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Child Pornography

Criminal Defense Lawyer serving St Lucie, Indian River, Martin, Okeechobee including Fort Pierce, Port St Lucie, Stuart & surrounding cities.

Under Florida state law, possession of child pornography is a 3rd degree felony punishable by up to 5 years in prison for each photo in possession of the accused, and often times the prosecution will file a new count for each image that they find.

In Federal court, possession of child pornography carries a maximum prison sentence of 10 years in prison. The way the legislature has set up the sentencing guidelines, the average child pornography possession case always carries an “advisory” prison sentence. This means that Federal judges are told to consider the guidelines and use them as “advice” from the United States Sentencing Commission. Although these sentencing guidelines are not mandatory, it can be an uphill battle to persuade a Federal judge to sentence someone below these guidelines.

The potential penalties only get worse if the State or Federal government file charges involving transmission of child pornography or distribution of child pornography.

These Saint Lucie cases are not impossible to defend. The government has to get through a number of hurdles before they can prove a child pornography case beyond a reasonable doubt. First and foremost, they have to be able show that the search and seizure of the computer, disks, magazines, or images was legal and did not violate the 4th Amendment of the United States Constitution. The truth is that many law enforcement officers have no respect for the 4th Amendment and believe it only exists to protect the guilty. Sometimes law enforcement will use coercion to gain entry into someone’s home or office. Sometimes law enforcement won’t have enough evidence to get a lawful search warrant. There are a myriad of 4th Amendment issues that need to be researched and evaluated in every child pornography case. As a board certified criminal trial specialist, Brian Mallonee tirelessly reviews every 4th Amendment issue with a fine tooth comb on every case he defends.

The government also has to prove that the person they are accusing of possessing child pornography is also the person who was sitting at the keyboard when the images were downloaded and viewed. Hiring a criminal defense attorney who has successfully argued this defense in front of a jury can mean the difference between your freedom and two decades in prison.

The government must prove that the person accused of child pornography possession knew what was being downloaded. A number of questions have to be addressed, such as:

Is there any evidence of remote access? Did the images pop up accidentally? Were they pop up images? Was the computer hacked into? Was the computer used as a part of zombie network? Was there any IP spoofing? Is there any evidence of internet hijacking? Data carving? What keyword searches were employed? Is the date/time stamp accurate? Are the images really minors or could they be 18 years old?

These are just some of the many questions that the government is forced to answer in order to prove it’s case beyond a reasonable doubt. As you can tell, there are numerous avenues that can be explored to successfully defend a child pornography case.

Mr. Mallonee defends child pornography cases out of his office in Fort Pierce, Florida. He represents people (Federal and State court) accused of crimes in all of the following counties: Saint Lucie (Fort Pierce, Port St. Lucie), Indian River (Vero Beach, Sebastian), Martin (Stuart, Palm City), Okeechobee, and Highlands (Sebring). If you or someone you care about wants to talk to a criminal attorney who has successfully defended these cases, don’t hesitate to call Brian Mallonee at (772) 464-1991.


Probation Violations

Criminal Defense Lawyer serving St Lucie, Indian River, Martin, Okeechobee including Fort Pierce, Port St Lucie, Stuart & surrounding cities.

A violation of probation case starts in Saint Lucie County when a person on probation is arrested for a new criminal offense by the police, or when the probation officer requests a warrant be signed by the Judge. Suspects facing VOP charges have limited rights and their cases come with hurdles that require the services of a skilled criminal defense lawyer.

VOP (or violation of “supervised release” in Federal Court) cases are unique in a number of ways.

The most glaring is that you have no right to a jury trial on the facts of the alleged violation.

A judge decides whether or not the government is able to prove a violation by a preponderance of the evidence.

A person facing a VOP is not entitled to a bond. This doesn’t mean a bond is not available, but there is no statutory right to one.

