An individual who is taken into protective custody must be released from that protective custody when:
(1) He no longer meets the involuntary admission criteria.
(2) 72 hours has elapsed, or
(3) He has consented to remain voluntarily.
A person may only be retained in protective custody beyond 72 hours when a petition for involuntary assessment or treatment has been initiated.
A law enforcement officer acting in good faith pursuant to these acts may not be held criminally or civilly liable for false imprisonment.
Any person who willfully, maliciously, and repeatedly follows or harasses another person commits the offense of stalking, a misdemeanor of the first degree. Any person who willfully, maliciously, and repeatedly follows or harasses another person and makes a credible threat with the intent to place that person in reasonable fear of death or great bodily injury, commits the offense of aggravated stalking, a felony of the third degree.
The definition of harassment includes a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.
A credible threat is defined as one made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to a person.
Officers should consult their State Attorney's office for guidance in the application of this statute. Constitutional issues have been raised in some Circuits, and the Florida Supreme Court will undoubtedly be dealing with several legal issues related to this law.
P. Law Enforcement Officers' Rights
All law enforcement officers and correctional officers employed or appointed to a law enforcement agency or a correctional agency shall have the following rights and privileges:
(1) Whenever a law enforcement officer or correctional officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions:
(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement officer or correctional officer is on duty, unless the seriousness of the investigation is of such a degree that immediate action is required.
(b) The interrogation shall take place either at the office of the command of the investigating officer or at the office of the local precinct, police unit, or correctional unit in which the incident allegedly occurred, as designated by the investigating officer or agency.
(c) The law enforcement officer or correctional officer under investigation shall be informed of the rank, name and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the investigation. All questions directed at the officer under interrogation shall be asked by and through one interrogator at any one time.
(d) The law enforcement officer or correctional officer under investigation shall be informed of the nature of the investigation prior to any interrogation, and shall be informed of the name of all complainants.
(e) Interrogating sessions shall be for reasonable periods and shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.
(f) The law enforcement officer or correctional officer under interrogation shall not be subjected to offensive language or be threatened with transfer, dismissal, or disciplinary action. No promise or reward shall be made as an inducement to answer any questions.
(g) The formal interrogation of a law enforcement officer or correctional officer, including all recess periods, shall be recorded, and there shall be no unrecorded questions or statements.
(h) If the law enforcement officer or correctional officer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, he shall be completely informed of all his rights prior to the commencement of the interrogation.
(i) At the request of any law enforcement officer or correctional officer under investigation, he shall have the right to be represented by counsel or any other representative of his choice, who shall be present at all times during such interrogation whenever the interrogation relates to the officer's continued fitness for law enforcement or correctional service.
The following acts are considered to be unethical conduct for law enforcement officers, and may result in loss of certification:
Conversion of Prisoner's Property
Giving false or slanted testimony
Violation of laws and regulations
Violations of civil rights
Willful neglect of duty
Divulging confidential information
Violation of privileged communication
Q. Repossession Law
In Florida an individual may retain a security interest in an item of personal property which is sold and upon which money is loaned. Under the civil laws of Florida such a person, known as the creditor, has the right to engage in "self help" in regaining possession of an item when the debtor is in default of his promise to pay. Self help may take the form of repossession with or without a Court Order. When accompanied by Judicial Process, the document which is obtained from the Court to aid in the repossession is called a "Writ of Replevin."
To repossess means to regain possession of an item and a "repossessor" is defined as any person, who for compensation, recovers goods or property as the result of defaults in payment.
The primary function of a police officer during a self help repossession without Judicial Writ of Replevin is to maintain the peace and to remain neutral.
The right to regain possession without Judicial Process is protected by law only so long as it can be done without breaching the peace. When attempted without a Court Order the creditor may not enter the debtor's home or garage without permission, but may step upon the property to remove items from the property so long as there is no confrontation with the debtor. Gates or other barriers should not be moved or set aside nor should fences be broken to gain access to the property. Repossession from a public street, provided there is no breach of the peace, is acceptable. The threat of force or other threats to accomplish even a lawful repossession could constitute extortion under the laws of Florida.
