“It is apparent that there is a serious risk of ‘going too far’ every time physical punishment is administered.” Herbert v. State, 526 So. 2d 709, 712 (Fla. 4th DCA 1988).

During my time as a prosecutor, I investigated countless cases of child abuse. One of the more difficult decisions I had to make was whether to charge a parent or guardian with child abuse, a felony in Florida; or was it a case of corporal punishment? Incidents involving a parent or guardian causing injuries such as welts and bruises to their child often times pose difficult filing decisions to prosecutors and ultimately a court reviewing the case down the road. Is this parent or guardian a criminal? Or are they just trying to discipline their child? Now as a criminal defense attorney, I deal with the same issues, just on the other side of the fence.

So what’s the answer? The long and the short of it is that there is no clear cut answer. Each case is evaluated on its individual facts. However, in reviewing the appellate cases in Florida they seem to give some guidance in determining whether a case is child abuse or simply corporal punishment. But there is still grey area. A parent or one standing in loco parentis has no absolute immunity from a charge of child abuse. However, the parent or guardian may assert as an affirmative defense that they used “reasonable” or “nonexcessive” corporal punishment such as a typical spanking. In general courts and prosecutors are going to look at two things: whether the actions on the part of the accused were reasonable; and whether the injuries suffered were excessive or just welts and bruises not requiring medical attention.

Appellate cases which found that there was not felony child abuse as a matter of law include: King v. State, 903 So.2d 954 (Fla. 2d DCA 2005), where the Court held that a school administrator, who had written permission from the parents to paddle a child and he did so causing welts, was not guilty of felony child abuse as a matter of law. However, the Court held that the administrator’s actions may constitute Contributing to the Dependency of a Child, a misdemeanor; and State v. Figarola, 788 So.2d 1109 (Fla.3d DCA 2011), where the Court held that a father striking his son in the face two times causing the son’s lip to split, and forcing the son to eat as punishment for his failure to eat dinner was not felony child abuse as a matter of law.

However, appellate cases where the Court held that the actions of the parents or guardian were unreasonable include: Julius v. State, 953 So.2d 33 (Fla. 2d DCA 2007), where a mother was accused of beating her two children with a wooden leg of a table which had a metal screw at the top because she was late for work and the children couldn’t find her shoe. She appealed her conviction of the count involving her younger daughter who “only” had “significant bruises or welts.” The Court upheld the conviction because “there was no evidence that the beatings were a legitimate form of discipline to punish some specific misbehavior; Czapla v. State, 957 So.2d 676 (Fla. 1st DCA 2007), where the Court upheld a child abuse conviction when the defendant punched his son in the head, pushed him into a room, and kicked him while he was on the floor because his son failed to do yard work. The Court held that this was not reasonable corporal punishment; and recently in the case of Chisolm v. State, 36 Fla. L. Weekly D (Fla. 1st DCA 2011) the Court upheld a conviction of child abuse where the father whipped his son with a belt containing some type of metal circles or studs causing bruising and welts on the entire surface of the child’s back and arms. The Court ruled that “this type of conduct cannot be likened to a typical spanking or other form of corporal punishment.”

The above cases deal with the common question of whether a case is child abuse or corporal punishment. The question becomes that much easier for the Court’s and prosecutors when the injuries are more severe than bruises or welts. Based on experience, if any of the same cases addressed above resulted in injuries such as fractured bones or some other excessive or permanent injury; it is highly likely that a prosecutor will file the case and an appellate court will uphold the conviction.

Conclusion

As a criminal defense attorney, I am more likely going to be successful arguing on behalf of a client that was using reasonable corporal punishment to disciple a specific misbehavior. What is reasonable in the eyes of a prosecutor and the Court will be decided on a case-by-case basis. I invite your comments on this issue.

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It’s that time of year again. Young students from all across the country flock to Florida for Spring Break looking to blow off some steam from the stresses of their studies. However, inevitably for some of the spring breakers, things get out of hand and they get arrested or cited for a crime. Aside from the obvious point that you should not break the law and get arrested in the first place; don’t make the common mistakes which can impact you for the rest of your life.

