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Edy020 · Apr 11, 2011, 09:08 AM

My son was on felony probation, and has been arrested for aggravated assault with a deadly weapon. The new charge was based on an argument with a neighbor. After the verbal argument, the neighbor went home, and returned with a piece of pipe, and chased my son down the street trying to hit him with it. My son went home. After a while, another friend came over, and my son left with him. As they were driving down the street, the neighbor started to approach the vehicle, making threatening gestures. My son reached down, picked up a screwdriver, wrapped it in a sweatshirt, and stuck it out the window telling the neighbor, "Back the F up now." The neighbor called the police and my son was arrested for aggravated assault with a firearm. The charge was later changed to aggravated assault with a deadly weapon. He was also charged with two VOP's because he was on probation for two charges. They violated him twice.
We cannot afford a private attorney. The state offered my son 366 days, and he turned it down. Now the state has revoked the 366, and want to sentence him to 22 months instead. The PD says that the state believes that my son had a firearm, and that is why they revoked the 366. The state is basing this on testimony from the neighbor, and his girlfriend who was not even there to witness what happened. She is just saying what her boyfriend told her to say. However, my son says that in Florida, if the state has two witnesses you can be found guilty without any other evidence. Is this true?
To add insult to injury, the state is now going to take him to court on the VOPs before they even settle the new charge. I asked th PD why they were doing this, and she said, " It is less bothersome to handle the VOP first." What? Don't they have to convict you of a new charge before they can charge you with a VOP?
Also, I spoke to the arresting officer at the time of the arrest, and asked him if there was a weapon. He told me, "No Mam, we can't find a gun, or even the screwdriver your son says he had." HELP!!

Fr_Chuck · Apr 11, 2011, 10:15 AM

Prior felon, witness testify that there was a gun, just because the police could not find one latter, what do you think the jury will believe ?

Was the 366 days to include any and all revolking of the probation.

That is his largest worry, he could do a lot more than a year if they revolk his probation on the first charge.

And in Florida you can be found guility with just one witness if the jury believes them, no need for two. And if there are two, and they say they saw a gun,

Well maybe he should have took the 366 days.

First while the neighbor did a lot, you son, did do the crime from what you said, he did threaten them with a screw driver and it can be considered a weapon.

Most likely if he had taken the 366 days, he would have been out in 4 to 6 months

Time to take to his attorney and see about a new deal.

JudyKayTee · Apr 11, 2011, 10:16 AM

Does he have an assigned Attorney? It's not how many witnesses there are; it's how believable the witnesses are.

If the girlfriend has testified that she never saw anything why is her testimony even being considered? If he was told to stay out of trouble and didn't stay out of trouble (for whatever reason) he violated.

Edy020 · Apr 11, 2011, 04:24 PM

The girlfriend is testifying that she was there and saw everything, which is a lie.

Edy020 · Apr 11, 2011, 04:26 PM

Thank you for your timely reply. I know that he is in trouble. He is only 21, and this is his first violation. One can only hope that he will come out of this all right. Thank again.

JudyKayTee · Apr 11, 2011, 04:29 PM

She is just saying what her boyfriend told her to say.

This is not a fact? This is your opinion? I took this as a fact.

Why was he on felony probation? That will enter into what the Judge will and will not believe. I would not take particular pride because this is "only" his first violation. I'd be more concerned about the felony that put him on probation.

Your son threatened a neighbor with a screwdriver wrapped in a sweatshirt. That's an attempted assault WITH a deadly weapon. Making excuses for him will only make the situation worse.

And FrChuck knows the system.

ScottGem · Apr 11, 2011, 06:21 PM

When the neighbor chased him were their any witnesses? Did your son call the police? Your son is a convicted felon, he should know better to get into altercations.

A conviction requires a jury. There are no rules about how much evidence results in a conviction. Its what the jury believes. If his lawyer can prove the girlfriend wasn't there, that can impugn her testimony and the her boyfriends.

By the way, please use the Answer options for follow-up questions or info, not the Comments.

excon · Apr 11, 2011, 06:47 PM

Hello E:

Couple things. You say your son turned down the deal, and then the state revoked it. So what? It wasn't a deal your son wanted anyway. I don't know why he turned it down. Now, the state is making a new offer of 22 months based on a corroborating witness... He can turn that down too and go to trial. I suspect that was his decision when he turned down the first deal.

But, if your son says she wasn't there, all you have to do is prove that at trial, and her testimony is going to be invalid... In any case, your son DID do what they say he did, so he probably should have taken the first offer.