Hearsay is admissible, the accused can be forced to testify (with limitations), and guilt does not have to be proven beyond a reasonable doubt

This is a very minimal burden of proof and it’s not unheard of for a jury to acquit someone of the new criminal offense and then have the Judge find the person guilty of a probation violation. An experienced criminal attorney can mean the difference between incarceration and freedom.

There are two kinds of violations that are commonly charged in the 19th Judicial Circuit on Florida’s Treasure Coast.

A technical violation is any violation of the general or special conditions of the probation order. Common examples include failure to attend required classes, failure to complete counseling, missing a probation meeting, changing your address without permission, failing a drug test, or failing to pay costs and fees. A good criminal lawyer should be able to guide you through this process and make arguments that explain the circumstances and convince the Judge to set a bond and allow you to make good on your alleged technical violation. Of course, sometimes a probation officer just flat out gets it wrong and an aggressive attack on the actions of the officer may be in order.

A new law violation (condition 5) is what they call it when folks get arrested while they are on probation. The challenge here is that a Judge gets to make the decision as to what happened and the State’s burden of proof is much lower. A preponderance of the evidence standard applies, which basically means “more likely than not”. So if the government is able to convince the Judge that it’s more than likely that the alleged offense was committed, you’ll be found guilty of the violation of probation.

A board certified criminal trial lawyer can be a big-time asset in these situations. Having experience and credibility in front of the Judge is not to be under estimated. While there are certainly no back room deals or payoffs like you may see in the movies, it goes without saying that a skilled and respected criminal attorney is more likely to have success in the courtroom than a lawyer who goes in unknown and unprepared.

Brian Mallonee is a board certified criminal trial lawyer devoted to the relentless defense of all criminal matters, including probation violations. If you or someone you care about is facing a Violation of Probation in St. Lucie (Fort Pierce, Port St. Lucie), Indian River (Vero Beach, Sebastian, Fellsmere), Martin (Jensen Beach, Stuart, Palm City, Indiantown), or Okeechobee county, Florida feel free to contact criminal lawyer Brian Mallonee at (772) 464-1991 for a no cost evaluation of your case.


DUI & Criminal Traffic

Criminal Defense Lawyer serving St Lucie, Indian River, Martin, Okeechobee including Fort Pierce, Port St Lucie, Stuart & surrounding cities.

In Saint Lucie County it is not illegal for people of legal drinking age to drive after drinking alcohol. The crime of DUI occurs only when someone is in actual physical control of a vehicle while they are impaired, or when the person’s blood alcohol level has gone over .08, an arbitrary numerical standard set by the State.

The Law Office of Brian H. Mallonee offers premier DUI defense for people facing a DUI charge in Fort Pierce, Port St. Lucie, Vero Beach, Jensen Beach, Stuart, and Okeechobee, Florida. You will find him when searching for the top best dui lawyers in Fort Pierce or when searching for the best criminal defense attorney anywhere in Indian River and St Lucie Counties. Our formula for success is to investigate a person’s defenses thoroughly by conducting pre-trial discovery, including the DMV hearing, and filing creative pre-trial motions.

Challenging the validity of the vehicle stop is something we always take a hard look at. If the court rules that the stop was unconstitutional, then all the evidence gathered by the police after the stop is thrown out. An exhaustively researched and well choreographed Motion to Suppress hearing in the courtroom can save someone accused of DUI from the very burdensome repercussions that come along with a DUI conviction in Florida.

We have experienced success time after time by skillfully locking police officers into their testimony at the DMV hearing and ordering the transcript of the sworn testimony. This will either 1) deter the officer from changing their testimony at the suppression hearing or 2) allow us the opportunity to impeach the police officer’s testimony after the officer is coached by the prosecutor and “modifies” his or her testimony in order to legally justify the original stop of the vehicle.

If a DUI case in Saint Lucie cannot be resolved through pre-trial motions, then we prepare for trial. It may be that the State can’t prove who was driving the vehicle. Or it may be necessary to discredit the officers “opinion” that the driver of the vehicle was impaired. There are dozens of ways to accomplish this, and featuring the mistakes made by the arresting officers in establishing this “opinion” of impairment is paramount to a successful defense of a DUI charge.

