Criminal Case Law Archive

DECEMBER 2016

NOT ALL BAD: "David Allen Hall appeals his convictions and 825-year total sentence on 10 counts of promoting child pornography and 45 counts of possessing child pornography. [T]he trial court erred by imposing a $150 investigative fee. . .[W]e remand with directions that the $150 fee be stricken." Hall v. State, 42 Fla. L. Weekly D85a (5th DCA 12/30/16)

http://5dca.org/Opinions/Opin2016/122616/5D15-2751.op.pdf

INVESTIGATIVE COSTS: Court erred by imposing investigatory costs and absence of request for the fee from the police department. Hall v. State, 42 Fla. L. Weekly D85a (5th DCA 12/30/16)

http://5dca.org/Opinions/Opin2016/122616/5D15-2751.op.pdf

APPEALS: Appealed from order denying motion for postconviction discovery is premature where court has not entered a final order disposing of the motion for postconviction relief. Bond v. State, 42 Fla. L. Weekly D88b v. State, (1st DCA 12/30/16)
https://edca.1dca.org/DCADocs/2015/5945/155945_DA08_12302016_094318_i.pdf

SENTENCING-RECLASSIFICATION: Court may not reclassify conviction for aggravated battery with a firearm from a second-degree felony to a first-degree felony based on use the firearm were these the firm was essential element of the offense. Kearney v. State, 42 Fla. L. Weekly D86b (5th DCA 12/30/16)

http://5dca.org/Opinions/Opin2016/122616/5D16-2155.op.pdf

MANDATORY MINIMUM: Twenty-five-year mandatory minimum sentence must be imposed where defendant discharged firearm resulting in great bodily harm. Where mandatory minimum exceeds the maximum sentence for a second-degree felony the mandatory minimum of 25 years must be applied. Kearney v. State, 42 Fla. L. Weekly D86b (5th DCA 12/30/16)

http://5dca.org/Opinions/Opin2016/122616/5D16-2155.op.pdf

POST CONVICTION RELIEF: Failure to advise that double jeopardy prohibits being convicted of both manufacturing and trafficking in methamphetamine is ineffective assistance of counsel. Smith v. State, 42 Fla. L. Weekly D85c (5th DCA 12/30/16)

http://5dca.org/Opinions/Opin2016/122616/5D16-3156.op.pdf

POST CONVICTION RELIEF: Advising that defendant would necessarily receive the maximum sentence if she proceeded to trial is ineffective assistance of counsel. Smith v. State, 42 Fla. L. Weekly D85c (5th DCA 12/30/16)

http://5dca.org/Opinions/Opin2016/122616/5D16-3156.op.pdf

POST CONVICTION RELIEF: Court erred by summarily denying claim that counsel was ineffective for failing to object to detective's testimony identifying the defendant from the surveillance video. Smith v. State, 42 Fla. L. Weekly D85b (5th DCA 12/30/16)

http://5dca.org/Opinions/Opin2016/122616/5D16-3156.op.pdf

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Court erred by sentencing defendant as a violent felony offender special concern upon revocation of probation without making a written finding the defendant is a danger to the community. Proper remedy is to remand for written findings. Barber v. State, 42 Fla. L. Weekly D82b (5th DCA 12/30/16)42 Fla. L. Weekly D80c

http://5dca.org/Opinions/Opin2016/122616/5D15-3865.op.pdf

POST CONVICTION RELIEF: Court erred by summarily denying the claim that counsel was ineffective for not moving to suppress defendant's statements and not objecting to a defective self-defense jury instruction. Rodriguez v. State, 42 Fla. L. Weekly D80a (3rd DCA 12/28/16)

http://3dca.flcourts.org/Opinions/3D16-0897.pdf

SEARCH AND SEIZURE-EXIGENT CIRCUMSTANCES: Warrantless entry into the home is justified by exigent circumstances where police had received a 911 call that a kidnapping victim was inside and the officer heard screaming. Collado v. State, 42 Fla. L. Weekly D76a (3rd DCA 12/28/16)

http://3dca.flcourts.org/Opinions/3D15-0928.pdf

STATEMENTS OF DEFENDANT: Court properly denied motion to suppress post-Miranda statements elicited 10-hours after an initial short pre-Miranda exculpatory response to questioning at scene of arrest; the post-Miranda statement was sufficiently attenuated from the prior statement. Collado v. State, 42 Fla. L. Weekly D76a (3rd DCA 12/28/16)

http://3dca.flcourts.org/Opinions/3D15-0928.pdf

LIFE SENTENCE-JUVENILE-HOMICIDE: Defendant who was sentenced to life imprisonment for first-degree murder with the possibility of parole is entitled to resentencing in conformance with the recent legislation. McDonald v. State, 42 Fla. L. Weekly D72c (2nd DCA 12/28/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2028,%202016/2D15-4950rh.pdf

DOUBLE JEOPARDY: Where defendant was separately charged with and pled to solicitations to fictitious juvenile and to her fictitious uncle (both one undercover cop), only one of the resulting solicitation convictions was necessarily subsumed in the traveling offense. Littleman v. State, 42 Fla. L. Weekly D66f (1st DCA 12/27/16)

https://edca.1dca.org/DCADocs/2014/1642/141642_DC08_12272016_082543_i.pdf

DEATH PENALTY-RETROACTIVITY: Hurst (jury must unamimously recommend death) does not apply retroactively to cases in which death penalty became final before U.S. Supreme Court's issuance of Ring v. Arizona. Asay v. State, 41 Fla. L. Weekly S646a (FLA 12/22/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-223.pdf

QUOTATION: "This Court need not tumble down the dizzying rabbit hole of untenable line drawing." Asay v. State, 41 Fla. L. Weekly S646a (FLA 12/22/16) (Justice Lewis, concurring)

http://www.floridasupremecourt.org/decisions/2016/sc16-223.pdf

QUOTATION: "Ultimately, when applying the retroactivity equation of balancing 'the justice system's goals of fairness and finality' in this circumstance, fairness must prevail over finality." Asay v. State, 41 Fla. L. Weekly S646a (FLA 12/22/16) (Pariente, dissenting)

http://www.floridasupremecourt.org/decisions/2016/sc16-223.pdf

QUOTATION: "Asay will be the first white person executed for the murder of a black person in this State." Asay v. State, 41 Fla. L. Weekly S646a (FLA 12/22/16) (PERRY, J., dissenting.)

http://www.floridasupremecourt.org/decisions/2016/sc16-223.pdf

QUOTATION: "Indeed, as my retirement approaches, I feel compelled to follow other justices who, in the twilight of their judicial careers, determined to no longer 'tinker with the machinery of death.'. . . The majority's decision today leads me to declare that I no longer believe that there is a method of which the State can avail itself to impose the death penalty in a constitutional manner." Asay v. State, 41 Fla. L. Weekly S646a (FLA 12/22/16) (PERRY, J., dissenting.)

http://www.floridasupremecourt.org/decisions/2016/sc16-223.pdf

QUOTATION: "I can find no support in the jurisprudence of this Court where we have previously determined that a case is only retroactive to a date certain in time. Indeed, retroactivity is a binary -- either something is retroactive, has effect on the past, or it is not. . .In the present case, the majority . . .decides that in capital cases where the Sixth Amendment rights of hundreds of persons were violated, it is appropriate to arbitrarily draw a line between June 23 and June 24, 2002 -- the day before and the day after Ring was decided." Asay v. State, 41 Fla. L. Weekly S646a (FLA 12/22/16) (PERRY, J., dissenting)

http://www.floridasupremecourt.org/decisions/2016/sc16-223.pdf

QUOTATION: "The majority's application of Hurst v. Florida makes constitutional protection depend on little more than a roll of the dice. This cannot be tolerated." Asay v. State, 41 Fla. L. Weekly S646a (FLA 12/22/16) (PERRY, J., dissenting)

http://www.floridasupremecourt.org/decisions/2016/sc16-223.pdf

DEATH PENALTY-RETROACTIVITY: Fundamental fairness requires that Hurst apply retroactively to postconviction defendants who raised a Ring claim at first opportunity and were then rejected at every turn. Mosley v. State, 41 Fla. L. Weekly S629a (FLA 12/22/16)

http://www.floridasupremecourt.org/decisions/2016/sc14-436.pdf

POST CONVICTION RELIEF: Defendant who murdered one of his girl friends and a baby is not entitled to a new trial based on the prosecutor giving a witness Chinese food. Mosley v. State, 41 Fla. L. Weekly S629a (FLA 12/22/16)

http://www.floridasupremecourt.org/decisions/2016/sc14-436.pdf

DEATH PENALTY-UNANIMITY: Defendant, whose death penalty was imposed after a resentencing proceeding, is entitled to resentencing where, although jury was provided an interrogatory verdict form, the jury did not unanimously conclude that the aggravating factors were sufficient to warrant imposing death, or that the aggravating factors outweighed mitigating circumstances. Simmons v. State, 41 Fla. L. Weekly S622a (FLA 12/22/16)

http://www.floridasupremecourt.org/decisions/2016/sc14-2314.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective in advising Defendant to reject plea offer because she thought they could win is facially insufficient without a showing that advice was unreasonable or that she was unfamiliar with the case. Hauter v. State, 42 Fla. L. Weekly D65a (5th DCA 12/22/16)

http://5dca.org/Opinions/Opin2016/121916/5D16-2912.op.pdf

EXPERT: Court does not commit fundamental error by having witness declared an expert. "Tender and accept" is not an improper comment on the witness's testimony. "We disagree with Osorio that a trial court's declaration that a witness is an expert is error." Mitchell v. State, 42 Fla. L. Weekly D62a (5th DCA 12/22/16)

http://5dca.org/Opinions/Opin2016/121916/5D16-1022.op.pdf

LEAVING SCENE OF CRASH INVOLVING DEATH: Judgment of Acquittal is required where there is no crash. Falling out of an open window is not a crash. Collision with pavement does not constitute a crash under the statute. Daugherty v. State, 42 Fla. L. Weekly D61c (5th DCA 12/22/16)

http://5dca.org/Opinions/Opin2016/121916/5D15-3805.op.pdf

POST CONVICTION RELIEF: Claims that counsel was ineffective for failing to object when detective vouched for child victim's credibility in his testimony, failed to impeach victim with previous inconsistent statements, and failed to object when detective commented on defendant's invocation of right to remain silent were not conclusively refuted by record. Grant v. State, 42 Fla. L. Weekly D61a (5th DCA 12/22/16)

http://5dca.org/Opinions/Opin2016/121916/5D16-2393.op.pdf

PROBATION REVOCATION: Error to revoke probation based on defendant's failure to complete mandatory DUI course where defendant had paid enrollment fee, had attended two of three required classes, and had 27 days remaining to complete the course before deadline. Kennedy v. State, 42 Fla. L. Weekly D59a (5th DCA 12/22/16)

http://5dca.org/Opinions/Opin2016/121916/5D15-4341.op.pdf

SENTENCING: Court erred by finding that sentence was lawful because it found that Defendant was a danger to public without considering Defendant's claim that the finding must be made by the jury. Court misconstrued the law. Adams v. State, Fla. L. Weekly D58a (5th DCA 12/22/16)

http://5dca.org/Opinions/Opin2016/121916/5D16-1914.op.pdf

LIFE SENTENCE-JUVENILE-HOMICIDE: Defendant who was sentenced in 1973 to life in prison without parole for first-degree murder committed while he was a juvenile is entitled to judicial review of sentence. Miller v. State, 42 Fla. L. Weekly D51b (3rd DCA 12/21/16)

http://www.3dca.flcourts.org/Opinions/3D15-2492.rh.pdf

LIMITATION OF ACTIONS: Defendant who claims that offense is barred by the statute of limitations may raise the issue for the 1st time on appeal. Question Certified: Must a defendant, who claims that the offense as charged in the information is barred by the statute of limitations, raise the issue in the trial court in order to preserve the issue for direct appeal? Guzman v. State, 42 Fla. L. Weekly D49b (3rd DCA 12/21/16)

http://www.3dca.flcourts.org/Opinions/3D14-0776.pdf

LIMITATION OF ACTIONS: Charges in an amended information that do not constitute a continuation of charges in the initial information are time-barred if filed after expiration of the statute of limitations. Guzman v. State, 42 Fla. L. Weekly D49b (3rd DCA 12/21/16)

http://www.3dca.flcourts.org/Opinions/3D14-0776.pdf

LIFE SENTENCE-JUVENILE-HOMICIDE: Defendant is entitled to judicial review of sentence for first-degree murder committed while he was a juvenile Defendant who was sentenced in 1973 to life in prison without parole for first-degree murder committed while he was a juvenile is entitled to judicial review of sentence. Striping v. State, 42 Fla. L. Weekly D49a (3rd DCA 12/21/16)

http://www.3dca.flcourts.org/Opinions/3D16-0359.pdf

SENTENCING-YOUTHFUL OFFENDER: Adjudication of guilt may be withheld for first-degree felony of robbery with a weapon where the Defendant is designated a youthful offender. Pacheco-Velasquez v. State, 42 Fla. L. Weekly D26b (3rd DCA 12/21/16)

http://www.3dca.flcourts.org/Opinions/3D15-1403.pdf

JAIL CREDIT: Court properly denied motion for credit for time served after sentencing but before Defendant was transported to state prison. Valdespino v. State, 42 Fla. L. Weekly D20 (3rd DCA 12/21/16)

http://www.3dca.flcourts.org/Opinions/3D16-1938.pdf

JUDGMENT OF ACQUITTAL-MURDER: Counsel is not ineffective for failing to make a motion for judgment of acquittal which lacks merit. Counsel is not required to make futile motions or objections. Hartley v. State, 42 Fla. L. Weekly D14a (1st DCA 12/21/16)

https://edca.1dca.org/DCADocs/2015/3209/153209_DC05_12212016_093531_i.pdf

COMPETENCY OF DEFENDANT: Defendant may not be involuntarily admitted to residential services due to incompetence due to an intellectual disability absence the examination and report of an examining committee. Tillman v. State, 42 Fla. L. Weekly D9a (4th DCA 12/21/16)

https://edca.4dca.org/DCADocs/2015/1497/151497_DC13_12212016_090552_i.pdf

PRISON RELEASEE REOFFENDER-CONCURRENT SENTENCE: Court has discretion to impose a concurrent PRR sentence with an offense for which he was incarcerated at the time of the new offense. PRR does not infringe upon a court's discretion to impose sentences consecutively or concurrently. Patterson v. State, 42 Fla. L. Weekly D2a (4th DCA 12/21/16)

https://edca.4dca.org/DCADocs/2015/0133/150133_DC13_12212016_090345_i.pdf

SEARCH AND SEIZURE-SCHOOL: School officer may not conduct a second search of a student looking for a Taser when an earlier search after a tip found none. G.C. v. State, 42 Fla. L. Weekly D1b (4th DCA 12/21/16)

https://edca.4dca.org/DCADocs/2015/4541/154541_DC13_12212016_092406_i.pdf

LIMITATION OF ACTIONS: Defendant may raise for first time on appeal a claim of the crime is barred by statute of limitations. Court recedes from prior decisions. Extensive discussion. Question certified. Smith v. State, 42 Fla. L. Weekly D27c (3rd DCA 12/21/16)

http://www.3dca.flcourts.org/Opinions/3D14-1635.pdf

DOUBLE JEOPARDY: Double jeopardy principles did not prohibit separate convictions for multiple sexual offenses committed in one course of conduct where it was not shown that convictions were based on single act. Sprouse v. State, 41 Fla. L. Weekly D2790c (1st DCA 12/16/16)

https://edca.1dca.org/DCADocs/2015/3235/153235_DC05_12162016_101809_i.pdf

JUDGMENT OF ACQUITTAL: Boilerplate motion for judgment of acquittal is not sufficient to preserve the issue for appeal. Sprouse v. State, 41 Fla. L. Weekly D2790c (1st DCA 12/16/16)

https://edca.1dca.org/DCADocs/2015/3235/153235_DC05_12162016_101809_i.pdf

HEARSAY: A declarant who testifies on the same subject as her hearsay statement is not unavailable due to her disability for the purpose of the elderly victim exception to the hearsay rule. Sprouse v. State, 41 Fla. L. Weekly D2790c (1st DCA 12/16/16)

https://edca.1dca.org/DCADocs/2015/3235/153235_DC05_12162016_101809_i.pdf

APPEALS-PRESERVATION: Defendant who objects to reliability of hearsay statements but not to the unavailability of the declarant, who actually testified at trial, failed to preserve the issue. Sprouse v. State, 41 Fla. L. Weekly D2790c (1st DCA 12/16/16)

https://edca.1dca.org/DCADocs/2015/3235/153235_DC05_12162016_101809_i.pdf


POST CONVICTION RELIEF
: Court erred by failing to address the claim that counsel was ineffective for failing to call witnesses and was the reason Defendant lost at trial. Watson v. State, 41 Fla. L. Weekly D2790b (1st DCA 12/16/16)

https://edca.1dca.org/DCADocs/2016/2571/162571_DC08_12162016_102440_i.pdf


POST CONVICTION RELIEF
: Counsel was ineffective in advising defendant to reject the plea offer of 25 years imprisonment and to plead open where the offense carries a mandatory minimum of 25 years imprisonment. Gardner v. State, 41 Fla. L. Weekly D2790a (1st DCA 12/16/16)

https://edca.1dca.org/DCADocs/2016/1357/161357_DC13_12162016_102103_i.pdf

POST CONVICTION RELIEF-SUCCESSIVE MOTIONS: Where defendant discovered facts undermining post conviction judge's impartiality only after judge denied post conviction motion, he may file a successive rule 3.850 motion. Cannon v. State, 41 Fla. L. Weekly D2788b (1st DCA 12/16/16)

https://edca.1dca.org/DCADocs/2016/0093/160093_DC13_12162016_101902_i.pdf


DOUBLE JEOPARDY
: Separate convictions for kidnapping, aggravated battery with a deadly weapon, and aggravated assault did not violate the prohibition against double jeopardy. Solomon v. State, 41 Fla. L. Weekly D2785a (2nd DCA 12/16/16)

https://edca.1dca.org/DCADocs/2016/0093/160093_DC13_12162016_101902_i.pdf


SENTENCING-VINDICTIVENESS
: When a criminal defendant has a re-trial and receives a higher sentence than after the first trial, the defendant has the burden of showing vindictiveness when the second sentence is imposed by a different judge. Kenner v. State, 41 Fla. L. Weekly D2782a (5th DCA 12/16/16)

http://www.5dca.org/Opinions/Opin2016/121216/5D16-1192.op.pdf

SENTENCING-VINDICTIVENESS
: A sentence cannot stand if it is or appears to be based in part on a defendant's decision to maintain his innocence even after being found guilty. Kenner v. State, 41 Fla. L. Weekly D2782a (5th DCA 12/16/16)

http://www.5dca.org/Opinions/Opin2016/121216/5D16-1192.op.pdf


IMPEACHMENT
: Court properly excluded certified copies of prior convictions to impeach the dying declaration of the victim where the parties stipulated that the declarant had 3 prior convictions. Kenner v. State, 41 Fla. L. Weekly D2782a (5th DCA 12/16/16)

http://www.5dca.org/Opinions/Opin2016/121216/5D16-1192.op.pdf



SENTENCING
: When it is established that defendant committed new criminal offense after entering plea, and defendant's incarceration on the new charge causes failure to appear, defendant's failure to appear can be considered a willful and material breach of an agreement to appear because it was caused by his willful act of committing the crime. Richards v. State, 41 Fla. L. Weekly D2781a (5th DCA 12/16/16)

http://www.5dca.org/Opinions/Opin2016/121216/5D16-412.op.pdf

SEARCH AND SEIZURE-KNOCK AND TALK: Detectives who went to defendant's apartment to investigate an alleged battery exceeded scope of their implied license by lingering at the apartment when defendant did not answer his door and stepping off front porch to shine flashlights through window and bang on window adjacent to door. Friedson v. State, 41 Fla. L. Weekly D2779e (5th DCA 12/16/16)

http://www.5dca.org/Opinions/Opin2016/121216/5D15-3063.op.pdf

SEARCH AND SEIZURE-RESIDENCE-CURTILAGE: Area adjacent to front step, which as described was akin to a private front yard, was curtilage, and not common area shared by residents in defendant's apartment complex. Because detective noticed smell of marijuana only after he moved off front porch to curtilage and peered through defendant's window above air-conditioning unit, odor of marijuana could not serve as basis for search warrant. Friedson v. State, 41 Fla. L. Weekly D2779e (5th DCA 12/16/16)

http://www.5dca.org/Opinions/Opin2016/121216/5D15-3063.op.pdf

APPEALS-JURISDICTION: Appellate court has no jurisdiction to recall mandate where State moved to recall it to more than hundred 20 days from its issuance. McPhee v. State, 41 Fla. L. Weekly D2776a (3rd DCA 12/14/16)

http://www.3dca.flcourts.org/Opinions/3D14-1025.rh.pdf

MANSLAUGHTER BY ACT-JURY INSTRUCTIONS-LESSER
: Error in giving of erroneous standard jury instruction on manslaughter by act was not cured by fact that jury was also instructed on manslaughter by culpable negligence which was supported by evidence. Defendant preserved issue by objecting to the erroneous instruction. Lumsdon v. State, 41 Fla. L. Weekly D2769a (3rd DCA 12/14/16)

http://www.3dca.flcourts.org/Opinions/3D07-2324.rh.pdf


DISCOVERY-ATTORNEY-CLIENT PRIVILEGE: Defendant's handwritten notes prepared for his personal use are not subject to attorney-client privilege and, upon proper motion must be disclosed to codefendants' counsel. Lee v. Condell, 41 Fla. L. Weekly D2762d (3rd DCA 12/14/16)

http://www.3dca.flcourts.org/Opinions/3D15-2316.pdf

VOIR DIRE: Court erred in refusing to allow defense counsel to ask prospective jurors beyond the first eight, if they would believe the defendant was innocent absent any evidence, but limitation was not so extreme as to require mistrial. Good discussion of extent to which judge can interfere with counsel at trial. Willoughby v. State, 41 Fla. L. Weekly D2759b (4th DCA 12/14/16

https://edca.4dca.org/DCADocs/2015/1524/151524_DC08_12142016_085631_i.pdf

MANDATORY MINIMUM-CONSECUTIVE: Resentencing is required when Court mistakenly believed it had to sentence defendant to consecutive mandatory minimum terms for 2 counts of aggravated assault with discharged firearm. Penn v. State, 41 Fla. L. Weekly D2759a (4th DCA 12/14/16)

https://edca.4dca.org/DCADocs/2015/0592/150592_DC08_12142016_085433_i.pdf

CREDIT FOR TIME SERVED: Defendant is entitled to oral pronouncement of the number of days of credit credits for the time served on his first life sentence. Calvo v. State, 41 Fla. L. Weekly D2757a (2nd DCA 12/14/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2014,%202016/2D16-638.pdf

GRAND THEFT: Testimony that victim got the replacement value for the stolen ring by looking at an identical ring online is insufficient to establish value of the stolen property. Council v. State, 41 Fla. L. Weekly D2750b (1st DCA 12/12/16)

https://edca.1dca.org/DCADocs/2015/4382/154382_DC13_12122016_083825_i.pdf


JUVENILES-SECURE DETENTION
: Child may not be held in secure detention the on the 21-day where there has been a motion for continuance or extension of period. Time starts upon entry of the court order of detention, not upon the Child's arrest. M.D.E. v. State, 41 Fla. L. Weekly D2741d (5th DCA 12/12/16)

POST CONVICTION RELIEF: Court erred by summarily denying claim that counsel was ineffective for failing to file motion for new trial or requesting a limiting jury instruction that the principal instruction does not apply to conspiracy. Legrande v. State, 41 Fla. L. Weekly D2740a (5th DCA 12/9/16)

http://www.5dca.org/Opinions/Opin2016/120516/5D16-1606.op.pdf

NEWLY DISCOVERED EVIDENCE: The victim's affidavit stating that she fabricated all allegations is sufficient for a hearing for postconviction relief based on newly discovered evidence. Vaughan v. State, 41 Fla. L. Weekly D2739a (5th DCA 12/9/16)

http://www.5dca.org/Opinions/Opin2016/120516/5D16-2426.op.pdf

DANGEROUS SEXUAL FELONY OFFENDER: Sentence of 30 years' imprisonment with a thirty-year mandatory minimum as a dangerous sexual felony offender is a legal sentence. Any term of years between 25 and life imprisonment is lawful. Conflict certified. Baxter v. State, 41 Fla. L. Weekly D2732a (2nd DCA 12/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2009,%202016/2D14-5661.pdf

OBSTRUCTION WITHOUT VIOLENCE: Officer who attempted to take juvenile he was absent from school into custody was not engaged in the lawful execution of a legal duty. A.J.R. . State, Fla. L. Weekly D2730a (2nd DCA 12/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2009,%202016/2D15-3226.pdf


SEARCH AND SEIZURE: Officer may search vehicle when he observed cocaine in plain view inside the vehicle after the defendant's arrest. State v. Ross, 41 Fla. L. Weekly D2729a (2nd DCA 12/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2009,%202016/2D15-3682.pdf

LIFE SENTENCE-JUVENILE-NONHOMICIDE: Defendant whose original sentence violated Graham, and who was later resentenced to 45 years prior to the new sentence review statute taking effect is entitled to be resentenced pursuant to the provisions of that statute. When resentenced again, State may again seek life imprisonment with judicial review. Kelsey v. State, 41 Fla. L. Weekly S600b (FLA 12/8/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-2079.pdf

JURY INSTRUCTIONS-AMENDMENT: Miscellaneous standard jury instructions revised. In Re: Standard Jury Instructions, 41 Fla. L. Weekly S600a (FLA 12/8/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-1183.pdf

AMENDMENT-INTERPRETERS: Rules for interpreters are tweaked. In re: Amendments to Rules of Judicial Administration, 4l Fla. L. Weekly S598a (FLA 12/8/16)http://www.floridasupremecourt.org/decisions/2016/sc15-1594.pdf

INSANITY-INVOLUNTARY COMMITMENT: Commitment order must contain specific findings that the defendant was mentally ill and dangerous to himself or others. Kellond v. State, 41 Fla. L. Weekly D2726a (1st DCA 12/8/16)

https://edca.1dca.org/DCADocs/2016/0700/160700_DC03_12082016_104802_i.pdf

SEARCH AND SEIZURE-CELL PHONE-ABANDONMENT: Accessing contents of password-protected cell phone without a warrant violated the 4th amendment even though the phone was left the stolen vehicle and was unclaimed. The abandonment exception does not apply to password-protected cell phones. State v. K.C., 41 Fla. L. Weekly D2716a (4th DCA 12/7/16)

https://edca.4dca.org/DCADocs/2015/3290/153290_DC05_12072016_085303_i.pdf

QUOTATION: "In 1926, Learned Hand observed . . . that it is 'a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.' . . .If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form -- unless the phone is." State v. K.C., 41 Fla. L. Weekly D2716a (4th DCA 12/7/16)

https://edca.4dca.org/DCADocs/2015/3290/153290_DC05_12072016_085303_i.pdf

QUOTATION: "It would be patently absurd to suggest that abandonment of a traditional key means that warrantless access is allowed to the house it locks; the same must be true of digital keys to electronic information." State v. K.C., 41 Fla. L. Weekly D2716a (4th DCA 12/7/16)


https://edca.4dca.org/DCADocs/2015/3290/153290_DC05_12072016_085303_i.pdf

DRUG OFFENDER PROBATION: Drug offender probation was unlawfully imposed for offense of resisting an officer with violence. Orr v. State, 41 Fla. L. Weekly D2711a
(2nd DCA 12/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2007,%202016/2D15-5131.pdf


EVIDENCE-REBUTTAL-IMPEACHMENT: Court erred by allowing the state to rebut Defendant's not hearsay statements (deputies are"green aliens" and "green parasites" with evidence of his prior convictions. The statement that deputies are green aliens is not hearsay because not admitted for the truth of the matter asserted, and therefore is not subject to impeachment. Gumestad v. State, 41 Fla. L. Weekly D2710a (2nd DCA 12/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2007,%202016/2D14-3140.pdf

HEARSAY: Defendant's statement that deputies are green aliens is not hearsay because it is not offered for the truth of the matter asserted. Gumestad v. State, 41 Fla. L. Weekly D2710a (2nd DCA 12/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2007,%202016/2D14-3140.pdf

QUOTATION: "We are skeptical that a defendant who. . .honestly believes that he is being tried by extraterrestrials can be said to have a rational and factual understanding of the proceedings. Gumestad v. State, 41 Fla. L. Weekly D2710a (2nd DCA 12/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2007,%202016/2D14-3140.pdf

SEARCH AND SEIZURE: Where warrant had been issued for search of his cell phone of a defendant charged with video voyeurism, it was a departure from essential requirements of law to deny State's motion to compel production of the passcode to unlock the phone. Privilege against self-incrimination was not applicable to preclude defendant from being compelled to produce the passcode. State v. Stahl, 41 Fla. L. Weekly D2706a (2nd DCA 12/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2007,%202016/2D14-4283.pdf

PLEA: Court erred in accepting a guilty plea without holding a plea colloquy. S.A.W. v. State, 41 Fla. L. Weekly D2705c (2nd DCA 12/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2007,%202016/2D15-4905.pdf

POST CONVICTION RELIEF: Court erred in summarily denying claim that counsel was ineffective for failing to object to the flawed jury instruction on self-defense on the ground that the error could have been raised on direct appeal. Lahens v. State, 41 Fla. L. Weekly D2697a (5th DCA 12/2/16)

http://5dca.org/Opinions/Opin2016/112816/5D15-2569.op.pdf


POST CONVICTION RELIEF: Court erred in summarily denying claim that counsel was ineffective for failing to seek to admit his testimony submitted in the pretrial Stand Your Ground hearing in the trial. Former testimony is admissible regardless of availability of the declarant. Lahens v. State, 41 Fla. L. Weekly D2697a (5th DCA 12/2/16)

http://5dca.org/Opinions/Opin2016/112816/5D15-2569.op.pdf


HABEAS CORPUS: Court has jurisdiction to review habeas petition, but the petition was nonetheless properly denied where issues should have been raised in previous postconviction motion. Gray v. DOC, 41 Fla. L. Weekly D2693d (5th DCA 12/2/16)

http://5dca.org/Opinions/Opin2016/112816/5D16-2379.op.pdf


POST CONVICTION RELIEF: Court erred by summarily denying claim that counsel was ineffective for failing to convey plea offer to Defendant where the State said that the plea offer was never made but did not cite to the record to support its response. Harris v. State, 41 Fla. L. Weekly D2693a (5th DCA 12/2/16)

http://5dca.org/Opinions/Opin2016/112816/5D16-2888.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing to determine whether counsel failed to convey to state that the defendant's accepted the plea offer. Fournier v. State, 41 Fla. L. Weekly D2691e (5th DCA 12/2/16)

http://5dca.org/Opinions/Opin2016/112816/5D16-2329.op.pdf


INVESTIGATIVE COSTS: Defendant's waiver of right to court-appointed counsel does not necessarily included waiver of expenses for private investigative funds. Indigent pro se litigant is eligible to process services of investigative funds. Patten v. State, 41 Fla. L. Weekly D2692a (12/2/16)

http://5dca.org/Opinions/Opin2016/112816/5D16-2102.op.pdf

SEARCH AND SEIZURE: Officer may stop a vehicle for speeding based on her visual observations without verification from radar or clocking. Gallardo v. State, 41 Fla. L. Weekly D2691d (5th DCA 12/2/16)

http://5dca.org/Opinions/Opin2016/112816/5D16-1399.op.pdf

MANDATORY MINIMUM-FIREARM-CONSECUTIVE: Consecutive mandatory minimum sentences for multiple firearm offenses from same episode are impermissible if firearm is possessed but not discharged. Walton v. State, 41 Fla. L. Weekly S587a (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc13-1652.pdf


JURY INSTRUCTIONS-LESSER INCLUDED
: Conviction reversed where court failed to give instruction on the lesser included offense of attempted manslaughter when instructing on attempted second-degree murder. Error is fundamental. Walton v. State, 41 Fla. L. Weekly S587a (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc13-1652.pdf


PHOTO LINEUP
: Detective calling witness's attention to the defendant's photograph gives rise to a substantial likelihood of irreparable misidentification. Discussion of the 5 factors for evaluating impermissible suggestiveness. Walton v. State, 41 Fla. L. Weekly S587a (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc13-1652.pdf

JUDGE
: Judge reprimanded for sending ex parte email to public defender office and belittling prosecutor. Inquiry Concerning John Contini, 41 Fla. L. Weekly S586a (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-2148_Revised.pdf


DEATH PENALTY-INTELLECTUAL DISABILITY: Defendant is entitled to a new evidentiary hearing to establish whether he has an intellectual disability based on United States cream court opinion requiring the court to take into account the standard error of measurement of IQ tests and refrain from using a bright line IQ rule of 70 or below. Cherry v. Jones, 41 Fla. L. Weekly S584a (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-957.pdf

QUOTATION-PARIENTE: "In 2007, this Court unanimously denied Roger Lee Cherry relief on his claim of intellectual disability because Cherry had a full scale IQ score of 72. . . The Court was wrong. . . and the error is of such constitutional magnitude that the Eighth Amendment demands that the error be corrected. I was part of the Court in Cherry that made a legal error -- one that could literally mean the difference between life and death." Cherry v. Jones, 41 Fla. L. Weekly S584a (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-957.pdf


QUOTATION-PARIENTE
: "Intellectual disability is a condition, not a number." Cherry v. Jones, 41 Fla. L. Weekly S584a (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-957.pdf


DEATH PENALTY
: New penalty phase hearing is required where the jury did not find the facts necessary to sentence the defendant to death. Contemporaneous convictions for other violent felonies do not insulate the death sentences from the holdings in Ring and Hurst. Johnson v. State, 41 Fla. L. Weekly S579f (FLA 12/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc14-1175.pdf



SENTENCING-DOWNWARD DEPARTURE
: Neither mental health treatment for undiagnosed battered woman's syndrome nor familial obligations are valid grounds for a downward departure. State v. Sawyer, 41 Fla. L. Weekly D2690a (1st DCA 12/1/16)

https://edca.1dca.org/DCADocs/2016/1006/161006_DC13_12012016_085730_i.pdf

SELF-DEFENSE-PRIOR ACTS OF VIOLENCE: Defendant may testify about prior specific acts of violence committed by the Victim to prove the reasonableness of the defendant's apprehension. Angelo v. State, 41 Fla. L. Weekly D2689c (1st DCA 12/1/16)

https://edca.1dca.org/DCADocs/2015/3972/153972_DC13_12012016_085413_i.pdf

NOVEMBER 2016

POST CONVICTION RELIEF: Rather than denying a facially insufficient rule 3.850 motion, the court should have entered an order allowing the defendant an opportunity to amend it. Perez Nunez v. State, 41 Fla. L. Weekly D2678c (3rd DCA 11/30/16)
http://www.3dca.flcourts.org/Opinions/3D16-0560.pdf

DOUBLE JEOPARDY: Separate convictions for battery and battery by strangulation violate the prohibition against double jeopardy. Taylor v. State, 41 Fla. L. Weekly D2677b (4th DCA 11/30/16)

https://edca.4dca.org/DCADocs/2015/1923/151923_DC08_11302016_084843_i.pdf


CONFIDENTIAL INFORMANT
: Defendant is entitled to a new trial where the Court denied the motion to compel disclosure of confidential informant in an in camera hearing where the informant did not testify. Where a nontestifying confidential informant gave detailed information about the delivery of a package, his identity is relevant as to the question whether he himself sent the package to set up the defendant. Joshua v. State, 41 Fla. L. Weekly D2674a (4th DCA 11/30/16)

https://edca.4dca.org/DCADocs/2015/1917/151917_DC08_11302016_084732_i.pdf


DISQUALIFICATION-FACEBOOK
: A motion to disqualify is legally insufficient based on the fact that the lead detective is Facebook friends with the judge's wife. Joshua v. State, 41 Fla. L. Weekly D2674a (4th DCA 11/30/16)

https://edca.4dca.org/DCADocs/2015/1917/151917_DC08_11302016_084732_i.pdf

TEMPORARY POSSESSION: Bare temporary possession alone may be insufficient to convict where evidence supports that the Defendant possessed the contraband for the purpose of lawful disposal. "Under the State's argument, a Good Samaritan who discovers a controlled substance in a public park where children are playing, picks it up and takes it to the police station a block away, would have no defense to the charge of possession of that controlled substance. However, that is not the state of the law." Joshua v. State, 41 Fla. L. Weekly D2674a (4th DCA 11/30/16)

https://edca.4dca.org/DCADocs/2015/1917/151917_DC08_11302016_084732_i.pdf


CREDIT FOR TIME SERVED
: State is not permitted to file a rule 3.800(b) motion seeking a reduction in the amount of jail credit where that would not benefit the defendant or correct a scrivener's error. Jones v. State, 41 Fla. L. Weekly D2673a (4th DCA 11/30/16)

https://edca.4dca.org/DCADocs/2013/1564/131564_DC08_11302016_083108_i.pdf

FAILURE TO REGISTER AS SEX OFFENDER: Defendant may not be convicted for failing to register as a sex offender where the certification from New York did not contain the whole record of his conviction. Certification without fingerprints is incomplete. Gosling v. State, 41 Fla. L. Weekly D2666a (4th DCA 11/30/16)

https://edca.4dca.org/DCADocs/2016/0630/160630_DC13_11302016_085911_i.pdf


JUVENILE-LIFE IMPRISONMENT
: Defendant's non-homicide and first-degree murder sentences are reversed because a life sentence for juvenile offenders is impermissible without a meaningful opportunity for release. Neely v. State, 41 Fla. L. Weekly D2663b (3rd DCA 11/30/16)

http://www.3dca.flcourts.org/Opinions/3D14-1052.pdf


EVIDENCE-SKYPE
: Father waives right to object to Skype testimony where he initially approved it than 3 days before trial revoked his consent to Skype testimony. S.D. v. DCF, 41 Fla. L. Weekly D2663a (3rd DCA 11/30/16)

http://www.3dca.flcourts.org/Opinions/3D16-1306.pdf


SENTENCING-CONSIDERATIONS-LACK OF REMORSE
: Where the record contains no evidence defendant filed a motion for downward departure based on rehabilitation, or otherwise injected remorse into his argument for mitigation, it was fundamental error for the trial court to consider lack of remorse in sentencing. Lawton v. State, 41 Fla. L. Weekly D2662a (3rd DCA 11/30/16)

http://www.3dca.flcourts.org/Opinions/3D15-1520.pdf


COUNSEL-MOTION TO WITHDRAW
: Court applied wrong standard in denying public defender motion to withdraw based on victim having promised to support public defender's campaign for reelection. Leake v. State, 41 Fla. L. Weekly D2657b (2nd DCA 11/30/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2030,%202016/2D16-2639.pdf


DOUBLE JEOPARDY
: Separate convictions for traveling to meet minor and use of computer to seduce minor violates double jeopardy. Lee v. State, 41 Fla. L. Weekly D2650a (1st DCA 11/28/16)

https://edca.1dca.org/DCADocs/2015/0943/150943_DC08_11282016_085741_i.pdf


RED COW-PRECEDENT
: Appellate court is ticked off at lower court for not following precedent from a different DCA. It is a miscarriage of justice to not follow precedent, enabling certiorari review. DHSMV v. Walsh, 41 Fla. L. Weekly D2648b (1st DCA 11/28/16)

https://edca.1dca.org/DCADocs/2016/0511/160511_DC03_11282016_090440_i.pdf


DRIVER' S LICENSE REINSTATEMENT
: One is not drug-free if one drinks alcohol, and therefore and therefore is ineligible for reinstatement of driver's license. DHSMV v. Walsh, 41 Fla. L. Weekly D2648b (1st DCA 11/28/16)

https://edca.1dca.org/DCADocs/2016/0511/160511_DC03_11282016_090440_i.pdf


JUVENILES-COMMITMENT LEVEL
: Department waived its right to object to commitment level imposed by trial court where department recommended probation, which was not a proper commitment-level recommendation. C.C. v. State, 41 Fla. L. Weekly D2647a (1st DCA 11/28/16)

https://edca.1dca.org/DCADocs/2015/0943/150943_DC08_11282016_085741_i.pdf

DEATH PENALTY-NON-UNANIMUS VERDICT: Defendant who was sentenced to death on a non-unanimous recommendation is entitled to a new sentencing hearing under Ring and Hurst. Franklin v. State, 41 Fla. L. Weekly S573a (FLA 11/23/16)

http://www.floridasupremecourt.org/decisions/2016/sc13-1632.pdf


DEATH PENALTY-INTELLECTUAL DISABILITY: Defendant is not entitled to relief based on Hurst where the defendant validly waived a penalty-phase jury. Wright v. State, 41 Fla. L. Weekly S561b (FLA 11/23/16)

http://www.floridasupremecourt.org/decisions/2016/sc13-1213.pdf


MOTION FOR JAIL CREDIT: Jail credit matters can be litigated in either a motion filed under rule 3.800(b) while a defendant's direct appeal is pending, or in a motion filed under rule 3.801 after a defendant's sentence has become final. In re: Amendment to Rules of Criminal Procedure, 41 Fla. L. Weekly S561a (FLA 11/23/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-640.pdf


QUOTATION: "Truth serves as an indispensable component of justice." Williams v. State, 41 Fla. L. Weekly D2641a (3rd DCA 11/23/16)

http://www.3dca.flcourts.org/Opinions/3D16-2357.pdf



DEATH PENALTY-CONSTITUTIONALITY: Florida's death penalty statute is unconstitutional for not requiring a unanimous recommendation of death. State v. Gaiter, 41 Fla. L. Weekly D2639c (3rd DCA 11/23/16)

http://www.3dca.flcourts.org/Opinions/3D16-1174.pdf

APPEALS: Court lacks jurisdiction to review order denying motion to suppress blood alcohol test results where record does not reflect written order finding suppression ruling would be dispositive or stipulation that ruling would be dispositive. Aybar v. State, 41 Fla. L. Weekly D2638a (3rd DCA 11/23/16)

http://www.3dca.flcourts.org/Opinions/3D15-1078.pdf

MANDATORY MINIMUM-CONSECUTIVE: Imposition of consecutive mandatory minimum sentences for possession and use of firearm during commission of crimes is permissible, but not required, where sentences arise from single criminal episode. Martinez-Casteneda v. State, 41 Fla. L. Weekly D2636e (3rd DCA 11/23/16)

http://www.3dca.flcourts.org/Opinions/3D15-0705.pdf

MANDATORY MINIMUM-CONSECUTIVE: Court is not required to impose consecutive mandatory minimum sentences 4 shooting at multiple victims during a single criminal episode. John v. State, 41 Fla. L. Weekly D2635b (4th DCA 11/23/16)

https://edca.4dca.org/DCADocs/2015/2639/152639_DC08_11232016_080953_i.pdf


PROBATION REVOCATION: Defendant is entitled to a new hearing where, although sentence for sentencing he claimed he never admitted he violated his probation in the 1st place in the record does not contradict him. Gomez v. State, 41 Fla. L. Weekly D2634b (4th DCA 11/23/16)

https://edca.4dca.org/DCADocs/2015/1236/151236_DC13_11232016_080349_i.pdf


GRAND THEFT-KNOWLEDGE: Court erred in instructing jury that purchase of stolen property at price substantially below fair market value gives rise to inference that person buying property knew or should have known that the property had been stolen where the state presented evidence as to the amount the victim paid for the shotgun but did not prove the fair market value of the stolen firearm. Jeudy v. State, 41 Fla. L. Weekly D2630c (4th DCA 11/23/16)

https://edca.4dca.org/DCADocs/2015/2767/152767_DC13_11232016_081215_i.pdf

DEADLY WEAPON: BB gun found in student's book bag was not a deadly weapon if not loaded nor used in a dangerous or threatening manner. C.W. v. State, 41 Fla. L. Weekly D2628b (2nd DCA 11/23/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2023,%202016/2D15-3726.pdf


RECORDS: Court must hold an evidentiary hearing on a petition for mandamus to determine whether the will court appointed attorney has deliver the appellate record to the defendant. Degregorio v. State, 41 Fla. L. Weekly D2628a (2nd DCA 11/23/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2023,%202016/2D14-4886.pdf

MANSLAUGHTER-HAZING: Hazing statute is not unconstitutionally overbroad or vague. Defendant who oversaw ritual slapping, kicking and punching a member of the band on the bus is properly convicted of hazing and manslaughter when the victim died. Martin v. State, 41 Fla. L. Weekly D2615a (5th DCA 11/18/16)

EVIDENCE: Court may allow photographic evidence of the condition of the victim's body after a bone harvest was completed where defendant failed to demonstrate probable tampering with the victim's body during the procedure. Martin v. State, 41 Fla. L. Weekly D2615a (5th DCA 11/18/16)

http://5dca.org/Opinions/Opin2016/111416/5D15-284.op.pdf

MISTRIAL: Mistrial is not required where the prosecutor is an improper send-a-message comment in closing argument where curative instruction is given. Martin v. State, 41 Fla. L. Weekly D2615a (5th DCA 11/18/16)

http://5dca.org/Opinions/Opin2016/111416/5D15-284.op.pdf

UTTERING FORGED CREDIT CARD: Defendant who alters gift cards to purchase items cannot be convicted of uttering a forged credit card. Casais v. State, 41 Fla. L. Weekly D2612a (5th DCA 11/18/16)

NEWLY DISCOVERED EVIDENCE: Evidentiary hearing required on claim of newly discovered evidence consisting of affidavit of witness who claims that persons other than defendant committed robbery. Smith v. State, 41 Fla. L. Weekly D2610a (5th DCA 11/18/16)

http://5dca.org/Opinions/Opin2016/111416/5D16-904.op.pdf>



SENTENCING
: Court improperly introduced its own evidence and called its own witness before finding the defendant to be a danger to the public and sentencing him to 5 years imprisonment. Error was fundamental. Court may not assume the role of prosecutor. Smith v. State, 41 Fla. L. Weekly D2602a (2nd DCA 11/18/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2018,%202016/2D15-1691.pdf


LIFE SENTENCE-JUVENILES
: 40 year sentence is not a de facto life sentence. Defendant is not entitled to review of his sentence after 25 years. Waiters v. State, 41 Fla. L. Weekly D2597b (2nd DCA 11/18/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2018,%202016/2D14-4589rh.pdf

SENTENCING-DRUG TESTING: Random drug testing is not a special condition of probation that must be orally pronounced. Romano v. State, 41 Fla. L. Weekly D2597a (2nd DCA 11/18/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2018,%202016/2D13-5803.pdf

RESISTING WITHOUT VIOLENCE-JOA: State failed to prove the arresting officer was in the lawful execution of a legal duty when he attempted to take juvenile into custody without any proof that a valid order of probation existed at the time of the arrest attempt. J.C. v. State 41 F la. L. Weekly D2594b (2nd DCA 11/18/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2018,%202016/2D15-4227.pdf



POST CONVICTION RELIEF-SENTENCING-LIFE-JUVENILES
: Defendant sentenced to life imprisonment with the possibility of parole for 25 years for murder committed when he was a juvenile is entitled to a new sentencing hearing under the new statutory scheme based on the Florida Supreme Court's holding that the sentence is tantamount to life imprisonment. Hixon v. State, 41 Fla. L. Weekly D2594a (2nd DCA 11/18/16)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2018,%202016/2D15-5122.pdf


SEARCH AND SEIZURE
: Search of 12-year-olds playing in their front yard is unlawful. Consent is not voluntary where child believes he has no right to withhold consent. When the searches of juveniles, lack of consent is more likely. Burden of showing consent is on the State. F.C. v. State, 41 Fla. L. Weekly D2593a (2nd DCA 11/18/16)




CORPUS DELICTI: Defendant's admissions to lewd or lascivious molestation are inadmissible under the corpus delicti doctrine when not shown to be trustworthy or corroborated. Defendant's diary cannot be considered proof of trustworthiness or corroboration. A confession cannot corroborate itself. State v. Tumlinson, 41 Fla. L. Weekly D2589b (2nd DCA 11/18/16). 1st DCA 2005).

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2018,%202016/2D15-1814.pdf

STATEMENTS OF DEFENDANT: Where a defendant has waived his Miranda rights, he must make an unequivocal or unambiguous request to terminate an interrogation in order to reassert those rights. Statements showing only declining to answer questions about a specific aspect of all of the crimes is not an unambiguous request to terminate interrogation. McCloud v. State, 41 Fla. L. Weekly S548a (FLA 11/17/16)

http://www.floridasupremecourt.org/decisions/2016/sc12-2103.pdf

EXPERT-FALSE CONFESSIONS: Court erred by excluding Expert testimony about false confessions, but error was harmless. "Expert testimony concerning false confessions is particularly important because we know that false confessions are one of the leading causes of subsequent findings of innocence." McCloud v. State, 41 Fla. L. Weekly S548a (FLA 11/17/16)

http://www.floridasupremecourt.org/decisions/2016/sc12-2103.pdf



DOUBLE JEOPARDY-ROBBERY/BURGLARY: Separate conviction for armed robbery and armed burglary of an occupied dwelling with assault or battery did not violate double jeopardy. McCloud v. State, 41 Fla. L. Weekly S548a (FLA 11/17/16)

http://www.floridasupremecourt.org/decisions/2016/sc12-2103.pdf

DEATH PENALTY
: Death sentence is disproportionate in light of term-of-years sentences imposed against codefendants and defendant's lesser role in the crimes. McCloud v. State, 41 Fla. L. Weekly S548a (FLA 11/17/16)

http://www.floridasupremecourt.org/decisions/2016/sc12-2103.pdf



DEATH PENALTY-PROPORTIONALITY
: Death sentence is disproportionate defendant was 18 years old, had a borderline IQ,, learning disability and suffered childhood neglect. Phillips v, State, 41 Fla. L. Weekly S543a (FLA 10/17/16)

http://www.floridasupremecourt.org/decisions/2016/sc12-876.pdf

LIMITATION OF ACTIONS: Where defendant is continuously absent from state, State's failure to conduct a diligent search does not toll the running of the statute of limitations. State does not have to prove that the Defendant's absence hindered. Robinson v. State, 41 Fla. L. Weekly S541a (FLA 11/17/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-233.pdf


SELF-DEFENSE-JOA
: Defendant is not entitled to JOA after firing 10 shots into a closed car whose occupants were playing the music too loud. Dunn v. State, 41 Fla. L. Weekly D2586c (1st DCA 11/17/16)

https://edca.1dca.org/DCADocs/2014/4924/144924_1284_11182016_112247_i.pdf

PLEA-VOLUNTARINESS: Defendant is entitled to an hearing on his motion to withdraw plea evidentiary to determine if his attorney misadvised him about a material collateral consequence, i.e. whether he could reside with his daughter. Hernandez v. State, 41 Fla. L. Weekly D2575a (4th DCA 11/16/16)

https://edca.4dca.org/DCADocs/2015/4045/154045_DC13_11162016_085329_i.pdf

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Court must provide written reasons for its finding that defendant, as a violent felony offender special concern posed a danger to the community. Arnone v. State, 41 Fla. L. Weekly D2574b (4th DCA 11/16/16)

https://edca.4dca.org/DCADocs/2015/3440/153440_DC05_11162016_084951_i.pdf

DOUBLE JEOPARDY-TRAVELING/USING A COMPUTER: Convictions of traveling to solicit a child to commit a sexual act and using a computer to solicit a person to commit a sexual act on a child encompass the same criminal conduct and violate constitutional prohibition against double jeopardy. Thomas v. State, 41 Fla. L. Weekly D2563a (2nd DCA 11/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2016,%202016/2D14-1986.pdf


SELF-DEFENSE-STAND YOUR GROUND
: Court committed fundamental error by instructing the jury that defendant, a felon in possession of a firearm had a duty to retreat if he was engaged in unlawful activity. A felon in possession of the firearm is not prohibited from asserting the stand your ground defense. Andujar-Ruiz v. State, 41 Fla. L. Weekly D2559b (2nd DCA 11/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2016,%202016/2D15-5304.pdf


SEXUAL OFFENDER-RESTRICTIONS RESIDENCE
: "Recognizing that most sexual predators and offenders are not sympathetic characters, I nevertheless believe that statutes and ordinances that relegate sexual predators to camping by a phosphate mine . . . are more draconian than necessary. . .A better option than camping by a phosphate mine should be available. . . Absent some type of creative solution, the burden on society to house prisoners will only continue to spiral upward." Alvarado v. State, 41 Fla. L. Weekly D2559a (2nd DCA 11/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2016,%202016/2D15-5379.pdf

LIFE SENTENCE-JUVENILE HOMICIDE: Defendant who was sentenced to life imprisonment with parole eligibility after twenty-five years for homicide committed when he was juvenile is entitled to resentencing in conformance with chapter 2014-220. Landy v. State, 41 Fla. L. Weekly D2555b (2nd DCA 11/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2016,%202016/2D15-4827.pdf



APPEALS-INEFFECTIVE ASSISTANCE OF COUNSEL: Ineffective assistance of counsel cannot be raised on direct appeal with there is reasonable explanation for counsel's conduct. Where defendant was charged with capital sexual battery of child under twelve, unlawful sexual activity with child between twelve and sixteen, and unlawful sexual activity with child aged sixteen or seventeen, and it was undisputed that defendant impregnated the victim, it is conceivable that a reasonable attorney might have abandoned any statute of limitations defense as to the lesser counts in order to avoid giving the jury only the choices of convicting defendant of capital sexual battery or acquittal. Mathis v. State, 41 Fla. L. Weekly D2551a (1st DCA 11/14/16)

https://edca.1dca.org/DCADocs/2014/2695/142695_DC05_11142016_084659_i.pdf


RESTITUTION
: Evidence was insufficient to support award of restitution for stolen television where there was no evidence as to original cost of television or amount of depreciation. Holt v. State, 41 Fla. L. Weekly D2550a (1st DCA 11/14/16)

https://edca.1dca.org/DCADocs/2015/4801/154801_DC13_11142016_092313_i.pdf

HABEAS CORPUS: Habeas corpus is not available to challenge inmate's assignment to close management. Coleman v. State, 41 Fla. L. Weekly D2549a (1st DCA 11/14/16)


DOCUMENTS: Court-appointed attorney cannot be required to provide all documents produced defendant's behalf at public expense - request is too broad. Bernal v. Weinstock, 41 Fla. L. Weekly D2548c (1st DCA 11/14/16)

https://edca.1dca.org/DCADocs/2016/0890/160890_DC05_11142016_092913_i.pdf

DEATH PENALTY-INTELLECTUAL DISABILITY: Supreme Court's 2014 decision disapproving of a bright-line cutoff of 70 for IQ scores, and requiring courts to consider multiple prongs interdependently in determining intellectual disability for purposes of eligibility to be executed, applies retroactively. Thompson v. State, 41 Fla. L. Weekly S510a (FLA 11/10/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-1752.pdf

JUDGES-DISCIPLINE: Public reprimand ordered for judge who sent ex parte proposed form order to public defender and later ranted against prosecutors who sought his recusal from all cases. Inquiry Concerning a Judge, 41 Fla. L. Weekly S505a (FLA 11/10/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-2148.pdf

APPEALS: Claim of ineffective assistance of counsel may be addressed on appeal only where ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue. Greene v. State, 41 Fla. L. Weekly D2548a (5th DCA 11/10/16)

http://www.5dca.org/Opinions/Opin2016/110716/5D16-1053.op.pdf

POST CONVICTION RELIEF: A claim that a plea is involuntary due to the influence of psychotropic medications is interpreted as a claim that counsel was ineffective for ensuring that the plea was knowingly and voluntarily made. McCrae v. State, 41 Fla. L. Weekly D2547b (5th DCA 11/10/16)

http://www.5dca.org/Opinions/Opin2016/110716/5D16-2444.op.pdf

SENTENCING-CONSIDERATIONS: The rule that prohibits consideration of the defendant's lack of responsibility or remorse applies in cases where the defendant entered a plea of not guilty, proceeded to trial, and continued to maintain his innocence at sentencing. The rule does not apply when the defendant waived his rights, entered a plea, and admitted his guilt. Corbitt v. State, 41 Fla. L. Weekly D2544a (5th DCA 11/10/16

http://www.5dca.org/Opinions/Opin2016/110716/5D16-1766.op.pdf

POST CONVICTION RELIEF: Although counsel was ineffective for misunderstanding the law on insanity, raising defense of insanity which negated claim of self-defense, and failing to preserve defendant's attorney-client privilege, trial court erred in granting motion for post conviction relief, as defendant failed to demonstrate prejudice. State v. Jackson, 41 Fla. L. Weekly D2542a (5th DCA 11/10/16)

http://www.5dca.org/Opinions/Opin2016/110716/5D15-1524.op.pdf

JOA-ROBBERY BY SUDDEN SNATCHING: Evidence was insufficient to establish robbery by sudden snatching under a principal theory where there was no evidence that defendant assisted in carrying out crime by saying or doing something that caused, encouraged, incited, or otherwise assisted the perpetrator in committing the crime; and state established only defendant's presence, questionable behavior, and his comments that did not amount to an admission. Dorsainville v. State, 41 Fla. L. Weekly D2531a (4th DCA 11/9/16)

https://edca.4dca.org/DCADocs/2015/3997/153997_DC13_11092016_092835_i.pdf


AGGRAVATED CHILD ABUSE
: Drunk guy who picks a fight and beats up a 16 year old at a house party, then posts it on Facebook cannot be convicted of aggravated child abuse. Wheeler v. State, 41 Fla. L. Weekly D2530b (4th DCA 11/9/16)

https://edca.4dca.org/DCADocs/2015/3693/153693_DC13_11092016_092639_i.pdf

POST CONNECTION RELIEF: Double jeopardy claim attacking convictions cannot be raised in rule 3.800(a) motion. German v. State, 41 Fla. L. Weekly D2528a (4th DCA 11/9/16)

https://edca.4dca.org/DCADocs/2016/1064/161064_DC08_11092016_093526_i.pdf

LIFE SENTENCE-HOMICIDE-JUVENILE: Florida's existing parole system does not provide the individualized sentencing consideration required by Miller v. Alabama. Michel v. State, 41 Fla. L. Weekly D2525a (4th DCA 11/9/16)

https://edca.4dca.org/DCADocs/2013/1123/131123_DC13_11092016_085657_i.pdf

CONSTRUCTIVE POSSESSION: JOA required where paraphernalia is found on the driver's side rear floorboard near the center console of the vehicle jointly occupied by Defendant and a passenger. Defendant admitting that she used cocaine the date does not establish her dominion control over the paraphernalia in the car. Luu v. State, 41 Fla. L. Weekly D2524a (4th DCA 11/9/16)

https://edca.4dca.org/DCADocs/2015/1683/151683_DC13_11092016_091942_i.pdf

POST CONVICTION RELIEF: Signed plea form, standing alone, was not sufficient to conclusively refute claim that counsel misadvised defendant regarding sentence he would receive. Beene v. State, 41 Fla. L. Weekly D2522d (4th DCA 11/9/16)

https://edca.4dca.org/DCADocs/2016/1750/161750_DC13_11092016_093638_i.pdf

REMOVAL OF SEXUAL OFFENDER DESIGNATION: Summary denial of prior request for removal of designation does not preclude considering more recent request. Trial court may, within its discretion, deny a petition for removal of a sexual offender designation because of defendant's criminal record, but must show that it exercised its discretion in so ruling. Wromas v. State, 41 Fla. L. Weekly D2521b (3rd DCA 11/9/16)

http://www.3dca.flcourts.org/Opinions/3D15-2848.pdf

SEXUAL OFFENDER REGISTRATION: Court may summarily deny as untimely a motion seeking relief from sex offender registration where the motion was filed 14 years after the Defendant became subject to registration. Vega v. State, 41 Fla. L. Weekly D2513b (3rd
DCA 11/9/16)

http://www.3dca.flcourts.org/Opinions/3D15-2916.pdf

POST CONVICTION RELIEF-AUTOPSY PHOTOGRAPHS: Court should compel production of autopsy photographs reliedupon at trial although never admitted into evidence. Statute limiting disclosure of autopsy photographs does not apply to criminal proceedings. Perreault v. State, 41 Fla. L. Weekly D2502a (2nd DCA 11/9/60)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2009,%202016/2D15-3817co.pdf

POST CONVICTION RELIEF-DOUBLE JEOPARDY: Counsel was ineffective for failing to move for a judgment of acquittal on one of two robbery charges since the taking was from a single register. Austin v. State, 41 Fla. L. Weekly D2501a (2nd DCA 11/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2009,%202016/2D15-5703.pdf

ATTORNEYS-MISCONDUCT: Court properly granted a new trial based on attorney's misconduct during the trial (presenting evidence which had been ruled inadmissible). Robinson v. Ward, 41 Fla. L. Weekly D2497a (2nd DCA 11/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2009,%202016/2D14-4799.pdf

LIFE SENTENCE-JUVENILE HOMICIDE: 35 years imprisonment for murder committed when defendant was a juvenile is not unconstitutional. Williams v. State, 41 Fla. L. Weekly D2495b (2nd DCA 11/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2009,%202016/2D14-1732rh.pdf

LIFE SENTENCE-JUVENILE-NONHOMICIDE: Fifty-five-year aggregate sentence for nonhomicide committed by defendant when he was a juvenile is not a de facto life sentence. Conflict certified. Roman v. State, 41 Fla. L. Weekly D2495a (2nd DCA 11/9/16)
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2009,%202016/2D09-5159rh.pdf

SEARCH AND SEIZURE-PASSENGER: Officer may detain a passenger during a valid vehicle stop. Conflict certified. Presley v. State, (1st DCA 11/9/16)

https://edca.1dca.org/DCADocs/2015/4891/154891_DC05_11092016_084457_i.pdf

HEARSAY-CHILD VICTIM: Court properly admits child hearsay. Court is not required to make findings balancing indicia of reliability with indicia of unreliability. Cabrera v. State, 41 Fla. L. Weekly D2481b (1st DCA 11/9/16)

https://edca.1dca.org/DCADocs/2015/1821/151821_DC05_11092016_082608_i.pdf

APPEALS: Rule adding five days to periods of time that commence upon service if service is made by mail does not apply to 30-day period within which notice of appeal must be filed because that period commences upon rendition of challenged order. Johnston v. State, 41 Fla. L. Weekly D2478b (1st DCA 11/9/16)

https://edca.1dca.org/DCADocs/2016/3543/163543_DA08_11092016_085959_i.pdf

MOTION TO TERMINATE PROBATION: Court has unbridled discretion to decide whether or not to terminate probation early. Johnston v. State, 41 Fla. L. Weekly D2478b (1st DCA 11/9/16)

https://edca.1dca.org/DCADocs/2016/3543/163543_DA08_11092016_085959_i.pdf

APPEALS: Notice of appeal must be filed within 30 days. Mailing the notice is not sufficient. Fehling v.Fehling, 41 Fla. L. Weekly D2474a (1st DCA 11/4/16)

https://edca.1dca.org/DCADocs/2016/4391/164391_DA08_11042016_103456_i.pdf

RECLASSIFICATION: Convictions for armed burglary and aggravated battery were improperly reclassified under firearm statute where defendant did not use or possess a firearm during the offenses, and only defendant's codefendant used a weapon during the offenses. Postaski v. State, 41 Fla. L. Weekly D2472a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-3384.pdf

RECLASSIFICATION: Armed burglary conviction could not be reclassified under firearm statute because use of a weapon or firearm was an essential element of armed burglary. Postaski v. State, 41 Fla. L. Weekly D2472a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-3384.pdf

SENTENCING-CONSIDERATIONS: Defendant is entitled to be resentenced by a different judge because trial court improperly considered lack of remorse when sentencing her. Postaski v. State, 41 Fla. L. Weekly D2472a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-3384.pdf

PROBATION-CONDITIONS: Special condition of probation requiring defendant to maintain a daily activity log was not statutorily authorized and thus was required to be orally pronounced at sentencing. Lavender State, v. 41 Fla. L. Weekly D2471a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-417.pdf


PROBATION-CONDITIONS
: Requiring defendant to submit to electronic monitoring does not need to be orally pronounced, but requiring Defendant to pay for that must be orally pronounced. Lavender State, v. 41 Fla. L. Weekly D2471a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-417.pdf


PROBATION-SPECIAL CONDITIONS
: Striking of special conditions on appeal is not required because defendant was afforded procedural due process through Rule 3.800(b) procedure where he made only procedural objections, without any substantive objections to the conditions. Lavender State, v. 41 Fla. L. Weekly D2471a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-417.pdf

SEARCH AND SEIZURE-BICYCLE
: Court properly suppressed evidence based on stop of Defendant who was riding his bicycle at night without proper lighting but where officer observed no criminal behavior, saw no bulges on his person and did not smell marijuana until after seizing his bookbag. State v. Jones, 41 Fla. L. Weekly D2470a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-4623.pdf

SEARCH AND SEIZURE-REASONABLE SUSPICION: Officer had no basis to handcuff defendant and search his bookbag without reasonable suspicion that defendant was armed. Officer unlawfully escalated lawful traffic stop for no lights on bicycle by seizing Defendant's book bag and handcuffing him. Reaching into bookbag for identification and turning away from officer does not justify seizing the bookbag and handcuffing the Defendant. State v. Jones, 41 Fla. L. Weekly D2470a (2nd DCA 11/4/16)
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-4623.pdf

ADJUDICATION WITHHELD: Court may not withhold of adjudication for a second degree offense in absence of request in writing from state to withhold of adjudication and without competent, substantial evidence to support its decision. In order to withhold adjudication on a second-degree felony where state has not requested a withhold in writing, trial court must make written findings that withholding of adjudication is reasonably justified based on statutory circumstances or factors. Platt v. State, 41 Fla. L. Weekly D2467b (5th DCA 11/4/16)

http://www.5dca.org/Opinions/Opin2016/103116/5D15-2968.op.pdf

ADJUDICATION WITHHELD: Withhold of adjudication is not available for bomb threat by statute. Platt v. State, 41 Fla. L. Weekly D2467b (5th DCA 11/4/16)

http://www.5dca.org/Opinions/Opin2016/103116/5D15-2968.op.pdf

SENTENCING-SOPHISTICATION: A crime lacks sophistication if the acts constituting the crime are "artless, simple and not refined." A crime is not unsophisticated where it involves several distinctive and deliberate steps. Planned bank robbery by bomb threat is not unsophisticated. Platt v. State, 41 Fla. L. Weekly D2467b (5th DCA 11/4/16)

http://www.5dca.org/Opinions/Opin2016/103116/5D15-2968.op.pdf

APPEAL: Court has no jurisdiction to rule on Defendant's motion to correct jail credit where he has already filed a Notice of Appeal. Williams v. State, 41 Fla. L. Weekly D2467a (5th DCA 11/4/16)

http://www.5dca.org/Opinions/Opin2016/103116/5D15-3225.op.pdf

COMPETENCY OF JUVENILE: Court may not place juvenile and residential mental health treatment without competent substantial evidence to support so placing him. C.O. v. State, 41 Fla. L. Weekly D2464b (5th DCA 11/4/16)

http://www.5dca.org/Opinions/Opin2016/103116/5D16-2844.op.pdf


POST CONVICTION RELIEF: Court may not summarily deny claim that counsel was ineffective for incorrectly advising him that he is not subject to sex offender registration requirements/Jimmy Ryce Civil Commitment. Civil commitment is not a collateral consequence of entering a plea. Faiella v. State, 41 Fla. L. Weekly D2464a (5th DCA 11/4/15)

http://www.5dca.org/Opinions/Opin2016/103116/5D16-2446.op.pdf

CREDIT FOR TIME SERVED: Court erred in awarding jail credit for time served sentence that is run concurrently with another sentence. Bowman v. State, 41 Fla. L. Weekly D2473a (2nd DCA 11/4/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-3639.pdf

SENTENCING-10-20-LIFE: Court is not required to impose mandatory minimum '

terms under 10-20-Life statute consecutively. Court is required to impose sentences for 10-20-Life offenses consecutive to non-10-20-Life offenses. Thomas v. State, 41 Fla. L. Weekly D2462a (1st DCA 11/2/16)

https://edca.1dca.org/DCADocs/2015/4713/154713_DC08_11022016_092941_i.pdf

LAW OF THE CASE: After Order Denying Motion to Suppress is reversed, Court may again suppress the evidence based on issue not previously raised (reasonable mistake of law by officers). Only questions of law actually considered and decided during a previous proceeding become law of the case. State v. Thomas, 41 Fla. L. Weekly D2460a (1st DCA 11/2/16)

https://edca.1dca.org/DCADocs/2015/4718/154718_DA16_11022016_093113_i.pdf

APPEALS: Order titled "Order Declaring Mistrial" is actually an order granting a new trial and therefore appealable. Court has wide discretion in granting or denying motion for new trial.
State v. Smith, 41 Fla. L. Weekly D2456c (3rd DCA 11/2/16)

http://www.3dca.flcourts.org/Opinions/3D15-1849.rh.pdf


VERDICT FORM: Courts should provide an interrogatory separate from the verdict form for the core or substantive offenses for the jury to determine the existence of circumstances that can result in mandatory minimum sentences, sentence enhancements, or offense reclassifications. State v. Smith, 41 Fla. L. Weekly D2456c (3rd DCA 11/2/16)

http://www.3dca.flcourts.org/Opinions/3D15-1849.rh.pdf

PRISON RELEASEE RE-OFFENDER: Court may impose a prison releasee re-offender sentence without jury findings that Defendant qualified. Alleyne does not apply. State v. Wilson, 41 Fla. L. Weekly D2451b (4th DCA 11/2/16)

https://edca.4dca.org/DCADocs/2014/1316/141316_DC08_11022016_085846_i.pdf


PROBATION REVOCATION: Defendant did not violate her probation by failing to successfully complete rehabilitation treatment program where the uncontroverted evidence established that defendant attempted to attend her scheduled sessions but was turned away and discharged from her treatment program due to her childcare issues. Charles v. State, 41 Fla. L. Weekly D2447a (4th DCA 11/2/16)

https://edca.4dca.org/DCADocs/2015/3094/153094_DC13_11022016_092442_i.pdf

PROBATION REVOCATION: Defendant did not violate probation for changing her residence when she was abruptly evicted for nonpayment of rent. Charles v. State, 41 Fla. L. Weekly D2447a (4th DCA 11/2/16)

https://edca.4dca.org/DCADocs/2015/3094/153094_DC13_11022016_092442_i.pdf

OCTOBER 2016

RED LIGHT CAMERAS: Municipalities may contract with third-party vendors to electronically generate and mail notice of violation picked up by red light cameras. Conflict certified. City of Oldsmar v. Trinh, 41 Fla. L. Weekly D2435a (2nd DCA 10/28/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2028,%202016/2D15-4898.pdf

<

STATEMENTS OF DEFENDANT-CUSTODIAL INTERROGATION: Manner in which defendant was summoned for questioning; purpose, place, and manner of interrogation; extent to which detectives confronted defendant with evidence of his guilt; failure to inform defendant that he was free to leave at beginning of second interview; and stated reasons for failing to Mirandize defendant lead to conclusion that second interview was custodial in nature for purposes of Miranda. The extent to which the detectives confronted Defendant with evidence of his guilt established that the Defendant was subjected to custodial interrogation. Bell v. State, 41 Fla. L. Weekly D2426c (2nd DCA 10/28/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2028,%202016/2D15-99.pdf

STATEMENTS OF DEFENDANT-CUSTODIAL INTERROGATION: Before a suppressed statement can be used for impeachment purposes, the statement must be shown to have been made voluntarily. Bell v. State, 41 Fla. L. Weekly D2426c (2nd DCA 10/28/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2028,%202016/2D15-99.pdf

QUOTATION
: "The excuse offered for failure to Mirandize Mr. Bell by Detective Schnable and Detective McConchie that they lacked enough evidence to arrest Mr. Bell is unavailing for multiple reasons. First, this claim is false in fact." Bell v. State, 41 Fla. L. Weekly D2426c (2nd DCA 10/28/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2028,%202016/2D15-99.pdf

QUOTATION: The idea that an average person who is being interviewed by the police at a station house can feel 'free' to terminate the interview and leave at any time has been aptly described as a 'new legal fiction.'" Bell v. State, 41 Fla. L. Weekly D2426c (2nd DCA 10/28/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2028,%202016/2D15-99.pdf

10-20-LIFE: Error to impose life sentence with twenty-five year minimum term for charge reclassified to first-degree felony without any additional statutory authority for the life sentence. Pugh v. State, 41 Fla. L. Weekly D2426a (1st DCA 10/28/16)

https://edca.1dca.org/DCADocs/2015/1155/151155_DC08_10282016_100850_i.pdf

SENTENCING-CONSIDERATIONS: Court may not consider the truthfulness of the defendant's testimony when imposing sentence. Court should not call the Defendant's version of events "pile of dung." Chatman v. State, 41 Fla. L. Weekly D2424e (1st DCA 10/28/16)

https://edca.1dca.org/DCADocs/2015/4671/154671_DC08_10282016_101043_i.pdf

JUDGMENT OF ACQUITTAL-SEXUAL BATTERY: Court must grant Judgment of Acquittal for lewd and lascivious conduct over 12 but under 16 where evidence is clear that the Defendant did not touch the victim's breasts after she turned 12. Figueroa v. State, 41 Fla. L. Weekly D2423a (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D14-4515.op.pdf

SECOND DEGREE MURDER: Where defendant argued at trial that he acted in self-defense and that his use of deadly force was necessary to prevent his own imminent death or great bodily harm, use, without objection, of flawed manslaughter by intentional act jury instruction did not constitute fundamental error. Dickerson v. State, 41 Fla. L. Weekly D2422c (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D16-1691.op.pdf

QUOTATION: "Inconsistent decisions in separate, unrelated cases do not automatically constitute disparate treatment." Dickerson v. State, 41 Fla. L. Weekly D2422c (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D16-1691.op.pdf

DOUBLE JEOPARDY: Separate convictions for second-degree murder and attempted felony murder violates double jeopardy. Brown v. State, 41 Fla. L. Weekly D2421b (5th DCA 10/
28/16)

http://5dca.org/Opinions/Opin2016/102416/5D15-3472.op.pdf

JURORS-PEREMPTORY CHALLENGES: Defendant failed to preserve the issue of whether the Court erred in failing to make separate finding us when the state provided genuine race-neutral reasons work of its exercise of peremptory challenges. Brown v. State, 41 Fla. L. Weekly D2421b (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D15-3472.op.pdf



HEARSAY: Screenshot of the loan transfer history is not admissible as a business record or the witness demonstrated a lack of knowledge about the creation, accuracy and trustworthy of the document. Miller v. Bank of America, 41 Fla. L. Weekly D2421a (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D15-780.op.pdf

DOUBLE JEOPARDY: Domestic battery by strangulation and battery on a person 55 years of age or older violates the prohibition against double jeopardy. Whitfield v. State, 41 Fla. L. Weekly D2419c (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D16-1262.op.pdf

DOWNWARD DEPARTURE: Court may not impose a downward departure based on a plea offer that had been revoked. State v. Bowser, 41 Fla. L. Weekly D2419a (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D15-4212.op.pdf

POST CONVICTION RELIEF: Failure to call co-defendant as a witness may be ineffective assistance of counsel. Black v. State, 41 Fla. L. Weekly D2418b (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D16-1952.op.pdf

POST CONVICTION RELIEF: Court must not summarily deny claim that counsel was ineffective for misadvising defendant that designation as a sexual offender, rather than as a sexual predator, would preclude defendant's photograph from being posted on the Florida Department of Law Enforcement's website, and that defendant would not have entered plea of no contest had he been properly advised. Peng v. State, 41 Fla. L. Weekly D2418a (5th DCA 10/28/16)

http://5dca.org/Opinions/Opin2016/102416/5D16-1480.op.pdf

NEWLY DISCOVERED EVIDENCE: The confession of the daughter/granddaughter of the murder victims and her DNA is newly discovered evidence requiring a new trial. Aguirre-Jarquin v. State, 41 Fla. L. Weekly S481a (FLA 10/27/16)

http://www.floridasupremecourt.org/decisions/2016/sc13-2092.pdf

QUOTATION: "[A]dding the newly discovered evidence to the picture changes the focus entirely: No longer is Aguirre the creepy figure who appears over Samantha's bed in the middle of the night; he is now the scapegoat for her crimes." Aguirre-Jarquin v. State, 41 Fla. L. Weekly S481a (FLA 10/27/16)

http://www.floridasupremecourt.org/decisions/2016/sc13-2092.pdf


JURY INSTRUCTIONS: Standard jury instructions tweaked. In Re: Standard Jury Instructions, 41 Fla. L. Weekly S480a (FLA 10/27/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-782.pdf

MANDAMUS: Indigent prisoner's petition for writ of mandamus seeking to compel Department of Corrections to recommend commutation of his life sentence to a term of years was not a collateral criminal proceeding, and was therefore subject to a lien on prisoner's inmate account for costs and fees. Ruggirello v. Jones, 41 Fla. L. Weekly D2417a (1st DCA 10/26/16)

https://edca.1dca.org/DCADocs/2016/1269/161269_1284_10262016_100123_i.pdf

SENTENCING: Although court designated defendant as habitual felony offender, habitual violent felony offender, and violent career criminal, court did not exercise option of imposing mandatory minimum term under either HVFO or VCC designation; thus, the sentence is lawful because only one of the recidivists statutes was applied. Durkee v. State, 41 Fla. L. Weekly D2404a (4th DCA 10/26/16)

https://edca.4dca.org/DCADocs/2016/1542/161542_DC05_10262016_090612_i.pdf


JUDGMENT OF ACQUITTAL-LSOA: Defendant is entitled to judgment of acquittal on charge of leading scene of crash where State failed to prove that the vehicle damaged in the crash was attended at the time of the accident. Trainer v. State, 41 Fla. L. Weekly D2403a (4th DCA 10/26/16)

https://edca.4dca.org/DCADocs/2015/2063/152063_DC08_10262016_084136_i.pdf

APPEAL-JURISDICTION: Notice of appeal divested the trial court of jurisdiction to rule on Defendant's pro se motion to withdraw plea filed after the appeal. Walker v. State, 41 Fla. L. Weekly D2402a (4th DCA 10/26/16)

https://edca.4dca.org/DCADocs/2016/0434/160434_DC05_10262016_090454_i.pdf

SENTENCING: Court's decision to impose the maximum sentence not shown to be influenced by the State's request that the sentence send a message. It is not impermissible for a sentence to be used as a means of general deterrence. Good discussion of sentencing theory. See dissent. Charles v State, 41 Fla. L. Weekly D2397b ( 4th DCA 10/26/16)

https://edca.4dca.org/DCADocs/2011/3314/113314_DC05_10262016_083937_i.pdf

QUOTATION (Dissent): "Sentencing law has recently undergone a sea change and many sentencing shibboleths have run aground on the shoals of the Constitution." Charles v State, 41 Fla. L. Weekly D2397b ( 4th DCA 10/26/16)

https://edca.4dca.org/DCADocs/2011/3314/113314_DC05_10262016_083937_i.pdf

QUOTATION (Dissent): "The question 'Why?' states a primitive and insistent human need. The small child, punished or deprived, demands an explanation. The existence of a rationale may not make the hurt pleasant, or even just. But the absence, or refusal, of reasons is a hallmark of injustice. . . . The despot is not bound by rules. He need not account for what he does. Criminal sentences, as our judges commonly pronounce them, are in these vital aspects tyrannical." Charles v State, 41 Fla. L. Weekly D2397b ( 4th DCA 10/26/16), quoting Marvin E. Frankel, CRIMINAL SENTENCES: LAW WITHOUT ORDER 39 (1973)

https://edca.4dca.org/DCADocs/2011/3314/113314_DC05_10262016_083937_i.pdf

SENTENCING-YOUTHFUL OFFENDER: Court has discretion to impose youthful offender sentence for first degree felonies. Stewart v. State, 41 Fla. L. Weekly D2396b (1st DCA 10/26/16)

https://edca.1dca.org/DCADocs/2015/3429/153429_DC13_10262016_081714_i.pdf

DOUBLE JEOPARDY: Separate convictions for use a computer to solicit child to engage in unlawful sexual conduct and traveling to meet a person believed to be a child violate double jeopardy where the offenses are based on the same conduct. Elsberry v. State, 41 Fla. L. Weekly D2396a (1st DCA 10/26/16)

https://edca.1dca.org/DCADocs/2012/6093/126093_DC13_10262016_081111_i.pdf

PLEA-WITHDRAWAL: Where defendant mistakenly believe that the sentences in two cases would run concurrently, Court remedied the error by dismissing one case and vacating that sentence, and the resulting sentence was in compliance with the plea agreement, there is no abuse of discretion in denying motion to withdraw plea. Robinson v. State, 41 Fla. L. Weekly D2395c (1st DCA 10/26/16)

https://edca.1dca.org/DCADocs/2016/0497/160497_DC05_10262016_082401_i.pdf

MANDATORY MINIMUM: Court may not impose a mandatory minimum sentence for possession of a firearm or the firearm is not actually held by the Defendant. Boyce v. State, 41 Fla. L. Weekly D2395a (1st DCA 10/26/16)

https://edca.1dca.org/DCADocs/2016/0832/160832_DC08_10262016_082144_i.pdf

JOA-NEGLECT OF CHILD: Court must grant judgment of acquittal where Defendant left a sick child with a friend with directions to call 911 if the condition worsened. No evidence existed that the parents knew how serious the child's medical condition was. Ristau v. State, 41 Fla. L. Weekly D2391a (2nd DCA 10/26/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2026,%202016/2D15-3237.pdf

PLEA-WAIVER: Trial court's failure to comply with requirements of rule 8.165(b)(2) before accepting juvenile's uncounseled pleas in separate cases constituted fundamental error -- Trial court erred in accepting uncounseled plea in third case immediately after juvenile asserted his right to counsel, and further erred by denying juvenile's motion to withdraw plea in that case. D.A.C. v. State, 41 Fla. L. Weekly D2389a (2nd DCA 10/26/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/October/October%2026,%202016/2D15-1965.pdf

SENTENCING-FIREARM-CONCURRENT: Court has discretion to impose 10-20-life sentences concurrently or consecutively. Elsperman v. State, 41 Fla. L. Weekly D2387b (1st DCA 10/25/16)

https://edca.1dca.org/DCADocs/2016/2028/162028_DC03_10252016_091428_i.pdf

DOUBLE JEOPARDY: Separate convictions for use a computer to solicit a child and traveling to meet child violates double jeopardy. 17 hour gap between the communication and the meeting does not render the charges separate and distinct acts. Hughes v. State, 41 Fla. L. Weekly D2385a (5th DCA 10/21/16)

SEARCH AND SEIZURE-KNOCK AND ANNOUNCE: Justified belief that people are attempting to destroy evidence in a house excuses failure to comply with the knock and announce statute. State v. Taylor, 41 Fla. L. Weekly D2382b (5th DCA 10/21/16)

SILENCE OF DEFENDANT: Cross-examination of defendant by prosecutor regarding inconsistencies between the defendant's trial testimony and statements defendant voluntarily made to police after waiving his Miranda rights did not violate privilege against self-incrimination. Miller v. State, 41 Fla. L. Weekly D2379a (1st DCA 10/21/16)

POST CONVICTION RELIEF: Error to deny rule 3.850 motion after evidentiary hearing without making findings of fact supporting that decision. Marcus v. State, 41 Fla. L. Weekly D2376a (1st DCA 10/21/16)

DEATH PENALTY-INTELLECTUAL DISABILITY: Court erred by summarily denying motion to vacate death sentence him based on intellectual disability or the standard for an intellectual disability had changed the time of his previous hearing. Walls v. State, 41 Fla. L. Weekly S466a (10/20/16)

NEW TRIAL: Court properly granted new trial based on multiple problems, including false testimony failure to correct false testimony and conflict of interest by the defendant's lawyer affecting his performance at trial. State v. Dougan, 41 Fla. L. Weekly (FLA 10/20/60)

ATTORNEYS-CONFLICT OF INTEREST: Conflict of interest to represent co-defendants on appeal while representing another at trial. State v. Dougan, 41 Fla. L. Weekly (FLA 10/20/60)


ATTORNEYS-CONFLICT OF INTEREST
: Conflict of interest to represent Defendant in murder case while having an affair with his hostile sister behind his back. State v. Dougan, 41 Fla. L. Weekly (FLA 10/20/60)

GIGLIO: Giglio violation for State to allow flipping co-Defendant to testify that he had a deal for a life sentence, then for State to recommend (and get) a fifteen year sentence for the witness. Brady and Giglio distinguished. State v. Dougan, 41 Fla. L. Weekly (FLA 10/20/60)

QUOTATION: "Justice is at times an elusive word." State v. Dougan, 41 Fla. L. Weekly (FLA 10/20/60)

LIFE SENTENCE FOR JUVENILE-HOMICIDE: Juvenile defendant sentenced after Horsley was afforded sufficient due process by court considering relevant standards, and recognizing that the defendant is entitled to subsequent judicial review. Ejak v. State, 41 Fla. L. Weekly D2371a (2nd DCA 10/19/16)

HABEUS CORPUS: Habeas corpus petition raising claims that could have been raised on direct appeal or on motion for postconviction relief is unauthorized. Maynard v. Sevarson, 41 Fla. L. Weekly D2366a (4th DCA 10/19/16)

CONTEMPT: Expert witness cannot be found in contempt for filing an erroneous affidavit because 1) It does not violate the court order, 2) only intentional, as opposed to reckless, acts may be punished by contempt, and 3) the court does not have power to sanction a non-party expert witness in a criminal case. Fore v. State, 41 Fla. L. Weekly D2365a (4th DCA 10/19/16)

SENTENCING-DOWNWARD DEPARTURE: Court fundamentally erred by refusing, as a matter of policy, to consider mental health as a possible basis for downward departure. Fundamental error occurs when a court refused to consider a legislatively authorized sentencing option is a matter of policy. Fraser v. State, (4th DCA 10/19/16)

DEATH PENALTY: Verdict in death penalty case must be unanimous. Statute allowing less than unanimous verdicts is unconstitutional. Perry v. State, 41 Fla. L. Weekly S449a (FLA 10/14/16)

DEATH PENALTY: All critical findings necessary before trial court may consider imposing sentence of death must be unanimously found by jury. These findings include the existence of each aggravating factor that has been proven beyond a reasonable doubt, the finding that the aggravating factors are sufficient, and the finding that the aggravating factors outweigh the mitigating circumstances. Juror unanimity in any recommended verdict resulting in a death sentence is required under the Eighth Amendment. Hurst v. State, 41 Fla. L. Weekly S433a (FLA 10/14/16)

QUOTATION
: The right to a trial by jury is not a right to trial by individual jurors. (Concurring opinion, Pariente) Hurst v. State, 41 Fla. L. Weekly S433a (FLA 10/14/16)

NEWLY DISCOVERED EVIDENCE: Evidentiary hearing normally required to determine whether the evidence would likely produce an acquittal on retrial. Floyd v. State, 41 Fla. L. Weekly D2356b (2nd DCA 10/14/16)

CLEMENCY: Any applicant for executive clemency is entitled to certified copies of information or indictment against him as well as his judgment and sentence, and documents are be furnished free of charge by clerk of court. Falana v. State, 41 Fla. L. Weekly D2356a (2nd DCA 10/14/16)

RESISTING OFFICER WITHOUT VIOLENCE: Defendant who flees into a house and refuses to come out when pursued by an officer who has no evidence of the Defendant's relation to an alleged crime cannot be convicted of resisting an officer without violence a particularly where there is no evidence of a high crime neighborhood, nor did the officer order him to stop. Refusing to come out of an apartment is not the equivalent of fleeing. McClain v. State, 41 Fla. L. Weekly D2355a (2nd DCA 10/14/16)

NEWLY DISCOVERED EVIDENCE: Affidavits attached to amended rule 3.850 motion were not legally insufficient where each affidavit stated that it was made based on affiant's own personal knowledge and detailed the facts known to affiant that would be newly discovered, and affidavits each contained an attestation. Wilson v. State, 41 Fla. L. Weekly D2354a (2nd DCA 10/14/16)

SEARCH AND SEIZURE-RESIDENCE-PLAIN VIEW: Paraphernalia discovered in plain view by firefighters at a house fire who informed police officer is lawfully seized paraphernalia. Guns and cash found in a warrantless follow up search should have been suppressed. Evidence seized without a warrant is not inevitably discovered on ground that a warrant could have been obtained. Young v. State, 41 Fla. L. Weekly D2352a (2nd DCA 10/14/16)

SEARCH AND SEIZURE-TRAFFIC STOP: Where officer initiated a traffic stop to check on welfare of unattended dogs a car, officer could legally make contact with defendant for purpose of explaining reason for stop, even if purpose of stop had been completed. State v. Godard, 41 Fla. L. Weekly D2351a (2nd DCA 10/1/16)

MOTION FOR CREDIT FOR TIME SERVED: Motion which not contain oath was legally insufficient. Mays v. State, 41 Fla. L. Weekly D2341d (5th DCA 10/14/16)

HABEAS CORPUS: Petition challenging the validity of conviction was properly filed in the Circuit Court of the county that rendered the judgment of conviction, not where the defendant is incarcerated. Whitfield v. DOC, 41 Fla. L. Weekly D2340a (5th DCA 10/14/16)

CONTEMPT: Juvenile cannot be found in direct criminal contempt for using his cell phone to photograph court proceedings were evidence was insufficient to prove that he was actually taking pictures in the courtroom. M.J. v. State, 41 Fla. L. Weekly D2338a (5th DCA 10/14/16)

WITHDRAWAL OF PLEA-COUNSEL: Court must appoint conflict-free counsel to represent defendant motion to withdraw plea where the motion alleged that counsel was ineffective for not requesting a competency evaluation. Bryant v. State, 41 Fla. L. Weekly D2336b (5th DCA 10/14/16)

RACKETEERING-ATTORNEY-MENS REA: Attorney cannot be convicted of racketeering for rendering advice that Internet cafés are legal where he was not allowed to present evidence as to why such advice was made in good faith. Racketeering requires mens rea. State erroneously was permitted to submit evidence that Internet cafés were illegal while the defendant was barred from presenting evidence as to why he believed the contrary. Mathis v. State, 41 Fla. L. Weekly D2333a (5th DCA 10/14/16)

PROBATION REVOCATION: Mobley explained. If Defendant absconded from supervision, probation term is tolled until he is arrested. Mere failure to report is not absconding. Williams v. State, Fla. L. Weekly D2324a (4th DCA 10/13/16)

POSSESSION: Defendant/driver who slowed down the car as the codefendant threw the cocaine out the window may be found to have exercised dominion and control over the cocaine. Court erred in granting judgment of acquittal. State v. Johnson, 41 Fla. L. Weekly D2323a (4th DCA 10/13/16)

POST CONVICTION RELIEF
: 3.800 does not prohibit the filing of successive motions, but the doctrine of collateral estoppel precludes successive review of a specific issue that already has been decided on the merits. Because the Defendant's Double Jeopardy issue was not previously raised, it must be addressed by the court on its merits. Gonzalez v. State, 41 Fla. L. Weekly D2312 (3rd DCA 10/13/16)

EVIDENCE: Officer's testimony that he had ruled out the suspect whom the Defendant asserted is the guilty party is admissible. Rolle v. State, 41 Fla. L. Weekly D2304c (3rd DCA 10/13/16)

SEARCH AND SEIZURE: Court properly suppressed contraband found in search incident to arrest, despite the intervening circumstance, after unlawful Terry stop by deputy based on defendant's giving a false name, of the finding of an outstanding arrest warrant. Giving a false name to law enforcement is not a crime unless it occurs during a lawful detention or arrest. If the purpose of an illegal stop or seizure is to discover a warrant -- in essence, to discover an intervening circumstance -- the fact that a warrant is actually discovered cannot validate admission of the evidence that is the fruit of the illegality. Frierson distinguished. Dickey v. State, 41 Fla. L. Weekly D2301b (1st DCA 10/13/16)

VICTIM IMPACT EVIDENCE: The Eighth Amendment bars victim impact evidence in the form of characterization and opinions about the crime, the defendant, and the appropriate sentence. Bosse v. Oklahoma, (US S.Ct. 15-9173 10/11/16)

