1. Can a police officer search my cell phone after my arrest?
Not without a warrant. While search of your person and areas within your reach is lawful, searching your cell phone requires that the police obtain a warrant. The police may however secure the phone pending that warrant but may not access information, data or content on the phone. One exception is if there an emergency requring immeditate access. However this is the exception rather than the rule.
2. Can I be charged with drugs found in a car in which I was a passenger?
Yes. Possession can be actual or constructive. Actual possession occurs when the drugs found were in your hand, on your person, in a container on your person or within your ready reach and under your control. Constructive possession, on the other hand, requires proof that you knew of the presence of the contraband and had the ability to exercise dominion and control over it.
If the drugs found were in plain view, the inferrence is that you had knowledge of its presence. However, if the drugs were hidden (under a seat, in the glove compartment, in a bag etc.), then there must be some independent evidence of knowledge of the presence of the drugs and the ability to control it. Independent proof can be introduced through incriminating statements, your actions or other circumstances that support knowledge and control.
Constructive possession is a complex area of criminal law. You will need an experienced criminal attorney to thoroughly investigate the specific facts of the case and to discover legal issues such as whether the vehicle was lawfully stopped and lawfully searched, whether any statements or admissions were lawfully given, and, whether the evidence supports a constructive possession charge.
Numerous constructive possession cases have been successfully dismissed with the filing of a Motion to Dismiss or a Motion to Suppress.
3. Can I get a court to review or vacate my plea if more than 30 days have passed since I entered the plea?
Depending on the specific facts of your case you may have options for post conviction relief even though more than 30 days have passed since you entered your plea. Some avenues for relief are:
- Motion to Withdraw your Plea - If you have not yet been sentenced we can move to set aside you plea. If you were already sentenced but more than 30 days have not passed since your sentencing, we may still be able to withdraw your plea upon specific grounds as outlined by Florida law.
- Motion to Modify or Reduce your Sentence- This normally has to be filed within 60 days of the sentence or within 60 days after receipt of a mandate or dismissal from the appellate court on your appeal.
- Motion to Correct an Illegal Sentence- We can review your case to see if your sentence was illegal. A court may correct an apparent illegal sentence at any time after the time for filing an appeal has passed and if there is no appeal pending.
- Motion to Vacate Judgment and Sentence- You normally have 2 years from when the judgment and sentence become final to file this Motion. In some limited circumstances, for good cause, even if more than 2 years have passed, we may still be able to file this Motion for you. There are various legal grounds that may be presented in support of a motion to vacate a judgment and sentence. An involuntary plea is an example of one such ground. A plea may be found involuntary if it is entered without full knowledge of certain important legal consequences of entering that plea.
4. My loved one is in jail with a high bond, what can I do to lower the bond?
Every county has a bond schedule which usually determines the amount of bond that is assigned to a particular offense. In determining bond, the court will set an amount that will ensure the appearance of the defendant at court proceedings while at the same time protect the community from unreasonable danger from the defendant.
If the initial bond is too high, we are able to set up a Bond Hearing where we will ask the court to lower bond to a reasonable amount. In making a decision some factors the court will consider are:
- The nature of the offense
- The evidence against the defendant
- Defendant's stability, family ties, employment etc.
- Defendant's financial resources
- Defendant's criminal history, convictions, failures to appear, pending criminal proceedings, etc.
- The probability of danger to the community as a result of defendant's release
In some cases, depending on the nature and specific facts of the case, the defendant's lack of a criminal history and his/her ties to the community, we are able to obtain a release of the Defendant on his own signature or recognizance (ROR).
If bond is lowered, depending on the amount, you may be able to pay by cash (the entire amount in cash) or by surety, which involves paying 10% to a bail bonds company and the remaining amount in collateral.
Contact us today so we can start building your defense.
1. What is the typical process in a divorce/dissolution case?
Dissolution (as divorce is called in Florida), starts with the filing of a petition with the circuit court. This is a sworn document in which the petitioner (the person initiating the action) outlines for the court in some detail what he/she wants. Issues such as child support,time-sharing with minor children, spousal support and equitable distribution of marital property, may be included in such a Petition.
After the petition is filed the Respondent (the other spouse who answers the petition) has 20 days to file an Answer. If the Respondent files no answer or other document in response, a default judgment will be entered against him/her. If a default is entered, the Petitioner, in most cases, will obtain the divorce.
If the Respondent files an answer, he/she can also file a Counter Petition which outlines the issues that he/she wants the court to consider. These issues may be similar to the ones outlined by the Petitioner. Within 45 days of the service of the Petition, if any sort of financial relief was requested, each party must provide certain financial documents and complete a financial affidavit.
In most cases, if the parties cannot agree on all the issues, the case is sent to Mediation. In fact, pursuant to many local court rules, pre trial mediation is mandatory unless excepted by law. Cases where there is a history of domestic violence that would compromise the mediation process normally fall under this exception.
- If a full agreement is achieved in Mediation there is no need for a trial. The parties then attend a final judgment hearing where the agreement is ratified and becomes the order of the court.
