St. Petersburg Carjacking Attorney

• In the course of the taking

"In the course of the taking" means that the act occurred before, during, or after the taking of the motor vehicle and that the act and the taking of the motor vehicle constitute a continuous series of acts or events.

• Afterthought. Give if applicable. DeJesus v. State, 98 So.3d 105 (Fla. 2nd DCA 2012).

If you find that the taking of the motor vehicle occurred as an afterthought to the use of force or violence against the victim, the taking does not constitute robbery but may still constitute grand theft motor vehicle.

• Title to motor vehicle. Give if applicable.

In order for the taking of the motor vehicle to be carjacking, it is not necessary that the victim be the actual owner of the motor vehicle. It is sufficient if the victim has the custody of the motor vehicle at the time of the offense.

• Force. Give if applicable.

The taking must be by the use of force or violence, or by assault so as to overcome the resistance of the victim, or by putting the victim in fear so that the victim does not resist. The law does not require that the victim of carjacking resist to any particular extent or that the victim offer any actual physical resistance if the circumstances are such that the victim is placed in fear of death or great bodily harm if he or she does resist. But unless prevented by fear, there must be some resistance to make the taking one done by force or violence.

• Victim unconscious. Give if applicable.

It is also carjacking if a person, with intent to take the motor vehicle from a victim, administers any substance to the victim so that he or she becomes unconscious and then takes the motor vehicle from the person or custody of the victim.

• Enhanced penalty. Give if applicable.

If you find the defendant guilty of the crime of carjacking, you must further determine beyond a reasonable doubt if "in the court of committing the carjacking" the defendant carried some kind of weapon. An act is "in the course of committing the carjacking" if it occurs in an attempt to commit carjacking or in flight after the attempt or commission.

• With a firearm or deadly weapon.

If you find that the defendant carried a firearm or other deadly weapon in the course of committing the carjacking, you should find him or her guilty of carjacking with a firearm or deadly weapon.

A "firearm" means any weapon [including a starter gun] which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; [the frame or receiver of any such weapon;][any firearm muffler or firearm silencer;][any destructive device;][any machine gun]. [The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime. An antique firearm is (insert definition in § 790.001(1), Fla. Stat."] [A destructive device is (insert definition in § 790.001(4), Fla. Stat.)].

A "weapon" is defined to mean any object that could be used to cause death or inflict serious bodily harm.

A weapon is a "deadly weapon" if it is used or threatened to be used in a way likely to produce death or great bodily harm.

• With no firearm or weapon.

If you find the defendant carried no firearm or weapon in the course of committing the carjacking, but did commit the carjacking, you should him or her guilty only of carjacking.

The only enhancement under the statute is for carrying a firearm or other deadly weapon, not for carrying a non deadly weapon as in the robbery statute.

For the crime of carjacking, it is likely that a jury can convict of two lesser-included offenses such as grand theft auto and assault. See Spencer v. State, 71 So.3d 901 (Fla. 1st DCA 2011).

Potential Sentencing Enhancements

Under the Prison Releasee Re-Offender statute, as set forth in s. 775.082(9)(a), a person who commits (or attempts to commit) an enumerated offense, including carjacking, within three years of release from a state or federal prison, must be sentenced to the statutory maximum. Thus, where a person is charged with armed carjacking, the court would have no choice but to sentence the person to life in the Florida Department of Corrections upon the entry of a guilty (or no contest) plea, or a finding of guilt by a the jury. For carjacking, a first degree felony, the court would have no choice but to sentence the person to thirty years. As indicated throughout this website, where the PRR enhancement applies, sentencing guidelines do not. The statutory maximum is the only sentence permitted by law. There is no "range".

Under the Three Time Violent Felony Offender statute, as set forth in. s. 775.084(1)(c), the court must impose certain mandatory minimum terms of imprisonment if it finds that (1) the defendant has previously been convicted two or more times of an enumerated felony (or an attempt to commit an enumerated felony, including home carjacking), and (2) the felony for which the defendant is to be sentenced is an enumerated felony (including carjacking) and was committed: (a) while the defendant was serving a prison sentence or other sentence imposed as a result of a conviction for an enumerated felony (including carjacking); or (b) within five years of the date of conviction of the last prior enumerated felony (including carjacking), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, parole, or other sentence imposed as a result of a prior conviction for an enumerated offense (including carjacking), whichever is later. The court must sentence a three time violent felony offender as follows: in the case of a felony punishable by life, to a term of imprisonment for life; in the case of a felony of the first degree, to a term of imprisonment of thirty years; in the case of a felony of the second degree, to a term of imprisonment of fifteen years; and in the case of a felony of the third degree, to a term of imprisonment of five years.