HABEAS CORPUS
: Habeas petition challenging the validity of the conviction must be filed in the County of the conviction not the location of the prison where the Defendant is located. Nelson v. State, 41 Fla. L. Weekly D2341a (5th DCA 10/10/16)

MANDATORY MINIMUM: Consecutive mandatory minimum terms under 10-20-Life are permissible but not mandatory. Britt v. State, 41 Fla. L. Weekly D2296i (1st DCA 10/7/16)

LIFE-JUVENILE: Sentence of life imprisonment for second-degree murder committed when Defendant was a juvenile is unconstitutional. Wade v. State, 41 Fla. L. Weekly D2295a (1st DCA 10/7/16)

PROBATION REVOCATION-SEX OFFENDER TREATMENT: A refusal to admit sexual misconduct in sex offender treatment can constitute a violation of probation. Staples v. State, 41 Fla. L. Weekly S422b (FLA 10/6/16)

SCORESHEET-PENETRATION: Points for penetration may not be assessed where Defendant pled no contest and did not stipulate to penetration. Laches does not apply. Apprendi does. Blair v. State, 41 Fla. L. Weekly D2288a (4th DCA 10/5/16)

CONTINUANCE: Defendant is entitled to continuance when he wants to hires new attorney for sentencing hearing, who is available, absent any inquiry into reasons not to continue the case. Valcercel v. State, 41 Fla. L. Weekly D2287a (4th DCA 10/5/16)

STATEMENTS OF DEFENDANT: Admissions are not suppressible where Defendant had been Mirandized for a voluntary statement, then continued speaking after being arrested. Lowery v. State, 41 Fla. L. Weekly D2286b (4th DCA 10/5/16)


RESTITUTION: Defendant who is found guilty of burglary acquitted of petit theft cannot be ordered to pay restitution for missing jewelry. Perez v. State, 41 Fla. L. Weekly D2285b (4th DCA 10/5/16)

DISMISSAL-INFORMATION: Court erred in dismissing information charging delivery of oxycodone where State alleged facts sufficient to establish a prima facie case, even though Defendant alleged other facts that could defeat such a case. State v. Paez, 41 Fla. L. Weekly D2285a (4th DCA 10/5/16)

JUROR MISCONDUCT: Plaintiff is not entitled to a new trial on ground that the juror engaged in misconduct by posting comments and social media where the tweets were not prejudicial to Plaintiff. Murphy v. Roth, 41 Fla. L. Weekly D2282a (4th DCA 10/5/16)

PLEA-WITHDRAWAL
: Defendant cannot withdraw plea because the amount of jail credit was less than the amount stipulated were the issue is not preserved for appeal. Arroyo v. State, 41 Fla. L. Weekly D2259a (1st DCA 10/4/16)

SEARCH AND SEIZURE-EXCLUSIONARY RULE: Exclusionary rule does not require suppression of evidence that the defendant committed battery on a law enforcement officer regardless of whether the officers were lawfully on the Defendant’s property. Suppression of evidence of crimes committed against officers would not serve the deterrence purposes of the exclusionary rule. Tims v. State, 41 Fla. L. Weekly D2257b (1st DCA 10/4/16)

GRAND THEFT-JOA: Judgment of Acquittal should be granted where evidence shows that Defendant went dumpster diving for fencing, and the only evidence of value was that of replacement value with new fences. Chambers v. State, 41 Fla. L. Weekly D2255a (1st DCA 10/4/16)

CROSS-EXAMINATION: Where new information was introduced on redirect examination, the Defendant’s right to confront witness allows him to recross the witness. Chambers v. State, 41 Fla. L. Weekly D2255a (1st DCA 10/4/16)


PROBATION REVOCATION: Bracelet gone alerts received by GPS monitoring company cannot be basis for VOP without adequate predicate for admission of GPS monitoring records. Channell v. State, 41 Fla. L. Weekly D2248a (1st DCA 10/4/16)

SEPTEMBER 2016

POST CONVICTION RELIEF-JURISDICTION: Court lacked jurisdiction to rule on postconviction motions while direct appeal was pending. Brewster v. State, 41 Fla. L. Weekly D2245a (2nd DCA 9/30/16)

WRITTEN WAIVER OF APPEARANCE
: Trial court's refusal to accept defendant's written waiver of appearance at all pretrial conferences based upon policy requiring that all defendants attend all disposition hearings and pretrial conferences and prohibiting attorney-filed waivers of a defendant's appearance was in direct contravention of procedural rules which permit defendant to waive appearance at any pretrial conference. Jimenez v. State, 41 Fla. L. Weekly D2244d (2nd DCA 8/30/16)

LIFE IMPRISONMENT-JUVENILE-HOMICIDE: Because Miller applies retroactively, Defendant is entitled to a resentencing hearing pursuant to the new statutory scheme. Bellamy v. State, 41 Fla. L. Weekly D2244a (5th DCA 9/30/16)


PROBATION REVOCATION: Court cannot find that the Defendant violated probation by committing a new criminal offense based solely on proof that he had been arrested. Evins v. State, 41 Fla. L. Weekly D2243d (5th DCA 9/30/16)

POST CONVICTION RELIEF: Court erred by summarily denying motion that the mandatory minimum sentence for actual possession of a firearm the was illegal because information did not so allege. Stevenson v. State, 41 Fla. L. Weekly D2243c (5th DCA 9/30/16)


POST CONVICTION RELIEF
: Motion that counsel was ineffective for failing to object to leg shackles was deficient where there is no allegation that jurors were exposed to the defendant's shackles. Hannigan v. State, 41 Fla. L. Weekly D2243b (5th DCA 9/30/16)

MANSLAUGHTER-JURY INSTRUCTIONS: Erroneous intentional act manslaughter instruction as a lesser included to second degree murder is fundamental error. Defendant is entitled to habeas corpus relief. Page v. State, 41 Fla. L. Weekly D2241c (5th DCA 9/30/16)

POST CONVICTION RELIEF
: Court erred by summarily denying motion for postconviction relief based on counsel misadvising Defendant that he could appeal a non-dispositive motion to suppress. Saviory v. State, 41 Fla. L. Weekly D2240b (5th DCA 9/30/16)

COUNSEL
: Court erred in resentencing defendant after granting a motion to correct an illegal sentence without appointing or renewing an offer of counsel to the defendant. Oliver v. State, 41 Fla. L. Weekly D2240a (5th DCA 9/30/16)

POST CONVICTION RELIEF: Court lacked jurisdiction to rule on motion to correct an illegal sentence during the pendency of a direct appeal. Smart v. State, 41 Fla. L. Weekly D2239c (5th DCA 9/30/16)

AMENDMENTS-APPELLATE RULES: Rule 3.781 for sentencing juveniles facing life sentences is modified. In Re: Amendments to Rules of Appellate Procedure, 41 Fla. L. Weekly S413a (FLA 9/29/16)

SEVERANCE-DUAL JURIES
: Where co-defendant's are tried jointly with separate jurors, Court erred by allowing Appellant's jury to hear the cross-examination of the flipping third co-defendant conducted by the co-defendant's counsel. Heinly v. State, 41 Fla. L. Weekly D2235a (4th DCA 9/28/16)

CHILD HEARSAY: Court failed to make factual findings before admitting child hearsay.
Platt v. State, 41 Fla. L. Weekly D2234a (4th DCA 9/28/16)


DOUBLE JEOPARDY: Separate convictions for grand theft and dealing in stolen property were impermissible where offenses stemmed from same course of conduct, notwithstanding that there was four-day separation between theft and dealing nor fact that only two of three pieces of stolen property were pawned. Sykes v. State, 41 Fla. L. Weekly D2230b (2nd DCA 9/28/16)

POST CONVICTION RELIEF: Appellate counsel was ineffective for not filing a motion to correct sentencing error based on Defendant not qualifying for Violent Career Criminal for criminal mischief. Simmons v. State, 41 Fla. L. Weekly D2230a (2nd DCA 9/28/16)

FARETTA: Inquiry into defendant's waiver of counsel at VOP hearing was inadequate where trial court focused on defendant's legal acumen and not whether waiver was knowing and voluntary. The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. Wilson v. State, 41 Fla. L. Weekly D2229b (2nd DCA 9/28/16)


THREATS TO KILL: Twitter posts that juvenile was going to shoot up his school do not support conviction where not directed to specific people. J.A.W. v. State, 41 Fla. L. Weekly D2227a (2nd DCA 9/28/16)

CONFESSION: Child interrogated for 2.5 hours, threatened with "real jail" where he would be "some big man's bitch." "The employment of a good-cop/bad-cop strategy. . . did not render his waiver anything other than a free and deliberate choice." Failure to contact parent does not render confession involuntary. Order granting motion to suppress is reversed. State v. Herrera, 41 Fla. L. Weekly D2215c (2nd DCA 9/28/16)

POST CONVICTION RELIEF: Counsel's failure to depose victims, failure to request a competency evaluation, and waiver of presentence evaluation did not result in any prejudice to defendant. Callaway v. State, 41 Fla. L. Weekly D2206g (3rd DCA 9/28/16)

POST CONVICTION RELIEF: Claim that counsel was ineffective for failure to argue Double Jeopardy is invalid where the Defendant's motion only raised failure to argue for a lesser sentence, and the convictions were not barred by Double Jeopardy under the case law at the time. Smith v. State, 41 Fla. L. Weekly D2205a (1st DCA 9/28/16)

SEARCH AND SEIZURE-PASSENGER: Officer may, as matter of course, detain passenger during a lawful traffic stop without violating passenger's Fourth Amendment rights. Conflict certified. Presley v. State, 41 Fla. L. Weekly D2199a (1st DCA 9/28/16)

PLEA WITHDRAWAL: Court is not required to appoint conflict-free counsel where record refutes Defendant's allegations. Flemming v. State, 41 Fla. L. Weekly D2198a (1st DCA 9/28/16)

PROBATION-CONDITIONS: Special condition of probation requiring defendant to obtain GED within 2 years is invalid. A special condition is invalid if it has no relationship to the crime, relates to non-criminal conduct, and requires or forbids conduct which is not reasonably related to future criminality. Louis v. State, 41 Fla. L. Weekly D2187e (2nd DCA 9/23/16)

POST CONVICTION RELIEF-JURISDICTION: Court lacked jurisdiction to rule on postconviction motions while direct appeal was pending. Brewster v. State, 41 Fla. L. Weekly D2245a (2nd DCA 9/30/16)

WRITTEN WAIVER OF APPEARANCE: Trial court's refusal to accept defendant's written waiver of appearance at all pretrial conferences based upon policy requiring that all defendants attend all disposition hearings and pretrial conferences and prohibiting attorney-filed waivers of a defendant's appearance was in direct contravention of procedural rules which permit defendant to waive appearance at any pretrial conference. Jimenez v. State, 41 Fla. L. Weekly D2244d (2nd DCA 8/30/16)

LIFE IMPRISONMENT-JUVENILE-HOMICIDE: Because Miller applies retroactively, Defendant is entitled to a resentencing hearing pursuant to the new statutory scheme. Bellamy v. State, (5th DCA 9/30/16) 41 Fla. L. Weekly D2244a (5th DCA 9/30/16)


PROBATION REVOCATION: Court cannot find that the Defendant violated probation by committing a new criminal offense based solely on proof that he had been arrested. Evins v. State, 41 Fla. L. Weekly D2243d (5th DCA 9/30/16)

POST CONVICTION RELIEF: Court erred by summarily denying motion that the mandatory minimum sentence for actual possession of a firearm the was illegal because information did not so allege. Stevenson v. State, 41 Fla. L. Weekly D2243c (5th DCA 9/30/16)

POST CONVICTION RELIEF: Motion that counsel was ineffective for failing to object to leg shackles was deficient where there is no allegation that jurors were exposed to the defendant's shackles. Hannigan v. State, 41 Fla. L. Weekly D2243b (5th DCA 9/30/16)


MANSLAUGHTER-JURY INSTRUCTIONS: Erroneous intentional act manslaughter instruction as a lesser included to second degree murder is fundamental error. Defendant is entitled to habeas corpus relief. Page v. State, 41 Fla. L. Weekly D2241c (5th DCA 9/30/16)

POST CONVICTION RELIEF: Court erred by summarily denying motion for postconviction relief based on counsel misadvising Defendant that he could appeal a non-dispositive motion to suppress. Saviory v. State, 41 Fla. L. Weekly D2240b (5th DCA 9/30/16)

COUNSEL: Court erred in resentencing defendant after granting a motion to correct an illegal sentence without appointing or renewing an offer of counsel to the defendant. Oliver v. State,
41 Fla. L. Weekly D2240a (5th DCA 9/30/16)


9/30/16)


POST CONVICTION RELIEF: Court lacked jurisdiction to rule on motion to correct an illegal sentence during the pendency of a direct appeal. Smart v. State, 41 Fla. L. Weekly D2239c (5th DCA 9/30/16)


AMENDMENTS-APPELLATE RULES: Rule 3.781 for sentencing juveniles facing life sentences is modified. In Re: Amendments to Rules of Appellate Procedure, 41 Fla. L. Weekly S413a (FLA 9/29/16)

SEVERANCE-DUAL JURIES: Where co-defendant's are tried jointly with separate jurors, Court erred by allowing Appellant's jury to hear the cross-examination of the flipping third co-defendant conducted by the co-defendant's counsel. Heinly v. State, 41 Fla. L. Weekly D2235a (4th DCA 9/28/16)

CHILD HEARSAY: Court failed to make factual findings before admitting child hearsay.
Platt v. State, 41 Fla. L. Weekly D2234a (4th DCA 9/28/16)

DOUBLE JEOPARDY: Separate convictions for grand theft and dealing in stolen property were impermissible where offenses stemmed from same course of conduct, notwithstanding that there was four-day separation between theft and dealing nor fact that only two of three pieces of stolen property were pawned. Sykes v. State, 41 Fla. L. Weekly D2230b (2nd DCA 9/28/16)

POST CONVICTION RELIEF: Appellate counsel was ineffective for not filing a motion to correct sentencing error based on Defendant not qualifying for Violent Career Criminal for criminal mischief. Simmons v. State, 41 Fla. L. Weekly D2230a (2nd DCA 9/28/16)

FARETTA: Inquiry into defendant's waiver of counsel at VOP hearing was inadequate where trial court focused on defendant's legal acumen and not whether waiver was knowing and voluntary. The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself. Wilson v. State, 41 Fla. L. Weekly D2229b (2nd DCA 9/28/16)

THREATS TO KILL: Twitter posts that juvenile was going to shoot up his school do not support conviction where not directed to specific people. J.A.W. v. State, 41 Fla. L. Weekly D2227a (2nd DCA 9/28/16)

CONFESSION: Child interrogated for 2.5 hours, threatened with "real jail" where he would be "some big man's bitch." "The employment of a good-cop/bad-cop strategy. . . did not render his waiver anything other than a free and deliberate choice." Failure to contact parent does not render confession involuntary. Order granting motion to suppress is reversed. State v. Herrera, 41 Fla. L. Weekly D2215c (2nd DCA 9/28/16)

POST CONVICTION RELIEF: Counsel's failure to depose victims, failure to request a competency evaluation, and waiver of presentence evaluation did not result in any prejudice to defendant. Callaway v. State, 41 Fla. L. Weekly D2206g (3rd DCA 9/28/16)

POST CONVICTION RELIEF: Claim that counsel was ineffective for failure to argue Double Jeopardy is invalid where the Defendant's motion only raised failure to argue for a lesser sentence, and the convictions were not barred by Double Jeopardy under the case law at the time. Smith v. State, 41 Fla. L. Weekly D2205a (1st DCA 9/28/16)

SEARCH AND SEIZURE-PASSENGER: Officer may, as matter of course, detain passenger during a lawful traffic stop without violating passenger's Fourth Amendment rights. Conflict certified. 41 Fla. L. Weekly D2199a

PLEA WITHDRAWAL: Court is not required to appoint conflict-free counsel where record refutes Defendant's allegations. Flemming v. State, 41 Fla. L. Weekly D2198a (1st DCA 9/28/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2023,%202016/2D15-1507.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to object or move for mistrial is barred because not raised on direct appeal. Sutton v. State, 41 Fla. L. Weekly D2186b (5th DCA 9/23/16)

http://5dca.org/Opinions/Opin2016/091916/5D16-600.op.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective for advising defendant not to testify is sufficient to warrant a hearing. Sutton v. State, 41 Fla. L. Weekly D2186b (5th DCA 9/23/16)

http://5dca.org/Opinions/Opin2016/091916/5D16-600.op.pdf

POSSESSION OF FIREARM BY FELON: A replica of an antique firearm (muzzle loader) is not a firearm under the statutory definition, and thus may be processed by a felon, notwithstanding that a scope is added to it. State v. Weeks, 41 Fla. L. Weekly S399a (FLA 9/22/16)

http://www.floridasupremecourt.org/decisions/2016/sc14-1856.pdf

DICTIONARY WARS: Definition of "replica" debated. State v. Weeks, 41 Fla. L. Weekly S399a (FLA 9/22/16)

http://www.floridasupremecourt.org/decisions/2016/sc14-1856.pdf

DISCOVERY: New trial is required when the state commits a discovery violation by failing to produce an exculpatory audio recording. Bosque v. State, 41 Fla. L. Weekly D2175a (3rd DCA 9/21/16)

http://www.3dca.flcourts.org/Opinions/3D15-0049.pdf

INCONSISTENT VERDICTS: Defendant cannot be convicted of aggravated assault with a deadly weapon when the jury found that the Defendant cannot actually possess a firearm, the only weapon alleged. Proctor v. State, 41 Fla. L. Weekly D2167a (2nd DCA 9/21/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2021,%202016/2D14-3118.pdf

CREDIT FOR TIME SERVED: Defendant is not entitled to credit for time spent in the drug farm program. Waller v. State, 41 Fla. L. Weekly D2166b (4th DCA 9/21/16)

https://edca.4dca.org/DCADocs/2016/1268/161268_DC05_09212016_101552_i.pdf

JUDGES-DISQUALIFICATION: Motion alleging that facts and statements showed trial judge had policy of sentencing defendants more harshly for being indigent and unable to pay restitution at the time they are resolving their cases and further alleging that defendant received disproportionately more severe incarceration sentence than codefendants because, unlike his codefendants, he was unable to pay as much restitution or as quickly as codefendants, was legally sufficient and should have been granted. Dunlevy v. State, 41 Fla. L. Weekly D2163a (4th DCA 9/21/16)

https://edca.4dca.org/DCADocs/2014/2153/142153_DC13_09212016_100609_i.pdf

https://edca.4dca.org/DCADocs/2013/0831/130831_DC13_09212016_100557_i.pdf

CONSECUTIVE SENTENCES-MANDATORY MINIMUM: Multiple firearm offenses are committed at the same time during which several victims are shot at, consecutive sentencing is permissible but not mandatory. Sheaffers v. State, 41 Fla. L. Weekly D2159a (1st DCA 9/19/16)

https://edca.1dca.org/DCADocs/2015/3949/153949_DC08_09192016_112435_i.pdf

EVIDENCE: Spontaneous statement that he did not know the car was stolen is evidence that he knew the car was stolen because statement was made before he was told the car was stolen. A.L.H. v. State, 41 Fla. L. Weekly D2155a (2nd DCA 9/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2016,%202016/2D15-3404.pdf

SELF-DEFENSE INSTRUCTION: Where defendant never fired his gun the forces nondeadly. Counsel was ineffective for requesting instruction on self-defense with deadly force but not self-defense with nondeadly force. Marty v. State, 41 Fla. L. Weekly D2152c (2nd DCA 9/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2016,%202016/2D15-1218.pdf

APPEALS: Claim of ineffective assistance may be raised on direct appeal where the ineffectiveness is apparent on the face of the record. "We can see no strategic reason to make the burden of proving self-defense more difficult." Marty v. State, 41 Fla. L. Weekly D2152c (2nd DCA 9/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2016,%202016/2D15-1218.pdf

JURORS-PEREMPTORY CHALLENGE: Question certified: During a Melbourne v. State, 670 So. 2d 759, 763 (Fla. 1996), hearing, when a trial court finds that the proponent's reason for a peremptory challenge is facially neutral, is it the burden of the opponent (1) to claim the reason as a pretext, (2) to place into the record circumstances supporting its position, and (3) to object if the trial court's ruling does not contain adequate findings on the issue of genuineness? McCants v. State, 41 Fla. L. Weekly D2152a (2nd DCA 9/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2016,%202016/2D15-329.pdf

COMPETENCY OF DEFENDANT: Where defendant was adjudicated incompetent to stand trial, Court cannot proceed to trial without first holding a competency hearing. Court cannot determine competency nunc pro tunc will rely on reports of experts conducted sometime before the trial. Frye v. State, 41 Fla. L. Weekly D2151b (2nd DCA 9/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2016,%202016/2D12-6418.pdf

COUNSEL: Following pro se Defendant's revocation of probation, the Court must renew offer of assistance of counsel before sentencing. Bergeron v. State, 41 Fla. L. Weekly D2151a (2nd DCA 9/16/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2016,%202016/2D15-3028.pdf

LIFE SENTENCE-JUVENILE: Sentence of life imprisonment with possibility of parole after 25 years violated Miller where the presumptive parole release date was 100 years after the defendant's conviction in 1973. Bissonette v. State, 41 Fla. L. Weekly D2148c (5th DCA 9/16/16)

http://5dca.org/Opinions/Opin2016/091216/5D16-713.op.pdf

DOUBLE JEOPARDY: Court violated double jeopardy by resentencing Defendant to prison after he already served all of his county jail sentence for the charge. Basaldua v. State, 41 Fla. L. Weekly D2148b (5th DCA 9/16/16)

http://5dca.org/Opinions/Opin2016/091216/5D16-722.op.pdf LIFE SENTENCE-JUVENILE-HOMICIDE: 100 year sentence with a 25 year mandatory minimum does not afford a meaningful opportunity to obtain early release based maturity and reimplementation in violation of Miller. Miller applies even though the sentence is discretionary. Randolph v. State, 41 Fla. L. Weekly D2148a (5th DCA 9/16/16)

http://5dca.org/Opinions/Opin2016/091216/5D16-2122.op.pdf JURY INSTRUCTIONS: New instruction on Human Trafficking. In re: Standard Jury Instructions, 41 Fla. L. Weekly S382a (FLA 9/15/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-1440.pdf

NOTICE TO SEEK DEATH PENALTY: New rule 3.181 requires the prosecutor to give the defendant notice of intent to seek the death penalty and to file the notice with the court within 45 days after arraignment. The notice must contain a list of the aggravating factors the prosecutor intends to prove. In Re: Amendments, 41 Fla. L. Weekly S381b (FLA 9/15/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-1453.pdf

DEPOSITIONS OF WITNESSES UNDER 18 YOA: Video recording of depositions of witnesses under 18 is required. In Re: Amendments, 41 Fla. L. Weekly S381b (FLA 9/15/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-1453.pdf

DOUBLE JEOPARDY: Two convictions based on a single entry to the home violated double jeopardy. Alce v. State, 41 Fla. L. Weekly D2139b (3rd DCA 9/14/16)

http://www.3dca.flcourts.org/Opinions/3D15-1383.pdf

BURGLARY: Evidence of stealthy entry into the school gymnasium without permission is sufficient to give rise to a presumption of criminal intent. Juvenile's testimony that he was simply watching television at the gym was not before the Court when it ruled on the motion for judgment of dismissal and was insufficient to overcome the presumption. M.W. v. State, 41 Fla. L. Weekly D2131b (4th DCA 9/14/16)

https://edca.4dca.org/DCADocs/2015/3144/153144_DC05_09142016_092803_i.pdf

POST CONVICTION RELIEF: Court may not deny 3.800(a) motion raising illegality of sentence because court imposed consecutive mandatory minimum sentences without attaching portions of the record to support denial. Henderson v. State, 41 Fla. L. Weekly D2131a (4th DCA 9/14/16)

https://edca.4dca.org/DCADocs/2016/1007/161007_DC13_09142016_093537_i.pdf

LIFE SENTENCE-NON-HOMICIDE-JUVENILE: Defendant failed to show that aggregate 75-year sentence failed to afford him meaningful opportunity for release within his natural life in light of record evidence that, despite lengthy term of years, defendant has been given opportunity to receive substantial amounts of gain-time and, in fact, is expected to be released when he is in his mid-50s. Questions Certified: 1. At what point does term-of-year sentence become unconstitutional? 2. Should courts consider life expectancy in determining whether sentence is unconstitutional? 3. Should courts consider it the defendant's expected release date? 4. The sentence review apply to all juvenile offenders whose sentences exceed the statutory thresholds including non-homicide offenders? Davis v. State, 41 Fla. L. Weekly D2128a (4th DCA 9/14/16)
https://edca.4dca.org/DCADocs/2015/3277/153277_DC05_09142016_092959_i.pdf

STATEMENTS OF DEFENDANT: Statements elicit from the defendant during a knock and talk by numerous officers investigating a shooting were not custodial nor involuntary. Ho v. State, 41 Fla. L. Weekly D2127a (4th DCA 9/14/16)

https://edca.4dca.org/DCADocs/2014/1830/141830_DC05_09142016_091541_i.pdf

EXCLUSION OF WITNESS: Trial court may not exclude a reporter from the courthouse when one party spontaneously lists him as a witness without any showing as to his relevance. Palm Beach Newspapers v. Colin, 41 Fla. L. Weekly D2125a (4th DCA 9/14/16)

https://edca.4dca.org/DCADocs/2016/2165/162165_DC03_09142016_093649_i.pdf

SELF-DEFENSE-JURY INSTRUCTION: Trial court must give requested jury instruction on self-defense where the evidence although sparse (victim approached the Defendant "in an aggressive way" and ended up with several broken bones and no teeth) was sufficient to support the instruction. Wagers v. State, 41 Fla. L. Weekly D2105b (5th DCA 9/9/16)

http://www.5dca.org/Opinions/Opin2016/090516/5D15-2876.op.pdf

SELF REPRESENTATION: Where defendant moved to discharge counsel and represent himself, the required Faretta inquiry must go beyond the defendant's experience and focus on whether his intent to represent himself was knowing and voluntary. Snell v. State, 41 Fla. L. Weekly D2114c (2nd DCA 9/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2009,%202016/2D14-4087.pdf

WITHDRAWAL OF PLEA: Motion to withdraw plea is legally sufficient when the Defendant alleged that his attorney knew the state was going to drop one of the counts to which he pled but did not share that information with him. Bland v. State, 41 Fla. L. Weekly D2114b (2nd DCA 9/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2009,%202016/2D15-2757.pdf

10-20-LIFE: Where each of Defendant's convictions for second-degree murder was a qualifying offense under 10-20-Life, Court has discretion to impose sentences consecutively or concurrently. Mason v. State, 41 Fla. L. Weekly D2111b (2nd DCA 9/9/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2009,%202016/2D14-5846.pdf


STATEMENT OF DEFENDANT
: "Please stop this, you're giving me a headache," is not an unambiguous request to invoke his right to remain silent or right to counsel. Greenwich v. State, 41 Fla. L. Weekly D2108a (5th DCA 9/9/16)

http://www.5dca.org/Opinions/Opin2016/090516/5D15-1361.op.pdf

STATEMENT OF DEFENDANT: Where Defendant's stepfather, a criminal defense attorney, had telephoned the police department to speak with the defendant but was denied access, any statements made thereafter should have been suppressed. There is no distinction between lawyer calling on the phone and personally appearing at the police department. Greenwich v. State, 41 Fla. L. Weekly D2108a (5th DCA 9/9/16)

http://www.5dca.org/Opinions/Opin2016/090516/5D15-1361.op.pdf

EVIDENCE: The fact that the defendant visited pornographic websites after killing his wife is irrelevant and unduly prejudicial. Greenwich v. State, 41 Fla. L. Weekly D2108a (5th DCA 9/9/16)

http://www.5dca.org/Opinions/Opin2016/090516/5D15-1361.op.pdf

BURGLARY: Judgment of Acquittal for burglary should be granted where the Defendant robbed the store without entering areas that were off-limits to the public. Cappello v. State, 41 Fla. L. Weekly D2106c (5th DCA 9/9/16)

http://www.5dca.org/Opinions/Opin2016/090516/5D15-1977.op.pdf

POST CONVICTION RELIEF: Error to summarily deny claim that defense counsel was ineffective for failing to object to inappropriate prejudicial comments and cumulative errors. McDonald v. State, 41 Fla. L. Weekly D2106a (5th DCA 9/9/16)

http://www.5dca.org/Opinions/Opin2016/090516/5D15-3256.op.pdf

POST CONVICTION RELIEF
: Claim under 3.850 that counsel failed to provide Defendant with copies of depositions, and that therefore the plea was coerced is properly denied, but where the allegations include that the defendant was sentenced to 20 years in prison for a second-degree felony, the court should have reviewed the illegality of the sentence. Leopold v. State, 41 Fla. L. Weekly D2105c (5th DCA)

http://www.5dca.org/Opinions/Opin2016/090516/5D16-1293.op.pdf

DEATH PENALTY
: Claim that the defendant is incompetent because of intellectual disability is not barred by the fact that he failed to establish that his IQ was below seventy. Court erred in denying the motion for postconviction relief and the death sentence is vacated with instructions to enter a life sentence. Hall v. State, 41 Fla. L. Weekly S372e (FLA 9/8/16)

http://www.floridasupremecourt.org/decisions/2016/sc10-1335.pdf

ESCAPE: Inmate on work-release can be guilty of escape by leaving work site without permission although he returned to the prison on time. Poillot v. State, 41 Fla. L. Weekly S370a (FLA 9/8/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-1691.pdf

TRANSMISSION OF CHILD PORNOGRAPHY: Defendant is guilty of transmission of child pornography if he loads child pornography images into a computer file, making them accessible to third parties. Smith v. State, 41 Fla. L. Weekly S369a (FLA 9/8/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-782.pdf

PRISON RELEASEE REOFFENDER: One cannot be sentenced as a prison releasee reoffender for false imprisonment or felony battery. Washington v. State, 41 Fla. L. Weekly D2102a (1st DCA 9/8/16)

https://edca.1dca.org/DCADocs/2015/0915/150915_DC05_09082016_062919_i.pdf

DOUBLE JEOPARDY: Recission of previously awarded jail credit violates the Double Jeopardy Clause. Washington v. State, 41 Fla. L. Weekly D2102a (1st DCA 9/8/16)

https://edca.1dca.org/DCADocs/2015/0915/150915_DC05_09082016_062919_i.pdf

COSTS: Court may not impose investigatory costs where there is no indication that the agency had requested them. Hawkins v. State, 41 Fla. L. Weekly D2101a (1st DCA 9/8/16)

https://edca.1dca.org/DCADocs/2015/0368/150368_DC08_09082016_062618_i.pdf

DOUBLE JEOPARDY: Dual convictions for soliciting minor and traveling to meet minor for sex does not violate double jeopardy where the offense did not arise from the same criminal transaction and were distinct criminal acts. McCarter v. State, 41 Fla. L. Weekly D2100c (1st DCA 9/8/16)

https://edca.1dca.org/DCADocs/2015/0869/150869_DC05_09082016_062837_i.pdf

DRIVING WHILE LICENSE SUSPENDED: Defendant is not guilty of driving while license suspended where it is undisputed that he never had a driver's license. Conflict certified. Pitts v. State, 41 Fla. L. Weekly D2089a (3rd DCA 9/7/16)

http://www.3dca.flcourts.org/Opinions/3D15-1810.pdf

PLEA WITHDRAWAL: Where Defendant filed a timely motion to withdraw plea within 30 days of sentence, the court denied it, but allowed the Defendant 20 days to file a legally sufficient motion, the Court subsequently erred by denying the amended motion as untimely. Sanders v. State, 41 Fla. L. Weekly D2086a (2nd DCA 9/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2007,%202016/2D15-1642.pdf

VOP: Court fundamentally erred in proceeding on both technical and new law violations despite State's decision to proceed only on technical violations. The state's decision not to proceed on a condition 5 allegation is the equivalent of a nolle prosequi of that accusation and the court departs from its neutral role by insisting on hearing evidence on the condition 5 allegation. New hearing is required. Davis v. State, 41 Fla. L. Weekly D2085a (2nd DCA 9/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2007,%202016/2D15-19.pdf

MISTRIAL: Court did not abuse discretion in denying a motion for mistrial based on the presence in the jury room of a newspaper article about the Defendant's prior murder conviction. Shrader v. State, 41 Fla. L. Weekly D2080a (2nd DCA 9/7/16)
http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2007,%202016/2D13-2712.pdf

JOA: Court erred in denying motion for judgment of acquittal on two counts of sexual battery where state's evidence failed to prove the victim did not consent to sexual contact or that victim sustained her injuries contemporaneously with the sexual acts. Shrader v. State, 41 Fla. L. Weekly D2080a (2nd DCA 9/7/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/September/September%2007,%202016/2D13-2712.pdf


SUBPOENA DUCES TECUM
: Court did not err by denying defendant's request to issue ex parte subpoenas duces tecum. Defendant has no constitutional right to issue subpoenas secretly. Jackson v. State, 41 Fla. L. Weekly D2072a (4th DCA 9/7/16)

http://4dca.org/opinions/Sept.%202016/09-07-16/4D16-2357.op.pdf

SENTENCING 10-20-LIFE: Where defendant was convicted of capital offense and did not receive death penalty, trial court was required to sentence him to life imprisonment without possibility of parole pursuant to section 775.082(1). Trial court was also required to impose concurrent mandatory minimum sentence under 10/20/Life statute, even if the 10/20/Life sentence was less than the sentence imposed under section 775.082(1). Pitts v. State, 41 Fla. L. Weekly D2071a (4th DCA 9/7/16)

http://4dca.org/opinions/Sept.%202016/09-07-16/4D14-970.op.pdf

POST CONVICTION RELIEF: The claims that counsel rendered ineffective assistance by failing to secure medical expert to refute evidence of sexual contact is legally sufficient to warrant a hearing. Townsend v. State, 41 Fla. L. Weekly D2066a (4th DCA 9/7/16)

http://4dca.org/opinions/Sept.%202016/09-07-16/4D15-2011.op.pdf


PLEA WITHDRAWA
L: Court must avoid conflict-free counsel to assist in preparing and presenting a motion to withdraw plea. Rose v. State, 41 Fla. L. Weekly D2063b (4th DCA 9/7/16)

http://4dca.org/opinions/Sept.%202016/09-07-16/4D15-1708.op.pdf

LESSER INCLUDED: Trial court erred in refusing to instruct jury on permissive lesser-included offense of unnatural and lascivious act (unnatural) where charging document alleged statutory elements of offense and evidence adduced at trial established elements. Adults having lascivious sexual interaction with children is simply not natural or in accord with normal feelings or behavior. Kelley v. State, 41 Fla. L. Weekly D2059a (1st DCA 9/6/16)

https://edca.1dca.org/DCADocs/2015/1950/151950_DC08_09062016_063630_i.pdf

SPEEDY TRIAL: State violated Defendant's constitutional right to speedy trial when there was an 8 year delay between the filing of the charges in Florida and the Defendant's arrest. The Defendant was in custody in Georgia during that time, was made aware of the charges, but was never under a detainer from Florida. Crockett v. State, 41 Fla. L. Weekly D2053a (1st DCA 9/6/16)

https://edca.1dca.org/DCADocs/2015/1745/151745_DC13_09062016_062553_i.pdf


HABITUAL OFFENDER
: Trial court improperly designated defendant a habitual offender despite jury's express finding that state failed to prove prior convictions. Clark v. State, 41 Fla. L. Weekly D2052a (1st DCA 9/6/16)

https://edca.1dca.org/DCADocs/2015/2622/152622_DC13_09062016_063838_i.pdf

JUDGMENT OF ACQUITTAL: Boilerplate motion for judgment of acquittal is insufficient to preserve issue for appeal. Newsome v. State, 41 Fla. L. Weekly D2050b (1st DCA 9/6/16)

https://edca.1dca.org/DCADocs/2015/3680/153680_DC05_09062016_064307_i.pdf

DOUBLE JEOPARDY-LEWD OR LASCIVIOUS: Separate convictions for separate acts of touching the victim's breasts and buttocks during a single criminal episode did not violate double jeopardy. Where the defendant is convicted multiple times under the same statute for acts that occurred during a single criminal episode, a "distinct acts" test is used; where convicted under multiple statutes for one act, the "different elements" test applies. Graham v. State, 41 Fla. L. Weekly S359a (FLA 9/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-1416.pdf

CROSS-EXAMINATION: Court properly refused to allow cross-examination of victim about the outcome of a prior incident where she was molested by at third party or cross-examination of victim's mother about her own history of sexual abuse. Graham v. State, 41 Fla. L. Weekly S359a (FLA 9/1/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-1416.pdf

AUGUST 2016

RESTITUTION: Court may not use common or life experience to determine value of damage in a criminal mischief case. C.H. v. State, 41 Fla. L. Weekly D2027b (3rd DCA 8/31/16)

http://www.3dca.flcourts.org/Opinions/3D15-1618.pdf

CRIMINAL MISCHIEF-JOA: Child cannot be convicted of felony criminal mischief where evidence is insufficient to establish the damages are greater than $1000. C.H. v. State, 41 Fla. L. Weekly D2027b (3rd DCA 8/31/16)

http://www.3dca.flcourts.org/Opinions/3D15-1618.pdf

QUOTATION: "Branding a Florida citizen with the label 'convicted felon" must be approached with care and extreme caution, based only on evidence and facts from which conclusions can be drawn, not . . . widely varying 'life experiences.' C.H. v. State, 41 Fla. L. Weekly D2027b (3rd DCA 8/31/16)

http://www.3dca.flcourts.org/Opinions/3D15-1618.pdf

DWLS: A person who is never had a driver's license cannot be convicted of DWLS. Conflict certified. Escobar-Mazariegos v. State, 41 Fla. L. Weekly D2027a (3rd DCA 8/31/16)

http://www.3dca.flcourts.org/Opinions/3D15-0765.pdf

YOUTHFUL OFFENDER: Upon revocation of probation, if the Court decides to exceed the six-year limit, the Court must impose any mandatory minimum that would have applied. Prior precedent receded from and conflict certified. Eustache v. State, 41 Fla. L. Weekly D2022a (4th DCA 8/31/16)

http://4dca.org/opinions/Aug%202016/08-31-16/4D15-2596.op.CN.d.pdf

SEARCH AND SEIZURE-VEHICLE STOP: Vague BOLO describing two black males fleeing from crime scene, coupled with officer's observation that occupants of vehicle made no eye contact with officer, that driver had dreadlocks, and that occupant of back seat had a funny hat did not provide reasonable suspicion to justify stop of vehicle occupied by black males. Sanchez v. State, 41 Fla. L. Weekly D2012a (4th DCA 8/31/16)

http://4dca.org/opinions/Aug%202016/08-31-16/4D12-1395.co-op.pdf

SEARCH AND SEIZURE-REASONABLE SUSPICION: Driver's failure to make eye contact with officer is not reasonable suspicion. "Officers often mine suspicion out of eye contact or avoidance of eye contact, so suspects are 'suspicious' no matter what they do in the vicinity of a police officer." Sanchez v. State, 41 Fla. L. Weekly D2012a (4th DCA 8/31/16)

http://4dca.org/opinions/Aug%202016/08-31-16/4D12-1395.co-op.pdf


SENTENCING-DOWNWARD DEPARTURE
: Court may consider remorse in deciding whether to enter a downward departure. Whether a crime is committed in an unsophisticated manner is not dependent on the type of crime. Bellamy v.State, 41 Fla. L. Weekly D2004a State, (4th DCA 8/31/16)

http://4dca.org/opinions/Aug%202016/08-31-16/4D13-1565.pdf

POST CONVICTION RELIEF: Counsel was ineffective failed to object potentially vindictive sentence. White v. State, 41 Fla. L. Weekly D2003a (4th DCA 8/31/16)

http://4dca.org/opinions/Aug%202016/08-31-16/4D15-4470.op.pdf

SENTENCING-VINDICTIVENESS: Life sentence imposed after judge's offer of a 10-year sentence gave rise to presumption of vindictiveness. White v. State, 41 Fla. L. Weekly D2003a (4th DCA 8/31/16)

http://4dca.org/opinions/Aug%202016/08-31-16/4D15-4470.op.pdf

DOUBLE JEOPARDY: Double jeopardy prohibits Court from setting aside judgment of acquittal and reinstating the charge after defense rested. Turner v. State, 41 Fla. L. Weekly D1997b (2nd DCA 8/31/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2031,%202016/2D15-480.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to call a witness at trial is insufficient where there is no allegation that the witness would have been available to testify. Leonardi v. State, 41 Fla. L. Weekly D1990a (5th DCA 8/26/16)

http://5dca.org/Opinions/Opin2016/082216/5D16-1596.op.pdf


POST CONVICTION RELIEF
: Claim that sentences or 8 counts of promotion of sexual force by a child violated Double Jeopardy cannot be raised under rule 3.800, but rather should be raised under 3.850. Primavera v. State, 41 Fla. L. Weekly D1988a (2nd DCA 8/26/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2026,%202016/2D15-4933.pdf


PLEA-WITHDRAWAL
: When defendant at sentencing hearing says "If I don't like the sentence you give me, can I withdraw my plea?. . . I'd rather go to trial," the Court should have given him an opportunity to present arguments on his motion to withdraw plea. Spears v. State, 41 Fla. L. Weekly D1987a (2nd DCA 8/26/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2026,%202016/2D15-1012.pdf

CREDIT FOR TIME SERVED: Long v. State, 41 Fla. L. Weekly D1986b (2nd DCA 8/26/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2026,%202016/2D14-2837.pdf

SENTENCING - 10-20-LIFE
: Court may not sentence defendant convicted of attempted second-degree murder (a first-degree felony) to 40 years, with a 25 year mandatory minimum. Under 10-20-Life, the Court can impose a mandatory minimum in excess of the statutory maximum of 30 years but may not impose a term of years beyond the 25 year minimum mandatory. Hatten v. State, 41 Fla. L. Weekly S352a (FLA 8/25/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-22.pdf

SPOLIATION OF EVIDENCE
: State's loss or destruction of evidence potentially useful to the defense violates due process only when done in bad faith. Testimony about the evidence may not be excluded on the basis that it was destroyed where there was no bad faith. Patterson v. State, 41 Fla. L. Weekly S350a (FLA 8/25/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-228.pdf



POST CONVICTION RELIEF-RECANTED TESTIMONY
: Court properly rejected claims the newly discovered evidence based on recantation in a letter where the witness testified at the hearing that his trial testimony was true. Mansfield v. State, 41 Fla. L. Weekly S348a (FLA 8/25/16)

http://www.floridasupremecourt.org/decisions/2016/sc15-411.pdf

JURY INSTRUCTIONS
: New instruction 2.8 limiting instruction to cover police opinions in a recorded interview with a defendant. New instruction that the defendant may be found guilty of more than one lesser included offense. In Re: Standard Jury Instructions, 41 Fla. L. Weekly S347a (FLA 8/25/16)

http://www.floridasupremecourt.org/decisions/2016/sc16-737.pdf


EVIDENCE
: Court may not allow evidence of defendant's threats and aspersions to officer when not relevant to the crimes charged. Robinson v. State, 41 Fla. L. Weekly D1982a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D14-2932.op.pdf

SENTENCE
: A sentence which would have resulted in defendant being simultaneously on probation and incarcerated is not a legal sentence. Robinson v. State, 41 Fla. L. Weekly D1982a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D14-2932.op.pdf

GRAND THEFT MOTOR VEHICLE
: A motor vehicle includes a nonmotorized unattached trailer. Medrano v. State, 41 Fla. L. Weekly D1977a (4th DCA 8/24/16)



BURGLARY OF A DWELLING
: A carport is part of the dwelling. Medrano v. State, 41 Fla. L. Weekly D1977a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D15-1775.op.pdf

POST CONVICTION RELIEF: Court may consider deposition testimony of trial counsel instead of live testimony at the evidentiary hearing on the motion for postconviction relief. Grange v. State, 41 Fla. L. Weekly D1976a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D14-1864.reh.op.pdf


SEARCH AND SEIZURE-VEHICLE STOP
: Officer acting outside jurisdiction observed breach of peace justifying citizen's arrest when he found Defendant passed out in vehicle stopped in the middle of traffic, with the car in drive and defendant's foot on the brake, and smelled odor of alcohol from Defendant, but erred by allowing testimony of the officer about breathalyzer and field sobriety exercises to which he had the Defendant submit. Officer's acts are beyond color of law where there was a mutual aid agreement between counties but the officer was unaware of its terms and it was not admitted in evidence. Mattos v. State, 41 Fla. L. Weekly D1974b (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D15-4366.op.pdf

JUVENILE-SENTENCING
: Court may not depart from commitment level recommended by DJJ without making the required findings. Considering arrests without convictions that occurred after the crimes to which the child is to be sentenced violates due process. A.R.M. v. State, 41 Fla. L. Weekly D1974a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D15-65.op.pdf


CREDIT FOR TIME SERVED
: When trial court resentenced defendant, consecutively, on several counts based on double-jeopardy-related holding of appellate court, reapportioning jail credit among the various counts, it lacked jurisdiction to resentence defendant on one of the counts because under original jail credit apportionment, the defendant had satisfied his sentence for that count. Where a sentence has already been served, even if it is an illegal sentence, the court lacks jurisdiction to modify it. Kopson v. State, 41 Fla. L. Weekly D1969a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D15-4145.op.pdf


BLOOD TESTING
: Questions certified: (1) Are current FDLE rules inadequate under State v. Miles for purportedly failing to sufficiently regulate proper blood draw procedures, as well as the homogenization process to "cure" a clotted blood sample? (2) Are the present rules similarly inadequate for failing to specifically regulate the work of analysts in screening blood samples, documenting irregularities, and rejecting unfit samples? Goodman v. FDLE, 41 Fla. L. Weekly D1968a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D14-3263.reh.op.pdf

EVIDENCE-PHOTO LINEUP: Photo lineup was impermissibly suggestive where the defendant's skin tone was considerably lighter than that of other pictures but the error was harmless. Phillips v. State, 41 Fla. L. Weekly D1967a (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D14-906.op.pdf


HEARSAY
: Officer's testimony about the description of the Defendant given by the victim and witness is inadmissible hearsay, but harmless where the defendant had indicated his defense was not misidentification. Johnson v. State, 41 Fla. L. Weekly D1965c (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D15-3251.pdf



POST CONVICTION RELIEF
: Order denying motion for postconviction relief is improper where the court does not make specific findings of fact. White v. State, 41 Fla. L. Weekly D1965b (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D15-3853.pdf


SENTENCING-CONSIDERATIONS
: Court improperly considered pending charges and evidence related to them in sentencing. Johnson v. State, 41 Fla. L. Weekly D1959d (4th DCA 8/24/16)

http://4dca.org/opinions/Aug%202016/08-24-16/4D14-3589.op.pdf



JUDGMENT OF ACQUITTAL-ATTEMPTED ROBBERY
: Judgment of acquittal should be granted on robbery count where the defendant, who was robbing other people, turned the gun on a bystander who walked up on scene. Williams v. State, 41 Fla. L. Weekly D1948a (2nd DCA 8/24/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2024,%202016/2D14-4011.pdf


EVIDENCE
: Evidence of defendant's flight to another state is inadmissible absent evidence showing a nexus between the flight and a pending criminal investigation. Williams v. State, 41 Fla. L. Weekly D1948a (2nd DCA 8/24/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2024,%202016/2D14-4011.pdf


SENTENCING-CONSECUTIVE SENTENCES
: Consecutive mandatory minimum sentences for offenses occurring during same criminal episode based on defendant's actual possession and discharge of firearm to be reconsidered on remand where trial court believed it lacked discretion to impose concurrent mandatory minimum sentences. Webb v. State, 41 Fla. L. Weekly D1943a (1st DCA 8/22/16)

https://edca.1dca.org/DCADocs/2015/1722/151722_DC13_08222016_102254_i.pdf


COMPETENCY
: Where defendant had previously been declared incompetent, trial court erred in going forward after orally declaring defendant competent to stand trial without also entering written order declaring defendant competent. Laylor v. State, 41 Fla. L. Weekly D1942e (1st DCA 8/22/16)

https://edca.1dca.org/DCADocs/2015/2450/152450_DC05_08222016_111418_i.pdf



DOUBLE JEOPARDY
: Separate convictions for dealing in stolen property and grand theft violated double jeopardy principles. Jackson v. State, 41 Fla. L. Weekly D1942d (1st DCA 8/22/16)

https://edca.1dca.org/DCADocs/2015/1650/151650_DC08_08222016_101411_i.pdf


SENTENCING-CONSECUTIVE SENTENCES: Court may not impose consecutive three-year mandatory minimum sentences for one episode where firearm was possessed but not discharged. Mobley v. State, 41 Fla. L. Weekly D1942b (1st DCA 8/22/16)

https://edca.1dca.org/DCADocs/2013/5036/135036_DC13_08222016_093924_i.pdf

RETURN OF PROPERTY: A trial court with jurisdiction over criminal proceedings has inherited authority over property seized which continues beyond the end of the criminal case. Defendant must request the return of the property within 60 days of the end of the case, including the appeal. Davis v. State, 41 Fla. L. Weekly D1938c (5th DCA 8/19/16)

http://www.5dca.org/Opinions/Opin2016/081516/5D15-3320.op.pdf

POST CONVICTION RELIEF: Claim that attorney failed to investigate alibi defense requires an evidentiary hearing. Marshall v. State, 41 Fla. L. Weekly D1937b (5th DCA 8/19/16)

http://www.5dca.org/Opinions/Opin2016/081516/5D16-1081.op.pdf

SENTENCING: Court erred in sentencing defendant in absentia to a sentence greater than the plea agreement after Defendant failed to appear for sentencing will without making a finding as to whether the failure to appear was willful. Burden of proof is upon the state to prove that failure to appear is willful. Richardson v. State, 41 Fla. L. Weekly D1936b (5th DCA 8/19/16)

http://www.5dca.org/Opinions/Opin2016/081516/5D15-4131.op.pdf


LIFE SENTENCE-JUVENILE: Life sentence with 25 year mandatory minimum for first-degree felony murder may be indistinguishable from a sentence of life without parole, and sentencing scheme at time did not allow the court to individually tailor defendant's sentence. Court must consider the implications of the juvenile's sentence. Case remanded to determine whether the defendant's presumptive parole release date implicates resentencing under new statutory scheme. Williams v. State, 41 Fla. L. Weekly D1936a (5th DCA 8/19/16)

http://www.5dca.org/Opinions/Opin2016/081516/5D15-3847.op.pdf

POST CONVICTION RELIEF: It is prima facie ineffective assistance of counsel to fail to obtain certified copies of prior convictions of the state's key witness. Kelly v. State, 41 Fla. L. Weekly D1935a (5th DCA 8/19/16)

http://www.5dca.org/Opinions/Opin2016/081516/5D16-1159.op.pdf


LIFE SENTENCE-JUVENILE: Court errs in summarily denying motion for postconviction relief for juvenile was sentenced to life imprisonment with the possibility of parole where his presumptive parole release date may be beyond his natural life span. Case remanded to hold evidentiary hearing to determine presumptive parole release date. Stallings v. State, 41 Fla. L. Weekly D1934a (5th DCA 8/19/16)

http://www.5dca.org/Opinions/Opin2016/081516/5D16-1448.op.pdf

DOUBLE JEOPARDY: Separate convictions for use of computer to solicit the parents of a child to consent to sex with child and traveling violate Double Jeopardy. Honaker v. State, 41 Fla. L. Weekly D1932e (5th DCA 8/19/16)

APPEALS: State is not entitled to petition by certiorari circuit court's reversal of denial of 3.850 motion where there is no showing of departure from clearly established principles of law. Erroneous conclusions are not departures from clearly established principles of law. State v. Pietrasiuk, Fla. L. Weekly D1930a (1st DCA 8/18/16)

https://edca.1dca.org/DCADocs/2015/5322/155322_DC02_08182016_025147_i.pdf

EVIDENCE COLLATERAL CRIMES: Where defendant was charged with burglary of two conveyances, it was error to admit evidence that defendant had in his possession at the time of his arrest the wallet belonging to someone other than the owners of the burglarized conveyances. Evidence was not inextricably intertwined. McCuin v. State, 41 Fla. L. Weekly D1929a (1st DCA 8/18/16)

https://edca.1dca.org/DCADocs/2015/3593/153593_DC13_08182016_021510_i.pdf

FAILURE TO REPORT: Defendant could not properly be convicted of failure to report change of residence to driver's license office, as there was no evidence that he failed to report to driver's license office. Defendant could not properly be convicted of failure to report change of residence to sheriff's office where there was no evidence that defendant failed to establish another residence after vacating his residence. Peterson v. State, 41 Fla. L. Weekly D1928a (1st DCA 8/18/16)

https://edca.1dca.org/DCADocs/2015/1298/151298_DC13_08182016_021339_i.pdf

SENTENCING: Court may not consider defendant's untruthfulness when determining sentence. Cherilus v. State, 41 Fla. L. Weekly D1925a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D14-3662.op.pdf

SEVERANCE: No error in denying motion to sever charges of possession of firearm by felon from second-degree murder where is status as a convicted felon is relevant to the determination of whether his position of the gun was lawful under the Stand Your Ground law. Pierce v. State, 41 Fla. L. Weekly D1924a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D14-1076.op.pdf

STAND YOUR GROUND: There is no fundamental order instructing jury that the defendant had a duty to retreat where he relied on both sections 776.012 and 776.013 in his defense. Duty to retreat instruction was relevant and proper for section 776.013. Pierce v. State, 41 Fla. L. Weekly D1924a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D14-1076.op.pdf

SECOND DEGREE MURDER: Evidence is sufficient to show the defendant acted with a depraved mind. Pierce v. State, 41 Fla. L. Weekly D1924a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D14-1076.op.pdf


HEARSAY: Proper foundation for impeachment by a prior inconsistent statement is to establish the time place and person to whom the statement was made. Court properly excluded impeachment where the predicate was not laid, and the impeachment was about a minor issue - the amount of money taken. Salvo v. State, 41 Fla. L. Weekly D1923a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D14-3634.op.pdf

SENTENCING-PRR AND HVFO: One cannot be sentenced as both a prison releasee re-offender habitual violent felony offender; only one enhancement as possible. Salvo v. State, 41 Fla. L. Weekly D1923a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D14-3634.op.pdf

CHILD HEARSAY: Objection to child hearsay is not preserved when grounds not made with specificity, and in any event was properly admitted. Granados v. State, 41 Fla. L. Weekly D1921a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D13-4233.op.pdf

ARGUMENT: In child sex abuse case, asking the Defendant why the Child would make up such "will outrageous lies" does not improperly shifted burden of proof. Granados v. State, 41 Fla. L. Weekly D1921a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D13-4233.op.pdf

REOPENING CASE: Defendant rested, then the next morning, asked to reopen the case in order to testify. Trial court abused its discretion by denying defendant's request to reopen case to allow defendant to testify where request was timely made before closing argument and jury instructions. Given the high importance and fundamental nature of a defendant's right to testify, a trial court's decision to deny a request to reopen a case to allow a defendant to exercise that right should be made only after a full review of the reasons for the request. Gibson v. State, 41 Fla. L. Weekly D1919b (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D14-1372.op.pdf

STALKING: Court abused discretion in admitting portions of family court order requiring defendant to complete a psychological evaluation and anger management course; such evidence was irrelevant and prejudicial. Bowles v. State, 41 Fla. L. Weekly D1917a (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D15-1929.op.pdf

COMPETENCY OF DEFENDANT: Court erred in failing to hold a competency hearing after it had appointed an expert for that purpose. Deferrell v. State, (4th DCA 8/17/16)

http://www.4dca.org/opinions/Aug%202016/08-17-16/4D13-3985.op.pdf

MOTION FOR NEW TRIAL: Court erred when it applied a sufficiency of evidence standard to motion for new trial rather than a weight of the evidence standard. Palmer v. State, 41 Fla. L. Weekly D1897a (1st DCA 8/16/16)

https://edca.1dca.org/DCADocs/2015/1967/151967_DC08_08162016_091338_i.pdf

COSTS: Oral pronouncement was insufficient to notify defendant of discretionary fine and surcharge imposed pursuant to section 775.083. Simmons v. State, 41 Fla. L. Weekly D1896a (1st DCA 8/16/16)

https://edca.1dca.org/DCADocs/2014/4411/144411_DC08_08162016_085053_i.pdf

JURY INSTRUCTION: Jury instruction which implies that one is guilty of possessing a place, structure or conveyance if it was used for illegal purposes in the past is poorly phrased, but is not fundamental error. Zeigler v. State, 41 Fla. L. Weekly D1864b (1st DCA 8/11/16)


https://edca.1dca.org/DCADocs/2015/2754/152754_DC05_08112016_121830_i.pdf


RESISTING WITHOUT VIOLENCE
: Officer is not in the lawful execution of a legal duty when he saw juvenile riding a bicycle away from him and ordered the child to stop. Flight, standing alone, is not obstruction. M.R. v. State, 41 Fla. L. Weekly D1880a (2nd DCA 8/12/16)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2012,%202016/2D15-3651.pdf


CONSTRUCTIVE POSSESSION
: Evidence does not establish constructive possession of methamphetamine in the pocket of a leather jacket and a hotel room jointly occupied by the Defendant and her husband. Defendant's statement that her DNA would be found on syringes in a different pocket does not show possession of the methamphetamine. Tucker v. State, 41 Fla. L. Weekly D1875a (2nd DCA 8/12/16)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2012,%202016/2D14-5642.pdf

SEARCH AND SEIZURE: Pressing a key fob button is not a search. Drugs found in plain view in the vehicle after the vehicle chirped were lawfully seized. State v Maye, 41 Fla. L. Weekly D1873b (5th DCA 8/12/16)

http://www.5dca.org/Opinions/Opin2016/080816/5D15-3429.op.pdf


VICTIMS OF WRONGFUL INCARCERATION COMPENSATION: A petition seeking compensation for wrongful incarceration must be filed within 90 days after the order vacating the conviction and sentence becomes final, rather than within 90 days of the state filing a nolle prosequi. Bartek v. State, 41 Fla. L. Weekly D1872 (5th DCA 8/12/16)

http://www.5dca.org/Opinions/Opin2016/080816/5D15-1186.op.pdf

JUROR MISCONDUCT: Claim that Court erred in failing to grant a new trial based on juror misconduct is waived when defendant, knowing of misconduct, did not bring it to the court's attention until after the verdict was entered. Lyons v. State, 41 Fla. L. Weekly D1869b (5th DCA 8/12/16)

http://www.5dca.org/Opinions/Opin2016/080816/5D15-2381.op.pdf

POST CONVICTION RELIEF: Court erred in denying as untimely a motion for postconviction relief outside the 2-year time limit where the motion enlarged upon a claim which had been timely raised and had not been ruled on. Norris v. State, 41 Fla. L. Weekly D1868a (5th DCA 8/12/16)


http://www.5dca.org/Opinions/Opin2016/080816/5D16-1769.op.pdf

DOUBLE JEOPARDY: Where in plea agreement defendant agreed to pay $45,000 in restitution, but court, in pronouncing sentence, mistakenly announced restitution in the amount of $4,500, defendant's double jeopardy rights were not violated when court increased restitution amount to $45,000 after plea and sentencing hearing had concluded. Annatone v. State, 41 Fla. L. Weekly D1867b (5th DCA 8/12/16)


http://www.5dca.org/Opinions/Opin2016/080816/5D15-4097.op.pdf

DEATH PENALTY: Trial judges in two circuit courts acted in excess of their jurisdiction by determining that, after U.S. Supreme Court's holding in Hurst v. Florida, state could not proceed with capital cases as death penalty cases. The lack of a penalty phase procedure before the penalty is at issue does not preclude the State from charging the respondents with capital offenses and prosecuting the cases as capital cases. State v. Jones, 41 Fla. L. Weekly D1853c (2nd DCA 8/10/16)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2010,%202016/2D16-446.pdf

COSTS: Costs may not be imposed without citing the statutory authority. Singletary v. State, 41 Fla. L. Weekly D1853a (2nd DCA 8/10/16)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2010,%202016/2D14-3500.pdf

FORFEITURE-VOLUNTARY DISMISSAL: Claimant is not entitled to damages where there is no trial. Conflict certified. Underwood v. State, 41 Fla. L. Weekly D1848a (2nd DCA 8/10/16)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2010,%202016/2D15-2981.pdf


CONTEMPT: Court may not hold the party indirect criminal contempt based on him being under the influence of alcohol when he appeared late for the hearing where the court relied on testimony of others. It is indirect contempt where the Court takes testimony and relies on facts not directly observed by the Court. Because it is indirect criminal contempt, the Defendant is entitled to the assistance of counsel. Pole v. State, 41 Fla. L. Weekly D1843a (2nd DCA 8/10/16)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/August/August%2010,%202016/2D14-4776.pdf

PROSTITUTION: $5000 civil penalty is constitutional. State v. Pineda, 41 Fla. L. Weekly D1839a (4th DCA 8/10/16)

http://4dca.org/opinions/Aug%202016/08-10-16/4D15-4658.pdf

MAIL BOX RULE: A document filed by an inmate is timely filed when delivered to prison officials for mailing. Where the certificate of service indicates it was timely filed the burden of proof is on the State to rebut the inference of timely filing. Davis v. State, 41 Fla. L. Weekly D1835a (4th DCA 8/10/16)

http://4dca.org/opinions/Aug%202016/08-10-16/4D15-4446.op.pdf

JUDGMENT OF ACQUITTAL: Evidence was insufficient to support conviction of lewd and lascivious conduct for defendant placing her tongue in victim's mouth. Counsel was ineffective for failing to argue motion for judgment of acquittal with specificity. Levosky v. State, 41 Fla. L. Weekly D1833b (4th DCA 8/10/16)

http://4dca.org/opinions/Aug%202016/08-10-16/4D12-4010.op.pdf

POST CONVICTION RELIEF: Failure to advise Defendant of maximum penalty, sexual predator designation, or possibility of civil commitment after incarceration is prima facie ineffective assistance of counsel. Paul v. State, 41 Fla. L. Weekly D1832a (4th DCA 8/10/16)


http://4dca.org/opinions/Aug%202016/08-10-16/4D16-251.op.pdf


POST CONVICTION RELIEF-CREDIT FOR TIME SERVED
: Juvenile who was sentenced to serve several sentences consecutively (and therefore not given credit for time served on all counts), later modified to 99 years concurrently on several counts, then resentenced pursuant to Graham to 40 years concurrently on all counts, the Defendant is entitled to credit from the time of his original sentencing on all counts. Peters v. State, 41 Fla. L. Weekly D1831a (4th DCA 8/10/16)


http://4dca.org/opinions/Aug%202016/08-10-16/4D14-1838.op.pdf

LIMITATION OF ACTIONS: Ten-year delay between issuance of capias and service of capias was not reasonable. Where state presented no evidence establishing diligent search court should grant a motion to dismiss. Morelli v. State, 41 Fla. L. Weekly D1830a (4th DCA 8/10/16)

http://4dca.org/opinions/Aug%202016/08-10-16/4D16-1691.op.pdf

JUVENILES-LIFE SENTENCE: To avoid a statutory anomaly, juvenile cannot be convicted to more than 40 years for armed robbery with a firearm where the maximum sentence for the life felony count (attempted murder with a firearm) is 40 years. State v. Manuel, 341 Fla. L. Weekly D1821a (2nd DCA 8/5/16)

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that the State committed a Brady violation by not disclosing favorable impeachment evidence to refute the victim's identification of the defendant as the perpetrator. Felder v. State, 41 Fla. L. Weekly D1820a (2nd DCA 8/5/16)

APPEALS
: Motion to correct sentence under Rule 3.800(b)(2) as untimely when served after Defendant had served his brief. Rumlin v. State, 41 Fla. L. Weekly D1817b (2nd DCA 8/5/16)

COSTS: Cost of defense may not be imposed absent documentation in record and defendant being advised of her right to a hearing to contest the amount of it. Lopez v. State, 41 Fla. L. Weekly D1817a (2nd DCA 8/5/16)

RESTITUTION
: Court may not impose restitution for items not listed in the information and not causally connected to the offenses. D.J.M. v. State, 41 Fla. L. Weekly D1815b (5th DCA 8/5/16)

DISCOVERY: Court erred by excluding state witnesses who were disclosed just before trial. Court could have imposed a less severe sanction such as a short continuance. The State must furnish witnesses in a sufficiently timely fashion so that the Defendant does not have to forfeit his right to a speedy trial. State v. Johnson, 41 Fla. L. Weekly D1814a (5th DCA 8/5/16)


INDIRECT CRIMINAL CONTEMPT: Court properly held defendant/attorney in indirect criminal contempt for disclosing medical information received in discovery in a child custody litigation to FDLE in violation of a court order. The order was violated although the attorney did not provide the actual medical records to the FDLE agent. Order directed at a party applies to his attorney as well. Clover v. State, 41 Fla. L. Weekly D1813a (5th DCA 8/5/16)

CONSTRUCTIVE POSSESSION: Court erred in denying motion for judgment of acquittal where the Defendant had knowledge of the presence of the short-barreled shotgun in the trunk, but there were multiple passengers and no evidence that the defendant had ability to exert dominion and control over it, notwithstanding that the Defendant said his fingerprints may be on the gun. Hudson v. State, 41 Fla. L. Weekly D1804a (4th DCA 8/3/16)

POST CONVICTION RELIEF
: Misadvise that defendant could be cross-examined as to details of prior criminal record if defendant testified at trial is prima facie ineffective assistance of counsel. Meeks v. State, 41 Fla. L. Weekly D1794b (4th DCA 8/3/16)

REVOCATION OF PROBATION
: Trial court improperly found defendant in violation of the condition that he not have unsupervised contact with a person under age eighteen where there was insufficient proof that he had knowledge of the female's age. Grace v. State, 41 Fla. L. Weekly D1793a (4th DCA 8/3/16)

PRESCRIPTION DRUGS-JURY INSTRUCTION
: No error to instruct jury that it had to find Defendant wrote prescription "not in good faith or not in the course of defendant's professional practice," rather than using the conjunctive "and." "Or"is correct. Rodenberg v.State, 41 Fla. L. Weekly D1786b (4th DCA 8/3/16)

ARGUMENT
: Comment that defense counsel "stuck his head in the sand" was not reversible error. Rodenberg v. State, 41 Fla. L. Weekly D1786b (4th DCA 8/3/16)

EQUITABLE DISTRIBUTION: Court must make specific findings of misconduct in order to award a distribution of wasted assets. Pansky v. Pansky, 41 Fla. L. Weekly D1786a (4th DCA 8/3/16)

CROSS-EXAMINATION: Court did not abuse discretion in refusing to permit Defendant to cross-examine victim about a pregnancy when she was 17 in lascivious molestation case. Sandoval v. State, 41 Fla. L. Weekly D1781b (4th DCA 8/3/16)

DOUBLE JEOPARDY: Convictions for both conspiracy to traffic in cocaine and conspiracy to commit racketeering violated prohibition against double jeopardy where evidence at trial reflected participation in single conspiracy with multiple criminal objectives. Wiles v. State, 41 Fla. L. Weekly D1780b (2nd DCA 8/3/16)

RACKETEERING
: Fact that coconspirators made two attempts to purchase cocaine not sufficient to show participation in two separate agreements to commit criminal offenses. Racketeering conviction vacated. Wiles v. State, 41 Fla. L. Weekly D1780b (2nd DCA 8/3/16)

SPOLIATION OF EVIDENCE: Trial court did not err in denying defendant's motion to exclude evidence based upon state's alleged destruction of a urine toxicology report from the hospital where there was no evidence that the report ever existed or, if it did exist, was ever in state's possession. Sanchez v. State, 41 Fla. L. Weekly D1779a (3rd DCA 8/3/16)

POST CONVICTION RELIEF: Defendant is not accorded a fair hearing on his motion for postconviction relief where he is spontaneously questioned by the court, not given proper notice of the evidentiary hearing, nor given the opportunity to present witnesses. Seymour, v. State, 41 Fla. L. Weekly D1778a (3rd DCA 8/3/16)

APPEALS: Appellate court has jurisdiction of defendant's premature appeal where defendant filed notice of appeal before trial court's written order was rendered but appellate court did not dismiss the premature appeal prior to entry of the final order. Seymour v. State, 41 Fla. L. Weekly D1778a (3rd DCA 8/3/16)

JULY 2016

SENTENCING-VINDICTIVENESS: Presumption of vindictiveness arose where trial court imposed a greater sentence after trial than plea offer which defendant rejected, and court engaged in plea discussions with defendant during trial. Battle v. State, 41 Fla. L. Weekly D1770a (5th DCA 7/29/16)

DOUBLE JEOPARDY: Separate convictions for soliciting minor using computer device, unlawful use of two-way communication device, and traveling to meet minor violate double jeopardy principles. Mills v. State, Fla. L. Weekly D1769c (5th DCA 7/29/16)

POST CONVICTION RELIEF: There is no prohibition on untimely or successive motions to correct an illegal sentence under rule 3.800. Jones v. State, 41 Fla. L. Weekly D1767a (5th DCA 7/29/16)

POST CONVICTION RELIEF: Allegation that attorney misadvised that if defendant entered open plea, he would likely be sentenced as youthful offender and receive sentence of five years' incarceration or less is sufficient to require a hearing. Jackson v. State, 41 Fla. L. Weekly D1765b (5th DCA 7/29/16)

SENTENCING: Trial court did not err in sentencing defendant as habitual violent felony offender to life imprisonment "without parole for 15 years," although defendant would not have been eligible for parole, where it was evident from trial court's comments at sentencing that court believed life sentence was justified and only mentioned parole because it thought it was required to do so. Barriera v. State, 41 Fla. L. Weekly D1765a (5th DCA 7/29/16)

INJUNCTIONS-ATTORNEY'S FEES
: Respondent may apply for attorney's fees pursuant to Fla. §57.105 where the losing party or the losing party's attorney knew or should have known that a claim or defense was not supported by fact or law. Conflict certified. Hall v. Lopez, 41 Fla. L. Weekly D1763a (1st DCA 7/28/16)

JURY INSTRUCTIONS: Giving of jury instruction on attempted voluntary manslaughter that incorrectly included an element of intent to kill was fundamental error, but the error was waived where defense counsel participated in drafting of instructions, knew that the instruction was erroneous, and intentionally agreed to the erroneous instruction. Defense counsel is presumed to know the instruction was wrong. Knight v. State, 41 Fla. L. Weekly D1760a (1st DCA 7/28/16)

DUTY TO OBJECT: "It is difficult to believe that defense counsel was unaware of these five-year-old changes in the law directly relevant to his practice. He was obligated to stay abreast of developments in his practice area. . .[A]sserting the fundamental error argument against an unobjected-to jury instruction creates a 'bizarre incentive' for defense counsel to allow erroneous instructions to go to the jury. . .The consequence of such a rule would essentially obligate a defense attorney to stand mute and, if necessary, agree to an erroneous instruction." Knight v. State, 41 Fla. L. Weekly D1760a (1st DCA 7/28/16)

WILLFUL BLINDNESS: Trial court erred in instructing jury on willful blindness where evidence did not support theory that defendant deliberately contrived to avoid knowing there was cocaine and other drugs in backpack codefendant placed in vehicle. A willful blindness instruction should be given only in those comparatively rare cases where there are facts that point in the direction of deliberate ignorance. Horchak v. State, 41 Fla. L. Weekly D1751a (4th DCA 7/27/16)

RED LIGHT CAMERAS: Red light cameras may be used. Issue certified. State v. Jimenez, 41 Fla. L. Weekly D1753a (3rd DCA 7/27/16)

SIGNED VERDICT: It is not per se reversible error where the foreman failed to sign the verdict, but jurors were polled. Daniels v. State, 41 Fla. L. Weekly D1740a (4th DCA 7/27/16

CONSOLIDATION: Court erred by consolidating 2 separate cases of fraudulent use of personal information against 2 separate victims. Dodge v. State, 41 Fla. L. Weekly D1738b (4th DCA 7/27/16)

POST CONVICTION RELIEF: Indigent prisoner is not entitled to free copies of transcripts to prepare post-conviction motion. Milner v. State, 41 Fla. L. Weekly D1738a (4th DCA 7/27/16)

HEARSAY-STATEMENT AGAINST INTEREST
: Statement of codefendant that the cocaine was his is admissible where the Defendant asserted 5th Amendment privilege. Defendant is not required to call defendant as a witness and assert the privilege in order to admit the statement. Dix v. State, 41 Fla. L. Weekly D1729a (4th DCA 7/27/16)

SEVERANCE: The court should have severed the trials of the two co-defendants where the Defendant sought to admit the statement of his co-defendant, rather than excluding the statement. Dix v. State, 41 Fla. L. Weekly D1729a (4th DCA 7/27/16)

WILLFUL BLINDNESS: Court should not have given an instruction on willful blindness when the facts did not suggest that the Defendant believed there was cocaine in the backpack. A willful blindness instruction should be given only in those rare cases where there are facts that point in the direction of deliberate ignorance. Dix v. State, 41 Fla. L. Weekly D1729a (4th DCA 7/27/16)

HEARSAY: 911 dispatcher's statement to the officer that a vehicle in the burglary victim's driver was registered to the defendant is inadmissible hearsay. Adams v. State, 41 Fla. L. Weekly D1727a (4th DCA 7/27/16)

EVIDENCE-REDACTION: Court did not err in refusing to reject portions of video interview with defendant in which detective stated that right now he believed what witnesses had told him and defendant agreed that it was detective's job to do so. Lewis v. State, 41 Fla. L. Weekly D1725a (4th DCA 7/27/16)

SEARCH AND SEIZURE-CONSENT: Officers exceeded the scope of the consent when they were given permission to search the room for a stolen cell phone and, after finding the phone, started going through the Defendant's bedroom drawers. Colas v. State, 41 Fla. L. Weekly D1724b (4th DCA 7/27/16)

ARGUMENT: Prosecutor's argument addressing why jury should conclude that witness was neither biased nor mistaken in testimony did not constitute improper bolstering of witness. Austin v. State, 41 Fla. L. Weekly D1719a (3rd DCA 7/27/16)

EVIDENCE: Testimony of officer about type of tool which might be used to pry open a drawer is permissible lay testimony. Austin v. State, 41 Fla. L. Weekly D1719a (3rd DCA 7/27/16)

MOTION TO MITIGATE: Court erred in denying motion to mitigate sentence as untimely where motion was filed within sixty days from date sentence became final by issuance of appellate mandate. Jeune v. State, 41 Fla. L. Weekly D1716c (3rd DCA 7/27/16)

APPEALS: Trial court's decision labeled "Order Declaring Mistrial," which was issued more than a month after jury was discharged and the verdict was rendered by being filed in clerk's records, was actually an order granting a new trial, and was, therefore, appealable by the State. When the judge reserves ruling on a mistrial motion until after the trial, or the motion is not made until after the discharge of the jury, then the motion must be considered a motion for new trial. State v. Smith, 41 Fla. L. Weekly D1715c (3rd DCA 7/27/16)

HABEAS CORPUS-PRETRIAL DETENTION: Habeas petition is denied without prejudice where there exists no transcript of the first appearance hearing, no motion to set bond and no order denying motion to set bond. Hill v. State, 41 Fla. L. Weekly D1723b (5th DCA 7/26/16)

DOUBLE JEOPARDY: Double jeopardy bars conviction for careless driving with a suspended license resulting in death and vehicular homicide of the same victim. Crusaw v. State, 41 Fla. L. Weekly D1708a (1st DCA 7/25/16)

POST CONVICTION RELIEF: Claim that trial counsel was ineffective for failing to explore and/or raise insanity defense was insufficient where defendant failed to allege that he was, in fact, insane at time of offense. Breadon v. State, 41 Fla. L. Weekly D1698c (5th DCA 7/22/16)

SENTENCING-CORRECTION: Where trial court imposed new split sentence following probation violation, defendant was entitled to credit for time served on probation and community control to extent necessary to prevent new split sentence from exceeding statutory maximum. Adams v. State, 41 Fla. L. Weekly D1698b (5th DCA 7/22/16)

POST CONVICTION RELIEF: Counsel was not ineffective for failing to argue that the defendant was not a PRR because the body of the information, although not the caption, charged a PRR eligible offense. Long v. State, 41 Fla. L. Weekly D1698a (5th DCA 7/22/16)

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to object to portions of self-defense jury instruction that improperly shifted burden of proof was not conclusively refuted by record. Williams v. State, 41 Fla. L. Weekly D1697b (5th DCA 7/22/16)

CREDIT FOR TIME SERVED: Defendant improperly raised the issue of prison credit in Rule 3.801 motion, but the Court should have treated the claim as if it had been filed in the appropriately styled motion. 3.801 provides for correction of jail credit for time served, not prison credit for time served. Curtis v. State, 41 Fla. L. Weekly D1697a (2nd DCA 7/22/16)

BOND: $1.7 million bond set for various pending charges (racketeering, etc.) was unreasonable given weakness of case,, defendant's lack of prior criminal history, nature of crimes, and to community. The fact that a defendant may have the resources to post the bond does not make the bond amount per se reasonable. Byrd v. Mascara, 41 Fla. L. Weekly D1685a (4th DCA 7/20/16)

SUCCESSOR JUDGE
: Sentencing by successor judge was not preserved for appeal by objection. Serna v. State, 41 Fla. L. Weekly D1679a (4th DCA 7/20/16)

SENTENCING-UPWARD DEPARTURE: Statute which permits departure from presumptive non-prison sanction upon finding that defendant poses a risk of danger to public must be interpreted to mandate that such upward departures be based on a jury determination that defendant poses a risk of danger to public, absent either a waiver by defendant or a negotiated sentence. However, here error is harmless because no reasonable jury could have found she is not a danger to the public. Woods v. State, 41 Fla. L. Weekly D1676a (1st DCA 7/20/16)

DOUBLE JEOPARDY: Separate convictions for use of computer services to solicit person believed to be a child to commit illegal act and traveling to meet a minor violated double jeopardy principles. Truitt v. State, 41 Fla. L. Weekly D1675b (1st DCA 7/20/16)

SENTENCING-DOWNWARD DEPARTURE: Although extensive criminal history precludes finding that offense was an isolated incident, courts are not precluded from imposing a downward departure sentence just because defendant has any criminal history or has committed the same offense before. Wallace v. State, 41 Fla. L. Weekly D1668b (1st DCA 7/18/16)

YOUTHFUL OFFENDER
: Court must continue defendant's youthful offender status upon resentencing for VOP. Johnson v. State, 41 Fla. L. Weekly D1668a (1st DCA 7/18/16)

LIFE SENTENCE FOR JUVENILE: Court erred in imposing nonmandatory life sentence for second-degree murder committed while juvenile was a defendant. Carter v. State, 41 Fla. L. Weekly D1667c (1st DCA 7/18/16)

LIFE SENTENCE FOR JUVENILE: Court is not required to impose consecutive sentences for second-degree murder and attempted second-degree murder committed in a single criminal episode. Carter v. State, 41 Fla. L. Weekly D1667c (1st DCA 7/18/16)

DOUBLE JEOPARDY: Separate convictions for unlawful use of computer service and traveling to meet minor violate double jeopardy. Davis v. State, 41 Fla. L. Weekly D1667a (1st DCA 7/18/16)

HABITUAL OFFENDER
: Defendant was improperly habitual lies for the life felony of sexual battery with physical force where the offense was committed in 1996. Hawkins v. State, 41 Fla. L. Weekly D1666a (1st DCA 7/18/16)

POST CONVICTION RELIEF: Allegation that trial counsel was ineffective for preventing him from entering into a more favorable plea agreement is a cognizable motion for postconviction relief. Smith v. State, 41 Fla. L. Weekly D1656b (2nd DCA 7/15/16

POST CONVICTION RELIEF: Allegation that DOC's forfeiture of gain time thwarted terms of defendant's plea agreement was not refuted by transcript of probation violation hearing. Foster v. State, 41 Fla. L. Weekly D1656a (3rd DCA 7/15/16)

COMPETENCY OF DEFENDANT
: Trial court committed fundamental error when it failed to hold adequate competency hearing to determine that defendant's competency had been restored before accepting no contest pleas where defendant had previously been adjudicated incompetent and committed for restoration of competency. Bylock v. State, 41 Fla. L. Weekly D1654a (2nd DCA 7/15/16)

CONTEMPT INDIRECT CRIMINAL: Error to find attorneys in indirect criminal contempt for violating court confidentiality orders and to impose sanctions where evidence did not establish beyond reasonable doubt that attorneys acted with intent to disobey a court order. For a person to be held in contempt of a court order, the language of the order must be clear and precise, and the behavior of the person must clearly violate the order. Haas v. State, 41 Fla. L. Weekly D1641a (2nd DCA 7/15/16)

DEPOSITIONS: Depositions of witnesses must occur in the county where they reside. The fact that they had lived in one county at the beginning of the case and been served with a subpoena for deposition while temporarily back in the 1st county to pick up their belongings, does not change that result. State v. Z.A., 41 Fla. L. Weekly D1640b (2nd DCA 7/15/16)

APPEALS-INVOLUNTARY PLEA:
Claim that plea was involuntary based on advice of counsel was not preserved for appeal where defendant did not move to withdraw plea in trial court. Kendrick v. State, (5th DCA 7/15/16)

POST CONVICTION RELIEF: Court erred by summarily denying the claim that counsel was ineffective for allowing the defendant to enter a plea despite knowing that he was under the influence of antipsychotic medication. Hird v. State, 41 Fla. L. Weekly D1638c (5th DCA 7/15/16)

NEWLY DISCOVERED EVIDENCE
: Allegation that a fellow inmate would testify the prosecution witness had recanted his testimony was facially insufficient to allow a new trial. Robinson v. State, 41 Fla. L. Weekly D1638b (5th DCA 7/15/16)

LESSER INCLUDED: Where defendant is charged with robbery with a deadly weapon to with a firearm, and jury made a finding that he did not possess a firearm, he cannot be convicted of robbery with a deadly weapon. The appropriate crime can be no greater than robbery with a weapon. Davis v. State, 41 Fla. L. Weekly D1638a (5th DCA 7/15/16)

MANDAMUS-PUBLIC RECORDS: Trial court erred in denying inmate's petition for writ of mandamus seeking to compel public defender to produce e-mails between public defender and assistant state attorney pursuant to public records request on ground that petition was moot because public defender provided the requested documents to inmate shortly after petition was filed. Cookston v. State, 41 Fla. L. Weekly D1634a (5th DCA 7/15/16)

DISCHARGE OF COUNSEL: The claim that the court erred by denying a motion to discharge counsel is moved to the accepted new counsel before the trial. Campbell v. State, 41 Fla. L. Weekly D1631a (3rd DCA 7/13/16)

ARGUMENT: In case of attorney's theft of clients' trust funds, prosecutor's comments disparaging lawyers is improper but error was not preserved for appeal by objection. Bailey v. State, 41 Fla. L. Weekly D1628b (3rd DCA 7/13/16)

SENTENCING-DOWNWARD DEPARTURE: Fact that crime was a white collar crime is not a valid basis for departure from Criminal Punishment Code, nor is need for payment of restitution on the facts of this case. Bailey v. State, 41 Fla. L. Weekly D1628b (3rd DCA 7/13/16)

QUOTATION: "The trial judge labored mightily to spare Bailey jail time, discoursing through thousands of years of penological thought from Plato's Protagoras (380 B.C.) ("[N]o one punishes the evil-doer under the notion, or for the reason, that he has done wrong, only the unreasonable fury of a beast acts in that manner. But he who desires to inflict rational punishment does not retaliate for a past wrong which cannot be undone. . . .") to the deontological, see generally, H.L.A. Hart, Punishment and Responsibility (1968). However, contrary to the writings of these philosophers, the Shakespearean-like angst of the trial judge, and the fury of beasts notwithstanding, we have no difficulty preferring in each of their steads the prevenient principles of punishment enunciated by our controlling muse, the Florida legislature, which has instructed that "[t]he primary purpose of sentencing is to punish the offender." Bailey v. State, 41 Fla. L. Weekly D1628b (3rd DCA 7/13/16)

SENTENCING: Combined sentence of 11.67 years in prison followed by 10 years of probation is illegal as it exceeds the 15-year statutory maximum for the second degree felonies. Paul v. State, 41 Fla. L. Weekly D1618a (4th DCA 7/13/16)

SEALING OF RECORD
: Trial court abused its discretion by denying motion to seal criminal record without conducting hearing and stating reasons for denying petition other than that state objected. J.A.H. v. State, 41 Fla. L. Weekly D1616b (4th DCA 7/13/16)

RETURN OF PROPERTY
: Trial court erred in dismissing with prejudice a firearm owner's suit against sheriff seeking money damages for sheriff's refusal to return firearms seized during safety check until receipt of court order and an injunction preventing sheriff from enforcing its allegedly illegal policy of retaining lawfully-owned firearms seized in conjunction with safety check until ordered by court to return them. Sheriff not permitted to retain firearms seized in response to safety call which did not result in criminal investigation or charges. Dougan v. Bradshaw, 41 Fla. L. Weekly D1605a (4th DCA 7/13/16)

SEARCH AND SEIZURE-STOP-DOG SNIFF: Where officer had obtained all necessary information and could have started to write ticket immediately, but instead decided to interrupt traffic stop for dog sniff, the dog sniff unconstitutionally prolonged the completion of the traffic stop, although it was only a short period of time before dog alerted. Underhill v. State, 41 Fla. L. Weekly D1604b (4th DCA 7/13/16)

CONSECUTIVE SENTENCES: Error to impose sentence of six years with 3-year mandatory minimum for offense of possession of firearm by convicted felon consecutive to 12-year sentence for armed robbery, which included 10-year mandatory minimum for use of firearm. Gartman v. State, 41 Fla. L. Weekly D1601b (1st DCA 7/13/16)

SEARCH AND SEIZURE-CONSENSUAL ENCOUNTER: Encounter between officers and defendants in a vehicle was a consensual encounter. The presence of multiple officers was not coercive or there was nothing to suggest that the defendant was not free to leave. State v. Meachum, 41 Fla. L. Weekly D1597a (1st DCA 7/13/16)

JUVENILES-SECURE DETENTION: Court erred in ordering secure detention based on risk assessment score without addressing juvenile's objection to one-point increase for aggravating circumstances that increase recommended placement from non-secure or home detention to secure detention, Y.A. v. State, 41 Fla. L. Weekly D1640a (3rd DCA 7/12/16)

HABEAS CORPUS: Solitary confinement cannot be challenged by Writ of Habeas Corpus. Prior precedents receded from. Banks v. Jones, 41 Fla. L. Weekly D1584a (1st DCA 7/12/16)

QUOTATION (Dissent): "Thirty-five years of precedent are jettisoned, replaced in part by a pastiche of legal concepts cobbled together to create a newfound remedy, proving the adage that a camel is a horse designed by committee. Neither constitutional text, precedent, nor changed circumstances support the result; conflict and confusion are created where none has existed; and unforeseen, hydra-like consequences are born." Banks v. Jones, 41 Fla. L. Weekly D1584a (1st DCA 7/12/16)

MANSLAUGHTER-RECLASSIFICATION: Error to reclassify manslaughter from second-degree to first-degree felony based on use of "weapon" where weapon was automobile. Gonzalez v. State, 41 Fla. L. Weekly D1583a (2nd DCA 7/8/16)


APPEALS: Appellate court (Circuit court reviewing county court) erred in reversing order granting motion to suppress where it reweighed the evidence and applied its own analysis of whether the totality of circumstances supported probable cause. Malone v. State, 41 Fla. L. Weekly D1581a (2nd DCA 7/8/16)


LOITERING AND PROWLING: Defendant's act of entering neighbor's yard, ostensibly to look for his lost cat, is not loitering and prowling given that the fact that he had done so was discovered by electronic monitoring much later and no actual criminal act ever occurred. The purpose of the loitering and prowling statute is to stop incipient criminal behavior. Because no criminal act occurred it cannot be inferred that criminal behavior was interrupted. Error to find defendant violated probation. Acevedo v. State, 41 Fla. L. Weekly D1574b (5th DCA 7/8/16)

AMENDMENT TO JURY INSTRUCTIONS: Amendment to standard jury instructions on various offenses. Declines to determine whether enhancements are elements of the offenses without a case in controversy. http://www.floridasupremecourt.org/decisions/2016/sc15-2372.pdf In re: Standard Jury Instructions In Criminal Cases, 41 Fla. L. Weekly S329a (FLA 7/7/16)

LEAVING SCENE OF CRASH WITH DEATH: There must be a collision for someone to be charged with leaving scene of crash with death. Where a passenger became separated from his vehicle at the road and died the statute does not apply. Gaulden v. State, 41 Fla. L. Weekly S327a (FLA 7/716)

PROBATION-CONDITIONS: Sex offender therapy as a condition of probation is not limited to statutorily enumerated sexual offenses, but where defendant was convicted of misdemeanor battery as a lesser included of lewd or lascivious molestation the court may not impose that condition because it is not related to the crime of conviction. A special condition of probation is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Villanueva v. State, 41 Fla. L. Weekly S319f (FLA 7/7/16)

ANIMAL CRUELTY: Failure to act can constitute an act of animal cruelty. Jury instruction which included an instruction on failure to act as a correct statement of the law, a the statute had not yet been amended to include failure to act. Kervin v. State, 41 Fla. L. Weekly D1570a (1st DCA 7/6/16)

PROBATION REVOCATION: Officer's identification of white powdery substance as cocaine is legally insufficient, but coupled with the lab report, evidence is sufficient to revoke probation. Previous opinion withdrawn. Ware v. State, (2nd DCA 7/6/16)

DRIVING WITH LICENSE REVOKED
: Defendant who has never had a driver's license cannot properly be convicted of offense of driving when his driver's license has been revoked. Burgess v. State, 41 Fla. L. Weekly D1562a (7/6/16)

CRIMINAL MISCHIEF
: Damage to a bar during a barroom scuffle caused by a bystander who tried to break up a fight between the Defendant and patron is not criminal mischief. Allen v. State, 41 Fla. L. Weekly D1561c (2nd DCA 7/6/16)

DOUBLE JEOPARDY
: Trial court violated double jeopardy rights by increasing the prison sentence by one day after the defendant began serving it. The original case was remanded for resentencing after the appellate court held that the PRR and HFO sentences were unlawful because they were of the same length. Williams v. State, 41 Fla. L. Weekly D1561b (2nd DCA 7/6/16)

PROBATION REVOCATION: Error to find that state proved new offense of disorderly intoxication where there was insufficient evidence that defendant caused public disturbance or endangered public safety. Palancar v. State, 41 Fla. L. Weekly D1557c (4th DCA 7/6/16)

POST CONVICTION RELIEF
: Trial court erred in denying, as successive, a rule 3.850 motion alleging ineffective assistance of resentencing counsel where prior motion was filed before resentencing, at Defendant failed to demonstrate original probability that he would have received a lesser sentence. President v. State, 41 Fla. L. Weekly D1557b (4th DCA 7/6/16)

AGGRAVATED BATTERY-RECLASSIFICATION: Trial court erred in enhancing aggravated battery charge from second-degree felony to first-degree felony without clear finding that defendant used firearm in commission of crime. Mosby v. State, 41 Fla. L. Weekly D1554a (5th DCA 7/1/16)

NEWLY DISCOVERED EVIDENCE
: Motion seeking relief based on victim's recantation was facially insufficient where defendant failed to attach copy of victim's sworn affidavit to motion or provide explanation as to why required affidavit could not be obtained. Good v. State, 41 Fla. L. Weekly D1553d (5th DCA 7/1/16)

DOUBLE JEOPARDY
: Double jeopardy prohibits separate convictions for burglary with assault or battery and simple battery where the verdict form gave no indication as to whether the jury found the defendant to have committed burglary with assault or burglary with a battery. Verdone v. State, 41 Fla. L. Weekly D1553c (5th DCA 7/1/16)

APPEARANCE BY TELEPHONE
: An incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically. Potchen v. Potchen, 41 Fla. L. Weekly D1553b (5th DCA 7/1/16)

