Criminal Attorney in Melbourne Florida

When Do I Need a Criminal Attorney in Melbourne Florida?
If you think there may be an investigation involving you as a possible defendant, you may benefit from contacting an attorney, even before charges have been filed. The attorneys at Funk, Szachacz & Diamond, LLC. may be able to present information to law enforcement authorities and prosecutors so that a criminal charge is not filed.
Can I Do This on My Own?
As with most legal matters, you are allowed by law to represent yourself. However, an attorney is educated in the complex legal proceedings that you could be facing and can provide you with information and options that you may not know about that could help lead your case to a better resolution than if you did not have the assistance of legal counsel.
Where is your Office?
We are located at 3962 W. Eau Gallie Blvd in Melbourne. We are ¾ miles east of I-95 in the Eau Gallie Boulevard Office Park. Coming from the east we are 1 mile west of Wickham Road on the North side of Eau Gallie Blvd. Click here for a map.
Do I Need To Go to Court?
In some instances, your attorney can handle the entire case without you ever having to step foot in the courtroom.
If I Plead No Contest or Guilty or if I Am Found Guilty, Will I Go to Jail?
Not necessarily, your sentence depends on the type of crime you have been charged with, the severity of the facts, mitigating factors, any negotiations with the government Attorney and the judge's ultimate decision on the issue of sentencing. The attorneys at Funk, Szachacz & Diamond, LLC. will review all of your options with you.
Will I Lose My Driver's License?
Certain criminal and traffic offenses can be punishable by suspending your driver's license. The most common crimes that we are asked about is DUI, but some drug offenses may also carry a license revocation. There are ways to avoid the license revocation and to obtain hardship licenses in the event that a revocation is ordered. Talk to us about this possibility in your case.
When can I post Bond?
Most crimes provide for a bond amount to be set pursuant to a scheduled set by the Courts. You can either post that amount in cash or go through a bondsman and pay a fee for the bondsman to post the bond.

By law the arrested person will see a judge within 24 hours to address their bond amount it may be lowered but the Court also has the authority to raise the bond amount.
How quick can I get a Bond Hearing?
The Judge who handles your case decides when or if you are entitled to a bond reduction hearing. Our office can assist you with getting your case heard as quickly as the court's schedule permits.
I Posted a Cash Bond. What Will Happen to That Money Once My Case Is Resolved?
Money posted as a cash bond can be returned to the individual who posted the bond after the case is resolved. Often, the cash bond will be applied to court costs and fines before the remainder is returned. This payment to the Court is done regardless of who posted the cash bond.
What are the Classifications of Crimes in Florida?
  1. Florida has two criminal classifications: felony and misdemeanor. A felony is generally defined as any crime punishable by death or more than one year in prison. A misdemeanor is any crime punishable by imprisonment for less than one year. Florida also has a classification known as a non-criminal violation, which is an offense punishable by fine, forfeiture or civil remedy. Felonies and misdemeanors are further divided into different degrees. The following list shows the maximum imprisonment and fines for felonies and misdemeanors.
  2. Capital Felony: death or life imprisonment with no parole
  3. Life Felony: 40 years to life; $15,000
  4. Felony in the First Degree: 30 years; $15,000
  5. Felony in the Second Degree: 15 years; $10,000
  6. Felony in the Third Degree: 5 years; $5,000
  7. Misdemeanor in the First Degree: 1 year; $1,000
  8. Misdemeanor in the Second Degree: 60 days; $500
Types of Crimes
What is an Assault?
An assault is the intentional and unlawful threat, by word or act, to do violence against a victim in which the defendant has the ability to carry out the threat and the victim has a well-founded fear that violence is imminent. Assault is a second degree misdemeanor. An assault becomes an aggravated assault and is classified as a felony if committed with a deadly weapon in which the defendant did not have an intent to kill but did have an intent to commit a crime. Aggravated assault is a third degree felony.
What is the difference between Battery and Domestic Violence?
Battery is the intentional touching or striking of a victim against his or her will or intentionally causing bodily harm. Battery is a first degree misdemeanor. Aggravated battery occurs when a defendant intentionally or knowingly causes the victim great bodily harm, permanently disables or disfigures the victim, uses a deadly weapon or knew (or should have known) the victim was pregnant. Aggravated battery is a second degree felony. Domestic violence, in general, is merely a battery between two people who are or have been married, dating or cohabitating. Domestic violence and battery are misdemeanors but can be filed as felonies if the defendant has a history of battery or domestic violence.
What are Violation of Injunctions and Stalking?
To stalk someone means to willfully, maliciously and repeatedly follow or harass a victim. Cyberstalking using a computer or other electronic means is also illegal. Stalking is a misdemeanor, Aggravated Stalking, a third degree felony, requires the added element of a credible threat with the intent to place the victim in reasonable fear of death or bodily injury or if there is an injunction in place.

