Law Offices
of
Edward J. Chandler, P.A.
A professional Association  
Attorney & Counselor At Law
708 East Atlantic Boulevard    Telephone:  (954) 788-1355
Pompano Beach, Fl 33060    Facsimile:  (954) 788-1357

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"Serving Broward, Dade and Palm Beach County"

Attorney Edward J. Chandler has successfully represented numerous clients in criminal cases throughout Broward, Dade and Palm beach Counties in the State of Florida.  Edward J. Chandler  prides himself on aggressive representation with a personal touch.

In addition to personally handling your case, Edward J. Chandler, Esq.
will be available to you during every step of the process. Edward J.
Chandler guarantees that you and your case will receive his undivided
attention.

Call the Law Offices of Edward J. Chandler, P.A.  at (954) 788-1355  -
Your phone consultation is free and completely confidential. 

Law Offices of Edward J. Chandler, P.A. 708 East Atlantic Boulevard    Telephone:  (954) 788-1355 Pompano Beach, Fl 33060    Facsimile:  (954) 788-1357 "Serving Broward, Dade and Palm Beach County" Attorney Edward J. Chandler has successfully represented numerous clients in criminal cases throughout Broward, Dade and Palm Beach Counties in the State of Florida.   In addition to personally handling your case, Edward J. Chandler, Esq. will be available to you during every step of the process. Edward J. Chandler guarantees that you and your case will receive his undivided attention. Call the Law Offices of Edward J. Chandler, P.A.  at (954) 788-1355  - Your phone consultation is free and completely confidential. ================================================================================================== DEMAND FOR SPEEDY TRIAL  Florida Rules of Criminal Procedure 3.191. Speedy Trial (a) Speedy Trial without Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (f), every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days of arrest if the crime charged is a felony. If trial is not commenced within these time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p). The time periods established by this subdivision shall commence when the person is taken into custody as defined under subdivision (d). A person charged with a crime is entitled to the benefits of this rule whether the person is in custody in a jail or correctional institution of this state or a political subdivision thereof or is at liberty on bail or recognizance or other pretrial release condition. This subdivision shall cease to apply whenever a person files a valid demand for speedy trial under subdivision (b). (b) Speedy Trial upon Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (g), every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court a separate pleading entitled “Demand for Speedy Trial,” and serving a copy on the prosecuting authority. (1) No later than 5 days from the filing of a demand for speedy trial, the court shall hold a calendar call, with notice to all parties, for the express purposes of announcing in open court receipt of the demand and of setting the case for trial. (2) At the calendar call the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the calendar call. (3) The failure of the court to hold a calendar call on a demand that has been properly filed and served shall not interrupt the running of any time periods under this subdivision. (4) If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall have the right to the appropriate remedy as set forth in subdivision (p). (c) Commencement of Trial. A person shall be considered to have been brought to trial if the trial commences within the time herein provided. The trial is considered to have commenced when the trial jury panel for that specific trial is sworn for voir dire examination or, on waiver of a jury trial, when the trial proceedings begin before the judge. (d) Custody. For purposes of this rule, a person is taken into custody (1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or (2) when the person is served with a notice to appear in lieu of physical arrest. (e) Prisoners outside Jurisdiction. A person who is in federal custody or incarcerated in a jail or correctional institution outside the jurisdiction of this state or a subdivision thereof, and who is charged with a crime by indictment or information issued or filed under the laws of this state, is not entitled to the benefit of this rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending and until written notice of the person’s return is filed with the court and served on the prosecutor. For these persons, the time period under subdivision (a) commences on the date the last act required under this subdivision occurs. For these persons the time period under subdivision (b) commences when the demand is filed so long as the acts required under this subdivision occur before the filing of the demand. If the acts required under this subdivision do not precede the filing of the demand, the demand is invalid and shall be stricken upon motion of the prosecuting attorney. Nothing in this rule shall affect a prisoner’s right to speedy trial under law. (f) Consolidation of Felony and Misdemeanor. When a felony and a misdemeanor are consolidated for disposition in circuit court, the misdemeanor shall be governed by the same time period applicable to the felony. (g) Demand for Speedy Trial; Accused Is Bound. A demand for speedy trial binds the accused and the state. No demand for speedy trial shall be filed or served unless the accused has a bona fide desire to obtain a trial sooner than otherwise might be provided. A demand for speedy trial shall be considered a pleading that the accused is available for trial, has diligently investigated the case, and is prepared or will be prepared for trial within 5 days. A demand filed by an accused who has not diligently investigated the case or who is not timely prepared for trial shall be stricken as invalid on motion of the prosecuting attorney. A demand may not be withdrawn by the accused except on order of the court, with consent of the state or on good cause shown. Good cause for continuances or delay on behalf of the accused thereafter shall not include nonreadiness for trial, except as to matters that may arise after the demand for trial is filed and that reasonably could not have been anticipated by the accused or counsel for the accused. A person who has demanded speedy trial, who thereafter