JUNE 2016

SALE OF CONTROLLED SUBSTANCE WITHIN 1000 FEET OF PUBLIC HOUSING: Testimony of employee of city housing authority that facility near which defendant sold drugs was a government entity established through city to provide low-income housing in the city was sufficient to establish that facility was a public housing facility. Ash v. State, 41 Fla. L. Weekly D1552a (5th DCA 7/1/16)

RULES OF APPELLATE PROCEDURE
: Rules tweaked for Anders Briefs. Http://www.floridasupremecourt.org/decisions/2016/sc15-2296_Revised_Opinion.pdf. In Re: Amendments, 41 Fla. L. Weekly S317a (FLA 6/30/16)

POST CONVICTION RELIEF-DEATH PENALTY
: Defendant who has waived penalty phase jury is not entitled to relief under decision of U.S. Supreme Court holding that Sixth Amendment requires a jury find the facts necessary to impose death penalty. Brant v. State, 41 Fla. L. Weekly S307a (FLA 6/30/16)

JIMMY RYCE ACT
: Felony battery was a sexually violent offense where the offense was sexually motivated. Barber v. State, 41 Fla. L. Weekly D1546b (1st DCA 6/30/16)

WAIVER OF COUNSEL
: Failure of trial court to ask questions pertaining to defendant's competency to waive counsel requires reversal even where trial court has complied with requirement to advise defendant about advantages and disadvantages of self-representation. Stanley v. State, 41 Fla. L. Weekly D1545a (6/30/16)

STAND YOUR GROUND
: Defendant who successfully demonstrated that he is Stand Your Ground immunity in a criminal proceeding is not required to prove it again in a later civil suit. Conflict certified. Patel v. Kumar, 41 Fla. L. Weekly D1541a (2nd DCA 6/29/16)

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
: Appellate counsel was ineffective for failing to file motion to correct illegal consecutive mandatory minimum sentences for offenses committed during a single episode when defendant did not fire the firearm in his possession. Cruz v. State, 41 Fla. L. Weekly D1538b (2 nd DCA 6/29/16)

EVIDENCE-TRANSCRIPTS
: Objections to the accuracy of a transcript of a statement must be made pretrial. Objections made at the trial itself are too late. Strachan v. State, 41 Fla. L. Weekly D1533a (4th DCA 6/29/16)

PROBATION REVOCATION-CHANGE OF RESIDENCE: Defendant who checked out of his hotel residence, entered a hospital and then a rehabilitation center did not violate his probation by changing residence. Diamaio v. State, 41 Fla. L. Weekly D1532a (4th DCA 6/29/16)

RESISTING WITHOUT VIOLENCE
: Flight from police at the scene of a home burglary, standing alone, was insufficient to form basis of resisting charge, and there was no evidence that any officer directed defendant to stop either before or during flight. Brown v. State, 41 Fla. L. Weekly D1529b (4th DCA 6/29/16)

INJUNCTIONS
: Error to enter permanent injunction against stalking where respondent had legitimate reason for contacting petitioner (to inform her that he was making a documentary film that portrayed her in a negative light). O'Neill v. State, 41 Fla. L. Weekly D1527b (4th DCA 6/29/16)

WITHDRAWAL OF PLEA
: Trial court erred in denying motion to withdraw plea of defendant, who had previously been adjudicated incompetent, without holding the necessary competency hearing and making an independent determination of defendant's competency before holding the hearing on the motion to withdraw plea. Presley v. State, 41 Fla. L. Weekly D1521a (4th DCA 6/29/16)

RETURN OF PROPERTY
: Trial court abused its discretion in denying motion to return property taken from defendant upon his arrest-body armor and ammunition--where property was not subject to forfeiture or needed as evidence for any prosecution. Burch v. State, 41 Fla. L. Weekly D1520b (4th DCA 6/29/16)

LESSER INCLUDED
: Question certified: Is manslaughter a category one lesser included offense of second-degree felony murder? Dean v. State, 41 Fla. L. Weekly D1520a (4th DCA 6/29/16)

PHOTO LINEUP
: Victim's testimony at motion to suppress photo lineup is admissible as substantive evidence at trial where the victim is unavailable due to his murder after the hearing. Defendant had sufficient opportunity to cross-examine the victim at the motion to suppress. Wright v. State, 41 Fla. L. Weekly D1519a (4th DCA 6/29/16)

EVIDENCE
: Rap videos created by the defendant were admissible as relevant to the commission of the crime. Wright v. State, 41 Fla. L. Weekly D1519a (4th DCA 6/29/16)

SENTENCING-CONCURRENT SENTENCES
: The concurrent mandatory minimum sentences for possession and discharge of firearm is lawful. Wright v. State, 41 Fla. L. Weekly D1519a (4th DCA 6/29/16)

HABEAS CORPUS-INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
: Appellate counsel is ineffective for failing to raise the issue which resulted in the codefendant having his conviction for racketeering reversed. Defendant is entitled to a new appeal. Godinez v. State, 41 Fla. L. Weekly D1516b (4th DCA 6/29/16)

JURORS-PEREMPTORY CHALLENGE
: Trial court did not err in denying defendant's motion to "unstrike" the juror upon whom defendant used his last peremptory strike so that he could use his last peremptory strike on another juror where state had accepted the panel after defendant had used his last peremptory strike. Conflict certified. McCray v. State, 41 Fla. L. Weekly D1514b (4th DCA 6/29/16)

SENTENCING-CONSECUTIVE
: 10-20-life statute allows consecutive sentencing of qualifying offenses arising out of the same criminal episode if there is a discharge of firearm involving multiple victims. Sentences for qualifying offenses must be imposed consecutively to sentences for any non-qualifying offenses. Muturi v. State, 41 Fla. L. Weekly D1510b (1st DCA 6/28/16)

SENTENCING-CONSECUTIVE SENTENCES
: Where multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, consecutive sentencing is permissible but not mandatory. Acker v. State, 41 Fla. L. Weekly D1510a (1st DCA 6/28/16)

SENTENCING-CONSECUTIVE
: Consecutive mandatory minimum sentences under 10-20-Life statute reversed where trial court mistakenly believed that such sentences were mandatory rather than permissible. Tate v. State, 41 Fla. L. Weekly D1507b (1st DCA 6/28/16)

DOUBLE JEOPARDY
: Separate convictions for improper use of a computer service to solicit minor, unlawful use of a two-way communication device to further the commission of a felony, and traveling to meet a person believed to be a minor violated double jeopardy. Lashley v. State, 41 Fla. L. Weekly D1509a (1st DCA 6/28/16)

DOUBLE JEOPARDY
: Separate convictions for driving while license suspended resulting in death and vehicular homicide violated double jeopardy. Odom v. State, 41 Fla. L. Weekly D1507a (1st DCA 6/28/16)

PROBATION REVOCATION: Child is properly found guilty of violating probation for failing to complete residential treatment notwithstanding that her plan to remove herself from facility never came to fruition. A.L.A. v. State, 41 Fla. L. Weekly D1497a (1st DCA 6/24/16)

WITHDRAWAL OF PLEA: Where Defendant entered a plea to counterfeiting a payment instrument or possessing a counterfeit instrument. Possessing a counterfeit instrument is not a valid charge. It was error to vacate the conviction outright. The appropriate remedy would be to allow withdrawal of plea, vacate the conviction and grant the state file an information containing only the valid offense. State v. Mendez, 41 Fla. L. Weekly D1494a (5th DCA 6/24/16)

PROBATION REVOCATION-HEARSAY: Probation officer's testimony that defendant's driving log entries did not match GPS data from electronic monitoring system was hearsay, as the GPS data were offered to prove the truth of the matter asserted, that defendant was at specific locations at particular times on particular dates. Laing v. State, 41 Fla. L. Weekly D1493a (5th DCA 6/24/16)

POST CONVICTION RELIEF: Trial court erred in summarily denying claim that counsel was ineffective for failing to properly advise defendant of right to remain silent and not testify in his own defense, and then eliciting testimony from defendant on direct examination that he had prior felony convictions, and for failure to make objection or seek to remove sleeping juror. Collins v. State, 41 Fla. L. Weekly D1492b (5th DCA 6/24/16)

DOUBLE JEOPARDY: Separate convictions for burglary of a dwelling with assault or battery with a firearm, aggravated battery with a firearm, and aggravated assault with a firearm violates double jeopardy. Dykes v. State, 41 Fla. L. Weekly D1492a (5th DCA 6/24/16)

GRAND THEFT: Grand theft conviction based on theft of computer and iPad cannot stand where evidence is insufficient to prove that the aggregate value of those items at the time of the theft was $300 or greater. State failed to send evidence of depreciation in the items since their purchase. Chappell v. State, 41 Fla. L. Weekly D1485b (5th DCA 6/24/16)

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to object to admission of collateral crimes evidence is sufficient to warrant a hearing. Hayward v State, 41 Fla. L. Weekly D1485a (5th DCA 6/24/16

JIMMY RYCE: In a Jimmy Ryce case, an individual may seek belated appeal by filing habeas corpus petition in circuit court. Johnson v. State, 41 Fla. L. Weekly D1484a (5th DCA 6/24/16)

LESSER INCLUDED-ARSON: Instruction on second-degree arson of structure as a permissive lesser-included offense of first-degree arson of a dwelling is not required where, as in instant case, undisputed trial evidence demonstrates that structure was used exclusively as a dwelling, thereby excluding it from consideration as a second-degree arson offense. Conflict certified. Stevens v. State, 41 Fla. L. Weekly D1482a (2nd DCA 6/24/16)

CONSECUTIVE SENTENCES: Error to run non-habitual offender sentence for unlawful use of two-way device consecutively to habitual offender sentence for transmitting material harmful to minor where both charges arose out of same criminal episode. Weitz v. State, 41 Fla. L. Weekly D1479a (2nd DCA 6/24/16)

DUI-BREATH TEST: The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Birchfield v. North Dakota, No. 14-1468 (US S.Ct. 6/23/16)

DUI-BLOOD DRAW: The Fourth Amendment does not permit warrantless blood tests incident to arrests for drunk driving. Birchfield v. North Dakota, No. 14-1468 (US S.Ct. 6/23/16)

DUI-BLOOD DRAW: The Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Birchfield v. North Dakota, No. 14-1468 (US S.Ct. 6/23/16)

DUI-BLOOD DRAW: Motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. Birchfield v. North Dakota, No. 14-1468 (US S.Ct. 6/23/16)

QUOTATION
: "Bernard argues, however, that the process is nevertheless a significant intrusion because the arrestee must insert the mouthpiece of the machine into his or her mouth. . . . But there is nothing painful or strange about this requirement. The use of a straw to drink beverages is a common practice and one to which few object." Birchfield v. North Dakota, No. 14-1468 (US S.Ct. 6/23/16)

QUOTATION: "Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs." Birchfield v. North Dakota, No. 14-1468 (US S.Ct. 6/23/16)

ACCA: Iowa's burglary statutes do not make Defendant eligible for Armed Career Criminal Act because Iowa's burglary statute includes alternatives which differ from the generic definition of burglary. Mathis v. United States, No. 15-6092 (US S.Ct. 6/23/16)

PROBATION-CONDITIONS: Special condition of probation prohibiting defendant from associating with anyone who is illegally using drugs is not unconstitutionally vague, but in order to prove a violation of the condition, the state must prove the probationer's knowledge that the person with whom he associated was illegally using drugs at the time of the alleged violation. Demott v. State, 41 Fla. L. Weekly S304d (FLA 6/23/16)

SENTENCING-CONSECUTIVE
: Although trial court was not required to impose consecutive mandatory minimum sentences under 10-20-Life statute on three counts of attempted first degree murder, trial court's comments at sentencing establish that court would have done so regardless, so resentencing is not required. Noa v. State, 41 Fla. L. Weekly D1462a (4th DCA 6/22/16)

NEWLY DISCOVERED EVIDENCE: Trial court abused discretion in denying wish to withdraw plea where defendant, between fleeing and being sentenced, learned the confidential informant had been arrested on multiple charges. Long v. State, 41 Fla. L. Weekly D1460b (4th DCA 6/22/16)

CREDIT FOR TIME SERVED: Arrest date, rather than date on which charge was officially filed, is operative date for determining jail credit related to arrest for failure to appear. Fernandez v. State, 41 Fla. L. Weekly D1453c (2nd DCA 6/22/16)

PROBATION REVOCATION
: Evidence that defendant failed to answer probation officer's repeated knocks on doors and windows of his room was insufficient to establish that defendant willfully violated probation by failing to allow probation officer to visit him at his home where there was no evidence that probation officer announced her status and no evidence that defendant was aware that probation officer was knocking on his door. Sankey v. State, 41 Fla. L. Weekly D1453b (2nd DCA 6/22/16)

PROBATION REVOCATION: Probation officer's testimony that defendant was in arrears but was employed is insufficient to prove willfulness for failure to pay. Sankey v. State, 41 Fla. L. Weekly D1453b (2nd DCA 6/22/16)

VERDICT FORM: Listing of second degree felony of aggravated battery after third degree felony of attempted manslaughter as lesser included offenses in jury instructions and on verdict form did not constitute fundamental error. Conflict certified. McCoy v. State, 41 Fla. L. Weekly D1450b (1st DCA 6/21/16)

DOUBLE JEOPARDY: Separate convictions for use of computer service to solicit a person believed to be a minor to engage in sexual conduct and traveling to meet a minor violate double jeopardy. Griffis v. State, 41 Fla. L. Weekly D1450a (1st DCA 6/21/16)

DOUBLE JEOPARDY: Separate convictions for use of computer service to solicit a child to engage in sexual conduct and traveling to meet a minor violate double jeopardy. Snow v. State, 41 Fla. L. Weekly D1449a (1st DCA 6/21/16)

SEARCH AND SEIZURE-PROTECTIVE SWEEP: Where officers discovered a vehicle matching the description of the vehicle involved in armed robberies at a motel, officers knocked on the motel room door, and the door was opened by defendant who was recognized from a surveillance video as a participant in the robberies, officers had probable cause to arrest defendant and to conduct a protective sweep of the motel room to determine whether other participants in the armed robberies were present. State v. McCrae, 41 Fla. L. Weekly D1446h (1st DCA 6/21/16)

SEARCH AND SEIZURE: The attenuation doctrine allows the admission of evidence seized following an illegal detention when it is learned that the person detained had a warrant for his arrest. The discovery of the warrant constituted an intervening circumstance. The exclusionary rule only applies to flagrant misconduct by law enforcement officers not negligence. Utah v. Streiff, No. 14-1373 (US S.Ct. 6/20/16)

QUOTATION (DISSENT): "Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade vendors just to ensure they pose no threat to anyone else." Utah v. Streiff, No. 14-1373 (US S.Ct. 6/20/16)

QUOTATION (DISSENT): "I would add that unlawful "stops" have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers anarray of instruments to probe and examine you. When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens." Utah v. Streiff, No. 14-1373 (US S.Ct. 6/20/16)

QUOTATION (DISSENT)
: "For generations, black and brown parents have given their children 'the talk'-instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger-all out of fear of how an officer with a gun will react to them." Utah v. Streiff, No. 14-1373 (US S.Ct. 6/20/16)

QUOTATION (DISSENT): "We must not pretend that the countless people who are routinely targeted by police are 'isolated.' They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. . . They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but." Utah v. Streiff, No. 14-1373 (US S.Ct. 6/20/16)

HOBBS ACT: Robbery of a marijuana dealer constitutes a violation of the Hobbs Act notwithstanding that the dealer only sold locally. Any drug dealing constitutes interstate commerce. Taylor v. US, No. 14-6166 (US S.Ct. 6/20/16)

SENTENCING-PRISON RELEASEE RE-OFFENDER: Battery on a law enforcement officer does not qualify for enhancement under the Prison Releasee Re-offender statute. Butler v. State, 41 Fla. L. Weekly D1436f (2nd DCA 6/17/16)

DOUBLE JEOPARDY
: Double jeopardy prohibits separate convictions for unlawful use of computer service to solicit minor and traveling to meet minor. Seo v. State, 41 Fla. L. Weekly D1436a (1st DCA 6/17/16)

APPEALS: Claims of ineffective assistance of counsel cannot be considered on appeal where the ineffectiveness is not apparent on the face of the record. Thorough discussion on history of raising ineffective assistance of counsel claims on appeal. Latson v. State, 41 Fla. L. Weekly D1433a (1st DCA 6/17/16)

POST CONVICTION RELIEF: New death penalty hearing required where trial counsel failed to present significant evidence of Defendant's childhood abuse. State v Bright, 41 Fla. L. Weekly S290b (FLA 6/16/16)


DEATH PENALTY-EVIDENCE
: In-store video recording is admissible without strict authentication during the penalty phase. Authentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic Death penalty phase proceedings have a relaxed standard of admissibility of evidence. Case of first impression. Mullens v. State, 41 Fla. L. Weekly S279a (FLA 6/16/16)

SENTENCING-JUVENILE-LENGTHY SENTENCE
: 90 year aggregate sentence for juvenile in three nonhomicide offenses in different cases constitutes cruel and unusual punishment. It is the juvenile status at the time crimes were committed, rather than how the offenses are aggregated or categorized, that implicates the Eighth Amendment. Stephenson v. State, 41 Fla. L. Weekly D1425b (3rd DCA 6/15/16)

POST CONVICTION RELIEF: Defendant's motion for postconviction relief based on counsel's failure to convey plea offer is not rebutted by State's claim that the defendant would not have accepted the plea because he maintained innocence. Jacques v. State, 41 Fla. L. Weekly D1423b (4th DCA 6/15/16)

HEARSAY: Out-of-court statement made by defendant's accomplice is not admissible as hearsay. State's argument that the statements are admissible as one of identification is without merit. J.L. v. State, 41 Fla. L. Weekly D1418a (4th DCA 6/15/16)

IMPEACHMENT
: Failure to recall a statement does not justify admission of a prior record statement as impeachment. J.L. v. State, 41 Fla. L. Weekly D1418a (4th DCA 6/15/16)


EVIDENCE-ALIBI: Alibi witness is properly excluded where Defendant had failed to give timely notice of alibi in response to state's demand. McIntyre v. State, 41 Fla. L. Weekly D1417a (6/15/16)

APPEAL-JURISDICTION: Trial court has jurisdiction to rule on 3.850 motion notwithstanding that the case is subject to an appeal of a finding that the defendant violated probation. Dunston v. State, 41 Fla. L. Weekly D1415b (4th DCA 6/15/16)

SENTENCING-VINDICTIVENESS: In determining whether sentence was vindictive, appellate court is not restricted to looking only to plea offer and sentence ultimately received, but may consider lowest permissible sentence under Criminal Punishment Code. 30 month sentence, where bottom of the guidelines is 22.5 months, is not vindictive. Walker v. State, 41 Fla. L. Weekly D1414b (4th DCA 6/15/16)

SEALING: Error to deny petition to seal criminal record without an evidentiary hearing, based solely upon consideration of facts outlined in probable cause affidavit. Grey v. State, 41 Fla. L. Weekly D1414a (4th DCA 6/15/16)

COMPETENCY OF DEFENDANT: Competency hearing is mandatory, even though expert who assess the defendant found him competent to proceed. Trueblood v. State, 41 Fla. L. Weekly D1411a (1st DCA 6/15/16)

DOUBLE JEOPARDY: Separate convictions for unlawful use of computer service and traveling to meet minor based on same conduct violated double jeopardy. McCarthy v. State, 41 Fla. L. Weekly D1410b (1st DCA 6/15/16)

TRAFFICKING IN METHAMPHETAMINE
: Liquid by-product from manufacture of methamphetamine, which contained methamphetamine in addition to the waste by-product from the manufacturing process, was properly included when calculating the weight of the methamphetamine for purposes of meeting the threshold weight for trafficking. Wilder v. State, 41 Fla. L. Weekly D1407b (1st DCA 6/15/16)

ATTEMPTED LEWD AND LASCIVIOUS: Defendant's communications with law enforcement officer posing as adult looking for man to show her 13-year-old daughter about sex and defendant's travel to location where proposed sexual activity was scheduled to take place were sufficient to withstand motion for judgment of acquittal on charge of attempted lewd or lascivious battery. Batchelor v. State, 41 Fla. L. Weekly D1405b (2nd DCA 6/15/16)

DOUBLE JEOPARDY
: Separate convictions for traveling and unlawful use of two-way communications device violated double jeopardy where offenses were part of single criminal episode and information did not predicate charges on two distinct acts. Batchelor v. State, 41 Fla. L. Weekly D1405b (2nd DCA 6/15/16)

REVOCATION OF PROBATION: Defendant did not willfully and substantially violated probation by changing address without consent of probation officer where he changed his address on his driver's license but did not actually move. Goers v. State, 41 Fla. L. Weekly D1405a (2nd DCA 6/15/16)

PREDICATE CONVICTIONS: Neither the Sixth nor the Fifth Amendment prohibits the Government from using Defendant's uncounseled tribal-court convictions as predicates for the federal crime of committing a domestic assault within Indian country. US v. Bryant, No. 15-420 (US S.Ct. 6/13/16)

POST CONVICTION RELIEF: Defendant is not required to state in his motion with particularity the names and addresses of the witnesses whom trial counsel failed to call at the trial. Johnson v. State, 41 Fla. L. Weekly D1399j (3rd DCA 6/13/16)

SUPERSEDEAS BOND: Error to deny motion for supersedeas bond where appeal was taken in good faith on grounds fairly debatable, defendant is not flight risk, and 120-day term of imprisonment will be fully served before appeal can be considered and determined. Robinson v. State, 41 Fla. L. Weekly D1397a (3rd DCA 6/10/16)

LIFE SENTENCE-JUVENILE
: Fifty-six-year sentence for juvenile offender who was 17 at time he committed offense and 18 at time he was sentenced is unconstitutional. Graham applies to lengthy term-of-year sentences, not just life sentences, and applies retroactively. Question certified as to when a lengthy sentence for a juvenile unconstitutional. Peterson v. State, 41 Fla. L. Weekly D1394d (5th DCA 6/10/16)

SENTENCING-JUVENILE-LENGTHY SENTENCE
: 51-year sentence for homicide committed in 1994 when defendant was 15 years old did not amount to de facto life sentence that did not provide meaningful opportunity for relief where defendant had meaningful opportunity for early release due to his potential to accrue significant gain time. With gain time, defendant may be released at the age of 41. Tarrand v. State, 41 Fla. L. Weekly D1393b (5th DCA 6/10/16)

FLEEING-LESSER INCLUDED
: Trial court erred in refusing to instruct jury on category two permissive lesser-included offense of disobeying a law enforcement officer where instruction was supported by allegations of charging document and evidence at trial. Lucas v. State, 41 Fla. L. Weekly D1389a (2nd DCA 6/10/16)

COSTS
: Error to impose indigent legal assessment in amount exceeding statutory mandatory minimum fee without notifying defendant of right to contest imposition of portion of assessment exceeding the statutory amount. Mojica v. State, 41 Fla. L. Weekly D1388a (2nd DCA 6/10/16)

HEARSAY
: Detective's testimony that he contacted tag agency and learned that defendant had changed registration and license plate of vehicle which was involved in accident from his sister to himself was inadmissible hearsay. Where a witness has no personal knowledge of a matter, and the witness's knowledge is derived entirely from information given by another, the witness's testimony is inadmissible as hearsay. Leonard v. State, 41 Fla. L. Weekly D1384a (2nd DCA 6/10/16)

OBSTRUCTION
: Judgment of dismissal required where obstruction charge was based on walking away from officer after officer had summoned him to inquire about reported yelled profanities. D.L.S. v. State, 41 Fla. L. Weekly D1381d (2nd DCA 6/10/16)

DISQUALIFICATION OF JUDGE: State Supreme Court judge is required to recuse himself where he, as a prosecutor, was involved in decision to seek the death penalty for the Defendant. "[A]n unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case. Williams v. Pennsylvania, No. 15-5040 (US S. Ct. 6/9/16)

QUOTATION: "An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication." Williams v. Pennsylvania, No. 15-5040 (US S. Ct. 6/9/16)


QUOTATION (Dissent): "The majority opinion rests on proverb rather than precedent." Williams v. Pennsylvania, No. 15-5040 (US S. Ct. 6/9/16)

DOUBLE JEOPARDY: Double Jeopardy bars prosecutions under analogous statutes for the same act by both Puerto Rico and the United States. Puerto Rico, as United States territory, is not a separate sovereign for the purposes of double jeopardy law. Puerto Rico v. Sanchez Valle, 15-108 (US S.Ct. 6/9/16)

LIFE SENTENCE-JUVENILES: A non-mandatory life sentence without parole for second-degree murder for a juvenile violates the Eighth Amendment pursuant to the United States Supreme Court's decision in Miller v. Alabama. Because trial court was not required to, and did not take into account, youth-related factors outlined in Miller, juvenile's life sentence without parole is unconstitutional. Landrum v. State, 41 Fla. L. Weekly S274a (FLA 6/9/16)

QUOTATION
: "The sentencing court's discretion must be guided by two overarching principles. . .The requirement that sentencing courts give due weight to evidence that Miller deemed constitutionally significant before determining that the most severe punishment possible for juvenile offenders is appropriate; and that. . .sentencing juvenile offenders to life imprisonment must be 'rare' and 'uncommon.'" Landrum v. State, 41 Fla. L. Weekly S274a (FLA 6/9/16)


PRESERVING ISSUE
: State's allusion to cops recognizing the defendant's nickname from a list of drug dealers, and confidential informants statement that he had bought drugs from the defendant in the past, was unobjected to and therefore not preserved for appeal. Watts v. State, 41 Fla. L. Weekly D1381b (1st DCA 6/9/16)

PROBATION REVOCATION
: Probationary period was not tolled by affidavit of violation which merely alleged technical violations, including failure to pay restitution, drug-testing fees, and costs of supervision, and accompanying arrest warrant based on those technical violations. Lewin v. State, 41 Fla. L. Weekly D1393a (4th DCA 6/8/16)

PRESERVATION OF ISSUE
: Officer's statement that he received information from "jail management system" was not objected to and therefore preserved for appeal. White v. State, 41 Fla. L. Weekly D1374a (4th DCA 6/8/16)

NEWLY DISCOVERED EVIDENCE
: Confidential Informant's affidavit contradicting detective's testimony that Defendant sold CI cocaine in a hand-to-hand transaction is not of a nature that would probably produce an acquittal on retrial. New trial properly denied. Dawson v. State, 41 Fla. L. Weekly D1372a (4th DCA 6/8/16)

MANDATORY MINIMUM-CONSECUTIVE
: Consecutive mandatory minimum sentences for multiple firearm offenses from same criminal episode where weapon is not discharged must be concurrent. Azor v. State, 41 Fla. L. Weekly D1370a (4th DCA 6/8/16)

STAND YOUR GROUND
: Jury instructions regarding duty to retreat when there is a question as to whether defendant was initial aggressor accurately communicated the law to the jury and did not constitute fundamental error. Brown v. State, 41 Fla. L. Weekly D1369b (4th DCA 6/8/16)

PRESERVATION OF ISSUE
: "Floyd's failure to object or raise concerns belies his contention that the instructions were confusing, misleading, or contradictory. . .Floyd's counsel discussed the instructions . . .; repeatedly agreed to the instructions; played an active role in tailoring the instructions; and offered various comments. He even had an opportunity to reflect on the instructions overnight. Despite this extensive participation in the tailoring of the jury instructions, Floyd's counsel never once raised any concern or objected regarding the interplay between the "Stand Your Ground" language and the "Initial Aggressor" language. . . Because the unobjected-to jury instructions accurately communicated the law to the jury and did not constitute fundamental error, we affirm Brown's judgment and sentence." Brown v. State, 41 Fla. L. Weekly D1369b (4th DCA 6/8/16)

SOLICITATION OF PROSTITUTION
: $5,000 fine is not unconstitutional. Rolle v. State, 41 Fla. L. Weekly D1368b (4th DCA 6/8/16)

CROSS-EXAMINATION
: Defendant should have been allowed to question witness about his detention at an immigration detention facility at the time he identified defendant from photo lineup in order to show his possible belief that cooperating with the state would benefit his immigration status. Defendant is not required to show the witness actually believed he would benefit by testifying as a predicate to admissibility. Fajardo v. State, 41 Fla. L. Weekly D1365a (4th DCA 6/8/16)


POST CONVICTION RELIEF
: Failure to properly investigate and move to suppress the identification by witness does not justify a new trial because there is no probability that the motion to suppress would have been granted nor does the alleged deficient performance undermine confidence in the outcome of the verdict. Curtis v. State, 41 Fla. L. Weekly D1363a (4th DCA 6/8/16)

APPEALS
: Claim of ineffective assistance of counsel cannot be raised on direct appeal where ineffectiveness is not apparent on face of record. Rivera v. State, 41 Fla. L. Weekly D1356c (3rd DCA 6/8/16)

APPEALS
: Summary affirmance is proper where defendant entered plea without reserving right to appeal denial of motion to suppress, and trial court did not find that motion to suppress would have been dispositive. Williams v. State, 41 Fla. L. Weekly D1356b (3rd DCA 6/8/16)

SENTENCING-CONSIDERATIONS
: Court fundamentally erred when it based his sentence on unsubstantiated allegations of threatening witnesses and other misconduct. Williams v. State, 41 Fla. L. Weekly D1350b (1st DCA 6/7/16)

EVIDENCE
: Showing of videos of defendant's first appearance in criminal court in jail garb in front of judge who instructed him to have no contact with victim in this stalking case was error, but error was harmless under circumstances. State could have used a transcript or played only audio. Thompson v. State, 41 Fla. L. Weekly D1349a (1st DCA 6/7/16)

PROBATION REVOCATION-JURISDICTION EXPIRED: Probationary period was not tolled by affidavit of violation which merely alleged technical violations, including failure to pay restitution, drug-testing fees, and costs of supervision. Trial court lacked jurisdiction to extend probation after expiration of probationary term and to subsequently revoke the extended probation. Lewin v. State, 41 Fla. L. Weekly D1393a (4th DCA 6/8/16)

SELF-DEFENSE-FORCIBLE FELONY EXCEPTION: Defendant does not act in self-defense where he is committing a forcible felony. Forcible felony does not have to be charged as a separate counts where the defendant was charged with 1st° premeditated murder, and there was evidence of felony murder. Cook v. State, 41 Fla. L. Weekly D1347b (2nd DCA 6/3/16)

COLLATERAL ESTOPPEL: Defendant may be tried on a severed count of possession of a firearm by a felon after being acquitted of related charges where it is unclear whether the acquittal was a finding that the defendant did not possess the fire. State v. Brice, 41 Fla. L. Weekly D1336a (2nd DCA 3/3/16)

POST CONVICTION RELIEF-SUCCESSIVE MOTIONS
: Doctrines of law of the case and collateral estoppel do not apply to preclude consideration of successive rule 3.800(a) motion when doing so would result in a defendant serving a sentence that exceeds the sentence that could have been legally imposed. Huffman v. State, 41 Fla. L. Weekly D1334a (2nd DCA 6/3/16)

HEARSAY: Trial court erred in permitting victim's sister to testify that, within a few days after victim went missing, her father told her that a neighbor told him there was a disturbance at the home victim's disappearance. Testimony was not admissible to explain sequence of events. Kaseta v. State, 41 Fla. L. Weekly D1331e (2nd DCA 6/3/16)

POST CONVICTION RELIEF: Defendant entitled to appointment of conflict-free counsel where pro se motion to withdraw plea alleged public defender had coerced defendant into entering plea. Lopez v. State, 41 Fla. L. Weekly D1330b (5th DCA 6/3/16)

APPEAL: Trial court had jurisdiction to decide motion to withdraw plea which was pending at time notice of appeal was filed. Davidson v. State, 41 Fla. L. Weekly D1330a (5th DCA 6/3/16)


POST CONVICTION RELIEF
: Motion for New Trial based on newly discovered evidence is timely where the motion is filed within 2 years of the conviction becoming final, although more than 2 years after the evidence is discovered. Harris v. State, 41 Fla. L. Weekly D1329b (5th DCA 6/3/16)

APPEALS: Failure to provide record on appeal, including final judgment and transcript of trial, results in affirmance. Benevides v. Reese, 41 Fla. L. Weekly D1328c (5th DCA 6/3/16)

DOUBLE JEOPARDY: Separate convictions for grand theft and dealing in stolen property which occurred in the course of the same scheme violates Fla.Stat. §812.025. Dobrowolski v. State, 41 Fla. L. Weekly D1328a (5th DCA 6/3/16)

SENTENCING-DEPARTURE: Walking into an open garage does not establish lack of sophistication. The mere act of entering a plea and saying "I'm sorry" is insufficient to establish remorse. Tatian State v. Centeno, 41 Fla. L. Weekly D1327b (5th DCA 6/3/16)

PROBATION REVOCATION
: Evidence that defendant, a gang member, was talking with other gang members in an area known for gang activity, drug sales, and violent crimes was insufficient to establish new law violation of unlawful assembly. Smith v. State, 41 Fla. L. Weekly D1317a (3rd DCA 6/1/16)

HEARSAY: Trespass enforcement document is admissible as a self-authenticating document. Even if hearsay, the argument is waived because the defendant failed to object at his probation revocation hearing. Smith v. State, 41 Fla. L. Weekly D1317a (3rd DCA 6/1/16)

DRIVING WITH LICENSE SUSPENDED
: Defendant could not be convicted of driving while license suspended, revoked, canceled, or disqualified where defendant never had a Florida driver's license. Conflict certified with the 2nd, 4th, and 5th DCAs. State v. Miller, 41 Fla. L. Weekly D1316a (3rd DCA 6/1/16)

COSTS: Trial court erred in imposing public defender fees without providing defendant with required notice. Brooks v. State, 41 Fla. L. Weekly D1314a

SENTENCING-HABITUAL OFFENDER: One may be sentenced as a habitual offender where one of the predicate offenses is possession of cocaine. Lake v. State, 41 Fla. L. Weekly D1309c (4th DCA 6/1/16)

STATEMENT OF DEFENDANT
: No error in denying Motion to Suppress where officer referred to the death penalty during interrogation, and where Defendant reinitiated conversation with the police after requesting an attorney properly denied. Shelly v. State, 41 Fla. L. Weekly D1309a (4th DCA 6/1/16)

PRINCIPAL: Fact that defendant maneuvered his truck to block patrol car as officer was attempting to pass defendant to get license plate n will umber off stolen truck was not sufficient to establish defendant's knowledge that truck was stolen or that defendant assisted codefendant in stealing the truck. Counsel provided ineffective assistance of counsel by failing to move for judgment of acquittal. Alfonso-Roche v. State, 41 Fla. L. Weekly D1299b (4th DCA 6/1/16)

SENTENCING: Question certified whether a sentence within the statutory maximum violates Due Process or Eighth Amendment when it is significantly greater than the lowest permissible sentence on the defendant's scoresheet or the offered plea and grossly disproportionate to the median sentence imposed for similar crimes within the jurisdiction? "[W]e . . see sentences that beg for justification that the record does not provide." Alfonso-Roche v. State, 41 Fla. L. Weekly D1299b (4th DCA 6/1/16)


SENTENCING-QUOTATION
: 55-year-old defendant with no prior record is sentenced to 35 years for a nonviolent, unarmed theft of two boats. "An evolving concept of the type of punishment that is cruel or unusual compels the conclusion that the sentence in this case violates the Florida and United States Constitutions. Fairness, justice, and due process dictate that the sentence be reversed and the case remanded for resentencing." Alfonso-Roche v. State, 41 Fla. L. Weekly D1299b (4th DCA 6/1/16), concurring opinion.

SENTENCING-QUOTATION
: "Disproportionately long sentences mask other constitutional violations in sentencing. . .[I]n some courtrooms, some defendants receive a harsher sentence after they exercise their right to a jury trial. . .Reversals, however, occur only when the record reveals an improper sentencing motive. . .Judicial silence presents an insurmountable obstacle to establishing a record of a constitutional violation in sentencing." Alfonso-Roche v. State, 41 Fla. L. Weekly D1299b (4th DCA 6/1/16), concurring opinion.

SENTENCING-QUOTATION
: "Here the trial judge's stated reasons for the 35-year sentence do not justify the length of the sentence. The trial judge said that the crime -- the stealing of boat motors -- was committed with "great sophistication"; however, unlike a complex economic crime, the mechanics of this episode are hardly sophisticated. Planning a crime and wearing gloves to avoid detection is not synonymous with sophistication." Alfonso-Roche v. State, 41 Fla. L. Weekly D1299b (4th DCA 6/1/16), concurring opinion.

SENTENCING-QUOTATION
: "Since, as I have said, judges usually say little or nothing to explain their sentences, the possibility that they were moved by absurd or vicious considerations is not usually open to inquiry. And the circle proceeds to be closed. The judges, if they are merely human rather than depraved, do not enjoy being caught in error. They know that an unexplained decision does not flaunt its possible fallacies. When they are not required to explain, many at least find this conclusive grounds for not explaining. There is no way of knowing, then, how many sentences, for how many thousands of years, have rested upon hidden premises that could not have survived scrutiny." Alfonso-Roche v. State, 41 Fla. L. Weekly D1299b (4th DCA 6/1/16), concurring opinion.


HABEAS CORPUS: Defendant may not file a motion for Habeas Corpus based on an alleged illegality of his sentence in the county where he is imprisoned. He must file a motion for postconviction relief in the county from which the sentence originated. Gill v. Jones, 41 Fla. L. Weekly D1299a (4th DCA 6/1/16)

PLEA-VOLUNTARINESS: Trial court improperly denied motion for post conviction relief where Department of Corrections determined a release date based on "controlling case number" for which defendant had received only one day of jail credit as opposed to conviction for which he had received 674 days of credit, and defendant alleges that had he known he would not receive credit for the 674 days, he would not have entered plea. Colon v. State, 41 Fla. L. Weekly D1294a (4th DCA 6/1/16)


POST CONVICTION RELIEF
: Court properly denied motion for postconviction relief filed more than 2 years after the judgment and sentence became final. Where, upon appeal, 3 of 4 convictions were affirmed and the final was remanded for further disposition, the start time for the 3 convictions was when they were affirmed,, not when the 4th count was disposed of. Lewis v. State, 41 Fla. L. Weekly D1288b (4th DCA 6/1/16)

EXCESSIVE FINE: $5000 civil penalty for solicitation of prostitution is not unconstitutionally excessive. State v. Sasieta, 41 Fla. L. Weekly D1288a (4th DCA 6/1/16)

PROBATION REVOCATION: Error to include as prior record a conviction on one count for which defendant was on probation where crime was not committed before the primary offense. This crime could not be scored as additional offense where it was not pending before the trial court at the time of sentencing following probation revocation. Dennewitz v. State, 41 Fla. L. Weekly D1286a (2nd DCA 6/1/16)

PROBATION REVOCATION: Error to find defendant violated probation by failing to comply with probation officer's instruction to sign a HIPPA release, as this was a new requirement calling for release of private medical information and state failed to establish that the instruction was reasonable and necessary for implementing a court-imposed condition. Marchan v. State, 41 Fla. L. Weekly D1285a (2nd DCA 6/1/16)

PROBATION REVOCATION
: Error to find defendant willfully violated probation by failing to report to probation office on certain date where evidence established that defendant was in hospital on that date and was transferred to another facility where he was Baker Acted. Marchan v. State, 41 Fla. L. Weekly D1285a (2nd DCA 6/1/16)

SUCCESSOR JUDGE: Judge #1, after a revocation hearing, makes oral findings that the Defendant violated probation, and is then disqualified. Judge #2 sentences the defendant without hearing the evidence supporting Judge #1's rulings. Judge #1, although disqualified, must reduce his findings to writing and Judge #2 must resentence defendant. Helveston v. State, 41 Fla. L. Weekly D1284a (2nd DCA 6/1/16)

SEARCH AND SEIZURE: Officer who responded to a robbery BOLO of three males with a firearm did not have well-founded suspicion justifying stop of vehicle near area. Officer's observation of backseat passenger "bouncing around" and "laying down" did not provide well-founded suspicion of criminal activity. Sousa v. State, 41 Fla. L. Weekly D1283a (2nd DCA 6/1/16)

EXPOLIATION: Trial court erred in dismissing information on basis that law enforcement lost or destroyed photo packs which contained photos of defendant, and that witnesses were unable to identify defendant from the photos. Where lost or destroyed evidence is only potentially useful to defendant, defendant must establish bad faith on part of law enforcement in order to succeed on motion to dismiss. State v. Lambo, 41 Fla. L. Weekly D1282a (2nd DCA 6/1/16)

RESTITUTION: Victim's testimony regarding purchase price and condition of stolen television was sufficient to support restitution award, but testimony as to how much she had been offered for stolen antique rifles and prosecution's assertion as to the value of the rifles did not establish sufficient basis for restitution award. Speculative testimony regarding value of stolen gemstones was insufficient to support restitution award. Duncan v. State, 41 Fla. L. Weekly D1277b (2nd DCA 6/1/16)

MAY 2016

CREDIT FOR TIME SERVED: Defendant was entitled to credit for prison time served on original sentence against probationary term imposed after original sentence was reversed by appellate court and remanded. Schreiner v. State, 41 Fla. L. Weekly D1275a (1st DCA 5/31/16)

SENTENCING: Where a trial court imposes a sentence on an individual defendant with the intent to "send a message" to the community, the sentence rests on an impermissible sentencing consideration. Charles v. State, 41 Fla. L. Weekly D1269f (4th DCA 5/31/16)

DEATH PENALTY: Where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole, the Due Process Clause entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel. Lynch v. Arizona, 578 U. S. ____ (5/31/16)

COSTS: Court erred in imposing $300 public defender lien, $200 fine pursuant to section 775.083(1), and $10 surcharge pursuant to section 938.04 without giving defendant notice and an opportunity to be heard. Carmichael v. State, 41 Fla. L. Weekly D1269a (1st DCA 5/27/16)

EVIDENCE: Trial court did not abuse its discretion by allowing state to introduce "crime and time" report, after the extraneous and unnecessary parts were redacted, in order to prove defendant had been convicted of certain qualifying sexual offense and was released from incarceration for qualifying offense after October 1, 1997. Mosley v. State, 41 Fla. L. Weekly D1268a (1st DCA 1st 5/27/16)

COSTS: $1000 public defender fee reversed where trial court asked defendant whether he believed $1000 was reasonable amount for fee, defendant was not informed of right to challenge amount, and defendant had only moments before heard his own defense counsel request that amount, so that if defendant had objected, the conflict of interest between him and his attorney would have effectively denied him the legal representation. Mosley v. State, 41 Fla. L. Weekly D1268a (1st DCA 1st 5/27/16)

MANDATORY MINIMUM-CONSECUTIVE: Resentencing required where supreme court subsequently held that consecutive sentences under statute for offenses committed contemporaneously were permissible but not mandatory. Henderson v. State, 41 Fla. L. Weekly D1267a (1st DCA 5/27/16)

COSTS: Error to impose "juror costs" without notice and opportunity to be heard. Costs of judicial administration are not included in costs of prosecution. Henderson v. State, 41 Fla. L. Weekly D1267a (1st DCA 5/27/16)

SENTENCING-UPWARD DEPARTURE: Sentencing court's finding of defendant's danger to public must be more than recitation of acts that are inherent to the crimes for which the defendant was convicted. Court must make findings to establish a nexus between sentencing an offender to a nonstate prison sanction and the resulting danger that nonstate prison sanction could present to the public. A court cannot use an inherent component of the crime in question to justify departure. Reed v. State, 41 Fla. L. Weekly D1264b (2nd DCA 5/27/16)

DOUBLE JEOPARDY
: Separate convictions for use of computer to seduce, solicit, or entice child to commit sex act and traveling to seduce, solicit, or entice child to commit sex act based upon same conduct violate double jeopardy. Duclos-Lasnier v. State, 41 Fla. L. Weekly D1262d (2nd DCA 5/27/16)

ATTEMPTED LEWD OR LASCIVIOUS BATTERY: Texting picture of naked erect penis and showing up at designated location for stated purpose of having sex with victim were overt acts sufficient to constitute an attempt. Duclos-Lasnier v. State, 41 Fla. L. Weekly D1262d (2nd DCA 5/27/16)

TRANSMISSION OF IMAGE HARMFUL TO MINOR: Photos sent as cellular phone text messages violate section 847.0138(2), which prohibits transmission to a minor of material harmful to minors by electronic device or equipment. Duclos-Lasnier v. State, 41 Fla. L. Weekly D1262d (2nd DCA 5/27/16)

ATTEMPT: The doctrine of legal impossibility does not exist in Florida. One is guilty of attempted crimes against a minor where the minor is in fact a police officer. Duclos-Lasnier v. State, 41 Fla. L. Weekly D1262d (2nd DCA 5/27/16)

DOUBLE JEOPARDY
: Separate convictions for using a computer to solicit a person believed to be a parent for sex with a minor and traveling after using a computer to solicit a person believed to be a parent for sex with a minor violate prohibition against double jeopardy. Senger v. State, 41 Fla.L.Weekly D 1259a (5th DCA 5/27/16)

ENTRAPMENT: Actions of undercover detective, posing as the mother of a minor, in placing ad on Craigslist did not constitute objective or subjective entrapment. Senger v. State, 41 Fla. L. Weekly D1259a (5th DCA 5/27/16)

POST CONVICTION RELIEF: Error to summarily deny claims that counsel was ineffective for failure to request DNA testing and failure to introduce admissions of a witness without attaching documents refuting claims. Smith v. State, 41 Fla. L. Weekly D1258c (5/27/16)

JUDGMENT OF ACQUITTAL: Trial court erred by denying motion for judgment of acquittal on charge of lewd and lascivious molestation where only evidence to support charge was victim's out-of-court statements, which were contradicted by victim's in-court testimony. Halliday v. State, 41 Fla. L. Weekly D1256c (5th DCA 5/27/16)


MAILBOX RULE: Court erred in summarily denying motion for post conviction relief without a hearing where prison stamp shows it was timely delivered to prison officials for filing. McDonald v. State, 41 Fla. L. Weekly D1256b (5th DCA 5/27/16)

LIFE SENTENCE-JUVENILE-HOMICIDE: Sentence of mandatory term of life imprisonment, with possibility of parole after 25 years, for homicide committed when defendant was juvenile is virtually indistinguishable from a sentence of life without parole and is therefore unconstitutional. Florida's existing parole system, as set forth by statute, requires that primary weight be given to seriousness of offender's present offense and past criminal record and does not provide for individualized consideration of defendant's juvenile status at time of murder. Sentencing court is authorized to impose sentence from 40 years to life imprisonment after considering youth-related sentencing factors, with review after 25 years. Atwill v. State, 41 Fla. L. Weekly S244a (FLA 5/26/16)

NEWLY DISCOVERED EVIDENCE: There was no probability that outcome of trial would be changed by newly discovered evidence that codefendant had told investigators that defendant and victim struggled with gun before defendant was shot and that codefendant secured a plea agreement with state before testifying at defendant's trial. Melton v. State, 41 Fla. L. Weekly S242a (FLA 5/26/6)

RULES OF APPELLATE PROCEDURE: Rules amended to codify Anders briefs and procedures to correct errors in sentencing. In Re: Amendments, 41 Fla. L. Weekly S241b (FLA 5/26/16)

HEARSAY: No error in admitting non-hearsay testimony of victim's sister regarding the victim's reporting lewd and lascivious conduct incident to the sister, the victim's demeanor during the disclosure, and the sister's suggestion to report the incident to their mother. Demeanor evidence is not hearsay. De los Rios, 41 Fla. L. Weekly D1254a (4th DCA 5/25/16)

INEFFECTIVE ASSISTANCE APPELLATE COUNSEL: Appellate counsel was ineffective for failing to raise court's error in finding that it was required to impose consecutive minimum mandatory ten-year sentences on two counts resulting from one criminal episode. Michel v. State, 41 Fla. L. Weekly D1253a (4th DCA 5/25/16)

BLOOD ALCOHOL TESTING: FDLE rules for Blood Alcohol Testing/collection and labeling of bottles are valid exercises of legislative authority and adequately protect reliability and consistency of blood testing. Goodman v. FDLE, 41 Fla. L. Weekly D1247b (4th DCA 5/25/16)

PROBATION-TOLLING: Question certified: In a situation where there is no warrantless arrest or notice to appear, can a warrant that does not allege a probationer committed a new crime be considered a warrant issued under section 901.02 of the Florida Statutes for the purpose of tolling a probationary period pursuant to section 948.06(1)(f)? Mobley v.State, 41 Fla. L. Weekly D1246a (4th DCA5/25/16)

INFORMATION: Fundamental error occurs when the name of the defendant's co-conspirator in the information is ("Ray Ray Webb) is different from the name proven at trial (Ray Ray Hicks). Variance exposes defendant to dangerous 2nd prosecution for the same offense. Long v. State, 41 Fla. L. Weekly D1245a (4th DCA 5/25/16)

JURY INSTRUCTIONS-LESSER INCLUDED: In Lewd or lascivious battery case, it is error to fail to give instruction on unnatural and lascivious act. Sex between an adult and a minor is an unnatural and lascivious act. Knighton v. State, 41 Fla. L. Weekly D1244b (4th DCA 5/25/16)

INEFFECTIVE APPELLATE COUNSEL: Appellate counsel was ineffective for failing to argue that the trial court erred in proceeding to trial without holding a competency hearing, where the trial court had appointed experts to examine defendant but the record contains no doctor's reports, no hearing and no order regarding defendant's competence. Silver v. State, 41 Fla. L. Weekly D1243a (4th DCA 5/25/16)

STATEMENTS OF DEFENDANT: Trial court erred in admitting confession which was induced by detective's repeated promises to lessen the charges against defendant if he told the truth. Squire v. State, 41 Fla. L. Weekly D1241a (4th DCA 5/25/16)

HEARSAY: Court properly admitted statement of victim that "J.R." shot her as an excited utterance, but erred in allowing officer testified to the content of BOLO that described the assailant and named him as "J.R." Squire v. State, 41 Fla. L. Weekly D1241a (4th DCA 5/25/16)

POST CONVICTION RELIEF: Trial court properly held that records specialist's failure to locate sworn statements given by material witnesses used to file the information did not render the charging document an illegally filed document, that there was no evidence the assistant state attorney committed perjury, and finally that defendant forfeited his right to challenge any defect in the information when he pleaded out the crimes in the information. Solorio v. State, 41 Fla. L. Weekly D1226c (3rd DCA 5/25/16)


EVIDENCE-EXPERT OPINION
: Trial court did not err in admitting testimony of arresting officer identifying plant material and pipe seized from juvenile's book bag as marijuana and drug paraphernalia. Lay persons can identify marijuana based on their personal experience and knowledge. R.C. v. State, 41 Fla. L. Weekly D1219b (2nd DCA 5/25/16)

JURY SELECTION-RACIAL DISCRIMINATION: Defendant may seek relief in the federal courts for racially discriminatory peremptory challenges where state court opinions do not establish that the denial of the Defendant's request relief was part on independent state grounds. The State's "explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution's file. . [compels] the firm conviction that the strikes . . [were] motivated in substantial part by discriminatory intent." Foster v. Chatman (US S.Ct. 5/23/16)

CONFESSION: Motion to suppress confession rightly denied where defendant was on probation and voluntarily accompanied police to Sheriff's office for interrogation. Wilson v. State, 41 Fla. L. Weekly D1211b (1st DCA 5/20/16)

SENTENCING-VINDICTIVENESS
: Presumption of vindictiveness arose where court extended to defendant a 30-year plea offer, advised that if he lost at trial there was possibility that defendant could receive life sentence, advocated accepting its plea offer, and ultimately imposed a higher sentence. Nunez v. State, 41 Fla. L. Weekly D1208a (5th DCA 5/20/16)

SEARCH AND SEIZURE-CELL PHONE: Warrantless search of defendant's cell phone incident to arrest violated Fourth Amendment, evidence is admissible based on officers objectively reasonable reliance on then binding precedent. Burton v. State, 41 Fla. L. Weekly D1200a (5th DCA 5/20/16)

APPEALS-FUNDAMENTAL ERROR: Appellate counsel was ineffective for failing to argue that trial court committed fundamental sentencing error when it considered impermissible factor that defendant continued to maintain his innocence. Heatly v. State, 41 Fla. L. Weekly D1196a (2nd DCA 5/20/16)

SPEEDY TRIAL: The Sixth Amendment's right to a speedy trial does not guarantee speedy sentencing. Here, the delay was 14 months between the plea and sentencing. Betterman v. Montana, (US S.Ct. 5/19/16)

DEPORTATION: For purposes of removal, state offense counts as an aggravated felony when it has every element of a listed federal offense except one requiring a connection to interstate or foreign commerce. Luna Torres v. Lynch, (US S.Ct. 5/19/16)

APPEALS: Interesting discussion of whether appellate court is required to accept stipulation that the issue is dispositive. "Given the jurisprudential conundrum that exists, one cannot be critical of whichever side of the fence a panel chooses." Beermunder v. State, 41 Fla. L. Weekly D1191b (1st DCA 5/18/16)

PROBATION REVOCATION-JURISDICTION
: Trial court lacked jurisdiction to revoke probation and impose sentence when defendant had already served maximum time allowed for offense of conviction. Because the Defendant was erroneously charged with L & L by an offender under the age of 18, even though he in fact was in his 30s, the offense was a third-degree felony and probation ended after 5 years. Tate v. State, 41 Fla. L. Weekly D1191a (1st DCA 5/18/16)

MANDATORY MINIMUM-SALE OF COCAINE WITHIN 1000 FEET: Mandatory minimum sentence is not required to be imposed for offense of sale or delivery of cocaine within 1000 feet of place of worship. The proper vehicle to challenge the mandatory minimum sentence is Rule 3.850, not 3.800. Stewart v. State, 41 Fla. L. Weekly D1190b (1st DCA 5/18/16)

STATEMENT OF DEFENDANT: There was probable cause for arrest where witness identified defendant as the person he saw walking hurriedly from the alley where victims were stabbed. Resulting confession is admissible. Darnell v. State, 41 Fla. L. Weekly D1187a (3rd DCA 5/18/16)

HEARSAY: Court did not err in admitting perpetuated testimony of witness that victim pointed at man who left alley and said, "That's him." Victim's statement qualified as a spontaneous statement. Darnell v. State, 41 Fla. L. Weekly D1187a (3rd DCA 5/18/16)

EVIDENCE-JAIL CALLS-PREJUDICE: Prejudicial effect outweighs the relevance of jail call statements showing a threat to and disrespect for the judge and others. Cramer v. State, 41 Fla. L. Weekly D1185a (4th DCA 5/18/16)

DON'T TALK ON THE JAIL PHONE
: "I don't give a f---. What are they gonna do? Play it in court? F--- the judge; f--- all these mother-f---ers. F---ed up, huh? F--- the judge, I don't even want to -- I'm tired of all this sh--, man." "These people are going to have to take my life in this courtroom because if I get out (laughs) people better evacuate." Cramer v. State, 41 Fla. L. Weekly D1185a (4th DCA 5/18/16)

EVIDENCE-PRIOR TESTIMONY:
Victim's prior sworn testimony from an Arthur hearing held to determine defendant's entitlement to pre-trial release when victim's death rendered her "unavailable" for trial. Defendant's direct examination of the victim during the hearing was the functional equivalent of "significant cross-examination." No confrontation violation. Camacho v. State, 41 Fla. L. Weekly D1180a (4th DCA 5/18/16)


POST CONVICTION RELIEF: Counsel's failure to preserve an issue for appeal does not show prejudice necessary to establish ineffective assistance of counsel. Gordon v. State, 41 Fla. L. Weekly D1175a (4th DCA 5/18/16)

SELF-REPRESENTATION: Trial court erred in refusing to grant defendant's unequivocal request to represent himself, made after trial court's Nelson inquiry disclosed nothing that supported defendant's allegation that defense counsel was rendering ineffective assistance. To allow defendant to represent himself is not to harmless error analysis. Petruschke v. State, 41 Fla. L. Weekly D1173b (4th DCA 5/18/16)

MURDER-JUDGMENT OF ACQUITTAL: Trial court did not err in denying motion for judgment of acquittal in case where victim's body was never found. Allen v. State, 41 Fla. L. Weekly D1171b (4th DCA 5/18/16)

EVIDENCE: Court erred in allowing evidence of Defendant's pre-arrest refusal to submit to it DNA swab to show consciousness of guilt where he is not toll of adverse consequences of not giving a DNA sample. Allen v. State, 41 Fla. L. Weekly D1171b (4th DCA 5/18/16)

CONTEMPT: Because trial court failed to include recital of facts on which adjudication of guilt was based, appellate court cannot decide whether single profanity was sole basis for finding defendant in contempt. Collins v. State, 41 Fla. L. Weekly D1171a (4th DCA 5/18/16)

PROBATION REVOCATION: Trial court abused its discretion by excluding all of defendant's witnesses as sanction for failure to file witness list without making findings that violation was willful and without exploring other remedies. German v. State, 41 Fla. L. Weekly D1170a (4th DCA 5/18/16)


ENTRAPMENT: Trial court did not err in denying, after evidentiary hearing, a motion to dismiss in which defendant alleged egregious law enforcement conduct amounting to objective entrapment where there were unsettled factual questions about how law enforcement conducted the operation against defendant. Clayton v. State, 41 Fla. L. Weekly D1165b (1st DCA 5/16/16)

10-20-LIFE: Resentencing required where trial court followed then-controlling precedent which required it to impose consecutive mandatory minimum terms under 10-20-Life statute, but Florida Supreme Court issued opinion during pendency of defendant's appeal holding that consecutive sentence is permissible, but not mandatory. Hagans v. State, 41 Fla. L. Weekly D1165a (1st DCA 5/16/16)

SELF-REPRESENTATION: Pro se motions for judgment of acquittal improperly denied where the defendant had requested to represent himself and court failed to make an adequate Faretta inquiry. Eib v. State, 41 Fla. L. Weekly D1164 (2nd DCA 5/13/16)

MISTRIAL: Where victim's mother, over objection, was shown a graphic photograph of her daughter's injuries and vomited, a mistrial was required. "Although the State claimed at trial that it did not show the mother the photograph in order to elicit an emotional response, we fail to see any other justification for its chosen trial tactic." Colon v. State, 41 Fla. L. Weekly D1163a (2nd DCA 5/13/16)

POST CONVICTION RELIEF
: Error to summarily deny claim that counsel was ineffective for failure to adequately dispute state's only identification evidence. Aristil v. State, 41 Fla. L. Weekly D1162a (2nd DCA 5/13/16)

HEARSAY-BUSINESS RECORDS EXCEPTION
: Default case specialist for loan servicer at trial was qualified to lay foundation for business records exception -- Witness testified that loan servicer independently verified loan documents it received from prior servicer through boarding process described by witness, and it was not necessary for witness to have personal knowledge of prior servicer's business practices or to participate in boarding process. Michel v. Bank of New York, 41 Fla. L. Weekly D1160a (2nd DCA 5/13/16)

POST CONVICTION DNA TESTING
: Trial court erred in denying motion for DNA testing after receiving state's response without attaching supporting documents to support its ruling. Whitfield v. State, 41 Fla. L. Weekly D1159a (5th DCA 5/13/16)

STATEMENT OF DEFENDANT-PUBLIC SAFETY EXCEPTION
: After a shootout involving rival gang members leaving 3 people dead and others injured and 30 to 40 people remaining in the area, the public safety exception to the requirement of Miranda warnings allows the admission of the Defendant's statements after he is asked where the gun from his empty holster was located. State v. Maloney, 41 Fla. L. Weekly D1156d (5th DCA 5/13/16)

POST CONVICTION RELIEF
: The Defendant is entitled to a hearing on his motion for postconviction relief based on trial counsel's failure to present evidence of his substance abuse history. Inmon v. State, 41 Fla. L. Weekly D1156c (5th DCA 5/13/16)

SEARCH AND SEIZURE-WARRANT: Trial court must give deference to findings of magistrate who issued search warrant for property which was site of suspected marijuana grow operation. A magistrate's determination should be accorded a presumption of correctness and not disturbed absent a clear demonstration that the issuing magistrate abused his discretion. State v. Fernandez-Arias, 41 Fla. L. Weekly D1155b (5th DCA 5/13/16)

POST CONVICTION RELIEF: Motion for Post Conviction Relief on grounds of the state failing to provide a factual basis must be raised under 3.850, not under 3.800. State v. Kogan, 41 Fla. L. Weekly D1155a (5th DCA 5/13/16)

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Motions for new trial based on newly discovered evidence should not be delayed until after death sentence is final, but instead, should be brought as soon as possible after discovery. Trial court erred in dismissing motion as premature because defendant was awaiting resentencing and therefore his conviction was not final. Farina v. State, 41 Fla. L. Weekly S222b (FLA 5/12/16)

SEARCH AND SEIZURE-OBSCURED TAG
: Stop of vehicle was proper where officers observed that tag light and attached wires were partially obscuring license plate. English v. State, 41 Fla. L. Weekly S219b (FLA 5/12/16)

JURY INSTRUCTIONS
: Amendments to Instructions on DUI, BUI, and Fleeing and Eluding, clarifying the definition of impairment and mens rea. Impaired means diminished in some material respect. In re: Standard Jury Instructions, 41 Fla. L. Weekly S219a (FLA 5/12/16)

COMPETENCY OF DEFENDANT: Court erred in relying on stipulation of defense counsel and preponderance of experts' opinions to make its competency determination without making an independent finding of competence or incompetence. Zern v. State, 41 Fla. L. Weekly D1152a (1st DCA 5/12/16)

KIDNAPPING: Defendant who "brutally beat, stabbed multiple times, and sexually battered the victim in her bedroom, locking the door behind him as he moved her inward before his savagery began" is properly convicted of kidnapping.. Williams v. State, 41 Fla. L. Weekly D1151a (1st DCA 5/12/16)

DEPORTATION: Defendant seeking to vacate his plea pursuant to Padilla must establish that he was present in the country lawfully at the time of the plea and that the plea at issue is the sole basis for the defendant's deportation. Meridor v. State, 41 Fla. L. Weekly D1150f (3rd DCA 5/11/16)

GRAND THEFT: Victim's testimony as to purchase price of laptop computer a year earlier, standing alone, was insufficient to prove market value at time of theft was $300 or more. Walker v. State, 41 Fla. L. Weekly D1137 (4th DCA 5/11/16)

RESISTING WITHOUT VIOLENCE
: Defendant could not be convicted of resisting arrest without violence based on refusal to leave his home after police, without warrant or exigent circumstances, ordered him to come outside and submit to police custody. Jackson v. State, 41 Fla. L. Weekly D1134b (4th DCA 5/11/16)

QUOTATION: "A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty -- worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place -- which is a man's castle." Jackson v. State, 41 Fla. L. Weekly D1134b (4th DCA 5/11/16)


EVIDENCE-AUTHENTICATION OF RECORDINGS
: Recordings of telephone conversations between defendant and CI were improperly admitted where recordings were made at behest of drug enforcement agent, but were not monitored by agent, and agent could not testify that audio tape of recorded conversations were true representations of what was actually said; and state did not ask defendant whether the recordings were accurate despite fact that defendant testified on his own behalf. Santana v. State, 41 Fla. L. Weekly D1134a (4th DCA 5/11/16)

PRISON RELEASEE REOFFENDER
: Conviction for burglary of dwelling with assault or battery, which did not specify whether dwelling was occupied, did not qualify for sentencing under Prison Releasee Reoffender Act. Fratcher v. State, 41 Fla. L. Weekly D1132a (4th DCA 5/11/16)

10-20-LIFE: Allegations in indictment that defendant killed victim by shooting him and attempted to kill second victim by shooting him were sufficient to give notice of "great bodily harm" element required for imposition of mandatory minimum sentences under 10-20-Life law, despite fact that indictment did not specifically charge "death or great bodily harm." Nelson v. State, 41 Fla. L. Weekly D1129a (4th DCA 5/11/16)

SOLICITATION OF PROSTITUTION: $5000 civil penalty is constitutional. Titov v. State, 41 Fla. L. Weekly D1128b (4th DCA 5/11/16)

SELF-DEFENSE: Trial court erred in instructing jury on forcible felony exception to self-defense where no independent forcible felony was charged, but error was not fundamental as self-defense claim was extremely weak. Sharpe v State, 41 Fla. L. Weekly D1128a (4th DCA 5/11/16)

MOTION TO DISMISS: State may rely on circumstantial evidence in traversing a motion to dismiss, and all inferences to be drawn therefrom are resolved in state's favor. Whether that evidence excludes all reasonable hypotheses of innocence may be decided only at trial. State v. Paredes, 41 Fla. L. Weekly D1123a (4th DCA 5/11/16)

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Error to deny claim based on newly discovered evidence of two witnesses who would have provided accounts of defendant's estranged wife's activities during time span when she was purportedly kidnapped and raped by defendant, which defendant alleged would have been likely to produce different outcome at trial. Cati v. State, 41 Fla. L. Weekly D1117b (2nd DCA 5/11/16)

MANDATORY MINIMUM: Where multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, consecutive sentencing is permissible but not mandatory. Webster v. State, 41 Fla. L. Weekly D1116b (1st DCA 5/10/16)

CONSECUTIVE MAN-MIN: Consecutive mandatory terms of imprisonment for use or possession of a firearm during a qualifying offense are permissible but not required. Gartman v. State, 41 Fla. L. Weekly D1114a (1st DCA 5/6/15)

POST CONVICTION RELIEF-COUNSEL
: Trial court abused discretion by failing to appoint counsel to represent defendant at evidentiary hearing on motion in light of defendant's lack of education, inability to speak English, history of mental illness, and inability to participate in hearing in any meaningful way. Chavez v. State, 41 Fla. L. Weekly D1113a (1st DCA 5/6/16)


SENTENCING-10-20-LIFE
: It is permissible to impose consecutive sentence for aggravated battery with a firearm and possession of a firearm by felon where defendant discharged a fire causing injury. Martin v. State, 41 Fla. L. Weekly D1112a (1st DCA 5/6/16)

SENTENCING-10-20-LIFE
: The 10-20-Life statute requires that a qualifying felony sentence run consecutively to any sentence imposed for a non-qualifying felony. Where State did not include a 10-20-life allegation in the possession of a firearm charge, that charge must be imposed consecutively. Martin v. State, 41 Fla. L. Weekly D112a (1st DCA 5/6/16)

HEARING: Administrative law judge abused discretion and denied father due process by limiting hearing to forty-five minutes and refusing to grant continuance. Harris v. DOR, 41 Fla. L. Weekly D1109a (2nd DCA 5/6/16)

SEXUAL BATTERY ON A CHILD: Trial court fundamentally erred in giving instruction that permitted jury to convict defendant of sexual battery based on finding that his finger was "in union with" victim's vagina where information expressly alleged penetration only. Leon v. State, 41 Fla. L. Weekly D1106a (5th DCA 5/6/16)

DOUBLE JEOPARDY
: Defendant cannot be convicted of both dealing in stolen property and grand theft. (Judge Pope.) Smith v. State, 41 Fla. L. Weekly D1104a (5th DCA 5/6/16)

POST CONVICTION RELIEF
: Where defendant filed pro se motion to withdraw plea on ground that he was coerced by his counsel, trial court erred in denying motion without appointing conflict-free counsel and holding evidentiary hearing. Davila v. State, 41 Fla. L. Weekly D1103a (5th DCA 5/6/16)

APPEALS
: Claim of ineffective assistance of appellate counsel for failure to supplement record with transcript of voir dire, which had Leslie would have shown errors in jury selection, fails because the defendant did not attach the transcript of the voir dire to this Habeas Corpus petition. Brisbane v. State, 41 Fla. L. Weekly D1102c (5th DCA 5/6/16)


SILENCE OF DEFENDANT
: Under Florida's Constitution, Defendant's privilege against self-incrimination is violated when defendant's pre-arrest, pre-Miranda silence is used as substantive evidence of guilt. State may not introduce defendant's pre-arrest, pre-Miranda silence as evidence of defendant's consciousness of guilt. Independently, as a matter of Florida evidentiary law, the State is precluded from presenting evidence of a non-testifying defendant's pre-arrest, pre-Miranda silence and from arguing that silence is evidence of the defendant's consciousness of guilt. State v. Horwitz, 41 Fla. L. Weekly S211a (FLA 5/5/16)

SILENCE OF DEFENDANT
: Wife, when questioned over her husband's dead body on the bathroom floor, exercised her constitutional right to remain silent by putting her fingers in her ears and saying "I can't hear you." State v. Horwitz, 41 Fla. L. Weekly S211a (FLA 5/5/16)

QUOTATION:
"Even here-especially here -- where the rights of those suspected of wrongdoing are concerned, the framers drew a bright line and said to government, 'Thus far shalt thou come, but no farther.'" State v. Horwitz, 41 Fla. L. Weekly S211a (FLA 5/5/16)

JURY INSTRUCTION-SELF-DEFENSE
: Self-defense instruction modified with suggestions on further revisions. In Re: Standard Jury Instructions, 41 Fla. L. Weekly S210a (FLA 5/5/16)

YOUTHFUL OFFENDERS
: Amendment to section 958.04(1)(b) which changed the requirements for youthful offender sentencing from someone who committed a crime before their twenty-first birthday to someone who is younger than 21 at time of sentencing is constitutional and does not violate equal protection or due process. Jackson v. State, 41 Fla. L. Weekly S209a (FLA 5/5/16)

DOUBLE JEOPARDY
: Defendant cannot be convicted of both lewd and lascivious battery and lewd or lascivious molestation. Holding the molestation conviction in abeyance constituted a double jeopardy violation. Macias v. State, 41 Fla. L. Weekly D1081a (4th DCA 5/4/16)

YOUTHFUL OFFENDER
: Upon revocation of probation and being sentenced to 15 years in prison, defendant is entitled to maintain his youthful offender status. Webster v. State, 41 Fla. L. Weekly D1076a (4th DCA 5/4/16)

CREDIT FOR TIME SERVED
: A defendant who is arrested in one Florida county based on an outstanding warrant issued by a court in a second Florida county may be entitled to credit for time spent in the first county's jail against the sentence imposed in the second county. Sims v State, 41 Fla. L. Weekly D1072a (4th DCA 5/4/16)

REPETITIVE APPEALS
: "Enough is enough. The postconviction process does not exist simply to give prisoners something to do in order to help them pass the time as they serve their sentences." Carroll v. State, 41 Fla. L. Weekly D1066a (1st DCA 5/3/16)

APRIL 2016

JURY INSTRUCTIONS-AGGRAVATED BATTERY: Conviction is vacated where the information charged aggravated battery with great bodily harm, but the jury was instructed on both the great bodily harm theory and the deadly weapon theory. Ortiz v. State, 41 Fla. L. Weekly D1060a (2nd DCA 4/29/16)


REVOCATION OF PROBATION: Officer's testimony that he recovered a bag which appeared to be cocaine, coupled with the lab report, is sufficient to sustain violation of probation. Ware v. State, 41 Fla. L. Weekly D1059a (2nd DCA 2016)


INJUNCTION-CYBERSTALKING: Emails containing derogatory and embarrassing information sent to third parties do not constitute words directed at a specific person for purposes of cyberstalking statute simply because they are about petitioner. Scott v. Blum, 41 Fla. L. Weekly D1056a (2nd DCA 4/29/16)

QUOTATION
: "Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, 'DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!'" Scott v. Blum, 41 Fla. L. Weekly D1056a (2nd DCA 4/29/16)

TAMPERING WITH EVIDENCE: Allegations that defendant exited car and attempted to flee, was caught, was ordered to spit out what he was chewing and instead swallowed it is a prima facie case of tampering with evidence. State v. Barnes, 41. Fla. L. Weekly D1051a (1st DCA 4/29/16)

DOUBLE JEOPARDY
: Dual convictions for using computer to solicit person to commit sex act on child and traveling to meet person to solicit or entice minor to commit sex act violated defendant's double jeopardy rights where convictions were based on acts committed within same criminal episode, although solicitation count was based on multiday communications. Mahar v. State, 41 Fla. L. Weekly D1048b (2nd DCA 4/29/16)

APPEAL-PRESERVATION OF ISSUE
: Challenge to constitutionality of Failure to Register statute was not preserved for appeal where defendant entered open plea without timely raising issue. Although record indicated that defendant entered plea under misguided belief that he would be able to appeal the constitutional challenge, motion to withdraw plea in order "to properly preserve issue for appeal" is legally insufficient. Hughbanks v. State, 41 Fla. L. Weekly D1048a (2nd DCA 4/29/16)

APPEALS-FUNDAMENTAL ERROR: Where the defendant is convicted even though the evidence is insufficient (no evidence of his age, an element of the offense), the error is not fundamental. The federal standard, which permits a reviewing court to reverse an unpreserved sufficiency of the evidence error to avoid a manifest miscarriage of justice is not adopted. However, failure to move for a judgment of acquittal is ineffective assistance of counsel on its face which may be corrected on direct appeal. Monroe v. State, 41 Fla. L. Weekly S192a96 (FLA 4/28/16)
SENTENCING: Trial court may not consider a subsequent arrest without conviction during sentencing for primary offense. Norvil v. State, 41 Fla. L. Weekly D190a (FLA 4/28/16)

APPEALS-PRESERVATION: Possible error in assessing discretionary sheriff's investigative costs which were not orally pronounced at sentencing hearing was not preserved through objection or motion to correct sentencing errors. Thomas v. State, 41 Fla. L. Weekly D1045d (1st DCA 4/28/16)
INJUNCTION-HEARING: Error to deny motion to dissolve injunction alleging changed circumstances without conducting evidentiary hearing. Feldman v. Callins, 41 Fla. L. Weekly D1043b (4th DCA 4/27/16)


SENTENCING-UPWARD DEPARTURE
: Where trial court made required findings that non-state prison sanction presented a danger to public but failed to enter written order until after defendant filed notice of appeal of sentence, statutory requirements were fulfilled when, in response to motion to correct sentence, Court attached written findings to its order denying relief. Knott v. State, 41 Fla. L. Weekly D1042b (4th DCA 4/27/16)


APPEALS- INEFFECTIVE APPELLATE COUNSEL
: Where appellate counsel failed to raise on appeal the issue which resulted in a new trial co-defendant, the Defendant is entitled to a new appeal. Godinez v. State, 41 Fla. L. Weekly D1040a (4th DCA 4/27/16)
DISCOVERY-WORK PRODUCT: Trial court erred by allowing state to contact expert fingerprint consultant hired by defense to independently test latent fingerprints located inside victim's residence. Thomas v. State, 41 Fla. L. Weekly D1039a (4th DCA 4/27/16)

JURY INSTRUCTIONS-SELF-DEFENSE: Error to refuse to give requested instruction that defendant had no duty to retreat from victim, who defendant contended repeatedly assaulted and threatened defendant in their apartment before defendant stabbed him. Navarro v. State, 41 Fla. L. Weekly D1038b (4th DCA 4/27/16)

LIFE SENTENCE-NONHOMICIDE-JUVENILE
: Aggregate sentence of 93 years' imprisonment for multiple offenses committed when defendant was juvenile, each of which had mandatory minimum, did not give defendant "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," and thus was unconstitutional. Cook v. State, 41 Fla. L. Weekly D1038a (4th DCA 4/27/16)

SEALING OF RECORD: Error to deny petition to seal criminal record without an evidentiary hearing, based solely upon consideration of facts outlined in probable cause affidavit. Grey v. State, 41 Fla. L. Weekly D1035a (4th DCA 4/27/16)
LIFE SENTENCE-HOMICIDE-JUVENILE: Trial court erred in finding defendant had committed a prior capital felony where the only capital felonies committed by the defendant were the ones for which he was being sentenced, which were part of the same criminal transaction or episode. Defendant entitled to a new sentencing hearing, with a sentence review after 25 years. Hadley v. State, 41 Fla. L. Weekly D1032a (4th DCA 4/27/16)

POST CONVICTION RELIEF: Error to summarily deny claim that counsel was ineffective for failure to investigate and present alibi witnesses on basis that claim was facially insufficient. Charles v. State, 41 Fla. L. Weekly D1016a (3rd DCA 4/27/16)
PROBATION REVOCATION: Evidence did not support finding that defendant's absence from his home was willful and substantial violation where defendant was working extra shift at time community control officer did house check. Hugan v. State, 41 Fla. L. Weekly D1012b (2nd DCA 4/27/16

DOUBLE JEOPARDY
: Separate convictions for use of computer to solicit consent by minor's custodian to minor's participation in sexual conduct and traveling to meet person believed to be minor violated double jeopardy rights where convictions were based on the same conduct. Anderson v. State, 41 Fla. L. Weekly D1010a (1st DCA 4/27/16)

COMPETENCY: Where defendant had been previously declared incompetent, trial court erred in accepting nolo contendere plea without conducting competency hearing to determine whether competency had been restored. Lewis v. State, 41 Fla. L. Weekly D1009a (1st DCA 4/27/16)

INJUNCTION
: Injunction against domestic violence cannot be based on mere uncivil behavior that causes distress or annoyance. Parents' efforts to have daughter Baker Acted does constitute harassment sufficient to support entry of injunction against domestic violence. Wills v. Jones, 41 Fla. L. Weekly D1008a (1st DCA 4/27/16)

HEARSAY: A promissory note is not hearsay. Plaintiff seeking to admit promissory note into evidence is not required to establish that the note is a business record under the business records exception to the hearsay rule. Deutsche Bank v. Alaqua Property, 41 Fla. L. Weekly D994b (5th DCA 4/22/16)


LESSER INCLUDED-FLEEING AND ELUDING
: Trial court erred in refusing to instruct jury on category two lesser-included offense of disobeying a law enforcement officer. Lucas v. State, 41 Fla. L. Weekly D993a (2nd DCA 4/22/16)

INTRODUCTION OF CONTRABAND: Error to give instruction on introduction of contraband into detention facility that did not require jury to find that the introduction of contraband was done knowingly. Valdez v. State, 41 Fla. L. Weekly D992b (2nd DCA 4/22/16)


JURY INSTRUCTION-DEFENSE
: Instruction, which conditioned stand your ground immunity on whether defendant was engaged in unlawful activity, was erroneous under the law at the time and negated defendant's sole defense that he shot victim in self-defense. Appellate counsel was ineffective for not raising issues on appeal. Dooley v. State, 41 Fla. L. Weekly D992a (2nd DCA 4/22/16)41 Fla. L. Weekly D991c

CREDIT FOR TIME SERVED
: Motion which did not include requisite oath was facially insufficient -- Defendant to be afforded opportunity to file amended motion. Cappelletti v. State, 41 Fla. L. Weekly D991c (2nd DCA 4/22/16)
SENTENCING-HABITUAL OFFENDER-CONSECUTIVE: A habitual offender sentence must run concurrently with any other sentence for offenses which occurred during a single criminal episode. Cappelletti v. State, 41 Fla. L. Weekly D991c (2nd DCA 4/22/16)
CONFESSION: When an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney's presence and purposes, regardless of custodial status. a person can no longer be deprived of the critical information that an attorney is present and available to provide legal advice based on pure police conjecture that the individual is not in custody. State v. McAdams, 41 Fla. L. Weekly S167a (FLA 4/21/16)

CUSTODIAL INTERROGATION
: Whether one is in custody for purposes of interrogation under Miranda, the ultimate inquiry is twofold: (1) the circumstances surrounding the interrogation and given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. A voluntary, non-custodial interrogation can evolve into a custodial interrogation. State v. McAdams, 41 Fla. L. Weekly S167a (FLA 4/21/16)

QUOTATION: "Special vigilance is required where the fundamental rights of Florida citizens suspected of wrongdoing are concerned, for here society has a strong natural inclination to relinquish incrementally the hard-won and stoutly defended freedoms enumerated in our Declaration in its effort to preserve public order. . . Under our system of constitutional government, the State should not set the example of violating fundamental rights guaranteed by the Constitution to all citizens in order to obtain a conviction." State v. McAdams, 41 Fla. L. Weekly S167a (FLA 4/21/16)
SENTENCING: Sentence which provided that if defendant made a certain restitution payment within sixty days, his prison term would be reduced from ten years to eight years violated due process. Noel v. State, 41 Fla. L. Weekly S157a (FLA 4/21/16)

PROBATION REVOCATION: Testimony of defendant's probation officer that defendant failed a field drug test the officer personally administered is competent, nonhearsay evidence. Under the relaxed evidentiary rules applicable to a VOP proceeding, a probation officer is not required to be qualified as an expert in order to testify about the results of the field drug test that the officer personally administered. Prior precedent (Bray, Rothe, Dawson) disapproved. Queior v. State, 41 Fla. L. Weekly S154a (FLA 4/21/16)
CONSECUTIVE SENTENCES: Court may not stack mandatory minimum terms under the 10-20-life statute when the defendant did not discharge firearm. It was error to impose consecutive mandatory minimum sentences for multiple convictions arising out of single criminal episode where, although victim had 2 bullets in his leg, the jury only found that defendant possessed firearm, not that he fired it. Palmer v. State, 41 Fla. L. Weekly D984d (1st DCA 4/20/16)


POST CONVICTION RELIEF
: Failure to try to depose codefendant is a colorable claim of ineffective assistance of counsel. Forte v. State, 41 Fla. L. Weekly D982 (2nd DCA 4/20/16)


INJUNCTIONS
: Injunction was entered in violation of due process where it was based on allegations made for first time in a supplemental affidavit that was never provided to respondent. Respondent is entitled to a continuance where knew what allegations are provided only a few business days before the final hearing. Vaught v. Vaught, 41 Fla. L. Weekly D980b (4th DCA 4/20/16)

SENTENCING-UPWARD DEPARTURE
: Where scoresheet totaled less than 22 points and defendant was convicted of non-forcible felonies, trial court was required to sentence defendant to nonstate prison sanction in absence of written findings that nonstate prison sanction could present danger to public. Mere finding that defendant was a "present danger to the community" was not sufficient to establish nexus between nonstate prison sanction and danger to public. Ryerson v. State, 41 Fla. L. Weekly D980a (4th DCA 4/20/16)
SENTENCING: Court is not required to impose consecutive minimum mandatory twenty-year sentences on four counts of aggravated assault with firearm resulting from single criminal episode. Williams v. State, 41 Fla. L. Weekly D976a (4th DCA 4/20/16)


ENFORCEMENT OF PLEA AGREEMENT
: Trial court was unauthorized to vacate one of defendant's convictions at sentencing on ground that state had informed defendant prior to trial that it would drop one of the charges, where state's assertion that it would drop the charge was not part of any agreement with defendant. Discussion of specific enforcement of plea agreement is required. Walker v. State, 41 Fla. L. Weekly D973e (4th DCA 4/20/16)

VEHICULAR HOMICIDE
: Convictions for particular homicide, reckless driving, and culpable negligence vacated where Defendant crashed while exiting interstate ramp which had no speed signs are warning signs due to recent construction. Excessive speed alone is insufficient to support a conviction. Damoah v. State, 41 Fla. L. Weekly D957b (4th DCA 4/19/16)

LICENSE SUSPENSION: District Court may not exercise second-tier certiorari where there has not been a violation of a clearly established principle of law. Futch v. DHSMV, 41 Fla. L. Weekly S150a (FLA 4/14/16)

JURY INSTRUCTIONS
: Amendments to instructions on homicides and sex offenses. In re: Standard Jury Instructions, 41 Fla. L. Weekly S144a (FLA 4/14/16)

JURY INSTRUCTIONS
: The instruction is amended to make clear that the burden of persuasion is on the State with respect to the affirmative defenses of self-defense, defense of others, and defense of property. In re: Standard Jury Instructions, 41 Fla. L. Weekly S143a (FLA 4/14/16)

JURY INSTRUCTIONS
: For theft and dealing in stolen property, language is added to explain that a judge should not instruct on the "fair market value inference," which allows the jury to infer that a person knowingly bought or sold stolen goods in certain instances, unless there is evidence of the fair market value of the stolen property. In re: Standard Jury Instructions, 41 Fla. L. Weekly S143a (FLA 4/14/16)

JURY INSTRUCTIONS
: For theft, language is added indicating that the "good faith defense" is not an affirmative defense to the crime of theft, but rather, negates an essential element of the offense. In re: Standard Jury Instructions, 41 Fla. L. Weekly S143a (FLA 4/14/16)

JURY INSTRUCTION-ATTEMPTED SECOND-DEGREE MURDER
: Trial court erred in giving of standard jury instruction on attempted manslaughter as lesser included offense of attempted second-degree murder. Error was fundamental where defendant was convicted of an offense no more than one step removed from attempted manslaughter. Mike v. State, 41 Fla. L. Weekly D954a (2nd DCA 4/15/16)

SENTENCING
: Trial court committed fundamental error by considering defendant's lack of remorse when imposing sentence. Pehlke v. State, 41 Fla. L. Weekly D952b (2nd DCA 4/15/16)

APPEAL-INEFFECTIVENESS
: Appellate counsel was ineffective for failing to file motion to correct illegal consecutive mandatory minimum sentences for offenses committed during a single episode when defendant did not fire the firearm in his possession. Cruz v. State, 41 Fla. L. Weekly D952a (2nd DCA 4/15/16)

PROBATION REVOCATION-YOUTHFUL OFFENDER
: Twelve-year sentence was lawful where defendant committed substantive violation. McBurnett v. State, 41 Fla. L. Weekly D949a (5th DCA 4/15/16)

CREDIT FOR TIME SERVED
: Trial court erred in denying claim on the merits where motion did not comply with pleading requirements of rule. Nazario v. State, 41 Fla. L. Weekly D948c (5th DCA 4/15/16)

CONTINUANCE
: Failure to renew motion for continuance and at start of trial and stating that defense counsel is ready for trial waives the issue for appellant review. Further, no prejudice is demonstrated where the defendant was given an opportunity to depose the witness before the actual trial. Guillen v. State, 41 Fla. L. Weekly D930a (3rd DCA 4/13/16)

DISCOVERY-EXPERT
: No abuse of discretion in refusing to exclude state's expert witness, based on claim that expert's late addition was a discovery violation, because there does not appear to have been a discovery violation; and even if there had been, defendant was not procedurally prejudiced by alleged violation. Guillen v. State, 41 Fla. L. Weekly D930a (3rd DCA 4/13/16)

DISCOVERY
: Trial court departed from essential requirements of law in ordering petitioner to reveal information regarding her cell phone. Order violates petitioner's Fifth Amendment rights while her criminal case is pending. Restrepo v. Carrera, 41 Fla. L. Weekly D926a (3rd DCA 4/13/16)

SPEEDY TRIAL
: An amended information upgrading the charges does not constitute a nolle prosequi of the original charges, and thus the waiver of speedy trial continues to apply. Defendant is not entitled to discharge under speedy trial rights. Wallace v. State, 41 Fla. L. Weekly D921b (3rd DCA 4/13/16)

CERTIORARI-DISCOVERY
: Defendant is not entitled to certiorari review of trial court order which deferred ruling on whether Defendant would have to turn over reports of non-testigyinh experts until after tests at issue are completed and court has had an opportunity to review the reports in camera. Certiorari is available only when a ruling results in material injury for the remainder of the trial that cannot be corrected on post-judgment appeal. Charles v. State, 41 Fla. L. Weekly D921a (3rd DCA 4/13/16)

CHALLENGES FOR CAUSE
: Trial court abused its discretion by refusing to excuse for cause two jurors who expressed misgivings about how they would judge facts of case if defendant did not testify in his defense and were equivocal when affirming that they could be fair and impartial if defendant did not testify. Juror who says that Defendant not testifying would be something "that's lingering in my mind" but that it would "probably not" affect deliberations should excused for cause. Welch v. State, 41 Fla. L. Weekly D919a (2nd DCA 4/13/16)

RESTITUTION-APPEAL
: Trial court lacked jurisdiction to enter restitution order after juvenile filed notice of appeal. V.U.B., 41 Fla. L. Weekly D918c (2nd DCA 4/13/16)

EVIDENCE
: Trial court did not err in permitting victim and law enforcement officer to identify defendant as the person depicted in surveillance video where evidence adduced at trial established that these two witnesses had seen the defendant many times and were familiar with her gait and physical characteristics. Quaknine v. State, 41 Fla. L. Weekly D915a (4th DCA 4/13/16)

JURISDICTION-APPEAL
: Filing of notice of appeal did not divest trial court of jurisdiction to issue written orders conforming to its prior oral pronouncements. Prior precedent receded from. Escobar v. State, 41 Fla. L. Weekly D914a (4th DCA 4/13/16)

PROBATION-TOLLING
: Probation is not tolled when the warrant on the violation of probation is for failure to make restitution payments or payments for drug testing. Only warrants for violation of probation based on a violation of section 901.02 - commission of a crime - tolls probation. Mobley v. State, 41 Fla. L. Weekly D912a (4th DCA 4/13/16)

DOUBLE JEOPARDY
: Separate convictions for two counts of fraudulent use of personal identification information belonging to the same victim during same time frame did not violate double jeopardy where charges arose from two distinct criminal acts and evidence at trial clearly distinguished between the two separate counts. Prior opinion withdrawn. Fravel v. State, 41 Fla. L. Weekly D910a (4th DCA 4/13/16)

SENTENCING - MAN MIN
: Consecutive sentences are permissible but not mandatory under 10-20-Life statute. Jones v. State, 41 Fla. L. Weekly D907d (1st DCA 4/12/16)

SENTENCING - MAN MIN
: Where defendant does not discharge firearm, mandatory minimum sentences under 10-20-Life statute must be imposed concurrently. Meador v. State, 41 Fla. L. Weekly D907c (1st DCA 4/12/16)

CHILD NEGLECT: Single incident of excessive alcohol consumption was insufficient to show culpable negligence. Masters v. State, 41 Fla. L. Weekly D907a (4/12/16)

PROBATION REVOCATION
: Trial court erred by revoking defendant's probation without a plea colloquy. Davis v. State, 41 Fla. L. Weekly D906a (1st DCA 4/12/16)

ATTEMPTED SECOND DEGREE MURDER
: Motion for Judgment of Acquittal properly denied where evidence showed that the Victim approached the Defendant and challenged him to a fight and Defendant pulled a gun and shot him. Evidence was sufficient to find that the Defendant shot the victim with ill will, hatred, spite or evil intent. Perez v. State, 41 Fla. L. Weekly D905a (1st DCA 4/12/16)

COMPETENCY OF DEFENDANT
: Trial court erred in failing to conduct proper competency hearing and enter written order finding defendant competent to proceed after a prior adjudication of incompetency. Belizaire v. State, 41 Fla. L. Weekly D904b (1st DCA 4/12/16)

CONTEMPT
: Trial judge erred in vacating a predecessor judge's order dissolving a domestic violence injunction and in pursuing indirect criminal contempt charges against defendant for failing to attend a compliance hearing on the dissolved injunction. Berrien v. State, 41 Fla. L. Weekly D903a (1st DCA 4/12/16)

SENTENCING
: A minimum mandatory life sentence is authorized for sexual battery by a dangerous sexual offender regardless of the statutory maximum. Conflict certified. Williams v. State, 41 Fla. L. Weekly D898d (1st DCA 4/12/16)

SEARCH AND SEIZURE-DUI WITH ACCIDENT-BLOOD DRAW: Mandatory blood draw provision of implied consent law does not provide general exception to warrant requirement for blood draw. State v. Liles, 41 Fla. L. Weekly D892a (4/8/16)

SEARCH AND SEIZURE- CONSENT
: Where defendants initially refused to consent to blood draws, and only agreed to warrantless blood draws after being told that law enforcement would forcibly take their blood if necessary, there was no valid consent to blood draws. State v. Liles, 41 Fla. L. Weekly D892a (4/8/16)

SEARCH AND SEIZURE-EXIGENT CIRCUMSTANCE: The natural metabolization of alcohol in the bloodstream does not create a per se exigency justifying warrantless, nonconsensual blood testing in all DUI cases. A search one is presumptively required the burden of proof is on the state to show exigent circumstances. State v. Liles, 41 Fla. L. Weekly D892a (4/8/16)

DWLS-MOTORIZED BIKE
: One can be convicted of driving with suspended license when riding a motorized bicycle if the speed exceeds 20 mph. State v. Seward, 41 Fla. L. Weekly D896b (5th DCA 4/8/16)

DOUBLE JEOPARDY
: Double Jeopardy is violated for convictions for using a computer to solicit a person believed to be a parent for sex with a minor and traveling after using a computer. Stapler v. State, 41 Fla. L. Weekly D894b (5th DCA 4/8/16)

