Florida Criminal Lawyer Blog

Our Sarasota firearms crimes defense lawyers were extremely interested in a recent controversy over Florida’s “stand your ground” law. The law, like those of many other states, says people who are attacked by intruders in their own homes or vehicles have no duty to retreat or announce their intentions before using deadly force -- including a firearm -- to fight back. A Nov. 7 article in the Tampa Bay Tribune has an interesting twist on that law: a case in which a towing company owner and his employee were attacked by a man in a moving car. The Second District Court of Appeal heard arguments in early November over whether Donald Montanez of Hillsborough County should be charged with second-degree murder, among other things, in the incident.

The charges against Montanez stem from his 2006 shooting of Glen “Chuck” Rich. Montanez’s company had towed Rich’s wife’s car for illegal parking. Rich showed up and, after a verbal fight, accelerated the car toward Montanez and an employee, Lorraine Marie Whitehead. Montanez fired a gun at the vehicle, killing Rich and giving rise to the murder charge. He claims self-defense in the case under the “stand your ground” law -- but a circuit judge ruled that his actions were not self-defense. Because the bullet passed through a passenger-side window rather than the windshield, the judge said, Montanez knew or should have known that there was no threat. The attorney for Montanez, Jay Hebert, appealed that ruling, arguing that Montanez didn’t know where Whitehead was at the time, making his fear of harm to her reasonable.

In oral arguments, the judges of the Second District Court of Appeal focused on the timing of the fatal shot, the newspaper said. The entire incident took place at 5 a.m. and lasted only a few seconds, Appellate Judge James W. Whatley pointed out -- timing that would make it difficult to conclusively determine everyone’s whereabouts before taking action. For the prosecution, assistant attorney general Timothy Freeland argued that allowing defendants to use the “stand your ground” law to shoot on a “maybe” would grant them too many opportunities to fire without strong evidence of a threat. Previous cases have split the Florida courts, the newspaper said, and a ruling from the Florida Supreme Court may be required to resolve that split.

As Fort Lauderdale gun charges defense lawyers, we believe Montanez has a strong case for expanding the Stand Your Ground law. From a courtroom or an office, it sounds reasonable to require defendants to know for sure where everyone is before firing. But in practice, people trying to protect themselves and others from an immediate threat don’t always have much time. As Supreme Court Justice Oliver Wendell Holmes said, “Detached reflection cannot be demanded in the presence of an uplifted knife.” If Montanez truly believed Whitehead was in danger and acted in her defense, his use of deadly force may have been reasonable or even justifiable. If so, prosecuting him for murder would be contrary to well-established Florida law, as well as his constitutional rights as the owner of a legal firearm.

Continue reading "State Appeals Court Will Decide Whether Stand Your Ground Law Requires Complete Knowledge" »

As West Palm Beach firearm defense lawyers and NRA referral attorneys, we’re proud to live in a state that’s friendly to our Second Amendment rights. That’s why we were disappointed to see a Nov. 5 article in the Miami Herald suggesting that our rights as gun owners may be under fire if the Florida Legislature doesn’t take quick action. According to the article, the NRA is lobbying Tallahassee for a law that bans adoption agencies from asking prospective adoptive parents whether they own guns. NRA lobbyist Marion Hammer said that because this question comes from an agency connected to the government, it is tantamount to establishing a gun registry, which is specifically forbidden by Florida law.

The issue came up after a couple from Brevard County was asked about gun ownership. The Children’s Home Society, a private adoption organization that works with the state government, gave the couple a form that included a question about whether they had firearms. The couple saw this as an unreasonable intrusion into their Second Amendment rights and consulted an attorney. A spokeswoman for the agency said it was a standard question required by the state Department of Children and Families, for which it is a contractor. She said the agency may be able to use a form without that question, but because all adoption in Florida is privatized, it takes time to get a response. However, that may not be necessary, because the couple’s attorney referred them to the NRA -- which said changing Florida firearms law would be easier than suing. Sen. Thad Altman, R-Melbourne, has already introduced a bill making it unlawful to even ask about gun ownership; it is expected to pass.

