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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… Scroll down to read more!

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.

A:  

Michael Adam Haber

Michael HaberLearn more. ” href=”http://www.avvo.com/legal-answers/can–deadly-weapon–enhancement-be-taken-off-of-a–1923896.html?answered=true#!” rel=”nofollow” style=”-webkit-transition: all 0.3s ease; color: #006699; text-decoration: none; transition: all 0.3s ease;”>PRO

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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.

First, second and third: No attorney-client relationship exists by virtue of any Q&A with Michael A. Haber, Esq. on Avvo. Fourth: Anything that you post on Avvo (or on similar sites) or on any social media is by its nature public. It is essentially an admission / confession and can be introduced into evidence as a statement against your interest in a subsequent legal proceeding. Once posted you lose any reasonable expectation of privacy, so, as this is an open forum (with no privilege attached), please be extra careful when considering what to post online (forewarned is forearmed.)

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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Michael A. Haber

At Michael A. Haber, P.A. "it's all about reasonable doubt"! Whether in State or Federal Courts, Michael A. Haber, P.A. strives to ensure that his client's rights are respected and that his clients receive top-tier legal representation and counsel. For more than a quarter of a century I have striven to make Michael A. Haber, P.A. a business that custom tailors its services to meet the needs of the client. This incorporates such things as (but is not limited to) doing my best to meet clients at their convenience (as opposed to mine), in locations and at times which are mutually convenient (sometimes at their homes, places of business, independent ground - having free wifi and excellent coffee any Dunkin Donuts always works for me - and occasionally even at odd hours), structuring fees to reasonably accommodate the parties, making myself personally available to the client as close to 24/7 as is possible and, perhaps most importantly, giving careful and comprehensive consideration to both micro and macro issues in a given case so as to be able to agree upon and effort toward a viable litigation objective. This is why I refer to Michael A. Haber, P.A. proudly providing "boutique criminal defense litigation" (being "a small company that offers highly specialized services"), and this is a large part of Michael A. Haber, P.A.'s mission statement Accordingly, Michael A. Haber, P.A. has provided personalized and boutique legal services to both individuals and entities, primarily in the South Florida area, since 1991. With no history of professional discipline whatsoever, Michael A. Haber, Esq. zealously advocates his client's interests and custom tailors his services to meet each client's particular situation, needs and desires. Toward that end Michael A. Haber, Esq. makes himself directly available to his clients whether in person, over the phone (305-381-8686 or Toll Free 1-888-SHARK-8-1), by cell, verbally or text (305-798-2220), by e-mail ([email protected]) on Facebook ( http://www.facebook.com/haberpa ), on Twittter, (@Sharkjy910) on AOL/IM (Sharky910), and also why I consistently add information to the public on both the Michael A. Haber, P.A. Criminal Michael A Haber PA Criminal DUI Defense Litigation Miami Blog (http://www.habercriminallaw.blogspot.com/) and with my "Webisode" series on YouTube (http://www.youtube.com/c/MichaelHaberLaw), whcih currently features 222 briegf VideoFAQ's on a variety of Criminal Defense, DUI and BUI related topics. When you hire Michael A. Haber, P.A. you get Michael A. Haber, Esq.! And remember, at HaberPA, it's all about reasonable doubt!
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