PROBATION CONDITIONS: Standard sex offender conditions of probation may be imposed for soliciting a minor where they are reasonably related to the offense. Stapler v. State, 41 Fla. L. Weekly D894b (5th DCA 4/8/16)

PROBATION CONDITIONS
: Conditions forbidding contact with minors are overly broad. because they subject offenders to possible punishment for innocent or inadvertent conduct. No intentional contact with minors without prior court approval is an appropriate condition of probation. Stapler v. State, 41 Fla. L. Weekly D894b (5th DCA 4/8/16)

SEARCH AND SEIZURE-VEHICLE-STANDING
: Passenger has standing to contest the search of the vehicle which was stopped for a traffic infraction. Foley v. State, 41 Fla. L. Weekly D888a (5th DCA4/8/16)

PROBATION REVOCATION-ABILITY TO PAY
: Error to revoke probation for failure to pay restitution where no evidence established that the defendant--the sole caregiver for his paralyzed wife--had ability to pay. Appellate Court rejects the State/judge's conclusion that the 14 year old son should be the permanent caregiver so that the Defendant could get a job. Skipper v. State, 41 Fla. L. Weekly D883a (2nd DCA 4/8/16)

STANDARD JURY INSTRUCTIONS: Amendment to instructions for failure to register. FACDL's suggestion of unconstitutionality can only be raised on appeal in a case and controversy. In re: Standard Jury Instructions, 41 Fla. L. Weekly S140a (FLA 4/7/16)

STANDARD JURY INSTRUCTIONS
: Instruction for possession is revised. "Ability to control" is changed to "power and intention to control." In Re: Standard Jury Instructions, 41 Fla. L. Weekly S139a (FLA 4/7/16)


SEARCH AND SEIZURE-VEHICLE
: Tracking of robbery victim's stolen iPhone through the use of a "Find My iPhone" app, gave rise to reasonable suspicion to stop defendant's vehicle. Exantus-Barr v. State, 41 Fla. L. Weekly D871a (4th DCA 4/6/16)

SEARCH AND SEIZURE-VEHICLE
: Court's finding that the testimony of the officer is unreliable is sufficient to sustain motion to suppress. State v. Jennings, 41 Fla. L. Weekly D870b (4th DCA 4/6/16)

HEARSAY
: Statements by inmate/witness describing incident as it occurred during recorded jailhouse call is admissible as a spontaneous statement, is not testimonial, and therefore is not barred by the Confrontation Clause. Statements which were otherwise not testimonial in nature did not become testimonial merely because they were recorded by law enforcement. Jackson-Johnson v. State, 41 Fla. L. Weekly D866b (4th DCA 4/6/16)

RETRIAL AFTER MISTRIAL
: Discovery that a juror and an alternate juror were siblings did not give rise to manifest necessity for mistrial. Where mistrial was declared without defendant's consent and in the absence of manifest necessity, retrial was precluded by double jeopardy. Failure to object to a mistrial does not constitute consent to it. Merchant v. State, 41 Fla. L. Weekly D862a (3rd DCA 4/6/16)

DISCOVERY
: Defense may not defer providing the penalty phase of murder case until after the guilt phase is concluded. Court departed from the essential requirements of law by allowing delayed discovery. Moss v. State, 41 Fla. L. Weekly D859a (3rd DCA 4-6-16)

EVIDENCE-LAY OPINION TESTIMONY
: Police officer is permitted to identify a substance as marijuana based on sight and smell alone. Thorough discussion of lay opinion and expert opinion testimony. L. L. v. State, 41 Fla. L. Weekly D854a (3rd DCA 4/6/16)

SENTENCING-HABITUAL OFFENDER
: It was improper to sentence defendant as habitual felony offender upon revocation of probation where defendant was not initially sentenced as habitual felony offender. Busbee v. State, 41 Fla. L. Weekly D850a (1st DCA 4/6/16)

EVIDENCE-RESTITUTION
: Burglary victim's guess as to the value of the coins in a 5-gallon water jug half-full of loose change was insufficient to establish restitution amount. [For more on calculating contents of jars, see "The Unlucky Number," The Adventures of Superman, Season 4, Episode 2 (1956)] J.C. v. State, 41 Fla. L. Weekly D848a (2nd DCA 4/6/16)

SEARCH AND SEIZURE
: Trial court erred in granting motion to suppress firearm found in jacket pocket by officer during search incident to arrest of defendant for trespass on school grounds. Dissent: How can it be trespass when signs invite joggers to use the track, as the Defendant was doing? State v. Rand, 41 Fla. L. Weekly D842a (1st DCA 4/4/16)

JURY
: Juvenile is not entitled to a 12-person jury in a murder case when the defendant is a juvenile and the death penalty is not possible. Ortiz v. State, 41 Fla. L. Weekly D841a (1st DCA 4/4/16)

SENTENCING-JUVENILE-MURDER: Resentencing required on first degree murder count where defendant did not receive the sort of individualized sentencing hearing mandated by revised sentencing scheme and where trial court believed that it had no choice but to sentence defendant to life with possibility of parole after 25 years. Ortiz v. State, 41 Fla. L. Weekly D841a (1st DCA 4/4/16)

BURGLARY-JURY INSTRUCTIONS
: It is fundamental error for the jury instruction to say that the entry to the dwelling was with the intent to commit burglary; a separate crime must be intended. Long v. State, 41 Fla. L. Weekly D838a (1st DCA 4/4/16)

HEARSAY: Audio recording of statement made to police by person who implicated defendant in crime and who pled Fifth at trial is inadmissible under Crawford. Statements made during police interrogations are testimonial when the circumstances objectively indicate no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Padilla v. State, 41 Fla. L. Weekly D833a (2nd DCA 4/1/16)

DOUBLE JEOPARDY: Separate convictions for use of computer to seduce, solicit, or entice child to commit sex act and traveling to seduce, solicit, or entice child to commit sex act based upon same conduct violate double jeopardy. Duclos-Lasnier, 41 Fla. L. Weekly D831a (2nd DCA 4/1/16)

ATTEMPT TO SEDUCE MINOR: Texting picture of naked erect penis and showing up at designated location for stated purpose of having sex with victim were overt acts sufficient to constitute an attempt. Duclos-Lasnier, 41 Fla. L. Weekly D831a (2nd DCA 4/1/16)

TRANSMISSION OF HARMFUL IMAGE TO MINOR: Photos sent as cellular phone text messages violate section 847.0138(2). Duclos-Lasnier, 41 Fla. L. Weekly D831a (2nd DCA 4/1/16)

VIOLATION OF COMMUNITY CONTROL: Finding that defendant violated community control by failing to remain confined to home could not be based solely on hearsay testimony of community control officer regarding records of electronic monitoring device. Eveland v. State, 41 Fla. L. Weekly D829a (2nd Dca 4/1/16)

INJUNCTION: Error to enter injunction against dating violence where there was insufficient evidence of reasonable cause to believe that petitioner was in imminent danger of another act of dating violence. Nuila v. Stolp, 41 Fla. L. Weekly D824b (5th DCA 4/1/16)

SEARCH AND SEIZURE-PASSENGER: Officer may detain a passenger who attempts to leave the scene of a lawful traffic stop for officer protection. Conflict certified, prior precedent overruled. Aquiar v. State, 41 Fla. L. Weekly D820a (5th DCA 4/1/16)

MARCH 2016

DISCOVERY-CERTIORARI: Where defense had issued subpoenas duces tecum without leave of court or notification to State, State is entitled only to documents to be used at trial No writ of cert because no irreparable harm. State v Foley, 41 Fla. L. Weekly D814b (3rd DCA 3/30/16)

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Eye witness who says defendant is not the guy is valid newly discovered evidence. Hearing must be held where claim that defendant knew or should have known is not supported by evidence. Wilson v. State, 41 Fla. L. Weekly D813b (3rd DCA 3/30/16)

JIMMY RYCE: Trial court did not depart from essential requirements of law by refusing to close Jimmy Ryce civil commitment review proceeding to public and local TV station. Lake v. State, 41 Fla. L. Weekly D803a (4th DCA 3/30/16)

CREDIT FOR TIME SERVED: Upon violation of probation, Defendant is entitled to credit on each of his originally concurrent sentences. Vinson v. State, 41 Fla. L. Weekly D801c (4th DCA 3/30/16)

POST CONVICTION RELIEF: Where counsel for the Defendant arguably invited prejudicial and improper answer about other wrongs, on these facts the error was not so grave to constitute prejudice sufficient to vacate the conviction. Parini v. State, 41 Fla. L. Weekly D799a (4th DCA 3/30/16)

CONTEMPT: Juror may be held incontempt for failing to disclose his ex-wife's DUI arrest and conducting a drinking experiment on himself to test the impairment effects of alcohol. DeMartin v. State, 41 Fla. L. Weekly D797a (4th DCA 3/30/16)

SEARCH AND SEIZURE: Defendant's consent to search of his person was involuntary under totality of circumstances where officer stopped defendant's vehicle for traffic violation, discovered that defendant was on probation, and asked for consent to search before returning defendant's driver's license, without correcting defendant's mistaken belief that he was required to consent because he was on probation. Villanueva v. State, 41 Fla. L. Weekly D795c (2nd DCA 3/30/16)

PROBATION REVOCATION: Trial court erred in finding defendant in violation of special condition of probation requiring defendant to successfully complete 25 hours of community service at a rate of 5/month where there was sufficient time remaining for probationer to complete required hours at the required rate. Miller v. State, 41 Fla. L. Weekly D792a (2nd DCA 3/30/16)

CONFLICT OF INTEREST-WITHDRAWAL: Trial court departed from essential requirements of law when it inquired into details of attorney-client privileged information as to nature of conflict, in violation of section 27.5303, and denied counsel's motion to withdraw when counsel failed to answer. Young v. State, 41 Fla. L. Weekly D790a (2nd DCA 3/30/16)

POST CONVICTION RELIEF: Defendant should be allowed to amend claim of ineffective assitance for failure to convey offer to state that he would have accepted it. Alexander v. State, 41 Fla. L. Weekly D789a (2nd DCA 3/30/16)

POST CONVICTION RELIEF: Appellate counsel not ineffective for failing to argue that trial court fundamentally erred by giving erroneous jury instruction on manslaughter where, by arguing that defendant or his friend acted in self-defense, defendant necessarily conceded that one of them intentionally caused victim's death. Brown v. State, 41 Fla. L. Weekly D788a (2nd DCA 3/30/16)

CREDIT FOR TIME SERVED: Error to deny without hearing motion for credit for time served where documents attached to motion indicating that a first appearance conducted in other county also concerned case at issue. Maida v. State, 41 Fla. L. Weekly D773b (1st DCA 3/29/16)

GAIN TIME: Claim that trial court improperly authorized Department of Corrections to determine whether defendant's gain time should be forfeited after he was found in violation of probation is not cognizable pursuant to rule 3.800(a). King v. State, 41 Fla. L. Weekly D772b (1st DCA 3/29/16)

RULES AMENDMENT: Live Court Reporter is required for death penalty cases and capital postconviction proceedings. In Re: Amendment, 41 Fla. L. Weekly S114f (FLA 3/24/16)

MANDATORY MINIMUMS
: Sentence to be corrected to reflect mandatory minimums on various counts. Propriety of consecutive sentences to be addressed at resentencing hearing. Vargas v. State, 41 Fla. L. Weekly D770c (5th DCA 3/24/16)

APPEAL-PRESERVATION: Defendant waived appellate review by not raising in trial court the issue of whether an uninhabitable building was a dwelling. Smith v. State, 41 Fla. L. Weekly D770b (5th DCA 3/24/16)

POST CONVICTION RELIEF: Where motion alleging ineffective assistance of counsel for failure to raise insanity defense is conclusory, Defendant should be given leave to amend. Clinton v. State, 41 Fla. L. Weekly D768a (5th DCA 3/24/16)

APPEAL-PRESERVATION OF ISSUE: Court sentenced to Defendant to 15 years, deferred sentence, and promised to reduce it if Defendant appeared to begin sentence with no new arrest, then reneged because of a new arrest. Issue of reliance on an affidavit about the new arrest is not preserved if not objected to at the trial court level. Patterson v. State, 41 Fla. L. Weekly D765b (5th DCA 3/24/16)

EVIDENCE: The deposition of child's mother, who had been convicted of murder of child and was unavailable because she invoked Fifth Amendment, and which partially exonerated the Defendant, is not admissible under Chambers v. Mississipi because it did not bear persuasive assurances of trustworthiness. Gardner v. State, 41 Fla. L. Weekly D749a (2nd DCA 3/23/16)

YOUTHFUL OFFENDER
: Upon revocation of probation for substantive violation, court may exceed six years for the sentence but must maintain the Youthful Offender designation. Swarz v. State, 41 Fla. L. Weekly D747e (2nd DCA 3/23/16)

RESTITUTION
: Error to impose restitution after notice of appeal was filed. David v. State, 41 Fla. L. Weekly D744a (4th DCA 3/23/16)

RESTITUTION: Court may not enter restitution without conducting a hearing. Curtis v. State, 41 Fla. L. Weekly D743a (4th DCA 3/23/16)

CIRCUMSTANTIAL EVIDENCE: SODDI is not a reasonable hypothesis of innocence where defendant had the gun, was last seen with victim, and had motive. Babbs v. State. 41 Fla. L. Weekly D742a (4th DCA 3/23/16)

LIFE SENTENCE FOR JUVENILE
: Aggregate sentence of 70 years for non-homicide offenses committed when defendant was juvenile is unconstitutional. Cunningham v. State, 41 Fla. L. Weekly D740a (4th DCA 3/23/16)

REVOCATION OF PROBATION: Probation can be revoked based on association with criminals even if defendant did not commit crimes himself. Woolfork v. State, 41 Fla. L. Weekly D736a (4th DCA 3/23/16)

COMPETENCY: Trial court erred in dismissing charge against incompetent defendant prior to expiration of five years. Benninghoff v. State, 41 Fla. L. Weekly D733b (4th DCA 3/23/16)

QUOTATION: "The Essence of Pretext Is Deception." Spencer v. State, 41 Fla. L. Weekly D700c (2nd DCA 3/18/16)

JURORS-PEREMPTORY CHALLENGE
: Defendant's claim that race-neutral reason for strike of juror was not genuine was not preserved for appeal where defendant did not expressly claim the reason given was a pretext. The Court does not have an automatic burden to perform a genuineness analysis when a party objects to a peremptory challenge and the proponent provides a facially neutral reason. If an opponent wants the trial court to determine whether a facially neutral reason is a pretext, the opponent must expressly make a claim of pretext. Question certified. Spencer v. State, 41 Fla. L. Weekly D700c (2nd DCA 3/18/16)

QUOTATION: "It is not a pleasant task for one attorney to insist that the trial court determine whether another officer of the court is relying on a pretext. . .A lawyer should not lightly claim that another lawyer's explanation for his peremptory challenge is pretextual. But when the circumstances . . require this claim, the lawyer objecting to the peremptory challenge should be prepared to make this claim and should expect to make a complete argument demonstrating . . .that the proponent of the peremptory challenge is engaging in impermissible discrimination." Spencer v. State, 41 Fla. L. Weekly D700c (2nd DCA 3/18/16)

JURORS-PEREMPTORY CHALLENGE: Defendant's claim that race-neutral reason for strike of juror was not genuine was not preserved for appeal where defendant did not expressly claim that reason was a pretext. Question certified: During a Melbourne hearing, is it the burden of the opponent (1) to claim the reason is a pretext, (2) to place into the record the circumstances supporting its position, and (3) to object if the trial court's ruling does not contain adequate findings on the issue of genuineness? Ivy v. State, 41 Fla. L. Weekly D704a (2nd DCA 3/18/16)

CONSTRUCTIVE POSSESSION: Two people in the car, the defendant rolling a joint and cocaine on the center console. Error to deny motion for judgment of acquittal where state's only evidence of constructive possession was defendant's proximity to cocaine. Ability to exercise dominion or control means more than the ability to reach out and grab the controlled substance. Session v. State, 41 Fla. L. Weekly D713b (5th DCA 3/18/16)

SENTENCING-DOWNWARD DEPARTURE: Finding that the defendant was too young to appreciate the consequences of his offense when he was 21 years of age does not support downward departure. State v. Browne, 41 Fla. L. Weekly D713c (5th DCA 3/18/16)

RESENTENCING
: Court must take into account postconviction mitigation and rehabilitation evidence during a resentencing hearing. Branton v. State, 41 Fla. L. Weekly D711a (5th DCA 3/18/16)

SENTENCING-CONSIDERATIONS: Sentencing court erred in considering unsubstantiated evidence that defendant was arrested for possession of some drug while on bond awaiting sentencing. Reliance on pending charge as basis for finding that defendant was risk to society and had been engaged in escalating pattern of criminal activity constituted fundamental error. Tanner v. State, 41 Fla. L. Weekly D709b (1st DCA 3/18/16)

POST CONVICTION RELIEF
: Allegation that counsel assured defendant that if he entered plea the court would impose youthful offender sentence or not impose lengthy sentences is sufficient to warrant an evidentiary hearing on ineffective assistance of counsel. Plea colloquy about whether anybody had threatened, coerced, intimidated or promised anything does not refute his assertions. Voshell v. State, 41 Fla. L. Weekly D709a (1st DCA 3/18/16)


DEATH PENALTY: Trial court may accept waiver of presentation of mitigating circumstances by defendant, who wished to be executed, without appointing special counsel to investigate and present such evidence. Robertson v. State, 41 Fla. L. Weekly S108a (FLA 3/17/16)

CONTEMPT: Trial court has discretion, but is not required, to appoint counsel or give individual an opportunity to seek counsel in direct criminal contempt proceeding, but must appoint counsel indirect criminal contempt cases. Plank v. State, 41 Fla. L. Weekly S93a (FLA 3/17/16)

JURORS: "And I'm also, to tell you the truth, I'm a drunk. . . And as far as victim of crime, yes, I have been a victim of several crimes. . .and I've been burglarized a couple of times, nothing serious taken except a six-pack of beer, which I was kind of teed off at, because I was looking forward to having a beer after work, when I got home after work. And the police officer says -- the sheriff's asking me, 'Did you check the fridge?' I said, 'I never thought of that.' And sure enough, they took, they took my six-pack of beer." Plank v. State, 41 Fla. L. Weekly S93a (FLA 3/17/16)


QUOTATION: "What I'd like to know is how I got the smell of beer on my clothes when I never spilt one drop on my clothing.'" Plank v. State, 41 Fla. L. Weekly S93a (FLA 3/17/16)


COMPETENCY: Where defendant's competency was questioned and an evaluation conducted which apparently resulted in conclusion that defendant was competent to stand trial, but there was no evidence in the record that trial court reviewed competency evaluation or report or entered an order adjudicating defendant competent to proceed, remand is necessary for adjudication of whether defendant was competent at time he was tried. Blaxton v. State, 41 Fla. L. Weekly D699a (1st DCA 3/17/16)

DEATH PENALTY: Hurst struck down Florida's procedure for imposing death penalty, not the death penalty itself. New capital sentencing legislation enacted in response to Hurst applies to pending prosecutions and is not ex post facto. State v. Perry, 41 Fla. L. Weekly D714 (5th DCA 3/16/16)

SENTENCING-DEPARTURE-DISPARITY: Trial court erred in imposing downward departure sentence in effort to achieve sentencing parity between two codefendants where record reflected that the two defendants were not similarly situated and not equally culpable. Perez-Diaz v. State, 41 Fla. L. Weekly D680a (3rd DCA 3/16/16)

CONCEALED FIREARM-DISMISSAL
: Where one officer saw the half-inch tip of the barrel of a handgun underneath the passenger seat of vehicle where defendant had been sitting while the passenger door was open, but a second officer testified that at no point did he see a gun visible in the vehicle, the question of whether the firearm was in the ordinary sight of another person, or was concealed, was a question for jury determination. State v. Bemjamin, 41 Fla. L. Weekly D674a (4th DCA 3/16/16)


PRISON RELEASEE REOFFENDER
: Prison releasee reoffender sentence for aggravated assault on a law enforcement officer is lawful. McClellion v. State, 41 Fla. L. Weekly D673a (4th DCA 3/16/16)


BRADY: Defendant may raise Brady claim based on state's failure to disclose criminal records of two prosecution witnesses via rule 3.850 motion. Cox v. State, 41 Fla. L. Weekly D672a (4th DCA 3/16/16)


APPEAL PRESERVATION: Claim that detective's testimony regarding non-verbal "admissions" by defendant, observed by detective during investigative interview, was improper opinion testimony and comment on guilt of defendant was not preserved for appeal by objection and did not rise to level of fundamental error. Navas v. State, 41 Fla. L. Weekly D671a (4th DCA 3/16/16)

EVIDENCE: Error to allow officer to testify that surveillance video showed defendant "running with a firearm that was being concealed under his shirt." Officer's testimony constituted impermissible lay opinion that invaded province of jury to interpret the video. Seymour v. State, 41 Fla. L. Weekly D670a (4th DCA 3/16/16)

SENTENCING UPON REMAND: Where appellate court had held that defendant was erroneously sentenced as prison releasee reoffender, trial court erroneously amended sentence to remove PRR designation without ordering a new sentencing hearing and permitting defendant and his counsel to be present. Wilson v. State, 41 Fla. L. Weekly D664a (2nd DCA 3/11/16)

EVIDENCE-EXPERT OPINION
: Trial court did not err in admitting testimony of arresting officer identifying plant material and pipe seized from juvenile's book bag as marijuana and drug paraphernalia. Lay persons can identify marijuana based on their personal experience and knowledge. R.C. v. State, 41 Fla. L. Weekly D662a (3/11/16)

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to call a fingerprint expert was insufficiently pleaded because defendant did not provide the substance of the proposed expert's testimony. Cox v. State, 41 Fla. L. Weekly D657a (2nd DCA 3/11/16)


STATEMENT OF DEFENDANT
: Trial court erred in admitting recorded interview of defendant in which defendant stated that he had been abused and detective offered opinion that this abuse made defendant more likely to commit such crimes. There was no evidence that detective was an expert who could opine on the likelihood that previously abused individuals would in turn commit abuse. Cass v. State, 41 Fla. L. Weekly D656a (2nd DCA 3/11/16)

BURGLARY OF STRUCTURE: A kiosk in the mall is a structure if it has a roof. K.H. v. State, 41 Fla. L. Weekly D654e (1st DCA 3/11/16)

SEARCH AND SEIZURE-REASONABLE SUSPICION: Deputy on directed patrol in high crime area had reasonable suspicion of illicit drug activity when he witnessed defendant exit a taxi at parking lot of convenience store and approach an individual known to have participated in illegal narcotics sales in the past and observed known drug dealer retrieve an object from his mouth and place it in defendant's mouth. State v. Watson, 41 Fla. L. Weekly D651a (5th DCA 3/11/16)


CIRCUMSTANTIAL EVIDENCE: Suggestion that circumstantial evidence standard should be relaxed is rejected. There must be direct, not merely circumstantial, evidence on all elements of an offense for a conviction. However, in this close case, where counsel conceded there was direct evidence, the conviction is sustained. Knight v. State, 41 Fla. L. Weekly S82a (FLA 3/10/16)

STAND YOUR GROUND-JURY INSTRUCTION
: Standard jury instruction 3.6(f) on justifiable use of deadly force is not confusing, contradictory, or misleading with respect to the duty to retreat in factually complex situations where the jury must unwind the facts to determine who was the initial aggressor. State v. Floyd, 41 Fla. L. Weekly S85a (FLA 3/10/16)

PROBATION REVOCATION-JURISDICTION
: Trial court has jurisdiction to proceed on violation of probation while case is under appeal, but may not modify the sentence already imposed. Bailey v. State, 41 Fla. L. Weekly D649b (3rd DCA 3/9/16)

COMPETENCY OF DEFENDANT
: Court cannot accept guilty plea where defendant had been found incompetent, parties later stipulated to her competence based on report of doctor, when no order of competency had been entered. Elder v. State, 41 Fla. L. Weekly D649a (2nd DCA 3/9/16)

HABITUAL OFFENDER-CONSECUTIVE SENTENCES: Error to impose consecutive habitual offender sentences for multiple offenses committed during single criminal episode. Baskin v. State, 41 Fla. L. Weekly D648a (2nd DCA 3/9/16)

SENTENCING-UPWARD DEPARTURE: Violation of Sixth Amendment and Due Process when defendant is not given notice that his danger to public was at issue nor informed that he had right to present evidence and contest issue. A prediction of future danger to the public cannot be established by proof of prior offenses when the proof falls below the standard of preponderance of the evidence; proof that merely reaches the level of probable cause or reasonable suspicion is not sufficient. Rodriguez-Aguilar v. State, 41 Fla. L. Weekly D646b (2nd DCA 3/9/16)

DISCLOSURE OF CI--ENTRAPMENT
: Trial court erred in denying defendant's motion to disclose identity of confidential informant who set up drug deal where motion for disclosure of CI's identity alleged that defendant was repeatedly contacted and induced by CI and that defendant would not have purchased cocaine from CI without CI's urging. Hill v. State, 41 Fla. L. Weekly D645a (2nd DCA 3/9/16)

VOIR DIRE-COMMENTS BY JUDGE: Improper comments by a trial judge during voir dire can result in fundamental error. Trial court's extensive comments during voir dire, which included an inadequate legal explanation of burglary and an improper golden rule argument were fundamental error. Morgan v. State, 41 Fla. L. Weekly D642a (2nd DCA 3/9/16)

JURY INSTRUCTION-BURGLARY
: jury instruction should specify the offense which the defendant intended to commit; if the offense cannot be specified the instruction must say some offense other than burglary or trespass. Morgan v. State, 41 Fla. L. Weekly D642a (2nd DCA 3/9/16)

CRIMINAL MISCHIEF: Damage done to the door during the struggle between the defendant and the victims does not rise to the level of criminal mischief or the damage is not the intended act. Morgan v. State, 41 Fla. L. Weekly D642a (2nd DCA 3/9/16)

SENTENCING
: Court may not allow his personal emotions to affect sentencing. Stating that he cannot imagine his child witnessing acts similar to those of the defendant indicates that the judge considered inappropriate matters. Morgan v. State, 41 Fla. L. Weekly D642a (2nd DCA 3/9/16)

INTERCEPTED COMMUNICATIONS: Defendant did not have expectation that statements were private and not subject to interception where conversation occurred at sales counter in area open to public, business was open to public at time recording was made, there was sign at front of store notifying everyone who entered that business had constant video and audio surveillance, cameras inside store were in visible locations, and defendant admitted she was aware of the cameras. State v. Caraballo, 41 Fla. L. Weekly D641a (2nd DCA 3/9/16)

CREDIT FOR TIME SERVED: Trial court erred in failing to award defendant credit for prison time served on probationary split sentence. On recent, the Court can adjust the length of the sentence so that the defendant serves additional time in prison consistently with the Court's original intent. Conflict certified. Gonzalez v. State, 41 Fla. L. Weekly D617a (3rd DCA 3/9/15)

CONTEMPT: Trial court may hold defendant in contempt for using profanity in court ("I'm going to accept the funking 18 months, excuse my language"), but 180 day sentence appears lawful but excessive. Should be used cautiously and sparingly, and the punishment should fit the crime. Gems v. State, 41 Fla. L. Weekly D615a (3rd DCA 3/9/16)

JIMMY RYCE: Prosecutor's hypothetical question to jury whether they would put their kids on a plane if they knew there was a 32% chance of plane crashing, made in response to defense argument that experts had indicated defendant had 32% chance of reoffending, was harmless error under circumstances. Rodriguez v. State, 41 Fla. L. Weekly D613b (3rd DCA 3/9/16)

CIVIL PENALTY FOR SOLICITATION OF PROSTITUTION
: County court erred by sua sponte raising the issue of the constitutionality of statute imposing civil penalty for solicitation of prostitution and finding statute to be unconstitutional. State v. Richard, 41 Fla. L. Weekly D610a (3rd DCA 3/9/16)

SEARCH AND SEIZURE: Officer who stopped defendant's vehicle after observing defendant driving without wearing a seatbelt had no legal authority to detain defendant outside this limited purpose where officer had no articulable suspicion of criminal activity on the part of defendant. Dog sniff prolonged stop in violation of defendant's Fourth Amendment rights. Jones v. State, 41 Fla. L. Weekly D608c (4th DCA 3/9/16)

SENTENCING: Provision of 10-20-Life statute allowing court to impose mandatory minimum term between 25 years and up to life did not permit court to impose sentence exceeding statutory maximum for underlying offense. The sentence for attempted second-degree murder with a firearm can be no more than thirty years. Conflict certified. Rocker v. State, 41 Fla. L. Weekly D602a (4th DCA 3/9/16)

ARGUMENT: Prosecutor's statement in closing argument that "there has been no satisfactory explanation as to why or how" the defendant had the stolen property, though not directly referencing defendant's failure to testify, highlighted defendant's failure to testify and thus improperly shifted the burden to defendant to prove his innocence. Although state is permitted to have jury instructed on presumptions that arise when a defendant is found in possession of recently stolen property, it is not permitted to invite the jury to convict based on defendant's failure to rebut the presumptions. Gleason v. State, 41 Fla. L. Weekly D596b (4th DCA 3/9/16)

SOLICITATION OF PROSTITUTION: $5000 civil penalty for solicitation of prostitution is constitutional. State v. Benitez, 41 Fla. L. Weekly D593b (4th DCA 3/9/16)

WEIRDNESS: "We are thus at the odd procedural posture of reviewing an initial 'order' that was not actually an order, followed by an actual order that the postconviction court created only to comply with this court's order and in which the postconviction court explains that its true intent was not to enter any rendered order whatsoever. . .Accordingly, we decline to treat the postconviction order coerced by this court as a binding ruling from that court." Phillips v. State, 41 Fla. L. Weekly D576c (2nd DCA 3/4/16)

TRESPASS ON SCHOOL GROUNDS
: Juvenile who went to school, acted out, got suspended, and was told to wait for his mother in a waiting room is guilty of trespass for going into an adjacent open-air courtyard. M.M. v. State, 41 Fla. L. Weekly D572a (5th DCA 3/4/16)

QUOTATION
: "(Ii)t seems absurd to me that a teacher or administrator can at any time create a trespass zone in order to turn simple disobedience into a crime. . .by telling a student to stay in his or her chair, or to sit in a corner, or to stay in a particular line. Similarly, although absurd, I guess that an instruction to a student to go somewhere on campus is now a crime if not obeyed." [C.J. Lawson dissenting] M.M. v. State, 41 Fla. L. Weekly D572a (5th DCA 3/4/16)

COMPETENCY OF DEFENDANT
: Trial court erred in failing to hold competency hearing prior to trial where experts who were appointed to evaluate defendant gave conflicting opinions as to whether defendant was competent to proceed. Moorer v. State, 41 Fla. L. Weekly D583b (1st DCA 3/4/16)


POSSESSION OF CHILD PORNOGRAPHY-RECLASSIFICATION
: Where defendant's plea involved 170 images of child pornography, state could properly sort the images into groups of ten, with each group including an image of a sexual battery on a child, charge one count of possession of child pornography-ten or more images for each group of ten, and then reclassify each of the seventeen counts to a second-degree felony. Walsh v. State, 41 Fla. L. Weekly D581a (2nd DCA 3/4/16)

SENTENCING-RECLASSIFICATION
: Reclassified offenses, unlike enhanced offenses, may be imposed consecutively. Walsh v. State, 41 Fla. L. Weekly D581a (2nd DCA 3/4/16)


STATEMENTS OF DEFENDANT
: Trial court erred in granting motion to suppress statements made in fifth and final police station interview on ground that detective failed to give defendant timely Miranda warning, where he was not in custody and under interrogation during any of her interviews with the detective. Thorough discussion. State v. Thompson, 41 Fla. L. Weekly D578a (2nd DCA 3/4/16)


APPEALS-JURISDICTION
: Appellate court is without jurisdiction prior to entry of final judgment. "Memo of sentence," which was not in conformity with form provided in rule 3.986(a), did not serve as judgment and sentence in this case. Gray v. State, 41 Fla. L. Weekly D577a (2nd DCA 3/4/16)


CONSECUTIVE SENTENCES
: Consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged. If, however, multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory. 10-20-Life sentences must be consecutive to the any non-10-20-Life counts. Williams v. State, 41 Fla. L. Weekly S73a (FLA 3/3/16)


SELF-REPRESENTATION
: New trial is required where trial court failed to conduct adequate Faretta hearing before permitting defendant to represent himself. Judge's familiarity with defendant from prior hearings in case did not excuse failure to conduct adequate hearing. Silva v. State, 41 Fla. L. Weekly D561a (3rd DCA 3/2/16)


SENTENCING IN ABSENTIA
: Trial court could not sentence defendant in absentia where he did not have proper notice and there was no determination that his failure to appear was willful, notwithstanding plea agreement that provided that an unqualified failure to attend a court hearing would result in imposition of 30-year sentence. Hernandez v. State, 41 Fla. L. Weekly D555a (3rd DCA 3/2/16)


PROBATION REVOCATION
: If the sole basis of a revocation order is a conviction that is later overturned, that order of revocation cannot stand. New hearing permitted. McCloud v. State, 41 Fla. L. Weekly D551a (1st DCA 2/2/16)


DOUBLE JEOPARDY
: Separate convictions for grand theft and organized scheme to defraud violated double jeopardy where both offenses were based on common allegations that defendant stole money from her employer by writing checks to herself between certain dates. Manata v. State, 41 Fla. L. Weekly D550c (1st DCA 3/2/16)

HEARSAY-STATEMENTS OF PARTY-OPPONENT
: A confidential informant is an agent of the State, so his out-of-court statements are admissible as statements of a party-opponent. Osorio v. State, 41 Fla. L. Weekly D547b (4th DCA 3/2/16)

ARGUMENT
: Defense may comments on state's failure to call confidential informant as witness. Because informant was agent of state, state had ability to produce him as a witness, making him peculiarly within the state's control and susceptible to comment by defense counsel when not called to testify for the prosecution. Osorio v. State, 41 Fla. L. Weekly D547b (4th DCA 3/2/16)

BOLSTERING OF WITNESS
: Trial court improperly declared to jury that state's testifying forensic chemist was an "expert." It is impermissible for the Court to declare a witness and expert. Osorio v. State, 41 Fla. L. Weekly D547b (4th DCA 3/2/16)

APPEAL-PRESERVING ISSUE
: Claim that trial court erred in admitting lay opinion testimony from an officer was not preserved for appeal where objection ruled upon by trial court was that officer's testimony required expertise, not that testimony was lay opinion. Parisi v. State, 41 Fla. L. Weekly D547a (4th DCA 3/2/16)

CIRCUMSTANTIAL EVIDENCE
: In a burglary case, I thought I hit a cat and was looking for it in the shed is not a reasonable hypothesis of innocence. Parisi v. State, 41 Fla. L. Weekly D547a (4th DCA 3/2/16)

SENTENCING-GUIDELINES-VICTIM INJURY POINTS: Trial court erred in imposing victim injury points for the count of lewd or lascivious conduct because the crime does not necessarily require sexual contact and the jury did not make a finding of sexual contact with regard to that count. Greene v. State, 41 Fla. L. Weekly D545a (4th DCA 3/2/16)


CLEMENCY
: Indigent defendant applying for executive clemency was entitled to obtain certain documents in support of his application free of charge and without delay. Court must tell him so. Denson v. State, 41 Fla. L. Weekly D534b (2nd DCA 3/2/16)

COSTS
: Trial court erred in imposing discretionary fine and related surcharge for aggravated abuse of a disabled adult which were not orally pronounced at sentencing. Williams v. State, 41 Fla. L. Weekly D533a (2nd DCA 3/2/16)

KIDNAPPING WITH INTENT TO INTERFERE WITH GOVERNMENTAL FUNCTION
: Evidence that defendant commandeered car and driver to flee from officer who was lawfully attempting to detain defendant established prima facie case of intent to interfere with performance of governmental function. Knott v. State, 41 Fla. L. Weekly D532b (2nd DCA 3/2/16)

SEVERANCE
: Trial court properly denied motion to sever burglary and kidnapping charges from aggravated battery on girl friend where the kidnapping involved interfering with officers attempt to stop him after the aggravated battery. Knott v. State, 41 Fla. L. Weekly D532b (2nd DCA 3/2/16)


QUOTATION
: "The deputy pursued him, but Mr. Knott climbed a wall and seemingly disappeared into thin air. But magic was not involved." Knott v. State, 41 Fla. L. Weekly D532b (2nd DCA 3/2/16)

DISCOVERY VIOLATION
: Error, if any, was harmless where Court found there was a discovery violation but provided a remedy, and the Defense declined the option of being given more time to prepare. Clark v. State, 41 Fla. L. Weekly D527b (4th DCA 3/2/16)

CHALLENGE FOR CAUSE
: Claim that trial court erred in denying challenge for cause of a juror was not preserved for appeal where defendant exhausted peremptory challenges and asked for an additional one, but did not identify a specific juror upon whom he would have exercised a challenge if available. Clark v. State, 41 Fla. L. Weekly D527b (4th DCA 3/2/16)

FEBRUARY 2016

BAIL PENDING APPEAL: In denying motion for post-trial release trial court applied an incorrect standard when it considered whether defendant's appeal will ultimately be meritorious, as opposed to whether the appeal is taken in good faith, on grounds fairly debatable, and not frivolous. Petersen v. State, 41 Fla. L. Weekly D521c (1st DCA 2/29/16)

LIFE SENTENCE-JUVENILE-NON HOMICIDE: Fifty year sentence is not a de facto life sentence. Williams v. State, 41 Fla. L. Weekly D508a (2nd DCA 2/26/16)

FORFEITURE OF RETIREMENT: Pension cannot be forfeited on the basis of inadmissible hearsay that the Defendant committed sexual acts on minors on government property. Conviction without proof of the element that the acts occurred on government property cannot support finding that pension is forfeited. Rivera v. Board, 41 Fla. L. Weekly D505a (2nd DCA 2/26/16)

INEFFECTIVE APPELLATE COUNSEL
: Privately retained counsel may not file an Anders brief. Privately retained counsel is not required to file a brief where there are no meritorious issues. If privately retained counsel cannot file a merits brief, he may re-apply for appointment of public defender, who can file an Anders brief, rather than dismissing the appeal. Harrison v. State, 41 Fla. L. Weekly D504b (2nd DCA 2/26/16), [Original Opinion at 41 Fla. L. Weekly D4a].

DELIVERY OF COCAINE BEFORE MIDNIGHT
: "We conclude with some hesitation that the testimony concerning the time of the transaction is enough to avoid a judgment of acquittal on delivery of cocaine [before midnight]. . . The exact time of the transaction is very important to Mr. Stinson, who is almost sixty years old and had never been in prison before. . . [I]f Mr. Stinson files a facially sufficient postconviction motion raising this issue, it should be given careful attention." Stinson v. State, 41 Fla. L. Weekly D503a (2nd DCA 2/26/16)

SOLICITATION OF PROSTITUTION-EXCESSIVE FINE
: "Although . . . the $5000 fine [for solicitation of prostitution] approaches the outer limits of constitutionality, we do not find it to be excessive." State v. Cotton, 41 Fla. L. Weekly D500d (2nd DCA 2/26/16). See https://www.youtube.com/watch?v=8CtjhWhw2I8

PRISON RELEASEE REOFFENDER
: Error to impose prison releasee reoffender sentence for corruption by threat against a public servant because crime can be committed without use of threat of physical force or violence and is not felony enumerated in statute. Johnson v. State, 41 Fla. L. Weekly D500b (1st DCA 2/26/16)


JUVENILES-CONTEMPT
: Juvenile cannot not be placed in secure facility as punishment for contempt without considering whether alternative sanctions were unavailable or inappropriate or evidence that juvenile had already been ordered to serve alternative sanction but failed to comply. D.J.J.v. L.W.P., 41 Fla. L. Weekly D500a (1st DCA 1/26/16)


CONDITION OF PROBATION
: Court may not require Defendant to obtain GED but may require him to make a good faith effort to do so. Taylor v. State, 41 Fla. L. Weekly D499b (1st DCA 2/26/16)

DOUBLE JEOPARDY
: Separate convictions for traveling to solicit minor for sex and using computer to solicit minor for sex violated prohibition against double jeopardy. Johnston v. State, 41 Fla. L. Weekly D499a (1st DCA 2/26/16)

RES JUDICATA-NAME CHANGE
: Trial court erred in finding that name change petition was procedurally barred. Res Judicata does not apply in non-advcersarial proceedings. One may change one's name as frequently as one likes. In re: Merchant, 41 Fla. L. Weekly D497a (1st DCA 2/26/16)

CREDIT FOR TIME SERVED
: Where defendant is arrested out of county for a crime there and a Violation of Probation here, and sentences are consecutive, he is entitled to credit for time served from the date the first sentence expired. Sherman v. State, 41 Fla. L. Weekly D492a (5th DCA 2/26/16)

JUROR INTERVIEW: Trial court abused its discretion by denying defendant's motion to interview alternate juror who told defendant's mother that jurors had talked about defendant's case and some were disposed to find the defendant guilty before deliberations began. Phelps v. State, 41 Fla. L. Weekly D490b (5th DCA 2/26/16)

INJUNCTION
: Error to grant injunction for sexual misconduct against minor where the only evidence was inadmissible hearsay. J.G. v. E.B., 41 Fla. L. Weekly D490a (5th DCA 2/26/16)

SENTENCING-DOWNWARD DEPARTURE
: Because defendant entered plea based on trial court's promise to impose downward departure sentence, he should be given opportunity to withdraw plea on remand. State v. Cleveland, 41 Fla. L. Weekly D489a (5th DCA 2/26/16)

CONSECUTIVE SENTENCES
: Unenhanced sentence may be imposed consecutively to an enhanced sentence. Pinkard v. State, 41 Fla. L. Weekly D488c (5th DCA 2/26/16)

DOUBLE JEOPARDY
: Separate convictions for capital sexual battery and for lewd or lascivious molestation, arising from a single act, do not violate the prohibition against double jeopardy. Each has an element the other does not. "Although the conduct constituting capital sexual battery will as a practical matter ordinarily -- if not always -- also constitute lewd or lascivious molestation, the formal elements of these two crimes are quite distinct. And section 775.021(4) requires analysis based on the formal elements of the crimes." Prior precedent (Gibbs) receded from. The presumption in favor of stare decisis is strong, but not unwavering. Roughton v. State, 41 Fla. L. Weekly S70a (FLA 2/25/16)

CROSS-EXAMINATION
: Error to preclude Defendant from fully cross-examining officers that one half of money seized for forfeiture was returned to him as part of settlement of foarfieture case. State's argument that the reason for the settlement might be for reasons unrelated to the weakness of the case is rejected. "The availability of alternative theories regarding the evidence does not, alone, make evidence irrelevant. Relevant evidence need not concretely prove a material fact, it merely must tend to prove a material fact." Ragin v. State, 41 Fla. L. Weekly D482a (4th DCA 2/24/16)

QUOTATION: "It is not for this court to follow the domino of arguments and counter-arguments that may or may not be made if certain evidence would have been admitted. Ragin may very well make arguments at retrial to his detriment; however, it is his liberty and right to do so, and it is such liberty and right which we are charged with ensuring." Ragin v. State, 41 Fla. L. Weekly D482a (4th DCA 2/24/16)

SENTENCING-SCORESHEET-PENETRATION-VOP
: Where Defendant entered a negotiated plea to a below guidelines sentence for child abuse (L & L dropped) , and did not object to scoresheet which included penetration points, the penetration points remain on the scoresheet upon later VOP sentencing. Apprendi and Alleyne do not apply. Dames v. State, 41 Fla. L. Weekly D480a (4th DCA 2/24/16)

STATEMENTS OF DEFENDANT-VOLUNTARINESS
: Trial court erred in admitting confession which was induced by detective's implied promise of leniency and reduction of charges if the Defendant told the truth. A confession must not be induced by any threat or promise, however slight. Squire v. State, 41 Fla. L. Weekly D479a (4th DCA 2/24/16)

HEARSAY
: Error to admit the contents of the BOLO that described the assailant and named him as "J.R." The contents of a BOLO are inadmissible hearsay as being offered for the truth of the matter asserted, in this case the identity of the assailant. Squire v. State, 41 Fla. L. Weekly D479a (4th DCA 2/24/16)

HEARSAY-EXCITED UTTERANCE
: Error to allow victim's statements to friend who called 911, and to cop, who asked her who shot her, that J.R. shot her. Although the statements could qualify as excited utterance under the circumstances in which it was made, they were inadmissible under Crawford because they were testimonial statements made to assist law enforcement in the investigation. Squire v. State, 41 Fla. L. Weekly D479a (4th DCA 2/24/16)

PLEA WITHDRAWAL: A defendant is not allowed to withdraw his or her guilty plea after sentence has been imposed based on the alleged misadvice of defense counsel as to the maximum length of his sentence where, during the plea colloquy, both the defense attorney and the court informed the defendant of the maximum sentence that he faced. Davis v. State, 41 Fla. L. Weekly D445a (5th DCA 2/19/16)

APPEALS
: Appellant has burden of preparing record on appeal. Where the plea colloquy and sentencing is not included in record, defendant failed to meet burden of demonstrating that trial court abused its discretion in denying motion to withdraw plea. Davis v. State, 41 Fla. L. Weekly D445a (5th DCA 2/19/16)

INVESTIGATORY STOP
: A police officer may ask a citizen twice to come over and speak to him without infringing upon that citizen's Fourth Amendment rights. Albert v. State, 41 Fla. L. Weekly D443a (5th DCA 2/19/16)

DOUBLE JEOPARDY: Separate convictions for using computer to solicit person believed to be parent for sex with a minor and traveling after using a computer to solicit person believed to be parent for sex with a minor violated defendant's double jeopardy rights where, as charged, communications between defendant and undercover officers constituted single criminal episode of solicitation which was then followed by traveling. Stapler v. State, 41 Fla. L. Weekly D436b (5th DCA 2/19/16)

PROBATION-CONDITIONS
: Conditions prohibiting contact with minors is overly broad because it subjects defendant to possible punishment for innocent or inadvertent conduct. Condition to be modified to prohibit only intentional contact. Stapler v. State, 41 Fla. L. Weekly D436b (5th DCA 2/19/16)

POST CONVICTION RELIEF
: Claims alleging counsel was ineffective for failing to advise defendant or investigate viable defenses, including those related to entrapment, and failing to inquire into defendant's competency to enter plea were not conclusively refuted by records. Saunders v. State, 41 Fla. L. Weekly D435f (5th DCA 2/19/16)

COUNSEL-CONFLICT: No error in denying relief on claim that trial counsel acted under actual conflict of interest because he had been employed by public defender's office at a time when that office had represented codefendant where defendant failed to identify specific evidence suggesting that his interests were compromised and failed to demonstrate actual conflict. Salazar v. State, 41 Fla. L. Weekly S50a (FLA 2/18/16)

POST CONVICTION RELIEF-DEATH PENALTY
: Counsel is ineffective for failure to conduct adequate background investigation for penalty phase. Remanded for new sentencing hearing. There is a clear distinction between counsel's strategic decision after conducting a reasonable investigation prior to trial and those cases where counsel made a decision to forego mental mitigation without conducting any meaningful investigation. Salazar v. State, 41 Fla. L. Weekly S50a (FLA 2/18/16)

CHALLENGE FOR CAUSE: Challenge for cause not preserved where attorney did not expressly renew his objection before the jury was sworn, despite having otherwise taken necessary steps. Salazar v. State, 41 Fla. L. Weekly S50a (FLA 2/18/16)

ARGUMENT-DEATH PENALTY
: Conviction reversed where State described the purpose of the trial as seeking "justice" for the child victim and repeatedly denigrated the defense's presentation as "diversionary." Cardona v. State, 41 Fla. L. Weekly S45a (FLA 2/18/16)

QUOTATION
: "When the State . . .uses closing argument to appeal to the jury's sense of outrage at what happened to the victim and asks the jurors to return a verdict that brings 'justice' to the victim, the State perverts the purpose of closing argument and engages in the very type of argument that has been repeatedly condemned as antithetical to the foundation of our criminal justice system that guarantees a fair trial to every accused." Cardona v. State, 41 Fla. L. Weekly S45a (FLA 2/18/16)

EVIDENCE-FELONY BATTERY-PRIORS: Defendant cannot be convicted of felony battery on basis of certified conviction without fingerprints or other corroboration of whose conviction it is. Court may not create its own evidence exhibit to use against defendant by printing, cutting and stapling a copy of an online booking photo to the certified copy of the prior judgment. Dolan v. State, 41 Fla. L. Weekly D416a (2nd DCA 2/17/16)

JUDICIAL NOTICE
: Although a trial court may take judicial notice of court records, it does not follow that the wholesale admission of all hearsay statements contained within those court records is permitted. Dolan v. State, 41 Fla. L. Weekly D416a (2nd DCA 2/17/16)


QUOTATION
: "Perhaps the assistant state attorney in this case was inexperienced. Nonetheless, while a trial court certainly has some discretion to make allowances for inexperienced or unprepared attorneys, the court does not have the discretion to dispense with basic rules of evidence or to take over the role of prosecutor." Dolan v. State, 41 Fla. L. Weekly D416a (2nd DCA 2/17/16)


JURY INSTRUCTION-ATTEMPTED SECOND DEGREE MURDER
: Reversible error to give jury instruction on lesser included offense of attempted voluntary manslaughter which included the element of attempt to kill where the defendant did not concede the element of intent to kill. Cisneros-Gonzalez v. State, 41 Fla. L. Weekly D423b (3rd DCA 2/17/16)


WITHDRAWAL OF PLEA
: Where motion alleged plea was involuntary because counsel misadvised defendant about maximum sentence he would serve, trial court should have conducted Sheppard hearing to determine whether adversarial relationship between defendant and defense counsel actually existed and whether to appoint conflict-free counsel to represent defendant on his motion to withdraw. Jamison v. State, 41 Fla. L. Weekly D420b (2nd DCA 2/17/16)

COMPETENCY OF DEFENDANT
: Court cannot accept plea of Defendant after psych evals have been ordered until a competency hearing is held. A trial court may not accept a stipulation of competency from a defendant to proceed to trial or to accept a plea. Jamison v. State, 41 Fla. L. Weekly D420b (2nd DCA 2/17/16)

CREDIT FOR TIME SERVED: Trial court erred in granting defendant credit for time defendant wore GPS monitor while released on bond. GPS monitored home detention is not functional equivalent of jail. State v. Patino, 41 Fla. L. Weekly D419b (2nd DCA 2/17/16)

DOUBLE JEOPARDY
: Separate convictions for use of a computer to lure or entice a child to engage in a sexual act and traveling to meet a minor violated prohibition against double jeopardy. Rivera v. State, 41 Fla. L. Weekly D419a (2nd DCA 2/17/16)

ROBBERY BY SUDDEN SNATCHING
: Snatching of an object (cell phone) on the victim's lap is sudden snatching robbery. "The embrace of the person" is distinguished from the "person's figurative biosphere." K.S. v. State, 41 Fla. L. Weekly D412a (4th DCA 2/17/16)


QUOTATION
: "Under Appellant's theory, . . .(w)ould-be-thieves would be wise to wait until a hat is resting on its owner's head before taking it, rather than to grab it while the owner is still placing it there." K.S. v. State, 41 Fla. L. Weekly D412a (4th DCA 2/17/16) See also Wodehouse, P.G., "Without the Option," Carry On, Jeeves.

EXPUNGEMENT
: Trial court did not abuse its discretion by denying motion to expunge criminal history record, although judgment and sentence had been vacated, where the appellate court found that the facts did not constitute the crime charged but also noted that petitioner's conduct (tying old lady to a bed so Defendant could go out partying) was possibly criminal. Maxwell v. State, 41 Fla. L. Weekly D411a (4th DCA 2/17/16)

EXPUNGEMENT
: One is ineligible for expunction if case proceeds to trial, even if acquitted or conviction vacated on appeal. Maxwell v. State, 41 Fla. L. Weekly D411a (4th DCA 2/17/16)

TERMINATION OF PARENTAL RIGHTS
: Parental rights of father of child conceived by sexual battery, including sex with minor, may be terminated regardless whether there was a prosecution. Guardian Ad Litem v. M.H., 41 Fla. L. Weekly D409b (4th DCA 2/17/16)

SOLICITATION OF PROSTITUTION: Mandatory $5000 civil penalty for solicitation of prostitution is not unconstitutionally excessive. State v. Trotman, 41 Fla. L. Weekly D406a (4th DCA 2/17/16)

POST-CONVICTION RELIEF-COUNSEL
: Trial court abused discretion by denying motion to appoint counsel for post conviction hearing where defendant is illiterate, has only a third-grade education, and post conviction motion raised complex issues. Maricevich v. State, 41 Fla. L. Weekly D401a (2/16/16)

CONSTRUCTIVE POSSESSION: Judgment of acquittal is required where cocaine is found in a purple bag which was is a gray bag in a vehicle occupied by 3 people, and where property of all 3 occupants was found in the gray bag. Edwards v. State, 41 Fla. L. Weekly D396a (2nd DCA 2/12/16)

APPEALS: Motion for judgment of acquittal was not preserved for appeal where the argument on appeal differed from the argument raised in the trial court. Stoddard v. State, 41 Fla. L. Weekly D394c (2nd DCA 2/12/16)

QUOTATION: "I have never understood why an attorney's failure to make a sufficient motion for judgment of acquittal is not ineffective assistance on the face of the record. Even a marginally prepared attorney should know the elements of the offense for which a client is on trial." Stoddard v. State, 41 Fla. L. Weekly D394c (2nd DCA 2/12/16)

CRIMINAL MISCHIEF: Conviction must be reduced to a second-degree misdemeanor where the only evidence of value was the victim's estimate of damages. The factfinder may not consider its life experiences in determining the amount of damages. B.J.M. v. State, 41 Fla. L. Weekly D393a (5th DCA 2/12/16)

CREDIT FOR TIME SERVED: Where motion for jail credit was legally insufficient, trial should have given movant leave to amend unless the record conclusively established no entitlement to relief. Maguire v. State, 41 Fla. L. Weekly D391a (5th DCA 2/12/16)

POSSESSION OF FIREARM BY FELON
: For purposes of §790.23(1), which makes it a criminal offense for a felon to possess a firearm, a withhold of adjudication does not qualify as a "conviction." Clarke v. United States, 41 Fla. L. Weekly S41a (FLA 2/11/16)

NEWLY DISCOVERED EVIDENCE-RECANTATION: A post-trial, pre-sentencing letter written by victim purporting to offer possible explanation for defendant's actions did not constitute a recantation where nothing in the letter recanted any material trial testimony. Koo v. State, 41 Fla. L. Weekly S38a (FLA 2/11/16)

AMENDMENT TO RULES OF JUVENILE PROCEDURE-CONTEMPT: Rules amended to provide for appointment of counsel for direct contempt. 41 Fla. L. Weekly S37a (FLA 2/11/16)

DEADLOCKED JURY: Trial court erred in simply instructing jury to "continue to deliberate" rather than giving complete Allen charge after juror sent judge a second note stating that she could not continue to deliberate or reach a verdict. Campbell v. State, 41 Fla. L. Weekly D389a (3rd DCA 2/10/16)

DISCOVERY: Nondisclosure of surveillance video from auto repair shop in another county, showing two men stealing the car defendant was found driving three weeks later was not a Brady violation warranting a new trial on grand theft and fleeing and eluding charges. Harrigan v. State, 41 Fla. L. Weekly D385b (3rd DCA 2/10/16)

LIFE SENTENCE FOR JUVENILE-HOMICIDE: Error to deny claim that life sentences without possibility of parole for convictions of first degree murder and armed robbery committed by defendant when he was a juvenile were illegal. Torres v.State, 41 Fla. L. Weekly D385a (3rd DCA 2/10/16)

SEARCH AND SEIZURE-CONSENT: Where officer stopped defendant's vehicle for traffic violation, discovered that defendant was on probation, and asked for consent to search before returning defendant's driver's license, knowing that defendant mistakenly believed that he was required to consent because he was on probation, defendant's consent to search was involuntary. Villanueva v. State, 41 Fla. L. Weekly D380a (2nd DCA 2/10/16)

SEARCH AND SEIZURE-PROBATION OFFICER EXCEPTION: Probation officers may execute warrantless searches of a probationer's home or workplace, but, extending that power to a law enforcement officer is not permissible under the Fourth Amendment. Villanueva v. State, 41 Fla. L. Weekly D380a (2nd DCA 2/10/16)

COMPETENCY OF DEFENDANT: Where defendant had previously been found incompetent to proceed, it was error for trial court to fail to conduct competency hearing and make independent determination of competency before accepting defendant's plea. Court is not permitted to rely on defense counsel's representation that defendant is competent. Shakes v. State, 41 Fla. L. Weekly D378c (2nd DCA 2/10/16)

INJUNCTIONS: Single isolated incident that occurred twenty months before petition was filed is not enough to support injunction. Trial court violated respondent's right to due process when it denied a continuance when respondent's counsel was unable to be present at hearing, requiring respondent to proceed pro se. Leaphart v. James, 41 Fla. L. Weekly D377b (2nd DCA 2/10/16)

BURGLARY: Error to find that juvenile had committed delinquent act of burglary where there was no proof that juvenile entered property with intent to commit another offense. R.M.N. v. State, 41 Fla. L. Weekly D377a (2nd DCA 2/10/16)

PROBATION REVOCATION: Error to revoke probation on basis of defendant's possession of knives not charged in affidavit of violation of probation. McCarron v. State, 41 Fla. L. Weekly D373a (2nd DCA 2/10/16)

APPELLATE COURT DISPLEASED: "We . . note that Mr. McCarron, who was sixty-six years old at the time of the hearing, used a cane to walk and suffered from "numerous medical issues." . . .(H)e used the knife found in his pants pocket as a tool in connection with the odd jobs that he performed for the motel owner to earn a little extra money to supplement the meager income he received from Social Security. . .[E]ven a felon can legally carry a box cutter in a concealed pocket if he is carrying the box cutter for a legitimate work purpose. . .Because we are unable to determine whether the trial court would have . . given him what amounted to a life sentence based solely on his possession of a knife that he used in connection with odd jobs that he performed around his residence and to cut up food for his pets -- a knife that he had never used to injure or threaten anyone -- we reverse the order of revocation of probation." McCarron v. State, 41 Fla. L. Weekly D373a (2nd DCA 2/10/16)


RESTITUTION
: Trial court erred in requiring defendant, who was convicted of leaving the scene of an accident causing death, to pay restitution to Crimes Compensation Trust Fund. Latham v. State, 41 Fla. L. Weekly D371a (2nd DCA 2/10/16)

SEARCH AND SEIZURE-INVENTORY SEARCH: Conviction of defendant passenger in stopped, inventoried, and towed vehicle is reversed because the record contains no evidence that the inventory search was conducted pursuant to a departmental set of standardized procedures related to inventory searches, and hence the state did not meet its burden of establishing an exception to the warrant requirement for searches. Officer's testimony that his training required him to conduct such a search, including opening containers such as the one containing ammunition, was insufficient. Tyler v. State, 41 Fla. L. Weekly D369a (4th DCA 2/10/16)


EVIDENCE
: Defendant's conviction for vehicular homicide (11-year-old girl killed, other family members injured) vacated for a new trial. Trial court erred in admitting evidence that when confronted at the scene, the Defendant said "Well, shit happens." Opsincs v. State, 41 Fla. L. Weekly D367a (4th DCA 2/10/16)


DISCOVERY VIOLATION:
Trial court did not err in admitting DNA evidence linking defendant to crime where results of DNA testing were not disclosed to defendant until after trial commenced, although state had pants from which DNA was obtained in its custody for nearly six years before trial. No discovery violation resulted where state disclosed DNA results to defendant as soon as it had them and also kept defendant updated as to the fact that the DNA testing was being conducted. Bryant v. State, 41 Fla. L. Weekly D364a (4th DCA 2/10/16)

BERTIE WOOSTER RULE:

Aunt Dahlia: "But you would take this foul outrage lying down?. . . Confronted with the spectacle of as raw a bit of underhanded skulduggery as has ever been perpetrated in a civilized country, you would just sit tight and say 'Well, well!' and do nothing?"

Bertie Wooster: "Possibly not 'Well, well!' I concede that the situation is one that calls for the strongest comment. But I wouldn't do anything."

Wodehouse, P. G. (2011-07-05). The Code of the Woosters (Jeeves and Wooster Book 7) (p. 27). W. W. Norton & Company. Kindle Edition.

BERTIE WOOSTER RULE APPLIED: "Therefore, although the facts of this case do not require reversing Bryant's conviction. . . , in future cases it may be appropriate for the trial court to take the State's, or its agent's, pattern of tardy or late disclosures into consideration when determining whether there has been a discovery violation and what remedy to fashion. . . Because until the State is held responsible for the repercussions of its actions, the problem of tardy or late disclosure of DNA evidence will continue to the detriment of due process." Bryant v. State, 41 Fla. L. Weekly D364a (4th DCA 2/10/16)

GUIDELINE DEPARTURE-UPWARD
: Concurring in upholding sentence: "In her direct appeal, Casper's legal papers breathed not a word that the sentencing process resulting in a twelve-year prison sentence -- more than twelve times the sanction her scoresheet tabulated -- should be reversed due to the trial court's consideration of impermissible sentencing factors. . . .[Under]§ 775.082(10) a trial judge may increase exponentially a sentence's length well beyond the legislative maximum based solely on his own factual findings that a non-state sentence "could present a danger to the public," a statutorily undefined phrase that leaves important questions unanswered (how great must the possibility of danger be? what type of danger is relevant?). . .So where does that leave Casper?. . I concur with doubt. . . . due to the severe sentencing enhancement in this case, pursuant to a statutory process of questionable constitutionality, coupled with the manner in which Casper was sentenced." Casper v. State, 41 Fla. L. Weekly D357b (1st DCA 2/10/16)


DOUBLE JEOPARDY: Separate convictions for fraudulent use of personal identification information of victim involving fraud of $5,000 or more but less than $50,000 and fraudulent use of personal identification information belonging to the same victim during same time frame, without specifying amount of injury or fraud, violated defendant's double jeopardy rights. Fravel v. State, 41 Fla. L. Weekly D363a (4th DCA 2/10/16)

PRETRIAL DETENTION
: Trial court erred in granting state an extension of time to file information where state did not articulate good cause for extension. Scheduling adversary preliminary hearing pursuant to rule 3.133 does not relieve state from obligation to either file information within 33 days of arrest or show good cause why extension was required. Simmons v. Guevara, 41 Fla. L. Weekly D387a (3rd DCA 2/9/16)

MAILBOX RULE: In order to receive the benefit of the mailbox rule, an inmate housed in an institution that has a system designed for handling legal mail which provides a way to record when the document was relinquished to institution officials for mailing, must use that system. Green v. State, 41 Fla. L. Weekly D355d (1st DCA 2/5/16)


DRIVER'S LICENSE
: Court did not err by allowing Defendant to remain in a Special Supervision Services Program and keep his hardship license despite drinking while in the program. DHSMV v. Peacock, 41 Fla. L. Weekly D353b (1st DCA 2/5/16)


RESTITUTION
: Trial court erred in awarding restitution for stolen items without evidence of the current market value. Hearsay evidence is insufficient. Danzey v. State, 41 Fla. L. Weekly D342a (2nd DCA 2/5/16)

RESTITUTION
: Court must deduct from restitution the amount which the victim was compensated by insurance, but may award restitution to the insurance company. Danzey v. State, 41 Fla. L. Weekly D342a (2nd DCA 2/5/16)

POST CONVICTION RELIEF
: Court may not deny with prejudice the defendant's motion for postconviction relief based on his failure to include certifications required and after he was given 2 opportunities to amend. James v. State, 41 Fla. L. Weekly D341c (2nd DCA 2/5/16)

DOUBLE JEOPARDY
: Separate convictions and sentences for traveling to meet minor and use of computer to seduce/solicit/entice child to commit sex act cannot stand because solicitation offense is subsumed into traveling offense. Soliman v. State, 41 Fla. L. Weekly D341b (2nd DCA 2/5/16)


CONTEMPT
: Error to find contemnor had ability to pay purge amount because she could borrow money from her father. Kitchens v. Martin, 41 Fla. L. Weekly D337b (5th DCA 2/5/16)

SEARCH AND SEIZURE-WARRANT
: Affidavit for search warrant about twelve unsolved burglaries did not show probable cause for where it did not set forth dates of the "two-week period" in which burglaries happened, nor define the "same general area" where defendant was caught burglarizing a store nor the "the same modus operandi." Good faith exception does not apply to a warrant issued upon a facially deficient affidavit. Russ v. State, 41 Fla. L. Weekly D333a (5th DCA 2/5/16)

POSTCONVICTION RELIEF-MURDER
: Murder conviction overturned where defense counsel was ineffective for failing to call an identification expert witness and committing other errors. Ibar v. State, 41 Fla. L. Weekly S30a (FLA 2/4/16)

POSSESSION OF COCAINE-JURY INSTRUCTIONS
: In trafficking case, where defense argued he did not know of the presence of cocaine, and jury asked if lack of knowledge that drugs were in vehicle was a defense to simple possession, trial court erred by focusing on the question of whether defendant knew what the substance was, and compounded the error by describing the defense as an affirmative defense. "This instruction not only misrepresented Williams' actual defense, it simultaneously eviscerated it." Williams v. State, 41 Fla. L. Weekly D331a (3rd DCA 2/3/16)

ARGUMENT
: Where defendant did not testify, State's argument that the evidence was uncontradicted was not an impermissible comment on Defendant's there to testify where his testimony was not the only means to contradict the states evidence. State v. Revenel, 41 Fla. L. Weekly D330a (3rd DCA 2/3/16)

SENTENCING
: Where defendant was convicted of armed robbery with a deadly weapon or firearm, and defendant was determined to be a three-time violent felony offender, trial court was required to sentence defendant to life imprisonment. State v. Revenel, 41 Fla. L. Weekly D330a (3rd DCA 2/3/16)

VINDICTIVENESS
: Court's advocacy for plea offer, suggestion that a posttrial sentence would be harsher, imposition of increased sentence after defendant rejected plea offer, and failure to explain the reason for the sentence gave rise to unrebutted presumption of vindictiveness in violation of defendant's due process rights. Floyd v. State, 41 Fla. L. Weekly D320a (3rd DCA 2/3/16)

JOA-TRESPASS
: Judgment of acquittal is required where evidence failed to show the juvenile had notice not to enter the property. Constructive notice not to enter the property was not provided by posting a property where there was no evidence that "no trespassing" signs were placed 500 feet apart and at the corners of the fence. C.B.S v. State, 41 Fla. L. Weekly D304a (2/2/16)

JANUARY 2016

POST CONVICTION RELIEF: Advising defendant to reject plea offer based on counsel's confidence in acquittal may be ineffective assistance of counsel where evidence against defendant was overwhelming. Hearing is required. Flint v. State, 41 Fla. L. Weekly D295a (2nd DCA 1/29/16)


POST CONVICTION RELIEF: Failure to investigate and impeach victim's story may be ineffective assistance of counsel. Hearing required. Smith v. State, 41 Fla. L. Weekly D294b (1/29/16/)


DOUBLE JEOPARDY: Separate judgments and sentences for traveling to seduce, solicit, or entice child to commit sex act and use of computer to seduce/solicit child to commit sex act violated double jeopardy where dates charged for these offenses overlapped. Rodriguez v. State, 41 Fla. L. Weekly D294a (1/29/16)

JUDGMENT OF ACQUITTAL-SECOND DEGREE MURDER
: Trial court required to reduce conviction to manslaughter where no reasonable jury could conclude that the evidence proved that defendant stabbed victim based upon ill will, malice, hatred, spite, or an evil intent, but could find that the defendant impulsively overreacted to seeing victim hit his younger brother as others joined in fight. Sandhaus v. State, 41 Fla. L. Weekly D289a (5th DCA 1/29/16)

JUDGES-DISQUALIFICATION: Motion to disqualify judge was legally sufficient to extent it relied upon specific campaign-related issues, including fact that at least one of opposing party's counsel was playing significant role in judge's current, ongoing reelection campaign. Rivera v. Bosque, 41 Fla. L. Weekly D284a (5th DCA 1/29/16)


LIFE SENTENCE FOR JUVENILES: A term of years may constitute a life sentence for a juvenile. Dicta in concurrence: Where life sentence or equivalent is imposed when Defendant violates probation after turning 18, Graham may not apply. Guzman v. State, 41 Fla. L. Weekly S21a (FLA 1/28/16)


POST CONVICTION RELIEF:
Claim that counsel was ineffective for failing to consult an expert does not require that the specific expert be named. State v. Lucas, 41 Fla. L. Weekly S19a (FLA 1/28/16)

FAILURE TO APPEAR: Trial court erred in issuing warrant for defendant's failure to appear at pretrial hearing where defendant had filed written waiver of his right to be present at any and all pretrial conferences, and there was no indication that defendant and his counsel were clearly advised that his presence was required at the hearing in question. Charlemagne v. State, 41 Fla. L. Weekly D280d (3rd DCA 1/27/16)

GRAND THEFT
: Where state did not sufficiently prove stolen item was worth more than $300, defense counsel's failure to seek a judgment of acquittal plainly constitutes ineffective assistance of counsel on the face of the record. Bagnara v. State, 41 Fla. L. Weekly D269a (4th DCA 1/27/16)

EVIDENCE: Trial court erred in preventing defendant from introducing victim's foreclosure judgment in order to establish that the victim had no possessory interest in the burglarized home at the time of the burglary which was relevant to the defense that the defendant believed the house abandoned. Bagnara v. State, 41 Fla. L. Weekly D269a (4th DCA 1/27/16)

SEARCH AND SEIZURE-IDENTITY: Identification testimony by officer who observed defendant leaving a just-burglarized store is admissible, notwithstanding that the Defendant was shortly thereafter illegally stopped, because the initial observation was not unlawful. Hicks v. State, 41 Fla. L. Weekly D268a (4th DCA 1/27/16)


JIMMY RYCE-HEARSAY: Report commissioned by DCF comparing predicted rates of reoffending with actual rates once offenders were released was improperly excluded from evidence. Provision of Sexually Violent Predator Act permits hearsay evidence in civil commitment proceedings for sexually violent predators. McClam v. State, 41 Fla. L. Weekly D266b (4th DCA 1/27/16)


EVIDENCE-OPENING THE DOOR: Error to permit detective to testify that he saw defendant conduct a hand-to-hand transaction outside house known for drugs. Although defense counsel's cross-examination of detective may have opened door to inquiries regarding hand-to-hand transaction, it did not open door wide enough to permit repeated inquiries about defendant standing near a drug house. Lucier v. State, 41 Fla. L. Weekly D258a (4th DCA 1/27/16)


SHIFTING OF BURDEN OF PROOF: Prosecutor engaged in improper burden shifting during cross-examination and closing argument, when prosecutor asked about whereabouts of a witness defendant claimed could corroborate his explanation of his actions and defendant's failure to disclose this witness's name. Lucier v. State, 41 Fla. L. Weekly D258a (4th DCA 1/27/16)

JUDGMENT OF ACQUITTAL: Error to deny motion for judgment of acquittal where evidence presented by state was not inconsistent with defendant's theory of innocence that she did not obtain or endeavor to obtain victim's property because victim named defendant a residual beneficiary of trust as an unsolicited gift. Franke v. State, 41 Fla. L. Weekly D255a (4th DCA 1/27/16)-[substitute opinion-Original Opinion at 40 Fla. L. Weekly D2764a]

RETROACTIVITY: Miller v. Alabama applies retroactively. When a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Now 79 years old, Defendant is entitled to a new sentencing hearing. Montgomery v. Louisiana, Case No. 14-280 (US S.Ct. 1/25/16)

SCALIA-CISMS: "All that remains to support the majority's conclusion is that all-purpose Latin canon: ipse dixit."

"How wonderful. . .What silliness."

Montgomery v. Louisiana, Case No. 14-280 (US S.Ct. 1/25/16)

.
APPEALS: Misstatements of law by defense attorney- bad definition of reasonable doubt - cannot be a basis for an appeal. Young v. State, 41 Fla. L. Weekly D251a (1st DCA 1/25/16)

ARGUMENT: "Think how bad a broken elbow would hurt by itself. Imagine getting bashed in the head like this. . . I submit to you that's torture." is improper Golden rule argument, but error is harmless. Panchoo v. State, 41 Fla. L. Weekly D249d (5th DCA 1/22/16)


PROBATION REVOCATION: Trial court erred by revoking defendant's youthful offender status upon revocation of probation, even though sentence was for fifteen years in prison. Rowell v. State, 41 Fla. L. Weekly D249c (5th DCA 1/22/16)


WIRETAP: Affidavit for wiretap warrant is sufficient if it alleges that the officers confirmed that the number along to the defendant. Officers did not have to call the defendant to ensure it was his number. The reviewing judge is required to defer to the issuing judge absent a clear showing that the issuing judge abused his discretion. State v. Carabello-Olivero, 41 Fla. L. Weekly D249b (5th DCA 1/22/16)


SEARCH AND SEIZURE - EXIGENT CIRCUMSTANCES: Officer's observation, upon driving by defendant's townhouse, a suspected meth lab, that the front door to the townhouse was open and that some mail was on the floor under the mail slot, did not provide an objectively reasonable basis for the warrantless entry under either the community caretaker exception or the feared medical emergency exception. Fultz v.State, 41 Fla. L. Weekly D246a (2nd DCA 1/22/16)

QUOTATION: "We agree with the trial court that the Treasure Island Police Department's expressed policy of entering a home when they observe an open door and the residents fail to answer their hail is constitutionally troubling. . .Given Central Florida's temperate weather in November, an open door at 8:00 in the morning, without more, cannot justify a warrantless entry." Fultz v.State, 41 Fla. L. Weekly D246a (2nd DCA 1/22/16)


HEARSAY: Trial court erred in excluding testimony of a defense witness who would have testified that a state witness, who was one of the participants in the crimes, told the defense witness that he intended to place all the blame on defendant. If there is any possibility of a tendency of evidence to create a reasonable doubt, the rules of evidence are usually construed to allow for its admissibility. Musson v. State, 41 Fla. L. Weekly D244a (2nd DCA 1/22/16)

IMPEACHMENT-PREDICATE: It is not necessary to confront the witness who is to be impeached with the impeaching evidence, other than for a prior inconsistent statement. Musson v. State, 41 Fla. L. Weekly D244a (2nd DCA 1/22/16)

NEWLY DISCOVERED EVIDENCE: Motion to vacate conviction based on newly discovered evidence of misfeasance by FBI analyst is time-barred where it could have been discovered more than 2 years earlier. Motion to vacate conviction is legally insufficient where the defendant fails to allege that but for the newly discovered evidence he would not have pled guilty. Long v. State, 41 Fla. L. Weekly S15a (FLA 1/21/16)

FREE PRESS
: Trial court improperly entered order requiring newspaper to remove from its website transcripts of recorded telephone conversations of jail inmate-a snitch--based on inmate's right to privacy. First Amendment is paramount and inmate has no right of privacy in jail calls. Palm Beach Newspapers v. State, 41 Fla. L. Weekly D241a (4th DCA 1/21/16)


POST CONVICTION RELIEF:
Order dismissing unsworn motion for postconviction relief should be without prejudice to refile. Dumel v. State, 41 Fla. L. Weekly D238b (3rd DCA 1/20/16)
SEARCH AND SEIZURE-ABANDONMENT: Defendant abandoned any expectation of privacy in puppy's remains when he left remains with animal hospital for group cremation. State v.Milewski, 41 Fla. L. Weekly D235b (3rd DCA 1/20/16)

EVIDENCE-AUTHENTICATION
: Trial court erred in admitting unauthenticated videotape showing altercation on school bus. L.T. v. State, 41 Fla. L. Weekly D234b (1st DCA 1/20/16)

READ-BACK OF TESTIMONY: New trial required where trial court permitted jury to cease at any time the read-back of testimony of detective who was state's key witness, thereby allowing jury to hear a partial read-back of the testimony that placed undue emphasis on and served to bolster state's version of events. Gormady v. State, 41 Fla. L. Weekly D218c (2nd DCA 1/20/16)

TRIAL PROCEDURE: Trial court erred in prohibiting defendant from speaking with his attorney during sidebar requested by state, even though defendant was in the middle of his testimony. Defendant has the right to consult with counsel during recess even if he is on the stand. Mears v. State, 41 Fla. L. Weekly D217a (4th DCA 1/20/16)

CAPITAL SEX BATTERY: Jury instruction for cap sex battery does not have to include that the offense is intentional. Cap sex battery is not a specific intent crime. Olenchak v. State, 41 Fla. L. Weekly D214b (4th DCA 1/20/16)

SEARCH AND SEIZURE: BOLO providing vague description of two black males who had quickly exited vehicle that another officer had attempted to stop for speeding not valid basis for detention, pat-down, and search of defendant, whom officer found about 300 yards from abandoned vehicle, standing in the road talking with resident. Fact that defendant was sweating profusely and that resident did not know defendant was not sufficient to justify detention and search. Croissy v. State, 41 Fla. L. Weekly D210a (4th DCA 1/20/16)

SEARCH AND SEIZURE-CONSENSUAL ENCOUNTER: Level of encounter changed when officer returned from speaking with the resident, handcuffed the defendant, and began a pat-down leading to search of defendant's person. Croissy v. State, 41 Fla. L. Weekly D210a (4th DCA 1/20/16)

CROSS-EXAMINATION OF DEFENDANT: State may not ask Defendant whether victim had a motive to lie. Lenz v. State, 41 Fla. L. Weekly D208b (4th DCA 1/20/16)

EVIDENCE: Improper to allow jury to hear recordings of jailhouse telephone conversations between defendant and his wife discussing retaining counsel. Exchanges about hiring lawyers were protected by Sixth Amendment, regardless of fact that defendant said that one of the lawyers "knew all of the loopholes." Lenz v. State, 41 Fla. L. Weekly D208b (4th DCA 1/20/16)

EVIDENCE
: In order to open the door, the witness must offer misleading testimony or make a specific factual assertion which the opposing party has the right to correct so that the jury will not be misled. Lenz v. State, 41 Fla. L. Weekly D208b (4th DCA 1/20/16)

SEALING OF RECORDS: Trial court abused its discretion when it denied petition to seal criminal records without giving specific reasons for denial. Mere reliance on facts as laid out in probable cause affidavit is insufficient. Gotowala v. State, 41 Fla. L. Weekly D208a (4th DCA 1/20/16)

JURY INSTRUCTION-SECOND DEGREE MURDER: Giving erroneous instruction on manslaughter by act as lesser included offense of charge of first degree murder with firearm constituted fundamental error where defendant was convicted of offense not more than one step removed from manslaughter. Singh v. State, 41 Fla. L. Weekly D206a (4th DCA 1/20/16)

DOUBLE JEOPARDY: Separate convictions for solicitation of a minor over the internet and, on the same day, traveling to meet minor, violate double jeopardy where the dual convictions are based upon the same conduct. State's argument that 21-minute break in text conversation between defendant and detective constitutes a separation in time between the solicitation and the traveling is misplaced. Ready v. State, 41 Fla. L. Weekly D204a (4th DCA 1/20/16)

DOUBLE JEOPARDY: No error in separate convictions for traveling to meet minor after using computer to solicit minor and using computer or other device to solicit person believed to be child to commit illegal act where the acts were separate illegal acts. Dettle v. State, 41 Fla. L. Weekly D200a (1st DCA 1/15/16)

PRIOR TESTIMONY: No abuse of discretion in allowing state to present testimony of unavailable witness by reading into evidence her testimony from recent trial involving same parties and charges. Richardson v. State, 41 Fla. L. Weekly D195a (1st DCA 1/15/16)

UNAVAILABLE WITNESS: A witness may be deemed unavailable if she gave birth eight days before trial. Unrebutted assertions of fact by prosecutor is sufficient to establish facts of unavailability. Richardson v. State, 41 Fla. L. Weekly D195a (1st DCA 1/15/16)

SEARCH AND SEIZURE-STANDING: Defendant lacks standing to object to search of package neither mailed by him nor addressed to him. Recipient of package may consent to search of it even while disclaiming that it is hers. State v. Williams, 41 Fla. L. Weekly D189a (1st DCA 1/15/16)

QUOTATION
: "The Supreme Court may be the architectural supervisor. . . but it is the lower courts that pound in the nails and properly square the corners. . . In the present case, the court has regrettably missed the nail and pounded its thumb." State v. Williams, 41 Fla. L. Weekly D189a (1st DCA 1/15/16)
COLLATERAL ESTOPPEL-FIREARM BY A FELON
: Where Defendant is acquitted of aggravated assault and verdict does not conclusively show he did not possess the firearm, he may be tried on the severed possession of a firearm by a felon count. At the trial, the state may not present any evidence of the aggravated assault. Jackson v. State, 41 Fla. L. Weekly D181b (1st DCA 1/15/16)

SEARCH AND SEIZURE-INVESTIGATORY STOP: Anonymous telephone tip advising that a black male with dreadlocks was possibly dealing drugs in front of a specific residence was insufficient, standing alone, to provide basis for investigative stop of parked vehicle and its occupants where officer did not observe anything that corroborated tip. A burglar alarm going off several houses away does not create reasonable suspicion. A.P. v. State, 41 Fla. L. Weekly D179b (5th DCA 1/15/16)

SECOND DEGREE MURDER: Giving of erroneous then-standard jury instruction for manslaughter by act as lesser included offense of charged offense of first degree murder was per se error where defendant did not expressly concede issue of intent and was convicted of offense only one step removed from manslaughter. Berube v. State, 41 Fla. L. Weekly D178a (2nd DCA (1/15/16)



PROBATION CONDITIONS: Error to impose special conditions of probation apparently prohibiting possession of alcohol and requiring alcohol evaluation where conditions were unrelated to offense of conviction, not reasonably related to future criminality, and did not relate to conduct which in itself was criminal. Williams v. State, 41 Fla. L. Weekly D175a (2nd DCA 1/15/16)

DEATH PENALTY: Florida's lethal injection protocol is not unconstitutional. Statute which prevents defendant from knowing the identities of his executioners is not unconstitutional. Allred v. State, 41 Fla. L. Weekly S5a (FLA 1/14/16)

SEARCH AND SEIZURE-ABANDONMENT: Trial court properly denied motion to suppress contents of black box after it was found in a garbage can, defendant told officers the box was his but declined to open it to prove ownership, defendant failed to appear at police station to claim it, and an x-ray showed firearms and cocaine inside. Strawder v. State, 41 Fla. L. Weekly D161a (3rd DCA 1/13/16).

HEARSAY
: A "No Trespassing" sign is not hearsay; it is a verbal act. A.J.M. v. State, 41 Fla. L. Weekly D157b (4th DCA 1/13/16)

JUVENILE: Juvenile is entitled to immediate release when held without trial for more than 21 days. J.S. v. State, 41 Fla. L. Weekly D181a (5th DCA 1/12/16)

ARSON: Defendant was erroneously convicted of second-degree arson of a vehicle where the fire was accidentally started in the vehicle by a third party after defendant had stolen it. Grimes v. State, 41 Fla. L. Weekly D151b (1st DCA 1/12/16)

DEATH PENALTY: Florida's death penalty procedures violate the Sixth Amendment by having judge, not jury, make the factual findings justifying the death penalty. Hurst v. Florida, 14-7505 (US S.Ct. 1/12/16)

SENTENCING: Due process rights were violated where court considered uncharged acts of violence against someone else, although allegations were unsubstantiated hearsay from prosecutor to which defendant objected. McIntosh v. State, 41 Fla. L. Weekly D149b (5th DCA 1/8/16)

DEADLY WEAPON: Evidence that defendant pulled trigger of loaded firearm while pressing it against victim's chest was sufficient to show that defendant used or threatened to use handgun in way that was likely to produce great death or great bodily harm. Previous opinion withdrawn. Gayden v. State, 41 Fla. L. Weekly D149a (1/8/16)


SENTENCING-DOWNWARD DEPARTURE:
Downward departure pursuant to section 921.0026(m) was not valid in absence of determination that defendant was amenable to and qualified for services of post-adjudicatory treatment-based drug court program. State v. Knight, 41 Fla. L. Weekly D148a (5th DCA 1/8/16)

JURY INSTRUCTION: The standard instruction informing the jury that it was "the judge's job to determine a proper sentence" was not misleading even though the State sought to have the defendant designated as a prison releasee reoffender. Rodriguez v. State, 41 Fla. L. Weekly D141d (4th DCA 1/6/16)

BOND REVOCATION: Error to revoke bond based solely on pretrial release officer's affidavit stating only that Defendant, while on pretrial release, had been charged with driving while license suspended without stating any facts establishing probable cause for the new charge. Medina v. State, 41 Fla. L. Weekly D135c (4th DCA 1/6/16)

PROSTITUTION- CIVIL PENALTY: $5000 civil penalty for solicitation of prostitution is not unconstitutionally excessive. State v. Vilchez, 41 Fla. L. Weekly D135a (4th DCA 1/6/16)

PROSTITUTION- CIVIL PENALTY: $5000 civil penalty for solicitation of prostitution is not unconstitutionally excessive. State v. Vachon, 41 Fla. L. Weekly D135b (4th DCA 1/6/16)

PROSTITUTION-CIVIL PENALTY: $5000 civil penalty for solicitation of prostitution is not unconstitutionally excessive. State v. Sookraj, 41 Fla. L. Weekly D114b (4th DCA 1/6/16)

HIV TESTING: Court may not modify juvenile probation to require testing for HIV or hepatitis where adjudication of delinquency had been withheld and the condition was not originally imposed at sentencing. P.R. v. State, 41 Fla. L. Weekly D134c (4th DCA 1/6/16).