If an agreement is not reached through Mediation the case normally proceeds to a trial where a judge listens to the issues, the parties are allowed to present evidence and at the conclusion of the proceeding a final order is issued by the Judge.
- Marital Agreements- In many cases the parties are able to come to an Agreement before the case is filed or shortly after the case is filed. This Agreement, called a Marital Settlement Agreement, is then filed with the court and incorporated into a final judgment.
2. What factors does the court look at in determining parental responsibility and time sharing with a child?
The best interest of the child is the primary consideration for the court. The best interest of the child is determined by an evaluation of all factors affecting the welfare and interest of the child and the circumstances of the family.
The specific factors that the court looks at are outlined in Florida Statute 61.13(3). Each parent is looked at equally and there is no presumption for or against the mother or father of the child.
The courts normally prefer that parental responsibility for a minor child be shared by both parents unless it finds that shared parental responsibility would be detrimental to the minor child.
The court can take into consideration evidence of domestic violence, sexual violence, child abandonment and neglect or child abuse, regardless of the absence of a charge or conviction, There is normally a rebuttable presumption of detriment (a stronger showing of evidence more like an assumption taken to be true unless a party proves otherwise) when the parent has been convicted of domestic violence or when the parent is incarcerated for a substantial period of time or for certain serious crimes.
Unless it is not in the best interest of the child, both parents are entitled to spend time with their minor child. A time-sharing schedule specifies the time the minor child will spend with each parent ie. weekdays, weekends and holidays.
3. Can I get alimony if the marriage only lasted for a short period of time?
The length of the marriage is not the sole determining factor in an award of alimony. The court also looks at:
Whether the requesting party has an actual need for the alimony, and
Whether the other party has the ability to pay.
Once need and ability is determined the court then looks at a host of other factors to determine the type and amount of alimony. These factors include but are not limited to:
- The standard of living established during the marriage
- The duration of the marriage
- The age, physical and emotional condition of each party
- Financial resources and sources of income of each party
- A party's earning capacity, employability, education or skills
- The contribution of each party to the marriage
- The responsibilities of each party to the minor children (if any)
- The tax consequences of any alimony award
These factors are enumerated in Florida Statute. The court can also look at any factor that is necessary to promote equity and justice between the parties.
A short term marriage is one lasting less than seven years. Though a short term marriage may not be suitable for permanent alimony (unless in exceptional circumstances), there are other types of alimony such as durational alimony or bridge the gap alimony, which may be awarded for shorter periods of time.
4. My circumstances have changed since the court order. What factors do I need to present to the court to modify child support and alimony?
Child support is modifiable under certain circumstances. If both parties can agree (the one receiving payment and the one making payments) then the process will be an easier one. The court will then need to approve the agreed upon modification in order for it to be enforceable.
If there is no agreement, the party requesting the modification must provide a legal basis for the modification. The requesting party must be able to prove a legal basis for the modification such as:
- The modification is in the best interest of the child
- The child has reached the age of majority
- There has been a substantial change in circumstances of the parties, or
- That the child has married, has emancipated, joined the armed forces or has died.
Under certain circumstances, the court may also modify the amounts, terms or conditions of support for a dependent child whether the child is dependent in fact or is physically or mentally dependent.
- Any request for modification must be filed with the court and served on the opposing party.
The type of alimony and the specific set of circumstances will determine whether or not your current alimony award can be modified. Permanent Alimony, for example, may be modified by a showing of a substantial change in circumstances or upon a showing that the obligee (the person to whom the support is owed) is maintaining a supportive relationship.
The court will assess the existence of a supportive relationship by a careful review of certain factors which include but are not limited to:
Whether the obligee and the other person have held themselves out to the public as husband and wife,
The length of time they have resided together in a permanent dwelling, or
Whether they have pooled financial assets, jointly purchased real or personal properties or engaged in other behavior that indicates a level of economic support.
Durational Alimony- Awarded to provide economic assistance for a specific period of time- may be modified in amount based on a substantial change in circumstances. However, any modification in the length of a durational alimony award may not exceed the length of the marriage unless there are exceptional circumstances present.
Rehabilitative Alimony- Awarded to assist a party with achieving a level of self-support -may be modified based on a substantial change in circumstances or if there has been noncompliance with the rehabilitative plan or a completion of the rehabilitative plan.
Bridge-the-gap Alimony- Awarded to assist in the transition from being married to single, may not be modified.
In all cases, it will be necessary for us to conduct a careful analysis of the type of alimony initially awarded and the specific reasons supporting the need for a modification. As with child support, a request to modify alimony must be filed with the court and served on the other party.
1. I entered the US on a B2 tourist visa. My visa expired a couple months ago. I think I am eligible for a green card. Can I remain in the US and adjust status or do I have to leave?
The answer to this question depends on the grounds on which you are seeking to obtain your permanent residency (green card). If you intend to apply as an immediate relative of a US Citizen- (ie. spouse of a US citizen, parent of a US Citizen who is over 21 years of age or, as the unmarried child (under 21 years of age) of a US citizen) and you entered the US with inspection (by a US Official) then you can adjust status in the US. If you are not intending to obtain your green card as an immediate relative, or if your presence in the US is unlawful because you entered without proper inspection, then it is likely that you will not be allowed to obtain your green card in the US.
