The couple was seen by numerous tourists who also claimed a 3 year old child witnessed the man and woman having sex.  Despite cries by witnesses to stop the couple did not listen.  Obviously, in this day and age of cell phones, people took a video of the two having sex.  This was a highly publicized case and you can read more and see the blurred, but still graphic video at:

http://www.bradenton.com/2015/05/04/5781129_couple-found-guilty-of-having.html?rh=1

The defense the couple used that they were only simulating a sex act did not go over well with the jury which convicted the couple of a lewd act in 15 minutes.

Because the male had a previous conviction for trafficking in cocaine and was recently released from a Florida prison sentence for that charge, he qualified as a Prison Release Reoffender (PRR) under Florida Statute 775.082 “Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison.”

Under 775.082, a “Prison Release Reoffender” (PRR) means any defendant who commits, or attempts to commit:

• Treason;
• Murder;
• Manslaughter;
• Sexual battery;
• Carjacking;
• Home-invasion robbery;
• Robbery;
• Arson;
• Kidnapping;
• Aggravated assault with a deadly weapon;
• Aggravated battery;
• Aggravated stalking;
• Aircraft piracy;
• Unlawful throwing, placing, or discharging of a destructive device or bomb;
• Any felony that involves the use or threat of physical force or violence against an individual;
• Armed burglary;
• Burglary of a dwelling or burglary of an occupied structure; or
• Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827.071, or s. 847.0135(5).

within 3 years of being released from a correctional facility.  Lewd & Lascivious crime under Florida Statute 800.04, therefore “sex on the beach” qualifies as PRR crime. Because the male was released from prison within the last 3 years of committing this crime, he must be sentenced to 15 years prison (the maximum for this offense).

The female convicted of sex on the beach in this case does not face the automatic 15 year sentence and is subject to the Florida Sentencing Guidelines.  This is where the felony “Scoresheet” comes into play.  It was not clear what the exact charge was for the 20 year old female.  She could have been charged with committing a lewd act in the presence of a child or just a lewd act.  If it was only a lewd act, that would be a Level 5 offense which scores 36 points.  Under the Florida Sentencing Guidelines she would also score 80 points for “penetration”.  Putting that in the Scoresheet formula would result in a minimum sentence of 5.5 years.

36 points + 80 points = 116 – 28 = 88 * 0.75 = 66 months minimum

12 months in a year, so

66 / 12 = 5.5 year minimum prison sentence.

If it was scored as a Level 7 offense (56 points instead of 36), this would increase the minimum prison sentence to 6.75 years.

There would be no “Victim Injury Points” because the State of Florida is the victim in this case and there was no contact with any children, only consenting adults.

The prosecutor stated they would only be seeking a jail sentence in the female’s case, but if she is given a jail sentence, that will mean she is a convicted felon in addition to being a sexual offender.  The judge can mitigate her sentence and not give prison time if he finds she qualifies for one of Florida’s “Mitigating circumstances” under Florida Criminal Statute 921.0026 which allow departure under the minimum sentence.  The mitigating circumstances listed in the Florida statute are:

• (a) The departure results from a legitimate, uncoerced plea bargain.
• (b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
• (c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.
• (d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.
• (e) The need for payment of restitution to the victim outweighs the need for a prison sentence.
• (f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.
• (g) The defendant acted under extreme duress or under the domination of another person.
• (h) Before the identity of the defendant was determined, the victim was substantially compensated.
• (i) The defendant cooperated with the state to resolve the current offense or any other offense.
• (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
• (k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.
• (l) The defendant is to be sentenced as a youthful offender.
• (m) The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheet total sentence points under s. 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term “nonviolent felony” has the same meaning as provided in s. 948.08(6).

The judge can consider other mitigating factors not listed above.  The most likely one to be used in this case is f,g, j, and possibly k.

Neither are subject to a $5,000.00 civil penalty like “johns” are in prostitution cases either which is set for oral arguments on Wednesday before the 2nd DCA.  I will continue to follow the sentencing in this case and keep you updated.

IF YOU THINK YOU ARE BEING INVESTIGATED FOR A SEX CRIME OR HAVE BEEN ARRESTED FOR A LEWD & LASCIVIOUS OFFENSE, CALL NOW AND SPEAK TO AN EXPERIENCED CRIMINAL SEX CRIMES ATTORNEY.