Under the Violent Career Criminal statute, as set forth in s. 775.084(1)(d), the court must impose certain mandatory terms of imprisonment if it finds that: (1) the defendant has previously been convicted three or more times for an offense in this state that is a forcible felony (including carjacking) or other enumerated offense; (2) the defendant has been incarcerated in a state or a federal prison; (3) the primary felony offense for which the defendant is to be sentenced is an enumerated felony (including home invasion robbery and robbery), was committed on or after October 1st, 1995, and (a) while the defendant was serving a prison or other sentence that was imposed as a result of a prior conviction for an enumerated felony (including carjacking); or (b) within five years of the date of conviction of the last prior enumerated felony (including carjacking), or within five years of the defendant's release from a prison sentence, probation, community control, control release, conditional release, or parole, or other sentence that is imposed as a result of a prior conviction for an enumerated felony, whichever is later. Where such findings are made, the court must sentence the violent career criminal as follows: in the case of a life felony or a felony of the first degree, for life; in the case of a felony of the second degree, for a term of years not exceeding forty with a mandatory minimum term of thirty years imprisonment; in the case of a felony of the third degree, for a term of years not exceeding fifteen, with a mandatory minimum of ten years imprisonment.

Under Florida's 10-20-Life statute, as set forth in s. 775.087, any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, the conviction was for an enumerated offense, including carjacking, and during the commission of the offense such person actually possessed a firearm, shall be sentenced to a minimum term of imprisonment of 10 years, except that a person who is convicted of aggravated assault, possession of a firearm by a felon, or burglary to a conveyance shall be sentenced to a minimum term of imprisonment of three years if such person possessed a firearm during the commission of the offense. Where the person discharges the firearm, he or she must be sentenced to a minimum term of imprisonment of twenty years. Where the person discharges the firearm or destructive device and, as a result of such discharge, death or great bodily harm is inflicted upon any person, the defendant shall be sentenced to a minimum term of imprisonment of twenty five years and not more than a term of imprisonment of life in prison.

Relevant Case Law

1. DeJesus v. State, 98 So.3d 105 (Fla. 2nd DCA 2012). In DeJesus, the appellant was charged with robbery, battery, and assault. The evidence at trial established that the appellant and a co-defendant beat up the victim at the home of a mutual female friend. After the beating, the appellant and the co-defendant took the victim's wallet, cell phone, blue-tooth ear piece, and car keys. At trial, the appellant requested a special jury instruction on "afterthought", as follows: "If the evidence shows that the taking of property occurred as an 'afterthought' to the use of force or violence against the victim, the taking does not constitute robbery but may still constitute theft". The trial court refused to give the instruction and the appellant was convicted of robbery. The court of appeals reversed the appellant's conviction on the robbery count and remanded it for a new trial, holding that the proposed special jury instruction should have been given based, on the evidence and testimony introduced during the course of the trial.
2. Smithson v. State, 689 So.2d 1226 (Fla. 5th DCA 1997). In Smithson, the appellant went into an Orlando area convenience store and pointed a gun at the sales clerk. The appellant stated that he did not intent to hurt the sales clerk, he just wanted a beer. The appellant (while still armed) and the clerk went to the cooler where the appellant took a bottle of beer and consumed it. The clerk was able to escape and police arrested the appellant thereafter. At the appellant's ensuing trial for robbery with a firearm, the clerk testified that he was not in fear of harm. The state requested, and the court read, the following special proposed jury instruction: "If the circumstances were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to have been in fear, and actual fear need not be precisely shown". The court of appeals affirmed the conviction holding that an "objective" approach to whether the victim was put in fear is not inappropriate, citing Brown v. State, 397 So.2d 1153 (Fla. 5th DCA 1981)(the victim's statement that she was not afraid is not controlling; the question is not whether the victim actually feared the appellant, but whether a jury could conclude that a reasonable person under like circumstances would be sufficiently threatened to accede to the robber's demands).
3. Spencer v. State, 71 So.3d 901(Fla. 1st DCA). In Spencer, the appellant was charged as a principal in the first degree to robbery, a second degree felony. At trial, the appellant testified that he witnessed, but did not participate in the robbery. The trial court instructed the jury on robbery and the misdemeanor lessor included offenses of petty theft and assault. When the jury returned a guilty verdict as to both lessor included offenses, the court instructed the jury that they must convict the appellant on only one charge. The jury then returned a guilty verdict as to robbery. The appellant moved for a new trial, which the trial court denied. The First District Court of Appeals reversed and remanded for a new trial, holding that the court below had effectively vetoed the jury's decision to exercise its pardon power by acquitting the appellant of robbery and instead convicted him of two misdemeanors.

Defenses to Your St. Petersburg, Clearwater, or Tampa Area Carjacking Charge

Because carjacking is a form of robbery, the defenses outlined in the robbery section of our website would apply here as well. These include identity, lack of sufficient corroborative evidence to support the charge, and/or an "afterthought" defense. As with any criminal case, there may be issues related to the Fourth Amendment (unlawful search and seizure), the Fifth Amendment (right against self incrimination), and/or the Sixth Amendment (right to counsel) that your criminal defense attorney will want to explore. The most viable defense is usually dictated by the nature and circumstances of the case, and every case is different. In many instances, the case may be attacked on multiple fronts and at various stages of the prosecution, from the pre-charge investigation through sentencing and appeal.

