On March 22nd, the orange county, FL, D.A filed new information charging-the alleged Lena del Ray stalker-Michael Hunt with possession of a concealed weapon by a convicted felon under florida code 790.23, and enhancing the penalties of the aggravated stalking charge. The knife that Michael Hunt allegedly carried, from what we know about it, isn't even a weapon under Florida law.
790.001 Definitions
(3)(a) “Concealed weapon” means any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person....
(13) “Weapon” means any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.
790.23 Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful.—
(1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:(a) Convicted of a felony in the courts of this state;....
ARAMIS D. AYALA, State Attorney of the Ninth Judicial Circuit prosecuting for the State of Florida in Orange County...CHARGES that MICHAEL SHAWN HUNT, on or about the 2nd day of February, 2018, in said County and State, did, in violation of Florida Statutes 784.048(3) and 775.087(1), knowingly, willfully, maliciously and repeatedly follow or harass or cyberstalk ELIZABETH GRANT A/K/A LANA DEL RAY and make a credible threat..., and in the course of committing said offense MICHAEL SHAWN HUNT did carry, display, use, threaten to use, or attempt to use a weapon.
775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.—
(1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
(a) In the case of a felony of the first degree, to a life felony.
(b) In the case of a felony of the second degree, to a felony of the first degree.
(c) In the case of a felony of the third degree, to a felony of the second degree.
The attempted kidnapping charge has already been dropped. Posting messages to your own facebook wall is not an act of speech directed to a person for purposes of the Florida stalking statutes, and all they seem to have is a lone act of following. Which isn't enough to convict.
David v Trextor 4d14-4352
"Where comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person".
784.048 Stalking; definitions; penalties.—
(1) As used in this section, the term:
(a) “Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose....
(2) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
I would wager the prosecutor knows that the arrest was made without probable cause and that they screwed up big time, and trying to enhance the fear factor as to prevent hunt from having a fair pre-trial and trial itself. And unless there is similarity or recidivism being invoked, traditionally ones own criminal background is not admissible-aside from maybe if they take the stand for purposes of impeachment. See Michelson v. United States,
335 U.S. 469 (1948) as a start, or for a more in depth article try http://crimejustice.law.nyu.edu/wp-content/uploads/Admissibility-of-the-Defendant%E2%80%99s-Criminal-Records-at-Trial.pdf . The purpose of invoking 790.23 is to specifically to prejudice the defendant in the weak aggravated stalking case by being able to tell the jury he has a past criminal record for the sole purpose of denying him his fair trial rights. Even though the attempted kidnapping charge has been dropped for lack of probable cause, they still seem to be trying to use the idea of an attempted kidnapping to to invoke a substantial emotional distress. in another words a conviction based upon subjective feeling and imagination; mere allegations of apprehension of injury that wouldn't even support the issuance of an injunction under a preponderance of the evidence standard let alone the higher burdens of a criminal conviction.
A defense attorney could try for to sever the charges, essentially split it into two separate trials. Try the 784.48 in one trial, and the 790.23 in the other in an effort to preserve his right to a fair trial. If that is what indeed happens, it is an unnecessary burden created by the prosecutor who never had a case to begin with. But there are two ways of beating the charge and and now the enchancement, short of banking on jury nullification. One is to assert that the knife didn't meet the criteria of a weapon under 790.001, and the other is to say that the knife was fruit of the poisonous tree. I Don't believed it has been averred that Hunt ever made it to the concert, and question of poisonous fruit then becomes if the search of his person was reasonable-or if there was a valid waiver to his 4rth amendment right common to people who are on probation. I don't see a charge that Hunt violated and terms of probation/parole or a probation/parole hold, so he could be in the clear. But the D.A. has also released discovery with over 100 pages of documents and i know not their contents. But the fruit of the poisonous tree analysis may be unnecessary.