As Fort Myers gun crimes defense attorneys, we are pleased to see the Legislature taking quick action on this important issue. Florida has banned gun registries to avoid a very real danger: Allowing the government to know who has guns. If government agents know who firearms owners are, it will be that much easier for them to round up and take away those firearms. Despite the protections offered by the Second Amendment, this remains a very real concern for the NRA and its members. Adoption agencies say they’re concerned about safety, but because they are subcontractors to a government agency, this question is only a few steps removed from such a registry. It would be better by far to stay out of gun owners’ private business and allow adoptive parents to make their own decisions with regard to children’s safety around guns.

Continue reading "NRA Pushes for Ban on Adoption Agency Questions About Gun Ownership" »

As Miami firearms crimes defense attorneys, we were disappointed by the long sentence handed down to football player Plaxico Burress last week, as ESPN reported Sept. 23. Burress, a former wide receiver for the New York Giants, was charged after he was found in possession of a gun at a New York City nightclub. The gun was not licensed in New York or in his home state of New Jersey, and his Florida concealed carry permit had expired. Burress was originally charged with two counts of weapons possession and one count of reckless endangerment, but under a plea deal, he instead pleaded guilty to attempted criminal possession of a weapon.

The case is famous not only because Burress is a star athlete, but also because of the way the firearm was found. Burress had the gun tucked into the waistband of his sweatpants at the nightclub. Unfortunately, it slipped and went off, shooting Burress himself in the thigh and narrowly missing a nightclub security guard before embedding in the floor. Nobody but Burress was hurt, but the incident alerted authorities to the fact that he did not have a permit to own or carry the weapon. A video report from ESPN has more:

The defense attorney for Burress told ESPN that Burress is paying a “very, very severe penalty” for his lapse in judgment. Our Sarasota weapons charges defense lawyers strongly agree. Burress broke licensing laws, and may indeed have recklessly endangered others, as his charges said. But he did not do those things in the commission of a violent crime. Furthermore, nobody was hurt but Burress himself, who was wounded, lost several years of his career and income and, perhaps most importantly, will miss nearly two years with his wife, unborn child and three-year-old son. Under those circumstances, we believe two years in prison is a harsh and disproportionate punishment, brought on in part by overreaching state gun control laws and politicians and prosecutors eager to “make an example” of a high-profile defendant.

Continue reading "Plaxico Burress Sentenced to Two Years in Prison for Simple Firearm Possession" »

As Miami firearms crimes criminal defense attorneys and gun rights advocates, our firm stays informed about issues related to weapons and criminal law, including threats to our Constitutional right to keep and bear arms. Recently, we received a message from the National Center for Gun Rights calling for action against a federal bill that could substantially constrain our legal rights under the Second Amendment. Blair Holt's Firearm Licensing and Record of Sale Act of 2009, which was introduced in the House of Representatives as HR 45, would:

• Require a national license for anyone who wishes to buy a handgun or automatic weapon, excluding antiques.
  
• Prohibit sale of these guns by anyone but a licensed dealer.
  
• Create a national database keeping a record of every American who owns a firearm.
  
• Require that gun owners secure their guns away from minors under 18, with criminal penalties including prison for even accidental access by minors.

Even worse, this bill would impose strict requirements for people who wish to apply for one of these gun licenses, including a requirement to pass a written test before the federal government deems them fit to exercise their own rights, and authorization to release their private mental health records. As Sarasota gun rights lawyers, we believe this may be the first step toward confiscation of all guns by a totalitarian government -- and that is not acceptable in a free society. If you agree, we urge you to say so by signing the Association's emergency "No More Gun Control Petition" on its Web site.

If you're fighting to exercise, keep or restore your right to bear arms as an American, Balliro, Galasso, Leskovich & Seltzer can help. Partner Sebastian Balliro is an NRA referral attorney and partner Jean Paul Galasso has years of experience as a prosecutor specializing in firearms crimes -- so we know how anti-gun prosecutors and zealots think. To learn more at a free consultation, please contact us, 24 hours a day and seven days a week, through our Web site or call 1-866-ARRESTED from anywhere within Florida.

As gun rights advocates and Naples firearms crimes criminal defense attorneys, we were pleased to see charges dropped last week against a Florida man who used his Second Amendment rights in self-defense. According to the St. Petersburg Times, manslaughter charges against Charles Podany were dropped Sept. 1 under Florida’s “stand your ground” law. The law gives Floridians the right to use deadly force when they are in reasonable fear of death or great bodily harm. Podany was accused of shooting Casey Landes, 24, after Landes began beating him after an argument about speeding.