is not prepared for trial, is not entitled to continuance or delay except as provided in this rule. (h) Notice of Expiration of Time for Speedy Trial; When Timely. A notice of expiration of speedy trial time shall be timely if filed and served on or after the expiration of the periods of time for trial provided in this rule. However, a notice of expiration of speedy trial time filed before expiration of the period of time for trial is invalid and shall be stricken on motion of the prosecuting attorney. (i) When Time May Be Extended. The periods of time established by this rule may be extended, provided the period of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by: (1) stipulation, announced to the court or signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced; (2) written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined in subdivision (l); (3) written or recorded order of the court with good cause shown by the accused; or (4) written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state, for DNA testing ordered on the defendant’s behalf upon defendant’s motion specifying the physical evidence to be tested pursuant to section 925.12(2), Florida Statutes, and for trial of other pending criminal charges against the accused. (j) Delay and Continuances; Effect on Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that: (1) a time extension has been ordered under subdivision (i) and that extension has not expired; (2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel; (3) the accused was unavailable for trial under subdivision (k); or (4) the demand referred to in subdivision (g) is invalid. If the court finds that discharge is not appropriate for reasons under subdivisions (j)(2), (3), or (4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled and commence within 90 days of a written or recorded order of denial. (k) Availability for Trial. A person is unavailable for trial if the person or the person’s counsel fails to attend a proceeding at which either’s presence is required by these rules, or the person or counsel is not ready for trial on the date trial is scheduled. A person who has not been available for trial during the term provided for in this rule is not entitled to be discharged. No presumption of nonavailability attaches, but if the state objects to discharge and presents any evidence tending to show nonavailability, the accused must establish, by competent proof, availability during the term. (l) Exceptional Circumstances. As permitted by subdivision (i) of this rule, the court may order an extension of the time periods provided under this rule when exceptional circumstances are shown to exist. Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays. Exceptional circumstances are those that, as a matter of substantial justice to the accused or the state or both, require an order by the court. These circumstances include: (1) unexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; (2) a showing by the state that the case is so unusual and so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule; (3) a showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; (4) a showing by the accused or the state of necessity for delay grounded on developments that could not have been anticipated and that materially will affect the trial; (5) a showing that a delay is necessary to accommodate a codefendant, when there is reason not to sever the cases to proceed promptly with trial of the defendant; and (6) a showing by the state that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise. (m) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from a reviewing court that makes possible a new trial for the defendant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p). (n) Discharge from Crime; Effect. Discharge from a crime under this rule shall operate to bar prosecution of the crime charged and of all other crimes on which trial has not commenced nor conviction obtained nor adjudication withheld and that were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense. (o) Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi. (p) Remedy for Failure to Try Defendant within the Specified Time. (1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j). (2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority. (3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime. ===================================================================================================== Florida Case Law on Asset Distribution in Divorces Accrued benefits:  “A former spouse is not entitled to receive benefits that accrue after the dissolution of the parties' marriage.” Rivero v. Rivero, 963 So. 2d 934, 937 (Fla. 3d DCA 2007). Section 61.075, Florida Statutes (2008), provides that in a proceeding for dissolution of marriage, the court shall equally distribute the marital assets and liabilities between the parties. The statute defines “marital assets” as “assets acquired ... during the marriage, individually b y either spouse or jointly by them.” This encompasses assets that have been enhanced or appreciated in value “resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 61.075(6)(a)1.a.–b., Fla. Stat. (2008). See also Boyett v. Boyett, 683 So. 2d 1140, 1141 (Fla. 5th DCA 1996) (holding that it is not permissible for the former wife to benefit from the former husband's labor after the divorce); Brown v. Minning, 757 So. 2d 628, 630 (Fla. 5th DCA 2000) (holding that “current law provides that a spouse should not receive benefits accrued after dissolution of the parties' marriage”). Section 61.075(7), Florida Statutes (2008), “provides that the date of filing of the petition for dissolution is generally the latest date for identifying and classifying marital assets, but the court may value marital assets on a date that the court determines is just and equitable.” Leonardis v. Leonardis, 30 So. 3d 568, 571 (Fla. 4th DCA 2010) (citing § 61.075(6), Fla. Stat. (2006); Byers v. Byers, 910 So. 2d 336, 344 (Fla. 4th DCA 2005)). Call the Law Offices of Edward J. Chandler, P.A. to begin protecting your rights TODAY…. Phone (954) 788-1355 The information on this Law Firm website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship. Note: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult with an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters, and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information until such time