THOMAS C. GRAJEK 863-688-4606

In Florida, child support is not an obligation that one parent has to the other. Instead, it is an obligation that each parent has to the child — from the day he or she is born until he or she reaches adulthood. 

Florida Statute §61.30 sets the guidelines that Florida courts use to determine how much child support a parent owes. The statute establishes minimum levels of support based on the parents’ combined income. Courts use these guidelines to determine each parent’s individual child support obligation based on his or her proportion of the couple’s combined income.

The income used to make this determination is net income – gross income minus certain deductions. Gross income includes employment income (such as wages, salary, commissions and bonuses) and retirement, pension and social security benefits. Allowable deductions include federal, state and local taxes, mandatory retirement contributions, union dues and health insurance premiums.

The child support figure that results from this series of calculations is generally presumed to be correct, but the court may deviate from the guidelines. Taking into account “all relevant factors,” including the child’s needs and the financial status of each parent, the court may increase or decrease this amount by up to five percent. The court may alter the figure by an even greater amount if it provides written findings explaining its reasoning.

The court that enters a child support order retains jurisdiction to alter that support in the future. The court may do so when it is in the child’s best interests or when circumstances change substantially. 

A parent who wishes to modify his or her child support obligation must show that the change in their circumstances is material, significant, permanent and involuntary. For instance, a parent who chooses to quit a high-paying job for a lower-paying job would not be eligible for a modification because the change is voluntary. Parents who choose to have income significantly less than that readily available to them may find the court will attribute additional income to them. This is called “imputing” income.

If you have questions or concerns about your current or possible child support obligation, contact Osenton Law Offices.

Contact a divorce attorney and Brandon family law lawyer with the Osenton Law Offices, P.A. To learn more, visit http://www.brandonlawoffice.com/

The arrest allegedly stemmed from text messages the teen’s mother found on her son’s phone.  The mother then allegedly asked the teacher to come to her home to talk about the relationship.  The teacher then allegedly admitted to having numerous sexual encounters in different locations in Lakeland.  Sexual battery charges are very serious and can result in a person being a sexual predator or sexual offender. Usually, the police will conduct “controlled phone calls” in these cases which will become a key piece of evidence in the sex prosecution.  In Florida, it is a felony to tape record a conversation with another person without their knowledge.  However, one of the exceptions to this rule is if the phone call is recorded at the direction of the police to conduct an ongoing investigation.  The Probable Cause Affidavit states the teacher allegedly made statements admitting the sexual affair during one of these “controlled phone calls”.  However, I have seen numerous cases where the police allege a suspect admitted to a crime, but when you listen to the tape, this is absolutely not the case and poetic license is taken when interpreting what is actually said on the tape.  The defense attorney is entitled to a copy of the tape to see exactly what was said during the recorded call.

The teen allegedly told police that sexual acts occurred in Hillsborough County as well as Polk County.  If that is true, additional charges can be brought in Hillsborough County also.  In ever criminal case, the prosecution has to prove the “venue” of the crime.  That means, the prosecutor has to prove the crime was committed in the prosecutor’s jurisdiction.  So, each act is a separate crime and each county’s prosecutor can bring sexual battery charges if the crime allegedly happened in their county.

Fichter was booked into the Polk County Jail on six (6) counts of “Unlawful sexual activity with a minor” in violation of Florida Statute 794.05 which states “A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree… “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.” A 2nd degree felony is punishable by up to 15 years in Florida state prison for each count (each sex act).

If you have been arrested for rape, sexual battery, unlawful sex with a minor, or any other sex crime,call an experienced criminal defense attorney to fight for you in court.

Thomas C. Grajek – 863-688-4606

If you or a person is involved in an accident or crash that results in injury or death to any person, including a passenger, the driver is required to:

• Stop immediately,
• Provide their name, address, registration information, and driver’s license, and
• Render reasonable assistance to the injured or deceased person by transporting, or making arrangements for the transportation, of the person to a medical professional for treatment if it is apparent that treatment is needed or the person requests assistance.

If the person injured or deceased is not in a condition to receive your information or be transported, you are required to report the accident or crash to the nearest law enforcement agency as quickly as possible and provide your name, address, registration information, and driver’s license.

