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Self Defense

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It seems to be a universally accepted fact that a person has the right to defend themselves against the perceived threat of bodily harm or death, even when the force used in defense would normally considered to be crime to do so.

Many laws vary from state to state, this article is giving a general overview, and an attorney should always be consulted in any legal issue.

Findlaw defines the argument of self-defense as:  “The right to prevent suffering force or violence through the use of a sufficient level of counteracting force or violence”.  [1]

This may seem like a straight-forward means of defense, but it rarely is.  There are many questions that surround this definition and need to be answered in each case.  What is considered a sufficient level of force?  At what point has the perceived victim gone beyond that point?  Could and/or should the person first attempted to retreat?  What if the victim provoked the attack?  What if the threat wasn’t really there?  This defense is more complicated that it seems on the surface.

The use of self-defense must be similar to the level of threat in question.  In other words, a person can only use as much force as needed to stop or remove the threat.  A victim cannot kill a person for slapping them across the face.

Self-defense justifies the use of force when it is used in response to an immediate threat, but one must stop using force once the threat has ended.  Any use of force by the victim after this point is considered to be retaliation and not self-defense.

Some states say the victim should first make an attempt to avoid the violence before using forces, but many have removed this clause and the “stand your ground” defense can be used.

The state of Florida condones the stand your ground defense and can be found in statute 776.012, which states:

…a person who uses or threatens to use force in accordance with this subsection does not have the duty to retreat before using or threating to use such force.

A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm…[2]

As stated earlier, the laws have many interpretations to each person and each situation, and an attorney should always be consulted when a person is being charged with a crime.  The Law Offices of Travis Koon are Florida attorneys that understand the ins and outs of Florida law, with offices located in Lake City, Miami, and Gainesville.  Call us today if you need legal consultation or have questions regarding your case.

[1] http://criminal.findlaw.com/criminal-law-basics/self-defense-overview.html

[2] http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776.html

Miranda Rights

Posted by | Attorney, Criminal Defense, Drug Crimes, DUI, Seizure | No Comments
DUI

Miranda Rights

If you ever watched a movie or TV show that showed an arrest, you have heard the Miranda Rights being read.  We all know the basics of it, but let’s look at this warning a little more, and dispel some of the misconceptions.

 

The Miranda Warning is simply and explanation of the person’s rights that are given before any interrogation can begin.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

 

If a person does not understand these rights, then it is best to speak up and say so, have it explained.  But once it is understood, my best advice is to politely stop talking.  Do not explain anything or make any remarks that may be used against you.  Stop talking and call an attorney.

 

In 1963 Ernesto Miranda was arrested and charged with the kidnapping and rape of a woman, he had a prior record as being a peeping tom.  He confessed to the crime but soon recanted saying he was forced and coerced into confessing.  He was found guilty, but the ACLU picked up his case and appealed it.  In Miranda v. Arizona (1966) the Supreme Court found that his Fifth Amendment rights had been violated.  The Fifth Amendment to the United States Constitution covers several issues, which include the right to due process, double jeopardy, but significant to this case because it protects the individuals from self-incrimination.  Miranda was re-tried and once again found guilty – but the Miranda Rights were born.

 

An arrest can occur without the suspect being Mirandized, if the police later decide to question the suspect, the rights will be read at that time.  A person may still be asked common information such as name and age, and can be searched, for the safety of the officer. 

 

It is a myth that if a person is not read their rights that they will not be found guilty of any charges.  It only means that the self-incrementing confession may not be used against them; it has nothing to do with protecting them against the punishment as a whole.

 

If you are arrested and read these rights, please take the advice and do not say anymore.  Call us immediately at The Law Offices of Travis Koon.  We are criminal defense attorneys in Florida and can speak with you about your case.  We are located throughout Florida with offices in Miami, Lake City, and Gainesville.  Before you tell your side of the story, always call and attorney and tell it to us first.  We are here to help you through this trying time.

Statute of Limitations

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It is amazing how a mistake from your past can still haunt you today. A ‘statute of limitations’ is the deadline for filing a lawsuit or being charged with a crime. Most must be filed within a certain amount of time and once the time on a case runs out, the legal claim is no longer valid.