as an attorney-client relationship has been established. All information herein is subject to Florida Rules of Professional Conduct 4-7.2. ==================================================================================================== RECENT ALIMONY, IMPUTED INCOME AND EQUITABLE DISTRIBUTION CASES AND LAW IN FLORIDA  Review of the trial court's decision: The appellate court will review a trial court’s equitable distribution of marital assets andaward of alimony for abuse of discretion. Lule v. Lule, 60 So. 3d 567,569 (Fla. 4th DCA 2011); Rafanello v. Bode, 21 So. 3d 867, 869 (Fla. 4th DCA 2009). By statute, a trialcourt must formulate a complete equitable distribution: “In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1).” § 61.075(3), Fla. Stat. (2009) (emphasis added). EFFECT OF STIPULATIONS OR AGREEMENT BEFORE THE TRIAL COURT:     A binding agreement to convey real property from the marital estate to one of the parties requires a writing signed by the parties, or an explicit bilateral stipulation on the record before a court reporter. See § 725.01, Fla. Stat. and Farrell v. Farrell, 661 So. 2d 1257, 1259 (Fla. 3d DCA 1995). A joint stipulation must be  “entered and filed” in accordance with section 61.075(3). Imputed Income: The standard of review of a court’s decision to impute income is whether it is supported by competent, substantial evidence. Mount v. Mount, 989 So. 2d 1208, 1209 (Fla. 2d DCA 2008). A court may impute income where a party is willfully earning less and the party has the capability to earn more by the use of his best efforts. Schram v. Schram, 932 So. 2d 245, 249 (Fla. 4th DCA 2005). Zarycki-Weig v. Weig, 25 So. 3d 573, 575 (Fla. 4th DCA 2009). In considering imputation of income, “the court must determine whether the subsequent unemployment resulted from the spouse’s pursuit of her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.” Bridge-the-Gap Alimony  “A trial court’s decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review.” Hornyak v. Hornyak, 48 So. 3d 858, 861 (Fla. 4th DCA 2010); see Mondello v. Torres, 47 So. 3d 389, 396 (Fla. 4th DCA 2010) (noting that “the nature and amount of a n award of alimony is a matter committed to the sound discretion of the trial court” (citation, internal quotation marks, and alteration omitted)); § 61.08(2), Fla. Stat. (2009). In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to: (a) The standard of living established during the marriage. (b) The duration of the marriage. (c) The age and the physical and emotional condition of each party. (d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each. (e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party. (g) All sources of income available to either party. THE NEEDS OF THE SPOUSE:  The needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments. Leonardis v. Leonardis, 30 So. 3d 568, 570 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted). “The criteria to be used in establishing this need include the parties’ earning ability, age, health,education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.” Mallard v. Mallard, 771 So. 2d 1138, 1140 (Fla. 2000) (citation and internal quotation marks omitted). “The standard-of-living is not a super-factor” over the other considerations. Donoff v. Donoff, 940 So. 2d 1221, 1225 (Fla. 4th DCA 2006); see Pirino v. Pirino, 549 So. 2d 219, 220 (Fla. 5th DCA 1989) (“Indeed, it is the exceptional case when a couple’s resources and earnings prove sufficient to maintain two independent households in the same manner as the original household.”). “[T]he parties’ standard ofliving during the marriage is not a useful guide in awarding alimony where the parties lived beyond their means,” as in this case. Nichols v. Nichols, 907 So. 2d 620, 623 (Fla. 4th DCA 2005) (citation and internal quotation marks omitted); see § 61.08(2)(a), Fla. Stat.“Clearly the husband cannot be required to maintain the wife’s standard of living when this maintenance stretches beyond his financial capacity.” Pirino, 549 So. 2d at 220. Alimony is not intended “to fund the enjoyment of every little luxury enjoyed before divorce.” Levine v. Levine, 954 So. 2d 741, 743 (Fla. 4th DCA 2007). The court may consider any other factor necessary to do equity and justice between the parties. § 61.08(2), Fla. Stat. In contrast to permanent periodic alimony, “[b]ridge-the-gap alimony is designed to ease the transition of a spouse from married to single life.” Hornyak, 48 So. 3d at 862. It “is most appropriately awarded in instances where the receiving spouse is already employed, possesses adequate employment skills, and requires no further rehabilitation other than a brief time to ease the transition to single life.” Cohen v. Cohen, 39 So. 3d 403, 406 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted); see Wofford v. Wofford, 20 So. 3d 470, 474 (Fla. 4th DCA 2009) (“Bridge-the-gap alimony serves to assist a spouse already capable of self-support during the transition from being married to being single.” (citation, internal quotation marks, and alteration omitted)). “Where no rehabilitative plan is presented, a bridge-the-gap award must have a relatively brief durational limit.” Hornyak, 48 So. 3d 862; see Mills v. Mills, 948 So. 2d 885, 886 (Fla. 3d DCA 2007) (“Bridge-the-gap alimony is to assist a spouse with any legitimate, identifiable, short-term need.” (citation, internal quotation marks, and ellipsis omitted)). The Fifth District Court of Appeal en banc affirmed a twelve-month, bridge-the-gap alimony, where “the former wife ha[d] adequate employment skills  and an exemplary employment record” as not being a n abuse of discretion. Engesser v. Engesser, 42 So. 3d 249, 252 (Fla. 5th DCA 2010) (en banc). A “[d]isparity in income alone does not justify an award of permanent periodic alimony” and that “[a]n award of permanent alimony is improper where the evidence does not reflect permanent inability on the part of the wife to become self-sustaining.” Rosecan v. Springer, 845 So. 2d 927, 929, 930 (Fla. 4th DCA 2003) (citation and internal quotation marks omitted). JEWELRY AS MARITAL ASSETS: “Marital assets” include “[i]nterspousal gifts during the marriage.” § 61.075(6)(a)1.c., Fla. Stat. (2009); see Ruiz v. Ruiz, 548 So. 2d 699, 699- 700 (Fla. 3d DCA 1989) (reversing trial court for failing to treat the uncontroverted purchase of jewelry with marital assets as marital property subject to equitable distribution