Florida Criminal Attorneys Blog

A Naples man has been arrested for Lewd & Lascivious Battery on a person 12 to 15 years old. The suspect, 25-year old, Pedro Vincent Quijije, met the young girl when she mistakenly called a friend's old cell phone number and he answered. The girl lied to Quijije and told him she was 16.

They developed a telephonic relationship and met at the Coastland mall 2 weeks later. The young girl arranged a phony sleepover at friend's house to fool her parents and instead, met up with the suspect. Quijije and the victim had sex 3-4 times after watching a movie in his bedroom. The next morning the suspect told the victim to take 3 of his roommate's birth control pills at once.

This meeting would not be the only contact between the suspect and the underage girl. The victim told police that they had sex approximately 10 times during two rendezvous. On the second occasion, he again told the victim to take birth control pills that he stole from his roommate.

Continue reading "Naples Man Arrested for Allegedly Having Sex with an Underage Girl " »

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As an experienced criminal defense attorney whose offices serve the entire State of Florida, John Musca evalutes unique criminal cases that may improve public policy, practices and public opinion.  Once such case it that of Ryan Ehlis.  The Ehlis case marks a serious flaw within the justice system.
In January 1999, Ehlis, a college student in Bismark, North Dakota, began taking Adderall to control his Attention Deficit Disorder and to help him with his studies.  Within 10 days of taking the prescribed medication he slipped into a psychotic fog, shot and killed his infant daughter, then shot himself in the stomach.  He said God told him to do it. 

The criminal court found him innocent after testimony by a psychiatrist and by the manufacturer of the drug that the "psychotic state" was a very rare side effect of Adderall use.  Various doctors testified Ehlis suffered from an "Anphetamine-Induced Psychotic Disorder".  This is a DSM label for a psychotic disorder caused by medication prescribed to help a less severe disorder. Medical experts and Shire US, Inc., the manufacturer of Adderall, commented that "despite the slaying, Adderall remains a safe and effective drug for controlling AD/HD. "

Continue reading "Florida Attorney John Musca Discusses Evidence between Psychiatric Meds & Violent Criminal Behavior " »

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Naples, Florida. The Band Director for Gulf Coast High School, Robert Hamberg, resigned after being accused of having sex with a student.

The police report describes the relationship between Hamberg and the high school freshman as flirting within the classroom at first. The relationship escalated and the two became closer than they should. Hamberg disclosed his marital problems with the student and she confessed her strong feelings towards him.

Eventually, the student-teacher relationship went way past inappropriate. Hamberg and the freshman student started having sex within Gulf Coast High School and at his home.

He is out on $175,000 bond and awaiting trial on seven charges of Lewd & Lascivious Battery on a child between the ages of 12 and 15. If convicted on all seven charges, Hamberg faces a maximum sentence of 105 years in prison.

Continue reading "Esquire John Musca Discusses the Recent Sex Crime Involving Gulf Coast High Band Director" »

So called 'magic mushrooms' are fungi which contain the psychedelic substance psilocybin. Magic mushrooms are used in the United States as well as other parts of the world as a recreational drug and are also known as shrooms and mushies. Magic mushrooms themselves are not illegal under federal law, but the active ingredient psilocybin is, says Florida criminal defense attorney Johm Musca. 

Florida law, however, has created a unique exception with regard to its drug laws governing magic mushrooms. Under Florida it is not illegal to possess a magic mushroom provided that it has been freshly picked and the person did not know it contained psilocybin. The law in

Florida was determined in a Florida Supreme Court case known as Fiske v. State. In that case the state of Florida had attempted to prosecute Robert Fiske for possessing freshly picked mushrooms. The Florida Supreme Court noted that the state legislature had not specified that all psilocybin mushrooms were illegal, but had merely banned the active ingredient of psilocybin. It held that the Florida drug law did not place a reasonable person on notice that magic mushrooms were per se illegal. The Supreme Court created the additional requirement that the state prove that Fiske knew the mushrooms he possessed contained psilocybin.

The charge of psilocybin possession is still a felony in Florida if the state can prove the knowledge requirement. The Florida exception is in conflict with federal law which does not impose a knowledge requirement on the state to prove that the defendant possessed psilocybin. Federal law governing magic mushrooms also does not distinguish between fresh and dried mushrooms. The United States Supreme Court has previously held in a case concerning medical marijuana in California that the U.S. Congress has the right to create federal drug laws that override state laws.