The reasoning behind a statute of limitations is to ensure convictions only happen when the physical or eye witness evidence has not deteriorated over time; people’s memories fade, or change as the years pass. It is believed by some that if the criminal has been living in the public and maintaining a ‘reformed’ life, that after a reasonable amount of time, he/she is to be free from arrest and conviction.

The time that a person can file a lawsuit varies on the type of claim and the state in which it will be filed. For criminal charges, prosecutors cannot charge a person for a crime after the specified number of years has passed. But some crimes, such as murder, are considered so serious that there is no statute of limitations.

The case against the famous filmmaker Roman Polanski is still on-going. He is accused of a child sex crime that occurred in Poland in 1977, and he is still fighting this charge. In the same year, he pled guilty and served 42 days in jail. In 1978 he moved to the United States for fear a judge may overrule his plea bargain and sentence him for a longer period of time.

Some examples of a crime committed in Florida and that statute of limitation associated with each are listed below. Please remember this is just an example; contact a qualified attorney for questions regarding your specific situation.

• Felony crimes that result in death, or felony crimes that are punishable by life in prison = no statute of limitations
• First degree felony = 4 years after the crime has been committed
• Other felonies = 3 years after the crime is committed
• First degree misdemeanor = 2 years after the crime is committed
• Second degree misdemeanor = 1 year after the crime is committed

Please don’t assume that just because the statute of limitations has expired that you cannot be charged with a crime; in certain instances the statute of limitations clock stops running and can be restarted again at a later date this is referred to as “Tolling,” meaning a person can be charged of a crime even after the allotted years have expired.

The laws can be very confusing. If you are charged with a crime that happened years ago, contact our office immediately. We are The Law Office of Travis Koon and are Florida attorneys that handle criminal cases. We have offices in several cities that can evaluate your case. If you need a top notch criminal defense attorney in Gainesville, Lake City, or Miami, you need to call us now.

Double Jeopardy

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The Fifth Amendment to the United States Constitution protects individuals from state and federal governments in several ways: from prosecuting for the same crime on more than one occasion, it protects individuals from imposing more than one punishment for a single offense, and sets precedence that a person shall not be a witness against themselves… commonly known as Double Jeopardy.

The Fifth Amendment to the Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

This Amendment was put into place to protect the people from government, prosecutors, and judges charging indiscriminately. It is here to:
• Prevent the government from using its powers to wear down and wrongly convict an innocent person.
• Protect an individual from the emotional, financial, and social consequences of successive prosecutions.
• Preserve the integrity and finality of criminal proceedings. These may be compromised if the states were allowed to arbitrarily ignore unsatisfactory outcomes.
• Restrict the prosecutions discretion over the charging process
• Eliminate judicial discretion to impose cumulative punishments that the government has not authorized

As with any law or Amendment, it can and has been interpreted in many ways – it is rarely cut and dry. There are four central questions that must be answered in order to determine if double jeopardy has occurred:
• In what type of legal proceedings does double jeopardy protection apply?
• When does it begin?
• When does it end?
• What constitutes as successive prosecutions or punishment for the same offense?

When double jeopardy begins and ends has been defined and is fairly clear (therefore the courts don’t argue over this). But determining the type of legal proceedings and what constitutes as successive punishments has been a struggle for the courts.

When Double Jeopardy Begins and Ends
During a jury trial, double jeopardy begins when the jury is being selected. If it is a trial to be heard in front of a judge, double jeopardy beings when the first witness is sworn in.
Determining when double jeopardy ends is a little more complicated. There are four times that it can end: after an acquittal, after a dismissal, after a mistrial, and on an appeal after a conviction.

In What Type of Legal Proceeding Does Double Jeopardy Protection Apply?
Double Jeopardy extends to all felonies, misdemeanors and juvenile delinquency cases that go to court. But this applies only in subsequent criminal proceeding, not in ordinary civil or administrative proceeding

Therefore, it is acceptable to have a criminal trial and be found not guilty, but still have several civil suits against an individual and be punished for those.

What Constitutes as Successive Prosecutions or Punishment for the Same Offense?
The main question to be decided upon is are successive prosecution or punishments geared toward the same offense.

Let’s give an example. Say an individual steals a car to rob a store and hits a pedestrian along the way. Can they face individual charges of grand theft auto, burglary and a hit and run (assuming the person lived), or since it all happened in once instance, is it double jeopardy to face successive charges?