1. Plea to the charge at your First Appearance Hearing
It’s normal that once you are in jail that your initial thought is to get out of there as soon as possible. You may not be able to bond out right away and within 24 hours, Florida law requires that you must make a First Appearance before a judge. It is at this time that the Judge may offer to resolve your case for a fine or for “time served.” The natural inclination may be to take it and get out of jail. That may be a huge mistake. Depending on how the case gets resolved, you may not be able to seal or expunge that charge or any subsequent one for that matter. This could have an impact on your current or future employment. It could impact scholarships. It may seem like the path of least resistance at the time; but it could come back to haunt you. You may be pleading to a case that the State Attorney was not going to file at all. There may not be sufficient evidence to convict you for the charge. In other words, you may be doing the prosecutor a favor by pleading to the charge. Don’t waive important rights and defenses you may have just because you want to get out of jail; or you want to resolve you case as fast as possible.

2. Plea and fail to pay the fine or complete your conditions of probation
So you decided to plea at the first appearance hearing. As I discussed above, that can be a mistake. However, don’t compound it by failing to pay your fine or complete some condition of your sentence or probation. It is your responsibility to make sure you know how much your fine is and what conditions, if any, you have to complete as part of your sentence. If you get out of jail and fly back to your home out of state or out of town, don’t think you can ignore your sentence. It WILL come back to haunt you. Eventually you’ll have a warrant for your arrest for violating probation or your driver’s license may get suspended. In the age of computers, they will ultimately find you.

3. Fail to Appear for court
If you do bond out or simply get a criminal citation or Notice to Appear, do NOT ignore your court date. If you fail to appear (FTA), the Court will issue a warrant for your arrest and perhaps suspend your driver’s license depending on the charge. Warrants will remain active for years. They will ultimately catch up with you.

4. Wait for the State to make a filing decision
Be proactive in this situation. Hire a local criminal defense attorney to address your charge as early as possible. Please see my earlier blog post, Criminal Pre-Filing Decision: Don’t Miss Your Window of Opportunity!

5. Believe that you must return to Florida to resolve your case
If you have been charged with a misdemeanor crime, Florida law allows for you to resolve your case without having to actually appear in court. The process is called a Plea in Absentia. Your criminal defense attorney can appear in court on your behalf and file the Plea in Absentia while you remain in your home state. If your charge is a felony, your criminal defense attorney may be able to negotiate a reduced charge with the State Attorney so that you can resolve your case with a Plea in Absentia.

Conclusion
If you are arrested on Spring Break or at any other time, remember that a criminal charge can have a significant impact on your life now and into the future. Don’t take the path of least resistance and ignore it altogether or plea just to get out of jail. You may be waiving important rights and defenses. You should seek legal counsel before you resolve any criminal case.

In January of 2011, the California Supreme Court in the case of California v. Gregory Diaz, held that a warrantless search incident to arrest of a defendant’s cell phone was valid. Mr. Diaz was the driver of a car in which a sale of Ecstasy occurred between another person and a police informant. He was arrested and his cellular phone was seized from his person and searched incident to a lawful arrest. The search incident to a lawful arrest exception has been traditionally “justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.” Law enforcement found incriminating text messages made by Mr. Diaz which were used to convict him.

What impact will this case have here in Florida? Because of the pervasive use of cell phones and smartphones in the United States, California v. Diaz seems headed for a review by the U.S. Supreme Court. The Majority reasoned that the cell phone was immediately associated with the defendant’s person just as if law enforcement was searching a cigarette package. The Dissent argued among things, that the type of personal and business information stored in a smartphone or hand held computer “dwarfs that which can be carried on the person in a spatial container.” Until the U.S. Supreme Court addresses this matter, this case is persuasive authority in the state of Florida. Without a doubt, you will now see law enforcement seizing an arrested suspect’s cell phone as a matter of course. Imagine what type of incriminating information will be found. They will find incriminating text messages, Facebook posts, tweets, photographs, witness names, witness phone numbers, etc. The list will go on-and-on. All types of crimes will be impacted by this decision.

I invite you to share your thoughts on this case.