A debtor has a right to object to the taking of property by the repossessor prior to the taking when there is no Judicial Writ involved. Once the debtor objects to such self help repossession, the repossessor must depart the property and resort to legal process.
Law enforcement officers called upon to assist in a repossession when a Writ of Replevin has been issued must, of course, maintain the peace but may aid the repossessor in entering the property under reasonable circumstances to accomplish the purpose of the Writ.
R. Driver License Law
The state agency responsible for issuing, revoking and canceling driver licenses is the Department of Highway Safety and Motor Vehicles (DHSMV).
Florida law defines an "operator" as a person in actual physical control of a motor vehicle upon the highway or a person who is exercising control over a vehicle which is being towed by a motor vehicle.
To operate a motor vehicle on the highways requires the issuance of a driver's license by the state of Florida. Individuals who are exempted from obtaining a Florida driver's license include:
(1) A person properly licensed in another state.
(2) A U.S. government employee operating a U.S. government vehicle on official government business.
(3) An individual temporarily operating farm machinery, tractors or implements temporarily on a highway.
(4) An individual operating a golf cart.
An individual who is charged with failing to have a driver's license in possession at the time of a traffic stop has the opportunity to present a properly issued license in effect at the time of the stop at their Court appearance and the citation will be canceled. An officer who charges an individual with failing to have a valid driver's license in their possession is entitled to place the imprint of the driver's fingerprint on the citation.
Individuals must notify DHSMV of address changes within ten days.
The department defines "canceled license" as a license issued in error or fraud which is terminated. A "suspended license" is a license which has been temporarily withdrawn, while a "revoked license" is a license which has been terminated but for which a new license may be obtained.
Persons under the age of 18 found guilty of certain alcohol or controlled substance offenses are subject to having their driver's licenses revoked or their eligibility for licensing delayed.
The following offenses are misdemeanors:
(1) To display or have in one's possession any canceled, revoked, suspended, fictitious or fraudulently altered driver's license.
(2) To lend a driver's license to another.
(3) To use another's driver's license.
(4) To fail or refuse to surrender a license to DHSMV.
(5) To permit any unlawful use of a driver's license.
(6) To obtain two driver's licenses in different names.
Officers who make stops suspecting that a driver is impaired, and who wish to submit the operator to a chemical test, must inform the driver as follows:
(1) That the driver's license privilege will be suspended for 12 months unless consent to the test is obtained.
(2) That if the driving privilege has previously been suspended, it will be suspended for 18 months if consent to a chemical test is not given.
This is known as the Implied Consent Law.
Officers should review the driver's license to determine if there are restrictions placed upon the license and if the driver is complying with those restrictions. Restrictions include corrective lenses; outside rear view mirror; business or employment purposes only; daylight driving only; or accompanying driver over the age of 18.
We define "nuisance" as follows:
(1) An offensive, annoying, unpleasant or obnoxious thing or practice.
(2) Anything which causes harm or annoyance to persons in a particular locality or anything which injures the health of citizens in general or corrupts the public morals.
Disorderly conduct and breach of the peace are defined as acts to corrupt the public morals and include brawling and fighting.
Harassing phone calls are also considered to be a public nuisance and these would include obscene, lewd, filthy, indecent, abusive or threatening phone calls. No conversation is necessary for the phone call to constitute a harassing phone call. Calls placed continuously, without conversation, with the intent to harass, constitute a crime in Florida. Disorderly intoxication, defacing, injuring or removing any tomb, monument or gravestone, are all nuisance related offenses.
A licensed establishment may be characterized and prosecuted under local ordinances or state law as a "public nuisance" when its operation continually results in illegal activity such as gambling, drug dealing, homicides, assaults, etc.
A police officer has a right to enter into any licensed establishment. Upon entering the establishment the officer's responsibility is to observe the activities within the establishment to be certain that the laws of the state or the municipality are not being violated. The officer has further authority to walk behind the bar and to check for the proper licensing of the establishment as well as compliance with the Alcohol/Tobacco Laws. The officer should note tobacco products and alcohol products and determine if they are properly stamped for taxation.