An injunction is a court order to prohibit a person from contacting, following or be near a person. There are different types of injunctions depending on the relationship of the parties and the facts surrounding the injunction.
What constitutes the crime of Carjacking?
Carjacking is the forcible or violent taking of a motor vehicle from a person with the intent of either permanently or temporarily depriving the person or owner of the motor vehicle. Carjacking is a first degree felony. If the defendant uses a firearm then there are certain minimum mandatory prison sentences which can apply.
What is a Homicide / Murder?
Homicide is the unjustified killing of a human being. Homicide can be classified as murder or manslaughter. Under Florida law, there are three degrees of murder. Murder in the first degree is the premeditated killing or the death of a person during the commission of one of the following enumerated felonies: drug trafficking, arson, sexual battery (rape), robbery, burglary, kidnapping, escape (from detention, arrest, trial or punishment), aggravated child abuse, aircraft piracy, use of a destructive device (bomb), carjacking, home invasion robbery. A person can be convicted of first degree murder even though he or she did not actually kill anyone, did not plan to kill anyone, or was not present at the crime scene but was involved in the commission of an enumerated felony that resulted in a person's death. Murder in the first degree is a capital felony. Florida has the death penalty and the State Attorney's Office determines if execution is a sanction for a first degree murder.

Murder in the second degree is an unjustified killing perpetrated by "an act imminently dangerous to another and evincing a depraved mind regardless of human life" or the killing of a person during the commission of an enumerated felony in which the defendant was not the killer but was involved in committing the felony. Murder in the second degree is a first degree felony. There is a mandatory life sentence if convicted of second degree Murder.