Now, that he didn't, I'm not sure what help you're looking for.

excon

Edy020 · Apr 11, 2011, 06:54 PM

Ok, here is clarification. My son did not do what they say he did because he did not attack anyone, or have a firearm. In the state of Florida, if he had not been on felony probation he would have been able to stand his ground when the neighbor tried to attack him. According to his PD the prosecutor is pursuing this because they "believe" that my son had a gun. They are not concerned about the screwdriver, they are trying to prove that he had a gun based on testimony. Again, he did not touch the neighbor. This was a verbal threat, which he did not know was illegal to do. I did not know that a verbal threat was a felony either. That means that if you are stopped in traffic, and someone does something to you, and you make any type of verbal threat, you can be charged with assault. That is insane to me. Half the drivers in Miami should be in jail based on that logic.

ScottGem · Apr 11, 2011, 06:56 PM

First, ignorance of the law is no excuse. Second, trying to make a case and proving that case to a jury are two different things.

excon · Apr 11, 2011, 07:05 PM

Hello again, E:

There's an awful lot of stuff I don't think you understand...

In the first place, I don't believe a person on probation has fewer rights than a person NOT on probation in THIS circumstance. Oh, I believe the prosecutor will TELL you that stuff, but I'm not buying it...

You SAY it was verbal, but you also say it was accompanied with the brandishment of a weapon. That's certainly MORE than verbal.. Plus, from a legal standpoint, it makes NO difference whether it was a screwdriver or a gun, so I'm having trouble with that part of the story... Besides, if there was NO gun, a prosecutor isn't going to base his case on the HOPE that they'll find one. So, that's troubling too.

All of this confusion won't really help your son, but it may clarify things for you.

excon

Edy020 · Apr 11, 2011, 07:06 PM

He was on probation because I called the police on him after he stole something from my best friend. She did not want to call the police, so I called them myself and turned him in. I don't make excuses for him. I just want him treated fairly. It is not fair for him to go to prison based on the prosecutor believing that he had a gun.

Edy020 · Apr 11, 2011, 07:07 PM

His attorney told him not to take the first offer because the state had no proof. I spoke to her myself.

Edy020 · Apr 11, 2011, 07:10 PM

I have never been arrersted, so I assumed that you are innocent until proven guilty. However, once you are booked, you are guilty until proven innocent. However, I thank God that it is not worse. Jails are much worse in thid world countries.

Fr_Chuck · Apr 11, 2011, 07:10 PM

If he tried to make them believe he had one, "screw driver under a jacket" then he has to take ownership of his stupid mistake. But a screw driver is and has often been used as a weapon, so it by itself can still be used or considered a weapon.

Next they don't have to find a gun, if he had shot them, and killed them, they don't need to find the gun to convict him, it makes it easier, but can be done without it.

If the victims state there was a gun, the jury will believe there was a gun.

Edy020 · Apr 11, 2011, 07:17 PM

How can a screwdriver be the same as a gun? Why did they not charge the neighbor for brandishing a lead pipe? I don't know why they are saying that he had a gun, other than the testimony of the neighbor who started the entire problem. Originally they charged my son with possession of a firearm by a convicted felo, and agg assault with a deadly weapon. They dropped the possession charge, and filed info on the agg assault with a deadly weapon. I am praying that they drop it down to simple assault. Is this a possibility at all?

Edy020 · Apr 11, 2011, 07:19 PM

Even if the victim is also a convicted felon with a history of Domestic Violence, and drug arrests?

ScottGem · Apr 11, 2011, 07:22 PM

Originally Posted by Edy020

I have never been arrersted, so I assumed that you are innocent until proven guilty. However, once you are booked, you are guilty until proven innocent. However, I thank God that it is not worse. Jails are much worse in thid world countries.

One IS innocent until proven guilty. That's my point. That making a case and proving it to a jury are two different things.

But its also not unusual for someone with a record to be considered more likely to repeat offend.

And I will ask you again. Use the Answer options NOT comments when posting follow-up info or questions.

Edy020 · Apr 11, 2011, 07:32 PM

I just want you to understand that my son did not start the altercation. Also, the "victim" is a convicted felon himself. He has conviction for Domestic Battery against his former girlfriend who ended up leaving him for his repeated violence. He had been taking anger management classes, and was on drug offender probation for several years. We are not talking about a model citizen here.

Edy020 · Apr 11, 2011, 07:52 PM

I want to thank everyone for their feedback. You have all been very helpful. If you have anything else to add, I would love to hear it. One thing that has been nagging at me is, do you think that he would have a better chance with a private attorney? I know the PD is doing her best, but she has like 200 cases to handle. What do you all think?