Repeated problems at licensed establishments should be reported to the State Department of Alcohol, Tobacco Tax/Department of Business Regulation and to the City or County Attorney's Office for consideration of license revocation proceedings and/or closing the operation as a public nuisance through the application of Civil Laws.
T. Traffic Laws
Florida Statute 316 is the statute that deals primarily with traffic offenses.
Officers initiating traffic stops must do so on the basis of probable cause or founded suspicion that the traffic laws are being violated.
The initiation of a traffic stop and an encounter with a citizen as a result of that stop does not trigger any requirement for an advice of rights under Miranda. However, at such point in time as the traffic stop becomes a criminal investigation, because the individuals are "in custody," appropriate Miranda warnings must be given.
The purpose of enforcing traffic laws include the following:
(1) To prevent traffic accidents.
(2) To allow for an orderly expeditious flow of traffic.
A traffic violation is typically an infraction and is not defined as a "crime" in the state of Florida. However, there are several criminal traffic violations which are considered to be criminal (i.e. misdemeanors):
(2) Failure to obey the lawful order of a police officer.
(3) Leaving the scene of a collision involving property damage or injury.
(4) Reckless driving.
(5) Making false accident reports.
(6) Obstruction of an officer.
(7) Fleeing or attempting to elude a police officer.
Florida law requires that when a school bus has stopped and displays its stop signal all motor vehicle operators shall stop and not pass the school bus until its signal has been withdrawn. Only traffic traveling in the opposite direction from a stopped school bus on a divided highway where the roadways are separated by at least five feet of unpaved median may proceed past a stopped bus.
The definition of reckless driving is any person who operates a vehicle with willful or wanton disregard for the safety of persons or property. A death that occurs as the result of the reckless operation of a vehicle or a vessel is a third degree felony known as Vehicle/Vessel Homicide.
If an individual is killed as the result of a collision which is at least partially caused by the grossly negligent operation of a motor vehicle, or by the operation of a motor vehicle whose driver is impaired, is subject to the charge of manslaughter in Florida.
Motorcycle operators in Florida must be specifically licensed to operate such vehicles. In the operation of a motorcycle the operator is:
(1) Entitled to full use of a lane.
(2) Should not overtake or pass in the same lane occupied by the vehicle being overtaken.
(3) Shall not operate between lanes or between adjacent lanes or rows of vehicles.
(4) Shall not operate more than two abreast in a single lane.
(5) Must wear protective head gear and eye protection.
No person shall operate a vehicle while wearing a headset, headphone or other listening device (other than a hearing aid).
Children five years of age or younger must be secured in a federally approved child restraint device. All individuals seated in the front seat of a vehicle must wear restraint devices.
The penalty for willfully refusing to sign a traffic citation is a second degree misdemeanor. However, the officer must be certain that a full explanation is given to the violator with regard to the reason for signing the citation (not an admission of guilt, but rather a promise to appear in Court).
In filing an affidavit of arrest for refusal to sign a traffic citation, the officer must include the nature of the offense the defendant has committed and must further assert that the defendant was told that the signing of the citation was not an admission of guilt but simply a promise to appear in Court at a later date. The officer must further state in the affidavit that he advised the subject that refusing to sign the affidavit would result in his arrest.
A Court as part of the punishment for DUI may order a driver on probation to use an ignition interlock device during the term of probation.
U. Emergency Vehicles
Emergency vehicles are defined as vehicles so designated by the Department of Transportation, fire or police vehicles, ambulances, or those vehicles designated or authorized by a Chief of Police of any incorporated city or any Sheriff.
The operation of emergency vehicles and laws relating to pursuit driving are governed in three areas:
(1) Department policies
(2) Local ordinances
(3) State law
Under Florida Statute 316, an individual is operating a vehicle in emergency mode when:
(1) In pursuit of an actual or suspected violator of the law.
(2) Responding to a fire alarm.
(3) Responding to an emergency call.
While operating in the emergency mode the operator should warn motorists and pedestrians by activating either an audible signal (siren or whistle), a visible signal (blue or red lights) or take other adequate action to identify the vehicle as an emergency vehicle. Officers violating traffic laws must activate emergency equipment to be protected. An officer not in emergency mode must obey all traffic laws.