There are various defenses to these crimes.  First, the prosecutor has to prove who was driving the car.  Often there are no witnesses to these accidents because they happen late at night or the driver never gets out of the vehicle and flees so no eyewitnesses get a good look at them.  In the Tampa case, the car was spotted in a parking garage so if the woman arrested does not make any statements admitting her involvement in the accident, the prosecutor may have a difficult time proving that she was driving at the time of the accident.

Another defense is whether the driver knew or reasonably should have known someone was injured or killed.  Many times we see cases in which the person thinks they hit a deer or other animal.  There was a recent case in Buffalo in which the driver was found not guilty because the BMW is now so well-built that a driver does not feel the impacts of certain accidents.

Finally, if a driver is  rendered physically incapacitated and unable to report the crash or accident, he or she is exempt from fulfilling the requirements of the leaving the scene of an accident statute.

This crime is one of the most serious under Florida law.  It is a Level 7 offense on the Scoresheet and Florida Sentencing Guidelines.  Because the crime of “leaving” the scene does not cause the death, a driver arrested for this crime will not receive the 120 Death points on the Scoresheet.  That means they will only score 56 points for the Level 7 felony offense which will equate to a minimum sentence of approximately 21 months Florida State Prison as a “guideline sentence” for the judge.

The driver arrested in this case is also a nurse so she may be subject to disciplinary action by the Board of Nursing and Department of Health.  She will need an experienced criminal lawyer to defend her in court.

If you have been arrested or the police want to talk to you about your possible involvement in a crime, talk to an experienced criminal defense attorney who knows the laws and will fight to protect you!

Call Thomas C. Grajek 863-838-5549  cell

http://tbo.com/news/crime/tailgater-crashes-gets-arrested-state-troopers-say-20140327/

In the video, the car in front is allegedly being tailgated by the truck.  The truck is finally able to get around the car to his right and catches up to the car that was in front of him.  The driver then makes an obscene gesture to the slow driver who was in the fast, passing lane.  The truck driver then gets in front of the car only to hydroplane and wipe out on the other side of the road.  The driver of the pickup truck allegedly left the scene of the accident.  In Florida, if you are involved in accident involving property damage, you are required under Florida Statute 316.061 ”Crashes involving damage to vehicle or property” to immediately stop your vehicle at the scene of the accident/crash or as close as possible, and shall fulfilled the requirements of Florida Statute 316.062.

Florida Statute 316.062 “Duty to give information and render aid” requires a driver to give his or her name, address, and the registration number of the vehicle he or she is driving, and shall upon request exhibit his or her license to drive, to any person injured in such crash or to the driver or occupant of or person attending any vehicle or other property damaged in the crash.   The driver must also give that information and exhibit his license any police officer at the scene of the crash or who is investigating the crash.

There is an issue in this case as it was a one car accident so there was no other driver to give the information to and no officer to inform.  In addition, there is another statute that has a 10 day period for reporting accidents.  If the alleged “aggressive” driver could be charged with this crime, then the driver who videotaped it could potentially be charged if found to be involved in the accident.  This will  not happen, but theoretically could be and may help give a defense to the arrested driver.

Florida did not pass the “move over law” that would require slow drivers in the passing lane to “move over” when a vehicle behind them is trying to pass.  Had the driver in front moved over, maybe the accident would never have occurred.  In addition, the driver in front never really knows who is behind them and not moving over can lead to dangerous “road rage” incidents.

The best policy is to drive safe and be courtesy to other drivers on the road to avoid any accidents or tragedies on our highways. Leaving the scene of an accident with property damage is a 2nd degree misdemeanor in Florida.

If you have been arrested for a “road rage” incident, Reckless Driving, or Leaving the Scene of an accident, call an experienced trial lawyer that knows how to defend these criminal cases.

Thomas C. Grajek 863-688-4606

It is a crime to expose or exhibit one’s sexual organs in public or on the private premises of another in Florida (or if the suspect can be seen from private premises) in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. A mother’s breastfeeding of her baby does not under any circumstance violate this section.  Exposure of a sexual organ is a first degree misdemeanor punishable by up to one year on jail, 12 months probation, or a combination of both.

Most people charged with this crime are hoping to eventually seal or expunge their arrest record.  In order to be eligible, the defendant would have to have the case dismissed through the filing of a motion, be found not guilty at trial, or receive a withhold of adjudication.  That is why it is important to retain an experienced criminal attorney for this charge.