The Times said Podany, was bicycling through the Hillsborough County city of Thonotosassa on Feb. 29, 2008 when he asked the driver of a pickup truck to slow down. The driver, Evin Aguayo, slowed down, but his passenger and friend, Landes, leapt on Podany as he bicycled away. Aguayo testified that the ensuing fight would not have been fair, with the 6’1”, 192-pound, 24-year-old Landes outmatching the 49-year-old, 5’8”, 180-pound Podany. But Podany stopped the fight by pulling out his Glock, for which he had a concealed weapons permit, and fatally shooting Landes in the head. According to Podany’s South Florida gun charge criminal defense attorney, this met all of the requirements of the stand-your-ground law: Podany was doing nothing illegal, had a right to be there and could have been seriously hurt if he hadn’t acted.

Our Fort Myers weapons charges criminal defense attorneys are pleased to see that the courts reacted reasonably to this unfortunate incident -- even if prosecutors did not. If the article was accurate, this was just the sort of situation in which using a concealed weapon in self-defense is appropriate. Floridians apply for concealed weapons permits in part because firearms are one way to equalize an unequal fight like this one, allowing them to protect themselves and their families. And Florida law rightly acknowledges that sometimes, people must use deadly force out of self-protection. It is unfortunate that a life was lost, but the law did its job in this case by protecting Podany’s rights under state law and the U.S. Constitution.

Continue reading "Charges in Fatal Shooting Dropped Against Bicyclist Under Florida Stand Your Ground Law" »

Former New York Giants football player Plaxico Burress successfully contested four traffic tickets from Broward County, the South Florida Sun-Sentinel reported June 1. Burress was pulled over March 1 and issued tickets for speeding, improper lane changes, overly tinted windows and improper display of his tags. Burress and his Fort Lauderdale traffic tickets defense attorney contested all four tickets because he was not given information on paying or fighting them, as required by Florida state law. Neither Burress nor the sheriff’s deputy testified at the hearing.

As this case shows, you don’t necessarily have to plead guilty to a traffic violation just because you get a ticket. Law enforcement officers are human and make mistakes at work just like the rest of us, and sometimes, those mistakes can get your ticket dismissed. Furthermore, pleading guilty -- which you do automatically whenever you pay the ticket -- can have consequences that affect your driving record and your life. Because paying a ticket adds points to your license, people who pay easily contested tickets unnecessarily sign up for a license suspension, which can lead to yet more legal trouble when they don’t realize they’re driving on a suspended license. At Balliro, Galasso, Leskovich & Seltzer, our Miami traffic ticket defense lawyers protect our clients from unreasonably harsh penalties for minor traffic infractions like speeding.

Burress faces more legal trouble, most notably for a firearms violation. The former Giants wide receiver carried a handgun in the waistband of his sweatpants into a Manhattan nightclub, where the gun began to slip down into his pants. In catching it, he accidentally pulled the trigger and shot himself in the right thigh. The wound was not serious, but he had no concealed weapons permit for the state of New York, and only an expired one from Florida. He was charged with unlawfully carrying a handgun and suspended for the rest of the season. Reports say Burress, who has a home in Lighthouse Point, would be interested in joining the Miami Dolphins if he’s acquitted, but is in talks with other teams.

As Fort Myers firearms violations defense lawyers, we wish Burress luck with his firearms case as well. Carrying a concealed weapon is a victimless crime in itself, and it infringes on citizens’ Second Amendment rights. In fact, in this case, the only victim is Plaxico Burress himself, who suffered a gunshot wound and professional consequences for his mistake. BGL&S is proud to represent people accused of firearms violations in South Florida, including concealed weapons violations, felon in possession charges and civil matters before state and federal regulatory agencies. Several of our Sarasota weapons charges defense attorneys are hunters, collectors and marksmen, so we understand the bureaucratic hassles our clients face to exercise their legal rights.

BGL&S represents Floridians accused of all types of crimes, from traffic tickets to serious, violent crimes. Our South Florida criminal defense attorneys don’t believe in the automatic plea deals that some other firms strike. We have taken hundreds of cases to trial and we are more than happy to do the same for our clients, when justice demands it. And because we know criminal charges come at all times of day and night, we make ourselves available to clients and potential clients anytime -- 24 hours a day and seven days a week. If you or a loved one is accused of a crime and you need help, contact BGL&S online as soon as possible for a free, confidential consultation or call 1-866-ARRESTED toll-free.