How To Stop Prosecutors From Using Leverage To Enhance Battery Penalties In Florida

What happens if someone is arrested for a felony battery on a law enforcement officer after being accused of a simple misdemeanor battery? Despite the fact that one charge is a felony punishable under Florida law for up to five years, sometimes it’s just the simple battery that could ruin one’s life. Incident to an instant investigation of a very recent simple battery an officer claims that he was struck by the Defendant.

Ali Batters the Beatles

Ali Batters the Beatles

So how could anything be worse than the underlying felony of battery on a law enforcement officer in cases in Clearwater, Florida? Well, if the defendant was accused by the original victim of inappropriately touching her crotch area as she walked along a sidewalk – which is bad enough. But the victim claims the defendant after leaving her alone for a minute or two then continued following her until touching her a second time in the crotch area thru her clothes. In this case if the facts are believed by prosecutors to be provable at trial they could file two criminal counts for each of the inappropriate touchings. In fact the crimes prosecutors would look at based on the totality of the victim’s allegations include aggravated stalking, false imprisonment, sexual assault as well as lewd and lascivious conduct. Any of which would be much more difficult to successfully defend than the allegation of any simple battery on which the defendant was arrested. In fact the allegations alone could ruin the defendant’s life no matter how the case would be resolved.

When there is any allegation of a crime of a sexual nature, prosecutors may elect to increase their leverage in the case by filing additional felony counts. There’s little to stop them from merely limiting themselves to the charges officer’s initially filed when making the arrest. In fact there’s ample opportunity, motive and incentives for prosecutors to leverage the initial simple battery charge by filing additional charges. Here the charges they would likely consider include but are not limited to stalking, false imprisonment, sexual assault and lewd and lascivious conduct.

Although facts may be found and summoned to dispute the victim’s testimony, the later battery on a law enforcement charge from the officer’s case makes disproving the earlier simple battery much more difficult. This is true because successful prosecutors will file the case on one charging document, known in Florida as an information, so that at trial the entire story from both events could be tied together as one narrative for the jury.

If alcohol consumption was a contributing factor, it’s important to note that alcohol is not an effective defense to a criminal Battery charge. And even if the defendant would have been a candidate to have the charges dismissed based on pretrial intervention, the sexual nature of the original simple battery arrest would force the State Attorney’s Office to decline the PTI application. In fact even achieving a withholding of adjudication would be unlikely.

Clearly, the best course of action would be to conduct an immediate and thorough investigation of the sexual assault as well as the battery on a law enforcement officer to determine if the witnesses are reliable, persuasive and honest. The investigation would include finding other witnesses or video evidence that undermines the simple battery charge as well as any of the felony charges the state of Florida could use as leverage to force a change of plea to guilty.

WHY DOES AN ADJUDICATION OF GUILT IN ANY CRIMINAL CASES MATTER & HOW CAN IT BE AVOIDED?

What does it mean when a judge at sentencing finds that a defendant is adjudicated guilty? In real terms it may trigger time in prison, loss of employment as well as future job opportunities combined with the loss of basic rights of American citizenship such as the right to vote, the right to possess a firearm and the right to travel. Yet far too often defendants are cast out of society by those two simple words uttered by the sentencing judge -adjudicated guilty. 

Adjudication of guilty means that the judge upon looking at all of the facts and circumstances of a case has made a finding that there is in fact guilt. It doesn’t always have to be that way. It’s possible for the judge to avoid giving a direct adjudication of guilt in many criminal cases.

Prosecutors will ask the sentencing judge for an adjudication of guilt based on the following factors:

1. The more serious the underlying criminal conduct, the more likely it is that an adjudication of guilt will be ordered. In fact, for many criminal acts Florida statutes specify that a judge must make a finding of guilt. For example, a Clearwater, Florida judge in Pinellas County can not withhold adjudication of guilt in a murder case nor a sexual battery case, yet the judges hands are also tied in some less significant cases when the facts justify it such as theft, battery on a law enforcement officer and DUI. Upon making a determination that there is a statutory requirement for an adjudication of guilt under the charged offense, it may be necessary for defense counsel to negotiate with the prosecutor for a charge which is less severe that allows the court more discretion in granting a withholding of adjudication.
2. The prosecutor and sentencing judge by Florida law must inform the victim of any potential change of plea and allow the victim to be present at the time of sentencing. In practice this means that the victim’s consent is often required for a sentence which does not include an adjudication of guilt.
3. But of even more importance is the prior record of a defendant. If a defendant has any kind of priors even if only a misdemeanor rather than a felony, then the likelihood of an adjudication of guilt in any given case escalates. This is true because most judges view an adjudication of guilt as the standard plea with anything less than that being a gift. And in a sense this is true under Florida law in that once there has been a withholding of adjudication in a prior case the law is framed to make in more difficult for the sentencing judge to again withhold adjudication without justification on the record. After all, the reasoning goes, the defendant was already given one chance, why should he be given another? In these cases it’s important to establish how the defendant has changed and why the previous case should not be counted as a prior for finding an adjudication of guilt.