It appears Kellen Winslow’s defense will be that he allegedly pulled over to a parking lot to smoke what he thought at the time was a legal substance. He allegedly changed his clothes in his vehicle as not to smell like smoke when he returned home. Kellen allegedly is arguing that absolutely nothing inappropriate that took place.  The substance was allegedly synthetic marijuana. Winslow pleaded not guilty to the pot charge and police didn’t charge him with lewdness because she chose not to file charges or come forward to testify against him. If the substance was synthetic marijuana and it is legal in New Jersey to possess this substance, he may end up with all charges dismissed against him.  How good was that defense if the witness did come forward to testify against him?  Allegedly, the police seized two open jars of Vaseline found on the console of his vehicle, and when an investigating officer approached the car, “Winslow sprang to an upright position.”  With that corroborating evidence, it might have been a tougher case to defend, but in the end Winslow may get lucky and end up with all the criminal charges dropped.  If you have been arrested for a sex crime in Polk County, retain an experienced criminal lawyer to defend you in court.

CALL NOW AND SPEAK TO AN EXPERIENCED SEX CRIMES ATTORNEY WHO HAS HANDLED AND TRIED THESE TYPES OF CASES.

THOMAS C. GRAJEK 863-688-4606

 EXPERIENCE COUNTS – CALL NOW

Office – Lakeland, FL

Experienced criminal attorney handling all child pornography, sexting, voyeurism, sexual battery, assault, lewd and lascivious, and child molestation crimes in PolkCounty and Florida.

The Plant City school teacher allegedly committed these acts with three separate people who reported seeing a man masturbating in his vehicle. Because of the ages of the alleged witnesses to these sex acts, he was arrested on felony charges.  He was arrested and charged with two counts of lewd exhibition on a child under 16 and two counts of indecent exposure.

The teacher was charged under Florida Statute 800.04 “Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.”  Subsection (7) “Lewd or lascivious exhibition” states “A person who

1. Intentionally masturbates;

2. Intentionally exposes the genitals in a lewd or lascivious manner; or

3. Intentionally commits any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity

in the presence of a victim who is less than 16 years of age, commits lewd or lascivious exhibition.

An offender 18 years of age or older who commits a lewd or lascivious exhibition commits a felony of the second degree, punishable by up to 15 years in Florida State Prison for each alleged act.

Sheriff Grady Judd is looking into other incidents that may involve this arrested person.  I have handled these types of cases before and this is not an uncommon tactic by the police.  Once the arrest someone, they will take that person’s mug shot, put it into a photo line-up and show the photo array to witnesses in cold cases.  The problem is that the police do not videotape or audiotape this show-up so it makes it difficult for a criminal defense attorney to insure the procedures used by the police were not unduly suggestive.

If you have been arrested for a sex crime, call Thomas C. Grajek, an aggressive Polk county criminal defense attorney that has experienced defending these types of criminal charges.

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

You will not have to drive to another county. Office – Lakeland, Polk County.

 Thomas C. Grajek  863-688-4606

Handling all felony and misdemeanor sex cases in Polk County, Florida including Bartow, Lakeland, Winter Haven, Auburndale, Haines City, and Davenport.

It takes a lot of time and effort to properly prepare a “Writ of Cert” if you want to win the appeal.  You are trying to persuade the Court that the DHSMV did not afford a driver due process of law.  The DHSMV tries to continuously shift their burden to the driver in these cases in clear violation of the law.  This is not surprising to anyone who has dealt with the DHSMV, had problems trying to get their license reinstated, or waited in line at the driver’s license office.  You have to fight against them.  A DUI attorney has to be thorough and research the case law and DUI statutes.  The arguments have to be clear and easy for the Court to understand.  This was just the Response and not even the original Petition for Cert prepared in this case, but it is an important opportunity to demonstrate to the Court that the DHSMV is wrong and their reasoning faulty.

If you have been arrested for DUI, why should it matter that I file writs in Formal Review cases for my clients arrested for DUI?  Because this type of in-depth research and fighting spirit makes me the Polk DUI lawyer you want on your case.  Do you want a lawyer that gives up? Do you want a DUI attorney standing by your side in court that knows the DUI laws?  Do you want a Polk DUI lawyer that knows how to properly defend a DUI and file writs? Do you want an attorney that does not subpoena witnesses to the administrative hearing and does not file Motions to Suppress in Court like me?  Preparing a DUI appeal means that I am better prepared to handle your DUI case and argue in court for you!