South Florida has long been known as a center for recovery centers for drug addiction, which many people seek out after facing drug charges for possession or trafficking. Delray Beach, in particular, is one area that has often been called the recovery capital of the United States. Recently, the managers of sober houses, long allowed to operate with little public oversight, have come under additional scrutiny. A check of 15 sober houses in Delray Beach by the Palm Beach Post showed that nine of the owners of those houses have criminal records. A sober house, also sometimes known as a halfway house, is a place where recovering drug addicts can live in a structured and sober environment to help ease their re-entry into society. These homes are not licensed under state law and there is no requirement that the owner of a sober house undergo a criminal background check prior to opening the house. Some advocates of sober housing have downplayed the findings, stating that having people with difficult prior records can be an effective example for recovering addicts.

Jim Green, who is part of an effort to regulate sober houses in Delray Beach, has argued that having a high concentration of addicts in the Delray area can have a negative effect on the surrounding community due to the potential for relapse and re-offending. "Sometimes those in recovery fall quite spectacularly," Green said. Delray city commissioners have recently sided with Green in an effort to move sober houses from single family neighborhoods, reducing from 5 to 3 the number of unrelated people who were permitted to live in the same house together. There has been some discussion that further licensing is necessary for these houses in order prevent sober houses from have a detrimental effect on the surrounding neighborhood. Some Delray Beach residents have complained about loud parties and people coming and going late at night at sober houses.

Miami, Florida. Two convicted sex offenders have filed lawsuits with the American Civil Liberties Union (ACLU) challenging the County of Miami-Dade and its distance law. A distance law enforces how far away a convicted sexual offender must remain away from children prone areas. The State of Florida requires that convicted sexual offenders remain at least 1,000 feet away from where children congregate. This includes, but is not limited to, daycares, playgrounds, schools, bus stops, etc.

 The American Civil Liberties Union is an enforcement group established to protect the rights of individuals as set forth in our country's Bill of Rights and Constitution. The lawsuit brought forward by the ACLU against the County of Miami-Dade argues that the government has gone further than the State of Florida requirements. Miami has an ordinance in place that requires convicted sexual offenders to stay at least 2,500 feet from locations where children gather.

The Plaintiffs, 22-year old Brian Exile and 31-year old Elliot Bloom, claimed in their suit that Miami's ordinance is so strict that they are unable to find suitable housing. The men have stated that the County of Miami-Dade has violated their basic civil rights to their need for shelter.

Continue reading "John Musca, Esq. Discusses How Miami Sex Offenders Forced to Live Under Bridge Due to Distance Law" »

In the first part of this article, we began discussing some little known sex crimes in Florida law such as transmitting obscene messages over the telephone, which are still technically on the books, but have been mostly unenforced. In this article Florida criminal lawyer John Musca will discuss some other largely unenforced Florida criminal statutes.

Chapter 798 of Florida's statutes deals with both adultery and cohabitation. Section 798.01 prohibits the crime of "living in open adultery." In Florida it is still technically a crime for a person to live in an open state of adultery. In order for a person to be guilty of this crime they must live "openly" with a person who is married to someone else. There has not been much case law in Florida criminal courts on the issue of how open a person has to be with his adultery in order to be convicted of a crime because the crime has been so rarely enforced.

Chapter 798.02 criminalizes "lewd and lascivious" cohabitation between any man and woman not married. The section also criminalizes "any man or woman, married or unmarried," who engage in open and gross lewd and lascivious behavior. Both the offenses of cohabitation and living in open adultery are second degree misdemeanors under Florida law, meaning that they are technically punishable with time in jail. It is unclear whether the cohabitation and adultery sections of Florida's criminal code would still be legal in light of the United States decision in Lawrence v. Texas, which held that the state of Texas did not have a rational basis to criminalize private, consensual and non-commercial sex between adults. Both laws have been so rarely enforced that the constitutionality of either provision has not been tested in the courts.

The Florida criminal code is a series of documents that reflects both the early history of the state as well as modern revisions, says Florida criminal attorney John Musca. Older parts of the criminal code punish obsolete offenses that may have offended 19th century sensibilities, but are no longer deemed matters of concern for the modern public. In the first part of this article, we will examine a few of the sex crimes which are still on the books in Florida, but have not been enforced much, if at all, in the last few decades and are generally thought to be non-criminal offenses by many Floridians.