RESENTENCING: The defendant's presence is required upon resentencing where the habitual offender designations for life felonies are stricken and the sentences must be reconsidered. Burgess v. State, 41 Fla. L. Weekly D133c (4th DCA 1/6/16)

FORFEITURE: Plea to misdemeanor fleeing or eluding in criminal proceeding does not determine outcome in related civil forfeiture proceeding. Sheriff still has chance to prove existence of felony fleeing or eluding in forfeiture proceeding. Bradshaw v. McCormick, 41 Fla. L. Weekly D133a (4th DCA 1/6/16)

INJUNCTION- CYBERSTALKING: Text messages from one businessman to another threatening adverse consequences while legal action was ongoing and disparaging online postings("You will be ruined I promise you."--"I hope for you and your family's sake you are man enough to put an end to this now.") does not constitute cyberstalking. Injunction violates First Amendment protection against prior restraint on speech. David v. Textor, 41 Fla. L. Weekly D131a (4th DCA 1/6/16)

CONTEMPT
: Trial court erred in holding defendant in civil contempt for failure to pay child care expenses without allowing him to appear in person or by telephone from Spain. Stusch v. Jiruska, 41 Fla. L. Weekly D129a (4th DCA 1/6/16)

POST CONVICTION RELIEF: It is ineffective assistance of counsel to fail to convey a plea offer which the defendant would have accepted and the sentence would have been lesser than that ultimately imposed. Goldberg v. State, 41 Fla. L. Weekly D123a (4th DCA 1/6/16)

TAMPERING WITH WITNESS: Trial court erred when it refused to allow defendant to elicit testimony about not-guilty verdicts in prior trial for sexual crimes with minor to show that mother of alleged victims, the witness with whom defendant purportedly tampered, had an interest in seeing defendant convicted of witness tampering and was lying. Benegas-Membran v. State, 41 Fla. L. Weekly D118a (4th DCA 1/6/16)

ARGUMENT: State's closing argument statements which intimated that manipulation is a form of intimidation under section 914.22(1) is improper. "Tugging at the heartstrings"is not"intimidation." Benegas-Membran v. State, 41 Fla. L. Weekly D118a (4th DCA 1/6/16)

JUDGMENT OF ACQUITTAL: Error to deny JOA for intimidating a witness based on letter asking for mercy from witness. No rational factfinder could find that defendant "knowingly used intimidation" with intent to prevent mother from testifying in prior trial by sending a letter which asked mother to pity defendant and to show defendant mercy, repeatedly proclaimed defendant's love for mother, and did not warn of any negative repercussions attributable to defendant that would befall mother if she testified against defendant. Benegas-Membran v. State, 41 Fla. L. Weekly D118a (4th DCA 1/6/16)

INTERPRETER: Defendant was not deprived of constitutional rights to counsel and due process when trial court did not dedicate a Spanish-language interpreter to sit at defense table throughout trial and thereby interpret and facilitate communications between defendant and his attorney. Rivera v. State, 41 Fla. L. Weekly D117a (4th DCA 1/6/16)

HEARSAY-CO-CONSPIRATOR'S STATEMENT: Co-conspirator's statement is admissible where the two purchased ammunition and drove to the burglary together. McLawhorn v. State, 41 Fla. L. Weekly D116a (4th DCA 1/6/16)

SENTENCING: Error to impose habitual offender sentence on firearm possession count consecutive to sentences imposed for felony murder and burglary with firearm causing great bodily harm or death where record indicates that offenses were part of single criminal episode. McLawhorn v. State, 41 Fla. L. Weekly D116a (4th DCA 1/6/16)

SENTENCING- RECLASSIFICATION: Jury's firearm finding associated with count alleging defendant and codefendant committed armed robbery and that firearm was "in the possession of them both" does not satisfy required finding of actual possession necessary for reclassification of attempted murder count. Harris v. State, 41 Fla. L. Weekly D115b (4th DCA 1/6/16)


HEARSAY-EXCITED UTTERANCE: Victim's daughter's statement, on a 911 tape, that her aunt had told her that the defendant had told the aunt by telephone that "it was serious this time" and he was going to "turn himself in," was admissible as an excited utterance. Smith v. State, 41 Fla. L. Weekly D106a (4th DCA 1/16/16)

JUDGMENT OF ACQUITTAL
: Conviction for capital sexual battery reversed where the state failed to introduce evidence of the age of the Defendant. White v. State, 41 Fla. L. Weekly D104b (4th DCA 1/6/16)

CONTEMPT: Contempt order which appears to be hybrid between a civil contempt order and indirect criminal contempt order is illegal. If regarded as civil contempt, order is fatally flawed for failure to contain purge provision prior to incarcerative sanction; If regarded as criminal contempt order, order is flawed for failure to comport with due process protections afforded criminal defendants. Parks v. Wells Fargo, 41 Fla. L. Weekly D103a (4th DCA 1/6/16)

JURORS-CHALLENGE FOR CAUSE: Trial court erred in denying challenge for cause to prospective juror who expressed his view that he would give a police officer more credibility than a lay person. "And my, I guess as a lay person, my first judgment on the street would be to say, oh, the cop is probably telling the truth. But in a court of law being instructed to give them equal credibility, I think I can do that," is insufficient assurance to overcome challenge for cause. Vega v. State, 41 Fla. L. Weekly D99a (4th DCA 1/6/16)

EVIDENCE- 911 CALL: Admission of victim's statements on 911 call did not violate defendant's rights under Confrontation Clause. Goldsmith v. State, 41 Fla. L. Weekly D96b (4th DCA 1/6/16)

DISCOVERY: State's failure to disclose defendant's Facebook page, which contradicted his testimony that he never went by the name "Biggy" was a discovery violation. Error was not harmless. Goldsmith v. State, 41 Fla. L. Weekly D96b (4th DCA 1/6/16)


PROBATION REVOCATION-YOUTHFUL OFFENDER
: Trial court was required to sentence defendant under youthful offender restrictions upon revocation of probation imposed as part of youthful offender sentence. Randall v. State, 41 Fla. L. Weekly D96a (4th DCA 1/6/16)

HEARSAY: Victim's 911 call fell within excited utterance exception to hearsay rule and was properly admitted as substantive evidence. Randall v. State, 41 Fla. L. Weekly D96a (4th DCA 1/6/16)


ENTRAPMENT: Detective's texting defendant the word "hey" using the fifteen-year-old victim's cell phone a week after the defendant had been observed by a school resource officer on top of and kissing the victim did not constitute objective entrapment. State v. Laing, 41 Fla. L. Weekly D93a (4th DCA 1/6/16)

VIOLATION OF INJUNCTION: Evidence was insufficient to prove that defendant acted willfully where it was undisputed at trial that victim's statements led defendant reasonably to conclude that domestic violence injunction was no longer in effect. Hall v. State, 41 Fla. L. Weekly D88b (2nd DCA 1/6/16)


DISCOVERY VIOLATION- DEFENSE: Trial court erred in excluding defense witness who was not disclosed until after jury had been selected without conducting adequate Richardson inquiry. It was an abuse of discretion to exclude witness without adequately exploring other potential sanctions. Mosley v. State, 41 Fla. L. Weekly D83b (2nd DCA 1/6/16)

SENTENCING-CONSECUTIVE MIN MAN
: Under law in effect at the time, consecutive mandatory minimum sentences for two aggravated assaults with a firearm arising from a single criminal episode are illegal. Jordan v. State, 41 Fla. L. Weekly D80b (3rd DCA 1/6/16)

SENTENCING-CONSECUTIVE MIN MAN
: Where defendant was convicted of one count of first-degree murder with a firearm causing death, and a second count of attempted first-degree murder with a firearm causing great bodily harm, the minimum mandatory portions of the two sentences were required to be imposed consecutively. Fla. Stat. 775.087(2) requires any mandatory minimum term under 775.087(2) -- whether the defendant fires a gun or only carries or displays it -- shall be imposed consecutively to any other term imposed for any other felony. Charlemagne v. State, 41 Fla. L. Weekly D80a (3rd DCA 1/6/16)

DECEMBER 2015

APPEAL-MANIFEST INJUSTICE: An appellate court has the power to reconsider and correct erroneous rulings made in earlier appeals in exceptional circumstances to avoid manifest injustice. Where co-defendant brother's murder conviction was reversed by Fla. S. Court but Defendant's was not because it was not appealable to the Supreme Court because of a lower court per curiam decision, manifest injustice entitles Defendant to a new trial. Paul v. State, 41 Fla. L. Weekly D64c (5th DCA 12/31/15)

POST CONVICTION RELIEF
: Defendant cannot enter a conditional plea of no contest and appeal the judge's determination of competency. Counsel is ineffective for telling his client he could. Anderson v. State, 41 Fla. L. Weekly D72d (5th DCA 12/31/15)

POSSESSION OF CONTROLLED SUBSTANCE:
Fundamental error to accept a plea to the nonexistent crime of possession of Tramadol. Crooms v. State, 41 Fla. L. Weekly D64b (5th DCA 12/31/15)

DOUBLE JEOPARDY:
Court may not resentence the defendant after he has already served the entirety of his prison term. Issue may be raised on direct appeal. Stallings v. State, 41 Fla. L. Weekly D64a (5th DCA 12/31/15)

ROMEO AND JULIET
: It is within the trial court's discretion to deny the removal of the requirement that the defendant register as a sexual offender under the Romeo and Juliet statute. Matos v. State, 41 Fla. L. Weekly D63a (5th DCA 12/31/15)

STATEMENTS OF DEFENDANT
: Defendant's post-arrest statement given to Florida law enforcement officers in an out-of-state jail should have been suppressed where detective never directly answered defendant's unequivocal inquiry about his right to counsel. Responding to inquiry by trying to put him at ease for several minutes then Mirandizing him is improper. Statement should be suppressed. Ferguson v. State, 41 Fla. L. Weekly D62a (5th DCA 12/31/15)

EVIDENCE: Testimony by brother-in-law that he thought the defendant was a pedophile because he always seemed odd was improper. Ferguson v. State, 41 Fla. L. Weekly D62a (5th DCA 12/31/15)

COSTS: Plain language of statute authorizes assessment of investigative costs in juvenile cases. Q.Q.P. v. State, 41 Fla. L. Weekly D60a (5th DCA 12/31/15)

APPEALS: Adequacy of the plea colloquy may not be raised on direct appeal. Murphy v. State, 41 Fla. L. Weekly D59b (5th DCA 12/31/15)

INJUNCTIONS: Trial court erred in denying motion for relief from final judgment of injunction on grounds of mootness because of the collateral legal consequences that may flow from the injunction. Jacquot v. Jacquot, 41 Fla. L. Weekly D58a (5th DCA 12/31/15)

SELF-DEFENSE JURY INSTRUCTION:
Trial court erred in giving the "aggressor" instruction which included the requirement that defendant have exhausted every reasonable means to escape the danger. Richardson v. State, 41 Fla. L. Weekly D50a (1st DCA 12/31/15)

HEARSAY: Defendant's videotaped statement is admissible and not hearsay when offered to show the defendant's mindset where the defense is insanity. Evidence is hearsay only if offered for the truth of the matter asserted. Here, the evidence was not offered to prove that an oleander bush had been soaked in chloroform. Pearce v. State, 41 Fla. L. Weekly D46a (1st DCA 12/31/15)

JIMMY RYCE: Because defendant's sentence expired approximately two weeks before state initiated civil commitment proceedings, defendant was not in lawful custody at time civil commitment petition was filed, and trial court lacked jurisdiction to consider the petition. Insko v. State, 41 Fla. L. Weekly D25c (2nd DCA 12/30/15)

TAMPERING WITH JURORS
: Where jury was instructed that offense of tampering with jurors is committed when a person "unlawfully attempts to influence the judgment or decision" of a juror, but the statute under which defendant was charged did not by its express terms include attempt, defendant could not be convicted of jury tampering. Conflict certified. Gammage v. State, 41 Fla. L. Weekly D23b (2nd DCA 12/30/15)

POST CONVICTION RELIEF: Error to deny claim that counsel was ineffective for failing to suggest downward departure sentence and to object to unequal and lesser sentence of allegedly equally culpable codefendant. Profetto v. State, 41 Fla. L. Weekly D23a (2nd DCA 12/30/15)

DOUBLE JEOPARDY
: Separate convictions and sentences for traveling to seduce, solicit, or entice child to commit sex act and using computer to seduce, solicit, or entice child to commit sex act violate prohibition against double jeopardy. Agama v. State, 41 Fla. L. Weekly D21d (2nd DCA 12/30/15)

SENTENCING-PROBATION REVOCATION
: Error to sentence defendant under criminal punishment code rather than on basis of guidelines scoresheet in effect at time original offenses were committed. Blair v. State, 41 Fla. L. Weekly D20a (1st DCA 12/28/15)

CONTEMPT: Error to find attorney in contempt of court for drinking alcohol before appearing in court where she did not do the drinking in the presence of the court. Court may not order Defendant to take breathalyzer. Edge-Gougen v. State, 41 Fla. L. Weekly D14a (1st DCA 12/28/15)

OUT OF CONTEXT QUOTATION
: "Lawyers and alcohol do mix." Edge-Gougen v. State, 41 Fla. L. Weekly D14a (1st DCA 12/28/15)

OUT OF CONTEXT QUOTATION II
: "Anyone with any familiarity with the day to day operations of our congested trial courts knows first hand that delays in courtroom proceedings due to an occasionally 'snoozing' litigant, witness, juror, lawyer, (or for that matter, judge) who may or may not be under the influence of anything are commonplace." Edge-Gougen v. State, 41 Fla. L. Weekly D14a (1st DCA 12/28/15), quoting Miller v. State, 672 So. 2d 95 (Fla. 3d DCA 1996).

SENTENCING-SCORESHEET-PROBATION REVOCATION: Where victim injury points had been mistakenly scored in the category of "death" points at initial sentencing, victim injury points could properly be scored at the correct higher-point category of "second-degree murder" at sentencing upon revocation of probation imagine. Hale v. State, 41 Fla. L. Weekly D13d (1st DCA 12/28/15)

POST CONVICTION RELIEF: Rule 3.800(a) Is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process. A sentence is 'illegal' if it imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. Jeune v. State, 41 Fla. L. Weekly D13b (3rd DCA 12/23/15)

PEREMPTORY CHALLENGE
: State's explanation for peremptory strike of African American juror, that he initially indicated that he would not follow the law pertaining the use of deadly force, was a valid race-neutral reason for the strike. Johnson v. State, 41 Fla. L. Weekly D10b (3rd DCA 12/23/15)

LIFE SENTENCE FOR JUVENILE-SECOND DEGREE MURDER
: Non-mandatory life sentence for second degree murder committed when defendant was a juvenile is not unconstitutional. Defendant is not entitled to new sentencing hearing. Question certified. A new sentencing hearing substantially differs from a review hearing. Lightsey v. State, 41 Fla. L. Weekly D8c (3rd DCA 12/23/15)

STATEMENTS OF DEFENDANT
: Trial court did not err in denying motion to suppress statements made by defendant upon properly concluding that defendant was not in custody or undergoing custodial interrogation at the time he made the statements. Salazar v. State, 41 Fla. L. Weekly D8b (3rd DCA 12/23/15)

LIFE SENTENCE FOR JUVENILE-FIRST DEGREE MURDER
: Error to deny claim that life sentences without possibility of parole for convictions of first degree murder and armed robbery committed by defendant when he was a juvenile were illegal. Remand for resentencing of both counts in conformance with chapter 2014-220. Torres v. State, 41 Fla. L. Weekly D7c (3rd DCA 12/23/15)

LIFE SENTENCE FOR JUVENILES-RESENTENCING
: Claim that resentencing judge erred in imposing upward departure sentence without providing oral or written reasons for departure when resentencing defendant under Graham v. Florida was refuted by record. McPherson v. State, 41 Fla. L. Weekly D4b (2nd DCA 12/23/15)

INEFFECTIVE APPELLATE COUNSEL
: Defendant not entitled to relief on claim that private appellate counsel was ineffective for advising him to sign notice of voluntary dismissal and then filing it for him after she determined that she was unable to write a brief on his behalf. Appellate court disapproves of practice of inducing a voluntary dismissal instead of filing an Anders brief. Harrison v. State, 41 Fla. L. Weekly D4a (2nd DCA 12/23/15)

LIFE SENTENCE FOR JUVENILE-HOMICIDE
: Resentencing required in accord with newly enacted legislation providing standards and procedures by which juveniles are to be sentenced for offenses that previously would have called for mandatory life-without-parole sentencing, although legislation was not effective until after defendant had been sentenced. Moyer v. State, 41 Fla. L. Weekly D3a (2nd DCA 12/23/15)

STAND YOUR GROUND
: Defendant was not immune from prosecution under Stand Your Ground law where there was no showing that defendant was at risk of imminent death or great bodily harm when he stabbed victim, who was wielding a stick. The stick was not a deadly weapon. Rudin v. State, 40 Fla. L. Weekly D2823a (1st DCA 12/22/15)

HEARSAY
: National Precursor Log Exchange report is admissible under business records exception to hearsay rule to show defendant's purchases purchases of ephedrine. Morrill v. State, 40 Fla. L. Weekly D2820a (1st DCA 12/22/15)

JURY INSTRUCTION-ATTEMPTED 2ND DEGREE MURDER
: Instruction on lesser included offense of attempted manslaughter was fundamental error because court failed to instruct on justifiable or excusable homicide. Question certified: When a defendant is convicted of a lesser, does the failure to instruct on justifiable or excusable homicide constitute fundamental error where the record reflects there was no dispute as to this issue and there was no evidence of justifiable or excusable homicide? Spencer v. State, 40 Fla. L. Weekly D2819a (1st DCA 12/22/15)

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN
: Where defendant was on felony probation for offense committed after effective date of section 948.06 and was found in violation of that probation, trial court did not err in designating defendant a violent felony offender of special concern on the basis of an aggravated assault committed before effective date of statute. Williamson v. State, 40 Fla. L. Weekly D2818d (1st DCA 12/21/15)

DOUBLE JEOPARDY: Double jeopardy challenges to a defendant's convictions are not cognizable in a rule 3.800(a) motion. George v. State, 40 Fla. L. Weekly D2817a (1st DCA 12/18/15)

DOUBLE JEOPARDY: Separate sentences for separate and distinct acts of sexual battery during a single criminal episode are not barred by double jeopardy. George v. State, 40 Fla. L. Weekly D2817a (1st DCA 12/18/15)

CRUEL AND UNUSUAL PUNISHMENT: Life imprisonment for lewd or lascivious molestation (breast fondling) does not violate ban on cruel and unusual punishment. Hanf v. State, 40 Fla. L. Weekly D2812a (1st DCA 12/18/15)

ATTORNEYS: Lawyer fails to comply with appellate court orders. He fails to appear at Rule to Show Cause hearing because it is a "quite over the top and inappropriate demand" to make him drive seven hours to court. Also, he argues, service of Orders by E-Mail or at his listed address-which is not a law office-is invalid. The Fifth DCA disagrees. DCA defers further sanctions until the Florida Bar issues its report. Belkova v. Russo, 40 Fla. L. Weekly D2807a (5th DCA 11/18/15)

SEARCH AND SEIZURE: Juvenile does not abandon backpack which the officers had ordered him to place on the ground for officer safety. Officer safety does not justify searching the bag itself. Failing to protest or shrugging shoulders is not consent to search. Evidence suppressed. K.W. v. State, 40 Fla. L. Weekly D2805e (5th DCA 12/18/15)

STATEMENTS OF DEFENDANT: Where detectives investigating defendant for sex with minor returned to Defendant's work and he told them he had an attorney, they had no obligation to inform defendant of his right to have an attorney present when defendant reengaged them in conversation and confessed. Police are not required to give Miranda warnings to suspect who is not both in custody and subjected to interrogation. State v. Pullen, 40 Fla.L.Weekly D2840b (5th DCA 2015)

SENTENCING: Trial court's order directing DOC to have defendant serve initial part of sentence at specific facility (Avon Park Rehab Facility) violated separation of powers doctrine because trial court lacks authority to regulate placement of sentenced defendant in prison system. DOC v. Ayala and State, 40 Fla. L. Weekly D2800c (5th DCA 12/18/15)

MEDICAL MARIJUANA: Proposed Amendment for legalization of medical marijuana qualifies for inclusion of ballot. Advisory Opinion, 40 Fla. L. Weekly S715a (FLA 12/17/15)

JUDGES-DISCIPLINE
: Judge said to PD, "You know if I had a rock, I would throw it at your [sic] right now. Stop pissing me off. Just sit down. . . .I said sit down. If you want to fight, let's go out back and I'll just beat your ass. . .Alright you, you want to fuck with me?" Judge engaged in brawl with PD, then continued with the PD's cases in his absence. JQC recommendation of suspension rejected. Judge is removed from office. Inquiry Re: John C. Murphy, 40 Fla. L. Weekly S711a (FLA 12/17/15)

QUOTATION: "Dr. Ronsisvalle. . stated that during the incident Judge Murphy['s]. . .frontal lobe was shut down, adrenaline and cortisol were pulsing, and his amygdala was activated." Inquiry Re: John C. Murphy, 40 Fla. L. Weekly S711a (FLA 12/17/15)

QUOTATION: "Judge Murphy's total lack of self-control became a national spectacle -- an embarrassment not only to the judge himself but also to Florida's judicial system." Inquiry Re: John C. Murphy, 40 Fla. L. Weekly S711a (FLA 12/17/15)

DEATH PENALTY-COMPETENCY TO BE EXECUTED: Circuit court's refusal to find defendant to be intellectually disabled on ground that defendant failed to establish onset of intellectual disability before age 18 was based on erroneous legal analysis. Diagnosis of intellectual disability before age18 is not required, only manifestation. Sonny Boy Oats v. State, 40 Fla. L. Weekly S705a (FLA 12/17/15)

POST CONVICTION RELIEF: Trial court erred in denying claims that counsel was ineffective for failure to impeach a witness or to file motion to suppress on ground that these issues should have been directly appealed. Isidore v. State, 40 Fla. L. Weekly D2784b (3rd DCA 12/16/15)

JUDGES-DISQUALIFICATION: Trial judge exceeded scope of permissible considerations by evaluating motivations for motion. Messianu v. Pigna, 40 Fla. L. Weekly D2784a (12/16/15)

HEARSAY: Out-of-court statement of stockade employee which defendant relied upon and led defendant to believe he was prevented from reregistering is not hearsay. When a statement is offered to prove what a person thought after the person heard the statement, it is being offered to prove the person's state of mind and is not hearsay. Trial court erred in excluding statement as hearsay where statement was not being introduced for truth of the matter asserted but rather for effect on the listener. Jenkins v. State, 40 Fla. L. Weekly D2777a (4th DCA 12/16/15)

MANDAMUS: Petition for Writ of Mandamus to compel the Court to enter f ruling on post-conviction relief is not necessary hear because hearing has now been set. Douglas v. State, 40 Fla. L. Weekly D2776d (1st DCA 12/16/15)

ARSON: An eleven year old child lighting a fan on fire with a blowtorch, leading to the fire spreading to a shed despite the appellant's efforts to put it out, is not the same thing as intentionally setting fire to the shed itself. "While setting a fan on fire out of curiosity could hardly be construed as a legitimate purpose, the State made no effort to show that the action was unlawful and, in failing to do so, essentially rewrote the arson statute to remove the element of unlawfulness." Judgment of Dismissal should have been granted. M.T.A. v. State, 40 Fla. L. Weekly D2774a (1st DCA 12/16/15)


LIFE SENTENCE FOR JUVENILE-NON-HOMICIDE: Aggregate sentence totaling 80 years for nonhomicide offenses committed when defendant was juvenile violated prohibition against cruel and unusual punishment where sentence did not afford meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Davis v. State, 40 Fla. L. Weekly D2769a (4th DCA 12/16/15)

SENTENCING-CREDIT FOR TIME SERVED: Defendant entitled to credit for time served on pre-violation concurrent sentences, regardless of fact that post-violation sentences on same counts were consecutive. DelaCruz v. State, 40 Fla. L. Weekly D2768a (4th DCA 2015)

MAND-MIN-10/20/LIFE: No error in imposing consecutive mandatory minimum sentences for armed carjacking and robbery with firearm which occurred on same date and involved same victim. Question certified: Does section 775.087(2)(d)'s statement that "The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense" require consecutive sentences when the sentences arise from one criminal episode? Jackson v. State, 40 Fla. L. Weekly D2767a (4th DCA 12/16/15)


JUDGMENT OF ACQUITTAL-EXPLOITATION OF ELDERLY: Error to deny motion for judgment of acquittal where evidence presented by state was not inconsistent with defendant's theory of innocence that settlor of trust named defendant a residual beneficiary of trust as an unsolicited gift. "Although we need not decide the issue in this case, it does not seem that obtaining the future expectancy of property under a will or trust falls under the purview of the statute." Franke v. State, 40 Fla. L. Weekly D2764a (4th DCA 12/16/15)

LIFE SENTENCE FOR JUVENILE-SENTENCE REVIEW: Where defendant is serving life term for offenses committed as adult, as well as fifty-year sentence for offenses committed as juvenile, statute allowing for sentence review is not applicable. Troche v. State, 40 Fla. L. Weekly D2762b (4th DCA 12/16/15)

ENTRAPMENT: New trial is required where the trial court prohibited defense evidence of lack of prior criminal record to support subjective entrapment defense. Rivera v. State, 40 Fla. L. Weekly D2745a (2nd DCA 12/11/15).


JIMMY RYCE: Jury instruction telling the jury the consequences of its vote (commitment if unanimous, retrial if a majority favors commitment, release if no majority for commitment) is proper. Abaunza v. State, 40 Fla. L. Weekly D2753a (1st DCA 12/11/15)


MANDATORY MINIMUM: Court improperly designated the defendant a Dangerous Sexual Felony Offender, which carries a 25 year mandatory minimum sentence, without a jury finding in violation of Alleyne. However, Alleyne errors are subject to harmless error analysis, so the designation and man/min stands. Britten v. State, 40 Fla. L. Weekly D2752b (1st DCA 12/11/15)

SEXUAL PREDATOR: Sexual predator designation must be vacated if underlying offense was committed prior to effective date of Sexual Predator Act (October 1, 1993). Weckesser v. State, 40 Fla. L. Weekly D2751c (12/11/15)

POST CONVICTION RELIEF: Trial court erred in denying relief on ground that motion was successive where prior motion was dismissed because affidavit of newly discovered witness was not attached. Dismissal was not an adjudication on the merits. Greene v. State, 40 Fla. L. Weekly D2751a (5th DCA 12/11/15)

SEARCH AND SEIZURE
: Bondsman goes to house, smells marijuana, and calls police. Police get coerced consent to search and find grow room. Search warrant was required. In order for inevitable discovery rule to be applicable it is necessary to show that law enforcement officers were in the process of obtaining a warrant prior to the search. Inevitable discovery rule cannot be applied where there was probable cause to seek a search warrant but the improper warrantless search occurred before the pursuit of a warrant. Rodriguez v. State, 40 Fla. L. Weekly S691a (FLA 12/10/15)

SEARCH AND SEIZURE: Defendant had no expectation of privacy in portion of his home which was leased to another person. State v. Ortamadruga, 40 Fla. L. Weekly D2743a (3rd DCA 12/9/15)

SENTENCE REVIEW FOR JUVENILE OFFENDERS
: Sentence review is not available for juvenile offender whose crime was committed while parole existed. Defendant may be paroled when he turns 91. See concurring opinion: "Mr. Howard's story is extraordinary and is worth telling." Howard v. State, 40 Fla. L. Weekly D2733a (2nd DCA 12/9/15)

STAND YOUR GROUND: Court did not err in denying SYG motion to dismiss where evidence was wildly conflicted and substantial evidence contradicted defendant's claim. Spires v. State, 40 Fla. L. Weekly D2741b (3rd DCA 12/9/15)

INJUNCTION: Error to enter injunction for protection against stalking where petitioner failed to prove that she suffered any kind of emotional distress as result of respondent's activities. Roach v. Brower, 40 Fla. L. Weekly D2731c (2nd DCA 12/9/15)

GRAND THEFT: Evidence was insufficient to prove value of stolen cell phone was $300 where victim testified that he had original sales receipt, but state neglected to ask about original purchase price of phone. State may not rely on evidence concerning replacement cost of phone. E.G. v. State, 40 Fla. L. Weekly D2731a (4th DCA 12/9/15)

CHILD HEARSAY: There is no requirement that court file specific findings in record prior to presentation of evidence at trial. Cascante v. State, 40 Fla. L. Weekly D2727 (4th DCA 12/9/15)

STATEMENT OF DEFENDANT: Trial court abused its discretion by allowing detective to testify to defendant's statement, "I don't even have a gun... I snatched chains in the past but I never used a gun." Walker v. State, 40 Fla. L. Weekly D2715c (4th DCA 12/9/15)

INJUNCTIONS-STALKING: Abortion protester's action of sending to the home of the victim, the employee of an abortion clinic, a flier which included a picture of the victim and her home address, contained racial slurs, suggested that the African-American victim is working for the KKK at the abortion clinic, and ended with a request to ask the victim to please stop assisting the abortionist with the killing of black babies was properly found to constitute stalking. There is no First Amendment protection for speech that intrudes on the privacy of one's home. Thoma v. O'Neil, 40 Fla. L. Weekly D2721a (4th DCA 12/9/15)

COSTS: Error to impose $300 public defender fee without making factual findings warranting the imposition of this fee. Godfrey v. State, 40 Fla. L. Weekly D2715b (4th DCA 12/9/15)

UNAUTHORIZED COMPUTER USE: Posting nude photos of ex-girlfriend on her Instagram account is not unlawfully accessing a computer, computer system, or computer network. The plain language of the definitions of "computer," "computer system," and "computer network" refer to tangible devices, not the data and other information located on the device. Crapps v. State, 40 Fla. L. Weekly D2709a (1st DCA 12/8/15)

DNA TESTING: Motion for DNA testing was facially insufficient where it did not allege that identification was a genuinely disputed issue at trial or explain how DNA testing would exonerate defendant. Gresham v. State, 40 Fla. L. Weekly D2706b (1st DCA 12/8/15)

POST-CONVICTION RELIEF
: Claim of racial discrimination by prosecuting authorities in seeking PRR enhancement is not an error apparent on face of sentencing order. Because defendant did not raise alleged error during resentencing hearing, appellate court is precluded from reaching merits of issue. Hackley v. State, 40 Fla. L. Weekly D2706a (1st DCA 12/8/15)

SPEEDY TRIAL: Defendant is not entitled to speedy trial discharge based lab report not coming back until after speedy trial has run because there was no intentional discovery violation and no attempt by the defendant to depose the analyst during the seventeen days between disclosure and trial. Defendant is not available for trial in unprepared. State v. Zackery, 40 Fla. L. Weekly D2700a (5th DCA 12/4/15)


LIFE SENTENCE-JUVENILE-NON-HOMICIDE
: 65-year sentences for armed robbery and burglary is equivalent to life and violates Eighth Amendment. Brooks v. State, 40 Fla. L. Weekly D2696a (5th DCA 12/4/15)

DOUBLE JEOPARDY: Separate convictions for assault and robbery arising from single criminal act violate double jeopardy. State's argument that defendant committed separate distinct acts is unpersuasive where location of crimes was same, there was little, if any, lapse of time between crimes, and there were no discernible intervening events. Brooks v. State, 40 Fla. L. Weekly D2696a (5th DCA 12/4/15)

DOWNWARD DEPARTURE: Reduction of sentence based in part on finding that victim's need for restitution outweighed need for incarceration was not supported by competent, substantial evidence. A downward departure is only justified if the harm suffered by the victim as a result of the theft was greater than normally expected, and restitution could mitigate that increased harm. Wheeler v. State, 40 Fla. L. Weekly D2695b (5th DCA 12/4/15)

APPEALS: Trial court lacked jurisdiction to enter corrected disposition and sentencing orders while defendant's direct appeal was pending. Whitfield v. State, 40 Fla. L. Weekly D2694a (5th DCA 12/4/15)


SELF-DEFENSE: If Defendant is the initial aggressor, he must retreat before using deadly force. Accordingly, if the evidence is in dispute as to whether the Defendant was the aggressory, the standard jury instruction with contradictory conclusions is correct. Jackson v. State, 40 Fla. L. Weekly D2693a (5th DCA 12/4/15)

RESTITUTION: Error to include in restitution the value of items not covered by charged offenses. Medlin v. State, 40 Fla. L. Weekly D2692c (5th DCA 12/4/15)

COMPETENCY: Where there were reasonable grounds to question defendant's competency, trial court erred in failing to conduct competency hearing. Brooks v. State, 40 Fla. L. Weekly D2690b (1st DCA 12/4/15)

DOUBLE JEOPARDY: Separate convictions for trafficking in methamphetamine and manufacturing methamphetamine did not violate double jeopardy where the trafficking conviction was based on possession of more than 28 grams of methamphetamine, and not for manufacturing the substance. Palmer v. State, 40 Fla. L. Weekly D2687a (1st DCA 12/4/15)

VEHICULAR HOMICIDE: Driving one-half mile in the wrong lane of a two-lane highway until he collided head-on with an oncoming vehicle constituted willful and wanton disregard for the safety of other persons supporting a vehicular homicide conviction. State v. Depriest, 40 Fla. L. Weekly D2686a (1st DCA 12/4/15)

LIMITATION OF ACTIONS: Statute of Limitations for misdemeanor Criminal Mischief is two years, and is not an offense for which the time can be extended for DNA evidence. Pulido v. State, 40 Fla. L. Weekly D2674b (3rd DCA 12/2/15)

CAREER CRIMINAL: One cannot be a violent career criminal based on a conviction for grand theft. Pulido v. State, 40 Fla. L. Weekly D2674b (3rd DCA 12/2/15)


LIFE SENTENCE FOR JUVENILE
: Aggregate sentence of eighty-five years in prison for nonhomicide offenses committed while defendant was a juvenile violates prohibition against cruel and unusual punishment because it does not provide any meaningful opportunity to obtain release. Irrelevant that the shorter individual sentences were for separate crimes against different armed robbery victims. Francis v. State, 40 Fla. L. Weekly D2673a (3rd DCA 12/2/15)

POST-CONVICTION RELIEF: The "Tripp rule"-when one gets a split sentence of incarceration on one count and probation on another, one gets credit for the prison/jail time on the VOP-does not apply to Criminal Punishment Code. Lawhon-Griffis v. State, 40 Fla. L. Weekly D2671b (4th DCA 12/2/15)

10-20-LIFE: Habitual violent felony offender statute and 10-20-Life statute do not mandate a life sentence for convictions for attempted robbery with a non-discharged firearm while wearing a mask. Broadway v. State, 40 Fla. L. Weekly D2669b (4th DCA 12/2/15)

SOLICITATION OF PROSTITUTION: $5,000 civil penalty for solicitation of prostitution is not unconstitutional under the Excessive Fines Clause of state and federal constitutions. State v. Jones, 40 Fla. L. Weekly D2668a (4th DCA 12/2/15)

POST CONVICTION RELIEF: Error to summarily deny claim that counsel misadvised defendant that prosecution could introduce nature of defendant's prior convictions, not just number of them, if defendant testified at trial. Gordon v. State, 40 Fla. L. Weekly D2667c (4th DCA 12/2/15)

PROBATION REVOCATION: Error to find defendant violated probation by constructively possessing cocaine and drug paraphernalia found in shoebox in closet of jointly occupied bedroom in absence of independent evidence showing defendant knew of and was able to control the items. Castillo v. State, 40 Fla. L. Weekly D2666a (4th DCA 12/2/15)

PROBATION REVOCATION-SENTENCING: Court may rely on pending charges when imposing sentence where charges established pattern of offenses, were supported by probable cause affidavits, and court afforded defense counsel opportunity to explain the charges. Castillo v. State, 40 Fla. L. Weekly D2666a (4th DCA 12/2/15)

RESTITUTION: Amount awarded for child victims' future psychological therapy costs was unsupported by sufficient evidence where amount was based solely on hearsay testimony admitted over defendant's timely hearsay objection. Levy v. State, 40 Fla. L. Weekly D2662a (2nd DCA 12/2/15)

EXCESSIVE BOND: $150,000 bond for four child abuse charges is unlawful. Norton-Nugin, 40 Fla. L. Weekly D2659b (2nd DCA 12/2/15)

EVIDENCE: Where state implied that defense witness's testimony was improperly influenced or Recently fabricated, it was an abuse of discretion to refuse to allow defense to present testimony of detective that witness had provided an earlier consistent statement (that the alleged rape victim in next apartment "sounded like she was having a good time.") before the implied benefit (Defendant paid him he $2100 he owed). Merrone v. State, 38 Fla. L. Weekly D1412a (3rd DCA 12/2/15)

SENTENCING
: Trial court fundamentally erred when it considered defendant's lack of remorse when imposing sentence. It is a violation of due process to punish a defendant for maintaining his or her innocence. Macan v. State, 40 Fla. L. Weekly D2654b (1st DCA 12/1/15)

NOVEMBER 2015

POST CONVICTION RELIEF: Record refuted claim that state presented false testimony regarding prosecution witness's status as confidential informant. The fact that the witness was repeatedly referred to as a confidential informant in other cases does not mean he was a confidential informant. Rivera v. State, 40 Fla. L. Weekly S658a (FLA 11/25/15)


LIMITATION OF ACTIONS
: Misconduct in office extends the statute of limitations until two years after the offender leaves office. Statute of limitations applies to a public school teacher and to sexual offenses on students away from the school. Pariente-Dissent: "'Under the guise of a plain language analysis, the majority has concluded that the statutory phrase 'misconduct in office'. . . actually means misconduct in 'employment.'" Crews v. State, 40 Fla. L. Weekly S653a (FLA 11/25/15)

ADMINISTRATIVE REVIEW: Refusal affidavit need not be notarized if another officer attests to the signature of the other. DHSMV v. Brown, 40 Fla. L. Weekly D2651a (3rd DCA 11/25/15)


EYE WITNESS EXPERT
: Trial court abused its discretion in excluding expert testimony regarding factors that may affect reliability of eyewitness identifications. Expert testimony on eyewitness identification provides jurors with information that is beyond an average juror's general knowledge. Jones v. State, 40 Fla. L. Weekly D2644b (2nd DCA 11/25/15)


RETURN OF PROPERTY
: A motion for return of property is facially sufficient when it alleges the specific identity of the property, that the property belongs to the movant, that it is not the fruit of criminal activity, and that it is not being held as evidence. Chamblee v. State, 40 Fla. L. Weekly D2644a (11/2/15)

EVIDENCE: Even when potential witness dies after providing deposition testimony, deposition will not be admissible as substantive evidence in criminal trial unless party attempting to enter it has moved to perpetuate the testimony. Jones v. State, 40 Fla. L. Weekly D2638a (4th DCA 11/25/15)

APPEALS: Claim of ineffective assistance of counsel not considered on appeal where ineffectiveness is not apparent on face of record. Gavilla v. State, 40 Fla. L. Weekly D2637a (11/25/15)

HEARSAY-BUSINESS RECORDS: A screenshot of a computerized record keeping system is not admissible as a business record where witness was not qualified to lay proper foundation for introduction of screenshot, as he did not know anything about the process by which screenshots were created. Sanchez v. Suntrust Bank, 40 Fla. L. Weekly D2635a (4th DCA 11/25/15)

PROBATION REVOCATION-DRUG TEST: Although laboratory report confirming presence of cocaine was hearsay because it was not admitted through testimony of records custodian, probation officer's testimony regarding results of in-office drug test that the officer personally conducted was sufficient to support revocation of probation based on positive drug test where testimony established probation officer was qualified to conduct test. Conflict certified. Turner v. State, 40 Fla. L. Weekly D2632c (4th DCA 11/25/15)

JUROR MISCONDUCT: After deliberations started, a State Attorney employee heard two jurors discussing case in hallway ("We know there was sex. . . because there was DNA" and "The judge will probably just give him probation."). No mistrial because no prejudice. Key v. State, 40 Fla. L. Weekly D2628a (4th DCA 11/25/15)

JUDGE-DISQUALIFICATION: Motion to disqualify judge was legally sufficient to the extent it relied upon the fact that opposing counsel was playing a significant role in judge's ongoing reelection campaign. Rivera v. Bosque, 40 Fla. L. Weekly D2647a (5th DCA 11/24/15)

CORPUS DELICTI-DUI MANSLAUGHTER: Erratic driving before the crash is sufficient circumstantial evidence that the crash was caused by an impaired driver. Acoff v. State, 40 Fla. L. Weekly D2621a (1st DCA 11/24/15)

PLEADINGS: Where petitioner challenged decision of Parole Commission, but inadvertently listed Department of Corrections instead of the Parole Commission as the respondent in style of case, court should have substituted Commission, rather than dismissing the petition. Greggs v. Florida Commission, 40 Fla. L. Weekly D2619b (1st DCA 11/24/15)

JURY INSTRUCTIONS-SELF DEFENSE: Second Degree Murder conviction vacated where the standard jury instruction that was internally inconsistent and effectively negated defendant's sole defense was used. Reeder v. State, 40 Fla. L. Weekly D2619a (1st DCA 11/24/15)

STATEMENTS OF DEFENDANT: Trial court erred in denying motion to suppress statements defendant made to police after officers misrepresented the law by promising that defendant could only be charged with robbery, not armed robbery or armed robbery with deadly weapon, if he confessed to committing robbery using BB guns. Baptiste v. State, 40 Fla. L. Weekly D2617c (1st DCA 11/24/15)


INJUNCTION:
Injunction for protection against domestic violence based on allegation that respondent, who had committed felony assault on petitioner over five years earlier, had twice driven by petitioner's home, must be reversed where no evidence was introduced in support of petition for injunction. Also, an isolated incident of domestic violence that occurred years before will not usually support an injunction in the absence of new allegations. Mantell v. Rocke, 40 Fla. L. Weekly D2617b (1st DCA 11/24/15)"

SELF-REPRESENTATION-COUNSEL: Trial court erred in holding that suppression hearing was not crucial stage of proceedings and in failing to adequately renew offer of assistance of counsel. Berryhill v. State, 40 Fla. L. Weekly D2617a (1st DCA 11/24/15).

SENTENCING-LEWD OR LASCIVIOUS MOLESTATION: Although trial court had discretion to sentence defendant to life for L & L molestation, it could not also impose 25-year minimum mandatory. Kerr v. State, 40 Fla. L. Weekly D2612a (5th DCA 11/20/15)

CREDIT FOR TIME SERVED
: Error to deny motion for Credit for Time Served without attaching portions of files and record conclusively showing no entitlement to relief. Clemens v. State, 40 Fla. L. Weekly D2611a (5th DCA 11/20/15)

ADMINISTRATIVE HEARING: Hearing officer was required to invalidate suspension of driver's license for driving under influence where arresting officer was properly subpoenaed for, but did not appear at, formal review hearing. Objio v. State, 40 Fla. L. Weekly D2608a (5th DCA 11/20/15)


SEARCH AND SEIZURE: A person who shares files over a peer-to-peer network has no expectation of privacy in those files. State's use of child protection system software, which automates the search for child pornography over peer-to-peer networks did not violate defendant's Fourth Amendment rights. Frazier v. State, 40 Fla. L. Weekly D2606b (5th DCA 11/20/15)


COSTS: Costs imposed pursuant to §938.10 (offenses against minors) are properly imposed per count rather than per case. Question certified. Dixon v. State, 40 Fla. L. Weekly D2605a (5th DCA 11/20/15)

APPEAL BY STATE-DEPARTURE: State's claim that downward departure sentence was erroneously imposed was not preserved for appellate review where prosecutor argued against downward departure sentence at sentencing hearing, but did not also object to sentence after it was imposed. Conflict certified. State v. Wiley, 40 Fla. L. Weekly D2603a (1st DCA 11/19/15)

POST CONVICTION RELIEF
: Error to summarily deny claim that counsel was ineffective for failing to object to standard "principals" instruction being applied to conspiracy count. Evidence that a person aided and abetted another in the commission of an offense, although sufficient to convict the person as a principal, is insufficient to convict either person of a conspiracy to commit the subject offense. Allison v. State, 40 Fla. L. Weekly D2594a (4th DCA 11/18/15)


SPEEDY TRIAL: Trial commenced when voir dire of sworn panel of prospective jurors began for defendant's trial. Where jurors are sworn for voir dire in jury assembly room, trial has commenced. When entire venire is stricken, case is mistried, and the 90 day period for retrial controls. Smart v. State, 40 Fla. L. Weekly D2589a (4th DCA 11/18/15)


LIMITATION OF ACTIONS: Where crimes against victims were reported before either victim reached age 16, reporting date, not date of 16th birthday, triggered statute of limitations. (2003 amendment to statute allows prosecution for §794.011 at any time. Brown v. State, 40 Fla. L. Weekly D2585a (4th DCA 11/18/15)


POST CONVICTION RELIEF
: Failure to object to screen being placed between defendant and child victim during child's testimony is not ineffective assistance where allowed for strategic reasons. Farmer v. State, 40 Fla. L. Weekly D2584c (4th DCA 11/18/15)

QUOTATION: "It is surely frustrating. . . that the standard jury instructions relating to self-defense have so many potential pitfalls. . . Unfortunately, trial attorneys and trial judges often fail to recognize that instructions. . . are merely the work product of a conscientious committee and not immutable postulates from Olympus. Committees, after all, sometimes construct camels rather than race horses. Jackson v. State, 40 Fla. L. Weekly D2567a (5th DCA 11/13/15)


SELF-DEFENSE-JURY INSTRUCTION: Error to use the term "injury" in the self-defense instruction. The standard instruction is improper. Jackson v. State, 40 Fla. L. Weekly D2567a (5th DCA 11/13/15)

SELF-DEFENSE-JURY INSTRUCTION: Giving non-deadly force jury instruction that a defendant has no duty to retreat and has the right to stand his ground only if he reasonably believed that it was necessary to do so to prevent death or great bodily harm was error. One has no duty to retreat regardless. Combination of errors is fundamental. Jackson v. State, 40 Fla. L. Weekly D2567a (5th DCA 11/13/15)


SELF-DEFENSE-FIREARM
: The mere display of a gun, or even pointing a gun at another's head or heart without firing it, is not deadly force as a matter of law. Prosecutor improperly argued that defendant used deadly force in the assault by pointing gun at victim. Jackson v. State, 40 Fla. L. Weekly D2567a (5th DCA 11/3/15)



LIFE SENTENCE FOR JUVENILE
: Defendant who committed a felony while a juvenile can seek the relief of an individualized resentencing hearing under Rule 3.850. Jones v. State, 40 Fla. L. Weekly D2578c (1st DCA 11/13/15)


CORRECTION OF SENTENCE:
Court erred by summarily denying Rule 3.800(1) motion on ground that claim was barred by collateral estoppel or law of the case doctrine based on an order denying a previous rule 3.800(a) motion where the record does not support the conclusion that the prior motion raised the same claim or that the same issue was actually decided on appeal. McManus v. State, 40 Fla. L. Weekly D2578a (1st DCA 2015)


POST CONVICTION RELIEF: Allegation that defendant would not have rejected plea offer of 15 years' imprisonment had counsel not failed to advise him of maximum sentence he faced if trial court found that he violated probation was not refuted by record, but the motion was insufficient where defendant failed to allege that trial court would have accepted the offer or that state would not have withdrawn offer it. Depriest v. State, 40 Fla. L. Weekly D2577a (1st DCA 11/13/15)


REVOCATION OF PROBATION: Revocation of sex offender probation for having contact with a minor is improper where the defendant was present in the home only because his probation officer ordered him to go to the home, and there was no evidence that defendant was ever in the same room with the child. Campos v. State, 40 Fla. L. Weekly D2575a (2nd DCA 11/13/15)

MOTION TO MITIGATE: Error to deny as untimely defendant's rule 3.800(c) motion to mitigate sentence where motion was timely filed within 60 days of defendant's voluntary dismissal of her direct appeal. Terrero v. State, 40 Fla. L. Weekly D2571b (2nd DCA 11/13/15)

YOUTHFUL OFFENDER: Six-year youthful offender sentences for third-degree felony counts exceeded statutory maximum. Cruz v. State, 40 Fla. L. Weekly D2571a (2nd DCA 11/13/15)

EVIDENCE: Detective may not opine that voice heard on 911 call-back recording belonged to defendant where his only knowledge of defendant's voice was for jail conversations he had listened to. Testimony that a witness recognizes the voice of the accused is inadmissible on the basis that it invades the province of the jury unless the testifying witness (1) was an eyewitness to the crime, (2) has some prior special familiarity with the voice of the defendant, or (3) is qualified as an expert in identification. Evans v. State, 40 Fla. L. Weekly S636a (FLA 11/12/15)


CROSS-EXAMINATION: State improperly insinuated through cross-examination of defendant that he was obsessed with his estranged wife and stalking her boyfriend, the murder victims. Evans v. State, 40 Fla. L. Weekly S636a (FLA 11/12/15)


IMPROPER CROSS-EXAMINATION: It is impermissible for the state to insinuate impeaching facts while questioning a defense witness without evidence to back up those facts. State may not ask if the Defendant hired a private investigator to follow the victim without evidence to support the insinuation. Evans v. State, 40 Fla. L. Weekly S636a (FLA 11/12/15)


IMPROPER ARGUMENT
: Prosecutor repeatedly disparaged defendant's theory of case and defense attorneys in general; relied on facts and statistics not in evidence to imply that victims must have been murdered by family member; made erroneous statements of law; and criticized defendant's decision to pursue constitutional right to a jury trial. New Trial required. Evans v. State, 40 Fla. L. Weekly S636a (FLA 11/12/15)

IMPROPER ARGUMENT
: Prosecutor misstates the law in saying that killing in the heat of passion qualifies as second-degree murder without acknowledging that a heat of passion killing can also constitute manslaughter. Evans v. State, 40 Fla. L. Weekly S636a (FLA 11/12/15)


IMPROPER ARGUMENT
: Prosecutor impermissibly disparaged the Defendant's right to a jury trial by saying: "So in America everybody has a right to a jury trial regardless of the evidence against you. It could be on videotape. It could be in front of a hundred priests. You have a right to a jury trial." Evans v. State, 40 Fla. L. Weekly S636a (FLA 11/12/15)

QUOTATION: "Although the State contends that the prosecutor was merely referencing a truism of American constitutional rights, this begs the question why the prosecutor felt it was even necessary to reference the right to a jury trial in America -- not once but twice. . .Such a comment negatively reflected upon Evans' exercise of his constitutional right because it suggested that he wasted the time of the court and the jury by seeking a jury trial." Evans v. State, 40 Fla. L. Weekly S636a (FLA 11/12/15)


AMENDMENT TO APPELLATE RULES: Rules for pagination of the Record on Appeal changed in order to allow easier searching of PDFs on the computer. In Re: Amendments, 40 Fla. L. Weekly S635a (FLA 11/12/15)

DOUBLE JEOPARDY: Where defendant is found guilty of two offenses where Double Jeopardy applies, the lesser offense should be vacated even though the lesser offense carries a higher punishment than the greater crime. Where defendant was found guilty of both attempted home invasion robbery (2nd degree felony) and armed burglary (1st degree felony), court should have vacated the lesser offense of armed burglary although it carried a higher sentence. Tuttle v. State, 40 Fla. L. Weekly S631a (FLA 11/12/15)


APPEAL
: Counsel's failure to request alibi instruction did not constitute ineffective assistance of counsel apparent on face of record, and thus cannot be raised on direct appeal. Barnett v. State, 40 Fla. L. Weekly D2558c (1st DCA 11/12/15)


CONTEMPT: Regardless of whether the actions rise to level of direct contempt [Defendant said it would take all of "those guys wearing white" and more to control him.] the judgment must be specifically recite the facts. Just citing inappropriate courtroom conduct is insufficient. Escoto v. State, 40 Fla. L. Weekly D2558a (3rd DCA 11/12/15)


RESISTING ARREST
: Juvenile cannot be convicted of Resisting without Violence for fleeing after an unlawful traffic stop. Officer's belief that juvenile was not old enough to be driving motorized scooter was not valid basis for stop, nor was the juvenile's failure to wear protective eyewear. W.B. v. State, 40 Fla. L. Weekly D2556c (3rd DCA 11/12/15)

BURGLARY TOOLS: Evidence that defendant was found inside self-service junkyard after close of business walking up and down and removing parts from vehicles was insufficient to support conviction for possession of burglary tools where there was no sign of forced entry or evidence that defendant used or intended to use tools in course of unlawfully entering property. Fortson v. State, 40 Fla. L. Weekly D2555a (1st DCA 11/12/15)


CHILD HEARSAY: Trial court commended for thorough and proper findings of admissibility of child hearsay. Small v. State, 40 Fla. L. Weekly D2554a (1st DCA 11/12/15)

PRISON RELEASEE REOFFENDER
: Error to impose Prison Releasee Reoffender sentence for possession of cocaine on ground that possession charge involved a threat of force or violence because defendant possessed the cocaine at the time when he committed aggravated assault and resisting offenses. Sheffield v. State, 40 Fla. L. Weekly D2553c (1st DCA 11/12/15)


SEARCH AND SEIZURE: Valid investigatory stop where officers observed juvenile meeting a known prostitute and a known drug user, going toward abandoned houses, exiting the back door of an abandoned home which was part of "Board and Secure" program, located in an area known for criminal activity, and specifically marked with a sign which contained a warning that trespassers would be arrested. D.T. v. State, 40 Fla. L. Weekly D2549a (4th DCA 11/12/15)

DNA TESTING: Error to summarily deny motion for post conviction DNA testing where motion on ground that the Victim said three men raped her. If DNA testing reveals that semen contained DNA profile of three different men, none of whom matched defendant, he could be exonerated. Mitchell v. State, 40 Fla. L. Weekly D2545a (4th DCA 11/12/15)


JUVENILES: Trial court erred in sua sponte dismissing petition for delinquency prior to adjudicatory hearing. J.Q. v. State, 40 Fla. L. Weekly D2540a 4th DCA (11/12/15)

LIFE SENTENCE FOR JUVENILE: Forty-five year sentence is not de facto life sentence for which Graham applies. Defendant will not be eligible for sentence review. Kelsey v. State, 40 Fla. L. Weekly D2523a (1st DCA 11/9/15)

YOUTHFUL OFFENDER: It was error to sentence defendant who had initially been sentenced as youthful offender to sentence in excess of six years upon revocation of probation for a technical violation. Anything but a new law violation is a technical violation. Flagg v. State, 40 Fla. L. Weekly D2536a (1st DCA 11/9/15)

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN
: One can be designated a violent felony offender of special concern upon a violation for an offense committed before the statute was created. If the court finds that the Defendant is a danger to the community, he must be sentenced to the statutory maximum. Williamson v. State, 40 Fla. L. Weekly D2531a (1st DCA 11/9/15)

MOTION TO DISMISS-TRAVERSE: Trial court erred in dismissing charge on ground that defendant had lawful prescription for drugs where state's traverse pointed out that pills defendant possessed were a different (lower) strength than the pills he had been prescribed. Ramirez v. State, 40 Fla. L. Weekly D2521b (2nd DCA 11/6/15)

SENTENCING-ATTORNEY
: Error to fail to reoffer counsel to defendant at his sentencing hearing after Defendant had waived counsel at his VOP hearing. Pugh v. State, 40 Fla. L. Weekly D2521a (2nd DCA 11/6/15)

GRAND THEFT
: Evidence that defendant tricked victim into putting her funds in his account, spent the funds for his own benefit, and denied the victim access to her money, was sufficient to support conviction for grand theft. Walls v. State, 40 Fla. L. Weekly D2514 (2nd DCA 11/6/15)

SENTENCING
: In imposing sentence, trial court erroneously considered testimony of officer about uncharged crimes and that the Defendant was a nuisance. Mosley v. State, 40 Fla. L. Weekly D2513a (2nd DCA 11/6/15)

JURY INSTRUCTIONS
: Error to fail to give instruction on permissive lesser-included offense of unnatural and lascivious act where offense was encompassed by information and was supported by evidence. Funiciello v. State, 40 Fla. L. Weekly D2499a (5th DCA 11/6/15)

JURY INSTRUCTIONS
: It is not fundamental error to fail to give instruction on limited purpose for admitting Williams rule evidence where counsel did not request it. Court notes that trial courts should give instruction in all cases involving Williams rule evidence, whether or not requested by defense counsel. Funiciello v. State, 40 Fla. L. Weekly D2499a (5th DCA 11/6/15)


DEADLY WEAPON
: Evidence that defendant placed handgun against victim's chest was sufficient to withstand motion for judgment of acquittal on ground that handgun was not used as a deadly weapon. Gayden v. State, 40 Fla. L. Weekly D2498b (5th DCA 11/6/15)


COMPETENCY OF DEFENDANT
: Where Defendant had been found incompetent to proceed due to intellectual disability but court did not specify its reasons for determining that defendant would become competent in foreseeable future and provide expected timeframe for competency, charge must be dismissed after two years. Henry v. State, 40 Fla. L. Weekly D2496b (5th DCA 11/6/15)


MOTION TO CORRECT CREDIT FOR TIME SERVED
: Where rule 3.801 motion was timely filed but facially insufficient, trial court should have allowed defendant to amend within 60 days. McGee v. State, 40 Fla. L. Weekly D2496a (5th DCA 11/6/15)

SENTENCING-CONSIDERATION
: Court commits fundamental error by explicitly stated that defendant's apparent perjury resulted in longer sentence. Hampton v. State, 40 Fla. L. Weekly D2495c (5th DCA 11/6/15)


POST CONVICTION RELIEF
: Although there was no strategic reason for failing to impeach witnesses by their convictions, the Defendant is not prejudiced where the evidence is overwhelming. Pham v. State, 40 Fla. L. Weekly S612c (FLA 11/5/15)

HABEAS CORPUS
: The remedy of habeas corpus is not available in Florida to obtain the kind of collateral postconviction relief available in the sentencing court pursuant to rule 3.850. Cassidy v. State, 40 Fla. L. Weekly D2494b (1st DCA 11/5/15)


SENTENCING-HABITUAL OFFENDER
: One cannot be habitualized for conspiracy to purchase or possess cocaine with intent to sell. Ray v. State, 40 Fla. L. Weekly D2494a (1st DCA 11/5/15)


JURISDICTION-RESTITUTION LIEN
: Court can maintain jurisdiction for five years and beyond expiration of the sentence to impose civil restitution lien orders. Fla. Stat. 960.292(2) provides that "The court shall retain continuing jurisdiction over the convicted offender for the sole purpose of entering civil restitution lien orders for the duration of the sentence and up to 5 years from release from incarceration or supervision, whichever occurs later." Nickerson v. State, 40 Fla. L. Weekly D2493a (3rd DCA 11/4/15)


SPEEDY TRIAL
: Where defendant was charged with a felony for DUI and a misdemeanor for failure to take a breath test, the DUI felony was governed by the felony 175-day clock rather than the misdemeanor 90-day clock. State v. Meyers, 40 Fla. L. Weekly D2483a (2nd DCA 11/4/15)

QUOTATION
: "[A] felony is a felony is a felony, and in this case, the DUI was never anything but a felony." State v. Meyers, 40 Fla. L. Weekly D2483a (2nd DCA 11/4/15)


SILENCE OF DEFENDANT
: No error in overruling Defendant's objection that the detective wrongly implied that he, not the Defendant, ended the interview where the question is irrelevant to any material issue. Robinson v. State, 40 Fla. L. Weekly D2473a (4th DCA 11/4/15)


INJUNCTION
: Provision of injunction for stalking prohibiting respondent from posting anything on the Internet regarding officer (Petitioner) was unconstitutional under First Amendment and must be narrowed. Neptune v. Lanoue, 40 Fla. L. Weekly D2469b (4th DCA 11/4/15)


VAGUENESS
: Statute barring unlawful compensation or reward for official behavior is not void for vagueness. The meaning of "not authorized by law" can be ascertained by reference to the plain and ordinary meaning of its words. Czajkowski v. State, 40 Fla. L. Weekly D2464b (4th DCA 11/4/15)


COMPETENCY OF DEFENDANT
: Claim that trial court erred when, after granting motion for competency hearing, it accepted plea and sentenced defendant without conducting hearing was not preserved for appeal where defendant did not file motion to withdraw plea. Williams v. State, 40 Fla. L. Weekly D2464a (4th DCA 11/4/15)


FELONY BATTERY
: Offense of sexual battery committed in Mississippi is a proper predicate to prove felony battery, because the sexual battery necessarily meets the statutory definition of a battery under Florida law. Osborn v. State, 40 Fla. L. Weekly D2461a (1st DCA 11/3/15)

OCTOBER 2015

DAUBERT-MENTAL HEALTH EXPERTS: Daubert test is flexible. Mental Health expert testimony is admissible under Daubert in Jimmy Ryce case. Andrews v. State, 40 Fla. L. Weekly D2456a (5th DCA 10/30/15)


INJUNCTION-STALKING: Two nonthreatening text messages to daughter are insufficient to issue an injunction for protection. Lippens v. Powers, 40 Fla. L. Weekly D2455a (5th DCA 10/30/15)


DOUBLE JEOPARDY: Dual convictions for computer solicitation of child or person believed to be child and unlawful use of two-way communications device to facilitate commission of felony violated double jeopardy. Double jeopardy argument is not waived by open guilty plea, rather than if it were a negotiated plea. Wagner v. State, 40 Fla. L. Weekly D2453a (5th DCA 10/30/15)

POST CONVICTION RELIEF
: Motion for post conviction relief is appropriately denied where Defendant's claims that he was misadvised and under the influence of drugs is refuted by what the Defendant said during the plea colluquy. Wagner v. State, 40 Fla. L. Weekly D2453a (5th DCA 10/30/15)

POST CONVICTION RELIEF
: Defendant should have been allowed to amend motion prior to trial court's ruling where motion requesting leave to amend was filed before trial court ruled on motion and before limitations period expired. Prestano v. State, 40 Fla. L. Weekly D2448b (5th DCA 10/30/15)

APPEARANCE BY TELEPHONE: Husband, who was incarcerated, was denied due process when trial court failed to allow him to appear telephonically at final hearing. Rodriguez v. Rodriguez, 40 Fla. L. Weekly D2448a (10/30/15)


RESTITUTION: Reimbursement of father for expenses incurred in seeking return of daughter after defendant-mother absconded with daughter to foreign country, are allowed in case of concealing minor, but attorney's fees from related custody case are not. Strout v. State, 40 Fla. L. Weekly D2446a (5th DCA 10/30/15)

STATEMENTS OF DEFENDANT: Mother is charged with attempting to kill her disabled son before attempting suicide. Her statements to doctors about her condition are properly suppressed, but her statement related to her child ("[I] failed. I didn't succeed.") are admissible. State v. Carter, 40 Fla. L. Weekly D2445b (5th DCA 10/30/15)

MEDICAL RECORDS: Oral statements made by defendant to medical professionals about her medical condition are considered "medical records" and are covered by medical professional-patient privilege. Privilege is broad. State v. Carter, 40 Fla. L. Weekly D2445b (5th DCA 10/30/15)

MEDICAL RECORDS
: Defendant as guardian does not have privilege to keep SAO from using medical records of her ward, who is the victim. State v. Carter, 40 Fla. L. Weekly D2445b (5th DCA 10/30/15)

MEDICAL RECORDS: Medical records are properly suppressed where they were not seized by either a search warrant or compliance with the statutory notice requirements. State v. Carter, 40 Fla. L. Weekly D2445b (5th DCA 10/30/15)


SEARCH AND SEIZURE: Officer may not order passenger to return to the car where stop was for no brake light and driver was not wearing seat belt. Failure to comply with order to return and looking nervous is not a justification for temporary detention. Aguiar v. State, 40 Fla. L. Weekly D2445a (5th DCA 10/30/15)


QUOTATION: "It should not require explanation that whether an officer has reasonable suspicion to detain an individual should be judged on the facts observed by the officer prior to the command to stay or return -- not after." Aguiar v. State, 40 Fla. L. Weekly D2445a (5th DCA 10/30/15)

BURGLARY: Evidence that juvenile's fingerprints were among those found on outside of window pane through which burglar had entered victim's apartment was insufficient, standing alone, to refute juvenile's claim that fingerprints were result of his having leaned against window. C.P.C. v. State, 40 Fla. L. Weekly D2444a (5th DCA 10/30/15)

SUSPENDED SENTENCE-JUVENILE: Court may order commitment without obtaining recommendation from DJJ where juvenile waived predisposition report and agreed to probation and suspended non-secure residential placement in return for guilty plea. A.L.M. v. State, 40 Fla. L. Weekly D2441b (1st DCA 10/30/15)

JUVENILE-COMMITMENT: Trial court erred by deciding on commitment restrictiveness level without first obtaining recommendation from DJJ where DJJ's initial predisposition report recommended probation. A.L.M. v. State, 40 Fla. L. Weekly D2442a (1st DCA 10/30/15)

FIREARMS
: Prohibition of firearms in college dorms does not violate the right to bear arms. Florida Carry, Inc. V. University of Florida, 40 Fla. L. Weekly D2432c (1st DCA 10/30/15)

JURY INSTRUCTION-MANSLAUGHTER BY ACT: Second degree murder conviction vacated where the lesser manslaughter by act was defective. The fact that Defendant claimed SODDI does not change the result. Pharisien v. State, 40 Fla. L. Weekly D2428b (2nd DCA 10/30/15)

JURY INSTRUCTION-MANSLAUGHTER BY ACT: Second degree murder conviction vacated where the lesser manslaughter by act was defective. A sole defense of misidentification does not concede or fail to place in dispute intent or any other element of the crime charged except identity when the offense charged is an unlawful homicide. Nieves v. State, 40 Fla. L. Weekly D2428a (2nd DCA 10/30/15)

POST CONVICTION RELIEF: A timely filed rule 3.850 motion may be amended prior to the postconviction court's disposition even after the two-year time period has expired. Millette v. State, 40 Fla. L. Weekly D2427a (2nd DCA 10/30/15)

DISCOVERY-ATTORNEY-CLIENT PRIVILEGE: Trial court departed from essential requirements of law by compelling party and party's counsel to produce specific e-mail string n the two without affording evidentiary hearing to address claim of privilege and why crime-fraud exception precluded use of that privilege. Brannon v. Amlong, 40 Fla. L. Weekly D2413b (10/29/15)

AMENDMENTS TO FL.R.CR.P.: Rule 3.121-Arrest warrant must and include a photograph of Defendant if reasonably available. In re: Amendments, 40 Fla. L. Weekly S594a (FLA 10/29/15)

AMENDMENTS TO FL.R.CR.P.
: Requirements for plea colloquy about deportation consequences is substantially revised. Trial judge must not require Defendant to say what his legal status in the U.S. is. In re: Amendments, 40 Fla. L. Weekly S594a (FLA 10/29/15)


AMENDMENTS TO FL.R.CR.P.: Trial judge's requirement when jury requests transcripts or a read back of testimony. In re: Amendments, 40 Fla. L. Weekly S594a (FLA 10/29/15)


AMENDMENTS TO FL.R.CR.P.
: Motion for new trial or arrest of judgment may be made orally. In re: Amendments, 40 Fla. L. Weekly S594a (FLA 10/29/15)

AMENDMENTS TO FL.R.CR.P.: Application for Criminal Indigent Status is amended to remove the phrase "to the best of my knowledge" from the attestation clause at the end of the form. In re: Amendments, 40 Fla. L. Weekly S593a (FLA 10/29/15)

AMENDMENTS TO FL.R.CR.P
. Motion for Postconviction Relief no longer requires that the motion be signed by the defendant and that the defendant use either the notarized or unnotarized oath at the end of the form; instead, rule 3.987 includes a new oath. In re: Amendments, 40 Fla. L. Weekly S593a (FLA 10/29/15)

AMENDMENTS TO FL.R.CR.P.: New pleading requirements for relief based on newly discovered evidence. In re: Amendments, 40 Fla. L. Weekly S593a (FLA 10/29/15)


AMENDMENTS TO FL.R.CR.P.
: New rule 3.987 for pleading requirements Motion for Additional Jail Credit. In re: Amendments, 40 Fla. L. Weekly S593a (FLA 10/29/15)

APPEALS-SUBSTANTIAL ASSISTANCE: Denial of Motion to reduce sentence based on substantial assistance is appealable. Court abused discretion by failing to reduce sentence based on disagreement with the philosophy of 921.186. McFadden v. State, 40 Fla. L. Weekly S591a (FLA 10/29/15)

INFORMATION: Where information is incorrectly worded, but the correct statutes are cited, the information is not fatally defective. State v. Kite, 40 Fla. L. Weekly D2426a (1st DCA 10/28/15)

CONSPIRACY-METHAMPHETAMINE: Evidence of years-long continuing relationship between defendant and manufacturer in which defendant bought over 120 grams of pseudoephedrine and delivered it to manufacturer was sufficient to support conspiracy conviction. State v. Kite, 40 Fla. L. Weekly D2426a (1st DCA 10/28/15)


JOA-OBTAINING MORTGAGE BY FALSE PRETENSES-GRAND THEFT: JOA is improper where mortgagee's reliance on defendant's false representation HUD statement led to money being disbursed to defendant. Izquierdo v.State, 40 Fla. L. Weekly D2420c (10/28/15)


JURORS-CHALLENGE FOR CAUSE: No error to deny challenge of juror for cause where court granted defendant an additional peremptory challenge. Lezcano v. State, 40 Fla. L. Weekly D2418a (3rd DCA 10/28/15)

FAILURE TO REGISTER AS SEX OFFENDER: Defendant did not comply with terms of statute by reporting in person to sheriff's office where defendant did not complete reregistration rocess at that time because he was told that he would first need to get an updated ID in order to register with his new address. "An offender who is actively attempting to receive an updated ID with which to reregister and who is simply delayed by the inevitable red tape that process involves may present a different case, and a different outcome, than that at bar." Boltri v. State, 40 Fla. L. Weekly D2414a (4th DCA 10/28/15)

SENTENCING-DOWNWARD DEPARTURE: Defendant's need for and amenability to specialized treatment of a physical disability--extreme heart condition--is a valid reason for departure. Court erred in believing it could not downward depart. Downward departure is not appealable, but Court's failure to exercise discretion is. Defendant did not preserve nor appeal this issue, but may now file a motion to mitigate. Rudd v. State, 40 Fla. L. Weekly D2408b (1st DCA 10/26/15)


SEARCH AND SEIZURE-LICENSE TAG: License tag's alphanumeric designation may not be obstructed by any matter, including matters external to the tag, such as trailer hitches, bicycle racks, handicap chairs, u-hauls, and the like -- Conflict certified. Munroe v. State, 40 Fla. L. Weekly D2406b (1st DCA 10/26/15)

RESENTENCING: Where defendant's illegal sentence on one count was modified after defendant filed motion to correct illegal sentence, and when the court is not effectuating the terms of a plea bargain, the court could not properly restructure legal sentences on other counts to run consecutively to the modified illegal sentence. Prior precedent receded from. Hughes v. State, 40 Fla. L. Weekly D2400b (5th DCA 10/23/15)

POST CONVICTION RELIEF: Error to summarily deny claims that counsel was ineffective for failure to call key defense witnesses, failure to present theory that lewd or lascivious molestation victim's mother was motivated by personal interest and bias to induce victim to fabricate molestation charges, and failure to cross-examine victim regarding her prior inconsistent statements in deposition. Fletcher v. State, 40 Fla. L. Weekly D2398e (10/23/15)

MITIGATION SPECIALIST
: Trial court did not err in failing to appoint mitigation specialist where counsel did not establish why a fact investigator would not do as well. DISSENT: "I strongly encourage trial courts to liberally grant proper requests for mitigation specialists." Disapproves of prosecutor's "sarcastic comments. . .[which]highlight the tendency of some prosecutors to degrade mitigation." Explanation of importance of mitigation specialist. Middleton v. State, 40 Fla. L. Weekly S574b (FLA 10/22/15)


RESENTENCING
: Defendant was entitled to be present and represented by counsel when he was resentenced pursuant to motion to correct illegal sentence. Uhler v. State, 40 Fla. L. Weekly D2398a (1st DCA 10/22/15)


INTRODUCTION OF FIREARM INTO DETENTION FACILITY
: A juvenile assessment center is not a "county detention facility" because juveniles commit delinquent acts, not felonies or misdemeanors. JOA required. J.J. v. State, 40 Fla. L. Weekly D2391b (2nd DCA 10/21/15)

QUOTATION
: "The special legal terminology used to address offenses committed by children reflects a public policy that recognizes a need to provide more rehabilitation, more second chances, and more empathy for the poor judgment of young minds not fully developed." J.J. v. State, 40 Fla. L. Weekly D2391b (2nd DCA 10/21/15)


JUVENILES-SENTENCING-RESTRICTIVENESS LEVEL
: Where DJJ recommended probation, and alternatively, a low-risk commitment program, it was not error for Court to refrain from making findings pursuant to E.A.R. v. State. E.A.R. findings are unnecessary for the court's initial decision of whether to commit a juvenile even where the DJJ recommends probation. D.R. v. State, 40 Fla. L. Weekly D2389a (4th DCA 10/21/15)


JIMMY RYCE
: Where Defendant is in custody of DCF because he is incompetent to proceed to trial, he is in confinement for purpose of initiating Jimmy Ryce proceedings. Phillips v. State, 40 Fla. L. Weekly D2387a (4th DCA 10/21/15)


CONTEMPT-JUVENILE
: Juvenile may not be convicted of direct criminal contempt where juvenile when not represented by counsel at direct criminal contempt hearing, and not advised of his right to counsel. M.D.M. v. State, 40 Fla. L. Weekly D2384a (10/21/15)

DISCOVERY VIOLATION
: Where State told defense counsel that no money was recovered from defendant, but had turned over documents from which defense could have found out that money was so recovered (a property receipt in evidence), there is no discovery violation. Jules v. State, 40 Fla. L. Weekly D2383a (4th DCA 10/21/15)

SEARCH AND SEIZURE-INVESTIGATORY DETENTION: Where defendant pulled into the driveway of a residence that was being searched for drugs pursuant to warrant, officer observed that defendant seemed nervous and had his hand between the driver's seat and the front console, officer asked defendant if he had a firearm, and defendant did not respond, officer's action of asking defendant to step out of vehicle constituted a lawful investigatory detention. McCray v. State, 40 Fla. L. Weekly D2378a (1st DCA 10/20/15)

LOITERING AND PROWLING
: Going upstairs and seeming to try to avoid police is not loitering and prowling. D.J.E. v. State, 40 Fla. L. Weekly D2376d (1st DCA 10/20/15)


SENTENCING-DOWNWARD DEPARTURE
: Trial court erred in finding that it was precluded from entering downward departure sentence based upon defendant's single prior conviction. Rowe v. State, 40 Fla. L. Weekly D2375b (1st DCA 10/19/15)


SENTENCING: Trial court erred imposing a twenty-year sentence on lewd and lascivious assault VOP where the sentence was bottom of the guidelines and in excess of the statutory maximum, and the original offense preceded the Criminal Punishment Code. Miller v. State, 40 Fla. L. Weekly D2374a (2nd DCA 10/16/15)


APPEAL-RESTITUTION
: Trial court did not have jurisdiction to enter restitution order after notice of appeal was filed. Brown v. State, 40 Fla. L. Weekly D2370b (10/16/15)

DOUBLE JEOPARDY
: Separate convictions and sentences for possessing and discharging a destructive device and arson of a dwelling with discharge of a destructive device violate double jeopardy. Where double jeopardy violation resulted not from statutory elements of crimes, but from sentencing enhancements, it was not necessary to determine which offense was the lesser offense for purpose of vacating offenses. Schoonover v. State, 40 Fla. L. Weekly D2370a (5th DCA 10/16/15)

PROBATION REVOCATION-YOUTHFUL OFFENDER
: Where defendant was initially sentenced as youthful offender, his youthful offender status must be continued upon resentencing after violation of probation. Peterson v. State, 40 Fla. L. Weekly D2363b (10/16/15)

CREDIT FOR TIME SERVED
: Defendant is entitled to credit for time he was held in county jail awaiting his second trial until date of sentencing. Middleton v. State, 40 Fla. L. Weekly D2359b (1st DCA 10/15/15)

DRUG OFFENDER PROBATION
: Error to impose drug offender probation where defendant was not eligible to receive drug offender probation. Green v. State, 40 Fla. L. Weekly D2359a (1st DCA 10/15/15)


DEPORTATION
: Defendant cannot vacate his plea based upon counsel's failure to advise of deportation consequences of the plea unless he can establish that there was no other basis for deportation. Concurring opinion disagrees with bright line rule. Hardware v. State, 40 Fla. L. Weekly D2345a (3rd DCA 10/14/15)


DRIVER'S LICENSE SUSPENSION
: Licensee does not have a right to require an officer's live appearance at an administrative hearing dealing with license suspension -- Department had no burden to authenticate videotape of mandatory 20-minute waiting period which occurred after licensee's arrest. DHSMV v. Canlejo, 40 Fla. L. Weekly D2344a (3rd DCA 10/14/15)


SENTENCING-UPWARD DEPARTURE
: Trial court improperly denied motion to correct illegal sentence where date of offense falls within window for bringing a claim under Heggs v. State. Camellon v. State, 40 Fla. L. Weekly D2342a (10/14/15)

SEARCH AND SEIZURE-EXIGENT CIRCUMSTANCES
: Search is lawful as an exigent circumstance where police find a broken window which neighbors said had not been broken the night before, suggesting an ongoing or recent burglary. Detailed, erudite dissent. Dissent cites to James Otis, 1761. State v. Yee, 40 Fla. L. Weekly D2332a 3rd 10/14/15).

QUOTATION (DISSENT): "It bears repeating that it is a serious matter if law enforcement officers violate the sanctity of the home by ignoring the requisites of lawful entry. Security must not be subject to erosion by indifference or contempt." State v. Yee, 40 Fla. L. Weekly D2332a 3rd 10/14/15).

POST CONVICTION RELIEF
: It is not ineffective assistance to allow the Defendant to plead to a defective information where moving to dismiss the information would lead to the State filing a more serious charge. Williams v. State, 40 Fla. L. Weekly D2330a (3rd DCA 10/14/15)

INJUNCTION FOR PROTECTION: Court improperly admitted testimony regarding acts of domestic violence that were never pleaded in petition for injunction for protection. DeLeon v. Collazo, 40 Fla. L. Weekly D2329a (3rd DCA 10/14/15)

POST CONVICTION RELIEF
: Trial court must make findings of fact and conclusions of law for appellate court to properly review trial court's order denying motion for post conviction relief based on claim that counsel was ineffective for failing to object to use of restraints during trial. Leigh v. State, 40 Fla. L. Weekly D2328c (4th DCA 10/15/15)

DOUBLE JEOPARDY
: Dual convictions for use of computer to solicit a child for unlawful sexual activity and traveling to meet a child for purpose of engaging in unlawful sexual activity violate prohibition against double jeopardy. Chepelvich v. State, 40 Fla. L. Weekly D2320a (2nd DCA 10/14/15)


MOTION TO WITHDRAW PLEA-PRO SE FILINGS
: Court must accept pro se filings where motion to withdraw plea sufficiently alleges an adversarial relationship with counsel. Wisniewski v. State, 40 Fla. L. Weekly D2319c (2nd DCA 10/14/15)


APPEAL
: Motion to correct sentencing errors deemed denied because trial court did not rule on motion within sixty days, and thus is preserved for appeal. Yebra v. State, 40 Fla. L. Weekly D2319b (2nd DCA 10/14/15)

PRISON RELEASEE REOFFENDER
: Grand theft is not a PRR sentence. Yebra v. State, 40 Fla. L. Weekly D2319b (2nd DCA 10/14/15)

DISQUALIFICATION: Judge is prohibited from presiding over trial where judge improperly attempted to refute facts alleged in motion to disqualify during hearing on motion. Greenwood v. State, 40 Fla. L. Weekly D2319a (2nd DCA 10/14/15)

STATEMENTS OF DEFENDANT-COERCION
: Murder conviction reversed. Court erred in denying defendant's motion to suppress statements because detectives' promises of leniency and threats of the death penalty amounted to coercion and rendered confession involuntary. Coercive atmosphere and misleading the Defendant about penalties support determination that confession was involuntary. Bussey v. State, 40 Fla. L. Weekly D2315a (2nd DCA 10/14/15)

CHILD CUSTODY-SAME SEX MARRIAGE
: Same sex couple split up after having two children by artificial insemination. No right of visitation by non-parent. Russell v. Pasik, 40 Fla. L. Weekly D2313a (2nd DCA 10/14/15)

QUOTATION
: "As the trial judge characterized it, 'that's the way the ball bounces.'" Wright v. State, 40 Fla. L. Weekly D2304a (1st DCA 10/12/15)

INJUNCTIONS AGAINST VIOLENCE
: Error to grant injunction for protection without affording respondent a full opportunity to present evidence in opposition to petition, including testimony of law enforcement witness. Parise v. Selph, 40 Fla. L. Weekly D2303b (10/12/15)


PUBLIC DEFENDER'S LIEN
: No error in imposing $100 indigent legal assistance lien without informing defendant of right to hearing to dispute amount. Stroup v. State, 40 Fla. L. Weekly D2303a (1st DCA 10/12/15)

PROBATION REVOCATION-HEARSAY-DRUG TEST
: Probation officer's testimony that she had only basic training in drug testing and knew only how to read whether result was positive or negative was not sufficient to establish expertise necessary to consider testimony as competent, non-hearsay evidence. Probation officer's testimony that laboratory test reports were positive for cocaine was hearsay. Question Certified. Dawson v. State, 40 Fla. L. Weekly D2301a (10/12/15)

COMPETENCY
: Where court ordered defendant to undergo competency evaluation, but record does not show that competency hearing was conducted, remand is necessary. Cotton v. State, 40 Fla. L. Weekly D2300a (10/12/15)

PRISON RELEASEE REOFFENDER
: Trial court erred in failing to sentence as a prison releasee reoffender defendant who was released from county jail after he had been sentenced to 454 days' imprisonment with credit for 454 days served in county jail. Defendant's release from custody constituted a constructive release from DOC. Wright v. State, 40 Fla. L. Weekly D2304a (1st DCA 10/12/15)

ABSURDITY DOCTRINE
: Dissent fully discusses the absurdity doctrine. Wright v. State, 40 Fla. L. Weekly D2304a (1st DCA 10/12/15)


ARGUMENT-BOLSTERING
: Prosecutor improperly bolstered testimony of secret service special agent during cross-examination of defendant by asking defendant whether a man entrusted to protect two presidents and a vice president had lied on the stand and by commenting during closing argument on the unlikelihood of the agent lying due to his qualifications. The State may not bolster a witness's credibility by implying that he is less likely to lie because he is a government employee. Johnson v. State, 40 Fla. L. Weekly D2303c (1st DCA 10/12/15)

CLOSING ARGUMENT-VENUE
: Trial court erred when it instructed defense counsel to tell jury that venue was legal rather than factual issue and was not part of jury's purview. Johnson v. State, 40 Fla. L. Weekly D2303c (1st DCA 10/12/15)

PROBATION REVOCATION-DRUG TEST: Probation officer's testimony regarding positive results of field drug test that officer personally conducted, along with hearsay evidence from positive laboratory test on same urine sample, constituted competent, substantial evidence sufficient to support finding that defendant violated probation by possessing illicit drugs. Lengthy discussion. -- Conflict certified. Bell v. State, 40 Fla. L. Weekly D2281a (5th DCA 10/9/15)

GRAND THEFT-FAIR MARKET VALUE: Owner's testimony as to the original cost of stolen tools was insufficient to establish value. Owner's testimony as to replacement cost was insufficient to establish the value of the stolen tools where there was no evidence as to the cost to replace used tools. Ciani v. State, 40 Fla. L. Weekly D2298b (2nd DCA 10/9/15)

SEXUAL PREDATOR: When a court still has jurisdiction over a defendant whose criminal record mandates the court to classify him as a sexual predator, the criminal court may designate the defendant as a sexual predator even though the designation was overlooked at sentencing many years earlier. Cobb v. State, 40 Fla. L. Weekly D2299c (2nd DCA 10/9/15)

MANDATORY MINIMUM-FIREARM
: Twenty-five-year mandatory minimum sentence for inflicting death or great bodily harm by a firearm is illegal because information did not allege that defendant caused great bodily harm. Lewis v. State, 40 Fla. L. Weekly D2292a (2nd DCA 10/9/15)

HABEAS CORPUS: If defendant files petition for writ of habeas corpus raising issue that he was convicted and sentenced to thirty years' imprisonment for escape when he was not lawfully in jail, trial court should accept petition and review it to determine if a manifest injustice has occurred. Blaxton v. State, 40 Fla. L. Weekly D2291c (2nd DCA 10/9/15)

DOUBLE JEOPARDY: Double jeopardy prohibits dual convictions for driving with suspended license and driving without valid license. Double jeopardy violation is fundamental error which can be raised for first time on appeal. Tosado v. State, 40 Fla. L. Weekly D2289b (5th DCA 10/9/15)

ILLEGAL SENTENCE-COSTS: Errors in imposition of fees and costs are not an illegal sentence under rule 3.800(a), but fall under rule 3.800(b), which has time limits for raising the issue. Prior precedent receded from. "There are a variety of errors that may occur in the course of sentencing a criminal defendant. . ." Thorough discussion. Durant v. State, 40 Fla. L. Weekly D2287a (10/9/15)

INJUNCTION-STALKING: Provision in injunction prohibiting respondent from accessing any social media websites is overbroad. "An injunction should never be broader than is necessary to provide the injured party the relief warranted by the circumstances of the particular case." Webb v. Jacobson, 40 Fla. L. Weekly D2286d (5th DCA 10/9/15)

DOUBLE JEOPARDY: Dual convictions for possession of methamphetamine and trafficking in methamphetamine by possessing more than 28 grams based possession of same drugs violated double jeopardy rights. Westerman v. State, 40 Fla. L. Weekly D2286b (5th DCA 10/9/15)

PROBATION REVOCATION: Where, after revoking probation, trial court includes probation as part of new sentence, it must give credit for time previously served on probation if combination of new sanctions and time previously served on probation exceed statutory maximum for underlying offense. Bryant v. State, 40 Fla. L. Weekly D2286a (5th DCA 10/9/15)

RULES OF PROCEDURE-DISCOVERY: A criminal witness subpoena for appearance for a deposition to be "posted by a person authorized to serve process at the witness's residence if one attempt to serve the subpoena has failed." IN RE: AMENDMENTS, 40 Fla. L. Weekly S544a (FLA 10/8/15)

RULES OF PROCEDURE-JUVENILE SENTENCING: New rule 3.781 details the procedure for an evidentiary hearing and the required specific findings prior to imposing a life sentence or a term of years equal to a life sentence. New rule 3.802 addresses the process for applying for a sentence review hearing. IN RE: AMENDMENTS, 40 Fla. L. Weekly S544a (FLA 10/8/15)

AMENDMENTS-JURY INSTRUCTIONS: Amendments to instructions on Vehicular or Vessel Homicide, Lewd or Lascivious Exhibition Over Computer Service, Lewd or Lascivious Exhibition by a Detainee in the Presence of an Employee of a Facility, Burglary, Lottery, others. In re: Standard Jury Instructions, 40 Fla. L. Weekly S543a (FLA 10/8/15)

ARGUMENT: Prosecutor improperly supported state's theory of felony murder with caselaw, but mistrial not required. Prosecutor's statement, "Don't let him get away with this," did not rise to level of fundamental error. Jordan v. State, 40 Fla. L. Weekly S536a (FLA 10/8/15)

DEATH PENALTY
: Florida's capital sentencing scheme is not unconstitutional under Ring v. Arizona (non-unanimous recommendation). Jordan v. State, 40 Fla. L. Weekly S536a (FLA 10/8/15)


SENTENCING: Resentencing required where record indicates that, in pronouncing sentence, trial court assumed defendant was racing at time of accident even though he had been acquitted of that charge at trial. Drinkard v. State, 40 Fla. L. Weekly D2273b (1st DCA 10/8/15)


PLEA WITHDRAWAL: Trial court lacked jurisdiction to consider or rule on motion to withdraw plea filed after notice of appeal. Jones v. State, 40 Fla. L. Weekly D2272b (1st DCA 10/8/15)

SENTENCING: Mandatory minimum 25-year sentence for lewd and lascivious molestation of child under 12 years of age does not preclude gaintime. Melvin v. State, 40 Fla. L. Weekly D2271b (1st DCA 10/8/15)

BOLSTERING: Prosecutor's argument to jury that victim was honest did not constitute improper bolstering because it was a direct counter to defense's argument that victim was dishonest. Ramey v. State, 40 Fla. L. Weekly D2269b (3rd DCA 10/7/15)

SPEEDY TRIAL
: State was entitled to recapture period and was not precluded from prosecuting defendant because it failed to notify defendant of charges before expiration of speedy trial period. Devard v. State, 40 Fla. L. Weekly D2265d (2nd DCA 10/7/15)


DNA TESTING
: Motion seeking testing of crime scene fingerprints was insufficient where defendant alleged that identity was an issue in the cases at issue, but did not include statement as to why it was or how DNA evidence would exonerate him, and where motion was not verified as required by rule. McCloud v. State, 40 Fla. L. Weekly D2263b (4th DCA 10/7/15)

POST CONVICTION RELIEF: In motion for post conviction relief, the Defendant must allege prejudice, i.e., that he would have accepted plea offer. Defendant must be given leave to amend his motion. Carey v. State, 40 Fla. L. Weekly D2262c (4th DCA 10/7/15)

APPEALS: Appellate court lacks jurisdiction to hear appeal by state asserting that trial court erred in failing to hold danger hearing or make written findings required by statute. State v. Gomez, 40 Fla. L. Weekly D2262a (10/7/15)

INJUNCTIONS: Error to deny motion to dissolve domestic violence injunction which was entered 14 years earlier where movant had never violated injunction and testified that he had no intention to make contact. Bush v. Henney, 40 Fla. L. Weekly D2257a (4th DCA 10/7/15)

APPEALS: Appellate court lacks jurisdiction to review trial court's denial of defendant's pro se motions to withdraw plea where notice of appeal was filed more than 30 days after denial of motion. Archie v. State, 40 Fla. L. Weekly D2255a (10/6/15)

COMPETENCY OF DEFENDANT
: Trial court erred in accepting defendant's plea without first conducting competency hearing after expert had determined that defendant was competent. Issue not waived where defense counsel did not agree to defendant's competency nor acquiesce in defendant's desire to proceed. Reynolds v. State, 40 Fla. L. Weekly D2253a (1st DCA 10/6/15)

APPEALS: Although state may appeal order finding child incompetent, appellate court lacks jurisdiction to review, by appeal, the lower court's placement decision. State v. K.S., 40 Fla. L. Weekly D2241a (1st DCA 10/2/15)

LIFE SENTENCE-JUVENILE-HOMICIDE
: Resentencing required pursuant to Horsley. My case. Hooper v. State, 40 Fla. L. Weekly D2238b (5th DCA 10/2/15)

INCARCERATION COST
: Condition of probation requiring defendant to pay cost of incarceration is unlawful. Trial court may only enter a civil restitution lien. Kleintank v. State, 40 Fla. L. Weekly D2238a (5th DCA 10/2/15)

AMENDED INFORMATION
: Trial court did not have authority to strike amended information, which was filed on Friday before a Monday trial. State has right to amend information up to and including time of trial, unless defendant's substantial rights are prejudiced. State v. Mulvaney, 40 Fla. L. Weekly D2237b (5th DCA 10/2/15)

INTERPRETERS
: New Rule created (R. 2.565) governing interpreters for limited purposes and attorney requirements for hiring an interpreter. Particular pleadings are required to hire an attorney for out-of-court interpretation. In Re: Rules, 40 Fla. L. Weekly S522b (FLA 10/1/15)

SEPTEMBER 2015

INVITED ERROR: Where in response to jury's request for transcripts of witness testimony, defendant agreed that court should instruct jurors to rely on their own recollections of the witnesses' testimony, error is invited and thus not reversible error. Meehan v. State, 40 Fla. L. Weekly D2232a (9/30/15)

POST CONVICTION RELIEF
: Claim that trial counsel was ineffective for failing to call defendant's girlfriend as alibi witness was not refuted by record. Argument that counsel made strategic decision not to call witness generally requires evidentiary hearing. Washington v. State, 40 Fla. L. Weekly D2224b (4th DCA 9/30/15)


ATTEMPTED VOLUNTARY MANSLAUGHTER
: Giving of improper jury instruction on attempted voluntary manslaughter, which included "intent to kill" element, as lesser included offense of attempted second degree murder did not constitute fundamental error where defendant was convicted of attempted voluntary manslaughter despite the erroneous instruction. "Had Mr. Ebron actually been convicted of attempted second degree murder, then reversal would have been required. . . due to the lesser crime's faulty instruction." Ebron v. State, 40 Fla. L. Weekly D2213a (1st DCA 9/30/15)


DNA TESTING
: Error to summarily deny facially sufficient rule 3.853 motion requesting retesting of same items that were previously tested without addressing defendant's allegation that new DNA test exists that would produce accurate result showing defendant was not perpetrator. Wright v. State, 40 Fla. L. Weekly D2208a (2nd DCA 9/30/15)

INTERCEPTED COMMUNICATIONS
: Where defendant's girlfriend warned him that she was going to record him on her iPhone, left the phone with him and it continued to record, the subsequent recording of him molesting the girlfriend's daughter is not unlawful. Defendant not entitled to exclusionary rule where the recording was neither surreptitious nor intentional. Belle v. State, 40 Fla. L. Weekly D2206a (2nd DCA 9/30/15)

IMPEACHMENT
: Trial court erred by admitting as impeachment evidence defendant's prior convictions on ground that defense counsel's cross-examination of officer opened door to this evidence. Where State first elicited testimony from the officer disclosing portion of Defendant's statement, Defendant was entitled to have jury hear the remainder of his statement without fear of placing his credibility in issue. Foster v. State, 40 Fla. L. Weekly D2205c (2nd DCA 9/30/15)

INTERPRETERS
: Technical revisions to rules for interpreters. In Re: Amendments, 40 Fla. L. Weekly S525a (FLA 9/30/15)

JUVENILES-LIFE SENTENCE FOR NON-HOMICIDE
: When sentencing defendant to sixty years imprisonment for non-homicide offenses committed when he was a juvenile, trial court erroneously failed to include provision that defendant is entitled to judicial review of sentences after twenty years. Barnes v. State, 40 Fla. L. Weekly D2198a (5th DCA 9/25/15)

DOUBLE JEOPARDY: Separate convictions for traveling to seduce, solicit, or entice minor for sex and use of computer to seduce, solicit, or entice minor for sex based on same conduct violated prohibition against double jeopardy. Double jeopardy issue may be raised for first time on appeal where there was nothing in the record indicating that defendant waived right to claim double jeopardy violation. Meythaler v. State, 40 Fla. L. Weekly D2202a (2nd DCA 9/25/15)

CREDIT FOR TIME SERVED: Where defendant was arrested in Hillsborough County on Pinellas County charges, then arrested the following day on Hillsborough County charges for which she would have been eligible for bond except for no-bond hold for Pinellas County, and defendant remained in Hillsborough County jail for 174 days before she was transferred to Pinellas County; and where sentence in Pinellas County was imposed concurrently "with any other sentence," defendant was entitled to credit for all time spent in Hillsborough County jail, not just the single day between initial arrest and filing of Hillsborough County charges. Gibbs v. State, 40 Fla. L. Weekly D2201a (2nd DCA 9/25/15)

POST CONVICTION RELIEF: Claim that state failed to produce evidence of two prior felony convictions required in order to sentence defendant as habitual felony offender is not cognizable under rule 3.800(a) where entitlement to relief is not clear on face of record. Dixon v. State, 40 Fla. L. Weekly D2197b (5th DCA 9/25/15)


COMPETENCY TO STAND TRIAL
: Where trial court had appointed expert to evaluate defendant's competency to stand trial and directed expert to report to attorney for defendant to assist in preparation of defense, and defense counsel did not raise defense of insanity or assert incompetence to proceed, trial court was not obligated to hold hearing and enter order. Crosby v . State, 40 Fla. L. Weekly D2197a (5th DCA 9/25/15)


AMENDMENT TO RULES-LAWYER REFERRAL SERVICES: Proposed rules for Lawyer Referral Services rejected, stronger rules requested which would preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. In re: Amendments, 40 Fla. L. Weekly S507a (FLA 9/24/15).