Murder in the third degree occurs when a person kills during the commission of a non-enumerated felony. Murder in the third degree is a second degree felony. Manslaughter is the unlawful killing of a person that does not rise to the definitional level of a murder. Manslaughter is a second degree felony.
Is there a difference between DUI Manslaughter and Vehicular Homicide?
Both charges are second degree felonies involving a death as a result either the reckless operation of a car (Vehicular Homicide) or the death of a person when the driver of the vehicle has an unlawful blood alcohol or their normal faculties are impaired (DUI manslaughter).
Is Incest illegal in Florida?
Anyone who marries or has sexual intercourse with a person to whom he or she is related by lineal consanguinity (child, parent, grandparent) or with a brother, sister, uncle, aunt, nephew or niece is guilty of incest. Incest is a third degree felony.
What is Kidnapping?
Kidnapping under Florida law does not require a ransom note - or even holding someone hostage. Kidnapping is defined as the forcible and secret abducting, confining or imprisoning of a victim against his or her will with intent to (1) collect a ransom, (2) commit or facilitate the commission of a felony, (3) inflict bodily harm or terrorize the victim, or (4) interfere with any governmental or political function. Kidnapping is a first degree felony. Anyone who kidnaps a child under the age of 13 and commits aggravated child abuse, sexual battery or a lewd act in the presence of the child commits a life felony.
What is Robbery?
Robbery is the forcible, violent or threatening taking of property from another with intent to either permanently or temporarily deprive the person or owner of the property. Robbery is a second degree felony. If in the course of a robbery the defendant carries a firearm or other deadly weapon, the robbery is a first degree felony. Home invasion robbery occurs when the defendant enters a victim's home and robs the occupants in their dwelling. Home invasion robbery is a first degree felony.
Is Sexual Battery and Rape the same thing?
Yes, the term Sexual battery is used to describe both forcible rape and statutory rape (sexual relations with a minor). This includes oral, anal or vaginal penetration by, or union with, the sex organ of another, or the anal or vaginal penetration by any other object. Depending on the circumstances, sexual battery can be a capital felony, life felony or a first or second degree felony. Anyone soliciting another to engage in an act that would constitute sexual battery is guilty of a third degree felony.
What is Lewd and Lascivious Conduct?
There are varying degrees of this crime and various acts which constitute a violation of Florida law as it relates to sex with minors. In general the age of the victim and to a degree the age of the defendant effect the seriousness of the charge and penalties. All can carry a significant prison sentence as well as designation as a sexual predator or sexual offender. Jimmy Rice Act ramifications can also apply.
Is the Possession of Child Pornography against Florida law?
It is a Florida State and Federal Crime to knowingly distribute sell or have in his or her possession, with intent to sell, distribute, transmit, or show images which depict a child (minor under the age of 18) in a sexual, lewd, lascivious or obscene manner. A person can be prosecuted in both Federal and State courts based on the same images. The crimes typically carry a significant prison sentence.
What is a White-Collar Crime?
White-Collar crime is a generic term for crimes which are non-violent in nature and typically involve; Fraud, Theft, Embezzlement, Ponzi Schemes, Tax Evasion, Forgery, Computer Crimes, Internet Fraud, Environmental Crimes, or Insurance Fraud as well as other similar crimes. These crimes are often prosecuted in federal Court, but can also be brought in Florida Circuit court as well.
How is Theft defined?
Florida has combined the crimes of larceny, embezzlement, false pretenses and receiving stolen property into the category of theft. A person commits theft when he or she knowingly obtains or uses the property of another with intent to either temporarily or permanently deprive the other person of the property. Theft of property valued at $100,000 or more is grand theft in the first degree and a first degree felony. Theft of property valued at $20,000-100,000 is grand theft in the second degree and a second degree felony. Theft of property valued at $300-20,000 is grand theft in the third degree and a third degree felony. Theft of any other property is petit theft and a second degree misdemeanor. (The category of larceny, the taking of property without consent and with intent to steal, is still used for reporting purposes.)
Is there ever a lawful Justification for the Commission of a Crime?
Under certain circumstances, what would otherwise be a homicide or felony can be justified and thus a person can not be convicted of that crime. A common example of a justifiable crime is one committed in self-defense. Generally, people are permitted to use a reasonable amount of non-deadly force to protect their property. Florida law even allows for the use of deadly force in self-defense if a person reasonably believes that such force is necessary to prevent imminent death or great bodily injury. The Castle Doctrine may also apply as a defense to homicide. Depending on the circumstances, coercion, necessity, mistake or entrapment are other instances for which a defense to a crime may be justified or the penalty mitigated to some extent.
Are Juveniles treated differently than adults?
People under eighteen are considered juveniles under Florida law. The juvenile court system is part of the circuit court and its purpose is to rehabilitate, not just punish, juveniles in trouble with the law.

If a juvenile is arrested, a law enforcement officer must attempt to notify the child's parent, guardian or legal custodian. Juveniles have all the same rights as adults in regards to the right to consult an attorney before making any statement to the police. A child can be taken to the county jail and held for up to six hours to be fingerprinted and photographed if a reasonable belief exists that he or she has committed a crime.

If a juvenile is charged with a crime, he or she has the right to be represented by an attorney at all stages of any juvenile court proceeding. If a judge determines the parents are financially capable, the judge may order the parents to provide an attorney. Otherwise, the judge will appoint a public defender to represent the child. It should be noted that there is no constitutional right to be tried as a juvenile. There are provisions in Florida law permitting the state attorney to transfer certain charges or certain children to the adult criminal courts.

If a juvenile court finds that a child is responsible for a crime, the child is said to be delinquent. Unlike criminals, a delinquent child cannot be sentenced to prison. Instead, the juvenile court may order:

*The child be placed on juvenile probation (permitting the child to live at home while imposing certain limitations on his or her freedom)
*The child be committed to a licensed childcare agency
*The child be committed to the Department of Juvenile Justice
*The child's driving license be revoked or suspended
*The child or the child's parents make restitution
*The child to participate in a community work project

Juvenile records are kept confidential and separate from other court records. Access is limited to the child, his or her attorney, the child's parents, the Department of Juvenile Justice, law enforcement and some school personnel. Juvenile records are not accessible to the general public. However, juvenile court proceedings are open to the general public and the press is free to publish any information gathered at these proceedings.
I've been arrested for DUI, What now?