While operating in the emergency mode police officers under Florida Statute 316 may do the following:
(1) Park or stand irrespective of restrictions.
(2) Proceed through a traffic control device or intersection after slowing as necessary for safe operation.
(3) Exceed the speed limit so long as life or property is not endangered.
(4) Disregard regulations governing direction or movement or turning in specified directions so long as same may be done safely.
It must be remembered that the operator of an emergency vehicle has the duty to drive with due regard for the safety of all persons and for the protection of property. An individual who operates an emergency vehicle in an unsafe manner is not protected from civil suit or possible criminal prosecution when persons are injured or killed as the result of the negligent or unsafe operation of the vehicle.
In addition, the employing agency may incur civil liability for the wrongful actions of its officers under the concept of vicarious liability.
Motor vehicle "pursuit" is defined as an active attempt by an officer in an authorized emergency vehicle to apprehend the occupants of a moving vehicle. However, the driver of the pursued vehicle must be aware of the attempt to stop by the officer and must increase speed or take evasive action or refuse to stop in an attempt to avoid apprehension.
Due to the nature of civil liability which may arise as the result of a lawful police pursuit when third parties are injured or killed and it can be shown that the pursuit "causally" resulted in death or injury has caused all departments to re-evaluate their motor vehicle pursuit policy. The operation of a motor vehicle in an emergency or pursuit mode constitutes the implementation of a "deadly instrumentality."
When an emergency vehicle approaches, all operators have a duty to pull over to the side or remove themselves from the path of the oncoming vehicle and to remain stationary until the emergency vehicle has safely passed.
V. Victim Witness Assistance
Florida Statute 960 is known as the "Florida Crime Compensation Act." Law enforcement officers pursuant to said law have a duty to provide information to victims and witnesses which includes the following:
(1) Inform all victims and witnesses of the availability of crime victim compensation; availability of community based victim treatment programs; role of the victim in the criminal justice process; stages of the criminal justice process significant to the victim witness and the manner in which such information can be obtained.
(2) In addition all victims and witnesses must be informed of steps available to them to protect them from intimidation, including Florida Statute 914 which makes it a criminal offense to tamper with, threaten or harass a witness.
Officers should notify victims or witnesses of scheduled appearances or changes in the appearance dates and, if necessary, aid with furnishing transportation.
Police officers must often make referrals of victims or witnesses for help not available directly from the law enforcement agency. This referral process requires the officer to assess the need or the problem of the individual and to identify alternatives that are available, and to facilitate the referral of the individual to the available service.
W. Vessel Law
All vessels, whether pleasure or commercial, must be registered with the state within 20 days after purchase by the owner unless they are otherwise specifically exempt. The state will issue a yearly registration certificate and will assign registration numbers. The registration numbers include the letters FL followed by four numbers and two letters. These registration letters must be prominently displayed on each side of the vessel and it is a misdemeanor to alter or remove these registration numbers.
Each vessel has a hull identification number which is composed of twelve characters. By viewing the hull identification number,the size, model, year and manufacturer of the vessel can be identified. Vessels which have nonexisting or altered hull identification numbers may be forfeited as contraband property. It is a felony to alter, cover, deface or remove any hull identification number.
Vessel registrations and hull identification numbers may be registered with regard to theft through NCIC and FCIC.
Any law enforcement officer may enforce Chapter 327 and 328 of the Florida Statutes which relate to the boating laws and random stops of vessels to check registration and safety equipment is permitted.
A law enforcement officer may board a vessel to inspect safety equipment or check the registration when there is a person on board and:
(1) The person consents to the boarding, or
(2) There is a violation of Chapter 327, or
(3) The person refuses to display the required safety equipment to the officer.
Fleeing or attempting to allude a law enforcement officer in a vessel is a felony.
Jet skis are subject to the regulation of Chapter 327 and no person under the age of 14 may operate such a vessel in the waters of the state.
Other matters relating to the search of vessels are similar to searching a vehicle in that the officer may search without a warrant when he or she has probable cause to believe evidence of a crime or contraband is aboard the boat.