and citing § 61.075 relating to interspousal gifts as declaratory of Florida law). “Under well-established statutory and case law, an interspousal gift during the marriage is a marital asset.” Maddox v. Maddox, 750 So. 2d 693, 694 (Fla. 1st DCA 2000); cf. Gardner v. Gardner, 452 So. 2d 981, 983-84 (Fla. 5th DCA 1984) (“Separate property of a spouse includes assets of one spouse acquired from a source outside or unconnected with the marriage, such as by inheritance, property owned prior to marriage, or gifts from thirdparties.”). Any gift of jewelry from Former Husband to Former Wife bought with marital assets remains a marital asset. POST PETITION SPENDING: Post-petition spending is not always waste. See Bush v. Bush,824 So. 2d 293, 294 (Fla. 4th DCA 2002) (recognizing error to include as part of the equitable distribution scheme a portion of stock options husband had depleted during dissolution proceedings to satisfy couple’s financial obligations). Attorney Edward J. Chandler has successfully represented numerous clients in dissolution of Marriage cases throughout the State of Florida. Edward J. Chandler  prides himself on aggressive representation with a personal touch.
In addition to personally handling your case, Edward J. Chandler, Esq. will be available to you during every step of the divorce process. Edward J. Chandler guarantees that you and your case will receive his undivided attention. Call the Law Offices of Edward J. Chandler, P.A.  at (954) 788-1355 Your phone consultation is free and completely confidential.Florida Alimony Types: Bridge-the-gap Alimony: May be awarded to assist a party by providing support to allow the party to make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award of bridge-the-gap alimony shall not be modifiable in amount or duration. Rehabilitative Alimony: Awarded to assist a party in establishing the capacity for self-support through either: 1. The redevelopment of previous skills or credentials; or 2. The acquisition of education, training, or work 113 experience necessary to develop appropriate employment skills or 114 credentials. A final judgment or order of rehabilitative alimony must have findings of fact showing a “specific and defined rehabilitative plan.” An award of rehabilitative alimony may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan. Durational Alimony: Awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances. The length of durational alimony may not be modified absent exceptional circumstances. The length of durational alimony may not exceed the length of the marriage. Permanent Alimony: Awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration, following a marriage of moderate duration if such an award is appropriate upon consideration of the following factors: An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship. ============================================================================================== FEDERAL LAWS RELATING TO CHILD PORNOGRAPHY 18 U.S.C. 1466A | OBSCENE VISUAL REPRESENTATIONS OF THE SEXUAL ABUSE OF CHILDREN     It is forbidden to knowingly produce, distribute, receive, or possess with the intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.     Attempts or conspiracies to knowingly produce, distribute, receive, or possess with the intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct and is obscene, or depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value, are also forbidden.     It is forbidden to knowingly possess a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, that depicts a minor engaging in sexually explicit conduct and is obscene, or       depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value,    if one of the...circumstances [noted below] is present any communication involved in or made in furtherance of the offense is communicated or transported by the mail, or in interstate or foreign commerce by any means, including by computer, or any means or instrumentality of interstate or foreign commerce is otherwise used in committing or in furtherance of the commission of the offense; any communication involved in or made in furtherance of the offense contemplates the transmission or transportation of a visual depiction by the mail, or in interstate or foreign commerce by any means, including by computer;  any person travels or is transported in interstate or foreign commerce in the course of the commission or in furtherance of the commission of the offense; any visual depiction involved in the offense has been mailed, or has been shipped or transported in interstate or foreign commerce by any means, including by computer, or was produced using materials that have been mailed, or that have been shipped or transported in interstate or foreign commerce by any means, including by computer; or the offense is committed in the special maritime and territorial jurisdiction of the United States or in any territory or possession of the United States.     An attempt to knowingly possess such a visual depiction is also forbidden under the same circumstances.   ===================================================================================================== 18 U.S.C. 2251 | SEXUAL EXPLOITATION OF CHILDREN   It is forbidden for any person to employ, use, persuade, induce, entice, or coerce any minor to engage or assist any other person to engage in, or to transport any minor in interstate or foreign commerce with the intent that the minor engage in, any sexually explicit conduct if such person knows or has reason to know that such visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.     It is forbidden for any parent, legal guardian, or person having custody or control of a minor to knowingly permit such minor to engage or assist any other person to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct if the parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.    