Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
This is going to be a shocker but Florida legalized medical marijuana back in the early 1990s by a court decision that no one has heard of. This particular court decision involved a couple who had severe life-threatening illnesses, they were unable to eat, their doctor had prescribed numerous medications for them and unfortunately, nothing seem to work and the physician was afraid they would die. Out of desperation, he told them to start using marijuana which they did. They began growing it, they began smoking it, they were arrested and they were charged with felony cultivation of marijuana. The case went to trial, it went to a bench trial instead of the jury trial and the judge found them guilty under existing law, then did something very unusual.
Instead of a punishing pounding sentence that you would normally expect after a criminal trial has been lost, the judge ordered them to perform several hundred hours of community service work in the love and care of each other for the rest of their lives because they weren’t expected to live that long. The defense lawyer appealed this case from the circuit court to the first district Court of Appeals which covers a large section of Florida. Florida has 20 judicial circuits and five districts for district Courts of Appeal. Trial cases handled in circuit criminal court or county criminal court within a particular circuit appeals, ultimately go to the first DCA, if it’s a felony immediately, as a second level of appeal if it starts out as a misdemeanor. To the surprise, I think, of a lot of people, the first district Court of Appeals held that Florida still recognized the common law defense of necessity.
This is a defense that comes down from English common law that predates the finding of the United States of America and the state of Florida. In areas of law where the legislature has not overridden common law with the statute, common laws still apply. So in fact, Florida has allowed medical marijuana as what is called a Medical Necessity, as part of the necessity defense, since about 1992 in one of the five districts. I can almost imagine the attorney general’s office after losing that case in the first district court of appeals saying “If we take this to the Florida Supreme Court, Florida is going to be the first if only state in the country to legalize marijuana”. Now, you have to remember in the 1990s, crime and punishment was way big focused politically and so the attorney general’s office wisely decided not to do that. I take the position at this juncture that points of 893.13 as they relate to possession of use and marijuana are no longer constitutionally valid and that is lawful to smoke marijuana in Florida. Now, does this mean that someone will not be arrested if they are caught smoking a joint? Absolutely not.
They will be arrested, but I am absolutely prepared to litigate the constitutionality of this particular issue. I’ve been waiting my entire career for these types of developments to take place to where I could file a constitutional attack against the marijuana statute and I will spend the rest of my life as a criminal defense lawyer trying to destroy that unjust law that deprives patients of needed medicine. The constitutional amendment that was passed by the voters was so narrowly written and has been so narrowly construed by policy makers that it is effectively meaningless yet it is very clear that the people of Florida have de facto legalized marijuana because just about anywhere you go in Florida, if you are walking outside for any length of time, you’re going to smell pot. So my take on it is that yes, the statute that enacted the constitutional amendment has legalized marijuana in some forms, I actually think that within the criminal justice system that it’s medicinal of Florida’s anti-marijuana statute.
I Caught My Boyfriend Cheating How Can I Be Charged With Burglary As An Occupied Dwelling When I Didn’t Take Anything?
I don’t know all the facts of this particular question or situation but it’s a scenario where she caught the two of them cheating at a home or other residence that was not hers that she unlawfully entered it would be the allegation and that she unlawfully committed the crime inside of the dwelling would also be an element of the allegation. A lot of people think that when someone is charged with burglary of a dwelling occupied or unoccupied that what that means is that they went into the dwelling and stole something. The reality is if someone goes into someone else’s dwelling without lawful reason to do so and then for example, start to fist-fight with that other person which may or may not have happened with the lady who caught her boyfriend cheating or it could be that she damaged the property.
The way burglary works is the unlawful entering of the dwelling and the commission of any crime within the dwelling itself. So the crime inside of the dwelling doesn’t have to involve stealing something, it does not have to involve anything related to facts. It can be criminal mischief, it can be battery, it can be sexual battery, it can be assault, it could be a number of different things because the basics are an unlawful entry into a dwelling and a crime that’s committed therein. Now, these types of cases like every other case have to be prepared two ways. Every case is going to trial, every case is going to settle. In a case such as burglary of an occupied dwelling, a person is always put in a position that is something like this. Take X number of months in prison, or go to trial and if you lose, you’re risking 15 years. That’s a heck of a situation to be put in where you’re looking at 5 years in prison if you don’t go to trial, and if you do go to trial and you lose, you can get up to 15.
So these types of cases have to be handled extremely carefully with a high degree of precision because people are truly shocked if they are a first offender and they find out that their plea offer is a certain number of years in prison and if they go to trial, it could be even worse. We have a system we use to handle this with how we draft our pleadings, what type of defenses we look at, how we approach the complaining witness who the state will call a victim because we don’t like that person calling the state attorney’s office every 5 minutes demanding maximum incarceration.
We do a number of different steps, techniques and strategies over the several months that a burglary case will last because most of them of this nature are going to last 5 to 7 months and we use that time as effectively as possible so that when our clients does find themselves standing before a judge, that we have the best possible settlement offer that does not involve jail or prison as well as the best possible defense at trial. If the prosecutor is across the courtroom from a lawyer that they know cannot find their way to trial, they have no incentive to offer a better plea bargain. This is why I do the 5-day jury trial for everything and anything. It’s not very popular but I can ensure you that when state attorneys are used to having a trial that last day-and-a-half and suddenly they start finding themselves with 5-day trials suddenly, plea offers get better and that’s a technique I’ve used for decades.
If someone is charged with burglary of an occupied dwelling, it’s critically important that they hire the best private counsel they can possibly find because we all know the public defender has cases falling out of their ears and this is one of those types of cases where even the slightest mistake, the slightest overlooking of the minor fact could have major implications. Little hinges swing big doors. So it’s important to pay attention to all of those little hinges in a case involving burglary of an occupied dwelling.
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
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