When possible a withholding of adjudication is always preferable to an adjudication of guilt. It’s even in the best interest of the client to ask the sentencing judge for a more punitive sentence if the court will grant a withholding of adjudication. If the plea bargain called for an adjudication with a period of probation and related requirements, it would be well worth exploring possibly adding community service or extended probation for the opportunity of avoiding an adjudication of guilt in the case. Sometimes this can be tough for a client to swallow, yet it’s part of what good lawyers should be doing – finding the best possible outcome for their client by persuading the prosecutor and judge during plea negotiations that everyone benefits from a second chance.

HOW AN ACCIDENTAL TOUCHING OF AN OFFICER CAN RESULT IN BATTERY ON A LAW ENFORCEMENT ARREST

Since a battery under Florida law is an intentional touching or striking of another person, a battery committed against a law enforcement officer should always require that the defendant intended to touch or strike an officer. Yet officers often make arrests for Battery on a Law Enforcement Officer (BOLEO) where there’s no evidence of any intention to commit battery on the officer. 

W.C. Fields about to be Battered


While working years ago as a prosecutor and now as a defense lawyer in Tampa Bay, Florida I’ve seen dozens of cases dismissed or reduced when evidence clearly established that an officer was not intentionally touched. 

The following are four ways in which law enforcement officers often mistakenly charge an unintended or accidental touching as a BOLEO:

1. Law enforcement officers may overreact when they feel that a situation is getting out of control and make a BOLEO arrest to quell the situation. Officer safety is a legitimate issue but an arrest for BOLEO should only be made if the facts and circumstances of the case support an intentional touching or striking of an officer.

2. Other cases result from what should be charged as a mere misdemeanor resisting arrest without violence where a defendant is not immediately obeying an officer’s commands to allow an arrest or provide specific information. In these situations the case should be reduced from a felony to reflect the actual facts of the case.

3. Sometimes officers become frustrated during the course of an investigation if an officer is injured even if the defendant had no intention of doing anything to the officer. In one case I had years ago the officer was angry that his glasses broke while securing my client during an arrest and was more than happy to use a felony charge as a means of paying for his new frames thru restitution. The other officers testified that there was no unlawful touching or striking of the officer’s face so the BOLEO charge was dismissed.

4. Officer or prosecutors may make a tactical decision to add BOLEO charges that would normally not be filed where it can be used as effective leverage to convict the defendant of other charged misconduct. By driving the guidelines higher with a new charge the prosecutors up the ante for a defendant who might want to fight the other charges in trial thus increasing the chances of obtaining a conviction.

If you’ve been falsely arrested for Battery on a law enforcement officer, it’s important to have a criminal defense lawyer look for the underlying reasons why a BOLEO charge has been filed in each case and then to support his conclusions with evidence such as video, audio, photographs, medical records or witness testimony. By establishing a likely motive for the police to have mistakenly charged the felony BOLEO it becomes much more likely to find ways to dismiss the charge or reduce the felony to a more manageable misdemeanor. 

WHAT TO DO IF YOU’VE BEEN FALSELY ARRESTED

When Florida law enforcement officers make a mistaken arrest it’s important to take immediate steps to win back your freedom, your reputation and your future. Here are the critical steps you should take to regain control of your life.

1. Preserve evidence. If there is video, audio or other evidence of the incident be sure to keep the original and make copies. Any discrepancies between the police reports or officer testimony and tangible evidence helps to weaken the state’s case against you.


Finding evidence of innocence is the key to establishing that someone has been falsely arrested.
Find Evidence of Innocence

2. Preserve witnesses. In a recent felony Battery on a Police Officer case that I handled a cab driver observed an officer from the St. Petersburg Police Department push my client’s head into the  pavement, which was far different than the officer’s false allegation that my client had tried to take his badge. Finding this witness and exploiting his damaging testimony resulted in the case being dismissed (no filed) by the Pinellas County State Attorney’s Office in Clearwater.

3. Find corroborating details. Once in an alleged grand theft and burglary case that I handled the defendant happened to have a time dated ATM withdrawal slip which placed him far from the scene of the crime at the time the crime was committed. Had he not had that evidence of a corroborating detail he likely would have been convicted of the crime. Further, I’ve often encountered situation in allegations of misconduct or violations of probations where traffic ticket, pay stubs, work records or business records readily establish that my client is innocent.

4. Find computer, social media or smart phone trails. Most of our lives are now being tracked in countless ways by our computers, social media, smart phones and apps. Within the search structure and query system lay clues that may convict on exonerate you. It’s essential to have computer experts search the content of your devices in search of helpful evidence.

5. Think outside the box. Think of everything that may possibly help you by retracing your steps that day. Place everything that happened on a flow chart by writing every down event and nonevent that occurred that day chronologically. Then fill in the details of each event. You will find further supporting evidence of innocence. 


If you’ve been falsely arrested in Clearwater, St. Petersburg or Tampa you should hire the best possible lawyer to ensure that these steps will be followed and that you’re provided with an excellent defense.