Recently, the administrative DUI suspension rules have changed.  Florida Statute 322.2615 that governs DUI suspensions was overhauled July 1, 2013.  Many Polk DUI defense attorneys do not know this happened.  Some lazy DUI lawyers are encouraging people arrested for DUI to blindly waive their right to a Formal Review!  I win many DUI cases because of what I learn in a Formal Review hearing, such as my recent Lakeland DUI case that was featured in the news.

There are benefits and consequences to these changes in DUI law.  You need to discuss your options with a DUI attorney well-versed and experienced in Florida DUI law to make an informed choice that is right for you..

Call me, Thomas C. Grajek, a Polk DUI lawyer that will fight for you!

863-838-5549

You only have 10 days to request a Formal Review or obtain a hardship license after your DUI arrest.

Call for a FREE CONSULTATION to learn which option is best for you and what must be done in 10 days to qualify for the hardship license election.

Normally in a criminal trial, the attorneys will invoke the “Rule of Sequestration” that prevents witnesses from being present in the court room when another witness is testifying.  It also prevents the witnesses from talking to each other about the case once the rule is invoked.  The purpose of the rule is to insure that each witness’ testimony is not influenced by what other witnesses say.

So why is Trayvon’s mother allowed to be in the courtroom and watch the proceedings and still testify against George Zimmerman?  There is an exception to the rule.  Florida Statute 90.616 “Exclusion of witnesses” states:

(2) A witness may not be excluded if the witness is:

(d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

Also Article I, section 16(b) of the Florida Constitution provides:

Alleged victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

Because her son was a minor at the time of the alleged offense, she can remain in the court room during the entire proceeding.  Davis v. State, 875 So.2d 359 (Fla. 2003).

The Rules of Evidence are extremely important in a criminal case.  Call an experienced Polk criminal lawyer who knows the rules of evidence and will use them to take advantage of the facts in your case.

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

You will not have to drive to another county. Office – Lakeland, Polk County.

 Thomas C. Grajek  863-688-4606

Handling all felony and misdemeanor criminal cases in Polk County, Florida.

This is due to the fact that our Florida and United States Constitution protect citizens from “Ex Post Facto” laws.  Judge Fegers ruled that the legislature did not intend the statute to be applied retroactively which ended the matter.  However, because the judge did s thorough job, he also analyzed the civil penalty under the “ex post facto doctrine”.  This doctrine protects against laws that increase a penalty for the criminal offense AFTER the crime has been committed.  The issue in essence was whether when a suspect is charged with violating Florida Statute 796.07(2)(f), the “civil penalty” is a punishment or a “civil remedy” that would not be subject to ex post facto analysis.

Judge Fegers order found that because of the language used in the statute (the word “penalty”), the amount of the penalty, and the imposition of the penalty as to specifically prescribed conduct constituting a specific criminal offense, that the $5,000.00 is a fine and a “penalty” and not a “cost”.  This means that the court will not impose the “civil penalty” in excess of $500.00 for violations of Florida Statute 796.07(2)(f) for offenses that occurred prior to the change in the prostitution statute.  The “civil penalty” was previously $500.00 for “johns” only.

This motion was filed on the limited basis of increasing the fine in cases where “johns” arrested before January 1 for those that did not resolve their cases quickly.  I am still waiting for a ruling from Judge Ojeda as to whether the statute is constitutional on a number of other challenges and grounds.  This ruling is expected within the next couple of weeks and will apply to prostitution offense committed after January 1, 2013.  Judge Fegers ruling helps my motion because he has now declared the $5,000.00 fine a “penalty” which is a key argument in my motion.  Attorney Larry Shearer did an excellent job writing the “Ex Post Facto” motion and arguing it to get this result.

If you have been charged with prostitution or any other crime, call an speak to an aggressive lawyer that will fight for you!

CALL AND SET YOUR FREE OFFICE CONSULTATION NOW! 

You will not have to drive to another county. Office – Lakeland, Polk County.

Thomas C. Grajek  863-688-4606

Handling all felony and misdemeanor criminal cases in Polk County, Florida.