It may be that a favorable negotiated plea deal results from your DUI lawyer’s reputation. Prosecutors are human, some are lazy and none of them like to lose. When they fear that they’ve been outworked and are flat-out overmatched, they may want to avoid the risk of getting beat and will make a favorable offer to the accused. Brian Mallonee is a Board Certified Criminal Trial Lawyer who has successfully handled 100’s of DUI cases.

If you or someone you care about is in need of a premier DUI defense attorney in St. Lucie (Fort Pierce, Port St. Lucie,), Martin (Jensen Beach, Stuart), Indian River (Vero Beach, Sebastian), or Okeechobee, Florida, call (772) 464-1991 and set up an appointment with Brian Mallonee today.

Frequently Asked Questions about DUI’s :

What constitutes a DUI in Florida?

A person is guilty of driving under the influence if the person is driving or in actual physical control of a vehicle within this State while under the influence of alcohol or any chemical set forth in Section 877.11, or any substance controlled under Chapter 893 of the Florida Statutes when effected to the extent that the person’s normal faculties are impaired or has a blood or breath alcohol level of 0.08 or greater.

What are the potential penalties for a DUI conviction?

MISDEMEANOR DUI

A first offense is punishable as follows: fines of $250.00 to $500.00; driver’s license revocation of 6 months to 1 year; imprisonment of not more than 6 months; 10 day vehicle impoundment or immobilization; mandatory reporting probation not to exceed 1 year. Mandatory conditions of probation include attendance at an approved alcohol safety education class with a substance abuse evaluation and any treatment recommended, not less than 50 hours of community service. A second offense (including any out of state convictions), if the date of the offense is outside 5 years of the prior conviction, is punishable as follows: Fines of $500.00 to $1,000.00; driver’s license revocation of 6 months to 1 year; imprisonment of not more than 9 months; 30 day vehicle impoundment or immobilization; mandatory reporting of probation with the same conditions.

If the date of the offense for the second conviction is within 5 years of the prior conviction the person is subject to a mandatory 10 day jail term and a 60 month driver’s license revocation.

A third offense (including out of state convictions), if the date of the offense is outside 10 years of a prior conviction is punishable as follows: fines of $1,000.00 to $2,500.00; driver’s license revocation for 6 months to 1 year; imprisonment of not more than 1 year; 90 day vehicle impoundment or immobilization; mandatory reporting probation with the same conditions.

If the date of the offense for the third conviction is within 10 years of the date of the prior conviction, the person can be prosecuted for felony DUI (see below).

If the person is convicted and has an alcohol level of .15 or more or there was a person 18 years or younger in the vehicle, the above fines are doubled and the maximum imprisonment for the first offense is 9 months and 12 months for a second offense. There is also a manditory ignition interlock requirement if the persons’ blood alcohol level registers over a .15.

A DUI causing non-serious injury is a first degree misdemeanor.

FELONY DUI – PRIOR CONVICTIONS

If a person has three prior convictions for DUI (including out of state convictions) the person may be prosecuted for “Felony DUI”. It is a third degree felony, level 6 offense, subject to five years in the State prison. Florida’s sentencing guidelines apply. The mandatory minimum fine is $1,000.00 and cannot exceed $5,000.00. A fourth or subsequent conviction will result in a mandatory permanent driver license suspension. As of July 1, 2002, a third conviction for DUI is a felony if the date of the current offense is within 10 years of the second conviction.

FELONY DUI – SERIOUS INJURY OR DEATH

If a person is DUI as described above and causes or contributes to the cause of a crash involving serious injury, the person is subject to being charged with a DUI – Serious Injury. It is a third degree felony, level 7 offense, subject to 5 years in the State prison. The Florida Sentencing Guidelines apply. The maximum sentence is 5 years in the State prison. The minimum mandatory sentence is calculated based on various factors including victim injury points. The mandatory fine is the same as Felony DUI. There is a mandatory minimum 3 year driver’s license revocation. If the person is DUI, as described above, and causes or contributes to the cause of a crash involving death, the person is subject to being charged with DUI manslaughter. It is a second degree felony, level 8 offense, subject to 15 years in the state prison. The Florida Sentencing Guidelines apply. Without going into the details, a single death carries a minimum of 10 years in prison. There is a mandatory permanent revocation of the driver’s license.