It is forbidden for any person to knowingly make, print, or publish, or cause to be made, printed, or published, any notice or advertisement seeking or offering  to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct, or to participate in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct,  if such person knows or has reason to know that such notice or advertisement is or will be transported in interstate or foreign commerce by any means including by computer or mail. 18 U.S.C. 2252 | MATERIAL INVOLVING THE SEXUAL EXPLOITATION OF MINORS   It is forbidden for any person to knowingly transport or ship in interstate or foreign commerce by any means, including by computer or through the mail, any visual depiction, if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct, and such visual depiction is of such conduct. It is forbidden for any person to knowingly receive or distribute any visual depiction that has been mailed, shipped, or transported in interstate or foreign commerce, or which contains materials that have been so mailed, shipped, or transported, by any means, including by computer, or reproduce any visual depiction for distribution in interstate or foreign commerce by any means, including by computer or through the mail, if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct.     It is forbidden to knowingly sell or possess with the intent to sell any visual depiction that has been mailed, shipped, or transported in interstate or foreign commerce, or which was produced using materials that have been so mailed, shipped, or transported, by any means, including computer, if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct, and such visual depiction is of such conduct. 18 U.S.C. 2252A | MATERIAL CONSTITUTING OR CONTAINING CHILD PORNOGRAPHY1     It is forbidden for any person to knowingly mail, or transport or ship in interstate or foreign commerce by any means, including by computer, any child pornography; receive or distribute any child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer or material that contains child pornography that has been mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer; advertise, promote, present, distribute, or solicit through the mail, or in interstate or foreign commerce by any means, including by computer, any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material is, or contains an obscene visual depiction of a minor engaging in sexually explicit conduct; or a visual depiction of an actual minor engaging in sexually explicit conduct; reproduces any child pornography for distribution through the mails, or in interstate or foreign commerce by any means, including by computer; sell or possess with the intent to sell any child pornography; possess any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography; or distribute, offer, send, or provide to a minor any visual depiction, including any photograph, film, video, picture, or computer generated image or picture, whether made or produced by electronic, mechanical, or other means, where such visual depiction is, or appears to be, of a minor engaging in sexually explicit conduct that has been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; that was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer; or if such distribution, offer, sending, or provision is accomplished using the mails or by transmitting or causing to be transmitted any wire communication in interstate or foreign commerce, including by computer,  for the purpose of inducing or persuading a minor to participate in any activity that is illegal. 18 U.S.C. 2256 | CHILD PORNOGRAPHY DEFINED   Child pornography is defined as any visual depiction, including any photograph, film, video, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. 42 U.S.C. 13032 | REPORTING OF CHILD PORNOGRAPHY BY ELECTRONIC COMMUNICATION SERVICE PROVIDERS   Whoever, while providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains knowledge of facts or circumstances from which a violation of certain offenses involving child pornography is apparent, must report those facts or circumstances to the [CyberTipline] at the National Center for Missing & Exploited Children as soon as is reasonably possible. ===================================================================================================== FLORIDA LAWS RELATING TO CHILD PORNOGRAPHY "Child pornography" means any image depicting a minor engaged in sexual conduct. Florida Statute 847.001(3) "Minor" means any person under the age of 18 years. Florida Statute 847.001(8) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct." Florida Statute 847.001 (16) ==================================================================================================== Possession of a firearm may be actual or constructive. Possession of a firearm may be actual or constructive. See Wilcox v. State, 522 So. 2d 1062, 1063 (Fla. 3d DCA 1988).  The State must present evidence that a firearm was found on Defendant’s person for possession, or the the State needs to present evidence of constructive possession. Constructive possession requires the State to prove “‘that the defendant had knowledge of the presence of the [contraband] and the ability to exercise dominion and control over the same.’” Ubiles v. State, 23 So. 3d 1288, 1291 (Fla. 4th DCA 2010) (quoting Martoral v. State, 946 So. 2d 1240, 1242 (Fla. 4th DCA 2007)). When the contraband is found in an area over which the defendant had exclusive possession, the defendant’s knowledge of the contraband and ability to maintain control over it may be presumed. See Smith v. State, 776 So. 2d 957, 959 (Fla. 3d DCA 2000). Thus, when the defendant is the sole occupant of a vehicle in which contraband is found, a prima facie case of possession is established. See Lee v. State, 835 So. 2d 1177, 1179 (Fla. 4th DCA 2002). ===================================================================================================== FEDERAL IMMUNITY- QUEEN FOR A DAY AGREEMENTS What is federal immunity?  There a different types of immunity obtained in different ways.  1. If a witness does not want to testify and asserts their 5th Amendment right against self incrimination and remain silent  2. The U.S. government can obtain a court order giving immunity and then force that person to testify, a/k/a  statutory or formal immunity. The Department of Justice (DOJ) Criminal Resource Manual describes the  types of immunity orders that may be granted: Criminal Resource Manual 716 717 Transactional Immunity Distinguished     Title 18 U.S.C. § 6002 provides use immunity instead of transactional immunity. The difference between transactional and use immunity is that transactional immunity protects the witness from prosecution for the offense or offenses involved, whereas use immunity only protects the witness against the government's use of his or her immunized testimony in a prosecution of the witness — except in a subsequent prosecution for perjury or giving a false statement