Driving Under the Influence (DUI) ranks fourth behind larceny, narcotics and assault as Florida's most common crime.

How is DUI Defined?
DUI can be committed in two ways. The first is driving or being in actual physical control of a vehicle while under the influence of alcohol or certain prohibited substances to the extent that a person's normal faculties are impaired. The second does not involve impairment of normal faculties, but requires a person driving or in actual physical control of a car to have a blood alcohol level of 0.08 percent or above. Actual physical control is not clearly defined under Florida law, but courts seem to interpret the phrase to mean that the person was near the driver's seat and, if he or she wanted to, could have driven. For example, if an intoxicated person is seated behind the wheel or lying on the seat near the wheel of a stationary vehicle with the keys in the ignition or nearby, he or she can be charged with DUI. It should also be noted that Florida's DUI laws apply to any kind of vehicle, including bicycles and farm equipment.
What is the sequence of events for a typical DUI case?
After stopping a vehicle, a law enforcement officer will either order the driver to exit the car or approach the car while the driver remains inside. Under Florida law, a driver is required, if asked, to produce a vehicle registration document, proof of insurance and a driver's license to the officer. A driver has no legal obligation to answer any questions asked by the officer, including those related to sobriety, destination or point of departure. The officer may ask the driver to exit the car and, with reasonable suspicion, perform roadside tests. The National Highway Traffic Safety Administration has devised three tests believed to indicate impairment: an eye test, a walk-and-turn test and a stand-on-one-leg test. Some officers may use variations of these tests. The driver, however, is under no legal obligation to perform the tests (though evidence of a driver's refusal can be used in court). If, in the officer's opinion, there is probable cause to believe a person is guilty of DUI, he or she will be arrested.
Penalties
Even if a person is not convicted of DUI, the penalties can be severe. Under Florida law, anyone stopped by a law enforcement officer and given a breath test indicating a blood alcohol level of more than 0.08 percent or anyone who refuses to take a breath, blood or urine test faces, after thirty days of the arrest, an immediate administrative suspension of his or her driver's license for six to eighteen months. A first offender must then wait thirty to ninety days after the effective date of his or her license suspension in order to be eligible for a "business purpose only license." A person may challenge the suspension, but should it not be reversed, the offender must complete an educational program to regain his or her license after the suspension period expires. The increased cost for automobile insurance due to an alcohol-related suspension is often substantial.

A DUI conviction brings additional penalties. A first-time offender faces a fine of $250-500, imprisonment of up to six months, suspension of his or her driver's license (even if the license was already administratively suspended by the arresting police officer), fees and costs (usually around $1,000), the impoundment of his or her vehicle for ten days, probation for up to one year, a minimum of fifty hours of community service and a permanent criminal misdemeanor conviction on his or her record. Moreover, the cost of his or her automobile insurance will likely triple over the next three years and the offender will have to face the social consequences of being a known DUI offender.