Chapter 847 of the Florida Statutes regulates criminal offenses under the category of obscenity. Most of the offenses under the statute deal with either child pornography or other sexual abuse of children, which are considered high priorities for law enforcement. There are also other lightly enforced parts of the section which deal with other regulations of obscenity. Florida statute section 847.0147 criminalizes any selling of obscene adult services or messages over the telephone. Under Florida and Federal law "obscenity" is a certain type of indecent communication which is not protected by the First Amendment. The United States Supreme Court has defined obscene material as that which "appeals to the prurient interest in sex."

Floridians might wonder, then, why there are still 900 numbers and other telephone services which seem to advertise obscene material available over the telephone in the state of Florida, there are two reasons why this practice continues on. First, state officials have not invested much time in preventing obscene telephone services, determining instead that other criminal offenses constitute higher priorities. Second, many telephone services of a sexual nature involve material which is considered indecent, but not obscene for purposes of a criminal conviction. In part two of this article we will look to other little-enforced sex crimes in Florida law.

In our last article, Florida criminal defense lawyer John Musca discussed how some other states have structured their laws to deal with marijuana. We also discussed some of the penalties for possession of marijuana under Florida. In this article we will finish our examination of how Florida law deals with marijuana possession and sale.

Under Florida Law, possession or sale of more than 25 pounds of marijuana (Florida Statute 893.135) is considered trafficking and is punishable by a mandatory minimum sentence of three years in prison. As with its definition of trafficking for other drugs, many people are surprised to learn that the crime of trafficking in Florida does not require a person to have either sold or intended to sell the drugs. Mere possession is enough to prove trafficking under Florida law if the controlled substance is above a certain weight.

A mandatory minimum sentence under Florida law means that a judge is unable to reduce that person's sentence from the three year minimum - even if there are mitigating factors once the person is convicted of the crime. Minimum mandatory sentences, therefore, shift the discretion in how a person is sentenced from judges to prosecutors. Sometimes, a prosecutor may offer a defendant a sentence more lenient than the mandatory minimum under exceptional circumstances, but a person who is not offered a plea deal from the prosecutor and who is subsequently convicted of trafficking has no wiggle room to ask the judge for a lower sentence. In addition to Florida's mandatory minimum sentence for possession or sale of more than 25 pounds of marijuana, there is also a mandatory minimum seven year prison sentence for possession or sale of between 2,000 and 7,000 pounds of marijuana as well as a 15 year minimum sentence for possession or sale of 10,000 pounds or more. Using the estimated average dosage of marijuana of 1 gram, 10,000 pounds of marijuana is over 4.5 million doses, or enough marijuana for a daily smoker to smoke for over 12,000 years.

Each of the 50 states has taken a different approach to dealing with the drug marijuana, according to Florida criminal defense attorney John Musca. In states that are relatively tolerant of the drug, like Alaska and California, possession of a small amount of marijuana is considered a minor offense. In Alaska, the state Supreme Court has ruled that the state constitution, which guarantees all citizens the right to privacy, forbids the state from arresting an individual for possession of marijuana. In California, marijuana is widely allowed for medicinal purposes with an estimated 200,000 registered marijuana patients and 1,250 registered marijuana dispensaries across the state. Further, both California's Governor Arnold Schwarzenegger and Alaska's Governor Sarah Palin have admitted to publicly smoking marijuana with little public backlash. Additionally, 11 other states have either decriminalized the offense of possessing a small amount of marijuana or have made prosecuting the crime the lowest level priority of law enforcement.

Florida, however, has taken the approach of 36 other states and criminalized the possession of a small amount of marijuana. Under Florida law, possession of marijuana under 20 grams is considered a misdemeanor offense punishable by up to one year in jail. Possession of more than 20 grams of marijuana is considered a third degree felony, punishable by up to five years in prison. Any time a person is convicted of possession of marijuana or any other drug in Florida he faces serious collateral consequences with regard to his driver's license. Any conviction for possession of any drug automatically suspends a person's license for two years. By way of comparison, a conviction for a first DUI offense results in a person's driver's license being suspended for six months. A conviction for misdemeanor marijuana possession also creates a potential three year on eligibility for public housing, a ban on state financial aid including financial aid for education, a five year ban on eligibility to become a foster parent and a ban on public employment unless you have successfully completed a drug treatment program.