AMENDMENT TO JURY INSTRUCTIONS: Welfare Fraud instructions amended. A special instruction may be warranted in cases in which repayment of public assistance wrongfully obtained is relevant to the issue of whether the defendant acted with the requisite intent. In Re: Standard Jury Instructions, 40 Fla. L. Weekly S506a (FLA 9/24/15)

POST CONVICTION RELIEF: Trial court improperly motion for relief where defendant claimed counsel failed to call a witness who would have explained the presence of defendant's fingerprints and for misadvice and failure to ensure defendant's right to testify about the prints. Robinson v. State, 40 Fla. L. Weekly D2190a (3rd DCA 9/24/15)

DOUBLE JEOPARDY-CHILD PORN-UNIT OF PROSECUTION: Pursuant to "a/any" test, defendant's transmission of multiple images via a file-sharing program constituted only a single violation, rather than one count for each individual image contained transmitted. State v. Losada, 40 Fla. L. Weekly D2187a (4th DCA 9/24/15)


LESSER INCLUDED OFFENSE: Trial court erred by reducing charge from aggravated battery to attempted aggravated battery where state failed to present evidence that defendant intended to cause victim great bodily harm -- Trial court should have reduced charge to simple battery. Smith v. State, 40 Fla. L. Weekly D2185a (4th DCA 9/24/15)

DEATH PENALTY-AGGRAVATING CIRCUMSTANCES
: No improper doubling resulted from trial court's use of violent nature of prior felony conviction to support both weight assigned to felony probation aggravator and to support applying the prior violent felony aggravator. Cannon v. State, 40 Fla. L. Weekly S509a (FLA 9/24/15)

DEATH PENALTY-VICARIOUS LIABILITY: Heinous, atrocious, and cruel aggravator was properly applied, although victim may have been stabbed by codefendant, where defendant personally orchestrated method of murder and initiated plan for the crime and evidence proved defendant was sole catalyst and dominant actor in the crimes. Cannon v. State, 40 Fla. L. Weekly S509a (FLA 9/24/15)

JURY QUESTIONS: Trial court did not abuse its discretion when it responded to ambiguous question posed by jury after it began its deliberations without clarifying the question. Cannon v. State, 40 Fla. L. Weekly S509a (FLA 9/24/15)

APPEALS: Appellate court does not have jurisdiction to consider claim that trial judge erred in denying motion to disqualify judge where order denying motion to disqualify was rendered after anotice of appeal was filed, then jurisdiction was relinquished, and only then did Defendant ask for recusal. Defendant should have filed an amended notice of appeal, but that would have failed on its merits. Davis v. State, 40 Fla. L. Weekly D2180a (1st DCA 9/21/15)

POST CONVICTION RELIEF: Error to summarily deny claim that counsel was ineffective for advising defendant not to testify at trial because counsel could adequately present his claim of self-defense in closing argument. Watson v. State, 40 Fla. L. Weekly D2179b (1st DCA 9/21/15)

DOUBLE JEOPARDY: A negotiated plea and sentence precluded an appeal of convictions and sentences on double jeopardy grounds. Thornton v. State, 40 Fla. L. Weekly D2176a (2nd DCA 9/18/15)

AGGRAVATED BATTERY: Trial counsel provided ineffective assistance by failing to object to omission of jury instruction on justifiable use of nondeadly force (in this case a flashlight). There is reasonable probability that outcome of trial would have been different but for unsatisfactory assistance. McComb v. State, 40 Fla. L. Weekly D2175a (2nd DCA 9/18/15)


SEARCH AND SEIZURE-CELL PHONE: Officers who had been informed by law enforcement in foreign state that defendant had transmitted child pornography to a criminal defendant in that state, had been informed of the likelihood that a smartphone on defendant's person could contain direct evidence of that criminal activity, and had observed what appeared to be defendant's attempt to elude law enforcement officers had reasonable justification for seizure of smartphone. Hanifan v. State, 40 Fla. L. Weekly D2173b (2nd DCA 9/18/15)

DOUBLE JEOPARDY
: Jeopardy attaches when defendant began serving sixty-month sentences on two counts. Court cannot increase period of incarceration on these when correcting a third count. Story v. State, 40 Fla. L. Weekly D2172d (2nd DCA 9/18/15)


DOUBLE JEOPARDY
: Double jeopardy precludes separate convictions and sentences for two counts of improper exhibition of weapon based on single act. Kanagie v. State, 40 Fla. L. Weekly D2172a (9/18/15)

JUDGMENT OF ACQUITTAL
: Limited, boilerplate motions for judgment of acquittal, which are of technical and pro-forma nature, are inadequate to preserve sufficiency of evidence claim for appellate review. Freeman v. State, 40 Fla. L. Weekly D2171c (5th DCA 9/18/15)

JUDGMENT OF ACQUITTA
L: Limited, boilerplate motions for judgment of acquittal, which are of technical and pro-forma nature, are inadequate to preserve sufficiency of evidence claim for appellate review. Freeman v. State, (5th DCA 9/18/15)

PROBATION REVOCATION
: Error to find that defendant violated condition of probation prohibiting her from possessing a weapon by being in possession of a folding pocketknife with a two-inch blade. A common pocketknife is not a weapon, and a pocketknife carried for protection is not necessarily a weapon. Messineo v. State, 40 Fla. L. Weekly D2168a (5th DCA 9/18/15)

AMENDMENTS: New rules created for truancy proceedings. In re: Rules of Juv. Procedure, 40 Fla. L. Weekly S485a (FLA 9/17/15)

AMENDMENTS: Fees for legal services clarified. Definitions for the terms "retainer," "flat fee," and "advance fee." In re: Amendments, 40 Fla. L. Weekly S482a (FLA 9/17/15)

COSTS: When minimum fees and costs required by statute are imposed, no hearing is necessary or appropriate. Court recedes from any decisions holding that notice and hearing are required before imposition of minimum public defender's lien mandated by statute. Mills v. State, 40 Fla. L. Weekly D2165b (1st DCA 9/17/15)


DRIVER'S LICENSE SUSPENSION-REFUSAL
: Circuit court, in its appellate capacity, erred by relying on the video recording that contradicted the testimony and live testimony on which the hearing officer relied. DHSMV v. Baird, 40 Fla. L. Weekly D2160a (3rd DCA 9/16/15)


CONSECUTIVE SENTENCES: Life sentences for armed burglary, armed sexual battery, and armed kidnapping were lawful sentences without reclassification or enhancement, and therefore may be lawfully stacked. Jackson v. State, 40 Fla. L. Weekly D2158a (3rd DCA 9/16/15)


SAME-SEX MARRIAGE: "In light of the recent decision of the Supreme Court. . .in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), we reverse the determination of the Residency Appeals Committee . . . denying the appellant's request for classification as a Florida resident based on his Massachusetts marriage to his same-sex spouse." Dousset v. FAU, 40 Fla. L. Weekly D2155a (4th DCA 9/16/15)


DEPORTATION CONSEQUENCES:
Motion alleging that defense counsel did not inform defendant at all whether plea carried risk of deportation was facially sufficient. Trial court's warning during plea colloquy that plea "probably" would result in deportation is insufficient. Defendant's plea to offense of carrying concealed firearm for which trial court's warning that plea "probably" would result in deportation may have been insufficient. Any alien who at any time after admission is convicted under any law of carrying any weapon which is a firearm in violation of any law is deportable. Cooke v. State, 40 Fla. L. Weekly D2149a (4th DCA 9/16/15)


APPEALS
: State may not appeal order modifying community control on grounds that the statutes governing a "violent felony offender of special concern" do not allow continuation of defendant's community control absent certain factual findings. The state is only permitted to appeal an illegal sentence or a sentence below the lowest permissible sentence, and an order modifying community control is not a sentence within the meaning of the statute. State v. Folkes, 40 Fla. L. Weekly D2148a (4th DCA 9/16/15)


POST CONVICTION RELIEF: Claim that counsel erroneously advised defendant that BB gun constituted a deadly weapon because it was used during crimes and that is why he ple to carjacking with a deadly weapon requires an evidentiary hearing. Winbush v. State, 40 Fla. L. Weekly D2146a (9/16/15)

POST CONVICTION RELIEF: Claim that counsel promised defendant he would receive youthful offender sentence if he entered plea and advised him that court would not impose life or even lengthy sentence because of various factors and that defendant would not have entered open plea had he been properly advised that he could receive lengthy sentence was not conclusively refuted by plea form. Voshell v. State, 40 Fla. L. Weekly D2145a (1st DCA 9/16/15)


SENTENCING: Trial court's consideration of defendant's lack of remorse and failure to take responsibility for his actions did not constitute fundamental error because it occurred in the context of the defendant's motion for downward departure and his own injection of the issue of his rehabilitation into the case. Rankin v. State, 40 Fla. L. Weekly D2139b (4th DCA 9/16/15)

POST CONVICTION RELIEF: Circuit court acting in its appellate capacity erred by denying without hearing 3.850 motion based on newly discovered evidence where record did not show conclusively that defendant was entitled to no relief. Dissent: "I respectfully dissent, because Petitioner is attempting to challenge a misdemeanor battery conviction and sentence imposed twelve years ago. There must come a time in which judicial labor in a case must end." Smith v. State, 40 Fla. L. Weekly D2136a (1st DCA 9/11/15)

SEARCH AND SEIZURE
: Officer did not act improperly by detaining Defendant where he gave three different addresses and admitted to having a knife on his person. Vaughn v. State, 40 Fla. L. Weekly D2135b (1st DCA 9/11/15)


POST CONVICTION RELIEF
: Error to deny relief on claim that defendant would not have entered open plea to five counts if he had not been assured that expert witness was going to interview him and testify in mitigation at his sentencing, neither of which actually took place. Graham v. State, 40 Fla. L. Weekly D2135a (1st DCA 9/11/15)



VOIR DIRE
: Trial court erred by limiting defense counsel's voir dire into jurors' willingness to accept an entrapment defense. Trial court's reading of definition of entrapment and general inquiry from the venire whether that definition changed their ability to be fair and impartial did not eliminate defense counsel's right to examine jurors. Harrison v. State, 40 Fla. L. Weekly D2133a (1st DCA 9/11/15)

QUOTATION
: It is apodictic that a meaningful voir dire is critical to effectuating an accused's constitutionally guaranteed right to a fair and impartial jury. Harrison v. State, 40 Fla. L. Weekly D2133a (1st DCA 9/11/15)


CONSTRUCTIVE POSSESSION
: Evidence was sufficient to establish that defendant had exclusive control over driver's side door panel where blister packs were found. Presence of digital scales, bottle of MSM, a substance used in manufacture of methamphetamine, and purported drug transaction receipt containing defendant's nickname were sufficient to create question of fact about defendant's intent to use pseudoephedrine to manufacture a controlled substance. JOA required for ammo in the center console. Smith v. State, 40 Fla. L. Weekly D2131b (1st DCA 9/11/15)


JUVENILES-JURISDICTION
: Trial court had jurisdiction to commit juvenile to non-secure residential program after juvenile reached 19th birthday where juvenile entered guilty plea to lewd and lascivious molestation charge and was passed for disposition temporarily based on agreement that he would complete treatment program for juvenile sexual offenders with opportunity to have case dropped if he completed program, and as part of agreement, juvenile consented to extension of court's jurisdiction until juvenile reached 21. T.D. v. State, 40 Fla. L. Weekly D2131a (1st DCA 9/11/15)

JURY INSTRUCTIONS-INSANITY: Standard jury instruction that clear and convincing evidence was evidence that produces a "firm belief, without hesitation about the matter in issue," did not improperly raise defendant's burden of proof on insanity defense from clear and convincing evidence to "beyond reasonable doubt." Pewo v. State, 40 Fla. L. Weekly D2128c (2nd DCA 9/11/15)

PROBATION REVOCATION-HEARSAY
: Error to find defendant violated probation by changing residence where these violations were supported only by hearsay testimony by probation officer that the owner told her defendant did not live there. Mullins v. State, 40 Fla. L. Weekly D2128a (2nd DCA 9/11/15)

EVIDENCE-LEWD OR LASCIVIOUS: Trial court did not err in admitting Williams rule testimony of four other minor victims. Wong v. State, 40 Fla. L. Weekly D2122e (2nd DCA 9/11/15)

PRESERVATION OF ERROR
: Defense counsel waived request for instruction as to permissive lesser included offense where trial court did not explicitly deny request and defense counsel otherwise failed to object contemporaneously to trial court's failure to give the requested instruction. "Defense counsel did not file any proposed jury instructions, and it is apparent from the transcript of the charge conference that defense counsel had no intention of requesting an instruction on any lesser included offenses prior to the conference. After receiving some guidance from the State and reviewing the instructions book, defense counsel stumbled upon the instruction for committing an unnatural and lascivious act." Wong v. State, 40 Fla. L. Weekly D2122e ( 2nd DCA 9/11/15)


DICTIONARY: Lengthy discussion of the meaning of "I understand." Wong v. State, 40 Fla. L. Weekly D2122e (2nd DCA 9/11/15)

DEFENSE ATTORNEY DISSED
: "The dissent surmises that "[d]efense counsel might have been more prepared for the charge conference, but he knew better than that." . . .(N)othing in the transcript or record reflects any . . basis for the statement that counsel "knew better than that." Wong v. State, 40 Fla. L. Weekly D2122e (2nd DCA 9/11/15)


RESISTING WITHOUT VIOLENCE
: Officers were not in the lawful execution of legal duty when they entered the residence after responding to report that a man and woman were in heated verbal altercation outside residence when the man physically forced the woman inside residence, and who viewed defendant and his girlfriend through an open rear window, directed the pair to go to the front door, and observed the two stand up and leave the bedroom, and the girl came out but the Defendant refused to come out. Absent consent, a search warrant, or an arrest warrant, a police officer may enter a private home only when there are exigent circumstances for the entry. JOA required. Durham v. State, 40 Fla. L. Weekly D2121a (5th DCA 9/11/15)

APPELLATE COURT CALLS B.S.
: Officers justified their entry into a private home without a warrant on the belief that the Defendant was in peril. "The only logical explanation given by an officer at trial as to the reason for his subjective belief that Durham may have been in peril was the K-9 officer's testimony that once he had threatened to force Durham out using his K-9, this threat should have prompted any rational and healthy person to exit the residence in order to avoid the painful experience of being attacked by a police dog. . .We . . . note the obvious erosion to Fourth Amendment protection that would occur if the courts were to sanction a procedure by which police could manufacture an exigency by threatening physical harm to a person in his or her home unless they exit." Durham v. State, 40 Fla. L. Weekly D2121a (5th DCA 9/11/15)


DOUBLE JEOPARDY
: Separate convictions for robbery and assault involving single victim violated double jeopardy rights. However, defendant waived double jeopardy claim with respect to separate robbery and assault convictions which were based on negotiated plea. Delgado v. State, 40 Fla. L. Weekly D2119b (5th DCA 9/11/15)

APPEALS:
Although trial court correctly treated rule 3.800(a) motion for additional jail credit as rule 3.801 motion, because motion was filed during pendency of direct appeal of judgment and sentence, trial court lacked jurisdiction to rule on motion. Stewart v. State, 40 Fla. L. Weekly D2118a (5th DCA 9/11/15)


SEARCH AND SEIZURE-VEHICLE STOP
: Officer had reasonable suspicion justifying investigatory stop of vehicle where officer knew that registered owner had suspended license. State v. Laina, 40 Fla. L. Weekly D2117d (5th DCA 9/11/15)

JUDICIAL ATTIRE
: New Rule 2.340: "During any judicial proceeding, robes worn by a judge must be solid black with no embellishment." In re: Amendment, 40 Fla. L. Weekly S473a (FLA 9/10/15)

POST CONVICTION RELIEF
: Trial court erred in summarily denying claim that counsel was ineffective for advising defendant that if he chose to testify in his own defense the jury would learn of the nature of his prior offenses. Williams v. State, 40 Fla. L. Weekly D2116a (3rd DCA 9/9/15)

NEWLY DISCOVERED EVIDENCE
: Trial court did not err in denying defendant's motion to vacate his guilty plea entered over thirty-one years previously on the basis of newly discovered evidence where defendant did not satisfy his burden of showing that the claimed newly discovered evidence was unknown to defendant, his trial counsel, and the trial court within the two-year rule 3.850 window, and that the evidence could not have been discovered by the use of due diligence. Berry v. State,40 Fla. L. Weekly D2108a (3rd DCA 9/9/15)


INVOLUNTARY COMMITMENT
: Defendant is a chronically homeless criminal defendant, who was thin, unstable in gait, dirty, and hallucinatory to the point of having a large blowfly on his index finger, which he was petting as one would pet a dog or a cat, and who was not restorable to competency to stand trial. Trial court departed from essential requirements of law by requiring DCF to place, in a secure, locked facility to prevent him from wandering off. Because defendant was not eligible for commitment under Baker Act, the only lawful alternative available to trial court was to release defendant. DCF v. C.Z., 40 Fla. L. Weekly D2105a (3rd DCA 9/9/15)


SENTENCING-PRR
: After fingerprint evidence, introduced to establish defendant's qualification for PRR sentencing, proved inconclusive, it was error to compel defendant to testify as to his release date in order to establish his qualification for PRR sentencing. Louima v. State, 40 Fla. L. Weekly D2100a (4th DCA 9/9/15)


DOUBLE JEOPARDY-POSSESSION OF CHILD PORN
: Conviction for multiple counts for possession of photographs depicting sexual conduct by a child for multiple photographs depicting the same conduct that occurred on the same date did not violate prohibition against double jeopardy. Pardue v. State, 40 Fla. L. Weekly D2093b (1st DCA 9/9/15)

JURORS
: Defendant is entitled to a mistrial if an alternate juror is present for any part of jury deliberations, even if the alternate does not participate in the discussions. Boblitt v. State, 40 Fla. L. Weekly D2093a (1st DCA 9/9/15)

DISCOVERY VIOLATION SANCTION: Trial court erred in dismissing case after it excluded testimony of alleged victim as a sanction for purported discovery violation and what court believed were affirmative misrepresentations to court and opposing counsel without failing to consider less severe alternatives. Sullivan v. State, 40 Fla. L. Weekly D2079a (2nd DCA 9/4/15)


SPEEDY TRIAL
: Trial court erred in granting defendant's motion for discharge based on speedy trial rule where defendant had never filed demand for speedy trial. State v. Templar-O'Brien, 40 Fla. L. Weekly D2077a (2nd DCA 9/4/15)

LIMITATION OF ACTIONS
: No diligent search where State failed to present any evidence that would explain why the only attempts to contact defendant occurred eleven months apart and why it searched limited number of readily available sources of public information only once during nearly four-year period. Defendant entitled to discharge. Norton v. State, 40 Fla. L. Weekly D2076a (2nd DCA 9/4/15)

EVIDENCE
: Trial court erred in admitting into evidence an inflammatory photograph of victim's body in intersection where crash occurred where defendant and state mutually stipulated to identity of deceased and fact that victim had died from injuries sustained when he was ejected from his vehicle after vehicle was struck by defendant's car. Ramroop v. State, 40 Fla. L. Weekly D2065a (9/4/15)


ARGUMENT
: Comments by prosecutor disparaging defense counsel and theory of defense, although improper, did not rise to level of fundamental error and were not preserved for appellate review by objection. Ramroop v. State, 40 Fla. L. Weekly D2065a (9/4/15)


ATTEMPTED SECOND-DEGREE MURDER OF LAW ENFORCEMENT OFFICER
: Because jury instruction pertaining to jury's special finding that victim was law enforcement officer engaged in performance of duties at time of offense failed to also require the jury to find that defendant had knowledge of victim's status, jury's special finding must be vacated. Any fact that elevates defendant's maximum possible sentence, other than prior conviction, must be found beyond reasonable doubt by jury, rather than by judge. Ramroop v. State, 40 Fla. L. Weekly D2065a (9/4/15)

CIRCUMSTANTIAL EVIDENCE
: Evidence that drugs were found in bedroom of defendant's sister's home where defendant had slept on several occasions, in close proximity to or in the same containers with defendant's personal items, and that defendant's fingerprint was found on baggie of cocaine in bedroom, was sufficient to prove defendant's constructive possession of contraband. Knight v. State, 40 Fla. L. Weekly D2026a (1st DCA 9/31/1)


SEARCH AND SEIZURE-EXIGENT CIRCUMSTANCES
: Warrantless search under hood of truck parked in defendant's front yard, after officer observed a controlled fire burning on the side of residence and smelled odor of lighter fluid emanating from truck was lawful. Deception does not make implied consent coerced. State v. Smith, 40 Fla. L. Weekly D2024a (1st DCA 9/3/15)

COSTS
: Error to impose discretionary costs, including discretionary fine and surcharge, without affording defendant notice and opportunity to be heard. Welch v. State, 40 Fla. L. Weekly D2023d (1st DCA 9/31/15)

DRIVER'S LICENSE SUSPENSION
: Circuit court applied incorrect law when it improperly reweighed evidence concerning lawfulness of licensee's detention and arrest, and overturned hearing officer's order upholding suspension of driver's license. DHSMV v. Kamau, 40 Fla. L. Weekly D2023c (9/3/15)

REVOCATION OF CONDITIONAL RELEASE
: Circuit court departed from essential requirements of law when it summarily denied relief on claim that defendant requested as evidence GPS data documenting his movements on the day in question. Lowe v. State, 40 Fla. L. Weekly D2064a (1st DCA 9/3/15)


STAND YOUR GROUND
: Instruction referencing a "duty to retreat" if defendant was engaged in unlawful activity was an incorrect statement of then-existing law concerning defendant's defense and cannot be deemed harmless under facts of case. Ford v. State, 40 Fla. L. Weekly D2062a (1st DCA 9/3/15)


POST CONVICTION RELIEF
: Misadvise of counsel is grounds for withdrawing plea, both because it is ineffective assistance of counsel and because it renders the plea involuntary. State v. Yeomans, 40 Fla. L. Weekly D2061a (1st DCA 9/3/15)

ABANDONMENT OF DEFENSE
: Trial court's erroneous ruling that it would allow the State to reopen its case if the Defendant insisted on a self-defense instruction did not cause the Defendant to abandon the defense. Robinson v. State, 40 Fla. L. Weekly D2059a (9/3/15)

POST CONVICTION RELIEF
: Error to summarily deny claim that counsel was ineffective for failure to timely convey state's plea offer to defendant. Maxwell v. State, 40 Fla. L. Weekly D2051a (9/2/15)

SEARCH AND SEIZURE
: Stop of vehicle was unauthorized where defendant's failure to maintain single lane did not endanger officers or anyone else. Peeples v. State, 40 Fla. L. Weekly D2046a (2nd DCA 9/2/15).


POSSESSION OF FIREARM BY FELON
: Evidence that detectives observed defendant open trash can lid, look around, remove something from his right side, place something inside trash can, and look over both shoulders before shutting trash can; and observed defendant return to trash can a few minutes later, open it and look in, and close the lid; and evidence that officer subsequently retrieved loaded gun from trash can was inconsistent with defendant's claim that he had merely thrown garbage away and was sufficient to support denial of motion for judgment of acquittal. Wright v. State, 40 Fla. L. Weekly D2043a (4th DCA 9/2/15)

POSSESSION OF FIREARM BY FELON
: State firearm examiner's equivocal testimony that it was possible firearm was an antique but that she could not say for certain did not establish that weapon was an antique. Wright v. State, 40 Fla. L. Weekly D2043a (4th DCA 9/2/15)


INEVITABLE DISCOVERY
: Search is lawful based on inevitable discovery because the officer who made valid stop would have asked defendant for driver's license, which would have led to discovery that license was revoked and to defendant's arrest and the subsequent search Mendoza v. State, 40 Fla. L. Weekly D2042b (4th DCA 9/2/15)

REVOCATION OF PROBATION
: Revocation is based on non-hearsay where Defendant admitted to drug use and was discharged from treatment. Musto v. State, 40 Fla. L. Weekly D2032a (9/2/15)


WITHDRAWAL OF PLEA
: Trial court improperly summarily denied pro se motion to withdraw plea, which sought appointment of counsel and alleged defendant was unaware his plea included admissions which significantly impacted his sentence. Passino v. State 40 Fla. L. Weekly D2031a (4th DCA 9/2/15)

AUGUST 2015

HEARSAY: An autopsy report is testimonial hearsay under the Confrontation Clause. Defendant's right to confront witnesses was violated when trial court allowed admission of autopsy report without requiring testimony of medical examiner who prepared the autopsy report. Surrogate medical examiner who did not perform or participate during the autopsy may not testify as to the cause of death. Conflict certified. Rosario v. State, 40 Fla. L. Weekly D2015a (5th DCA 8/28/15).

QUOTATION: Thomas Jefferson quoted on Doctrine of Original Intent: "On every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." Rosario v. State, 40 Fla. L. Weekly D2015a (5th DCA 8/28/15).

DOUBLE JEOPARDY
: Conviction of unlawful use of two-way communication device to facilitate a felony and use of a computer to solicit a parent/child was a violation of double jeopardy. Double jeopardy violation was not waived by entry of open plea. Holubek v. State, 40 Fla. L. Weekly D2014b (5th DCA 2015)

SENTENCING-SCORESHEET: Error to add eighty points on scoresheet for sex penetration where jury did not make a specific finding of penetration rather than union. Lakey v. State, 40 Fla. L. Weekly D2014a (5th DCA 8/28/1)


APPEALS: Trial judge complies with appellate court's mandate to suppress Defendant's statement. State appeals. Appellate Court rules that such an appeal is not authorized, and if treated as a petition for cert, fails. Trial judge does not depart from essential requirements of law by obeying the appellate court's mandate. State v. Wright, 40 Fla. L. Weekly D2013a (5th DCA 8/28/15)

COMPETENCY OF DEFENDANT
: Court may not commit Defendant as incompetent on the basis of her abnormal behavior without the benefit of any expert evaluations, reports, or testimony. DCF v. Lotton,40 Fla. L. Weekly D2011a (5th DCA 8/28/15)


SENTENCING-DEPARTURE: Given Defendant's lengthy history, Court erred in imposing downward departure sentence on the ground that defendant's DWLS was an isolated incident. General objection preserves the issue for appeal. State v. Redden, 40 Fla. L. Weekly D2010a (5th DCA 8/28/15)

DOUBLE JEOPARDY: Defendant steals two laptops from different victims at different times, then pawns them both at the same time. Defendant is properly convicted of two counts of Dealing in Stolen Property. Bradley v. State, 40 Fla. L. Weekly D2009a (5th DCA 8/28/15)

QUOTATION: "When this or any court issues an order directing an attorney to respond within x number of days, the attorney is obligated to file a response within x number of days, not within x + 10 days or whatever other period of time happens to suit the attorney's schedule. This specific principle may not have been covered in law school or tested on the bar exam, but it would seem to be axiomatic. Cooper v. State, 40 Fla. L. Weekly D2007a (2nd DCA 8/28/15)

RULES OF APPELLATE PROCEDURE: No more staples in appellate briefs. In re: Amendments, 40 Fla. L. Weekly S462a (/27/15)

RULES OF APPELLATE PROCEDURE: Longer briefs permitted in death penalty cases. In re: Amendments, 40 Fla. L. Weekly S461a (8/27/15)

DEATH PENALTY: HAC for multiple stab wounds proper even where evidence was "ambiguous as to whether more than one person was present during the murder." (A knife with some other dude's DNA was found under the Victim's body.) Death penalty not disproportionate. Jackson v. State, Fla. L. Weekly S451a (FLA 8/27/15)

CIRCUMSTANTIAL EVIDENCE: DNA and one fingerprint are sufficient circumstantial evidence to support murder conviction. Where three people were seen at the scene, but Defendant did not argue that the other guy did it, Defendant cannot argue that theory on appeal. Jackson v. State, Fla. L. Weekly S451a (FLA 8/27/15)

INDEPENDENT ACT
: Trial court must give the independent act instruction as a defense to first-degree murder, where there was some evidence supporting the defendant's theory of defense claiming she did not know what her co-felons were doing when they took the victim into the car. Rodriguez v. State, 40 Fla. L. Weekly D1993a (4th DCA 8/26/15)

DURESS: Where the defendant has presented evidence to support a duress theory of defense to the underlying felony (here, kidnapping) in a felony murder case, the defendant is entitled to the duress instruction as a defense to felony murder. Rodriguez v. State, 40 Fla. L. Weekly D1993a (4th DCA 8/26/15)

HEARSAY-STATEMENTS AGAINST PENAL INTEREST: Statements of codefendant were not admissible under statement-against-interest hearsay exception because they were not sufficiently self-incriminating to qualify as statements against interest and because there were no corroborating circumstances indicating trustworthiness of statements. Dort v. State, 40 Fla. L. Weekly D1990b (8/26/15)

COMMENT ON SILENCE
: It is not an improper comment on silence for detective and prosecutor to (falsely) imply that they terminated the interview, when in fact the Defendant invoked his 5th Amendment privilege. Robinson v. State, 40 Fla. L. Weekly D1990a (4th DCA 8/26/15)

JUVENILES: Trial court lacked authority in instant case to sua sponte dismiss delinquency petition over objection of state before trial court had reached phase of proceedings where there was an adjudication on the merits of the case. State v. M.A., 40 Fla. L. Weekly D1985a (4th DCA 8/26/15)

LEWD AND LASCIVIOUS-OTHER WRONGFUL ACTS: Where defendant was charged with lewd or lascivious conduct on his step-daughter, trial court did not err in admitting testimony of defendant's two adult daughters regarding similar prior lewd or lascivious acts committed on them by defendant, but court abused discretion by admitting testimony of the adult daughters regarding dissimilar sexual batteries and attempted sexual batteries committed on them by defendant. Cotton v. State, 40 Fla. L. Weekly D1975a (3rd DCA /26/15)

SENTENCING-HABITUAL OFFENDER: Court properly denied claim that imposition of habitual offender sentence was illegal because trial court improperly relied upon photographic evidence and prison records, rather than fingerprint comparisons, in establishing that defendant had requisite prior convictions to qualify him for sentencing as habitual offender. Monroe v. State, 40 Fla. L. Weekly D1969b (3rd DCA /26/15)

ABANDONMENT
: Defense has burden to prove abandonment of attempt to commit theft by preponderance of evidence. Harriman v. State, 40 Fla. L. Weekly D1955a (1st DCA 8/24/15)

RETURN OF PROPERTY: Error to summarily deny defendant's motion for return of cell phone seized by sheriff's office without evidentiary hearing or attachment to order showing no entitlement to relief. Attachment to order did not conclusively refute defendant's allegation that cell phone is not being held for evidentiary purposes. Nofsinger v. State, 40 Fla. L. Weekly D1954b (1st DCA 8/24/15)

TAMPERING WITH VICTIM: Evidence that defendant broke battery victim's cell phones in half while victim was attempting to use cell phones during altercation was insufficient to support conviction for tampering with victim or witness where there was no evidence that victim was attempting to contact law enforcement. McCray v. State, 40 Fla. L. Weekly D1954a (1st DCA 8/24/15)

DOUBLE JEOPARDY: Conviction for witness tampering and for being principal to perjury based on single incident violated double jeopardy because elements of tampering crime were subsumed in principal-to-perjury crime. Mays v. State, 40 Fla. L. Weekly D1949a (2nd DCA 8/21/15)

LIFE SENTENCE FOR JUVENILE-NON-HOMICIDE: Sixty-five-year sentences for armed burglary, kidnapping, and sexual battery convictions committed when defendant was 16 years old did not provide defendant with meaningful opportunity for release. Nevertheless, on resentencing the Defendant may be sentenced to life in prison. Morris v. State, 40 Fla. L. Weekly D1948a (2nd DCA 8/21/15)

INTERSTATE AGREEMENT ON DETAINERS: Defendant is not entitled to discharge under speedy trial protections of IADA where, at the time of defendant's IADA request, even though a detainer had been filed, no indictment, information, or complaint yet existed that would trigger IADA's application. Further, the notice must be served on the prosecutor. Dozier v. State, 40 Fla. L. Weekly D1946g (1st DCA 8/21/15)

CREDIT FOR TIME SERVED: Error to deny rule 3.801 motion, although motion was not under oath and failed to allege all necessary information, without attaching portions of record refuting claim to additional credit or granting defendant opportunity to amend. Daymon v. State, 40 Fla. L. Weekly D1946a (5th DCA 8/21/15)

DUI-BLOOD ALCOHOL TEST: Error to suppress blood results when skin puncture site was not cleaned with an antiseptic swap. Strict compliance with rules is not required. State v. Kleiber, 40 Fla. L. Weekly D1944a (5th DCA 7/21/15)

DOUBLE JEOPLARDY
: Separate convictions and sentences for possessing and discharging a destructive device and arson of a dwelling with discharge of a destructive device violated double jeopardy. Schoonover v. State, 40 Fla. L. Weekly D1943a (5th DCA 8/21/15)


SPEEDY TRIAL
: State filed a charge of grand theft. More than 90 days later, State filed a petit theft charge in county court for same act, then nolle prossed the felony. The 90 day misdemeanor speedy trial rule applies, not the felony 17 day rule. State not entitled to recapture. When the state nolle prosses a felony case in circuit court and files it as a misdemeanor in county court, the 175-day speedy trial rule does not apply. State v. Borko, 40 Fla. L. Weekly D1934a (5th DCA 8/19/15)

REVOCATION OF PROBATION: A violation of probation for an alleged battery may be proven by evidence through a hearsay statement of the victim and non-hearsay testimony of the direct observation of the victim's injury and the attendant circumstances. Moore v. State, 40 Fla. L. Weekly D1932c (4th DCA 8/19/15)

SENTENCING-MANDATORY MINIMUM: Trial court had no discretion to grant downward departure from three-year mandatory minimum sentence under 10-20-Life law where defendant used firearm during aggravated assault. State v. Bray, 40 Fla. L. Weekly D1926a (4th DCA 8/19/15)


MATERIALS IN JURY ROOM: No abuse of discretion in allowing jury a laptop with videos of defendant's statements to review in jury room without judge being present during playback Thorne v. State, 40 Fla. L. Weekly D1925a (4th DCA 8/19/15)


SEARCH AND SEIZURE-STALENESS
: Detective had reasonable suspicion to stop defendant's vehicle based on victim's 40-day-old description of vehicle and license plate which were near, but not exact, matches to defendant's vehicle. Items which are consumable, such as drugs, are more likely to become stale sooner than non-consumable items, which do not have the same staleness concerns. Tucker v. State, 40 Fla. L. Weekly D1924a (4th DCA 8/19/15)


RESTITUTION
: Victim's testimony that he thought repairs to his home would be total of $400 was inadequate where victim did not base this testimony on any estimate and did not describe what repairs needed to be made . Court erred in decreasing restitution based on arbitrary depreciation. D.D. v. State, 40 Fla. L. Weekly D1916b (4th DCA 8/19/15)

ATTEMPTED FELONY MURDER: Question certified: In light of the legislature's creation of section 782.051, which created a crime called "attempted felony murder," does the state need to specifically allege the elements of and cite to section 782.051 or does an allegation of attempted premeditated murder automatically include attempted felony murder, just as an indictment for premeditated murder automatically includes felony murder? Weatherspoon v. State, 40 Fla. L. Weekly D1915a (4th DCA 8/19/15)

SEARCH AND SEIZURE: Scooter driver who kept bumping sidewalk curb while talking to pedestrian lawfully stopped for careless driving and on suspicion of DUI. Baden v. State, 40 Fla. L. Weekly D1913b (4th DCA 2015)

STAND YOUR GROUND-JURY INSTRUCTION: Court erred in giving inconsistent instruction that defendant had no duty to retreat if he was not engaged in unlawful activity and also that use of deadly force was not justified unless he had exhausted every reasonable means to escape danger. Tramel v. State, 40 Fla. L. Weekly D1907a (1st DCA 8/14/15)


INCONSISTENT VERDICT: Verdict finding defendant guilty of aggravated assault but finding that defendant did not actually possess a firearm was not inconsistent where there was dispute whether the weapon possessed was a firearm. State v. McGhee, 40 Fla. L. Weekly D1906a (1st DCA 8/14/15)


INJUNCTION: Injunction for protection granted. Evidence was sufficient to support finding that relationship between 14-year-old boy and 14-year-old girl was a dating relationship. "We grown-ups may scoff, but a relationship like that described by the victim, when viewed in the context of two eighth-graders, is reasonably considered dating." Floyd v. Walker-Gray, 40 Fla. L. Weekly D1905a (1st DCA 8/14/15)


PROBATION REVOCATION-HEARSAY: Defendant charged with violating probation by committing and armed robbery. Victim did not testify at hearing. Victim's hearsay statement plus officer testimony that they found a purse and gun near Defendant is sufficient to sustaining finding of violation of probation. Rodgers v. State, 40 Fla. L. Weekly D1903a (1st DCA 8/14/15)

POST CONVICTION RELIEF: Error to summarily deny claim that counsel was ineffective for misadvising defendant against accepting plea offer on ground that defendant did not say he would have agreed to accept the plea offer. Court should have stricken the claim as facially insufficient with leave to amend. Hogan v. State, 40 Fla. L. Weekly D1900b (5th DCA 8/14/15)

STATEMENTS OF DEFENDANT: Confession improperly suppressed. Defendant's statement that he "should" wait to talk to his attorney followed immediately by him saying he wanted to tell the whole truth was not a request for counsel. State v. Carter, 40 Fla. L. Weekly D1898a (5th DCA 8/14/15)


INSANITY DEFENSE-JURY INSTRUCTION: Error to give abrogated insanity by hallucination instruction. Error not harmless given the State's argument which incorrectly suggested that the defense witnesses should have addressed hallucination. Rodriguez v. State, 40 Fla. L. Weekly D1895a (5th DCA 8/14/15)


DOUBLE JEOPARDY: Separate convictions for use of a two-way communication device to commit a felony and traveling to meet a minor after use of a computer to solicit a child violate double jeopardy. Holt v. State, 40 Fla. L. Weekly D1894a (5th DCA 8/14/15)


JUVENILE-SENTENCING: Trial court erred in rejecting commitment level recommended by DJJ without explaining why moderate commitment was the most appropriate, least restrictive setting. R.R.R. v. State, 40 Fla. L. Weekly D1891a (2nd DCA 8/14/15)


CONSTRUCTIVE POSSESSION: Evidence was insufficient to show juvenile's actual or constructive possession of cocaine found between seat and doorframe of back driver's side door of patrol car in which juvenile was placed, handcuffed and hobbled. R.C.R. v. State, 40 Fla. L. Weekly D1882a (4th DCA 8/12/15)


FALSE IMPRISONMENT: Defendant pulls victim into alley after she ran away with the money he gave her to buy drugs. Justifiable use of force in defense of property is not defense to false imprisonment. Theory of defense was claim of right, not defense of property, and claim of right defense is inapplicable where charged crimes do not include theft. Ulysse v. State, 40 Fla. L. Weekly D1880c (8/12/15)


JUVENILE DELINQUENCY: Court erred in dismissing delinquency petition. Statute authorizes court to elect to end its jurisdiction over child at any time following initial adjudicatory hearing, not before. State v. D.A., 40 Fla. L. Weekly D1878a (8/12/15)


SEARCH AND SEIZURE-BOLO: Police had reasonable suspicion to stop defendant's vehicle where, within six minutes of receiving BOLO alert based on 911 call by burglary victim, officer saw defendant's vehicle traveling on the only road from burglary, and defendant took evasive driving actions. State v. Jemison, 40 Fla. L. Weekly D1876a (4th DCA 2015)

SEARCH AND SEIZURE-PAT DOWN: Error to deny motion to suppress marijuana recovered from juvenile's pocket during pat-down before officer placed him in back of patrol car. Permissible scope of pat-down exceeded when he retrieved a plastic baggie containing a plant-like material. G.M.v. State, 40 Fla. L. Weekly D1873a (4th DCA 8/12/15)


COSTS: Imposition of statutory fee for investigative costs is reversed where defendant was acquitted of the charge related to the fee. Allen v. State, 40 Fla. L. Weekly D1872a (4th DCA 8/12/15)


CARRYING A CONCEALED WEAPON BY A FELON: Jury instruction on the nonexistent crime of "possession of a weapon by a felon," constituted fundamental error where the relevant statute makes it unlawful for a felon to carry a concealed weapon. Rodriguez v. State, 40 Fla. L. Weekly D1871b (4th DCA 8/12/15)

RETURN OF PROPERTY
: Trial court improperly denied motion for return of property as untimely where defendant filed his motion while a petition for certiorari review of defendant's convictions was pending in the United States Supreme Court. Cepero v. State, 40 Fla. L. Weekly D1871a (4th DCA 8/12/1)

PROBATION REVOCATION: Trial court did not abuse discretion in revoking defendant's probation on the basis that defendant failed to complete a behavior modification program at a residential care facility and threatened facility staff members with violence. Thompson v. State, 40 Fla. L. Weekly D1869b (8/12/15)

SEARCH AND SEIZURE-CONSENT: Consent to search of his vehicle was not voluntary where police arrived on scene in three to four vehicles, blocked driveway, frisked defendant, and took his ID and car keys. Defendant would not have felt free to leave. State v. Hall, 40 Fla. L. Weekly D1868a (8/12/15)

QUOTATION: "Despite the fact that, in this instance, the police were polite and did not draw their weapons, there was nevertheless the appearance of police authority and the circumstances were coercive in nature: the police arrived in three to four vehicles, blocked the driveway, frisked both parties, took their ID and car keys, and searched the vehicle three times before finding the small taser." State v. Hall, 40 Fla. L. Weekly D1868a (8/12/15)

APPEALS-ANDERS BRIEF
: Appellate court deprived defendant of his right to file pro se brief by issuing its decision only seven days after defendant's court-appointed counsel filed no-merit Anders brief. Hauser v. State, 40 Fla. L. Weekly D1863b (2nd DCA 8/12/15)


LIFE SENTENCE FOR JUVENILE: Life imprisonment with possibility of parole after twenty-five years for homicide committed when defendant was juvenile is cruel and unusual punishment. Case is remanded for resentencing in conformance with recent legislation. Robbins v. State, 40 Fla. L. Weekly D1861a (1st DCA 8/11/15)


DISCHARGE OF APPOINTED COUNSEL: Trial court did not err in failing to conduct Nelson inquiry where there was no unequivocal statement that defendant wished to discharge his attorney. Any issue concerning defense counsel was waived where defendant did not raise it before a judge who presided over trial. Thompson v. State, 40 Fla. L. Weekly D1859a (1st DCA 8/11/15)


JUVENILE DELINQUENCY: Juvenile defendant is not required to renew motion for judgment of dismissal after presenting evidence. E.H. v. State, 40 Fla. L. Weekly D1857a (1st DCA 8/11/15)

COSTS: Error to impose cost of $152 pursuant to Fla.Stat. §938.085, which does not authorize any cost above $151. Matthews v. State, 40 Fla. L. Weekly D1849a (8/7/15)


COSTS
: Error to impose cost applicable where person is found guilty of offense against minor in violation of chapter 794 where victim was not minor. Matthews v. State, 40 Fla. L. Weekly D1849a (8/7/15)

EARLY TERMINATION OF PROBATION: Trial court has discretion to grant motion to terminate probation where defendant has been sentenced pursuant to a plea agreement. "If the probationer has fulfilled his obligations and has been a 'model probationer,' the interests of justice (not to mention the wise allocation of scarce resources) may require that early termination be considered." Enea v. State, 40 Fla. L. Weekly D1846b (5th DCA 8/7/15)


ESCAPE
: Work release program was an extension of defendant's confinement, and his deviation from the program established a prima facie case for escape, although defendant returned to work release center in timely manner. State v. Poillot, 40 Fla. L. Weekly D1845a (5th DCA 8/7/15)


DOUBLE JEOPARDY
: Separate convictions for armed burglary of a dwelling with an assault and armed trespass in an occupied structure are precluded by double jeopardy. Blackshear v. State, 40 Fla. L. Weekly D1844a (5th DCA 8/7/15)


INJURY
: Great bodily harm does not include mere bruises as are likely to be inflicted in a simple assault and battery. Torres v. State, 40 Fla. L. Weekly D1843a (3rd DCA 8/5/15)


DUE PROCESS
: Defendant not deprived of Due Process where he was charged with burglary with an assault or battery but convicted of burglary with an assault and battery. Turbi v. State, 40 Fla. L. Weekly D1833a (2nd DCA, 8/5/15)

JURY INSTRUCTIONS
: No fundamental error resulted from trial court's omission from robbery instruction that, if the jury determined the defendant was guilty of the crime of robbery, the jury must further determine beyond reasonable doubt that the defendant carried some kind of weapon in the course of committing the robbery, where jury was ultimately instructed on appropriate standard when judge went over jury form with jury. Turbi v. State, 40 Fla. L. Weekly D1833a (2nd DCA, 8/5/15)


QUOTATION
: "A proper approach to fundamental error considers the jury instructions as a whole, in the context of the case that was tried; a proper approach does not nitpick at the instructions to manufacture a fundamental error that was overlooked by all the participants at trial." Turbi v. State, 40 Fla. L. Weekly D1833a (2nd DCA, 8/5/15)

EVIDENCE
: In conspiracy/racketeering case, court erred by excluding recordings of telephone conversations between defendant and a coconspirator, who was deceased. State v. Morgan, 40 Fla. L. Weekly D1831c (2nd DCA 8/5/15)


EVIDENCE: Partially inaudible or unintelligible audio recordings are not per se inadmissible. Instead, they are admissible unless the condition of the recording degrades its usefulness to such an extent that it makes the evidence misleading or irrelevant. State v. Morgan, 40 Fla. L. Weekly D1831c (2nd DCA 8/5/15)


JURY INSTRUCTION-LESSER-MANSLAUGHTER
: Court erred in giving standard jury instruction which required jury to find killing was intentional. Error was fundamental where erroneous instruction pertained to disputed element of offense and Defendant's state of mind. Dominique v. State, 40 Fla. L. Weekly D1828a (4th DCA 8/5/15)



LIFE SENTENCE FOR JUVENILE
: Twenty-five-year mandatory minimum sentence for non-homicide offense committed when defendant was 17 does not deny defendant meaningful opportunity to obtain release and does not violate Eighth Amendment. St. Val v. State, 40 Fla. L. Weekly D1825a (4th DCA (8/5/15)

RETURN OF PROPERTY
: Trial court had authority to deny motion for return of property when, after conducting evidentiary hearing, it concluded that movant's claim of ownership of the property was not credible. Sanchez v. State, 40 Fla. L. Weekly D1824a (4th DCA 8/5/15)

HABITUAL OFFENDER
: Error to impose consecutive habitual offender sentences for offenses committed during single criminal episode. Braswell v. State, 40 Fla. L. Weekly D1821b (1st DCA 8/4/15)

COMPETENCY
: Trial court did not fail to conduct proper competency hearing where, although trial court did not call experts at hearing, it had competency evaluation from defendant's treating facility, stated that it had reviewed the evaluation, and specifically stated that it was finding defendant competent to proceed. Written order is required. Merrial v. State, 40 Fla. L. Weekly D1821a (1st DCA 8/4/15)

DOUBLE JEOPARDY
: Separate convictions for sexual battery and lewd or lascivious battery were impermissible where charges were based upon same event. Double jeopardy violation constitutes fundamental error which may be addressed for first time on appeal. Shipman v. State, 40 Fla. L. Weekly D1820a (1st DCA 8/4/15)


DOUBLE JEOPARDY
: Double jeopardy violation resulted when trial court, in response to rule 3.800(b)(2) motion challenging sex offender probation for offense not enumerated by statute, selectively imposed special conditions of sex offender probation at resentencing. Dorsey v. State, 40 Fla. L. Weekly D1818b (1st DCA 8/4/15)

JULY 2015

MANDAMUS: Transcripts and record documents prepared at public expense on behalf of an indigent defendant must be provided to him without charge. Wharen v. State, 40 Fla. L. Weekly D1805c (5th DCA 7/31/15)


PLEA-VOLUNTARINESS: Trial court erred by failing to address claim that plea was induced by coercion in that counsel misadvised defendant that if he did not enter plea and was convicted he would "definitely" receive a life sentence. Jones v. State, 40 Fla. L. Weekly D1805b (5TH DCA 7/31/15-Marion County)

CREDIT FOR TIME SERVED
: A defendant is not entitled to receive out-of-county jail credit if the county where he is sentenced merely issued a detainer. However, if a defendant is arrested in another county based on an outstanding warrant, the defendant is entitled to receive the out-of-county jail credit, provided the sentences in both counties are ordered to run concurrent with each other. Johnson v. State, 40 Fla. L. Weekly D1805a (5th DCA 7/31/15)


CHILD SUPPORT: Trial court lacked subject matter jurisdiction to extend child support obligation for child past age 18 based upon child's mental disability -- Once the child was emancipated, trial court lost subject matter jurisdiction to modify or extend child support within existing child-support case. Larwa v. State, 40 Fla. L. Weekly D1803a (5th DCA 7/31/15)


SENTENCING-VOP: Where defendant was placed on probation for a felony offense, violates that probation by committing a new offense, and is pending before the court for sentencing on both the violation of probation and the new offense, the probation offense may be scored as an "additional offense" if such scoring provides the most severe sanction and is otherwise consistent with the provisions of the rule and statute. Bido v. State, 40 Fla. L. Weekly D1798a (3rd DCA 7/29/15)


STATEMENTS OF DEFENDANT
: Defendant's Motion to Suppress statement properly denied where Defendant had been originally handcuffed while still considered a witness, then questioned without handcuffs as he became a suspect. Maxwell v. State, 40 Fla. L. Weekly D1796a (3rd DCA 7/29/15)

CREDIT FOR TIME SERVED: Trial court did not err in denying motion to correct award of prior prison credit where defendant had not exhausted administrative remedies. Friedman v. State, 40 Fla. L. Weekly D1791d (3rd DCA 7/29/15)


LIFE SENTENCE FOR JUVENILE
: Life sentences for homicide and non-homicide committed by defendant when he was a juvenile were illegal. Defendant to be resentenced pursuant to framework established in chapter 2014-220. Wadley v. State, 40 Fla. L. Weekly D1789b (7/29/15)


RECLASSIFICATION: (Reversed on rehearing en banc) Defendant-FBI agent conspires with Whitey Bulger to murder witness and is convicted of second degree murder with a firearm, enhanced to a life felony based on his personal possession of a weapon. The weapon can be his personal weapon in Boston rather than the murder weapon, when murder occurs in Florida. Because Defendant was on notice that he was charged with personal possession, enhancement stands, and therefore statute of limitations for lesser degree offense does not apply. In all events, any defects in the information were waived by not making specific objections to the trial court. Conviction stands. [Bad cases make bad law]. Connolly v. State, 40 Fla. L. Weekly D1760a (3rd DCA 7/29/15)

QUOTATION (DISSENT): "It is pure sophistry to argue that the general reference to section 775.087 in Count 1 of the indictment put Connolly on notice that his service weapon -- an uncharged firearm completely unrelated to the murder, located in an entirely different state at the time of the offense, could later be the basis for reclassifying a time-barred conviction of a lesser included offense to a non-time-barred life felony, for committing the offense 'with a firearm.' Connolly v. State, 40 Fla. L. Weekly D1760a (3rd DCA 7/29/15)


PROBATION REVOCATION: Argument that possession of synthetic marijuana could not establish violation because the term"synthetic marijuana" is not included in statutory controlled substances was not preserved for appeal. Any technical defect or error was waived by his admission that he possessed and illegal substance. Gun v. State, 40 Fla. L. Weekly D1756a (4th DCA 7/29/15)

DISSENT
: "I . . .dissent because no error could be more fundamental than to send a citizen to prison for committing an act that is not a crime. . . Furthermore, even if the defendant or his counsel stated that 'synthetic marijuana' was illegal, that admission does not make it so." Gun v. State, 40 Fla. L. Weekly D1756a (4th DCA 7/29/15)


PLEA-VOLUNTARINESS: Trial court erred in summarily denying claim that counsel was ineffective for misadvising defendant that Florida law did not recognize involuntary intoxication defense under circumstances in which defendant allegedly was taking legal prescriptions which, combined with his medical condition, resulted in his being temporarily legally insane at time of offense. Jacobson v. State, (4th DCA 7/29/15)


DANGEROUS SEXUAL FELONY OFFENDER: Defendant is properly sentenced as DSFO to a 25 year mandatory minimum where he has a prior for a similar, though not identical offense. Conflict certified. Acevedo v. State, 40 Fla. L. Weekly D1752b (4th DCA 7/29/150)


INEFFECTIVE ASSISTANCE: Counsel may be ineffective for not moving for a mistrial after jury sees Defendant in shackles. Cunningham v. State, 40 Fla. L. Weekly D1752a (7/29/15)


POST CONVICTION RELIEF: Trial court properly denied claim that counsel was ineffective for misadvising defendant that he would be sentenced between eight and fifteen years if he rejected state's offer of fifteen years and pled open to the court where the judge specifically told him that he could sentence defendant above the state's offer and defendant said no no one had advised him of what his sentence would be. Etienne v. State, 40 Fla. L. Weekly D1751a (4th DCA 7/29/15)


NOT GUILTY BY REASON OF INSANITY: It was error to enter order allowing medical facility to involuntarily treat defendant who had been found not guilty by reason of insanity with psychiatric medication where there was no competent substantial evidence that administration of the drugs was essential to defendant's care. Lizzi v. State, 40 Fla. L. Weekly D1750b (7/29/15)

JURORS-PEREMPTORY STRIKES: Trial court erred in sustaining state's peremptory challenge of Hispanic juror without conducting a genuineness analysis. State's explanation was that the juror was unemployed. When corrected that the juror had a job, State said, "[w]e don't want a housekeeper on our jury." West v. State, 40 Fla. L. Weekly D1746a (4th DCA 7/29/15)


STATEMENTS OF DEFENDANT: Defendant cannot assert ineffective assistance of counsel where his federal public defender allowed him to confess to murder in a proffer because the Sixth Amendment is case specific and the PD did not represent him on the murder. Wyne v. State, 40 Fla. L. Weekly D1744a (4th DCA 7/29/15)

HEARSAY-PRIOR CONSISTENT STATEMENT: State may elicit, on rebuttal, a prior consistent statement (at deposition) from investigating detective who testified on direct examination that defendant had stated, "I did it," where defense counsel, on cross-examination, implied this testimony was a recent fabrication. Wyne v. State, 40 Fla. L. Weekly D1744a (4th DCA 7/29/15)


APPEALS
: "The electronic record in this case consists of over 16,000 pages. This is because the appellant's directions to the clerk required the inclusion of every docket entry. Not only is this very expensive to the party, it makes it difficult for this court to review. . .(S)crolling through notices of hearings, notices of depositions, subpoenas and the like is frustrating and counterproductive. . . We would request that all parties be intentional in the creation of the record on appeal and provide only those documents essential to the review of the issues." Aquila v. Brisk Transportation, 40 Fla. L. Weekly D1743a (4th DCA 7/29/15)


DOUBLE JEOPARDY: Convictions for grand theft and fraudulent security transaction do not violate double jeopardy-Blockburger. Brown v. State, 40 Fla. L. Weekly D1742c (7/29/15)


LIFE SENTENCE FOR JUVENILE
: Sentence of life imprisonment for second-degree murder committed while defendant was a juvenile does not violate Miller. Question certified. Kendrick v. State, 40 Fla. L. Weekly D1741a (2nd DCA 7/29/15)


JURY INSTRUCTION-ATTEMPTED MURDER: Giving of standard jury instruction on attempted manslaughter as lesser included offense did not constitute fundamental error with regard to counts for which defendant was convicted of attempted first degree murder because attempted manslaughter is more than one step removed from offense of attempted first degree murder . Giving of standard jury instruction on attempted manslaughter did not constitute fundamental error with regard to count for which defendant was convicted of attempted second degree murder where defendant claimed that shooting of victims constituted justifiable use of deadly force, so that intent was not an issue. King v. State, 40 Fla. L. Weekly D1739a (2nd DCA 2015)


SUSPENDED PRISON SENTENCE: Where defendant was sentenced to concurrent prison terms, had sentences suspended in favor of drug offender probation, then violated probation by failing to complete inpatient drug treatment, it was improper for trial court to subsequently impose the sentences consecutively. Brooker v. State, 40 Fla. L. Weekly D1731c (1st DCA 7/29/15)

DOUBLE JEOPARDY: Convictions for domestic battery by strangulation and simple battery, arising from a single act, violate double jeopardy because the elements of the former subsume those of the latter. Pottle v. State, 40 Fla. L. Weekly D1731b (7/29/15)

SENTENCING-DOWNWARD DEPARTURE:
Court may downward depart for a Defendant with serious medical conditions. Because it is unclear why trial court thought it had no authority to impose downward departure sentence, remand for resentencing is appropriate. Childers v. State, 40 Fla. L. Weekly D1728a (1st DCA 7/27/15)

PROBATION REVOCATION-JURISDICTION: Trial court has jurisdiction to revoke term of probation based on criminal acts committed during a prior term of probation that had been revoked. Hennig v. Prummell, 40 Fla. L. Weekly D1726d (7/24/15)

SENTENCING-DEPARTURE: Trial court erred in imposing departure sentence without filing written reasons but because trial judge articulated valid reasons for departure, on remand court is not required to impose sentence within guidelines. Wheeler v. State, 40 Fla. L. Weekly D1726c (7/24/15)

READ BACK: Where jury asked whether transcripts of testimony were available, it was error for court to respond that transcripts were not available without advising jury that testimony could be read back. Error not fundamental. Romero v. State, 40 Fla. L. Weekly D1721b (7/24/15)

APPEALS: Trial court's order ruling on pre-trial motion in limine cannot be challenged on direct appeal because it was not dispositive. Churchill v. State, 40 Fla. L. Weekly D1721a (7/24/15)


SEARCH AND SEIZURE-VEHICLE: Where the victim of an aggravated assault with a firearm told law enforcement officer, almost immediately after the incident, that the individual who committed the aggravated assault returned to a red Jeep with the firearm after the assault, officer had probable cause to seize the vehicle when it was located nearby in open view in a parking lot. State v. Diaz-Ortiz, 40 Fla. L. Weekly D1718a (7/24/15)


JURY INSTRUCTIONS
: Failure to instruct jury on reasonable doubt was fundamental error. Curry v. State, 40 Fla. L. Weekly D1710a (7/24/15)

SELF DEFENSE INSTRUCTIONS: While the standard jury instruction on justifiable use of deadly force could have been constructed with greater clarity, it was legally correct and not internally inconsistent. Proposal for clearer instruction. Wyche v. State, 40 Fla. L. Weekly D1704a (7/22/15)

SELF-DEFENSE INSTRUCTION-CONCURRENCE
: "As fetching a notion as it might be to accept a jury's reliance on common sense in lieu of parsing and relying on the law as instructed, . . (a)n instruction which . . provides a constant source of confusion cannot be minimized or disregarded on an assumption that juries will ignore the confusion and simply use common sense. Were this the goal, there would be no point in instructing juries in the first instance, but rather it simply would be left to the lawyers to argue the facts and the law and then to charge the jurors to 'use their common sense.'" Wyche v. State, 40 Fla. L. Weekly D1704a (7/22/15)


CIRCUMSTANTIAL EVIDENCE: "We will not recount the history of the development, demise, and resurrection of the special standard of review in circumstantial evidence cases. For a thorough analysis of this standard and its sometimes-inconsistent application by Florida appellate courts, see Knight v. State," M.P. v. State, 40 Fla. L. Weekly D1701b (7/22/15)

VIOLENT CAREER CRIMINAL: Adjudication of defendant as violent career criminal was improper as to grand theft conviction. Ilarion v. State, 40 Fla. L. Weekly D1709a (7/22/15)

PROBATION REVOCATION: Error to find Defendant in violation on basis of crime not alleged in affidavit. New sentencing hearing if it is not clear that the same sentence would have been imposed. Gray v. State, 40 Fla. L. Weekly D1700b (7/22/15)


STAND YOUR GROUND: The standard of review in a Stand Your Ground case is that the trial court's findings of fact are presumed correct and can be reversed only if not supported by competent substantial evidence. Legal conclusions are reviewed de novo. Arauz v. State, 40 Fla. L. Weekly D1699c (7/22/15)

JURY INSTRUCTION-TIMELY REQUEST: Trial court erred in failing to instruct on self-defense on grounds that request for instruction was untimely. Request was timely where jury had not yet retired. Calkins v. State, 40 Fla. L. Weekly D1698a (7/22/15)


TAMPERING WITH EVIDENCE: Defendant's act of tossing evidence onto side of private road, during daylight hours, in view of law enforcement was insufficient to support conviction for tampering with evidence. Hataway v. State, 40 Fla. L. Weekly D1696a (7/22/15)

HEARSAY-DRUG TEST: Probation officer's testimony that she conducted a urinalysis that indicated that defendant used cocaine, and then sent a urine sample to a laboratory which issued a report indicating the urine tested positive for cocaine, was hearsay -- Laboratory test reports not testified to by an expert are hearsay. Dawson v. State, 40 Fla. L. Weekly D1683a (7/21/15)

TERMINATION OF PARENTAL RIGHTS: Error to terminate parental rights of grounds not alleged in petition. D.W.Q. v. A.B., 40 Fla. L. Weekly D1685a (7/21/15)


DUE PROCESS: "Before Father rested his case, the trial court indicated it would watch the DVD after the close of evidence. (T)he packaging suggests the DVD came to this court in what appears to be the same sealed package as was admitted at trial. . .(W)e consider this to be a due process violation." D.W.Q. v. A.B., 40 Fla. L. Weekly D1685a (7/21/15)


DOUBLE JEOPARDY
: Double jeopardy claims are waived when a defendant enters into a negotiated plea agreement. McWilliams v. State, 40 Fla. L. Weekly D1684c (7/21/15)


SEARCH AND SEIZURE-KNOCK AND ANNOUNCE: Defendant's speculative testimony that although he was asleep he would have woken and his dog would have barked if officers had knocked was insufficient to prove prima facie case of noncompliance with knock and announce requirements. Carter v. State, 40 Fla. L. Weekly D1682b (7/21/15)


DISPENSING PRESCRIPTION DRUG: Statute prohibiting the dispensing of a prescription drug without being furnished a prescription applies only to pharmacists. Moore v. State, 40 Fla. L. Weekly D1680b (7/21/15)

POST CONVICTION RELIEF: Error to summarily deny claim that counsel was ineffective for failing to advise defendant to accept plea offer where defendant's ultimate sentence was greater than the plea offer. Cruz-Betanzos v. State, 40 Fla. L. Weekly D1680a (7/21/15)

APPEAL: Error in jury instruction, even if fundamental, was waived when Appellant requested the instruction. Relief on this claim must await timely postconviction proceedings. Lane v. State, 40 Fla. L. Weekly D1676a (7/17/15)


WEIRD: "We . . . remand for Appellant to plead facially sufficient ineffective-assistance-of-counsel claims that do not comingle the defenses of insanity, super-induced by the long and continued use of intoxicants, and involuntary intoxication." Olmo v. State, 40 Fla. L. Weekly D1675a (7/17/15)


SEX OFFENDER REGISTRATION: Licensed plumber challenges ordinance prohibiting sex offenders from going to an residence where children may be present. Ordinance does not violate procedural due process rights, equal protection rights, substantive due process, or separation of powers doctrine, and is not an unlawful ex post facto law if the word "may" is excised. John Doe I v. City of Palm Bay, 40 Fla. L. Weekly D1671a (7/17/15)


JUVENILE-LIFE SENTENCE FOR NON-HOMICIDE: 60 year sentence is equivalent to life. Defendant entitled to receive judicial review of sentences after either 15 or 25 years, depending on trial court's determination as to whether defendant intended or attempted to kill any of his victims . Resentencing required where trial court failed to make required written findings as to whether defendant was entitled to receive sentence review. Barnes v. State, 40 Fla. L. Weekly D1665a (7/17/1)

SENTENCING-DOWNWARD DEPARTURE: Downward departure based on finding that DUI with injury was committed in unsophisticated manner and was an isolated incident is not warranted where Defendant had a prior DUI, Reckless, and DWLS. State v. Burt, 40 Fla. L. Weekly D1663a (7/17/15)

STATEMENTS OF DEFENDANT
: Order granting motion to suppress confession is reversed. Appellate court determines de novo whether Defendant is in custody. Defendant not in custody at police station, notwithstanding that she was told to "stay right here," interview was accusatory and involved several different interviewers. State v. Myers, 40 Fla. L. Weekly D1660b (7/17/15)

POST CONVICTION RELIEF
: Apprendi/Blakely argument that upward departure not based on jury finding is not barred as successive where issue was never addressed on its merits, and in all case application of collateral estoppel would work a manifest injustice. Plasencia v. State, 40 Fla. L. Weekly D1657a (7/17/15)

LIMITATION OF ACTIONS: Conviction for L & L reversed where the statute of limitations was wrongly extended by DNA exception where DNA was not retrieved until after the time to prosecute had expired. Therlonge v. State, 40 Fla. L. Weekly D1646b (7/15/15)


PROBATION VIOLATION:
In reinstating probation of defendant who carried status as violent felony offender of special concern, after defendant admitted a probation violation, trial court erred in failing to hold a danger hearing or make the required written findings. State v. Gomez, 40 Fla. L. Weekly D1632a (7/15/15)


BEST EVIDENCE RULE: Admission of loss prevention officer's testimony about what he observed through closed-circuit surveillance system did not violate best evidence rule although a recording of the closed-circuit feed was not introduced. Direct testimony of events observed, even where those events are being concurrently recorded, is not a violation of the best evidence rule when the recording is not placed in evidence. J.J. v.State, 40 Fla. L. Weekly D1621b (7/15/15)


SEARCH AND SEIZURE-CONSENT: Evidence was sufficient to support finding that officers reasonably perceived response by defendant's sister, in form of a gesture, as an invitation to enter residence and that sister had authority to invite officers inside. Thompson v. State, 40 Fla. L. Weekly D1614b (7/15/15)

PUBLIC RECORDS: Trial court erred in denying petition for writ of mandamus to compel public defender's office to comply with public records request without conducting evidentiary hearing to determine whether public defender's office had requested material in its possession. Ferrier v. Public Defender's Office, 40 Fla. L. Weekly D1605c (7/14/15)

POST CONVICTION RELIEF: Trial court was without jurisdiction to deny rule 3.800(a) motion while direct appeal was pending. Buckhalter v. State, 40 Fla. L. Weekly D1605b (7/14/15)

DOUBLE JEOPARDY: Defendant was erroneously convicted of aggravated battery with discharge of a firearm where evidence was insufficient to prove that there was a second discharge of the firearm during the battery. Defendant was separately convicted of attempted second degree murder. Bullard v. State, 40 Fla. L. Weekly D1605a (7/14/15)


WAIVER OF ATTORNEY: Conviction reversed where court conducted an inadequate inquiry whether the Defendant's waiver of right to counsel was knowing and intelligent. Wilson v. State, 40 Fla. L. Weekly D1604a (7/14/15)

HEARSAY: Trial court erred in admitting testimony of victim regarding content of telephone calls she received from defendant's mother in which mother stated that defendant had a gun and had told her that he was going to put four bullets in the victim's head. Although prosecutor claimed that statement was offered for the effect on the listener, it was classic hearsay. Sequence of events is not relevant nor an exception to the hearsay rule. Summerall v. State, 40 Fla. L. Weekly D1603b (7/14/15)


AMENDMENT TO RULES OF APPELLATE PROCEDUR
E: Implementation of mandatory statewide electronic records on appeal. In re: Amendments, 40 Fla. L. Weekly S262a (5/14/15)

CREDIT FOR TIME SERVED: Where the Defendant is not formally arrested but is held in jail on a particular case, regardless, he is entitled to jail credit for the time he actually spent in custody. James v. State, 40 Fla. L. Weekly D1598a (7/10/15)

ANDERS BRIEF:
Before filing an Anders brief, appellate counsel must conscientiously master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on Appeal. Appellate counsel must refer to anything in the record that might arguably support the appeal. Chapman v. State, 40 Fla. L. Weekly D1597b (7/10/15)

ABSENCE FROM TRIAL AND SENTENCING
: Error to deny defendant's post- sentencing motion, that challenged whether his absence was voluntary, without evidentiary hearing to determine whether absence was voluntary or involuntary. Hilliard v. State, 40 Fla. L. Weekly D1592a (7/10/15)

JURY FINDING FOR ENHANCEMENT
: Although claim that sentence was enhanced without factual finding by jury is cognizable in rule 3.800(a) motion, defendant's life sentence was within statutory maximum for offense of which he was convicted, and was not illegal. Kirby v. State, 40 Fla. L. Weekly D1591b (7/10/15)


LIFE IMPRISONMENT FOR JUVENILE-HOMICIDE
: Because defendant has received individualized sentencing hearing, life sentence for juvenile who committed homicide is affirmed. Blake v. State, 40 Fla. L. Weekly D1591a (7/10/15)


SPEEDY TRIAL
: Trial court erred in concluding that charges of burglary and theft involved same conduct and criminal episode as a prior arrest for loitering and prowling where arresting officer did not know about the burglary and theft at the time of arrest. State v. Warren, 40 Fla. L. Weekly D1587a (7/10/15)

LIFE IMPRISONMENT FOR JUVENILE-HOMICIDE
: Defendant entitled to new individualized resentencing hearing after which trial court may sentence defendant to life imprisonment if it finds that life is appropriate sentence or, if not, to term of at least forty years' imprisonment. Either way, unless defendant has prior conviction for an enumerated felony, he will receive judicial review of sentence after 15 or 25 years. Williams v. State, 40 Fla. L. Weekly D1586b (7/10/15)

GERRYMANDERING
: The redistricting process and resulting map were tainted by unconstitutional intent to favor the Republican Party and incumbents. The maps must be redrawn. Leaque of Women Voters v. Detzner, 40 Fla. L. Weekly S432a (FLA 7/9/15)


COUNSEL-CONFLICT OF INTEREST
: Trial court is not required to obtain a conflict-of-interest waiver when codefendants are represented by the same lawyer but there is no actual conflict of interest between the codefendants. State v. Alexis, 40 Fla. L. Weekly S423a (FLA 7/9/15)


TERMINATION OF PARENTAL RIGHTS
: Indigent parents have the right to effective assistance of counsel in proceedings to terminate parental rights. There is a strong presumption that the attorney has provided reasonable, professional assistance. To overcome that presumption, a parent must identify specific errors of commission or of omission that under the totality of the circumstances evidence a deficiency in the exercise of reasonable, professional judgment and must establish that, cumulatively, this deficient representation so prejudiced the outcome of the TPR proceeding that but for counsel's deficient representation the parent's rights would not have been terminated. Issue must be raised within 20 days. J.B. v. State, 40 Fla. L. Weekly S416a (FLA 7/9/15)


STAND YOUR GROUND
: At a pretrial evidentiary hearing where defendant has filed a motion to dismiss, claiming statutory immunity from prosecution under Stand Your Ground law, defendant bears burden of proof , by a preponderance of evidence, to demonstrate immunity. Bretherick v. State, 40 Fla. L. Weekly S411a (FLA7/9/15)


APPEAL-JURISDICTION
: Trial court was without jurisdiction to enter order denying motion for post conviction relief prior to issuance of appellate court's mandate in prior appeal. Leatherwood v. State, 40 Fla. L. Weekly D1584b (7/8/15)

DOUBLE JEOPARDY: Trial court did not have authority to resentence defendant on counts where the initial sentences had already been served. Where initial sentence was an illegal sentence, trial court may, at resentencing, impose any sentence consistent with sentencing laws in effect on date of offense, even if it results in a harsher sentence. State v. Jimenez, 40 Fla. L. Weekly D1580b (7/8/15)


SEALING OF RECORDS
: Trial court failed to properly exercise its discretion where it denied petition to seal record based upon generalized considerations without considering facts and circumstances of individual case. Borg v. State, 40 Fla. L. Weekly D1579a (7/8/155)

POST CONVICTION RELIEF: Trial court erred in summarily denying rule 3.850 motion alleging trial counsel was ineffective for failing to present medical evidence that defendant was physically incapable of inflicting blows that caused victim's death. Burkell v. State, 40 Fla. L. Weekly D1576a (7/8/15)

SELF-DEFENSE-JURY INSTRUCTION
: Trial court reversibly erred in denying defendant's request for jury instruction on justifiable use of nondeadly force where there was evidence to support this theory of defense. Broome v. State, 40 Fla. L. Weekly D1572c (7/8/15)


STAND YOUR GROUND
: Defendant waived claim that fundamental error occurred in giving standard jury instructions bearing on his claim of self-defense under Stand Your Ground law where defense unequivocally requested the challenged instructions and incorporated those instructions in his closing argument. Waters v. State, 40 Fla. L. Weekly D1572b (7/8/15)


PROBATION REVOCATION
: Error to revoke probation for failure to pay restitution where evidence was clear that defendant did not have ability to pay restitution. Court may not consider family members' financial means in assessing ability to pay. Givens v. State, 40 Fla. L. Weekly D1572a (7/8/15)

POSSESSION OF COCAINE WITHIN 1000 FEET OF CHURCH: State failed to prove that offenses were committed within 1000 feet of church which regularly conducted religious services at time of offenses where the only testimony presented by state established that regular church services were held at time of trial, not at time of offense. Fletcher v. State, 40 Fla. L. Weekly D1570a (7/8/15)


DOUBLE JEOPARDY-L & L
: Separate convictions for two counts of lewd or lascivious molestation of same victim during same episode were not barred by double jeopardy clauses of state and federal constitutions where charges were predicated on two distinct acts of touching victim's breasts or the clothing covering them and touching victim's buttocks or the clothing covering them -- Conflict certified. Graham v. State, 40 Fla. L. Weekly D1568b (7/8/15)

CROSS-EXAMINATION
: Trial court did not abuse its discretion in prohibiting defense counsel from cross-examining victim and victim's mother about prior incidents of sexual abuse. Graham v. State, 40 Fla. L. Weekly D1568b (7/8/15).

PROBATION REVOCATION
: Error to revoke probation for failure to adhere to curfew where the only evidence supporting violation was hearsay. White v. State, 40 Fla. L. Weekly D1568a (7/8/15)

SENTENCING-DOWNWARD DEPARTURE
: Downward departure based on minimal prior record was improper because prior record is already factored into permissible sentence under Code. State v. Morris, 40 Fla. L. Weekly D1564b (7/8/15)



CREDIT FOR TIME SERVED
: Defendant who was sentenced to term of prison for one offense followed by probation for second offense was entitled to credit for time served on first offense against sentence imposed following probation revocation where defendant's offenses took place before October 1, 1998. Morrin v. State, 40 Fla. L. Weekly D1564a (7/8/15)


POST CONVICTION RELIEF
: Defendant's decision not to testify at trial does not, as matter of law, waive a later claim that trial counsel improperly advised defendant concerning contours of that right during trial to the extent that waiver of right to testify was not knowing, intelligent, and voluntary. Riggins v. State, 40 Fla. L. Weekly D1563a (7/8/15)


DEATH PENALTY: Counsel not ineffective for presenting a humanizing "good guy" strategy without calling a mental health expert after thorough investigation of mitigating factors was reasonable. Carter v. State, 40 Fla. L. Weekly S404b (FLA 7/2/15)

CHANGE OF VENUE: Adverse pretrial publicity is not sufficient basis for change of venue. Carter v. State, 40 Fla. L. Weekly S404b (FLA 7/2/15)

DISSOLUTION OF MARRIAGE-PARTITION: Trial court erred in ordering sale of real property in absence of any pleading for partition of the property. Richeson v. State, 40 Fla. L. Weekly D1562b (7/2/15)


MANDAMUS-SEXUAL PREDATOR
: To designate an out-of-state parolee as a sexual predator, the State must file a petition, and cannot use mandamus to compel a ruling in its favor. State v. Burgess, 40 Fla. L. Weekly D1560a (7/2/15)

INJUNCTIONS
: Error to summarily deny motion for modification of injunction for protection against domestic violence in which movant alleged that he is presently incarcerated and will be for extended period and that injunction was impacting his ability to participate in work-release program. Bennett v. Abdo, 40 Fla. L. Weekly D1559a (7/2/1)


SEARCH AND SEIZURE-VEHICLE: Where officer performed a traffic stop of defendant's vehicle in a high crime area, discovered that defendant was a career offender, and observed defendant making furtive movements in vehicle which officer believed might indicate that defendant was reaching for a weapon, search of vehicle after defendant had been removed from vehicle was a permissible protective search based on reasonable belief that defendant may have hidden a weapon in vehicle. State v. Toussaint, 40 Fla. L. Weekly D1556a (7/2/1)


CHILD CUSTODY MODIFICATION: Trial court may not enter emergency ex parte order modifying timesharing where former husband did not allege that children were being threatened with physical harm or were about to be improperly removed from state. Court may not modify timesharing on the basis of a violation of shared parenting principles. Suleiman v. Yunis, 40 Fla. L. Weekly D1555a (7/2/15)


SEXUAL BATTERY-COLLATERAL CRIMES
: Trial court erred in admitting evidence of a prior occasion when defendant had made sexual advances toward another woman, and acquiesced to the woman's protest, in trial in which defendant was charged with forcibly sexually battering victim. Evidence of other acts should not be admitted merely to show a pattern of conduct. Moss v. State, 40 Fla. L. Weekly D1548b (7/1/15)

SILENCE OF DEFENDANT: Trial court erred in admitting the redacted recording of a second interview of defendant in which defendant said that he would listen to detective and then asserted that his prior interview was his final statement, and refused to give a new statement. A comment by a prosecutor that the defendant has not before offered the explanation of events he offers at trial is improper. Moss v. State, 40 Fla. L. Weekly D1548b (7/1/15)


COSTS: Trial court erred in imposing discretionary fine and surcharge without orally pronouncing the fine at sentencing hearing. Ford v. State, 40 Fla. L. Weekly D1547a (7/1/15)

GRAND JURY TESTIMONY
: Trial court improperly granted defendant's motion to disclose grand jury testimony of witness without conducting in camera inspection to determine materiality. State v. Pratt, 40 Fla. L. Weekly D1543b (7/1/15)


CREDIT FOR TIME SERVED: Defendant not entitled to credit for time served on community control. Neverson v. State, 40 Fla. L. Weekly D1543a (7/1/15)


RACKETEERING-CONSPIRACY: Because evidence established the gang had the wide-ranging purpose of simply committing criminal acts to enhance their reputation, including noncooperation with police, the resisting arrest and battery constituted predicate acts. Castillo v. State, 40 Fla. L. Weekly D1538a (7/1/15)

SEVERANCE-RACKETEERING
: No error in denying motion to sever defendant's trial from codefendants' because most of the predicate offenses presented at trial did not involve the defendant. Predicate acts against other members were necessary to explain the nature of the gang and jury was clearly able to make distinctions between evidence relating to each defendant's acts. Castillo v. State, 40 Fla. L. Weekly D1538a (7/1/15)

GRAND THEFT
: Victim's testimony, the sole evidence presented by state, was legally insufficient to prove beyond reasonable doubt that value of property stolen by defendant was at least $300. Testimony covered original purchase value, not current value. Weichert v State, 40 Fla. L. Weekly D1522a (7/1/15)

AIDING AND ABETTING: Mere presence at scene was insufficient to prove juvenile's involvement as principal in burglary of portable storage unit in fenced backyard of vacant house. K.B. v. State, 40 Fla. L. Weekly D1521a (7/1/15)

JURY ROOM: Error to allow jury to see video recording in the jury room during deliberations because of the danger that the child's statements will be unfairly given more emphasis than other testimony. Otero v. State, 40 Fla. L. Weekly (7/1/15)

JUNE 2015

SENTENCING-UNDER 22 POINTS: Where defendant was convicted of non-forcible third-degree felony and scored less than 22 points on Criminal Punishment scoresheet, trial court erred in sentencing him to prison term without making written findings that nonstate prison sanction could pose danger to public. On remand, court may not sentence Defendant to prison. Christy v. State, 40 Fla. L. Weekly D1514b (6/29/15)

SAME-SEX MARRIAGE: "Same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold-and it now does hold-that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Decision is based on Due Process and Equal Protection. Obergafell v . Hodges, Case No. 14-556 (U.S. S.Ct. 6/26/15)

QUOTATION
: "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." Obergafell v . Hodges, Case No. 14-556 (U.S. S.Ct. June 26, 2015)

QUOTATION
: "The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning." (Justice Kennedy) Obergafell v . Hodges, Case No. 14-556 (U.S. S.Ct. June 26, 2015)


QUOTATION
: "Closing debate tends to close minds." Obergafell v . Hodges, Case No. 14-556 (U.S. S. Ct. June 26, 2015)

QUOTATION
: "If you are among the many Americans-of whatever sexual orientation-who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it." Obergafell v . Hodges, Case No. 14-556 (U.S. S.Ct. June 26, 2015)


SCALIA-CISM
: "Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its "reasoned judgment,"thinks the Fourteenth Amendment ought to protect." Obergafell v . Hodges, Case No. 14-556 (U.S. S.Ct. June 26, 2015)


SCALIA-CISM
: "If. . . I ever joined an opinion for the Court that began: 'The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie." Obergafell v . Hodges, Case No. 14-556 (U.S. S.Ct. June 26, 2015)


SENTENCING-ACA
: The residual clause of the Armed Career Criminal Act is void for vagueness. An increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Johnson v. United States, Case No. 13-7120 (U.S S.Ct. 6/25/15)

QUOTATION
: "It has been said that the life of the law is experience. Nine years' experience trying to derive meaning from the residual clause convinces us that we have embarked upon a failed enterprise. . . .Invoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process." Johnson v. United States, Case No. 13-7120 (U.S S.Ct. . 6/25/15)


SCALIA-CISM
: How does one go about deciding what kind of conduct the "ordinary case" of a crime involves? "A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?" Johnson v. United States, Case No. 13-7120 (U.S S.Ct. 6/25/15)


QUOTATION
: "It has long been understood that one of the problems with holding a statute "void for 'indefiniteness'" is that "'indefiniteness' . . . is itself an indefinite concept,"" (Justice Thomas, dissenting)
Johnson v. United States, Case No. 13-7120 (U.S S.Ct. 6/25/15)



STARE DECISIS
: "The doctrine of stare decisis allows us to revisit an earlier decision where experience with its application reveals that it is unworkable. . . Although it is a vital rule of judicial self-government, stare decisis does not matter for its own sake." Johnson v. United States, Case No. 13-7120 (U.S S.Ct. . 6/25/15)

STARE DECISIS
: "The Court is tired of the Armed Career Criminal Act of 1984 (ACCA) and in particular its residual clause. Anxious to rid our docket of bothersome residual clause cases, the Court is willing to do what it takes to get the job done. So brushing aside stare decisis, the Court holds that the residual clause is unconstitutionally vague." (Justice Alito, dissenting) " Johnson v. United States, Case No. 13-7120 (U.S S.Ct. . 6/25/15)

JUVENILE-COMMITMENT: Trial court erred by committing juvenile to low-risk residential program without receiving a recommendation from DJJ. M.T.G. v. State, 40 Fla. L. Weekly D1512b (6/26/15)

PROBATION REVOCATION: Trial court erred by extending and modifying defendant's probation on ground that defendant failed to make payments toward his restitution obligation without finding that defendant had ability to pay restitution and willfully failed to do so. Williams v. State, 40 Fla. L. Weekly D1512a (6/26/15)


JURISDICTION-RESTITUTION
: Trial court lacked jurisdiction to hold restitution hearing and enter restitution order after notice of appeal had been filed. Frehe v. State, 40 Fla. L. Weekly D1510b (6/26/15)

DOUBLE JEOPARDY: Double Jeopardy rights were violated where Court granted motion to correct sentence for an improper scoresheet, then imposed the same sentence with additional conditions of probation. Peacock v. State, 40 Fla. L. Weekly D1508a (6/26/15)


CHILD SUPPORT-IMPUTED INCOME: Error to impute income to wife without finding that wife was voluntarily unemployed or under employed and without addressing evidence that wife was diligently trying to find work, but could not. Dottaviano v. Dottaviano, 40 Fla. L. Weekly D1507a (6/26/15)

AFFORDABLE CARE ACT: Supreme Court upholds funding mechanism of Affordable Care Act. King v. Burwell, Case No. 14-114 (U.S. S.Ct. 6/25/15)


AFFORDABLE CARE ACT-QUOTATION: "In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined-"to say what the law is." . . . That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress's plan, and that is the reading we adopt. King v. Burwell, Case No. 14-114 (U.S. S.Ct. 6/25/15)


SCALIA-CISMS:

"So while the rule against treating a term as a redundancy is far from categorical, the rule against treating it as a nullity is as close to absolute as interpretive principles get. The Court's reading does not merely give "by the State" a duplicative effect; it causes the phrase to have no effect whatever."
. . .

"It is bad enough for a court to cross out "by the State" once. But seven times?"
. . .

"The Court's next bit of interpretive jiggery-pokery involves other parts of the Act. . ."

, . .