What will happen to my driver’s license after I am arrested for DUI?

A law enforcement officer may seize your driver’s license if you are arrested for DUI with an unlawful blood alcohol level or refuse to submit to a breath, blood or urine test. The officer will seize your license and issue a DUI citation, which acts as both a temporary driver’s license and your notice of suspension. This ticket is your license for 10 days after your arrest. You must go to the Department of Motor Vehicle Driver Improvement Office within 10 days of the date of your arrest to request a formal review hearing to contest the suspension of your driver’s license, or you lose the right to do so. If you do not request a hearing the suspension of your driver’s license will begin at midnight on the 10th day after your arrest.

Is there a mechanism for challenging this suspension?

Yes! You may request a review of the driver license suspension by the Department of Motor Vehicles, within a specified number of days following your arrest. If you fail to request a review hearing, the Department will not conduct any type of review of the license suspension. At a formal review, the hearing officer is authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension. Both you and the Department may subpoena witnesses to attend. If you request an informal review hearing, it shall consist solely of an examination by the Department of the written materials submitted by the arresting officer, as well as any thing you wish to submit. You may not attend such an informal hearing.

If my license is suspended, for how long do I lose my license?

If you have refused to submit to a lawful breath, blood or urine test your driving privilege will be suspended for 1 year for a first refusal or for 18 months if you have previously refused to submit to such a test. If you have an unlawful blood alcohol level your driving license will be suspended for a period of 6 months for the first offense or for 1 year if your driving privilege has been previously suspended for this reason. You are eligible for business purposes or a hardship license after serving 90 days of a “hard suspension”, if you refuse the breath test providing it is your first offense. If you have a previous conviction you are not eligible for a hardship license at all. You are eligible for a hardship license after a 30 day hard suspension if you took the breath test, providing you do not have 2 prior convictions.

Will my insurance rates go up if I am convicted?

Yes, your insurance rates are likely to rise a great deal if you are convicted of DUI.

What can I expect if I call Brian Mallonee concerning my DUI arrest?

You can expect: A free initial consultation with Brian Mallonee. Personalized attention. We will return your phone calls promptly, keep you informed, and answer all questions to help you put the pieces back together. Reasonable Fees. You will know in advance how you will be charged. Experience – Brian H. Mallonee has handled 100’s of DUI cases. Aggressive Representation. Brian Mallonee will zealously guard your rights throughout the entire process. So, if you want a DUI criminal attorney in Fort Pierce, Port St. Lucie, Vero Beach, Stuart, or Okeechobee that you can talk to, who understands what you want, who is interested in you and your situation, and who fights to get you results, contact Brian Mallonee.


State Crimes

Criminal Defense Lawyer serving St Lucie, Indian River, Martin, Okeechobee including Fort Pierce, Port St Lucie, Stuart & surrounding cities.

In Florida, as well as in other states in the United States, a state crime is one that is prosecuted ‘under state law’ and may lead to a fine, imprisonment or even execution in severe criminal cases in Saint Lucie County.

Florida’s prison population has recently grown by more inmates than any state except California. Media coverage, public outrage and politicians who want to get re-elected are the primary source of the swelling prison population in Florida. In fact, in the last decade the legislature has added more than a dozen new categories of enhanced and minimum mandatory sentences.

These kinds of harsh mandatory sentences that people are facing make it more important than ever to be represented by a competent and experienced Saint Lucie County criminal attorney. Although certainly not every case involves a minimum mandatory sentence, sentencing policies are not getting better at any level from the perspective of someone accused of a crime in Florida.