Note- If you are otherwise ineligible to adjust status in the US you may qualify under a special provision of immigration law that allows you to adjust status, regardless of your failure to maintain lawful status, if you had a labor certification application or immigrant visa petition on file before April 30, 2001 and was physically present in the US on December 21, 2000.
If you are ineligible to adjust status in the US you will have to leave to complete your application at a consulate abroad. Since you have been unlawfully present you will likely be barred from reentering the US. Unlawful presence of 6 months to 1 year will bar reentry for three years while unlawful presence for more than a year will bar reentry for a period of ten years. If barred, you may be eligible for an Extreme Hardship waiver.
2. I entered the United States without a visa or other legal document. I am now married to a United States Citizen. Can I get a green card based on this marriage?
Yes. However you will have to file for the Government to waive your unlawful presence. Prior to March 2013 this would require you returning to your country in order to obtain your immigrant visa. You would then face a bar to reentering the US (3 or 10 years depending on whether you overstayed by a year or more). With the new law, you can now apply for Provisional Unlawful Presence Waiver before leaving the US. You will have to prove that if you are refused admission, your spouse (not you), will suffer extreme hardship. Note - this provisional waiver shortens the time that you are away from your spouse in that instead of completing the entire immigrant visa process abroad you complete a large portion of the process while remaining in the United States.
However, if you are provisionally approved, you are still required to return to your country for your immigrant visa interview. Furthermore this provisional waiver only waives unlawful presence but not other legal grounds of inadmissibility such as a being inadmissible for a crime.
3. I entered a no contest plea to a theft charge over 5 years ago and received a withhold of adjudication probation and a fine. I have since sealed my record. I am intending to apply for naturalization as I have been a permanent resident for more than 5 years. Will my sealed record pose a problem to my ability to naturalize?
Assuming you have had no other arrests in the past 5 years and that you can meet all the other requirements in order to naturalize, you could technically be able to show good moral character for 5 years preceding your application since your conviction was more than 5 years ago.
However, you should not attempt to naturalize without first hiring an attorney to review your conviction. You can be placed in removal proceedings for a conviction for a crime involving moral turpitude committed within 5 years of your admission to the US. The conviction must relate to a crime where a sentence of more than 1 year could have been imposed. For immigration purposes, a withhold of adjudication can be a conviction if there is some form of punishment or penalty. The probation and fine can be considered a type of punishment or penalty.
As it is likely that due to your probation and fine, you were convicted for immigration purposes, you will face removal proceedings if you submit an application for citizenship and the following additional conditions apply:
- The theft was committed within 5 years of your admission into the US,
The theft is a crime involving moral turpitude (likely to be found if the statute under which you were charged defined theft as an intent to permanently deprive the owner of property, or, if the theft was for cash or was committed by the use of deception), and
The minimum sentence for your charge exceeded a year (a felony charge in Florida).
A trained attorney can examine your case for the possibility of any post conviction relief which could reopen the case and eliminate the charge and conviction altogether or explore the possibility of immigration waivers or defenses in the event you are placed in removal proceedings.
4. My spouse was granted entry to the US for purposes of work and I accompanied him on a valid visa. Am I also able to work?
Your ability to work will depend on the type of visa you have which in turn will be dependent on the type of employment visa granted to your spouse. If, for example, you obtained an H-4 non immigrant visa as the spouse of an H visa holder then you will not be able to work in the US. However, if your spouse obtained the ability to work under other visa classifications for non immigrant workers, such as an E visa (as either a treaty trader or investor or an employee of a treaty trader or investor) or an L visa (intracompany transferee executive or manager or an employee with specialized knowledge), then you may be able to obtain the corresponding nonimmigrant visa for the spouse of that visa holder (eg. L-2 for an L visa holder) and seek to obtain employment.
If you accompanied your spouse with a visa that does not allow for work (eg. a B-2 tourist visa), but are able to, based on your spouse’s employment, obtain a visa that will allow you to work, you may seek to obtain that visa by completing Form I-539- Application to Change Nonimmigrant Status.
5. One of my parents is a US Citizen by birth. I currently reside in the US. Do I need to naturalize or am I automatically a US Citizen?
You are automatically a US Citizen if your parent is a US Citizen by birth or naturalization and:
- You were under 18 on February 27, 2001,
- You were admitted as a lawful permanent resident, residing with your US Citizen parent and under his/her legal and physical custody, and
- You are either a natural (biological child) of this parent or were adopted.
Note- You must have met all the requirements before your eighteenth birthday.
If you were born out of wedlock, and you are seeking to obtain citizenship through your father, the law requires proof that you were legitimated (i.e. established lawfully as a child of that parent) while in his legal custody and while under the age of 16.
If all the conditions apply, you are an automatic US Citizen and may obtain a certificate of citizenship.
If you do not meet the qualifications for automatic citizenship you will have to apply for citizenship through Naturalization.