Thursday, October 16, 2014

Sexual Battery / Sexual Battery with Deadly Weapon / Lesser Included Offenses / DNA / Cold Hit / Partial Hit / Testimony / Evidence / AVVO / Michael A. Haber, Esq. **ARRESTED / **305DUI

Q:     Can "deadly weapon" enhancement be taken off of a charge if no weapon was used?  Someone is charged with sexual battery with deadly weapon. The reason deadly weapon was added to the charge was BC the victim claimed she was pistol whipped yet the hospital report from the night of the incident claims no injuries. There was no evidence that a deadly weapon was used. This crime is from the year 2000. The fact that deadly weapon was added to the charge makes it a life felony therefore it cannot be protected by the statute of limitations. If deadly weapon can be dropped from the charge the charge would be considered a 1st degree and the s.o.l would have expired. Not to mention the fact that the case came about due to a partial dna database cold hit and the three victims are not able to positively identify the person charged.


Michael Adam Haber


Contributor Level 20
Answered Can it? Yes. Will it? Who knows?

The "proof" is the victim's statement. Apparently both the cops and the State Attorney believed the victim or they would not have charged the case as they did.

The State is free to accept the victims; statement without any physical evidence to corroborate it; in fact they do this regularly.

The Judge will not do anything about the charge as whether or not a gun was used is not a question of law; rather this is question of fact, and such matters are resolved by Juries, after the evidentiary portion of a trial.

As for the DNA issue, that can be litigated as a pre-trial motion (e.g. asking the Court to suppress it) but I'd bet a digit that, absent some glaring illegality (which you have not proffered - a "cold hit" is not in any way illegal and a "partial" match is also a fact question) the Judge will deny any such request and let the Jury consider and decide that matter along with the rest of the evidence in the case.

The bottom line for "someone" is that s/he is going to either take a plea or go to trial AS CHARGED. If "someone" has a skilled and experienced criminal defense litigator tasked with challenging the State's evidence, surgically cross-examining the complaining witness and making persuasive argument to the Jury then "someone" has a shot at a "Not Guilty" or a "Lesser" verdict. (The Jury could find "someone" guilty of sexual battery with a DW, sexual battery w/o a DW, or any other lesser included offense of the crime charged. Again, this usually directly correlates with the quality of defense counsel).

I hope that I have been helpful in answering your question.
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Established in 1991, Michael A. Haber, P.A. has an unblemished record of providing creative, effective and zealous representation to clients, primarily in South Florida, on a wide variety of criminal matters ranging from DUI to drug trafficking and from misdemeanors to first degree murder. 

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