In the 1932 case of Blockburger v. United States the courts found that the government may prosecute for more than one offense stemming from a single course of conduct only when each offense has at least one mutually exclusive element. Meaning, it can stand alone on its own.

When to Call an Attorney
Immediately. If you have been charged with a single crime, or multiple crimes, you need a good criminal defense attorney to ensure your rights are being upheld. Many instances can affect the outcome of the charges… you should never try to fight these alone.

At The Law Offices of Travis Koon, we are here to protect you. We have offices throughout Florida and will stand by you in the criminal defense proceedings. Whether you have been arrested in Jacksonville, Gainesville, Lake City, or Miami – call us today!

When is the time right to file for Bankruptcy?

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Is it Time to File for Bankruptcy?

 Sitting down with the checkbook and a stack of bills each month can be a daunting experience.  When the money going out of the bank account is more than the money coming in – it’s time to look for a way out of debt.

What is Bankruptcy?

Federal laws have been established to help individuals and companies find relief from debts and to be able to make a fresh start.  These laws were created to help honest but unfortunate debtors that have fallen into financial hardships with little to no reprieve.

There are 2 different types of bankruptcy that can be filed, Chapter 7 or Chapter 13.  Chapter 7 bankruptcy liquidates all non-exempt assets to pay off the creditors.  This is preferred if a debtor has little income and large unsecured debts such as medical bills and credit cards.  Chapter 13 bankruptcy reorganizes debt and uses a payment plan to pay down the creditors.  This is preferred if a debtor has income but wants to avoid foreclosure or needs time to catch up on all financial obligations.

You need to understand that bankruptcy may not clear you of all financial responsibilities.  You may be required to pay secured loans such as the mortgage, student loans, alimony, and child support.

When to File

There are times we would all like to walk away and start new; it is time to seriously consider bankruptcy when:

  • You have been out of work for an extended period of time with little to no unemployment or other income.
  • You are very delinquent on taxes.
  • You are near foreclosure.
  • Your wages are being garnished to pay creditors.
  • There are pending law suits to pay creditors.

Advantages and Disadvantages

As with any decision, it is best to weigh the pros and cons against each other with filing bankruptcy.

 

Bankruptcy Attorney

Some advantages to filing for bankruptcy are:

  • Automatic Stay – creditors must stop calling and trying to collect on debts owed once an Automatic Stay is filed.
  • Some properties may be exempt from being sold – depending on the properties owned and how the debt is laid out, you may be able to keep ownership of some properties.
  • Begin to fix credit score – bankruptcy adversely affects your credit score, but it is probably already low due to being behind on payments.  You will be able to move ahead and start rebuilding your credit again.
  • Mental relief – The knowledge that you are able to stop the harassing calls and ready to move forward in life will allow you to sleep again at night.

Some disadvantages to filing bankruptcy are:

  • Negatively affects your credit score – albeit your score may already be affected, but this will remain on record for a number of years.  Chapter 7 remains on your credit history for 10 years and Chapter 13 for 7 years.
  • Other affects of credit score – Many employers and housing agencies check your credit score, and bankruptcy may negatively affect your chance at housing or employment.
  • Not all property is exempt and may need to be sold to fulfill some of the financial obligations.
  • Mental impact – although you may relieved to be out from underneath the mountain of debt, some people have trouble accepting the fact that they had to file for bankruptcy, and don’t like knowing that this is now public record for anyone to see.
  • Higher interest rates – if you are granted loans or lines of credit, your interest may be higher due to this past history.

The Next Step

Once you have checked all your options, understand the advantages and disadvantages, and have decided that filing for bankruptcy is in your best interest, the next step is to file.  You can either file for bankruptcy yourself, or hire a skilled bankruptcy attorney to ensure all creditors are notified and handled properly.

The Law Offices of Travis Koon have handled many bankruptcy claims and does so with the knowledge and sensitivity that you deserve.   When filing for bankruptcy in Florida, you deserve an attorney that  understands bankruptcy and will help you through this difficult time.  We represent individuals in Gainesville, Jacksonville, Miami, and Lake City; call us today to start down the road to recovery.

Travis Koon, Esquire

Eduardo Fons, Esquire

The Law Office of Travis Koon, PLLC

291 NW Main Blvd

Lake City, Florida 32055

traviskoon@koonlegal.com

Phone: 352-729-1211

Phone: 386-597-0000

Fax: 866-497-1103