Where the identity of the accused person is not an issue, it appears that the state can otherwise prove the elements of the crime, and there are no plausible issues related to search and seizure and/or "Miranda" violations, your criminal defense attorney may want to explore either (1) negotiating for the filing of a lesser charge; or (2) an amendment in charge if the Information has already been filed. This often requires a significant amount of time and effort, given the inherently aggravated nature of carjacking offenses. With sufficient mitigation, however, this is not beyond the realm of possibility. Where the charge is filed as (or amended to), a grant theft auto, for example, the accused person would not be facing a mandatory guideline score (assuming there are no other and more serious charges before the court for sentencing and the accused person does not have a significant prior history). Also, many lesser offenses, such as grand theft auto, will not invoke the draconian recidivist sentencing statutes listed above, whereas carjacking will (assuming the qualification criteria are otherwise met).

If the charge cannot be amended, a jury trial may present the best option for a favorable outcome. Where the witnesses (including the alleged victim) are acquainted with the accused, and have had prior difficulties with the accused, a showing of bias or motive to fabricate can inject healthy dose of reasonable doubt into the state's case. Prior felony convictions, or convictions involving dishonesty or false statement, may also be used to attack the credibility of the client's accusers. An overall lack of sufficient evidence may also be enough to attain a verdict of not guilty. Remember, in a criminal case, the state must prove each element of the offense beyond a reasonable doubt, which is the highest burden of proof in the American legal system. In the event of a guilty verdict, or the entry of a plea as charged, your criminal defense attorney would shift his or her attention to sentencing issues. Is there a basis for a guideline departure? If a firearm was used in the commission of the crime,is there a basis to avoid the applicable minimum mandatory (where, for example, the accused is a youthful offender)? Has the state made an inadvertent error in filing a notice of enhanced penalty against the accused person? Were there evidentiary errors committed during the course of the trial that can be successfully appealed? In these types of cases, every effort must be made by the criminal defense attorney to mitigate the impact of the charge, and at every stage of the prosecution.

Resources

The following is a list of outside sources, prior blog posts, and other website sections on topics related to carjacking offenses:

Links

1. HG. Org: Florida Sentencing Enhancements Pt. 1: Prison Releasee Re offenders
2. HG. Org: Florida Sentencing Enhancements Pt. 2: Habitual Felony Offenders and Habitual Violent Felony Offenders
3. HG. Org: Florida Sentencing Enhancements Pt. 3: Three Time Violent Felony Offenders and Violent Career Criminals
4. HG. Org: Florida Sentencing Enhancements Pt. 4: 10-20-Life

Blog Posts

1. Do I need a St. Petersburg Criminal Defense Attorney?
2. They Never Read Me My Rights - Can My Charge Be Dismissed?
3. Florida's Principal Statute: All for One and One For All
4. Pre-trial Release in Florida: The Basics
5. Speedy Trial in Florida: An Overview
6. Search and Seizure in Florida: An Overview
7. Florida Sentencing Guideline Departures: Youthful Offenders
8. Florida Sentencing Guideline Departures: Unsophisticated/Isolated/Remorse
9. Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain

Related Sections

1. Alibi as a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
2. Statute of Limitations as a Defense to Your St. Petersburg, Clearwater, or Tampa Area Criminal Charge
3. Affecting the Filing Decision
4. Withholding of Adjudication
5. Plea Negotiations
6. Defensive Motions
7. Trial
8. Sentencing
9. Probation Violations
10. Violent Felony Offenders of Special Concern
11. Assault & Aggravated Assault
12. Theft
13. Robbery

The Bottom Line

Carjacking is a classification of robbery that involves a specific type of property as the object of the crime: a motor vehicle. What separates a carjacking offense from grand theft auto is the element involving force or violence. Hence, the "consent" or "permission" defense is likely to be much more viable in a grand theft auto case than a carjacking case. In Florida, carjacking is always a felony and will always score mandatory prison on Florida's sentencing guidelines. If a firearm is used during the commission of the crime, the accused person will be subject to the provisions of Florida's 10-20-Life statute. Carjacking is also one of a select number of felonies that will subject the accused person to many of Florida's recidivist sentencing statutes where the qualification criteria is otherwise met. This offense is prosecuted very aggressively throughout St. Petersburg, Clearwater, Tampa, and surrounding areas. If you have been arrested or charged with carjacking, a St. Petersburg criminal defense attorney can help.

Time is of the essence, especially if you think you qualify for some form of sentencing enhancement. Contact The Kilfin Law Firm, P.C. at any time to discuss your matter.