"The somersaults of statutory interpretation they have performed. . .will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites." King v. Burwell, Case No. 14-114 (U.S. S.Ct. 6/25/15)

JURY INSTRUCTIONS-VICTIM TESTIMONY: Court may not give special jury instruction informing jury that a sexual battery victim's testimony need not be corroborated. Gutierrez v. State, 40 Fla. L. Weekly S359a (FLA 6/25/15)


QUOTATION: "(A)ny statement by the judge that suggests one witness's testimony need not be subjected to the same tests for weight or credibility as the testimony of others has the unfortunate effect of bolstering that witness's testimony by according it special status. The instruction in this case did just that, and in the process effectively placed the judge's thumb on the scale to lend an extra element of weight to the victim's testimony." Gutierrez v. State, 40 Fla. L. Weekly S359a (FLA 6/25/15)


QUOTATION: "If the defendant had testified in the instant case that the sexual encounter he had with the alleged victim was consensual, would he have been entitled to an instruction stating, 'the testimony of a defendant need not be corroborated'?" Gutierrez v. State, 40 Fla. L. Weekly S359a (FLA 6/25/15)


DOUBLE JEOPARDY: Convictions for Solicitation and Traveling to meet minor violates double jeopardy. Shelley approved, Murphy disapproved. State v. Shelley, 40 Fla. L. Weekly S362a (6/25/15)


SEVERANCE: Trial court did not err in denying motion to sever grand theft charge and escape charge. Fletcher v. State, 40 Fla. L. Weekly S366a (FLA 6/25/15)


STATEMENTS OF DEFENDANT
: Defendant's statement, "I don't want to talk to nobody then," was not invocation of right to remain silent where purpose of statement was to persuade guards to loosen shackles. Fletcher v. State, 40 Fla. L. Weekly S366a (FLA 6/25/15)


PRIOR CRIMES
: Brief and fleeting statements referencing defendant's incarceration at time of his escape were not so prejudicial as to vitiate entire trial. Fletcher v. State, 40 Fla. L. Weekly S366a (FLA 6/25/15)


SILENCE OF DEFENDANT
: Prosecutor did not improperly comment on any post-arrest silence by referencing defendant's indication in the midst of a lengthy interview that he didn't really want to tell officer everything that happened. Fletcher v. State, 40 Fla. L. Weekly S366a (FLA 6/25/15)


PROBATION-REVOCATION-TOLLING
: Probation was properly tolled because of filing of probation violation affidavit, issuance of probation warrant, and delivery of warrant to Department of Corrections well before expiration of probation period. Parham v. State, 40 Fla. L. Weekly D1488a (6/25/15)


LIFE SENTENCE FOR JUVENILE-HOMICIDE
: Court may sentence juvenile to life imprisonment without possibility of parole or new parole sentence review statute where Court is aware that a life sentence is not mandatory. Question certified. Lindsey v. State, 40 Fla. L. Weekly D1464a (6/24/15)


PRINCIPAL-CIRCUMSTANTIAL EVIDENCE
: Conviction of defendant under principals theory was erroneous where there was no evidence that defendant aided and abetted his wife in any exploitation of elderly victim, whose estate documents were amended to benefit defendant and his wife. His witnessing the signing of the documents is not enough. Javellana v. State, 40 Fla. L. Weekly D1475a (6/24/15)


AMENDED INFORMATION: State may not amend information mid-trial to add second officer as an alternative victim. Amendment was tantamount to adding a new charge against defendant. Carlson v. State, 40 Fla. L. Weekly D1474a (6/24/15)


JURY INSTRUCTION-ATTEMPTED MANSLAUGHTER
: Error in instructing jury that attempted voluntary manslaughter was accomplished by an act intended to cause death of victim was waived by defense counsel when counsel not only failed to object, but specifically agreed to that instruction and declined several opportunities to challenge language of instruction. Facin v. State, 40 Fla. L. Weekly D1490b (6/24/15)


LIFE IMPRISONMENT FOR JUVENILE-HOMICIDE
: Life sentence without parole for homicide committed by juvenile remanded for resentencing with new legislation. Robbins v. State, 40 Fla. L. Weekly D1490a (6/24/15)

ARGUMENT: Prosecutor's comment that victim had recanted his initial identification of defendant from photo-lineup because he was scared was not supported by evidence. New trial required. Narcisse v. State, 40 Fla. L. Weekly D1474c (6/24/15)


POST CONVICTION RELIEF: Error to dismiss motion for exceeding 50 pages, where the extra pages were attached exhibits. Easley v. State, 40 Fla. L. Weekly D1474b (6/24/15)



JURY INSTRUCTION-FELONY MURDER
: No error in instructing jury on attempted felony murder although information charged attempted premeditated murder. Weatherspoon v. State, 40 Fla. L. Weekly D1470a (6/24/15)


QUOTATION: "Although I was on the panel affirming the attempted murder conviction of appellant's co-defendant. . ., I now disagree with the analysis in that opinion. . on. . . the same issue presented in this case." Weatherspoon v. State, 40 Fla. L. Weekly D1470a (6/24/15)


POST CONVICTION RELIEF-PLEA-VOLUNTARINESS: Plea is voluntary where defendant voluntarily entered into negotiated plea with knowledge of scoresheet errors and knowledge that the charge and sentence were reduced after the errors had been brought to state's attention. Wright v. State, 40 Fla. L. Weekly D1469b (6/24/155)


ALIMONY-PERMANENT: Permanent alimony can be awarded for a long term marriage without clear and convincing evidence. Clear and convincing standard only applies to moderate length marriage. Banks v. Banks, 40 Fla. L. Weekly D1463a (6/24/15)


FAMILY LAW FORMS
: Forms tweaked. In re: Amendments to Family Law Forms, 40 Fla. L. Weekly S214b (6/23/15)


AFTERTHOUGHT DEFENSE
: Failure to give jury instruction that taking of victim's vehicle would not be carjacking if taking was an afterthought, was not fundamental error where defense counsel argued only that the taking of the vehicle keys by force did not constitute the taking of the vehicle by force. Because defense counsel "inexplicably" did not request an afterthought instruction, the conviction stands. Burns v. State, 40 Fla. L. Weekly D1450a (6/22/15)

SEARCH AND SEIZURE: Facial challenges to a statute under the Fourth Amendment are not categorically barred or especially disfavored. City of Los Angeles v. Patel, Case No. 13-1175 (U.S. S.Ct. 6/22/15)

SEARCH AND SEIZURE: Ordinance requiring hotels to keep and turn over for inspection its guest logs without the possibility of precompliance review violates the Fourth Amendment. City of Los Angeles v. Patel, Case No. 13-1175 (U.S. S.Ct. 6/22/15)

APPEALS: Appellant's attorney admonished for brief which asserted as facts testimony and inferences rejected by the trial court. "Such practices are inappropriate and unprofessional." Gonser v. State, 40 Fla. L. Weekly D1445a (6/19/15)

APPEAL
: Appellate counsel was ineffective for failing to argue that the giving of standard instruction on manslaughter constituted fundamental error. Error was reversible even though defendant asserted mistaken identity defense. Beharry v State, 40 Fla. L. Weekly D1443b (6/19/15)

CONFRONTATION: Sixth Amendment does not prohibit prosecutors from admitting Child's statements about abuse to his teachers when the child was not available to be cross-examined and neither the child nor his teachers had the primary purpose of assisting in Clark's prosecution. Ohio v. Clark, Case No. 13-1352 (U.S. S.Ct. 6/18/15)


SCALIA-CISM: "I write separately, however, to protest the Court's shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U. S. 36 (2004)." Ohio v. Clark, Case No. 13-1352 (U.S. S.Ct. 6/18/15)


SCALIA-CISM: "For several decades before [Crawford], we had been allowing hearsay statements to be admitted against a criminal defendant if they bore "'indicia of reliability.'" . . . Prosecutors, past and present, love that flabby test." Ohio v. Clark, Case No. 13-1352 (U.S. S.Ct. 6/18/15)


SCALIA-CISM: "Crawford remains the law. But when else has the categorical overruling, the thorough repudiation, of an earlier line of cases been described as nothing more than "adopt[ing] a different approach,". . .-as though Crawford is only a matter of twiddle-dum twiddle-dee. . .preference." Ohio v. Clark, Case No. 13-1352 (U.S. S.Ct. 6/18/15)


SCALIA-CISM: "But snide detractions do no harm; they are just indications of motive. Dicta on legal points, however, can do harm, because though they are not binding they can mislead." Ohio v. Clark, Case No. 13-1352 (U.S. S.Ct. 6/18/15)

SCALIA-CISM: "A suspicious mind (or even one that is merely not naïve) might regard this distortion as the first step in an attempt to smuggle longstanding hearsay exceptions back into the Confrontation Clause." Ohio v. Clark, Case No. 13-1352 (U.S. S.Ct. 6/18/15)


AMENDMENT TO JURY INSTRUCTIONS-KIDNAPPING: Tweaking of instructions for kidnapping and false imprisonment. In Re: Standard Jury Instructions, 40 Fla. L. Weekly S353a (6/18/15)

CIRCUMSTANTIAL EVIDENCE: Evidence that defendant's DNA was detected within scrapings collected from victim's fingernail was insufficient to exclude reasonable hypothesis of innocence, and was insufficient to support conviction for murder. Hodgkins v. State, 40 Fla. L. Weekly S346a (6/18/15)


POST-CONVICTION RELIEF
: No error in denying post conviction relief based on newly discovered evidence that codefendant subsequently received life sentence where the defendant was the triggerman and dominant actor. Hartley v. State, 40 Fla. L. Weekly S345a (6/18/15)


JURY INSTRUCTION-LESSER INCLUDED OFFENSE
: Failure to instruct on a necessarily lesser-included offense is not fundamental error in a non-capital case. Giving an inaccurate necessary lesser included instruction is fundamental error. Giving no lesser included instruction is not. Roberts v. State, 40 Fla. L. Weekly D1438b (6/18/15)


JURY INSTRUCTION-STAND YOUR GROUND
: Instruction both that defendant had no duty to retreat and that she had duty to retreat if she was engaged in unlawful activity was misstatement of law but was not fundamental error under facts of instant case because it did not negate theory of defense. Roberts v. State, 40 Fla. L. Weekly D1438b (6/18/15)


LIFE SENTENCE FOR JUVENILE, NON-HOMICIDE: 25 year mandatory minimum is not a de facto life sentence. Juvenile Defendant is not entitled to a review after 16 years. Abrakata v. State, 40 Fla. L. Weekly D1437b (6/18/15)

SENTENCING: Error to sentence defendant to prison sanction for DWLS without making written findings that nonstate prison sanction could present a danger to public. Schreiner v. State, 40 Fla. L. Weekly D1435b (6/17/15)


MANSLAUGHTER BY CULPABLE NEGLIGENCE: The second degree murder conviction stands where the Court gave a flawed manslaughter by act instruction and evidence supports both/either manslaughter by act and manslaughter by culpable negligence. Dawkins v. State, 40 Fla. L. Weekly D1426a (6/17/15)


JURY: One is entitled to a twelve person jury in a first degree murder case, regardless of whether death penalty is sought, but the error is not fundamental. Jimenez v. State, 40 Fla. L. Weekly D1422b (6/17/15)


JIMMY RYCE ACT: Annual Jimmy Ryce evaluations can be suspended when Offender is temporarily in custody of DOC serving sentences for new offenses. Jackson v. State, 40 Fla. L. Weekly D1418b (6/17/15)


PROBATION REVOCATION-HEARSAY
: Defendant's probation was improperly revoked based on hearsay alone where the neighbor who saw perpetrators did not testify, so all her statements, including her report of the license tag number of the alleged getaway vehicle in which defendant was riding when it was stopped later, was hearsay. Vidale v. State, 40 Fla. L. Weekly D1413a (6/17/15)



RESTITUTION: Restitution may be ordered in an amount greater than the maximum dollar value defining the offense for which a defendant is adjudicated guilty. The standard for restitution is the "significant relationship" test. Apprendi does not apply to restitution. State v. Tomasheski, 40 Fla. L. Weekly D1412a (6/17/15)


RETURN OF PROPERTY: Court erred by denying return of vehicle used by Defendant in vehicular homicide case without attaching portions of record conclusively establishing defendant was not entitled to relief. Matos v. State, 40 Fla. L. Weekly D1407a (6/17/15)

INJUNCTION: Trial court erred in requiring respondent to surrender all of his ammunition and firearms where respondent was law enforcement officer. The Court may provide limitations on any personal firearms or ammunition in respondent's possession. Martinez v. Izquierdo, 40 Fla. L. Weekly D1405a (6/17/15)

APPEAL: State may not appeal when the trial court sua sponte dismissed delinquency petition for failure to serve summons and the State did not preserve the issue, notwithstanding that the Court was without authority to dismiss the case. State v. C.W., 40 Fla. L. Weekly D1403a (6/17/15)

DOUBLE JEOPARDY: Separate convictions of resisting an officer with violence arising from a single episode violated prohibition against double jeopardy. Hills v. State, 40 Fla. L. Weekly D1401a (6/15/15)

CIRCUMSTANTIAL EVIDENCE-CONSTRUCTIVE POSSESSION
: Evidence that firearm was found in center console of vehicle rented by defendant, and that console also contained a cell phone receipt bearing defendant's name and dated two days before search, did not rebut defendant's reasonable hypothesis of innocence that other individuals drove or occupied vehicle in intervening days between date on receipt and date of search. Kemp v. State, 40 Fla. L. Weekly D1399a (6/15/15)


POST-CONVICTION RELIEF: Moving to consolidate two sexual offenses against different convictions may be ineffective assistance of counsel where the Defendant is not advised of the dangers posed by the consolidation. Alford v. State, 40 Fla. L. Weekly D1398h (6/15/15)

APPEALS-PRESERVATION: Claim that 10/20/Life statute is unconstitutional as applied because it amounts to cruel and unusual punishment was not preserved for appellate review. An as-applied constitutional challenge cannot be raised for the first time on appeal. Charlemagne v. State, 40 Fla. L. Weekly D1394b (6/12/15)


APPEALS-SENTENCING
: Claim that sentencing order does not conform to oral pronouncement was not preserved for appellate review where defendant did not object or raise error in rule 3.800(b) motion. Khan v. State, 40 Fla. L. Weekly D1394a (6/12/15)


IMMUNITY FROM PROSECUTION
: Defendant was not immune from prosecution for possession of heroin under statute which provides for immunity in the case of a person who experiences a drug-related overdose and is in need of medical assistance where defendant showed signs of drug impairment, but no signs of a drug overdose or need for medical assistance when he was taken into custody pursuant to Marchman Act. State v. Silliman, 40 Fla. L. Weekly D1393a (6/12/15)


SENTENCING
: Sentence of ten years' probation with five years' state prison as special condition of probation was illegal. Fernandez v. State, 40 Fla. L. Weekly D1387d (6/12/15)


SENTENCING-PRR
: Error to impose PRR sentences for possession of firearm by convicted felon and armed tampering with evidence. Boykin v. State, 40 Fla. L. Weekly D1386c (6/12/15)


LIFE SENTENCE-JUVENILE-NON-HOMICIDE
: 15-year sentence for aggravated fleeing or attempting to elude law enforcement officer did not amount to de facto life sentence. Further, executive clemency process is available to defendant to seek earlier release based on showing of maturity or rehabilitation. Lambert v. State, 40 Fla. L. Weekly D1347a (6/12/15)


AMENDMENTS TO RULES GOVERNING THE FLORIDA BAR
: In re: Amendments, 40 Fla. L. Weekly S330a (6/11/15)


AMENDMENT TO CRIMINAL PROCEDURE RULES
: Rules for Post conviction relief are tweaked to make them consistent with appellate rules. In re: Amendments, 40 Fla. L. Weekly S322a (6/11/15)


STAND YOUR GROUND
: Trial court erred in retroactively applying amendment to Stand Your Ground law which prohibits assertion of immunity under the law by a defendant who was engaged in criminal activity. Rosario v. State, 40 Fla. L. Weekly D1380a (6/11/15)



CHILD SUPPORT-IMPUTED INCOME
: The court may not impute income to mother without requisite findings and evidence of mother's diligence or lack thereof in seeking employment. Heard v. Perales, 40 Fla. L. Weekly D1367b (6/10/15)


DISCOVERY-MEDICAL RECORDS
: Trial court departed from essential requirements of law in granting co-defendant's request for court to review medical records of defendant in camera where co-defendant failed to demonstrate the relevancy of the records. Records are protected by the constitutional right to privacy. Barahona v. State, 40 Fla. L. Weekly D1366a (6/10/15)


SEARCH AND SEIZURE-INEVITABLE DISCOVERY
: Contraband discovered during the initial phases of a civil detainment is admissible to prove a criminal charge. Ammunition found in backpack of felon who is the subject of a Marchman Act detention is admissible in a criminal case. White v. State, 40 Fla. L. Weekly D1362a (6/10/15)


CHILD SUPPOR
T: Circuit court erred by failing to include child support guidelines worksheet in final judgment establishing paternity and child support. DOR V. A.N.J., 40 Fla. L. Weekly D1351a (6/10/15)


PUBLIC DEFENDER LIEN
: Judge must give Defendant notice of his right to a hearing to contest the amount of the public defender lien at the time of the sentence. Wilson v. State, 40 Fla. L. Weekly D1349a (6/9/15)


INDIRECT CRIMINAL CONTEMPT
: Court may not find defendant in indirect criminal contempt on the basis of incidents that occurred after the protection against domestic violence order had expired, or for allegations in a petition which had earlier been dismissed. Ardis v. State, 40 Fla. L. Weekly D1348e (6/9/15)


PROBATION REVOCATION
: Condition requiring defendant to maintain full-time employment without providing reasonable opportunity to secure employment is an invalid condition. Aviles v. State, 40 Fla. L. Weekly D1346a (6/8/15)


CIRCUMSTANTIAL EVIDENCE
: Court erred by granting motion for judgment of acquittal notwithstanding verdict for taking medicine from home. Evidence was sufficient for rational trier of fact to find that defendant entered dwelling with intent to take medications from dwelling without owners' permission. State v. Adams, 40 Fla. L. Weekly D1345b (6/8/15)


SEARCH--REFUSAL TO SUBMIT TO BREATH TEST: It is not unconstitutional to punish a person criminally for refusing to submit to a breath alcohol test when the officer conducting the test does not have a warrant. Fifth DCA rejects application of McNeely v. Missouri to breath tests. Williams v. State , 40 Fla. L. Weekly D1337a (6/5/15)


PEREMPTORY CHALLENGE: Trial court erred in refusing to require state to provide gender-neutral reasons for peremptory challenges of male jurors. State's argument that males are not a protected class is wrong. Guevara v. State, 40 Fla. L. Weekly D1344a (6/5/15)



JURY INSTRUCTION-MANSLAUGHTER-LESSER INCLUDED
: Giving of erroneous jury instruction on manslaughter by act as lesser included offense of second degree murder constituted fundamental error, although jury was also instructed on manslaughter by culpable negligence, and defendant's sole defense at trial was mistaken identity. Gland v. State, 40 Fla. L. Weekly D1343a (6/5/15)


LIMITATION OF ACTIONS: Trial court erred in finding that statute of limitations is an affirmative defense and defendant had the burden to prove that prosecution was barred -- When defendant challenges his prosecution as untimely commenced, state has burden to establish that prosecution is not barred by statute of limitations. Because a prosecution for a felony that results in death may be commenced at any time, trial court is required to determine whether defendant's leaving, not the accident itself, caused the death. Escalante v. State, 40 Fla. L. Weekly D1342f (6/5/15)



CREDIT FOR TIME SERVED
: A motion to correct credit for time served is moot when the Defendant has already been released from custody. Boggs v. State, 40 Fla. L. Weekly D1342d (6/5/15)
MOTION TO MITIGATE: Error to deny as untimely Defendant's motion to mitigate which was filed within sixty days following appellate court's issuance of mandate. Bautista v. State, 40 Fla. L. Weekly D1342a (6/5/15)


COMPETENCY OF DEFENDANT
: Where defendant was placed on conditional release with condition of release that he undergo competency restoration training, trial court was without authority to order additional competency restoration services after conditional release was terminated. D.S. v. State, 40 Fla. L. Weekly D1336c (6/5/15)

JURY INSTRUCTIONS: Amendments to Leaving Scene, Fleeing and Eluding, Failure to obey lawful order of police. In Re: Standard Jury Instructions, 40 Fla. L. Weekly S314b (Fla. 6/4/15)

CONSPIRACY-AND/OR: Use of "and/or" in conspiracy information is allowed. A conspiracy to commit trafficking only requires that the co-conspirators agree to commit the same specified offense, not the same act. Carrying a firearm is not the same as actual possession of a firearm. State v. Roth, 40 Fla. L. Weekly D1327a (6/3/15)

INFORMATION: Where defendant knew he was charged with armed robbery and jury made express finding of "actual possession," defendant was not prejudiced by defect in charging document, which alleged that defendant "carried" a firearm. Martinez v. State, 40 Fla. L. Weekly D1313a (6/3/15)

SELF DEFENSE INSTRUCTION-INJURY/EXTRA COMMA: Use of the word "injury" in the self-defense instruction is not fundamental error. Objection is required to preserve the error. Use of extra comma, implying only deadly force can be resisted, is not fundamental error under the facts here. Neal v. State, 40 Fla. L. Weekly D1310a (6/3/15)

WITHDRAWAL OF PLEA: Motion to withdraw plea was untimely where filed more than 30 days after sentencing. Fox v. State, 40 Fla. L. Weekly D1309c (6/3/15)

MOTION TO MITIGATE: Court was without jurisdiction to mitigate sentence where motion was not filed within 60 days after imposition of sentence. Fox v. State, 40 Fla. L. Weekly D1309c (6/3/15)

DEFAULT: Trial court improperly denied former wife's motion to set aside default or default final judgment and motion for relief from judgment where wife was insufficiently notified of hearing. Bisel v. Bisel, 40 Fla. L. Weekly D1309a (6/30/15)


RETURN OF PROPERTY: Error to dismiss motion to return seized property without attaching portions of record demonstrating that property was seized and held as evidence by law enforcement or that it was seized pursuant to an investigation and was in custody of court clerk. Castleman v. State, 40 Fla. L. Weekly D1306a (6/2/15)

VERDICT: Trial court did not err in failing to reinstruct jury after jury marked defendant guilty on verdict form of both the highest charged crime and the necessarily lesser included offense where verdict demonstrated jury's intention to convict defendant of the main offense. Johnson v. State, 40 Fla. L. Weekly D1305a (4/2/15)

MENS REA-THREAT: One cannot be convicted of making an unlawful threat unless one has the intent to make a threat. The intent of the Defendant, not the perception of the person who felt threatened, is the relevant issue. Discussion of mens rea. Elonis v. United States, 13-983 (U.S. S.Ct. 6/1/15)
DEPORTATION
: One cannot be deported for possession of paraphernalia. Drugs prohibited by federal law are the only narcotics for which one can be deported. Mellouli v. Lynch, 13-1034 (U.S. S.Ct. 6/1/15)

QUOTATION: "The incongruous upshot is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA's interpretation, we hold, is owed no deference." Mellouli v. Lynch, 13-1034 (U.S. S.Ct. 6/1/15)

MAY 2015

EVIDENCE-OPINION-DAUBERT: Discussion of steps necessary for analysis of whether expert scientific testimony is admissible under Daubert test. Objections must be made well before trial. Objections should include citations to conflicting authorities. A general Daubert objection is insufficient. Pure opinion testimony is inadmissible. Booker v. Sumter County Sheriff, 40 Fla. L. Weekly D1291c (5/29/15)

JUVENILE-LIFE SENTENCE: Defendant who was sentenced to life imprisonment for nonhomicide offense committed when he was a juvenile is not entitled to resentencing under new sentence review statute where he had previous convictions for armed robbery and conspiracy to commit armed robbery. Kelsey v. State, 40 Fla. L. Weekly D1291b (5/29/15)

APPEALS-CERTIORARI: Appellate court cannot review by cert whether red light camera photos are self-authenticating because cert is only available where the trial court violated a clearly established principle of law resulting in a miscarriage of justice. This issue has not been clearly resolved. Clark v. State, 40 Fla. L. Weekly D1289b (5/29/15)


APPEAL-PRESERVATION OF ISSUE
: Claim that defendant was erroneously sentenced as PRR for conviction of battery on law enforcement officer, which was neither a qualifying nor an enumerated offense under PRR statute, was not preserved for appeal where defendant did not object or file rule 3.800(b)(2) motion. DISSENT: "Plain and simple: it is ineffective assistance of counsel to fail to object to an illegal sentence. This is the only statement of law necessary to this case. . .This Court need not continue this appellate wheel spinning. Because there is no support for the majority's holding that ineffective assistance of counsel claims must be preserved, I dissent." Elmore v State, 40 Fla. L. Weekly D1285b (5/28/15)


ATTORNEY'S FEES
: Amounts husband was obligated to pay in alimony and child support should have been deducted when determining husband's ability to pay attorney's fees. Haywald v. Fougere, 40 Fla. L. Weekly D1285a (5/28/15)

APPEALS: Time to appeal runs from date of rendition of order to be reviewed, which is date order is filed with clerk. Henley v. State, 40 Fla. L. Weekly D1278a (5/27/15

DOUBLE JEOPARDY
: Dual convictions violate double jeopardy because state did not charge the offenses as occurring during separate criminal episodes and the offense of unlawful use of two-way communications device does not contain any elements that are distinct from the offense of traveling to meet a minor. Hamilton v. State, 40 Fla. L. Weekly D1277a (5/27/15)

SENTENCING-LIFE SENTENCE FOR JUVENILE: Proper remedy for defendant whose sentences for offenses committed when defendant was juvenile violate controlling precedent is remand to trial court for resentencing in accordance with provisions of recent legislation addressing juvenile sentencing, which applies even in cases in which underlying crime was committed before legislation's effective date. Santiago v. State, 40 Fla. L. Weekly D1257a (5/27/15)

JURY INSTRUCTION-MANSLAUGHTER BY ACT: 2008 interim manslaughter by act instruction given by trial court erroneously stated elements of offense and was fundamental error. Figueroa v. State, 40 Fla. L. Weekly D1256a (5/27?15)


SENTENCING-SCORESHEET-REVOCATION OF PROBATION: Error to score additional offenses, for which defendant had completed his sentences and hence were not pending before the court, following revocation of defendant's probation. Somps v. State, 40 Fla. L. Weekly D1252a (5/27/15)

DISCOVERY VIOLATION: Trial court erred in permitting police officer to testify as an expert on street-level narcotics and the modus operandi of street-level drug dealers where the state had listed the officer as a Category A witness but had not designated him as an expert. Ward v. State, 40 Fla. L. Weekly D1247a (5/27/15)


NEWLY DISCOVERED EVIDENCE
: No error in denying relief based on discovery that co-conspirator's memory had been refreshed through hypnotism. Tramontano v. State, 40 Fla. L. Weekly D1245a (5/27/15)

JURORS-PEREMPTORY CHALLENGE-RACIAL DISCRIMINATION: Trial court properly overruled objection to state's peremptory challenge where juror had stated she believed a person who committed a felony in the past was more likely to commit a felony in the future, victim was a convicted felon, and at issue in the trial was whether it was the victim, rather than the defendant, who had been engaging in felonious activity. Harris v. State, 40 Fla. L. Weekly D1235b (5/27/15)

EVIDENCE-UNCHARGED CRIMES: No error in denying motion for mistrial based on corrections officer's testimony regarding incident in which defendant chased another inmate and officer noticed inmate bleeding significantly from head and neck. Moore v. State, 40 Fla. L. Weekly D1235a (5/27/15)

LIFE SENTENCE FOR JUVENILE: 280-year aggregate sentence for nonhomicide offenses committed when defendant was juvenile was unconstitutional where sentence did not afford any meaningful opportunity for defendant to obtain release based on demonstrated maturity and rehabilitation. Streeter v. State, 40 Fla. L. Weekly D1234b (5/27/15)

DOUBLE JEOPARDY: Claim that prosecution on charges of unauthorized practice of law was barred because circuit court initiated direct criminal contempt proceeding against defendant based on same underlying facts is without merit. Marino v. State, 40 Fla. L. Weekly D1233b (5/27/15)

ALIMONY-IMPUTED INCOME: Trial court erred in failing to impute to former wife income for earnings that could reasonably be projected based on her liquid assets while imputing the same type of income to former husband. Winnier v. Winnier, 40 Fla. L. Weekly D1227a (May 27, 2015)

PROBATION REVOCATION: Probation officer's hearsay testimony, by itself, that another person said defendant no longer lived at residence was insufficient to support finding that defendant violated probation by changing residence without prior approval. Rutland v. State, 40 Fla. L. Weekly D1224c (5/22/15)

SEARCH AND SEIZURE-CELL PHONE LOCATION DATA: Trial court erred in denying motion to suppress evidence resulting from search and seizure of real-time cell phone location data without a warrant. Defendant had a reasonable expectation of privacy in his real-time cell phone location data. Herring v. State, 40 Fla. L. Weekly D1221a (5/22/15)

JUDGMENT OF ACQUITTAL-PREMEDITATION: JOA for attempted first-degree murder properly denied where issue of premeditation was not argued in Motion for JOA, and in all events there was non-circumstantial evidence of premeditation. Morales v. State, 40 Fla. L. Weekly D1219a (May 22, 2015)

DOUBLE JEOPARDY: One cannot be convicted of both burglary of conveyance with battery with weapon and lesser-included offense of aggravated battery with deadly weapon. Whitfield v. State, 40 Fla. L. Weekly D1213a (5/22/15)

COMPETENCY TO STAND TRIAL: Trial court did not abuse its discretion in not providing defendant with competency hearing, at request of defense counsel, following defendant's suicide attempt on eve of trial where there was nothing to suggest that communication between defendant and defense counsel was impaired. An attempted suicide does not raise a presumption of incompetency. Whitfield v. State, 40 Fla. L. Weekly D1213a (5/22/15)

DOUBLE JEOPARDY: One cannot be convicted of both burglary of a dwelling with an assault of battery with a felony and aggravated assault/battery with a firearm. Hankins v. State, 40 Fla. L. Weekly D1212b (May 22, 2015)

INFORMATION: No due process violation resulted from fact that assistant state attorney signed information as opposed to state attorney himself. Anderson v. State, 40 Fla. L. Weekly D1212a (5/22/15)

DOUBLE JEOPARDY: Prosecution of defendant for possession of controlled substance based on same substance that formed the basis of his conviction for violating county ordinance violated his right not to be twice placed in jeopardy for same offense. Hutto v. State, 40 Fla. L. Weekly D1210a (5/22/15)

SELF-DEFENSE-VICTIM'S PRIOR ACTS OF VIOLENCE: Trial court erred in excluding evidence of victim's prior specific acts of violence . Fact that defendant testified that victim's injury was an accident did not make evidence of victim's prior acts of violence irrelevant in this case. Mohler v. State, 40 Fla. L. Weekly D1208c (5/22/15)

INEFFECTIVE ASSISTANCE: Error to deny relief on multiple claims of ineffective assistance of counsel without making factual findings. Mitchell v. State, 40 Fla. L. Weekly D1208b (5/22/15)

SEARCH AND SEIZURE: Detectives investigating an anonymous tip that house on property was used to grow marijuana could not enter property to conduct knock and talk or to pursue consensual encounter without first obtaining defendant's permission to enter property where property, a semirural homestead where detectives found two marijuana plants, was surrounded by chain-link fence, had closed gate with "no trespassing-violators will be prosecuted" and "beware of dog" signs, and had mailbox accessible from outside the fence. Robinson v. State, 40 Fla. L. Weekly D1206a (May 22, 2015)

RE-SENTENCING: Where one charge is vacated post-conviction, the Defendant is entitled to re-sentencing on remaining charge with a correct scoresheet. Oliver v. State, 40 Fla. L. Weekly D1205b (May 22, 2015)

SENTENCING: When a sentencing court expressly considers defendant's refusal to admit guilt, the truthfulness of his testimony, or the failure to show remorse, fundamental error and a denial of due process occur. Williams v. State, 40 Fla. L. Weekly D1205a (5/22/15)

AMENDMENT TO BAR RULES: Multiple rule changes to clean up changes in rules regulating the Florida Bar. In RE: Amendments to Rules, 40 Fla. L. Weekly S283b (5/21/15)

STATUTE OF LIMITS-LEWD AND LASCIVIOUS BATTERY: Statute extending statute of limitations for lewd and lascivious offenses where identity of accused is established through analysis of DNA evidence did not apply in instant case in which DNA was not obtained during the original investigation. Therlonge v. State, 40 Fla. L. Weekly D1204a (5/20/15)

CORPUS DELICTI: Judgment of Acquittal is required where conspiracy conviction was based solely on defendant's self-incriminating statements, and state failed to present corpus delicti independent of those statements. White-Jordan, 40 Fla. L. Weekly D1203c (5/20/15)

JURY INSTRUCTIONS-LESSER INCLUDED: Claim that trial court reversibly erred in failing to give instruction on robbery as lesser-included offense of armed robbery was not preserved for review where defense counsel withdrew request for all category one lesser included offenses and acquiesced to jury instructions given by trial court without objection. Castillo v. State, 40 Fla. L. Weekly D1203b (5/20/15)

POST-CONVICTION RELIEF: Counsel may be ineffective for failing to advise a defendant about the maximum possible penalty when conveying a plea offer. Mitchell v. State, 40 Fla. L. Weekly D1203a (5/20/15)

HEARSAY-FORMER TESTIMONY: Trial court abused its discretion by excluding prior exculpatory testimony given by a witness at a civil forfeiture hearing. Witness was unavailable where she intended to exercise her Fifth Amendment right against self-incrimination if called at trial. Wyatt v. State, 40 Fla. L. Weekly D1201b (5/20/15)

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL: Appellate counsel was ineffective for failing to argue that separate convictions for home invasion robbery and burglary violated double jeopardy where there was nothing in record to show that defendant waived double jeopardy violation during open pleas. Baptiste v. State, 40 Fla. L. Weekly D1194a (5/20/15)

EVIDENCE-LEWD AND LASCIVIOUS: Trial court abused its discretion in excluding testimony from defendant's first wife and son which would have supported defendant's theory that mother/second wife coaxed victim to make up molestation charges so that she could be free to date other men. Roman v. State, 40 Fla. L. Weekly D1190a (5/20/15) -- New trial required

ATTORNEY'S FEES-DOMESTIC RELATIONS: In assessing attorney's fees, the financial resources of the parties are the primary factor to be considered, but other relevant circumstances include factors the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. Edgar v. Firuta, 40 Fla. L. Weekly D1184a (5/20/15)

MODIFICATION OF CHILD CUSTODY: Trial court erred by entering emergency order temporarily modifying parenting plan by providing for child to remain in Colorado with husband until such time as court could hold evidentiary hearing where husband's motion did not seek modification of timesharing arrangement. Bronstein v. Bronstein, 40 Fla. L. Weekly D1181b (5/20/15)

STAND YOUR GROUND: Trial court properly concluded, following evidentiary hearing, that given totality of defendant's actions, defendant had not satisfied necessary burden of proof to be immune from criminal prosecution under Stand Your Ground law. Arauz v. State, 40 Fla. L. Weekly D1180e (5/20/15)

LIFE SENTENCE FOR JUVENILES: Trial court did not err in denying motion arguing that sentence of life imprisonment without possibility of parole for second-degree murder committed while defendant was a juvenile violated Miller. Question certified. Landrum v. State, 40 Fla.L.Weekly D1178a (5/20/15)

STAND YOUR GROUND: Trial court properly admitted defendant's testimony at his pre-trial Stand Your Ground hearing because in so testifying, defendant was not forced to make a choice between two constitutional rights, as between his right to bear arms in self-defense and his Fifth Amendment privilege against self-incrimination. Cruz v. State, 40 Fla. L. Weekly D1172a (May 20, 2015)

DISCOVERY: Trial court improperly admitted video-recorded statement of defendant that state had provided to defense counsel as part of discovery in other pending cases but had not listed in its discovery submissions in the instant case. Brown v. State, 40 Fla. L. Weekly D1171a (May 20, 2015)

LEWD AND LASCIVIOUS: Trial court erred in denying motion for judgment of acquittal on one count charging lewd and lascivious battery where state failed to present evidence that defendant committed lewd and lascivious battery on victim on or between the dates specified in that count. McLean v. State, 40 Fla. L. Weekly D1170a (5/20/15)

TERMINATION OF PARENTAL RIGHTS: Parental rights can be terminated based only on the parent's lengthy incarceration. B.K.v. DCF, 40 Fla. L. Weekly D1165a (5/20/15)

PROBATION REVOCATION: Evidence was insufficient to prove that defendant violated condition of probation by possessing controlled substances and narcotics equipment -- Evidence was insufficient to prove that defendant violated condition of probation forbidding associating with persons engaged in criminal activity where he is in a car with others and narcotics are found therein. Williams v. State, 40 Fla. L. Weekly D1163a (5/19/15)

CHILD HEARSAY: Claim that trial court erred by failing to make required findings of reliability in ruling that child victim's out-of-court statements were admissible was not preserved where defendant failed to make a contemporaneous objection to the lack of findings. Cowan v. State, 40 Fla. L. Weekly D1162b (5/19/15)

DOUBLE JEOPARDY: Separate convictions for aggravated battery with a deadly weapon and aggravated battery causing great bodily harm stemming from a single criminal episode violated prohibition against double jeopardy. Griffis v. State, 40 Fla. L. Weekly D1162a (5/19/15)

FIREARMS: A court-ordered transfer of a felon's lawfully owned firearms from Government custody to a third party is not barred by §922(g) if the court is satisfied that the recipient will not give the felon control over the firearms, so that he could either use them or direct their use. Henderson v. United States, 13-1487 (U.S. S.Ct. 5/18/15)

ATTORNEY CONDUCT: "(B)ecause we find [the motion for rehearing] to be both meritless and insulting, we order. . . Frederic Stanley, Jr., Esquire, to show cause . . . why monetary or other sanctions should not be imposed." McDonnell v. Sanford Airport Authority, 40 Fla. L. Weekly D1151a (5/15/15)

INEFFECTIVE ASSISTANCE: Failure to argue that attempted manslaughter jury instruction given in defendant's case constituted fundamental error, despite supreme court precedent supporting claim is ineffective assistance of counsel. Jones v. State, 40 Fla. L. Weekly D1157b (May 15, 2015)

DOUBLE JEOPARDY: Defendant's double jeopardy rights were violated when, after defendant's motion to correct illegal sentence based on scoresheet error was granted, resentencing judge imposed identical sentences of incarceration and added new special conditions of probation. Peacock v. State, 40 Fla. L. Weekly D1156a (May 15, 2015)


INEFFECTIVE ASSISTANCE: Claim that counsel was ineffective for failing to investigate and pursue insanity defense not refuted by testimony relied on by trial court. Siskos v. State, 40 Fla. L. Weekly D1152b (5/15/15)

DOUBLE JEOPARDY: Dual convictions for aggravated assault with firearm were prohibited. Casar v. State, 40 Fla. L. Weekly D1152a (5/15/15)


CREDIT FOR TIME SERVED: Correction of jail credit for out-of-state incarceration can only be raised under a Rule 3.850 motion, not under a Rule 3.801 motion. Huff v. State, 40 Fla. L. Weekly D1147c (5/15/15)


ANDERS BRIEF: Although appeal was presented to appellate court as "wholly frivolous," two of the sentences imposed are illegal in excess of the statutory maximum. Errors are so numerous we affirm without prejudice to seek collateral relief. Busbee v. State, 40 Fla. L. Weekly D1145b (5/15/15)

BURGLARY: It is not a defense that owner gave permission to enter when the tenant did not. Misadvise that owner can give permission where tenant denies permission is ineffective assistance of counsel. Lewis v. State, 40 Fla. L. Weekly D1145a (5/15/15)

PATERNITY-CHILD CUSTODY: Where two children had resided with putative father who turns out not to be the father of the older, trial court erred in awarding him majority time-sharing of both children. Corona v. Harris, 40 Fla. L. Weekly D1144a (5/15/15)


DISQUALIFICATION: Motion to disqualify judge was legally sufficient where former husband alleged that judge refused to allow him to cross-examine former wife during hearing. "[W]e leave it to the Florida Bar to take appropriate action against Petitioner if it turns out that the allegations. . . were merely a subterfuge to obtain a new judge." Wyckoff v. Cavanaugh, 40 Fla. L. Weekly D1143a (5/15/15)


SEARCH AND SEIZURE-OBSCURED TAG: Officer validly stopped vehicle where trailer hitch obscured portion of alphanumeric designation. Baker v. State, 40 Fla. L. Weekly D1141a (5/15/15)


CONTEMPT: Court is not required to find a parent in contempt of court for violating parenting plan. Conflict certified. Brooks v. Brooks, 40 Fla. L. Weekly D1140a (5/15/15)


RELOCATION
: Both time-sharing parents, regardless of which has the most parenting time, are required to file petition to relocate before doing so. Conflict certified. Brooks v. Brooks, 40 Fla. L. Weekly D1140a (5/15/15)


JUVENILES-LIFE SENTENCE FOR MURDER: Decision of U.S. Supreme Court in Miller v. Alabama applies retroactively to cases that were final before it was decided -- Remand for resentencing, applying the principles of chapter 2014-220. Barthel v. State, 40 Fla. L. Weekly D1139a (May 15, 2015)


COMPETENCY OF DEFENDANT: Where court-appointed expert had determined that defendant was mentally incompetent to proceed, trial court erred in proceeding with trial without holding competency hearing when expert subsequently reported that defendant had regained competence. Generally, the remedy for a trial court's failure to conduct a proper competency hearing is for defendant to receive a new trial, but new trial may not be necessary if defendant's competency can be determined retroactively. Roman v. State, 40 Fla. L. Weekly D1137b (5/14/15)

AMENDMENT TO RULES OF APPELLATE PROCEDURE: Electronic filing of record on appeal is now required. In Re: Amendments, 40 Fla. L. Weekly S262a (5/14/15)

FORFEITURE
: Probable cause found for currency in safe deposit box where Defendant arrested for sale of meth. Miami-Dade County v. Forfeiture of $26,474.00, 40 Fla. L. Weekly D1136a (May 13, 2015)


DOCTOR SHOPPING-DOCTOR-PATIENT PRIVILEGE
: Trial court erred in excluding testimony of physician who voluntarily contacted law enforcement to tell them that defendant, who was seeking a prescription for a controlled substance, had obtained a prescription for a controlled substance on the previous day. Trial court did not err in excluding testimony of physician who had been identified as the physician who had prescribed a controlled substance for defendant on the previous day where officers talked with physician without securing defendant's consent to allow physician to provide a statement and documents or put defendant on notice and secure a subpoena to obtain information from physician. State v. Strickling, 40 Fla. L. Weekly D1131a (5/13/15)

MEDICAL RECORDS
: Trial court properly suppressed medical records provided by both physicians without either securing authorization from defendant or giving notice and securing a subpoena to obtain medical records. State v. Strickling, 40 Fla. L. Weekly D1131a (5/13/15)


SEARCH AND SEIZURE: Trial court did not err in finding search of backyard of residence to be without consent and in granting motion to suppress methamphetamine "boat" found in backyard where defendant gave officers permission to search house for suspect in unrelated case, but there was conflicting testimony by law enforcement officers concerning when consent for search of yard was obtained. Even if defendant were legally detained by officers after they smelled odor of marijuana, this detention did not provide sufficient basis for officers to continue searching around the house. State v. Bultman, 40 Fla. L. Weekly D1127b (5/13/15)


SEARCH AND SEIZURE: Trial court erred in suppressing evidence procured from defendant's purse where purse was on defendant's person at time she was arrested for resisting officer without violence. Arrest on resisting offense was valid where defendant refused to comply with officers' orders to place purse on hood of car at a time when she was lawfully detained due to smell of marijuana. State v. Bultman, 40 Fla. L. Weekly D1127b (5/13/15)


VOLUNTARY INTOXICATION: Voluntary intoxication from a lawful prescription is a valid defense. Jacobson v. State, 40 Fla. L. Weekly D1126a (5/13/15)


POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to investigate and call witnesses regarding victim's reputation for violence to support defendant's claim of self-defense was legally insufficient where defendant did not specify what the witnesses's testimony would be. Gallo v. State, 40 Fla. L. Weekly D1125a

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL: Appellate counsel cannot be deemed ineffective for failing to present novel legal argument. Kablitz v. State, 40 Fla. L. Weekly D1122a (5/13/15)

EVIDENCE: State's cross-examination of defendant's medical expert regarding prior versions of his C.V. listing job titles he never officially held were properly admitted. Farrell v. State, 40 Fla. L. Weekly D1120a (5/13/15)


CONTEMPT: No error in denying former husband's motion for contempt for failure to pay his award of temporary attorney's fees where wife satisfied burden of overcoming presumption that she had ability to pay. Affirmance is without prejudice to husband securing judgment for unpaid temporary award in final judgment of dissolution or filing amended motion for contempt requesting purge amount within wife's present ability to pay. Tressel v. State, 40 Fla. L. Weekly D1119c (5/13/15)



STAND YOUR GROUND: Question certified--In a case where the defendant's sole defense is self-defense and there is a dispute as to whether the defendant or the victim was the initial aggressor, does a trial court commit fundamental error by instructing the jury both (1) that the defendant did not have a duty to retreat and that he could meet force with deadly force if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself, and (2) that the defendant's use of deadly force was not justifiable if he was the initial aggressor unless he exhausted every reasonable means to escape the danger other than using deadly force? Swearingden v. State, 40 Fla. L. Weekly D1114a (5/15/15)

HEARSAY: Recorded statements during 911 call in which caller conveyed information from an unidentified speaker were inadmissible hearsay within hearsay. Hunter v. State, 40 Fla. L. Weekly D1109a (5/12/15)

EVIDENCE-IDENTIFICATION EXPERT: No abuse of discretion to exclude eye witness identification expert where there were multiple eye witnesses and thus low probability of misidentification. Wilson v. State, 40 Fla. L. Weekly D1108b (5/12/15)

DRIVER'S LICENSE SUSPENSION
: Circuit court applied incorrect law by quashing administrative suspension of driver's license where hearing officer's findings of fact were supported by ample competent, substantial evidence -- Motion to certify question regarding appropriate scope of review denied. DHSMV v. Hirtzel, 40 Fla. L. Weekly D1107a (5/12/15)

SPEEDY TRIAL: Trial court erred by continuing case beyond speedy trial expiration date due to State's discovery violation without considering a shorter continuance or other remedies. Wilson v. State, 40 Fla. L. Weekly D1106a (5/12/15)

STAND YOUR GROUND
: Trial court erred in giving inconsistent instruction on justifiable use of deadly force which stated that defendant had no duty to retreat if he was not engaged in unlawful activity and was attacked in place he had a right to be and also instructed jury that use of deadly force was not justified unless defendant had exhausted every reasonable means to escape danger. Error not waived by trial counsel's agreement to instructions where counsel objected but was essentially talked out of the objection by trial court. Helton v. State, 40 Fla. L. Weekly D1105a (5/12/15)

STAND YOUR GROUND: Trial court reversibly erred in giving inconsistent instruction on justifiable use of deadly force which stated that defendant had no duty to retreat if he was not engaged in unlawful activity and was attacked in place he had a right to be and also instructed jury that use of deadly force was not justified unless defendant had exhausted every reasonable means to escape danger. Tramel v. State, 40 Fla. L. Weekly D1104e (5/12/15)

COSTS: Court may not assess $100 "sheriff's office investigative cost" where cost was not requested, documented, subjected to argument concerning amount, or orally pronounced. McKenzie v. State, 40 Fla. L. Weekly D1103b (5/8/15)


COSTS: Error to impose discretionary assessment for Crime Prevention Fund where fee was not orally pronounced with specificity and defendant was not provided opportunity to contest amount. Gregory v. State, 40 Fla. L. Weekly D1103a (5/8/15)


INEFFECTIVE ASSISTANCE OF COUNSEL
: DISSENT: Counsel's implications of certainty of acquittal, despite failure to obtain necessary pretrial rulings and causing client to turn down five-year offer, was ineffective assistance. "The facts of this case present a quintessential example of ineffective assistance of counsel." Eichhorn v. State, 40 Fla. L. Weekly D1100e (5/8/15)

MOTION FOR NEW TRIAL JNOV: Court erroneously failed to exercise its discretion to determine whether a greater amount of credible evidence supported state's case. Motion for JNOV enables the trial judge to weigh the evidence and determine the credibility of witnesses so as to act, in effect, as an additional juror. King v. State, 40 Fla. L. Weekly D1098a (5/8/15)


INJUNCTIONS--STALKING: Because incidents described by petitioner would not have caused substantial emotional distress in reasonable person, evidence was insufficient to support entry of injunction for protection against stalking. Plummer v. Forget, 40 Fla. L. Weekly D1097a (5/ 8.15)


SEARCH AND SEIZURE-TRAFFIC STOP: Statute requires that drivers stop prior to driving onto a sidewalk or sidewalk area regardless of whether there is pedestrian or vehicular traffic in area. Officers properly stopped vehicles for failure to stop if sidewalks or sidewalk areas extended over driveways. State v. Nelson, 40 Fla. L. Weekly D1095a (5/8/15)

INEFFECTIVE ASSISTANCE OF COUNSEL: Claim that trial counsel was ineffective for failing to move to suppress confession because confession was involuntary was legally sufficient claim that was not waived by entry of plea. Coursey v. State, 40 Fla. L. Weekly D1093a (5/8/15)

PRINCIPAL: Getaway driver properly charged as principal to armed robbery. Error to grant motion to dismiss. State v. Brannic, 40 Fla. L. Weekly D1092a (5/8/15)


FORFEITURE--SUMMARY JUDGMENT: Error to enter summary judgment awarding to city currency seized during search of claimant's apartment pursuant to warrant which was based on affidavit reciting that there had been citizens' complaints about drug dealing and reporting that female had been selling drugs from apartment. Technical admissions occasioned by claimant's failure to respond to request for admissions not sufficient basis for forfeiture order where record contained evidence contradicting the admission. Moreland v. City of Fort Myers, 40 Fla. L. Weekly D1090b (5/8/15)


LIFE SENTENCE--JUVENILE HOMICIDE: Mandatory sentence of life in prison without possibility of parole for homicide committed by juvenile is unconstitutional. The proper remedy is remand for resentencing proceeding consistent with Fla.Stat. §§775.082, 921.1401, and 921.1402. Cruz v. State, 40 Fla. L. Weekly D1090a (5/8/15)



SEARCH AND SEIZURE-REASONABLE SUSPICION-BOLO
: Officers responding to BOLO based on 911 report from caller who was witnessing a break-in of a truck had reasonable suspicion sufficient to justify detention of defendant, who was crouching behind vehicle which resembled car described in BOLO and which was parked in odd manner, about a quarter-mile from site of break-in, in area in which businesses were closed for the evening. State v. Leach, 40 Fla. L. Weekly D1087a (5/8/15)


MANSLAUGHTER-JURY INSTRUCTION: Interim instruction on manslaughter which stated that it must be proven that defendant intentionally caused the death of victim, and that it was only necessary that state prove an intent to commit an act which caused death, constituted fundamental error. Page v. State, 40 Fla. L. Weekly D1077a (5/6/15)


SECOND DEGREE MURDER-JURY INSTRUCTION: Conviction for second-degree murder reversed where defendant's jury was provided with manslaughter by act instruction determined by Florida Supreme Court to constitute fundamental error, evidence supported manslaughter by act and did not support culpable negligence, and defendant did not concede that he intended to kill the victim. Moore v. State, 40 Fla. L. Weekly D1075c (5/6/15)


QUOTATION: "A defendant may sit mute as it is the State's burden to prove all of the elements. . . The fact that a defendant contests one of the elements at trial does not mean he has conceded the remaining elements the State must prove." Moore v. State, 40 Fla. L. Weekly D1075c (5/6/15)


SILENCE OF DEFENDANT: Detective's testimony that Defendant, post-arrest, pre-Miranda, said that he wasn't going to tell anyone where he got the property he had sold to pawn shop is improper comment on exercise of right to remain silent. Carlisle v. State, 40 Fla. L. Weekly D1075a (5/6/15)


COMMENT ON RIGHT TO REMAIN SILENT
: Officer's question during interrogation "If you're truly innocent and you truly haven't burglarized anything, why would you want to take a felony charge and ruin your life?" should have been suppressed as it suggested that Defendant's silence indicated guilt. Carlisle v. State, 40 Fla. L. Weekly D1075a (5/6/15)


COMMENT ON RIGHT TO REMAIN SILENT
: The prosecutor's argument that "Never one time on any of the recordings that we heard did you hear the defendant say 'I wish I never bought that. I wish Joe never pulled up that morning. I did not know it was hot and stolen stuff.' " is an improper comment and Defendant's right to remain silent and improperly suggests that Carlisle was required to present evidence. Carlisle v. State, 40 Fla. L. Weekly D1075a (5/6/15)

INJUNCTION--STALKING: Evidence that respondent went to petitioner's home for three consecutive nights without warning and looked inside petitioner's darkened windows with a flashlight and e-mail in which respondent admitted to being at petitioner's residence established course of conduct sufficient to support entry of injunction against stalking. Robertson v. Robertson, Fla. L. Weekly D1073b (5/6/15)


POST-CONVICTION RELIEF
: Trial court erred in summarily denying amended rule 3.850 motions as successive when they were filed within the requisite two-year period and prior to final ruling on the original motion. Blackmon v.State, 40 Fla. L. Weekly D1069a (5/6/15)


EVIDENCE-REDACTING STATEMENT: Trial court erred in denying defendant's motion in limine to exclude portions of recorded interrogation including officer's questions and defendant's answers about digital penetration of victims, and officer's repeated statements that he did not believe defendant's denials, where evidence of penetration was not necessary to prove guilt and neither of the victims accused defendant of an act of penetration, there was no evidence of penetration, and defendant repeatedly denied penetration. Lopiano v. State, 40 Fla. L. Weekly D1063 (5/6/15)


JURY INSTRUCTION-WILLIAMS RULE: Trial court erred in giving incorrect, modified, Williams rule jury instruction which permitted the jury to infer defendant's guilt based on witness's accusation of an uncharged, similar crime and an asserted propensity to commit crimes of this nature. Lopez v. State, 40 Fla. L. Weekly D1062a (5/6/15)

ARGUMENT: Improper to allow the State to refer to the Defendant as a child molester or pedophile. "We also caution future courts to be mindful of the use of inflammatory and prejudicial language during trial. . .The term child molester . . is highly likely to evoke an emotional response from jurors. Describing a criminal defendant with such a loaded term encourages the jury to presuppose guilt. The use of such language is therefore unduly prejudicial and should be avoided." Lopez v. State, 40 Fla. L. Weekly D1062a (5/6/15)


SEARCH AND SEIZURE--PLAIN FEEL: Experienced officer who immediately recognized item felt in defendant's pocket as a crack pipe had probable cause to remove the object to confirm that it was drug paraphernalia. Conyers v. State, 40 Fla. L. Weekly D1059a (5/6/15)


PARAPHERNALIA: A crack pipe may be contraband even if it has never been used and contains no residue. Conyers v. State, 40 Fla. L. Weekly D1059a (5/6/15)



LIFE SENTENCE FOR HOMICIDE BY JUVENILE
: Mandatory sentence of life in prison without possibility of parole for homicide committed by juvenile is unconstitutional. Proper remedy is remand for resentencing proceeding consistent with Fla.Stat.§§775.082, 921.1401, and 921.1402. Moran v. State, 40 Fla. L. Weekly D1058b (5/6/15), Mares v. State, 40 Fla. L. Weekly D1058a (5/6/15), Maize v. State, 40 Fla. L. Weekly D1057d (5/6/15), Davis v. State, 40 Fla. L. Weekly D1057c (5/6/15)


CHILD SUPPORT: Trial court reversibly erred in relying on financial affidavits filed in connection with initial dissolution proceedings rather than updated affidavits filed with parties' modification petitions when calculating child support award. Santos v. Santos, 40 Fla. L. Weekly D1057a (5/6/15)

WITHDRAWAL OF GUILTY PLEA: Trial court erred by refusing to permit defendant to withdraw guilty plea prior to sentencing after defense counsel openly acknowledged, in written motion and in court, that he had provided defendant erroneous legal advice about range of prison time defendant was eligible to receive if he pled guilty. State's solution of waiving scoresheet's minimum sentence of 53 years and suggesting that court consider bottom range to be 5 years imprisonment is not acceptable. Hypes v. State, 40 Fla. L. Weekly D1041a (5/4/15)

APRIL 2015

DEATH PENALTY: Non-unanimous jury recommendations to impose sentence of death are not unconstitutional. Hunter v. State, 40 Fla. L. Weekly S231a (FLA 4/30/15)

DEATH PENALTY-PROPORTIONALITY
: Death Penalty is not disproportionate where Defendant with an IQ of 80 murders two people. Hobart v. State, 40 Fla. L. Weekly S226a (FLA 4/30/15)

CAPITAL POSTCONVICTION RECORDS PRODUCTION
: Amendment to Rules enabling access to Defendant's records for capital postconviction motion for relief. In re: Amendments to Fla.R.Cr.P. 3.852, 40 Fla. L. Weekly S224c (4/30/15)

AMENDMENT TO JURY INSTRUCTIONS FOR SEX CASES: In re: Standard Jury Instructions, 40 Fla. L. Weekly S221a (4/30/15)


SEVERANCE
: Trial court should have granted motion to sever nine counts of sale or delivery of cocaine based on series of drug transactions involving same buyer almost every day over period of ten days. Carter v. State, 40 Fla. L. Weekly D1021a (4/29/15)


VOYEURISM
: Statutes prohibiting voyeurism and video voyeurism are not facially overbroad and are constitutional. Parkerson v. State, 40 Fla. L. Weekly D1017b (4/29/15)

INCARCERATION LIEN
: Trial court did not err by including in lien calculation costs for days defendant was credited for time served. Freeman v. State, 40 Fla. L. Weekly D1017a (4/29/15)


SELF-REPRESENTATION
: Trial court used an incorrect legal standard when it denied defendant his right to self-representation based on finding that defendant was incapable of adequately representing himself, rather than on finding that defendant lacked competency to waive right to counsel. Williams v. State, 40 Fla. L. Weekly D1010d (4/29/15)


SENTENCING-JUVENILES
: Commitment to high-risk placement exceeded maximum commitment level for juvenile who committed two misdemeanors and admitted only to technical violations of probation. I.A. v. State, 40 Fla. L. Weekly D1010a (4/29/15)


DOUBLE JEOPARDY
: Convictions for separate counts of resisting officer without violence are proper where there was a sufficient break between incidents of resisting without violence. Bertonatti v. State, 40 Fla. L. Weekly D998b (4/29/15)


EVIDENCE-RACKETEERING/CONSPIRACY
: Trial court departed from essential requirements of law by excluding from evidence audio recordings of telephone conversations between defendant and a coconspirator, who was deceased. State v. Morgan, 40 Fla. L. Weekly D990a (4/29/15)



QUOTATION
: "Hearing the tapes played at speed and hearing them only once, any court reporter would probably experience difficulty in producing an accurate transcript of every word that was said. But the same might also be true for the comic banter of "Who's on First?" or for the Elizabethan English heard in the plays of William Shakespeare. Despite the possible inability of a court reporter to produce a verbatim transcript of such dialogue on the first hearing, we can still understand and enjoy such productions." State v. Morgan, 40 Fla. L. Weekly D990a (4/29/15)


LIMITATION OF ACTIONS
: Trial court erred in dismissing information. Failure to execute process on or extradite defendant who has been charged by information or indictment with crime in Florida shall not constitute unreasonable delay. State v. Soebhag, 40 Fla. L. Weekly D989a (4/29/15)



SENTENCING-DOWNWARD DEPARTURE
: Court may downward depart based on Defendant's impaired capacity to appreciate nature of conduct or conform to the law, based on "dementia pugilistica" from his career as a boxer. "The attorneys involved in downward departure hearings need to assist the court so that the record on appeal will provide answers to the three important questions: (1) What is the specific legal ground for a downward departure that the court finds is legally available or unavailable? (2) Has the defendant presented competent, substantial evidence to support that legal ground? (3) If so, what are the circumstances that cause the trial court to exercise its discretion to grant or deny a downward departure sentence?" Camacho v. State, 40 Fla. L. Weekly D986a (4/29/15)


MODIFICATION OF CHILD SUPPORT-RELOCATION
: Trial court abused its discretion in denying husband's requests for continuance based on late disclosure of wife's financial affidavit the day before final hearing -- Under controlling rule, requirement to provide financial affidavit in supplemental proceedings cannot be waived by parties. Gilroy v. Gilroy, 40 Fla. L. Weekly D985a (4/29/15)


ACQUITTAL
: Mayor who had been suspended from office after he was charged with federal crimes is entitled to resume his duties after he has been acquitted. Slaton v. Pizzi, Jr., 40 Fla. L. Weekly D979b (4/24/15)

SENTENCING: Trial court did not improperly rely on defendant's failure to take responsibility and lack of remorse in imposing sentence. Court's remarks about defendant's lack of remorse and failure to accept responsibility were made solely to address defense counsel's assertion that defendant showed remorse during his videotaped statement. Roop v. State, 40 Fla. L. Weekly D978a (4/24/15)


DISSOLUTION OF MARRIAGE -- SAME-SEX COUPLE: Under Full Faith and Credit Clause of United States Constitution, Florida court has jurisdiction to dissolve marriage of same-sex couple which was legally entered into in another state. Brandon-Thomas v. Brandon-Thomas, D40 Fla. L. Weekly D971a (4/24/15)


DISCOVERY-COMPETENCY EVALUATION: Court may not order disclosure of a written competency evaluation performed by a mental health expert who was privately retained by defense counsel for purpose of determining defendant's competence to proceed. Competency evaluation is protected by attorney-client privilege. Manuel v. State, 40 Fla. L. Weekly D964b (4/24/15)


SENTENCING-FTA: Court may not sentence defendant on misdemeanor charges (FTA) that were not brought against him and to which he entered no pleas. Dilliard v. State, 40 Fla. L. Weekly D960b (4/24/15)

DEATH PENALTY-PROPORTIONALITY: Death sentence for mentally ill man who shot cop who tased him is unlawful as unproportionate. Delgado v. State, 40 Fla. L. Weekly S214c (4/23/15)


FAMILY LAW FORMS -- AMENDMENTS: Modification of forms for injunctions for protection. 40 Fla. L. Weekly S214b (4/23/15).

CONTEMPT: State's Motion for Contempt against Sheriff for running a furlough program is not subject to Writ of Prohibition. Sheriff Morris Young v. State, 40 Fla. L. Weekly D946b (4/22/15)


CRIMINAL MISCHIEF
: Testimony was insufficient to establish tables destroyed by defendant were worth at least $200 where the victim said the tables had great sentimental value but that she did not know their monetary value. A jury may not consider its life experiences in determining the amount of damage for criminal mischief charges which require proof of the amount of damage. Perez v. State, 40 Fla. L. Weekly D945a (4/22/15)

POST-CONVICTION RELIEF: Error to examine record and deny rule 3.853 motion (DNA Motion) on the merits without ordering response from state. Response required even when examination of record conclusively shows that defendant is not entitled to relief. Harris v. State, 40 Fla. L. Weekly D939a (4/22/15).


DOUBLE JEOPARDY
: Trial court violated defendant's double jeopardy rights when it orally but erroneously imposed 48-month sentence, concluded proceedings, and then later that day granted the state's request to recall the case and imposed 55.2-month sentence, the Criminal Punishment Code's "lowest permissible sentence." A below the guidelines sentence is not an illegal sentence. Hobgood v. State, 40 Fla. L. Weekly D932a (4/22/15)


PUBLIC RECORDS-MANDAMUS: Where defendant' alleged the form produced by the court after multiple requests to the clerk and the state was not the true Miranda waiver form introduced during his trial, trial court improperly denied defendant's petition to secure the proper form without issuing an alternative writ in mandamus. Williams v. State, 40 Fla. L. Weekly D928c (4/22/15)


PRESENTENCE INVESTIGATION REPORT: Right to presentence investigation can be waived by counsel and does not require defendant's personal waiver. Culver v. State, 40 Fla. L. Weekly D928b (4/22/15)


PRISON RELEASEE REOFFENDER: Consecutive prison releasee reoffender sentences are lawful. Gandy v. State, 40 Fla. L. Weekly D927a (4/22/15)


PROBATION REVOCATION: No error in trial court's refusal to suppress evidence obtained as a result of a warrantless, suspicionless search of defendant's residence by his probation officer. The use of evidence obtained in a search by a probation officer is limited to the violation of probation proceedings. Harrell v. State, 40 Fla. L. Weekly D925a (4/22/15)


TERMINATION OF PARENTAL RIGHTS
: Competent, substantial evidence did not support termination of incarcerated (six years) Father's rights to two children with whom father had maintained continuing relationship, nor was termination in children's best interest or the least restrictive means to prevent harm to children. D.S. v. DCF, 40 Fla. L. Weekly D923a (4/22/15)

SEARCH AND SEIZURE: Officer may not prolong stop in order to conduct a dog sniff. Court rejects argument that reasonable or de minimis extension of time is lawful. Dog sniff-aimed at finding criminal activity-is not related to the purposes of the stop, and thus is impermissible if it prolongs the stop at all. "(A) dog sniff is not fairly characterized as part of the officer's traffic mission." Rodriguez v. United States, 575 US _____ (S.Ct, April 21, 2015)

COSTS: Trial court lacked jurisdiction during pendency of appeal to amend judgment and sentence to increase cost of prosecution fee. Manning v. State, 40 Fla. L. Weekly D918a (4/17/15)

KIDNAPPING: Where defendant was charged with kidnapping with intent to inflict bodily harm or terrorize, state was not required to prove that confinement of victim was independent of a related crime. Somers v. State, 40 Fla. L. Weekly D917a (4/17/15)


SILENCE OF DEFENDANT: Statement of LEO that the Defendant did not want to speak to the witness was an improper comment of defendant's exercise of right to remain silent. Somers v. State, 40 Fla. L. Weekly D917a (4/17/15)


SENTENCING-VINDICTIVENESS: Discrepancy between plea offer and sentence imposed created a presumption of vindictiveness. Somers v. State, 40 Fla. L. Weekly D917a (4/17/15)


SENTENCING-SCORESHEET: Trial court properly treated as prior record criminal convictions which occurred prior to sentencing in instant case where convictions were for offenses that were committed before defendant committed primary offense in current case. Hawkins v. State, 40 Fla. L. Weekly D913b (4/17/15)


INJUNCTION-TESTIMONY BY PHONE: Where respondent was incarcerated and asked to appear telephonically for hearing, Court must direct DOC to allow him to call in. Havenner v. Hutchinson, 40 Fla. L. Weekly D913a (4/17/15)


COUNSEL: Counsel was ineffective in failing to object to jury instruction on offense of burglary of dwelling with assault on grounds that it was not charged in the information, failing to object to verdict form which included this uncharged offense, and failing to object at trial when state repeatedly directed questions in an effort to prove elements of this uncharged offense. Romine v. State, 40 Fla. L. Weekly D905b (4/17/15)



INJUNCTION-CYBERSTALKING: Single blog posting disclosing petitioner's involvement in affair with respondent's husband not sufficient to support injunction. "A reasonable woman who had an eighteen-month affair with another woman's husband might well expect to hear the scorn of an angry wife." Leach v. Kersey, 40 Fla. L. Weekly D904b (4/17/15)


DEPORTATION: Defendant who was in country unlawfully and subject to removal on that basis alone cannot show that she was prejudiced by counsel's failure to warn her that her guilty plea to public assistance fraud subjected her to deportation. Yanez v State, 40 Fla. L. Weekly D903a (4/17/15)


HEARSAY-CONFESSION BY THIRD PARTY:
Under Chambers v. Mississippi, the statement of a confessing third party is admissible if corroborated by some other evidence in the case, which includes the Defendant's own pretrial statement to law enforcement. Due Process violated when defendant was prevented from recalling declarant to impeach him by his confession. Defendant should have been entitled to recall the witness for impeachment, notwithstanding that it was his own witness. Bearden v. State, 40 Fla. L. Weekly S208a (FLA 4/16/15)


SEXUAL PREDATORS: Error to designate defendant a sexual predator on basis of prior Pennsylvania conviction for rape by threat of forcible compulsion where Pennsylvania law is not similar to any of enumerated Florida laws. Trial court may not look to underlying facts of qualifying offense to establish whether two laws are similar. Montgomery v. State, 40 Fla. L. Weekly D901a (4/15/15)


INEFFECTIVE ASSISTANCE OF COUNSEL--MISTRIAL: Where prosecutor had disclosed a new range of offense dates after defendant had provided state with notice of alibi and a list of alibi witnesses and jury had been sworn, counsel was deficient for rejecting the trial court's remedies of mistrial or continuance and by proceeding to trial without questioning defendant and alibi witnesses concerning defendant's whereabouts on the new dates. Garrido v. State, 40 Fla. L. Weekly D900a (4/15/15)


INJUNCTIONS: Error to enter final judgment of injunction for protection against dating violence without affording respondent opportunity to present evidence, call witnesses, or cross-examine petitioner. Putzig v Bresk, 40 Fla. L. Weekly D899a (4/15/15)


TERMINATION OF PARENTAL RIGHTS: Termination of parental rights based solely on father's incarceration for significant portion of child's minority is lawful where, from time father was first incarcerated through time father was scheduled for release, he will have been in prison for over 8 years of child's life. B.K. v. DCF, 40 Fla. L. Weekly D886a (4/15/15)


RESTITUTION-HEARSAY: Victim's testimony relating what store employee told her regarding estimated value of purse and wallet which were in car that defendant stole was hearsay. Victim's testimony concerning written estimate for repair of stolen vehicle was hearsay. Allen v. State, 40 Fla. L. Weekly D878a (4/15/15)


PROBATION REVOCATION-YOUTHFUL OFFENDER: Following substantive violation of probation or community control, youthful offender is exposed to maximum sentence for original offense, including minimum mandatory enhancements. Conflict certified. Yegge v. State, 40 Fla. L. Weekly D874c (4/15/15)


LIFE SENTENCE FOR JUVENILES-NON-HOMICIDE
: 15-year sentence for aggravated fleeing or attempting to elude law enforcement officer did not amount to de facto life sentence. Lambert v. State, 40 Fla. L. Weekly D869a (4/15/15)

SELF DEFENSE INSTRUCTION: Trial court erred in giving forcible felony exception instruction as to justifiable use of deadly force defense where defendant was not charged with an independent forcible felony. Woodsmall v. State, 40 Fla. L. Weekly D864b (4/10/15)

ATTORNEYS
: Claim on appeal that appellant was denied due process because his attorney was not present at rehearing that was requested, scheduled, and noticed for hearing by the attorney is frivolous. Attorney's fees as sanction to be paid in equal amounts by appellant and appellant's counsel. Maestrales v. Flaherty, 40 Fla. L. Weekly D861a (4/10/15)


SPEEDY TRIAL-AMENDED INFORMATION:
When an amended information is filed by bilateral agreement to effectuate a plea, and that plea ends up not resolving the case through no fault of the state, state is not barred from refiling the original charges within the speedy trial recapture period. State v. Pereira, 40 Fla. L. Weekly D860d (4/10/15)

COSTS: Error to award costs to sheriff's office in absence of affidavit itemizing those costs. Morales v. State, 40 Fla. L. Weekly D859b (410/15)



HABITUAL OFFENDER
: Error to impose habitual offender sentence for attempted purchase of over 20 grams of marijuana while armed. Foster v. State, 40 Fla. L. Weekly D859a (4/10/15)



POST-CONVICTION RELIEF-BELATED MOTION
: Allegation that counsel died in process of preparing rule 3.850 motion and therefore never completed and filed it is good cause for extension. Martinez v. State, 40 Fla. L. Weekly D858b (4/10/15)


PROBATION REVOCATION-YOUTHFUL OFFENDER
: Claim that trial court erred by revoking youthful offender status following probation revocation was properly raised via rule 3.800(a) motion. Rowell v. State, 40 Fla. L. Weekly D858a (4/10/15)


DISCOVERY
: New trial required where state failed to disclose defendant's pre-Miranda admission to detective that laptop with offending images on it was the computer defendant usually used, notwithstanding that violation was inadvertent rather than willful. Guevara-Vilca v. State, 40 Fla. L. Weekly D855a (4/10/15)


LIFE SENTENCE FOR JUVENILE--NON-HOMICIDE
: Under Graham, a defendant cannot be sentenced to life imprisonment without parole for a nonhomicide offense committed while the defendant was a juvenile, although the defendant committed a homicide in the same criminal episode. Lawton v. State, 40 Fla. L. Weekly S195a (4/9/15)


DEPENDENT CHILDREN -- ILLEGAL IMMIGRANTS
: Children may be found dependent where they are abandoned in Honduras, notwithstanding fear of abuse of system to gain favorable immigration status. In the Interest of Y.V., 40 Fla. L. Weekly D849a (4/10/15)


SELF-DEFENSE INSTRUCTION-MANSLAUGHTER
: Under law at the time, Court erred in ruling that the Defendant had a duty to retreat because he possessed a firearm as a felon, and for not severing the firearm count on mistaken belief that his status as a felon was relevant to his duty to retreat. McGriff v. State, 40 Fla. L. Weekly D847a (4/8/15)

SYG IMMUNITY: Because conflicting testimony supported trial court's finding that it was unreasonable for defendant to attack victim as there was no evidence that defendant was in reasonable fear of imminent death or great bodily harm, court did not err in denying motion to dismiss pursuant to Stand Your Ground Law. Viera v. State, 40 Fla. L. Weekly D835a (4/8/15)


PROBATION
: Special condition of probation specifying that self-employment would not satisfy general employment requirement of defendant's probation did not relate to crime for which defendant was convicted or to conduct that was itself criminal and did not reasonably relate to future criminality. Pulecio v. State, 40 Fla. L. Weekly D825a (4/815)


PLEA WITHDRAWAL
: Where the mistake or misunderstanding in entering a plea is attributable to the defendant, it is not error for the court to refuse to allow withdrawal of it. Houser v. State, 40 Fla. L. Weekly D820a (4/8/15)

COMMUNITY CONTROL REVOCATION
: Argument that possession of synthetic marijuana could not establish community control violation because, as term was used in violation affidavit, "synthetic marijuana" was not included among controlled substances proscribed in section 893.03 was not preserved for appeal where argument was not raised in circuit court. Gun v. State, 40 Fla. L. Weekly D810b (4/8/15)
SENTENCING-22 POINTS
: Where defendant was convicted of third-degree felony and total sentence points equaled 22 points or fewer, it was error to depart from presumptive sentence of nonstate prison sanction without written findings that nonstate prison sanction could present a danger to the public -- On remand, trial court is not permitted to reimpose upward departure sentence even with a valid written finding for departure. Murphy v. State, 40 Fla. L. Weekly D805e (4/7/15)

COSTS: Error to assess public defender fee in excess of $100 following felony conviction without making factual findings of higher fees or costs incurred and without informing defendant of right to contest assessment. Harmon v. State, 40 Fla. L. Weekly D801b (4/2/15)


GRANDPARENTS VISITATION: Because foreign court order giving grandparents visitation was a final judgment, it became enforceable in Florida pursuant to Full Faith and Credit Clause. Enforcement not barred by Florida's public policy of guaranteeing fundamental right of privacy in child-rearing autonomy. Ledoux-Nottingham v. Downs, 40 Fla. L. Weekly D799a (4/2/15)


EXPERT-IDENTIFICATION EXPERT
: No abuse of discretion in excluding expert witness testimony on eyewitness identification where eyewitness had seen the Defendant on prior occasions. Bailey v. State, 40 Fla. L. Weekly D798b (4/1/15)

BOLSTERING WITNESS: Detectives testified that Ms. Nottage's reaction to Bailey's photo in the array was an "astounding" identification, that "she was very certain" about her identification, and that her reaction to Bailey's photo in the array was unforgettable. Detectives' testimony regarding witness's identification of photograph of defendant approached but did not cross line for bolstering. Bailey v. State, 40 Fla. L. Weekly D798b (4/1/15)

PROSECUTORIAL MISCONDUCT: "That said, the prosecutor's apparent disregard for rulings and directives from the trial judge are conspicuous, even in an otherwise-cold record. The lead prosecutor should read and reflect on the trial excerpts and analysis detailed in the appellant's briefs in this case." But conviction upheld. See Wodehouse, P.G., Code of the Woosters, p. 27: 'But you would take this foul outrage lying down? . . . Confronted with the spectacle of as raw a bit of underhanded skulduggery as has ever been perpetrated in a civilized country, you would just sit tight and say "Well, well!" and do nothing?' I weighed this. 'Possibly not "Well, well!" I concede that the situation is one that calls for the strongest comment. But I wouldn't do anything.' Bailey v. State, 40 Fla. L. Weekly D798b (4/1/15)
DOUBLE JEOPARDY: Convictions for both conspiracy to commit drug trafficking and conspiracy to commit racketeering violate double jeopardy principles when evidence establishes only a single conspiracy with multiple objectives. Wiles v. State, 40 Fla. L. Weekly D791a (4/1/15)
SENTENCING GUIDELINES: Error to score points for victim injury for grand theft. Montanez v. State, 40 Fla. L. Weekly D788a (4/1/15)
COSTS: Error to strike defendant's pro se rule motion challenging imposition of public defender fee and investigative costs on ground that defendant was represented by counsel when pro se motion was filed. Gedehomme v. State, 40 Fla. L. Weekly D787a (4/1/15)


INJUNCTION-CYBERSTALKING
: Respondent's posts to his own Facebook page consisting of lyrics to a song wife had purportedly listened to on her personal computer and text of private message conversation between wife and a third party via her own Facebook account were not directed specifically at wife, and assertions that respondent somehow "hacked" into wife's own Facebook page did not amount to cyberstalking . No showing that posts caused wife substantial emotional distress. Incidents of prior physical abuse by respondent were too remote to establish that wife reasonably believed she was in imminent danger of becoming domestic violence victim. Horowitz v. Horowitz, 40 Fla. L. Weekly D785a (4/1/15)
RESTITUTION: Delay in setting restitution due to appeals divesting trial court of jurisdiction is not unlawful, but hearing should be promptly scheduled. White v. State, 40 Fla. L. Weekly D775a (4/1/15).
JUDGE: Judge failed to act as neutral arbiter when he suggested that State ask for a reconsideration of the motion to suppress granted by a predecessor judge. Williams v. State, 40 Fla. L. Weekly D773a (4/1/15)
TERMINATION OF PARENTAL RIGHTS: Trial court should have considered only father's actions following establishment of his paternity, not before, in determining whether father abandoned child. A.S. v. DCF, 40 Fla. L. Weekly D771a (4/1/15)

MARCH 2015

RULES FOR INTERPRETERS: Rules revised to enhance qualifications of court interpreters. 40 Fla. L. Weekly S177a (3/31/15)


RULE OF COMPLETENESS
: Where paramedic who responded to accident in which victim was killed testified that defendant told him that he was drunk, it was error to prohibit defendant from eliciting the remainder of defendant's statement, wherein he told paramedic that he had not been driving. Newton v. State, 40 Fla. L. Weekly D761a (3/27/15)

PROBATION CONDITIONS: Condition of probation requiring defendant to abstain entirely from associating with anyone who is illegally using drugs is a valid condition. Demott v. State, 40 Fla. L. Weekly D759b (3/27/15)

RESTITUTION-JURISDICTION: Trial court was without jurisdiction to enter order on restitution amount while direct appeal was pending. Messina v. State, 40 Fla. L. Weekly D759a (3/27/15)


SEARCH AND SEIZURE
: Warrantless arrest is permissible for misdemeanor criminal mischief which does not occur in the officer's presence. Hawxhurst v. State, 40 Fla. L. Weekly D756a (3/25/15)


SILENCE OF DEFENDANT
: Cross-examination of defendant questioning why defendant waited until trial to divulge name of alleged actual owner of contraband were in error and shifted burden of proof to defendant to prove his innocence. Brown v. State, 40 Fla. L. Weekly D752b (3/25/15)

EVIDENCE: Defense counsels stipulation to admission of DVD in which detectives repeatedly told defendant that they knew she was guilty and knew she had killed child victim was invited error. Defendant may file 3.850 motion. Louidor v.State, 40 Fla. L. Weekly D740e (3/25/15)


TRANSMITTING CHILD PORNOGRAPHY
: Exchange of pornographic images through use of a file-sharing program constitutes "transmission" within meaning of statute, notwithstanding that Defendant did not know that files were actually downloaded. Smith v. State, 40 Fla. L. Weekly D738a (3/25/15)

SEARCH AND SEIZURE
: Where the only information relayed to officer was that he was responding to a domestic disturbance call and that the male involved had left in a particular vehicle, there was no reasonable suspicion that defendant had committed, was committing, or was about to commit a crime, to justify stop. Domingues v. State, 40 Fla. L. Weekly D736a (3/25/15)


JUVENILES-SENTENCING
: Court may not impose high-risk restrictiveness level without obtaining Department's recommendation. Juvenile sex offenders are governed by the statutory scheme that requires deference to DJJ's recommendation regarding restrictiveness level. D.G. v. State, 40 Fla. L. Weekly D720b (3/25/15)

OBTAINING ID UNDER FALSE NAME
: No merit to state's claim that defendant attempted to circumvent his suspended Florida driver's license by knowingly attempting to procure an identification card using the name on his New York birth certificate (which only identified him as Male Williams). In light of federal Real ID Act, state's position would prohibit defendant from applying for identification card under any name. Rancifer v. State, 40 Fla. L. Weekly D719a (3/25/15)


CONTEMPT
: Contemnor was denied due process of law where summary order of direct criminal contempt was based on instances of alleged misconduct that occurred outside court's presence over course of six months and not solely on conduct in open court. Palmer v. State, 40 Fla. L. Weekly D718c (3/25/15)


DOUBLE JEOPARDY
: Separate convictions on multiple counts charging possession of "any firearm" by convicted felon based on firearms possessed during same event violated double jeopardy principles. Greenlee v. State, 40 Fla. L. Weekly D718b (3/25/15)


JUDGES-DISQUALIFICATION
: Emails from judge to attorney general's office for stated purpose of assisting the attorney general's office in rebutting contemnor's motion to stay sentence provided basis for disqualification. Masten v. State, 40 Fla. L. Weekly D714a (3/20/15)


VOIR DIRE
: Trial court committed fundamental error by restricting defense counsel's voir dire on topic of defendant's absence. Hillsman v. State, 40 Fla. L. Weekly D712a (3/20/15)

CONTINUANCE: Trial court erred in denying motion for continuance without conducting inquiry after public defender notified court that defendant had retained private counsel. Hillsman v. State, 40 Fla. L. Weekly D712a (3/20/15)


DESTRUCTION OF EVIDENCE
: The loss or destruction of the recording of Defendant's interrogation is not a due process violation absent of a showing of bad faith and that the recording would have been materially exculpatory. Gross negligence is not bad faith. State v. Miller, 40 Fla. L. Weekly D707a (3/20/15)


MONEY LAUNDERING
: Evidence that defendant, the pastor of a church, transferred funds from the church's mortgage account to church's benevolent account, and then transferred funds to his personal account for his own use, was sufficient to satisfy "specified unlawful activity" element of money laundering statute. Hardie v. State , 40 Fla. L. Weekly D699a (3/20/15)

LIFE SENTENCE FOR JUVENILE-HOMICIDE: Miller is retroactive. A juvenile convicted of a homicide who "actually killed, intended to kill, or attempted to kill the victim" must receive an individualized sentencing hearing and must receive a life sentence if the trial court determines that a life sentence is appropriate after considering various age-related factors. If the trial court determines that a life sentence is not warranted, the trial court must impose a term-of-years sentence of at least forty years' imprisonment. Judicial review of the sentence is available after twenty-five years, as long as the juvenile offender was not previously convicted of an enumerated felony. (15 years if he did not actually intend to kill). Horsley v. State, 40 Fla. L. Weekly S155a (FLA 3/19/15)
LIFE SENTENCE FOR JUVENILE--HOMICIDE: See Horsley, above. Falcon v. State, 40 Fla. L. Weekly S151a (FLA 3/19/15)
JUVENILES--LIFE SENTENCE: Term of years longer than life expectancy (70 years) is de facto life, and cruel and unusual punishment. Gridine v. State, 40 Fla. L. Weekly S149a (FLA 3/19/15)


JUVENILES--LIFE SENTENCE
: Term-of-years sentence which does not provide defendant with meaningful opportunity for release violates decision of U.S. Supreme Court holding that sentence of life imprisonment without possibility of parole for nonhomicide committed while defendant was a juvenile constitutes cruel and unusual punishment. Sentence is subject to judicial review after fifteen years. Henry v. State, 40 Fla. L. Weekly S147b (FLA 3/19/15)
DOUBLE JEOPARDY: Double jeopardy rights were not violated by convictions for use of computer service to solicit person believed to be a minor to engage in sexual misconduct and use of computer to solicit person believed to be guardian of minor to consent to minor's participation in sexual conduct. Conflict certified. Littleman v. State, 40 Fla. L. Weekly D692a (3/18/15)


INEFFECTIVE ASSISTANCE
: Trial counsel's failure to object to line of questioning regarding defendant's post-arrest silence was deficient. Floyd v. State, 40 Fla. L. Weekly D691a (3/18/15)

SENTENCING: Alleged error in reasons for upward departure does not establish illegal sentence correctable at any time under rule 3.800(a). Calixte v. State, 40 Fla. L. Weekly D687a (3/18/15)
POST-CONVICTION RELIEF: Claim that defendant was denied due process when court ordered restitution without holding separate restitution hearing and determining defendant's ability to pay does not raise issue of "illegal sentence" correctable at any time under rule 3.800(a). Graham v. State, 40 Fla. L. Weekly D686b (3/18/15)
NAME CHANGE: Error to summarily dismiss facially sufficient amended petition for name change on ground that name change was being sought for fraudulent purpose without holding evidentiary hearing. Wages v. State, 40 Fla. L. Weekly D686a (3/18/15)
COMPETENCY TO STAND TRIAL: Trial court abused its discretion in finding defendant competent to stand trial where pretrial determination of competency was based on stale competency evaluations and there was no testimony affirmatively demonstrating that defendant was competent to proceed. Washington v. State, 40 Fla. L. Weekly D682c (3/18/15)
INJUNCTION FOR PROTECTION: That a daughter does not wish to see or interact with her mother is not a basis for the issuance of a domestic violence restraining order. Hair v.Hair, 40 Fla. L. Weekly D682b (3/18/15)

PROBATION REVOCATION
: Trial court denied defendant his due process rights by refusing to allow defense counsel to present closing argument at final hearing on probation violation. Selman v. State, 40 Fla. L. Weekly D681a (3/18/15)

RETURN OF PROPERTY
: Error to summarily deny facially insufficient motion for return of property without identifying deficiencies in motion and granting leave to amend motion within reasonable time. State's argument that because more than 60 days have passed since conclusion of underlying case, defendant no longer has claim to alleged property and should not be permitted to amend motion, is without merit. Arel v. State, 40 Fla. L. Weekly D680b (3/18/15)


DOUBLE JEOPARDY
: No double jeopardy violation arose from separate convictions for burglary of dwelling with battery and felony battery. Harris v. State, 40 Fla. L. Weekly D678a (3/18/15)


DOUBLE JEOPARDY
: Trial court violated defendant's double jeopardy rights when it orally but erroneously imposed 48-month sentence, concluded proceedings, and then later that day granted the state's request to recall the case and imposed 55.2-month sentence. Hobgood v. State, 40 Fla. L. Weekly D676a (3/18/15)


EVIDENCE--HIGH CRIME NEIGHBORHOOD
: Testimony regarding high crime character of neighborhood where officers set up store front and ultimately arrested defendant was properly admitted because it was relevant and refuted defendant's objective entrapment defense. Green v. State, 40 Fla. L. Weekly D675a (3/18/15)


PROBATION REVOCATION-JURISDICTION
: Trial court lacked jurisdiction to impose new sentences on counts for which defendant had completed probationary sentences before affidavit of violation was filed. Deal v. State, 40 Fla. L. Weekly D674b (3/18/15)

INJUNCTION FOR PROTECTION: Error to enter injunction where evidence only established that Respondent screamed at Petitioner. Corrie v. Keul, 40 Fla. L. Weekly D664a (3/16/15)

JURY INSTRUCTIONS-LESSER: Trial court erred in refusing to give requested instruction on next lesser offense of improper exhibition of dangerous weapon. Failure to give instruction was not harmless where there was close issue whether wife experienced fear that was well-founded when defendant picked up a chair and hit it hard enough on table to break the chair. Collier v. State, 40 Fla. L. Weekly D654a (3/13/15)

RESTITUTION: Extensive testimony from owner of vehicle that was based in part upon information from "Kelley Blue Book" online website was sufficient to support amount of restitution for stolen vehicle. S.M. v. State, 40 Fla. L. Weekly D653a (3/13/15)

QUOTATION: "With the advent of the horseless carriage, horse traders became used car salesmen, and since that time, little about used cars has been a matter whose accuracy could not be questioned. We are inclined to believe that judicial notice of the value of a used car may be an unattainable goal and that a knowledgeable owner may be a better source of competent testimony at a restitution hearing." S.M. v. State, 40 Fla. L. Weekly D653a (3/13/15)

SENTENCING-HABITUAL OFFENDER: Error to impose habitual offender sentence consecutive to non-habitual offender sentence for offenses that arose from same criminal episode. Jackson v. State, 40 Fla. L. Weekly D652b (3/13/15)

RESTITUTION: Court may not order restitution prior to adjudication and disposition as part of a diversion program. J.C. v. State, 40 Fla. L. Weekly D652a (3/13/15)

SENTENCING: No error for court to refer to Defendant's lack of remorse for the purpose of refuting defense counsel's request for mitigation. Godwin v. State, 40 Fla. L. Weekly D651d (3/13/15)

COSTS PER COUNT: Surcharges for sexual batteries/crimes against children are to be paid per count, not per case. Weakens Hollingsworth (1994) [my case]. Dissent by Sawaya, sparring over definitions of "a," "or," and any." McNeil v. State, 40 Fla. L. Weekly D647b (3/13/15)

JUVENILE-SEX OFFENDER REGISTRATION: Where juvenile was adjudicated delinquent for lewd or lascivious molestation upon trial court's finding that juvenile had touched clothed, rather than unclothed, parts of victims, it was error for court to require that juvenile register as a sexual offender. M.B. v. State, 40 Fla. L. Weekly D646a (3/13/15)


RED LIGHT CAMERAS: Photographic and video evidence obtained from red light cameras is self-authenticating. Clark v. State, 40 Fla. L. Weekly D645b (3/13/15)


INJUNCTION FOR PROTECTIO
N: Vague allegations of petition failed to show that petitioner has reasonable cause to believe that he is in imminent danger of being a victim of domestic violence, particularly where respondent is in jail and petitioner in Ohio. Bristow v. Bristow, 40 Fla. L. Weekly D645a (3/13/15)



JURY INSTRUCTION-MANSLAUGHTER
: Giving of erroneous jury instruction on lesser included offense of manslaughter was fundamental error even though defendant's sole defense was misidentification. Griffin v. State, 40 Fla. L. Weekly S135b (FLA 3/12/15)



COSTS: Discretionary fine and surcharges imposed on fine must be reversed where trial court announced fines and costs as lump sum, but oral pronouncement did not delineate the specific costs and fines included in the amount. Talbot v. State, 40 Fla. L. Weekly D642a (3/12/15)


KIDNAPPING: Fact that state also charged defendant with murder of child based on theory that defendant smothered child with a pillow while at home did not preclude state from charging kidnapping based on theory that defendant removed child from house to interfere with DCF's statutory function of protecting children who are in temporary custody. Graham v. State, 40 Fla. L. Weekly D633b (3/11/15)


ALIMONY: Provision that monthly alimony payments to former wife would automatically increase upon child reaching age of majority and termination of child support payments is unlawful where judgment did not make specific factual findings or articulate any reason for automatic prospective increase in alimony. Solache v. Solache, 40 Fla. L. Weekly D632b (3/11/15)


ARGUMENT: Prosecutor's unobjected-to comments about defendant's possessing the larger, "more destructive" ammunition, the "bad guy's bullet," in a gunfight with victim, were improper but did not rise to the level of fundamental error. Brown v. State, 40 Fla. L. Weekly D629a (3/11/15)

SENTENCING-PRR: Facts found by judge in determining whether defendant qualified as prison releasee are not elements of offense and are within "prior conviction" exception to Apprendi v. New Jersey. Chapa v. State, 40 Fla. L. Weekly D618b (3/11/15)


APPEAL-JURISDICTION: Trial court lacked jurisdiction to enter order denying motion to withdraw plea where order was entered after notice of appeal was filed -- Moreover, motion to withdraw plea was unauthorized, as habeas corpus is means for challenging plea in juvenile proceedings. R.E.C. v. State, 40 Fla. L. Weekly D617b (3/11/15)


CIRCUMSTANTIAL EVIDENCE: Circumstantial evidence was insufficient to connect defendant to burglary of convenience store or to physical damage to premises. Only link of defendant to crimes is as driver of vehicle that picked up two men eyewitness saw outside convenience store. Grandison v. State, 40 Fla. L. Weekly D613a (3/10/15)


RECORD ON APPEAL: No error to deny request for Defendant to see record including evidence of child sexual abuse for purpose of his appeal. Watkins v. State, 40 Fla. L. Weekly D606e (3/9/15)

PUBLIC DEFENDER FEES: Error to impose public defender fees without providing defendant notice of her right to contest the fees. Lake v. State, 40 Fla. L. Weekly D606a (3/6/15)

DIVORCE-PSYCH EVAL: Trial court may require husband to submit to psychological evaluation where wife alleged that he threatened suicide. Barry v. Barry, 40 Fla. L. Weekly D605a (3/6/15)

DOUBLE JEOPARDY: One may be convicted of both traveling to meet minor and use of computer to solicit unlawful sex where there acts occurred on different dates. Barnett v. State, 40 Fla. L. Weekly D604a (3/6/15)

DIVORCE-INCOME: Improper to consider former husband's secondary sources of income while ignoring former wife's. Harris v. Harris, 40 Fla. L. Weekly D603b (3/6/15)

CHILD SUPPORT-INCOME: Trial court erred in failing to include SSI custodial mother receives as result of her disability in her gross income when calculating father's child support obligation. One cannot be required to pay child support out of one's SSI. Kemper v. DOR, 40 Fla. L. Weekly D602a (3/6/15)

IMPROPER ARGUMENT: State's references to the appellant's exercise of her right to refuse to consent to a search of her residence is improper and should be avoided, but error not fundamental (Concurring opinion). Cornelius v. State, 40 Fla. L. Weekly D594a (3/6/15)

HEARSAY-INJUNCTION: Trial court erred in receiving and relying on videotape of forensic interview of child conducted at children's advocacy center in deciding to issue injunction for protection against sexual violence by father. In the Interest of A.B. v. R.B., 40 Fla. L. Weekly D591a (3/6/15)

CREDIBILITY OF CHILD WITNESS: "Simply noting that A.B. answered 'yes' to the interviewer's question on knowing the difference between the truth and a lie is insufficient to support a finding of reliability." Child's dress and decorum and a generalized belief of harm to children cannot transform Child's untested version of events into admissible testimony. In the Interest of A.B. v. R.B., 40 Fla. L. Weekly D591a (3/6/15)

KIDNAPPING: JOA required for kidnapping charge where movement and confinement of victim was merely incidental to crime of sexual battery, was inherent in nature of crime, and did not make crime easier or substantially lessen risk of detection. Wilson v. State, 40 Fla. L. Weekly D589a (3/6/15)

DIVORCE-CONTEMPT
: Husband's 401k account should have been considered in determining whether husband had ability to pay alimony arrearages. Wix v. Wix, 40 Fla. L. Weekly D588a (3/6/15)


CHILD SUPPORT MODIFICATION: Court may not order downward modification of child support when payor is in arrears, absent a finding of inability to pay. Jenkins v. Jenkins,40 Fla. L. Weekly D587d


PROBATION REVOCATION
: Error to revoke probation based on finding that defendant violated curfew where curfew was not imposed as condition of probation. Although defendant has fully served probation, original probationary sentence to be reinstated on remand, as it is possible defendant faces collateral consequences from his unlawful incarceration following probation revocation. Mitchell v. State, 40 Fla. L. Weekly D587b (3/6/15)


DEATH PENALTY
: Death Penalty appropriate for killing father with three hammer hits to head. Campbell v. State, 40 Fla. L. Weekly S126a (FLA 3/5/15)

INTERPRETERS: Amendment to rules for Court Interpreters. 40 Fla. L. Weekly S120a (3/5/15)

ATTORNEY'S FEES-APPOINTED COUNSEL: $4,000 for 330 hours of work ($12.00 per hour) is lawful, or at least upheld on procedural grounds. Parker-Cyrus v. JAC, 40 Fla. L. Weekly D582a (3/5/15)

STATEMENTS OF DEFENDANT: Where defendant asked detective if he thought he needed a lawyer, detective answered,"[w]ell, we're going to discuss that here in a minute. That's up to you," statement should not be suppressed. Hineline v. State, 40 Fla. L. Weekly D580e (3/5/15)

RESTITUTION-TERMINATION OF PROBATION: Where sentence called for termination of probation after nine months if restitution paid in full, and restitution amount is never set, probation does not terminate. Maddex v. State, 40 Fla. L. Weekly D577a (3/4/15)

LIFE SENTENCE FOR JUVENILES: Fifty-year sentence for nonhomicide committed when defendant was juvenile did not violate Graham v. Florida. Trejo v. State, 40 Fla. L. Weekly D575a (3/4/15)

CHILD SUPPORT: Child support should be placed in abeyance and petition to modify placed on inactive clendqr until Obligor released from prison. Rock v. DOR, 40 Fla. L. Weekly D574b (3/4/15)

DEADLY FORCE: Trial court must give requested instruction on justifiable use of non-deadly force where Defendant made threats and pointed a gun. Only the discharge of a firearm constitutes deadly force as a matter of law. Pointing gun is not deadly force. Cunningham v. State, 40 Fla. L. Weekly D571a (3/4/15)

LOITERING AND PROWLING: No Loitering and Prowling where officers did not personally observe any type of behavior that appeared to be on the verge of ripening into a criminal act. L & P is forward looking to prevent crime, not backward-looking. Good discussion. Madge v. State, 40 Fla. L. Weekly D568b (3/4/15)

LIFE SENTENCE FOR JUVENILE: Error to impose two mandatory life sentences without possibility of parole for first-degree murders committed while defendant was juvenile. No error to impose 280 year sentence for nonhomicide committed by a juvenile. Streeter v. State, 40 Fla. L. Weekly D566a (3/4/15)


DIVORCE-CONTEMPT: Error to include in order holding wife in indirect criminal contempt a provision prohibiting contact with child until wife complies with prior court orders where wife was not provided notice that contempt proceedings could result in change in custody arrangement and there was no finding that change in custody was in best interests of child. Najeeulah v. Peraza, 40 Fla. L. Weekly D564b (3/4/15)


DOUBLE JEOPARDY: Defendant could properly be convicted of both using a computer service to solicit a child to engage in sexual conduct and traveling to meet a minor to do unlawful acts for conduct arising out of same criminal episode. Snow v. State, 40 Fla. L. Weekly D554a (3/3/15)

SENTENCING: Court could properly impose sex offender probation as part of sentence for offense of traveling to meet minor notwithstanding that it is not an enumerated sex offense, but specific conditions must be orally pronounced. Snow v. State, 40 Fla. L. Weekly D554a (3/3/15)

DL SUSPENSION: Circuit court may not reweigh hearing officer's factual findings. Dissent: "Here, the majority cites circumstantial evidence and concludes it meets the legal standard of substantial. . .(C)ircuit courts become nothing more than rubberstamps." DHSMV v. Hirtzel, 40 Fla. L. Weekly D552a (3/3/15)

FEBRUARY 2015

QUOTATION: "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Markus v. State, 40 Fla. L. Weekly D548b (2/27/15)


SEARCH AND SEIZURE-RESIDENCE
: Observation of defendant smoking marijuana cigarette and running into his garage do not excuse warrant requirement under hot pursuit exception. Markus v. State, 40 Fla. L. Weekly D548b (2/27/15)


JIMMY RYCE: Defendant not entitled to release on basis of fact that American Psychiatric Association has removed the Defendant's mental disorder (paraphilia NOS) from DSM 5. Bilal v. State, 40 Fla. L. Weekly D545b (2/27/15)


STAND YOUR GROUND: Because at the time one engaged in unlawful activity could assert SYG immunity, and there was evidence to support a finding that defendant acted in self-defense, the trial court erred in concluding that defendant was not entitled to immunity. Mayo v. State, 40 Fla. L. Weekly D538c (2/27/15)

LEAVING SCENE OF ACCIDENT INVOLVING INJURY: Trial court erred in failing to give requested jury instruction that in order to prove crime of leaving scene of a crash, state must prove that the driver had actual knowledge of the crash. State v. Dorsett, 40 Fla. L. Weekly S103a (FLA 2/26/15)


STAND YOUR GROUND
: Prohibition is proper method to challenge trial court's denial of pre-trial motion to dismiss charges based on SYG. SYG is not available if person against whom force is used is law enforcement officer who is acting in performance of official duties. Finkelstein v. State, 40 Fla. L. Weekly D536a (2/26/15)


APPEALS: Mail Box rule does not apply to filing Notice of Appeal. Notice must be received by the clerk by the deadline. Joseph v. State, 40 Fla. L. Weekly D532a (2/26/15)


PROBATION REVOCATION: Evidence was insufficient to prove that defendant willfully violated condition of probation that he work diligently at a lawful occupation or condition that he complete any recommended psycho-sexual treatment, where he received SSI and was BakerActed while on probation. Warner v. State, 40 Fla. L. Weekly D531a (2/26/15)