Florida Statute 836.05 provides that the crime of extortion is a felony. Extortion occurs when someone obtains money or any pecuniary advantage from another person by threats, threat of ill treatment, libelous accusations, threats against reputation or exposure of faults.
Extortion occurs even when the person who is threatened is being ordered to do an act which they have a legal obligation to perform. The elements of the crime of extortion include:
(1) May be verbal or written.
(2) Accusing another of a crime.
(3) Injuring another's property or reputation.
(4) Exposing another's secrets.
(5) Exposing another to disgrace.
(6) Causes bodily harm or threatens to commit bodily harm.
(7) Intends to obtain money or other pecuniary benefit.
(8) To compel another to do act against his or her will, or
(9) Not to do an intended act.
Y. Abuse/Exploitation of the Elderly or Disabled
Florida Statute 825 protects the elderly and disabled adults from abuse and exploitation. The infliction of physical or psychological injury by intentional act, or an intentional act which could reasonably be expected to cause such injury are covered. Encouraging another to commit such acts is also forbidden. If the abuse causes great bodily harm, permanent disfigurement or disability it is a first degree felony. If no such permanent injury results, the crime is a third degree felony. The abuse may occur as the result of an intentional act. or by culpable negligence.
The act defines elderly/disabled as a person 60 or older who is suffering from a physical or mental infirmity which impairs the ability of the person to provide adequately for his own care or protection.
The act also protects the elderly from abuse and neglect by caregivers.
The exploitation aspect of the statute is designed to protect the elderly from having their money or property taken by persons in a position of trust or as the result of a business relationship.
Z. Domestic Violence
Domestic violence is of serious concern to the Courts and Law Enforcement. Florida laws are designed to require that both law enforcement and the Court take a very aggressive stance with regard to the identification, treatment and punishment of domestic violence offenders.
In Florida Statute § 784.28, Domestic Violence means any:
a. Assault, Aggravated Assault;
b. Battery, Aggravated Battery;
c. Sexual Assault/Battery;
d. Stalking, Aggravated Stalking;
or any criminal offense resulting in physical injury or death of one "family or household member by another" who is or was residing in the same single dwelling unit.
Under the same statute "family or household member" means:
b. former spouses;
c. related by blood/marriage;
d. residing together as if a family;
e. resided in the past as if a family;
f. child in common-regardless if prior marriage or resided together at any time.
Upon a third or subsequent offense of battery (note: not conviction), when committed under circumstances that constitute the battery as an act of domestic violence as defined in § 741.28, and when the previous offenses of battery were committed under circumstances that constituted the batteries as acts of domestic violence as defined in § 741.28 constitutes a felony of the third degree. The use of the word offense allows consideration of withholds of adjudication for enhancement.
Florida Statute § 741.29 governs the responsibilities of police officers regarding investigation; notice to victims of legal rights and remedies; reporting to domestic violence shelters.
The officer shall:
a. assist victim in obtaining medical treatment;
b. advise victim of domestic violence centers;
c. give victim rights and remedies pamphlet;
d. advise victim of right to file for an injunction;
e. make a written report designating the call as a domestic violence incident;
f. submit report to supervisor; and the agency must, within 24 hours, send report and narrative (without victim/witness statements) to domestic violence center.
The report must include:
a. injuries observed;
b. reasons of non-arrest;
c. that the victim rights pamphlet was given to the victim
d. written statement from victim and witnesses.
The officer may arrest over the objections of the victim, if necessary.
The officer shall evaluate each complaint separately.
Good faith equals civil immunity.
Victims of domestic violence are entitled to obtain, upon affidavit, a Domestic Violence Injunction. The Injunction is issued with hearing and may include immediate removal of the offending party from the house. The Injunction may remain in effect until a hearing is scheduled to be held within 15 days. It may then be made permanent, or dissolved.
The terms of a restraining order or injunction is enforceable by any law enforcement officer. It's provisions may not be altered or waived by either or both parties. Violation of such an order may be punishable either as a crime under Florida State 741.31, or as a criminal contempt proceeding.
Law enforcement must complete its initial criminal investigation and forward an initial report to the State Attorney within 20 days of receipt of a complaint of violation.