718 Derivative Use Immunity     The use immunity statute (18 U.S.C. § 6002) allows the government to prosecute the witness using evidence obtained independently of the witness's immunized testimony. Section 6002 provides:      No testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.     The burden of proof  must be borne by the government to establish that its evidence is based on independent, legitimate sources.       This burden of proof, which we affirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. Witnesses themselves, knowing that they have valuable information, want to trade that information for immunity. This is known as "informal immunity" because it is not the result of a formal court order. The Criminal Resource Manual explains informal immunity; 719  Informal Immunity Distinguished From Formal Immunity     Statutory immunity, also known as formal immunity, should be distinguished from informal immunity. The latter term, often referred to as "pocket immunity" or "letter immunity," is immunity conferred by agreement with the witness. For example, the government and a cooperating defendant or witness might enter into a plea agreement or a non-prosecution agreement if the defendant or witness agrees to cooperate. Testimony given under informal immunity is not compelled testimony, but is testimony pursuant to an agreement and thus voluntary. The principles of contract law apply in determining the scope of informal immunity. United States v. Plummer, 941 F.2d 799, 802 (9th Cir. 1991); United States v. Britt, 917 F.2d 353 (8th Cir. 1990), cert. denied, 498 U.S. 1090; United States v. Camp, 72 F.3d 759 (9th Cir. 1996) [replacing 58 F.3d 491 (9th Cir. 1996)]. Grants of informal immunity that do not expressly prohibit the government's derivative use of the witness's testimony will be construed to prohibit such derivative use. Plummer, supra. But a grant of informal immunity that expressly provides for derivative use of the testimony by the government will be upheld. United States v. Lyons, 670 F.2d 77, 80 (7th Cir. 1982), cert. denied, 457 U.S. 1136.     An important difference between statutory/formal immunity and informal immunity is that the latter is not binding upon the States. This follows from the fact that the local prosecutor representing the State is normally not a party to the agreement between the witness and the Federal prosecutor, and thus cannot be contractually bound by the Federal prosecutor's agreements.     Prosecutors rarely give immunity  agreements, and usually only when they believe it is necessary to do so to get something of higher value than the conviction of the witness seeking immunity. If you want  immunity you  thinks you may have committed a crime. The Queen for a Day agreement.      This one day immunity deal allows the witness to come in for a proffer session and give a little preview of his testimony. Agents usually take detailed notes because if the witness is found not to be telling the truth, or if he later tries to tell a different story, he can be prosecuted under the false statements crimes and the notes are needed to preserve evidence for that possible subsequent prosecution.         Proffer or "queen for a day" letters are written agreements between federal prosecutors and individuals under criminal investigation which permit these individuals to tell the government about their knowledge of crimes, with the supposed assurance that their words will not be used against them in any later proceedings. (The individuals can either be witnesses, subjects or targets of a federal investigation, although it is subjects and targets who provide most proffers.)     You should think of a proffer session as a sneak preview in which you show the federal authorities what you can bring to the table if they cut a deal with you.     (… in the overwhelming majority of cases, the formal, written proffer agreement will explicitly state that no promises of either immunity or a plea bargain have been made.) Accordingly, your attorney and the prosecutor should have already informally worked out, before you ever sit down for the proffer session, a basic understanding of: 1) what you are likely to proffer; and, 2) what the contemplated post-proffer immunity or plea agreement will look like. To the extent that either part of this informal understanding is not perfectly clear to you, your attorney, and the federal prosecutor, you are heading into exceedingly dangerous territory. Why? Because, proffering will almost always harm you if post-proffer immunity/plea discussions fall apart and the government decides to indict you. For the same reason, if the prosecutor is not trustworthy or if you are not prepared to tell the complete truth, the proffer session should never take place.     Unlike immunity or plea agreements, proffer agreements do not prevent the government from making derivative use of your statements. In other words, although the government cannot use your actual proffer session statements against you in its case-in-chief, it can use the information that you provide to follow up leads and conduct further investigations. If those leads and further investigations capture new evidence, such evidence can be used to indict and convict you. ==================================================================================================== Violation of Probation in Florida  When you are placed on probation or community control you are advised of the conditions of that supervision. Should you violate those conditions by intentionally and materially breaking the rules, you run the risk of having that probation or community control violated. A judge will be asked to sign a warrant for your arrest and you may be kept in the County Jail pending the results of the violation hearing without bond. A judge has the authority to set bond, but the judge is not required to set a bond.  " You have the right to an attorney to represent you at the violation hearing."  Violation of probation proceedings are much different than a new law offense:  * There is not a statute of limitations for a violation of probation ("VOP"), meaning that if you violate your probation you can not wait out the VOP charge.  * You do not have a right to a trial by jury on a violation hearing.  * The burden of proof is by preponderance of the evidence, rather than beyond a reasonable doubt.  * You can be called as a witness by the State at your own hearing.  Content copyright 2017. Law office of Edward J. Chandler, P.A. All rights reserved.