The penalties for subsequent DUI convictions are enhanced significantly. For example, a second conviction within five years of the first conviction can mean a fine of $500-1,000, up to nine months in jail with a mandatory minimum of ten days in jail, impoundment of the offender's vehicle for thirty days (if the second conviction is within three years of first conviction), driver's license suspension of at least five years and fees and costs of about $1,500not including the cost of insurance, which will be extremely high. A fourth DUI conviction is a felony, regardless of the time period, and the offender's license is permanently revoked. If there is any property damage, personal injury or death involved in a DUI incident, a person faces up to fifteen years in prison, depending on the circumstances.
Implied Consent and the Right to Refuse Testing
Florida law provides that any driver operating a motor vehicle within the state who is lawfully arrested for DUI must consent to a chemical or physical test for the purpose of detecting alcohol or any other prohibited substance. The test may take the form of breath, blood or urine analysis. If a person refuses to take a test, his or her license will be administratively suspended for one year. If a person takes a test and is determined to have driven or been in control of a vehicle with a blood alcohol level of more than 0.08 percent, his or her license will be administratively suspended for six to eighteen months, depending on the circumstances. Remember that an administrative suspension of a driver's license is separate from, and often in addition to, the penalties of a DUI conviction.
Trial
A DUI trial can be as complex as any criminal case. Defense and prosecuting attorneys frequently argue over constitutional issues such as unreasonable search and seizure, probable cause for arrest, double jeopardy and a defendant's right to a speedy trial. Scientific experts in the fields of serology, physics and chemistry are often asked to testify. One to several dozen witnesses may be asked to take the witness stand and the trial itself may last four to five days. Given the seriousness of the crime and the severity of the punishment under Florida law, it is important for attorneys on both sides to be adequately prepared to argue their cases.
Standard of Proof and Possible Defenses
Under the United States system of justice, all defendants are innocent until proven guilty. To prove a defendant guilty of DUI, the prosecution must persuade a jury (or a judge) that the defendant committed the crime "beyond a reasonable doubt." This standard of proof is higher than that required in a civil trial. To find someone guilty beyond a reasonable doubt is to believe that, in light of the evidence presented, there are no doubts of the defendant's guilt based on reason. There may be fanciful or unlikely doubts, but no reasonable doubts.

A defendant's attorney will closely scrutinize all elements of the case against his or her client but will pay particular attention to the procedures the police followed in arresting and testing the defendant. If, for example, the prosecution fails to prove the police had probable cause to stop and arrest the defendant, the case will fail even if the defendant was indeed driving drunk. Police are constitutionally prohibited from indiscriminately stopping or arresting people.

Another argument a defense attorney might make is that while the defendant may have had a blood alcohol level of more than 0.08 percent at the time of the test, when he or she was stopped, his or her blood alcohol level was still within legal bounds. The level of alcohol in a person's bloodstream does not immediately increase upon drinking alcohol. The absorption of alcohol into the bloodstream takes time and is based on a variety of factors (e.g., a person's weight, metabolism, amount of food in the stomach). If the police arrested the defendant before he or she was legally drunk, the defendant may be acquitted.
Appeal
If a defendant is convicted of DUI, he or she is still entitled to an appeal. Appeals from a guilty plea concern only the correctness of the sentence, not the innocence or guilt of the defendant. Appeals from a conviction relate to whether the defendant's right to trial was violated in any substantial way.
Victim Services, Restitution and Compensation
Victim Services
Florida law enforcement personnel are required to provide victims with information regarding available victim service programs, including:

*The right to request restitution (see below)
*Crisis intervention services, support and bereavement counseling and community-based victim treatment counseling
*The role of the victim in the criminal justice process, the legal rights of the victim and the stages of the criminal justice process
*The availability of protection for the victim
*The availability of victim compensation (see below).
Restitution
Under Florida law, an offender may be required to make restitution in addition to any criminal sentence. Restitution for bodily injury, lost income and funeral expenses can be court ordered for the victim or the estate and next of kin of the victim if the victim died as a result of the criminal offense.
Compensation
Florida passed the Florida Crimes Compensation Act, which provides government financial compensation to eligible victims. To be eligible to receive compensation, a person must be a victim, or someone who intervened and aids another and suffers bodily injury or death as a result of trying to prevent a crime, lawfully apprehending a suspected criminal or helping a victim of crime, a surviving spouse, parent, child or other dependent.

The amount of an award is based on the actual needs of the person requesting assistance. The maximum compensation award is $10,000, including all costs or losses. Emergency awards are also available. A claim for a financial award must be filed no later than one year after the crime occurred or after the death of the victim. However, if the Attorney General's Office determines there is good cause, the deadline may be extended to two years after the crime or death.

A defendant can be held responsible to reimburse the State for the money it pays through the Crimes Compensation Fund.
Can I Keep This Off My Record?
Florida law does provide for sealing and expunging criminal records, but there are exceptions. At Funk, Szachacz & Diamond, LLC, a criminal attorney in Melbourne Florida can tell you if your situation qualifies.