- Discovery Pages 1-124
DIGITAL MEDIA AVAILABLE FOR COPY OR REVIEW:- CD-R Search Results Samsung SM-G930
- DVD-R Ticket Counter Entry Greyhound Bus
- DVD-R Greyhound Bus Station GPX Counter
- DVD-R Defendant Michael Hunt Interview Room 2
- DVD-R Facebook Video
hmm, it looks like they interviewed Michael Hunt. I wonder what other rights they may have violated, but that is another issue. But going back to the charge of possession of a knife, going back to the definitions above, we see a common pocketknife is not defined as a weapon per 790.001(13). Well what is a common pocketknife.
State Of Florida v. Henry Maynard Barnum https://law.justia.com/cases/florida/supreme-court/2005/sc03-1315.html
In L.B., this Court considered whether the “common pocketknife” exception to the statutory definition of “weapon” under section 790.001(13) of the Florida Statutes (1997), was unconstitutionally vague. See id. at 371. This Court held that the exception was not unconstitutionally vague and was capable of ascertainment by Florida’s juries. We determined that the term applied to the type of knife in which the blade folds into the handle permitting it to be carried in one’s pocket. See id. at 372. In determining that the exception applied to the knife carried by L.B., the Court noted an opinion of the Attorney General from 1951 stating that a pocketknife with a blade of four inches or less was a “common pocketknife.” See id. at 373.
Brittany Messineo v. State , https://law.justia.com/cases/florida/fifth-district-court-of-appeal/2015/5d15-80.html
In discussing "common" versus "other" types of pocket knives, the Fourth District Court reversed an order finding a juvenile guilty of possession of a weapon on school property. D.J. v. State, 83 So. 3d 857 (Fla. 4th DCA 2011). In D.J., the juvenile possessed a folding pocketknife with a three inch, partially serrated, curved single-edge blade with a
pointed tip. Id. at 857-58. The court found that this knife was not a weapon, but instead a "common pocket knife" that lacked "weapon-like" characteristics. Id. at 858. In contrast, in J.D.L.R. v. State, 701 So. 2d 626 (Fla. 3rd DCA 1997), the Third District Court accepted the trial court's analysis that the particular knife possessed by the defendant had weaponlike characteristics which arguably placed it outside the category of a "common pocketknife." The knife was described as "a folding knife with a pointed 3 1/2 inch blade,notched combat-style grip and large metal hilt guard (to prevent the user's fingers fromsliding onto the blade)." Id. at 627.
Here, the trial court acknowledged that Appellant's pocket knife is not classified as a weapon under section 790.001(13), but reasoned that it was a weapon because she carried it for self-defense. However, a pocketknife carried for protection is not necessarily a weapon. C.R. v. State, 73 So. 3d 825, 827 (Fla. 4th DCA 2011) (holding that a juvenile who carried a common pocketknife to protect himself from a school bully did not violate a statute prohibiting weapons in school).
So as long as it is a common pocket knife of up to 4 inches long, that lacks weapon like characteristics, then he didn't own a weapon. Only discover will actually reveal what he had for a weapon, but media reports accurately reports that an affidavit of the officer swears that it was a folding knife with a blade of 3 inches. Nothing suggested there was anything special about the knife.
http://abcnews.go.com/US/man-arrested-alleged-stalking-lana-del-rey-orlando/story?id=52822119
When they searched him, they said Hunt had Lana del Rey concert tickets and, according to the affidavit, a 3-inch blade folding knife that the man allegedly possessed.
So again the prosecution fails. Unless there is something that gave his pocket knife a weaponlike characteristic, the new charges upon him must not be sustained.
Now these are lawyers, state prosecutors, who have been trained in the law. But they are using taxpayer money to tie people up in the court system and in te county jails, who for technical reasons-that should be obvious to practitioners in that particular field of law-where the accused have not violated the law [in the instant case]. They know or should know that they screwed up, and rather than drop the charges and apologize and compensate him for the hardship they caused, they instead throw more false charges at him, they paint him as fearful as they can in the pre-trial to prejudice the judge against him, and they want to use introduce fake charges to deny him his fair trial rights should the matter go to jury. These prosecutors for the state belong in prison. Not just for violating his rights which the sovereign has a duty to protect, but also because they are stealing the taxpayers money.
Michael hunt Does have a bond hearing coming up. Hopefully the judge can see past the Prosecutors lies and release him. Sadly a demurrer has to be filed to get the judge to dismiss the case.
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