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SEXUAL BATTERY

If you are charged with a sexual battery crime in Florida under F.S. 794.011, Florida's Sexual Battery Statute provides as follows:

Sexual Battery
 - Florida law defines the term “sexual battery” to mean vaginal, oral, or anal union with or penetration by the sexual organ of another or the vaginal or anal penetration of another by any other object. If the
touching was done for any bona fide medical purpose, then Florida law specifically excludes that conduct from the definition of sexual battery.
Victim of Sexual Battery - Florida law defines the term "victim" to mean
 any person who has been the object of a sexual offense such as sexual battery or aggravated sexual battery.
Sexual Battery Offender - Florida law defines the term "offender" to
mean any person accused of a sexual offense in violation of a provision of this chapter such as sexual battery or aggravated sexual battery.
Consent - Florida law defines the term “consent” to mean any voluntary, knowing or intelligent consent. The definition of consent does not include any "coerced submission" that occurs because of the failure by the alleged victim to offer physical resistance against the offender.
Penalties for Sexual Battery
Florida law provides for certain punishments or penalties based on several factors including the age of the victim, the age of the offender, whether the offender used any actual physical force that was
likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.
The punishments for sexual battery range from a capital or punishable by life penalties to first, second, or third degree felony penalties.
Under the Jimmy Rios-Martinez, Jr. Act of 1992, any person who is convicted of committing a sexual battery after October 1, 1992 is not eligible for basic gain-time under Florida Statute Section 944.275.

Sexual Battery - Capital Felony under Florida Law
If the act of sexual battery is committed by an offender over the age of  17 against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the
 crime is punished as a capital felony under Florida law.


Sexual Battery - Punishable by Life Felony under Florida Law
If the act of sexual battery is committed by an offender who is 17 years  old or under against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished by life in Florida State Prison.
If the act of sexual battery is committed against a person who is 12 years of age or older without the person's consent, and in the process of committing the act of sexual battery, the offender either uses actual
 physical force likely to cause serious personal injury or threatens to use or actually uses a deadly weapon, then the crime is punishable by life in Florida State Prison.