Men and women are forced to permanently register as sex offenders and are seen as ‘outcasts’ in their own neighborhoods, even though they may have been falsely convicted of a computer sex crime.

A suspect that is arrested may find themselves faced with a violation of probation, even though the alleged crime may have never resulted in a conviction.

The state of Florida’s criminal justice system can truly be a complex web of events, and trusting an expert in criminal trial law is the first step to guiding you through the process.

If you are charged with a state crime, you want a lawyer who is not afraid of the fight and will immerse themselves into the facts of the case. When the moment of truth arrives and a jury is to decide your fate, you want a criminal lawyer who knows what it takes to win an outright acquittal.

Here are some things that you need to know about the process in Saint Lucie County:

POLICE INVESTIGATION

This process starts with the police investigation. Sometimes the police will conduct an investigation before actually making the decision as to whether or not to arrest someone. This would be the time to get in touch with a good lawyer. A criminal defense lawyer who is board certified by the Florida Bar and designated as a specialist in criminal trial law is a good place to start. It may be that an effective criminal attorney can suggest some proactive steps to help clear your name. Maybe your attorney can even persuade the police to see the facts of the case from a different perspective.

ARREST

In Florida every criminal defendant is entitled to a 1st Appearance hearing within 24 hours of an arrest. This is a very brief hearing where the judge typically reviews where the client lives, the seriousness of the charges, and the prior criminal history of the accused. It can be helpful to have a criminal lawyer at this hearing to help tell the judge a little bit about you. If the 1st appearance judge refuses to set a bond or sets a bond that is unreasonably high, your lawyer should immediately request a bond reduction hearing in front of the judge. Unless charged with a Violation of Probation or a Capital offense, a criminal defendant is generally entitled to a reasonable bond.

CHARGING DECISION

The State will typically have an “intake” prosecutor make charging decisions based upon the reports and witness statements submitted to them by the arresting officer in the case. It is possible to request a meeting with the intake prosecutor and attempt to persuade them that the police overcharged the accused (given the facts of the case). This isn’t an option in every situation, but early intervention from a criminal defense attorney with an ethical legal reputation can sometimes pay large dividends.

DISCOVERY

In Florida people accused of a crime are entitled to know what the state has as evidence. This process is called discovery. In felony cases, a person accused of a crime is entitled to take sworn depositions of the state’s witnesses. This can be an effective tool to preview what the police and witnesses are going to testify to at trial. It also sets up the crown jewel of any defense lawyer’s arsenal of weapons at trial –Impeachment. One of the most effective ways to poke holes in the state’s case at trial is to impeach the testimony of a witness by presenting a prior inconsistent statement made by that witness.

PRE-TRIAL MOTIONS

This is where you want your criminal lawyer to have the gift of creativity. Whether it be a Motion to Dismiss, Motion to Suppress, Motion for Severance, Motion in Limine or Motion for Change of Venue you’re going to be in much better hands if your defense lawyer knows how to research, draft, and argue a great motion. The laws in Florida are very specific and a carefully and creative pre-trial motion can make the difference between evidence being tossed out of a case (resulting in a dismissal) and a lengthy period of incarceration and probation.

TRIAL

The trial of a criminal case begins long before the trial date. The cornerstone of every trial lies in preparation. The criminal trial is a multifaceted event, and they are all important — Jury selection, opening statement, cross-examination, motion for judgment of acquittal, direct examination, request for specific jury instructions, and closing argument. They all have a particular art to them. If you or someone you care about is facing criminal prosecution, he or she will want to have a board certified criminal trial lawyer by their side every step of the way.

If you or someone you care about in Saint Lucie County would like to speak to a criminal lawyer who handles cases in Fort Pierce, Port St. Lucie, Vero Beach, Stuart, and Okeechobee, Florida contact criminal lawyer Brian Mallonee at (772) 464-1991 for a no cost evaluation of your case.


Brian Mallonee is a Criminal Defense Lawyer Serving St Lucie, Indian River, Martin, and Okeechobee Counties