Sexual Battery - First Degree Felony

It is a felony in the first degree, punishable by 30 years in Florida  State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim's consent under
the following circumstances:

Physically Helpless - When the victim is physically helpless to resist.
Florida law defines the term "physically helpless" to mean being asleep, unconscious, or unable to communicate an unwillingness to participate in the act for any other reason.

Serious Personal Injury - When the offender coerces the victim to submit by using violence likely to cause serious personal injury on the victim or even threatening to use force when the victim reasonably believes that the offender has the present ability to execute the threat. Florida law defines the term serious personal injury to mean permanent disfigurement, permanent disability, great bodily pain or great bodily harm.

Retaliation - When the offender coerces the victim to submit by threatening to retaliate against the victim, or any third person, and the victim reasonably believes that the offender has the ability to execute the threat in the future. Under the Florida statutes for sexual battery or aggravated sexual battery, the term "retaliation" is defined to include any threats of kidnapping, false imprisonment, physical punishment, extortion or forcible confinement.

Mentally Incapacitated - When the offender, without the consent or prior  knowledge of the victim, administers any intoxicating substance, anesthetic or narcotic which physically or mentally incapacitates the victim. Florida law defines the term "mentally incapacitated" to mean being temporarily incapable of controlling or appraising the victim's own conduct due to the influence of an intoxicating substance,
anesthetic, or narcotic administered without the victim's consent or due  to any other act committed upon the victim without consent.

Mentally Defective - When the victim is mentally defective and the offender has actual knowledge or this fact or has reason to believe the victim has a mental disease. Florida law defines "mentally defective" as  any mental defect or disease which renders a alleged victim either permanently or temporarily incapable of appraising the nature of his or her conduct. An individual who is mentally defective under Florida law may not be able to consent to any sexual act which could constitute sexual battery or aggravated sexual battery.

Physically Incapacitated - When the victim is physically incapacitated.
Florida law defines the term "physically incapacitated" as meaning any bodily impairment or handicap that substantially limited the alleged victim's ability to flee or resist the act of sexual battery or aggravated sexual battery in such a way that negates any showing of consent.

Sexual Battery by Law Enforcement, Probation, or Correctional Officer- Florida Statute (4)(g)

It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim's consent when
the offender is in a position of authority or control. Additionally, the  victim in such a case almost always has a civil rights claim or a personal injury claim against the agency that employed the offender.
Occupations that are included within term position of control or authority include:

  • law enforcement officer;
  • correctional officer;
  • correctional probation officer;
  • officer who supervises controlled release, community control, detention, custodial settings, probation, or similar settings;
  • or anyone who leads the victim to reasonably believe that the offender
  • is in a position of control or authority as an employee or agent of
  • government.

False Accusations of Sexual Battery under Florida Law 794.011(4)(g) Florida Statute Section 984.011(10) provides any any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree punishable by five years in Florida State Prison.

Sexual Battery - Second Degree Felony
A person who commits sexual battery upon a person 12 years of age or older, without that person's consent, and in the process thereof does not use violence or physical force likely to cause serious personal
injury commits a felony of the second degree which is punishable by 15 years in Florida State Prison. Florida law defines the term serious personal injury to mean great bodily harm, great bodily pain, permanent disability, or permanent disfigurement.

Sexual Battery - Custodial or Familial Position of Offender If the person accused is in a custodial or familial position of authority over the victim, then the victim's consent or willingness to engage in the sexual act is not a defense. In fact, Florida law provides  that even acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent.

Victim is 18 years old or older - If the person accused is in a custodial or familial position of authority over the victim who is less than 18 years  of age, then the victims' consent or willingness to commit the act is
not a defense to prosecution. Under these circumstances, the crime is a third degree felony punishable by 5 years in Florida State Prison.

Victim is between 12 and 17 - If the person accused is in a custodial or familial position of authority over the victim who is between the age of  12 and 17 years old, then the victims' consent or willingness to commit
 the act is not a defense to prosecution. Under these circumstances, the crime is a second degree felony punishable by 15 years in Florida State Prison.

Victim is under 12 years old - If the person accused is in a custodial or familial position of authority over the victim who is under the age of 12, then the victims' consent or willingness to commit the act is not
 a defense to prosecution. Under these circumstances, the crime is a first degree felony punishable by 30 years in Florida State Prison. If any such sexual battery injures the sexual organ of the victim then the
crime is punishable as a capital or life felony.