INDIRECT CIVIL CONTEMPT: Order finding husband in contempt for failing to comply with court order was deficient where order contained no recitation of facts to support finding that husband had ability to comply with prior court order. Isaacs v. Isaacs, 40 Fla. L. Weekly D515a (2/25/15)


LIFE SENTENCE FOR JUVENILE
: U.S. Supreme Court's decision in Graham v. Florida does not preclude term-of-years sentence, even where such sentence amounts to de facto life sentence. Questions certified: 1. Does Graham v. Florida apply to lengthy term-of-years sentences that amount to de facto life sentences? 2. If so, at what point does a term-of-years sentence become a de facto life sentence? Michel v. State, 40 Fla. L. Weekly D512a (2/25/15)


SEARCH AND SEIZURE-WINDOW TINT
: Officer who could not see driver of vehicle through tint of side window in middle of the day had probable cause to believe vehicle had an illegal tint and was justified in making traffic stop State v. Coley, 40 Fla. L. Weekly D511a (2/25/15)


JURY INSTRUCTION-SELF-DEFENSE
: Where defendant claimed that he had a right to be on the premises, the Court erred by refusing to give jury instruction on burglary that would have required the jury, in order to convict on burglary, to find that he did not have a right to be on the property. If jury had been properly instructed and found that defendant had a right to be on the property, that would have been a defense to the burglary charge and would have allowed the defendant to assert self-defense. Valls v State, 40 Fla. L. Weekly D503a (2/25/15)


PLEA-IMMIGRATION CONSEQUENCES: Defendant should be permitted to amend deficient allegations. Bacilio v. State, 40 Fla. L. Weekly D497c (2/25/15)


ALIMONY: Error to award durational rather than permanent alimony based solely on husband's future mandatory retirement at age sixty-five, some ten years in the future -- On remand, trial court could consider awarding nominal amount of permanent periodic alimony in conjunction with durational award. Purin v. Purin, 40 Fla. L. Weekly D497a (2/25/15)


INJUNCTION: Trial court erred in failing to issue order granting incarcerated party's request to appear at hearing on motion by telephone, with result that party was precluded from participating in hearing. Butler v. Norton, 40 Fla. L. Weekly D493d (2/23/15)


MANDATORY MINIMUM: Trial court must imposed mandatory minimum sentences for possession of firearm by convicted felon and attempted second degree murder consecutively. Conflict certified. Jackson v. State, 40 Fla. L. Weekly D493c (1/23/15)


JUVENILES-SENTENCING
: Error to sentence juvenile who was convicted of misdemeanor drug offenses to non-secure residential program without required written findings. R.S.C. v. State, 40 Fla. L. Weekly D493a (2/23/15)

EXCESSIVE FINES: Forfeiture of home used in cultivation of cannabis was a violation of Excessive Fines Clause of Eighth Amendment to United States Constitution where the owner of home faced an eleven-year maximum penalty and $11,000 maximum fine for his criminal convictions, and the home was valued at between $238,000 and $295,000, Agresta v. City of Maitland, 40 Fla. L. Weekly D482b (2/20/15)


WITNESS-COMPETENCY: Trial court erred in allowing victim of alleged crimes to testify as state witness without determining whether the witness, who had been found incompetent to proceed in criminal cases against her, understood the duty to tell the truth, Wingo v. State, 40 Fla. L. Weekly D485e (2/20/15)


SEVERANCE: Ineffectiveness of counsel for failing to sever trial from that of codefendant was not apparent on the face of the record where witness testified that codefendant had threatened witness while the codefendant and witness were in adjoining holding cells and judge instructed jury that testimony regarding the threat applied only to the codefendant. Dukes v. State, 40 Fla. L. Weekly D476a (2/18/15)


STATEMENT OF DEFENDANT: Trial court erred in admitting evidence of defendant's pre-arrest, pre-Miranda silence in interactions with police because she did not testify at trial and such silence is only admissible under Florida law to impeach defendant's testimony at trial. Question certified. Horwitz v. State, 40 Fla. L. Weekly D474a (2/18/15)


RACKETEERING: Trial court should have granted motion for judgment of acquittal for racketeering where state's evidence failed to prove defendant's involvement in more than a single predicate act. Defendant cannot be held vicariously liable for predicate acts committed by conspirators with whom he did not interact. De La Osa v. State, 40 Fla. L. Weekly D467a (2/18/15)


OPEN CARRYING OF FIREARM: Florida's ban on open carry of firearms does not infringe on Florida's constitutional guarantee or infringe on Second Amendment. Extensive discussion of right to bear arms. Norman v. State, 40 Fla. L. Weekly D458b (2/18/15)


SEVERANCE: Error to deny motion to sever nine counts charging sale or delivery of cocaine based on sales to the same undercover officer over a period of ten days. Carter v. State, 40 Fla. L. Weekly D458a (2/18/15)


EVIDENCE-COLLATERAL BAD ACTS: Trial court properly admitted collateral evidence about defendant's attempt to take victim's cell phone a week before the shooting because the evidence was inextricably intertwined with aggravated battery charge. Spencer v. State, 40 Fla. L. Weekly D454a (2/18/15)


PEREMPTORY CHALLENGE-RACIAL DISCRIMINATION
: Trial court erred in permitting state to exercise peremptory challenge against African American juror and supplying its own reasons for strike rather than requiring state to give race-neutral reason and then assessing its genuineness. However, Appellant failed to preserve the peremptory strike issue for review, because defense counsel failed to renew the objection before the jury was sworn. Spencer v. State, 40 Fla. L. Weekly D454a (2/18/15)


ATTORNEY-CONFLICT OF INTEREST: Defendant not required to establish existence of actual conflict for withdrawal of counsel to be permitted in pretrial context. Where public defender represents that conflict of interest exists, but is precluded from revealing the nature of the conflict to the trial court based upon counsel's ethical duty to client, trial court must grant motion to withdraw. Question Certified. Smith v. State, 40 Fla. L. Weekly D448b (2/17/15)


FINGERPRINTS: Presence of defendant's fingerprints on jewelry box drawer that victim received sealed from factory years earlier and to which victim had not given defendant access was sufficient to rebut defendant's hypothesis of innocence that fingerprints could have been placed there prior to time of offense. Harris v. State, 40 Fla. L. Weekly D437a (2/16/15)


DOUBLE JEOPARDY: Separate convictions for trafficking in and possession of methamphetamine based on possession of same meth oil violated double jeopardy. Foster v. State, 40 Fla. L. Weekly D435a (2/16/15)


SENTENCING CORRECTION: Sentencing scoresheet miscalculation may be raised at any time pursuant to rule 3.800(a) as long as error is apparent on face of record. If records from another case need to be referred to, motion should be under rule 3.850. McClain v. State, 40 Fla. L. Weekly D434d (2/16/15)


JIMMY RYCE: Claim of ineffective assistance of trial counsel in Jimmy Ryce Act cases cannot be raised on direct appeal where counsel's ineffectiveness cannot be discerned from face of record. Bohner v. State, 40 Fla. L. Weekly D434c (2/16/15)


CHILD CUSTODY-- MODIFICATION: Trial court abused discretion by transferring custody of children to former wife where former wife failed to plead and prove substantial change in circumstances since last custody determination. It was also improper to modify custody at a hearing that was not noticed for a modification proceeding. Baker v. Baker, 40 Fla. L. Weekly D430a (2/13/15)


CONTEMPT
: Due Process is violated where contempt hearing is held without adequate notice. Haeberli v. Haeberli, 40 Fla. L. Weekly D429b (2/13/14)


SEARCH AND SEIZURE-PASSENGER: Passenger in a vehicle that was stopped for an inoperative tag light was seized for Fourth Amendment purposes prior to the search of his person when he was ordered three times by officer in an aggressive manner to keep his hands on the dashboard. Oliver v. State, 40 Fla. L. Weekly D429a (2/13/15) (Jim Tarquin)



QUOTATION: "(T)he officer told Oliver three times to 'keep his hands on the f***ing dashboard.' Although we were not provided a copy of that videotape, we can easily discern that this directive was not conversational in tone." Oliver v. State, 40 Fla. L. Weekly D429a (2/13/15)


PROBATION REVOCATION-NONAPPROVED AREA: Sex offender violated probation by spending night in his father's house, notwithstanding that the only possible approved residence is in a van in a parking lot. "We are troubled by the fact that the terms of Rivera's community control have rendered him homeless. This does not appear to facilitate the goals of sex offender community control." Rivera v. State, 40 Fla. L. Weekly D426a (2/13/15)



COMPETENCY OF DEFENDANT: Where court-appointed expert had determined that defendant was mentally incompetent to proceed, trial court erred in proceeding with trial when the expert subsequently reported that defendant had regained competence without holding competency hearing. Roman v. State, 40 Fla. L. Weekly D421b (2/13/15)


LIFE SENTENCE FOR JUVENILE: Lengthy term of years for nonhomicide offense (55 years) committed by juvenile amounted to de facto life sentence does not violate Graham. Conflict certified. Roman v. State, 40 Fla. L. Weekly D421b (2/13/15)

ATTORNEYS-DISCIPLINE: 10 day suspension for filing motion to continue, then skipping the hearing. Fla. Bar v. Cohen, 40 Fla. L. Weekly S89a (FLA 1/12/15)


PROBATION REVOCATION-NEWLY DISCOVERED EVIDENCE: After Defendant is found guilty of violating probation based in part on recanted handwritten statement by his girlfriend that Defendant had battered her, the girlfriend is charged and convicted of perjury for having said Defendant battered her. Nevertheless, VOP is upheld. NOTE: The girlfriend was a former legal intern at the State Attorney's Office. Ware v. State, 40 Fla. L. Weekly D420a (2/11/15)


ALIMONY-MODIFICATION: Presence of a male tenant does not rise to level of cohabitation. Extensive discussion of meaning of "cohabitation." Atkinson v. Atkinson, 40 Fla. L. Weekly D404a (2/11/15)


CONTINUANCE--VOP
: Abuse of discretion Trial court to deny defendant's motion for continuance to enable defendant to hire private counsel. Hill v. State, 40 Fla. L. Weekly D402b (2/11/15)


WITNESS IN PRISON GARB: Ineffective assistance of counsel to allow state witness close to the Defendant--inthis case his mother--to appear in jail clothes. Carney v. State, 40 Fla. L. Weekly D397a (2/11/15)


LOITERING AND PROWLING: Defendant's movements in the open, an apparent effort to find his way out of a gated apartment complex, were not sufficient for loitering and prowling. Ellis v. State, 40 Fla. L. Weekly D396a (2/11/15)


GRAND THEFT: Conviction for grand theft reversed where no evidence was presented regarding the value of stolen items, or that such value could not be ascertained. Ellis v. State, 40 Fla. L. Weekly D396a (2/11/15)


SEARCH AND SEIZURE-INVESTIGATORY STOP: BOLO description of robbery suspect as a teenaged black male with short cropped hair was too vague to warrant stop of defendant's vehicle and detention of defendant. Gaines v. State, 40 Fla. L. Weekly D386a (1/11/15)

STATEMENT OF DEFENDANT: Error to allow jury to hear unredacted version of defendant's taped statement which contained detective's opinion as to defendant's guilt. Gaines v. State, 40 Fla. L. Weekly D386a (1/11/15)


JURY INSTRUCTION--MANSLAUGHTER BY ACT: Trial court fundamentally erred in giving standard jury instruction on manslaughter by act which required jury finding that defendant intentionally caused death of victim or that death was caused by culpable negligence. Simon v. State, 40 Fla. L. Weekly D382a (2/11/15)


APPEAL-PRESERVATION: Claim that trial court abused its discretion in limiting defense counsel's cross-examination of victim regarding anatomical terminology critical to elements of crimes was not preserved for appeal where defendant never proffered testimony he sought to elicit from victim and substance of the testimony is not apparent from record. Pearlman v. State, 40 Fla. L. Weekly D381c (2/11/15)


BOND PENDING SENTENCING: Trial court is mandated to exercise its discretion to consider release pending sentencing where defendant was previously on pretrial release, was not facing any mandatory, minimum sentence, no evidence was not a risk of flight or danger to the community, and the trial court appears to have refused to exercise its discretion to consider release. Kraft v. State, 40 Fla. L. Weekly D379c (2/11/15)

STAND YOUR GROUND: Defendant was entitled to assert immunity even though he was engaged in unlawful activity (now changed by statute, effective June 20, 2014). Miles v. State, 40 Fla. L. Weekly D372a (2/6/15)


MOTION TO DISMISS: Trial court erred in granting defendant's motion to dismiss information for sexual battery where state's traverse provided material factual allegations that met minimum requirements of prima facie case with respect to the charge. State v. Miller, 40 Fla. L. Weekly D365d (2/6/15)


APPEAL: Trial court lacked jurisdiction to rule on motion to correct illegal sentence which was filed during pendency of direct appeal. Mediate v. State, 40 Fla. L. Weekly D365b (2/6/15)


APPEAL: Where trial court failed to rule on defendant's motion for rehearing within 40 days, motion was deemed denied, and appeal which was filed more than 30 days from date the motion was deemed denied was untimely. Mincey v. State, 40 Fla. L. Weekly D365a (2/6/15)


ENTRAPMENT
: By denying jury instruction on entrapment, trial court effectively decided issue of entrapment as matter of law in favor of state, and this was error. Defendant is allowed to present evidence that he had never been previously arrested. Concurrence: The trial judge erred in allowing the officers to testify regarding the reputation of the "Plenty of Fish" dating website. Oyler v. State, 40 Fla. L. Weekly D363a (2/6/15)


CHILD CUSTODY: Error to allocate sole decision-making authority for children to former husband without including in custody order a specific finding that shared parental responsibility would be detrimental to children. Henderson v. Henderson, 40 Fla. L. Weekly D359a (2/6/15)


HEARSAY-PAST RECOLLECTION RECORDED: The admission of past recollection recorded under section 90.803(5) requires the witness to do two things: First, indicate that the statement was made at a time when the events were fresh in his or her mind, and second, attest to the accuracy of the memorandum or record. Counsel was ineffective for failing to request limiting instruction that would have required jury to consider videotaped statement of codefendant for impeachment purposes only. Clairvin v. State, 40 Fla. L. Weekly D358a (2/6/15)


SENTENCING: Trial court erred in considering lack of truthfulness of juvenile's testimony in determining sentence. R.M.T. v. State, 40 Fla. L. Weekly D354b (2/6/15)


SENTENCING: Trial court erred in requiring that there would be no early termination of probation. Hopps v. State, 40 Fla. L. Weekly D354a (2/6/15)


HABITUAL OFFENDER: Error to impose habitual felony offender sentence for felony petit theft. Kennedy v. State, 40 Fla. L. Weekly D353a (2/6/15)

AMENDMENT TO JURY INSTRUCTIONS: New proposed instructions -- Insanity, psychotropic medication; unlawful protests. 40 Fla. L. Weekly S73a (FLA 2/5/15)
.

SERVICE OF PROCESS: A facially valid return of service is not required to expressly list the factors defining the "manner of service" contained in section 48.031(1)(a), Florida Statutes (2009), which are not included in the requirements of section 48.21, Florida Statutes (2009), defining valid return of service. Koster v. Sullivan, 40 Fla. L. Weekly S63a (FLA 2/5/15)


COSTS: Error to impose sheriff's investigatory cost where there was no request for that cost on the record. Error to impose public defender lien without advising defendant of right to contest amount of lien. Bratton v. State, 40 Fla. L. Weekly D350a (2/5/15)


SEARCH AND SEIZURE: Search of contents of cell phone is lawful under the good faith exception since at the time of the search, binding appellate precedent expressly permitted warrantless search of cell phone incident to arrest. State v. Carpenter, 40 Fla. L. Weekly D348b (2/5/15).

DISCOVERY: Trial court erred by allowing the state to discover a broad class of medical and mental health records available from VA medical facility without sufficient showing that records sought were directly related to circumstances surrounding charges against defendant (murder-Defendant is a veteran with PTSD). Faber v. State, 40 Fla. L. Weekly D348a (1/4/15)


POST-CONVICTION RELIEF: Judge errs by dismissing 3.850 which exceeds the 50 page limit; He should have considered the first 50 pages and stricken the rest. McGill v. State, 40 Fla. L. Weekly D344a (2/4/15)

DEADLOCKED JURY: Where jury reported it was deadlocked and judge gave modified Allen charge, it was reversible error to give a second Allen charge. Case law holds that giving two Allen charges is per se reversible error. Almeida v. State, 40 Fla. L. Weekly D342a (2/4/15)


APPEALS-CERTIORARI
: Where trial court has not rendered a written order denying state's motion to place defendant into custody, petition is dismissed for lack of certiorari jurisdiction. State v. Maldonado, 40 Fla. L. Weekly D334a (2/4/15)


STATEMENTS OF DEFENDANT: Trial court did not err in suppressing statements made to detective before Miranda warning while defendant was in custody after being taken for hospital to HQ. Statements were the result of a deliberate decision to delay issuing Miranda warnings. State v. Cummings, 40 Fla. L. Weekly D333b (2/4/15)



JURY INSTRUCTIONS-LESSER INCLUDED OFFENSES
: It is fundamental error to fail to instruct jury on manslaughter by culpable negligence as lesser included offense of second degree murder, although jury was instructed on manslaughter by act as lesser included offense. Defendant did not waive right to the correct instruction by unsuccessfully requesting that jury not be given opportunity to consider any lesser included offenses at all. Wade v. State, 40 Fla. L. Weekly D331a (2/3/15)

SELF-DEFENSE: Trial court abused discretion by instructing jury that if defendant was engaged in an unlawful activity, his use of deadly force was not justified if he could have reasonably and safely avoided the use of deadly force by retreating. McGriff v. State, 40 Fla. L. Weekly D329b (2/3/15)


COMPETENCE: Trial court committed fundamental error in accepting defendant's guilty plea without entering order finding defendant competent to proceed after he had been adjudicated incompetent. Ross v. State, 40 Fla. L. Weekly D329a (2/3/15)

SELF-DEFENSE-JURY INSTRUCTION: Trial court committed fundamental error by giving contradictory instructions that the Defendant did and did not have a duty to retreat. Ross v. State, 40 Fla. L. Weekly D327b (2/3/15)

JANUARY 2015

VOP-DRUG TEST: Probation officer's testimony about field test results from Drug Check Dip Drug test was not competent, nonhearsay evidence that defendant used an opiate in violation of his probation. Queior v. State, 40 Fla. L. Weekly D325a (1/30/15)


SENTENCING: Trial court commits fundamental error when it speculates during sentencing proceeding that defendant was responsible for a number of deaths from drug overdoses. Challis v. State, 40 Fla. L. Weekly D321a (1/30/15)


SENTENCING-DOWNWARD DEPARTURE: Trial court erred in imposing downward departure sentence on basis of a mitigator specific to participation in drug court where there was no evidence to support that defendant suffered from a drug-related addiction. State v. Kutz, 40 Fla. L. Weekly D315a (1/30/15)


PATERNITY-DNA TESTING: One has only 60 days to contest paternity if one signs an acknowledgment of paternity. J.A.I. v. B.R., 40 Fla. L. Weekly D312a (1/30/15)


APPEALS-JURISDICTION: Trial Court has jurisdiction to allow Defendant to withdraw plea while appeal is pending. Carroll v. State, 40 Fla. L. Weekly D311a (1/30/15).

IMPEACHMENT: Trial court's error in allowing state to inquire about nature of defendant's prior convictions during cross-examination was not fundamental and was not preserved for appeal. Ortiz v. State, 40 Fla. L. Weekly D310b (1/30/15)


RESTITUTION: Juvenile court has no authority to order restitution where juvenile had turned nineteen years of age. D.A.B. v. State, 40 Fla. L. Weekly D305c (1/30/15)


SUSPENDED SENTENCE
: Where defendant was reinstated to community control with a seven-year suspended sentence imposed following an earlier violation of community control, trial court was erroneous in its belief that it was required to impose the suspended sentence upon a second violation of community control. Harvey v. State, 40 Fla. L. Weekly D305b (1/30/15)


CONVICTION OF NON-EXISTENT CRIME: Where defendant was convicted of a non-existent crime, and no lesser included offenses were submitted to jury at trial, proper remedy is discharge of defendant, rather than new trial. Cobb v. State, 40 Fla. L. Weekly D305a (1/30/15)


AMENDMENT TO JURY INSTRUCTIONS: Jury instructions for sex offenses on children amended. 40 Fla. L. Weekly S57c (1/29/15)


WAIVER OF RIGHT TO COUNSEL
: Where defendant had waived counsel, it was fundamental error to fail to renew offer of counsel prior to defendant entering plea and prior to imposition of sentence. Henretty v. State, 40 Fla. L. Weekly D303a (1/29/15)


AND/OR: Use of conjunction "and/or" between names of intended victims of assault did not constitute fundamental error. Thorough discussion. Fussell v. State, 40 Fla. L. Weekly D302a (1/29/15)

INVITED ERROR
: Acquiescence in the giving of a jury instruction, as opposed to an affirmative request for the instruction, does not amount to inviting error and does not preclude relief in the event of fundamental error. Fussell v. State, 40 Fla. L. Weekly D302a (1/29/15)


HEARSAY-BUSINESS RECORDS: Trial court erred in admitting payment history into evidence over defendant's hearsay objection where witness on whom plaintiff relied to establish foundation for admission of payment history was not shown to have personal knowledge about how predecessors had handled loan before plaintiff acquired it. Holt v. Calchas, 40 Fla. L. Weekly D296a (1/28/15)


RIGHT TO ALLOCUTION: Defendant was not deprived of due process because trial court required defendant be sworn and subject to cross-examination at sentencing hearing where he sought a downward departure, which must be based on evidence. A criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution. Jean-Baptiste v. State, 40 Fla. L. Weekly D294a (12/28/15)


VOP-HEARSAY: Evidence that Child threw a rock through Walgreen's window is hearsay and cannot support a revocation of probation. T.J. v.State, 40 Fla. L. Weekly D292b (1/28/15)


IMPEACHMENT: No error in granting state's motion in limine preventing defendant from impeaching witness on her status as probationer. Smith v. State, 40 Fla. L. Weekly D292a (1/28/15)


CHILD SUPPORT-IMPUTED INCOME: Where husband's income for particular year was not regular and continuous, trial court erred in relying strictly on total income for that year to calculate husband's child support obligation. Bonus income must be "regular and continuous" before it can be included in a party's income for purposes of calculating child support. Rudnick v. Harman, 40 Fla. L. Weekly D291a (1/28/15)

RESTITUTION: Error to award restitution for repairs to stolen vehicle based on speculative amount ("Probably four hundred and seventy-nine.") testified to by victim. K.R. v. State, 40 Fla. L. Weekly D290a (1/28/15)


SENTENCING-UPWARD DEPARTURE
: Felony Battery based on prior battery is not a forcible felony, so prison sentence where Defendant has fewer than 22 points is unlawful absent written findings that nonstate prison sanction posed danger to public. Bradley v. State, 40 Fla. L. Weekly D289c (1/28/15)


ILLEGAL SENTENCE: Motion asserting that trial court failed to consider mitigating factors during sentencing is insufficient to show that sentence was illegal pursuant to rule 3.800(a). Paris v. State, 40 Fla. L. Weekly D289b (1/28/15)


QUOTATION
: "If good fences make good neighbors, what do yard lights make? Answer: This litigation. . . .Florida's appellate courts have weighed in on covenants affecting vehicle signs, satellite dishes, and even a terra cotta plaque. Yard lights now join this list." Leamer v. White, 40 Fla. L. Weekly D283b (1/27/15)


NEWLY DISCOVERED EVIDENCE
: Post-trial letter from victim, stating that defendant's intent in taking firearms from victim's storage unit may have been more benign than appeared at trial, did not qualify as newly discovered evidence. Koo v. State, 40 Fla. L. Weekly D283a (1/27/15)


COURT WITNESS
: Claim that trial court erred in calling "court witness" in light of Fla.Stat. §90.608, which allows for any party, including the party calling a witness, to attack the witness's credibility, was not preserved for appeal. Phelps v. State, 40 Fla. L. Weekly D282a (1/27/15)


RESISTING OFFICER: Mere fact that defendant was found by K9 dog hiding in near proximity to the crime was legally insufficient to establish this a the crime of resisting officer without violence, and cannot support revocation of probation. Crapps v. State, 40 Fla. L. Weekly D299b (1/27/15)

SEARCH AND SEIZURE: Evidence obtained in another state in conformity with the law of that state and the federal constitution is admissible in a Florida court. Marquandt v. State, 40 Fla. L. Weekly S32a (FLA 1/22/15)


DEATH PENALTY--COUNSEL: Where defendant chooses to present no evidence in mitigation during penalty phase, trial courts should appoint an independent, special counsel rather than standby counsel to present mitigation evidence. Marquandt v. State, 40 Fla. L. Weekly S32a (FLA 1/22/15)


AMENDMENT TO FAMILY LAW RULES
: New rules for testimony by electronic communication means 40 Fla. L. Weekly S30a (FLA 1/22/15)


REVOCATION OF BOND: Although trial court did not make findings that proof of guilt is evident or the presumption great, there is no error in trial court's conclusion that defendant's pre-information conditions of release were insufficient to protect the community and assure his presence at trial. Johnson v. Guevara, 40 Fla. L. Weekly D257a (1/21/15)


CIRCUMSTANTIAL EVIDENCE: Defendant's possession of recently stolen items was sufficient to establish element of intent as to burglary. State v. Campbell, 40 Fla. L. Weekly D247a (1/21/15)


FAILURE TO REGISTER AS SEXUAL OFFENDER: Failure to register as sexual offender applies only to an offender who changes residence within Florida, not to offender who moved to another jurisdiction. Figueroa v. State, 40 Fla. L. Weekly D246b (1/21/15)


DISORDERLY CONDUCT/RESISTING WITHOUT VIOLENCE
: Denial of motion for judgment of dismissal was improper because juvenile's cursing and shouting in crowd of youths was insufficient to constitute disorderly conduct, officer thus did not have reasonable suspicion that juvenile was committing the offense of disorderly conduct, and hence, in detaining juvenile who was trying to walk away, officer was not engaged in the lawful execution of a legal duty. S.S.v.State, 40 Fla. L. Weekly D240a (1/21/15)


DOUBLE JEOPARDY
: Convictions for two counts of aggravated assault violated prohibition against double jeopardy because those offenses were subsumed within separate conviction for armed burglary with assault. Smith v. State, 40 Fla. L. Weekly D231a (1/20/15)

NEWLY DISCOVERED EVIDENCE: Trial court erred by concluding that newly discovered evidence consisting of letter received by defendant from co-perpetrator of robbery after co-perpetrator's trial stating that defendant drove his car to and from gas station which was robbed, but did not participate in robbery and did not know about it in advance did not give rise to reasonable doubt about defendant's culpability. Stills v. State, 40 Fla. L. Weekly D229a (1/20/15)

BURGLARY-JUDGMENT OF ACQUITTAL: Evidence that juvenile's fingerprints were found on a bag containing a newspaper that was left in the vehicle by someone other than the victim was insufficient to establish crime of burglary of conveyance. L.A.R. V. State, 40 Fla. L. Weekly D219a (1/16/15)

COLLATERAL ESTOPPEL: Where defendant had been acquitted of charge of aggravated battery with a firearm, prosecution of defendant for offense of felon in possession of firearm arising out of same events was barred by collateral estoppel where jury necessarily found that defendant had not had or carried a firearm. Dorelus v. State, 40 Fla. L. Weekly D217f (1/16/15)

INJUNCTION FOR PROTECTION: Error to enter injunction for protection against stalking where one e-mail to petitioner was sufficient to cause a reasonable person to suffer substantial emotional distress, but none of other contacts were sufficient to establish second incident which would cause reasonable person to have suffered substantial emotional distress. Laserinko v. Gerhardt, 40 Fla. L. Weekly D214b (1/16/15)

POST-CONVICTION RELIEF: No error in denying relief on claims that trial counsel provided ineffective assistance when they failed to ask trial court to instruct jury that defendant was under influence of psychotropic medication during trial. Zommer v. State, 40 Fla. L. Weekly S18a (1/15/15)

TAMPERING WITH WITNESS: Error to deny motion for judgment of acquittal where there was no evidence that witness was attempting to contact law enforcement during time of incident. Thompson v. State, 40 Fla. L. Weekly D219b (1/15/15)

POSSESSION OF CHILD PORN-DOUBLE JEOPARDY: Only a single unit of prosecution for possession of multiple articles of the same type of contraband is permissible. Cocking v. State, 40 Fla. L. Weekly D212c (1/14/15)

DOUBLE JEOPARDY: One cannot be convicted of both Possession of Ammunition by a Felon and Possession of a Firearm by a felon. Perri v.State, 40 Fla. L. Weekly D212b (1/14/15)

POST-CONVICTION RELIEF--DOUBLE JEOPARDY: Claim that three counts of saled ov oxycodone violated double jeopardy because, according to information, all occurred on same day must be raised under rule 3.8500. Fact that probable cause affidavit says sales were on different days did not conclusively refute defendant's claim, as there is no indication in record that defendant stipulated to facts alleged in charging affidavit. Burkhead v. State, 40 Fla. L. Weekly D211a (1/14/15).

POSSESSION OF BURGLARY TOOLS: Trial court erred in granting motion for judgment of acquittal of charge of possession of burglary tools on the basis that defendant could not be convicted of possession of burglary tools where he was acquitted of charge of burglary but convicted of the lesser of offense of trespass. Platt v. State, 40 Fla. L. Weekly D208b (1/14/15)

SEARCH AND SEIZURE-INEVITABLE DISCOVERY: Trial court did not err in denying motion to suppress, even though affidavit in support of search warrant contained misleading statements and omissions, because under the inevitable discovery doctrine, since recovered DNA matched defendant's DNA as uploaded to nationwide registry, defendant's DNA connection to victim would eventually have been discovered. Murray v. State, 40 Fla. L. Weekly D203b (1/14/15)

CIRCUMSTANTIAL EVIDENCE: Seeing someone give something to another, who is later found with a stolen I-Pod is insufficient evidence to support a finding a guilt. C.B. v. State, 40 Fla. L. Weekly D195b (1/9/15)

GRAND THEFT: Contractor/Defendant can be convicted of Grand Theft, notwithstanding that work was performed on each of the projects. Livingston v. State, 40 Fla. L. Weekly D186a (1/9/15)

SEARCH AND SEIZURE--WARRANT: Omission from affidavit of information that a road patrol officer who was dispatched to check out neighbor's suspicion that drugs were being grown in defendant's house had illegally entered onto property and peered into windows did not require suppression of evidence where, even had information from road patrol officer been included in affidavit, the illegality of the officer's entry onto the land would not have prevented issuance of search warrant. Luna v. State, 40 Fla. L. Weekly D185a (1/7/15)

EVIDENCE--OPINION: Trial court erred in allowing law enforcement officer to opine regarding the skin color of perpetrators caught on surveillance video depicting crime where officer was in no better position than jury to determine the skin color. Razz v. State , 40 Fla. L. Weekly D181a (1/7/15)

DEPORTATION: Where defendant seeks to withdraw plea, and alleges lack of knowledge of the risk of deportation, prejudice cannot be established if defendant was present in country unlawfully or was otherwise subject to removal. Criminal defense attorney has no affirmative duty to advise an undocumented immigrant whether a plea will have a negative impact on the possibility of avoiding removal or being able to reenter. Rosario v. State, 40 Fla. L. Weekly D172a (1/7/15)

JURY INSTRUCTION--PRESUMPTION BASED ON POSSESSION OF STOLEN PROPERTY: Where defendant was charged with unlawfully entering or remaining in dwelling with intent to commit the offense of theft therein, and there were disputes as to whether defendant had permission to be on the property and what his intent was, either at the time of entry or after he was on the property, it was error to instruct jury on the presumption arising from possession of property recently stolen by means of a burglary. Joseph v. State, 40 Fla. L. Weekly D171a (1/7/15)

SIMILAR FACT EVIDENCE: Where defendant had been observed attempting to carry an engine block out of dwelling's carport, it was error to admit victim's testimony that another engine block was missing from carport. Joseph v. State, 40 Fla. L. Weekly D171a (1/7/15)

SEXTING BY JUVENILE: First offense of sexting by a juvenile is not a violation of law or a delinquent act. State cannot prosecute the violation by petition for delinquency, notwithstanding that no alternative means of prosecution is provided by statute. State v. C.M., 40 Fla. L. Weekly D169c (1/7/15)

PROBATION REVOCATION: Probation could not be revoked based solely on non-criminal traffic violation absent special condition proscribing such conduct. Anglinphillips v. State, 40 Fla. L. Weekly D169a (1/7/15)

SPEEDY TRIAL: Trial court erred by calculating recapture window as a single fifteen-day period rather than as 5-day period for hearing on motion followed by 10-day period within which to bring juvenile to trial after hearing. Intervening weekend not included in counting the 5-day period. State v. J.C., 40 Fla. L. Weekly D165a (1/7/15)

SENTENCING--CONSIDERATIONS: Court may consider uncharged crime during sentencing where the uncharged crime was relevant and was supported by police officer's testimony, and where trial court did not rely on the uncharged crime in determining sentence or place undue emphasis on it. Imbert v. State, 40 Fla. L. Weekly D157a (1/7/15)

PROBATION REVOCATION: Evidence was insufficient to establish that defendant violated probation by changing her place of residence without consent from probation officer where the only non-hearsay evidence relating to this violation was testimony by probation officer that defendant was not at residence when she visited. Webb v. State, 40 Fla. L. Weekly D155b (1/7/15)

PROBATION REVOCATION: Evidence was insufficient to establish that defendant violated probation by failing to attend and successfully complete day reporting and re-entry program where the only evidence offered to prove this violation was hearsay testimony from probation officer that she received call from sheriff's office notifying her that defendant did not successfully complete program. Webb v. State, 40 Fla. L. Weekly D155b (1/7/15)

APPEALS: Defendant abandoned second motion for new trial when he filed notice of appeal, thereby divesting trial court of jurisdiction to rule on motion. Appellate court lacks jurisdiction to review denial of second motion for new trial because defendant did not file amended notice of appeal of that order. Johnson v. State, 40 Fla. L. Weekly D154c (1/7/15)

AGGRAVATED ASSAULT: Evidence that defendant was observed shooting at group of men which included victim, causing men to run and duck, and testimony by one of men in group that he was "in shock" and "scared" was sufficient proof that defendant threatened to do violence toward victim and that victim was in fear of imminent harm, although victim did not testify at trial. Bryant v. State, 40 Fla. L. Weekly D143b (1/7/15)

CRUELTY TO ANIMALS: One can be convicted of cruelty to animals based on failure to act, as well as actually committing an act, notwithstanding that one is not the actual owner of the animal. Brown v. State, 40 Fla. L. Weekly D141a (1/7/15)

QUOTATION: "Having reached an age where I can readily identify with an old, worn-out dog. . ." Brown v. State, 40 Fla. L. Weekly D141a (1/7/15)

QUOTATION: "The humane care and treatment of animals is a moral imperative that does and should define our American culture. But when we point a finger of blame at this disabled woman for her failure to euthanize what seemingly had become a neighborhood dog, we should accept that we are pointing three fingers at ourselves. . . I am not very convinced that third-degree felony prosecutions of indigent women for failure to care for or to euthanize the abandoned dogs of boyfriends is the most effective method to implement our cultural moral imperative." Brown v. State, 40 Fla. L. Weekly D141a (1/7/15)

JURY INSTRUCTION--SELF-DEFENSE: Trial court fundamentally erred by giving standard jury instruction on justifiable use of nondeadly force which sets off the phrase "including deadly force" with an additional comma not included in statutory section upon which the instruction is based. Martin v. State, 40 Fla. L. Weekly D140a (1/7/15)

SENTENCING--CONSIDERATIONS: Trial court fundamentally erred in relying on generalized fears of greater future offenses for any similarly charged defendant and applying a general policy in sentencing defendant which was based on fear and speculation that defendant would commit new criminal acts of abuse. Goldstein v. State, 40 Fla. L. Weekly D137a (1/7/15)

DOUBLE JEOPARDY: Dual convictions for traveling to seduce/solicit/entice child to commit sexual act and use of computer to seduce/solicit/entice child to commit sexual act violated prohibition against double jeopardy. Kim v. State, 40 Fla. L. Weekly D136b (1/7/15)

ALIMONY--MODIFICATION: Evidence that former husband's income had been substantially reduced for about two years, that his income fluctuated from month to month, and that he was nearing retirement was sufficient to support finding that change in circumstances was permanent. Extensive discussion of standard of review of trial court's decision in modification proceeding. Jarrard v. Jarrard, 40 Fla. L. Weekly D127b (1/7/15)

EVIDENCE--SALE OF NARCOTICS: Error to admit testimony from law enforcement officer regarding common practices of drug dealers. Smith v. State, 40 Fla. L. Weekly D118b (1/6/15)

SENTENCING--DOWNWARD DEPARTURE: Downward departure sentence on ground that defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or a physical disability, and defendant is amenable to treatment, does not require that defendant prove that the specialized treatment is unavailable in the Florida Department of Corrections. Kinsey v. State, 40 Fla. L. Weekly D118a (1/6/15)

POST-CONVICTION RELIEF: Claim of newly discovered evidence consisting of affidavits of prison inmates stating that defendant's co-defendant, who is serving life sentence, told them that he was the shooter in the murder was not of such nature that it would probably yield a life sentence. Kormondy v. State, 40 Fla. L. Weekly S5b (1/5/15)

TAMPERING WITH WITNESS: Error to deny motion for judgment of acquittal where there was no evidence that witness was attempting to contact law enforcement during time of incident. Thompson v. State, 40 Fla. L. Weekly D113b (1/2/15)

CARRYING CONCEALED FIREARM: On-duty employee of store was exempt from prohibition against carrying concealed firearm while he was in store's parking lot -- "Place of business" exemption applies to employees as well as owners of businesses and extends to parking lot of business. Curry-Pennamon v. State, 40 Fla. L. Weekly D110g (1/2/15)

DECEMBER 2014

CRIMINAL MISCHIEF--MALICE: Defendant who pushed security guard who landed against a glass door which shattered was erroneously convicted of criminal mischief. The criminal mischief statute requires that when a defendant acts with malice toward another person, rather than toward property, that malice does not transfer to the property. Walker v. State, 40 Fla. L. Weekly D92c (12/31/14)

EVIDENCE-PHOTOGRAPH--SILENT WITNESS: It was error to admit still photographs allegedly depicting surveillance camera frames of party in the absence of authentication or identification testimony for the underlying surveillance video. "On a Saturday morning, after four days of trial, a strange sequence of events unfolded." Lerner v. Halegua, 40 Fla. L. Weekly D93b (12/31/14)

DIVORCE--SAME-SEX COUPLE: Gay couple married in another state cannot obtain a divorce in Florida. "Simply stated, one cannot dissolve a marriage where there is not a marriage to dissolve." Parties may be able to obtain an annulment. Oliver v. State, 40 Fla. L. Weekly D66a (12/24/14)

SENTENCING: Trial court erred in considering fact that defendant continued to maintain his innocence and stated in presentence investigation that he was not guilty of charged offenses. Defendant to be resentenced by a different judge. -- Remand for new sentencing proceeding before a different judge. Wiggins v. State, 40 Fla. L. Weekly D65b (12/24/14)

MURDER-PREMEDITATION: Trial court erred in denying motion for judgment of acquittal where circumstantial evidence as to the essential element of premeditation did not exclude the reasonable hypothesis that the offense was committed with depraved mind. Morales v. State, 40 Fla. L. Weekly D61a (12/23/14)

INCONSISTENT VERDICT: Verdict was inconsistent on its face where jury found defendant guilty of robbery with firearm, but made separate finding that defendant did not actually possess a firearm during commission of offense. Remand with instructions to reduce conviction to simple robbery, not robbery with a weapon. Starling v. State, 40 Fla. L. Weekly D60a (12/23/14)

JURY INSTRUCTIONS: Judge may not instruct jury that it may consider a witness's reputation for dishonesty or truthfulness where there was no evidence presented as to any witness's reputation for dishonesty or truthfulness. Kelsey v. State, 40 Fla. L. Weekly D59b (12/22/14)

CHILD PORNOGRAPHY: Because defendant placed the child pornography in a shared computer file that could be accessed over the Internet in Neptune Beach, the Neptune Beach detective's investigation originated inside the city limits of Neptune Beach, and she could continue that investigation by assisting detective in Atlantic Beach pursuant to mutual aid agreement between the two cities. Knight v. State, 40 Fla. L. Weekly D58b (12/22/14)

COSTS: Error to impose public defender fee and application fee without informing defendant of his right to contest the amount of fees. Error to impose a lump sum amount for court costs--Costs must be specifically delineated with reference to the statutory authority for each cost imposed. Moore v. State, 40 Fla. L. Weekly D58a (12/22/14)

CHILD SUPPORT: Trial court erred in awarding child support based upon what it deemed equitable and on a subjective figure instead of calculating amount based upon statutory guidelines and factors. Ervin v. Starr, 40 Fla. L. Weekly D56a (12/22/14)

APPEALS--ATTORNEY'S FEES: Obligor is not entitled to award of attorney's fees where he requested fees within a paragraph contained in his amended initial brief -- Attorney's fees must be requested by filing a separate motion. Ervin v. Starr, 40 Fla. L. Weekly D56a (12/22/14)

STATEMENTS OF DEFENDANT: Statements made after defendant unequivocally invoked his right to remain silent, and detective responded by threatening him with arrest, were not voluntary. Defendant's re-initiation of contact was involuntary where police threatened him with arrest. Scott v. State, 40 Fla. L. Weekly D52a (12/22/14)

DRIVER'S LICENSE SUSPENSION: Where order of Department of Highway Safety and Motor Vehicles sustaining suspension of driver's license was quashed by circuit court on ground that licensee's due process rights were violated, it was a departure from essential requirements of law for the court to fail to remand the matter to hearing officer for further proceedings. DHSMV v. Clay, 40 Fla. L. Weekly D51c (12/19/14)

HEARING OFFICERS: "I write separately to express concern about an apparent fundamental unfairness in these administrative proceedings. The transcripts reflect that at least some hearing officers exhibit a palpable predisposition. This is improper. Whether a proceeding is administrative or judicial, the parties are entitled to an impartial arbiter, and the record in this case -- and in many that we see on appeal -- does not reflect that. . . For years, we have instructed hearing officers that citizens are entitled to subpoena and present witnesses at hearings. . . And yet, time after time, these decisions are ignored." DHSMV v. Clay, 40 Fla. L. Weekly D51c (12/19/14)

POST CONVICTION RELIEF--TIMELINESS OF MOTION: Error to deny motion as untimely without evidentiary hearing where defendant claims that he retained an attorney to file a timely motion, but the attorney never filed the motion. Denard v. State, 40 Fla. L. Weekly D51b (12/19/14)

CHILD SUPPORT/ALIMONY: Error to order temporary support that exceeded ability to pay. Topel v. Topel, 40 Fla. L. Weekly D50b (12/19/14)

POST CONVICTION RELIEF: Error to summarily deny claim that plea agreement for fourth DUI should be set aside because trial counsel failed to investigate and determine that defendant was not offered counsel for 1985 DUI conviction. Goins v. State, 40 Fla. L. Weekly D47b (12/19/14

INSANITY-INVOLUNTARY COMMITMENT: Where undisputed medical experts opined that defendant had been restored to competency, but was legally insane at time of offense, the Court must order outpatient treatment or discharge him. If court is unable to order defendant's conditional release, the only alternative is to discharge him. Morrow v. State, 40 Fla. L. Weekly D39b (12/18/14)

SENTENCING-10-20-LIFE: Court may impose consecutive mandatory minimum sentences under 10-20-Life statutes for multiple convictions involving only one victim where defendant was carrying firearm. Miller v.State, 40 Fla. L. Weekly D39a (12/18/14)

AMENDMENTS TO FAMILY LAW RULES: For constructive service of process in cases involving parental responsibility, custody, or time-sharing, party must file an Affidavit of Diligent Search. Financial Affidavits not required for Simplified Dissolution of Marriage. AMENDMENTS TO FAMILY LAW RULES, 39 Fla. L. Weekly S774a (FLA 12/18/14)

ATTORNEYS: Due to attorney's constant abusive filings, clerk instructed to reject future pleadings, petitions, motions, documents, or other filings submitted by attorney unless filings are signed solely by member in good standing of The Florida Bar other than respondent in this case. Florida Bar v. Petrano, 39 Fla. L. Weekly S769a (12/18/14)

COMPETENCY OF DEFENDANT: Trial court must hold competency hearing, which defense counsel requested just prior to commencement of defendant's trial, where there were reasonable grounds to believe defendant may have been incompetent. Avilerosario v. State, 40 Fla. L. Weekly D25a (12/17/14)

TRIAL: Trial court must allow Defendant to appear at trial in civilian clothes. Avilerosario v. State, 40 Fla. L. Weekly D25a (12/17/14)

APPEALS: Trial court's discretionary decisions to deny downward departure sentences are appealable. Fogarty v. State, 40 Fla. L. Weekly D21b (12/17/14)

STATEMENTS OF DEFENDANT: Statement of defendant that "I got a lawyer. Could I call them?" was unambiguous request for counsel, and statements he made afterward were erroneously admitted. Davis v. State, 40 Fla. L. Weekly D17b (12/17/14)

SEVERANCE: Severance of high-speed fleeing count from murder, armed burglary, possession of firearm by felon counts, even though fleeing occurred several days after the other crimes. Trial court properly concluded flight was episodically related to prior crimes because flight could be construed as an attempt to prevent officers from discovering stolen items in defendant's car. Davis v. State, 40 Fla. L. Weekly D17b (12/17/14)

VOLUNTARINESS OF PLEA-DEPORTATION: Prejudice resulting from trial counsel's failure to advise defendant of truly clear deportation consequence was not cured by language in plea colloquy in which court informed defendant, "if you are not a United States citizen, this plea would subject you to deportation." Concurrence: "This is an unfortunate case. . . Menchaca-Ramirez is nearly fifty-nine years old and came to this country from Mexico as a teenager. . .These charges . . . are minor criminal offenses. . . If the trial court and the lawyers had appreciated that a sentence of fourteen months' incarceration would subject this man to deportation, it seems highly unlikely that he would have received this sentence. Menchaca-Ramirez v. State, 40 Fla. L. Weekly D13a (12/17/14)

DOUBLE JEOPARDY: Dual convictions for use of computer to solicit sex with minor and traveling to meet minor for sex in the course of one criminal transaction or episode violated constitutional protection against double jeopardy. Conflict certified. Doom v. State, 40 Fla. L. Weekly D12a (12/17/14)

SENTENCING-GUIDELINES DEPARTURE: Error to depart downward without providing written reasons. Sale of cocaine was not committed in unsophisticated manner. Record did not support defendant's contention that downward departure could be upheld based on statute permitting departures under certain circumstances if defendant is amenable to services of postadjudicatory treatment-based drug court program. Hudson v. State, 40 Fla. L. Weekly D11a (12/17/14)

CHILD SUPPORT MODIFICATION: Trial court improperly modified child support obligation based on father's having fathered three additional children with another woman. Begetting a child is not an involuntary act and hence will not justify a deviation from child support guidelines. Gimeno v.Rivera, 40 Fla. L. Weekly D1a (12/17/14)

SENTENCING-10-20-LIFE: Court may impose a sentence in excess of mandatory minimum term imposed under the 10-20-Life statute. Conflict certified. Hatten v. State, 39 Fla. L. Weekly D2599a (12/17/14)

COSTS: Court may not impose cost of prosecution without citing statutory basis. Hatten v. State, 39 Fla. L. Weekly D2599a (12/17/14)

FORGERY: Error to deny motion for judgment of acquittal where state failed to present sufficient evidence of intent to injure or defraud or of some action by defendant amounting to passing off false court order as genuine. No presumption of intent arises from mere creation of falsified document. Defendant's admission that she wanted to regain custody of her son did not permit jury to infer that defendant had falsified order found in the car with intent that, if husband were to find it, he would believe it to be legitimate and that he was required to hand over custody of child to defendant. Lewis v. State, 39 Fla. L. Weekly D2597b (12/16/14)

INFERENCE OF GUILT: Error to instruct jury on inference of guilt that arises when individual purchases or sells property at price substantially below fair market value where there was no concrete evidence of market value of stolen property at time of alleged theft. Hadley v. State, 39 Fla. L. Weekly D2592a (12/16/14)

COLLATERAL ESTOPPEL: Defendant was collaterally estopped from arguing that trial court erroneously denied motion to suppress where he challenged denial in prior case raising same arguments, and appellate court affirmed order per curiam. Peterson v. State, 39 Fla. L. Weekly D2591a (12/16/14)

JUDGE-DISQUALIFICATION: Petition to prohibit judge from presiding over any case involving police department on basis that judge has previously expressed bias against police department and its officers is not legally sufficient. State v. Banner, 39 Fla. L. Weekly D2590d (12/15/14)

QUOTATION: "Closing argument is not intended to be an unfair display of glib oratory skills that impugn opposing counsel or bolster a witness's testimony; an attorney is limited to assisting the jury in analyzing, evaluating, and applying the evidence." Howard v. State, 39 Fla. L. Weekly D2577a (12/12/14)

ARGUMENT: State's argument which disparaged defense counsel was improper. "Lawyers are like magicians. . . And if Ms. Shane is to be believed, I'm an amazingly good one. . . A magician gets you to believe that something is true even though your rational mind tells you there's no way it could be ... (B)ut the magician in this case is not me it's Ms. Shane." Error is fundamental. Howard v. State, 39 Fla. L. Weekly D2577a ( 12/12/14)

ARGUMENT: Improper for State to argue that only trial court has any decision making power at to what happens to flipping co-defendant. State's suggestions to the contrary are "troubling" and "hollow." Howard v. State, 39 Fla. L. Weekly D2577a (121/2/14)

BOLSTERING OF WITNESS: State improperly bolstered its witness's testimony with prior consistent statements witness had made to police. Howard v. State, 39 Fla. L. Weekly D2577a (12/12/14)

CONSTRUCTIVE POSSESSION: Evidence is insufficient to show possession of cocaine found in Krazy Glue tube on windowsill of open window of house where Defendant did not reside at house, other people were present, house was leased to someone other than defendant and frequented by drug dealers, and there was no evidence that defendant knew of presence of cocaine, notwithstanding that cocaine was so close to him as to be within his ready reach or plain view, and that Defendant' said he ran into the house "to put up my dope." Williams v. State, 39 Fla. L. Weekly D2583a (12/12/14)

DON'T SAY THIS: "I ran into the house to put up my dope. I'm a dope boy, you know how we do. I might sell a little dope, but I ain't never killed anybody." Williams v. State, 39 Fla. L. Weekly D2583a (12/12/14)

SUFFICIENCY OF EVIDENCE: Conviction for battery on victim 65 years of age or older was unsupported by evidence of victim's age, a statutory element that must be established. McMichael v. State, 39 Fla. L. Weekly D2581b (12/12/14).

INJUNCTIONS: It was a denial of due process to deny motion to dissolve injunction alleging changed circumstances without a hearing. Carrozza v. Stowers, 9 Fla. L. Weekly D2580b (12/12/14)

SPEEDY TRIAL: Although delay between filing of information and date set for trial of thirteen-and-a-half months is presumptively prejudicial, appellate court is unable to determine whether there was a violation of defendant's constitutional speedy trial right where record contains insufficient information regarding reason for state's delay in prosecuting case. There are three categories of reason for delay by the State: deliberate, negligent, and justified. The burden to explain the cause of the delay rests exclusively on the State. Jacobs v. State, 39 Fla. L. Weekly D2579a (12/12/14)

STATEMENTS OF DEFENDANT: Where defendant's recorded statement was introduced by state, it was error to allow state to redact portions of the statement dealing with defendant's mental illness and the medications he was taking at the time of the statement. Johnroe v. State, 39 Fla. L. Weekly D2569b

INTERCEPTED COMMUNICATION: A recording of solicitation and confirmation of child sexual abuse surreptitiously made by the child victim in the accused's bedroom is illegal and therefore inadmissible. McDade v. State, 39 Fla. L. Weekly S752b (FLA 12/11/14)

HEARSAY: Testimony of victim's boyfriend recounting statements of victim that defendant had raped her was inadmissible hearsay. McDade v. State, 39 Fla. L. Weekly S752b (FLA 12/11/14)

STANDARD JURY INSTRUCTIONS: Clarifies knowledge element as to whether it is an element or affirmative defense in trafficking cases. 39 Fla. L. Weekly S750a (FLA 12/11/14)

SENTENCING-LEWD AND LASCIVIOUS ASSAULT: Error to impose life sentence with minimum mandatory sentence of twenty-five years where statute provides only for one sentence or the other. Hernandez v. State, 39 Fla. L. Weekly D2547a (12/10/14)

SELF-REPRESENTATION: Judge erred in denying defendant's unequivocal request to discharge appointed counsel and represent himself because defendant was not qualified to do so by his training, education, and experience. Hooker v. State, 39 Fla. L. Weekly D2546b (12/10/14)

RESTITUTION: Error to award restitution for item which was not specifically mentioned in arrest affidavit, delinquency petition, or at plea hearing. A.D. v. State, 39 Fla. L. Weekly D2547b (12/10/14)

AGGRAVATED ASSAULT WITH A DEADLY WEAPON: Steak knife can be a deadly weapon. P.J.A. v. State, 39 Fla. L. Weekly D2553a (12/10/14)

POST-CONVICTION RELIEF-DISCOVERY: Trial court did not err in denying defendant's pro se motion to compel clerk to transcribe DVD containing recorded police interview with codefendant and to provide defendant a paper copy thereof for use in preparation of defendant's motion for post conviction relief. Burkett v. State, 39 Fla. L. Weekly D2557a (12/9/14)

ORGANIZED TRAFFICKING: Trial court fundamentally erred in convicting defendant of two counts of organized trafficking where evidence showed that defendant directly participated in the theft and sale of the same stolen property. Lippwe v. State, 39 Fla. L. Weekly D2555b (12/9/14)

COSTS: Investigative fees that are not "costs for the state attorney" and must be requested on the record by the appropriate agency. Lippwe v. State, 39 Fla. L. Weekly D2555b (12/9/14)

DISCOVERY: Trial court erred in allowing testimony of undesignated expert witnesses without conducting adequate Richardson inquiry. Debord v. State, 39 Fla. L. Weekly D2555a (12/9/14)

DISCOVERY VIOLATION: It was improper for trial court to exclude evidence as a sanction for state's perceived discovery violation without finding that defendant suffered procedural prejudice or considering lesser sanctions. Roberson v. State, 39 Fla. L. Weekly D2531c (12/5/14)

SENTENCING--GUIDELINES--DOWNWARD DEPARTURE: Trial court's announced policy of not considering a request for a downward departure sentence after a jury finds a defendant guilty constitutes a denial of due process, resulting in fundamental error. Little v. State, 39 Fla. L. Weekly D2527a (12/5/14)

STANDARD JURY INSTRUCTIONS AMENDMENT-JURORS' USE OF ELECTRONICS: 39 Fla. L. Weekly S723a (12/4/14): http://www.floridalawweekly.com/forms/sc14-623.pdf (FLA, 12/5/14)

ALIMONY: Term of award of durational alimony is reversed and remanded for reduction to the duration of the marriage. Diaz v. Diaz, 39 Fla. L. Weekly D2525c (12/3/14)

POSSESSION OF PARAPHERNALIA: Judgment of dismissal required where state failed to present evidence that the residue from juvenile's pipe was a controlled substance, and failed to present evidence that juvenile had possession of paraphernalia with intent to use it to consume a controlled substance. M.D. v. State, 39 Fla. L. Weekly D2524a (12/3/14)

ATTEMPT TO COMMIT SEXUAL BATTERY ON CHILD: Defendant's appearance at meeting place arranged by undercover detective carrying box of candy for detective's fictitious child and two boxes of condoms were preparatory actions and did not amount to overt actions necessary to prove attempt to commit sexual battery on a child. Mizner v. State, 39 Fla. L. Weekly D1586a (12/3/14)

SEARCH AND SEIZURE-TRAFFIC STOP: Stop of vehicle which was traveling 45 miles per hour on a four lane highway where the maximum speed limit was 65 miles per hour and the minimum speed limit was 40 miles per hour was illegal. "[The detective observed] that people generally drove over the speed limit, not under it. (T) the State. . . asserts that the car was actually traveling 30 miles per hour less than the normal practice. But it would be a strange world indeed if under the Fourth Amendment a search and seizure could be justified by the subject's failure to engage in typical law-breaking behavior." State v. Agreda, 39 Fla. L. Weekly D2516a (12/3/14)

EVIDENCE-OPENING THE DOOR: Although defendant opened door to specific questions about prior record when he testified that he never hit police officer in his life, trial court abused discretion in allowing prosecutor to question defendant about prior offense that did not involve a law enforcement officer and a prior offense involving aggravated battery on law enforcement officer, of which defendant denied being convicted and for which state's only evidence was rap sheet entry. Spears v. State, 39 Fla. L. Weekly D2512a (12/3/14)

COSTS OF PROSECUTION: Error to impose costs of prosecution in absence of request by state. Riley v. State, 39 Fla. L. Weekly D2512b (12/3/14)

REOPENING CASE: Trial court improperly denied defendant's motion to reopen case where jury was deprived of evidence which might have had a significant impact. State argued to jury that exhibit was a photograph of the defendant from the night of his arrest, but the record shows the photograph turned out to have been taken later and identification was a key issue. Covello v. State, 39 Fla. L. Weekly D2506a (12/3/14)

GRAND THEFT: Error to deny motion for judgment of acquittal on grand theft charge where state failed to elicit sufficient testimony regarding the value of the items taken. On retrial, state may not proceed on a theory that the value of the stolen property was more than $300 because jeopardy had attached with regard to the grand theft charge. Covello v. State, 39 Fla. L. Weekly D2506a (12/3/14)

JURY INSTRUCTIONS: Where defendant was charged with attempted premeditated murder, trial court did not err in instructing jury on attempted felony murder. Bell v. State, 39 Fla. L. Weekly D2505a 912/3/14)

INDEPENDENT ACT: Trial court did not err in denying defendant's motion for judgment of acquittal on charge of attempted murder which occurred during a robbery where there was evidence that defendant heard the shooter make a statement of an intent to commit the crime, participated in the robbery, arguably knew that he would benefit from the robbery based on his participation, and also knew that the shooter had a shotgun with him during the robbery. Bell v. State, 39 Fla. L. Weekly D2505a (12/3/14)

DISCOVERY VIOLATION: No abuse of discretion in preventing expert's use of PowerPoint presentation where state was not notified of presentation prior to expert testifying. Baker v. State, 39 Fla. L. Weekly D2500a (12/3/14)

WITHDRAWAL OF PLEA: Error to deny presentencing motion to withdraw pleas, which was based on substantial assistance agreement, where nature, scope and duration of substantial assistance agreement were vague, there was no meeting of minds as to length of time defendant had to perform, and defendant's efforts were shut down by supervising detective after only 16 or 17 days. Harper v. State, 39 Fla. L. Weekly D2499b (12/3/14)

EVIDENCE TAMPERING: Evidence of intent was insufficient to support evidence tampering charge that arose from defendant's deletion of a video from his work cellular phone, a video which defendant had previously shown to his supervisor, texted to a co-worker, and e-mailed to an attorney for collective bargaining agent. Statute does not criminalize deleting evidence existing in memory of particular electronic device, particularly where such evidence resides elsewhere in the electronic ether. Costanzo v. State, 39 Fla. L. Weekly D2498a (12/3/14)

VIOLATION OF PROBATION: Evidence was insufficient to support finding that defendant's failure to keep electronic monitoring device charged was willful and substantial violation of probation. Comolli v. State, 39 Fla. L. Weekly D2497a (12/3/14)

COMPETENCY OF DEFENDANT: Trial court properly denied motion to dismiss based on incompetency due to intellectual disability or autism persisting for up to two years because no evaluation of the defendant has ever found him to have met the statutory definition of "intellectual disability." Joseph v. State, 39 Fla. L. Weekly D2496b (12/3/14)

PLEA WITHDRAWAL: Where defendant filed pro se notice of appeal prior to filing motion to withdraw plea, trial court should have dismissed pro se motion to withdraw plea rather than denying it. Bowen v. State, 39 Fla. L. Weekly D2493a (12/2/14)

CONTEMPT-DISSOLUTION OF MARRIAGE: Trial court did not err by finding former husband in civil contempt for failing to comply with orders which required him to make his best efforts to obtain and maintain a life insurance policy naming former wife as beneficiary, pay off a credit card and remove former wife's name from account, and pay alimony. Williams v. State, 39 Fla. L. Weekly D2490a (12/2/14)

NOVEMBER 2014

WRONGFULLY ADMITTED EVIDENCE IN NONJURY TRIAL: In a nonjury trial, where a judge erroneously admits evidence, he is presumed to have disregarded the improperly admitted evidence. However, "(i)t would be nonsensical . . .and insulting to the training and experience of the trial judge to presume that the evidence was disregarded when the court made a conscientious ruling that the evidence was admissible. In that circumstance, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume that the trial court disregarded evidence which was specifically admitted as proper." R.M.O. v. State, 39 Fla. L. Weekly D2467a (11/26/14)

RESISTING WITHOUT VIOLENCE: Arresting officers were not performing a legal investigative stop when they stopped defendant who was leaving the residence of a person officers were seeking to arrest, and officers had no suspicion that defendant was engaging in or was going to engage in criminal activity. Scott v. State, 39 Fla. L. Weekly D2458b (11/26/14)

COUNSEL-DISQUALIFICATION: W ife may represent Husband in post divorce proceeding with first wife. Lieberman v. Lieberman, 39 Fla. L. Weekly D2457a (11/26/14)

LAWYER SCOLDED: "Ferrer does not aid her husband (and client's) case by lobbing acrimonious grenades in the form of unprofessional comments directed at opposing counsel and the trial court. We are stunned at Ferrer's disrespectful, offensive, and inflammatory argument directed at the trial judge. . .This type of intemperate advocacy has no place in any pleading filed with any court, and serves only to vent Ferrer's emotions. The tenor of Ferrer's reply is one of disrespect, bordering on contempt. Ferrer's filings . . . are verbose and unnecessarily digress in excruciating detail into irrelevant matters. An attorney who is too personally involved with the issues in a litigation should consider withdrawing or risk violating ethical duties owed to the client." Lieberman v. Lieberman, 39 Fla. L. Weekly D2457a (11/26/14)

LIMITATION OF ACTIONS: Running of statute of limitations was tolled while defendant was continuously absent from state. Where defendant is continuously absent from state, §775.15(5) does not require that state undertake a diligent search or that defendant's absence hindered the prosecution for the statute of limitations to be tolled. Robinson v. State, 39 Fla. L. Weekly D2449b (11/24/14)

DISCOVERY VIOLATION-DEPOSITION: Where, prior to her deposition, state witness gave statement that defendant had never lived at her residence, and in her deposition witness stated that she had previously lied and that defendant was in fact living at her home, it was a discovery violation for prosecutor to fail to inform defense counsel that on morning of trial the witness had said that she would revert to her initial statement and would testify differently than she had testified on deposition. Witness's statement to prosecutor on morning of trial should have been promptly disclosed to defense, even though it was neither written nor recorded, nor summarized in any writing or recording. Washington v. State, 39 Fla. L. Weekly D2447a (11/24/14)

CONSTRUCTIVE POSSESSION OF NARCOTICS IN HOME: Circumstantial evidence presented by state to prove constructive possession of methamphetamine oil, which was in jar in cabinet beneath kitchen sink, and anhydrous ammonia, one tank of which was in bathtub of a hallway bathroom and the other of which was in an orange cooler wrapped in a towel inside third bedroom of house, was not inconsistent with defendant's reasonable hypothesis of innocence that she occupied master bedroom and bathroom and no other bedroom or bathroom. Temple v. State, 39 Fla. L. Weekly D2445b (11/21/14)

DOUBLE JEOPARDY: Convictions for aggravated assault with firearm and aggravated battery with firearm violated rights against double jeopardy in light of defendant's conviction for attempted burglary of dwelling with assault or battery and with firearm, which arose out of same criminal episode. Spratt v. State, 39 Fla. L. Weekly D2442c (11/21/14)

DOUBLE JEOPARDY: Convictions for arson and insurance fraud did not violate double jeopardy where convictions were either based on separate, distinct criminal acts or authorized by clear legislative intent. Patterson v. State, 39 Fla. L. Weekly D2435a (11/20/14)

PRESERVATION OF EVIDENCE: No error in permitting state's expert witnesses to testify concerning vehicle allegedly used to start fires, although state allowed vehicle to be destroyed before defendant's expert could examine it. Patterson v. State, 39 Fla. L. Weekly D2435a (11/20/14)

CROSS-EXAMINATION: Trial court reversibly erred in limiting cross-examination of victim concerning his consultation with attorney in contemplation of civil suit. Makranczy v. State, 39 Fla. L. Weekly D2434c (11/20/14)

SEARCH AND SEIZURE-PAT DOWN: Standing in a driveway with a hand in one's pocket does not justify an invasion of one's personal liberty. Unlawful search to demand a man to remove his hand from his pocket and, upon the man's refusal to consent to a search, conduct a weapons pat-down . Bare recitation of officer's "training and experience" is insufficient to cure constitutional deficiencies and support officer's bare conclusion that an item is a bag of powder cocaine. Griffin v. State, 39 Fla. L. Weekly D2431a (11/20/14)

QUOTATION: "If ones mere presence in a 'high crime' area can justify a reasonable suspicion for a weapons pat-down, then everyone who resides in, works in, visits, conducts business in, attends school in, or traverses through the area can be considered armed and potentially dangerous. . . Fourth Amendment constitutional protections do not stop at the entryway to selected neighborhoods." Griffin v. State, 39 Fla. L. Weekly D2431a (11/20/14)

ATTEMPTED MURDER: Defendant's act of discharging a firearm constituted an essential element of the underlying felony of attempted murder, and this act of discharging a firearm cannot also constitute the "intentional act that is not an essential element of the underlying felony," as is required to establish attempted felony murder. Milton v. State, 39 Fla. L. Weekly S708b (FLA 11/ 20/14)

JURORS-PEREMPTORY CHALLENGES: Trial court committed clear error by refusing to consider the genuineness of state's proffered race-neutral reasons for striking two African-American prospective jurors. Ellis v. State, 39 Fla. L. Weekly D2427a (11/19/14)

QUOTATION: "The mere fact that there was no similarly-situated juror with whom a comparison could be made does not render the proffered basis for the peremptory "genuine" nor reasonably lead to the conclusion that it was not pretextual. To permit a finding of no pretext by reliance upon a single, inapplicable Slappy factor would eviscerate Melbourne and invite gamesmanship, as an attorney would merely need to proffer, as a reason for the strike, some race-neutral circumstance or characteristic that is not shared by any other prospective juror, thereby defying a comparison of similarly-situated jurors, and foreclosing a finding of pretext. Ellis v. State, 39 Fla. L. Weekly D2427a (11/19/14)

ROBBERY WITH DEADLY WEAPON-ENHANCEMENT: The crime of robbery continues during flight, so that the defendant was involved in a single continuous criminal episode, and evidence he possessed the gun during his flight was sufficient to support the imposition of the mandatory minimum. Roberts v. State, 39 Fla. L. Weekly D2411a (11/19/14)

INDEPENDENT ACT: Trial court did not abuse discretion in denying request for jury instruction on independent act defense, as evidence did not support the instruction. Although defendant may not have intended for victim to be murdered, he willingly participated in crimes by preventing victim from running away and holding his hands behind his back, which set forces in motion leading to murder, and assisted in throwing victim's body in canal after victim's throat was slashed. Sotelo Gomez v. State, 39 Fla. L. Weekly D2406a (11/19/14)

SENTENCING-JUDGE: Resentencing required before new judge where sentencing judge justified sentence, in part, by stating that judge did not find defendant's testimony credible. Ward v. State, 39 Fla. L. Weekly D2405c (11/19/14)

QUOTATION: "Conflicting evidence inheres in most trials, and to allow imposition of a harsher sentence merely because the trial judge believes the evidence supporting his finding of guilt, would create a catch-22 -- the defendant may not be punished for his exercise of the right to trial but may be punished for his lack of candor during the trial." Ward v. State, 39 Fla. L. Weekly D2405c (11/19/14)

HABEAS CORPUS: Where Petitioner's appeal was denied and question not certified, but issue was later resolved in Petitioner's favor by Supreme Court, it would be manifestly unjust to deny him the same remedy that has been afforded to other similarly-situated defendants. Hooks v. State, 39 Fla. L. Weekly D2405a (11/19/14)

ARGUMENT: Trial court abused its discretion in overruling defendant's objection to prosecutor's remarks in closing argument which indicated there were other witnesses state might have called to corroborate testimony of the witness who testified. "A time-honored defense argument in a criminal case is the lack of evidence, with one source of the deficiency being missing witnesses. A prosecutor cannot respond to this argument by suggesting . . . that there are other witnesses who would corroborate the state's case had they been called to testify." McDowall v. State, 39 Fla. L. Weekly D2404d (November 19, 2014)

POST CONVICTION RELIEF -- JURISDICTION: Error to deny rule 3.850 motion on ground that trial court lacked jurisdiction to consider motion in light of pending appeal of a prior rule 3.850 motion. Hamze v. State, 39 Fla. L. Weekly D2404c (11/19/14)

POST CONVICTION RELIEF -- NEWLY DISCOVERED EVIDENCE: Claim of newly discovered evidence can be an exception to two-year time limitation for filing motion for post conviction relief. Blake v. State, 39 Fla. L. Weekly D2399b (11/19/14)

DOUBLE JEOPARDY: Separate convictions and sentences for sale of cocaine and manufacture of crack cocaine did not violate prohibition against double jeopardy, although both offenses are violations of section 893.13(1)(a). Johnson v. State, 39 Fla. L. Weekly D2396a (11/14/14)

INTRODUCTION OF CONTRABAND: Because mens rea is an element of offense, jury instruction allowing conviction without proof of scienter constituted fundamental error. Brown v.State, 39 Fla. L. Weekly D2394b (11/14/14)

PLEA -- WITHDRAWAL: Allegation that defendant was led by defense counsel to believe he would receive only jail time by pleading open to the court was not refuted by record. Fact that defendant was advised in original plea colloquy of maximum and minimum penalties not determinative of defendant's understanding of his possible sentence upon violation of community control. Galarza v. State, 39 Fla. L. Weekly D2394a (11/14/14)

JUDGMENT OF CONVICTION UPON REVOCATION OF PROBATION: Court has no authority to enter second judgments of conviction following probation revocation hearing which duplicated original judgments of conviction Pierce v. State, 39 Fla. L. Weekly D2393b (11/14/14)

SENTENCING-MANDATORY LIFE SENTENCE FOR JUVENILE: Miller v. Alabama applies retroactively. Snipes v. State, 39 Fla. L. Weekly D2393a (11/14/14)

CHILD SUPPORT-CONTEMPT-MEDICAL EXPENSES: Finding that husband was in civil contempt for failure to pay his share of children's medical expenses, in violation of parties' partial settlement agreement, was premature where PSA was not sufficiently clear in its directive regarding objections to medical expenditures. Gerber v. Gerber, 39 Fla. L. Weekly D2391b (11/14/14)

PUBLIC DEFENDER'S FEES: Court may not assess public defender's fees without notice to defendant of right to contest amount. Johnson v. State, 39 Fla. L. Weekly D2388a (11/14/14)

DEATH PENALTY: Florida's lethal injection protocol does not violate prohibition against cruel and unusual punishment. Banks v. State, 39 Fla. L. Weekly S661a (FLA 11/2/14)

SENTENCING --DOWNWARD DEPARTURE: Remoteness of prior conviction not valid basis for downward departure sentence, as that factor has already been addressed by legislature in the Criminal Punishment Code. Hodges v. State, 39 Fla. L. Weekly D2365b (11/12/14)

CIRCUMSTANTIAL EVIDENCE: Possession of stolen bike coupled with false exculpatory statement is sufficient evidence to withstand motion for judgment of acquittal. S.M. v. State, 39 Fla. L. Weekly D2362b (11/12/14)

OTHER CRIMES, WRONGS, OR ACTS: Evidence is admissible of a shooting after the charged homicide in which defendant used the same firearm, where the evidence demonstrated defendant's possession of murder weapon before and after homicide and the evidence did not become a feature of the trial. Barnett v. State, 39 Fla. L. Weekly D2362a (11/12/14)

SENTENCING-CORRUPTION BY THREAT: Because the charged offense is not a forcible felonyand defendant scored less than 22 points on scoresheet, it was improper for trial court to impose sentence of five years' imprisonment without making written findings that a nonstate prison sanction would impose a danger to the public. Dresch v. State, 39 Fla. L. Weekly D2361b (11/12/14)

REVOCATION OF PRETRIAL BOND: Error to grant state's motion to revoke pretrial bond and to deny defendant's emergency motion for rehearing without making findings of fact to support bond revocation. The pretrial detention order of the court shall be based solely upon evidence produced at the hearing. Hill v. State, 39 Fla. L. Weekly D2387a (11/10/14)

SALE OF COCAINE WITHIN 1000 FEET OF CHURCH: Error to deny motion for judgment of dismissal where state failed to establish that the church building in question was a physical place of worship at which religious services are regularly conducted. A.B. v. State, 39 Fla. L. Weekly D2346a (11/7/14)

RESTITUTION HEARING: Error to hold restitution hearing at which juvenile was not present where juvenile had not waived his presence. C.W. v. State, 39 Fla. L. Weekly D2345a (11/7/14)

CHILD NEGLECT-UNCHARGED OFFENSE: Where defendant was charged with failure to protect child from abuse by another person which resulted in great bodily harm, defendant was erroneously convicted of the uncharged offense of child neglect owing to her failure to provide for child's needs. Wunsch v. State, 39 Fla. L. Weekly D2344a (11/7/14)

SENTENCING-DOWNWARD DEPARTURE: Departure from guidelines sentence, based on victim's assent, was an abuse of discretion where no evidence was presented of victim's need for restitution to support departure. On remand, defendant must be given opportunity to withdraw plea. Montgomery v. State, 39 Fla. L. Weekly D2343c (11/7/14)

INJUNCTIONS-DOMESTIC VIOLENCE: Injunction reversed where evidence failed to establish wife had reasonable cause to believe she was in imminent danger where there had been no violence for the last four months. Phillips v. Phillips, 39 Fla. L. Weekly D2343b (11/7/14)

PROBATION REVOCATION-HEARSAY: Court may not revoke probation based on only the hearsay testimony of probation officer. Pryor v. State, 39 Fla. L. Weekly D2342e (11/7/14)

CREDIT FOR TIME SERVED-CONCURRENT SENTENCES-REMEDY: Where the Defendant is erroneously released early from jail sentence, then rearrested he must seek credit for time served for time during release through administrative proceedings or petition for writ of mandamus, rather than under R. 3.800. Martin v. State, 39 Fla. L. Weekly D2341a (11/7/14)

PROHIBITION-JURISDICTION: Where trial court had granted motion to dismiss information based on entrapment and had not timely ruled on state's motion to rescind the order, rendering the motion deemed to be denied, and state had not timely appealed, the trial court lacked jurisdiction to subsequently grant the state's motion to rescind the dismissal, Miller v. State, 39 Fla. L. Weekly D2340b (11/7/14)

SENTENCING -- GUIDELINES -- DOWNWARD DEPARTURE: Trial court's downward departure sentence for DUI is reversed where it improperly found fourth DUI, three within the last two years, was an isolated incident because it was first felony DUI. Statute should not be read to mean an offense can be considered isolated as long as the defendant has never committed the exact offense for which he or she is currently being sentenced. State v. Hernandez, 39 Fla. L. Weekly D2340a (11/7/14)

RESTITUTION-HEARSAY: Unobjected-to hearsay testimony as to value of stolen jewelry, gathered by victim from jewelry store website, is sufficient to sustain trial court's restitution order. Schenk v. State, 39 Fla. L. Weekly D2331c (11/7/14)

PROBATE CODE -- EVIDENCE OF DEATH -- MISSING PERSONS: One is presumed dead if missing for five years. Andrews v. Estate of Andrews, 39 Fla. L. Weekly D2331b (11/7/14)

APPEALS-TRIAL COURT JURISDICTION: Where defendant moved pro se to correct jail credit during the pendency of his direct appeal, trial court lacked jurisdiction to deny the motion. Proposal to amend Rules of Appellate Procedure. Padilla-Padial v. State, 39 Fla. L. Weekly D2330a (11/7/14)

JUDGE-DISCIPLINE: Judge disciplined for "inappropriate friendship with bailiff that went beyond normal fraternization that occurs in a professional workplace." Re: Susan B. Flood, 39 Fla. L. Weekly S663b (11/6/14)

INVITED ERROR: Where defendant was charged with kidnapping, and defense counsel requested jury instruction on lesser included offense of false imprisonment, although prosecution for that offense was time barred, defendant cannot complain that his conviction for lesser included offense was error because the conviction was time barred. Flowers v.State, 39 Fla. L. Weekly D2326a (11/6/14)

QUOTATION: "Beware what you ask for. Here, defense counsel requested a jury instruction on a lesser included charge. Mr. Flowers was then convicted on that lesser included charge, and Mr. Flowers now seeks to be released without the possibility of retrial because the lesser included charge his attorney requested was time-barred. The invited error doctrine precludes such a "heads I win, tails you lose" game. . .We do not suggest defense counsel here nefariously or perniciously sought to dupe the court. But . . .counsel cannot now reap the benefit of crying foul upon the jury obliging his request." Flowers v.State, 39 Fla. L. Weekly D2326a (11/6/14)

SENTENCING: Trial court may impose a sentence in excess of the mandatory minimum imposed under the 10-20-Life statute. Question certified. Hatten v. State, 39 Fla. L. Weekly D2325b (11/6/14)

SENTENCING-DOWNWARD DEPARTURE: Court's observation that disposition of criminal cases is handled differently in local county than in other areas of state is not a valid reason for downward departure. Defendant's lack of criminal activity since his arrest for charged offense is not a valid reason for downward departure. State v. Robinson, 39 Fla. L. Weekly D2323d (11/6/14)

INVESTIGATIVE COSTS: Trial court may assess cost of DNA testing and firearms testing against defendant who was charged with aggravated battery with a firearm and aggravated assault with a firearm but was convicted of lesser included offenses of battery without a firearm and assault without a firearm. Diodato v. State, 39 Fla. L. Weekly D2311b (11/5/14)

GOOFINESS: "The charges arose during an unsuccessful romantic encounter in a trailer. An argument ensued between the first male victim and the woman. When he asked for half his money back, he was threatened with a shotgun by the woman's husband, the defendant. Victim one hurriedly got into his car and left. When the second male victim attempted to leave, a fight ensued, and he was shot by the defendant." Diodato v. State, 39 Fla. L. Weekly D2311b (11/5/14)

TRESPASS OF CONVEYANCE: Evidence that juvenile was riding as a passenger in a stolen vehicle was insufficient to establish a prima facie case of trespass of a conveyance where there was no evidence that juvenile knew that the vehicle was stolen. The fact that juvenile fled when police officers approached the vehicle was insufficient to prove that juvenile knew that vehicle was stolen. A.H. v. State, 39 Fla. L. Weekly D23 10b (11/5/14)

CORRECTION-HABITUAL OFFENDER SENTENCE: Rule 3.800(b) motion is an appropriate means for asserting an unpreserved procedural error in the sentencing process relating to whether defendant was properly habitualized by court. Terry v. State, 39 Fla. L. Weekly D2310a (11/5/14)

LESSER INCLUDED: The jury returned the verdict form with the word "Firearm" crossed out and initialed, finding the defendant guilty of carjacking and robbery without a firearm. The Defendant had requested that no lesser included be submitted to the jury. This verdict reflected a jury pardon, and is not fundamental error. James v. State, 39 Fla. L. Weekly D2309b (11/5/14)

SEARCH AND SEIZURE-TRUANCY: Officer's stop was initiated without reasonable grounds to believe child was absent from school, since school had not started yet and the truancy statute does not authorize an officer to preemptively detain a child who may be plotting to skip school later. J.R. v. State, 39 Fla. L. Weekly D2308a (11/5/14)

HEARSAY-BUSINESS RECORDS: Mortgagor's payment history through testimony of current mortgagee's asset manager regarding payment history from before the current bank acquired the loan is inadmissible where the asset manager could not establish sufficient personal knowledge as to the accuracy of the previous mortgage holder's records. The witness's testimony that both his employer and the previous mortgage holder appeared to do things within generally accepted practice is insufficient to establish a foundation for the business records exception. Holt v. Calchas, LLC, 39 Fla. L. Weekly D2305a (11/5/14)

RESTITUTION: No merit to argument that amount of restitution should have been determined before or at the time of sentencing because it could have impacted the sentence defendant received, but eight year delay is unreasonable. Vasquez v. State, 39 Fla. L. Weekly D2304a (11/5/14)

INJUNCTION FOR PROTECTION-DISSOLUTION: Court errs in denying motion to dissolve injunction because of insufficient collateral adverse effects of the injunction on the Respondent prisoner and its apparent effectiveness in preventing contact between the parties. The correct standard is whether there has been a change in circumstances so that the scenario underlying the injunction no longer exists. Spaulding v. Shane, 39 Fla. L. Weekly D2293a (11/5/14)

STAND YOUR GROUND: Stand your Ground immunity is not available to a Felon in Possession of a Firearm. Harrell v.State, 39 Fla. L. Weekly D2290a (11/5/14)

CHILD CUSTODY: Trial court properly granted husband's petition to temporarily relocate with children when husband received military orders assigning him to a post in Virginia. Vazquez v. Vazquez-Robelledo, 39 Fla. L. Weekly D2289a (11/5/14)

BAIL REVOCATION: "Based upon our review of the truncated proceeding conducted by Judge Stacy D. Glick on remand, which confirmed our earlier determination that revocation of Moralez's pretrial release was not predicated on a finding of probable cause to believe that Moralez committed a new crime while on pretrial release, and given the trial court's failure to conduct a proper hearing in accordance with the express terms of our mandate, we order that Moralez be immediately released." Moralez v. Guevara, 39 Fla. L. Weekly D2312a (11/4/14)

COUNSEL-PLEA WITHDRAWAL: Defendant is entitled to appointed attorney for motion to withdraw plea. Tipler v. State, 39 Fla. L. Weekly D2285a (11/4/14)

OCTOBER 2014

HEARSAY-PAST RECOLLECTION RECORDED-DEPOSITION: Totality of circumstances is an improper test for admission of past recollection recorded evidence. Victim's deposition was properly admitted under past recollection recorded exception to hearsay rule where victim's testimony established that he then had an insufficient memory of events, that he once had knowledge of events, that he described events in his deposition when they were still fresh in his mind, and that he told the truth in his deposition about events he remembered at that time. Blount v. State, 39 Fla. L. Weekly D2283g (10/31/14)

COSTS: Error to impose sheriff's office investigative cost where cost was not requested by appropriate agency and was not specifically orally imposed. Cook v. State, 39 Fla. L. Weekly D2283f (10/31/14)

DISCOVERY: State committed a discovery violation by listing victim as a Category B witness rather than a Category A witness. M.H. v. State, 39 Fla. L. Weekly D2274a (10/29/14)

RACKETEERING: Firearms found in car occupied by defendant were relevant proof of conspiracy and racketeering charges and were link in chain of identification testimony where vehicle in which firearms were found and in which defendant was passenger was seen at location of one of robberies, defendant's DNA was found on one of firearms and a co-defendant's DNA was found on another, victim testified that one of the firearms matched description of one used in robbery, and zip-ties used to restrain victims were found beneath seat with firearms. Casco v. State, 39 Fla. L. Weekly D2268a (10/29/14)

KIDNAPING: Evidence that the victim was left tied up at the scene is sufficient to show kidnaping. Casco v. State, 39 Fla. L. Weekly D2268a (10/29/14)

COUNSEL--CONFLICT OF INTEREST: Where defense counsel reported to trial court prior to trial that counsel suspected state attorney was investigating her for witness tampering, trial court erred in denying counsel's request for inquiry into potential conflict. When a pretrial disclosure of a possible conflict of interest is raised, the trial court must either conduct an inquiry to determine whether the asserted conflict of interest will impair the defendant's Sixth Amendment right or appoint separate counsel. Rutledge v. State, 39 Fla. L. Weekly D2265a (10/29/14)

SEARCH AND SEIZURE-WARRANT: No error in denying motion to suppress despite inaccuracies in warrant regarding description of premises to be searched. Bennett v. State, 39 Fla. L. Weekly D2264a (10/29/14)

HEARSAY--EXCITED UTTERANCE: Trial court erred by failing to conduct hearing or make required predicate findings before admitting 911 recording of domestic violence victim as excited utterance. Morrison v. State, 39 Fla. L. Weekly D2255b (10/29/14)

LIFE SENTENCE FOR JUVENILE: Juvenile may be sentenced to life in prison for secod degree murder. Mazer v. State, 39 Fla. L. Weekly D2254a (10/29/14)

DOUBLE JEOPARDY: Convictions for three counts of battery violate double jeopardy because each count involved the same victim and the same criminal episode. Silvers v. State, 39 Fla. L. Weekly D2253b (10/29/14)

DISPLAYS BY AUDIENCE: Inherent prejudice resulted where jurors came into close proximity with men wearing jackets embroidered with "Bikers Against Child Abuse," notwithstanding that the State was not involved in the demonstration. Long v. State, 39 Fla. L. Weekly D2247a (10/29/14)

RIGHT TO COUNSEL: Trial court erred by allowing defendant to proceed pro se in suppression hearing without ensuring that his waiver of counsel was knowing, intelligent, and voluntary. Perry v. State, 39 Fla. L. Weekly D2234a (10/24/14)

SENTENCING -- GUIDELINES -- DOWNWARD DEPARTURE: Error to impose downward departure sentence on basis of an alleged legitimate, uncoerced plea bargain where state was not a party to plea bargain. State v. Daniels, 39 Fla. L. Weekly D2231a (10/24/14)

JURY INSTRUCTION-MANSLAUGHTER BY ACT: Giving of erroneous standard instruction on manslaughter by act as lesser included offense of second degree murder was harmless error where there was no dispute regarding element of intent. Error is not fundamental. Defendant is required to make showing by reasonable probability that the error in the instruction was prejudicial to him. Berube v. State, 39 Fla. L. Weekly D2227e (10/24/14)

SEX OFFENDER PROBATION: Defendant may not remain at his residence, which is within 1000 feet of a child care facility, where child care facility moved within 1000 feet of defendant's residence after he purchased it, but before he committed the crime for which he was placed to probation. Mohammed v. State, 39 Fla. L. Weekly D2225b (10/24/14)

CREDIT FOR TIME SERVED: Where state nolle prossed charges and later reopened case, defendant was entitled to credit for time served before state nolle prossed initial charges when he was convicted and sentenced in the reopened case. Wiebe v. State, 39 Fla. L. Weekly D2222a (10/24/14)

POST-CONVICTION RELIEF: The claim that the trial court erred by giving an erroneous manslaughter by act instruction cannot be raised more than two years after the conviction becomes final. Lawrence v. State, 39 Fla. L. Weekly D2217a (10/23/14)

PRESERVATION OF ISSUE: Right to appeal denial of motion to suppress is not preserved without a finding that the issue is dispositive. Plea may be involuntary where Defendant is misadvised that the issue was preserved. Murphy v. State, 39 Fla. L. Weekly D2216e (10/23/14)

SENTENCING: Trial Court violates due process by basing the sentence, in part, on Defendant's "continued denial of any culpability." Defendant must be re-sentenced by a new judge. Wood v. State, 39 Fla. L. Weekly D2216d (10/23/14)

VIOLATION OF COMMUNITY CONTROL: Trial court erred in finding that defendant willfully and substantially violated terms of community control based on incident in which defendant's mother, who was defendant's sole means of transportation, deviated from community control officer's instructions by stopping at grocery store across from CCO's office on the way home from meeting with CCO and insisted that defendant accompany her inside to help carry groceries. Jones v. State, 39 Fla. L. Weekly D2214a (10/22/14)

SENTENCING: Trial court erred by considering defendant's lack of remorse and failure to take ownership of his actions or apologize to victims' families when imposing sentence. Davis v. State, 39 Fla. L. Weekly D2213b (10/22/14)

MURDER: Evidence that defendant left party after a fight with other partygoers, obtained a gun, returned to the house two to three hours later, and shot victims was sufficient evidence of premeditation to withstand motion for judgment of acquittal. Ferrero v. State, 39 Fla. L. Weekly D2213a 39 Fla. L. Weekly D2213a (10/22/14)

POSSESSION WITH INTENT TO SELL WITHIN 1000 FEET OF PARK: Where the only testimony presented by state showed that offenses happened "near" park, but did not establish actual distance involved, judgment of acquittal should be granted. Harris v. State, 39 Fla. L. Weekly D2212a (10/22/14)

DUI--INTOXILYZER: The fact that a hole had to be drilled in the exhaust purge valve of the intoxilyzer did not render it unreliable or unapproved. Voung v. State, 39 Fla. L. Weekly D2211a (10/22/14)

SENTENCING: Where appellate court had relinquished jurisdiction to trial court to correct sentencing error in violation-of-probation case, it was error for trial court to simultaneously resentence defendant to harsher sentence on different, new-charges case to which the order relinquishing jurisdiction did not apply and for which defendant was not seeking relief, and where state had not challenged the original sentence as illegal. Sallas v. State, 39 Fla. L. Weekly D2210a (10/22/14)

JURY TRIAL-WAIVER: Agreement between prosecutor and defense counsel to hold non-jury trial does not constitute waiver of right to jury trial. Walker v. State, 39 Fla. L. Weekly D2207b (10/22/14)

CREDIT FOR TIME SERVED: Defendant who has violated probation by committing a new offense is not entitled to credit on sentence for new offense for time served or accumulated gain time while defendant was incarcerated for earlier offense that underlay order of probation. Lafergola v. State, 39 Fla. L. Weekly D2215c (10/22/14)

SENTENCING-IMPROPER SCORING OF PRIORS: Because defendant may have been entitled to relief under more lenient "would-have-been-imposed" test, which applies to scoresheet error raised under rule 3.850, Defendant must be given opportunity to amend motion to meet requirements of rule 3.850. Thomas v. State, 39 Fla. L. Weekly D2201a (10/21/14)

DOUBLE JEOPARDY: Separate convictions for two counts of resisting arrest arising from single criminal episode constituted double jeopardy violation, even though more than one officer was involved. Beazley v. State, 39 Fla. L. Weekly D2199b (10/21/14)

POST-CONVICTION RELIEF: The fact that FDLE analyst who testified at defendant's trial as to nature of pills abandoned by defendant was arrested for trafficking of controlled substances taken from FDLE laboratory does not entitle the Defendant to relief where the testimony of FDLE analyst was not essential with regard to tampering charge. . Beazley v. State, 39 Fla. L. Weekly D2199b (10/21/14)

APPEALS-CERTIORARI: District court lacked the jurisdiction to grant state's petition for writ of certiorari to review trial court's early termination of probation, and to reinstate probation, of defendant whose negotiated plea agreement with the state required her not to seek such early termination of probation. The trial court's order was a final order, and the state had no statutory right to appeal the order; hence certiorari review was not available to the state. Lafave v. State, 39 Fla. L. Weekly S640a (10/16/14)

COMPETENCY OF DEFENDANT: Although trial court, with agreement of parties, may decide the issue of competency on basis of written reports alone, it cannot dispense with its duty to make an independent determination of a defendant's competency, and must enter a written order if the defendant is found competent to proceed. Dougherty v. State, 39 Fla. L. Weekly S636a (10/16/14)

SHIFTING OF BURDEN OF PROOF: Testimony elicited by the state from lead detective relating to defendant's failure to produce exculpatory evidence impermissibly shifted the burden of proof from the state to the defendant. Warmington v. State, 39 Fla. L. Weekly S630a (FLA 10/16/14)

SENTENCING--PRISON RELEASEE REOFFENDER: Trial court may order PRR sentences to run consecutively for crimes committed during a single criminal episode. State v. Mosley, 39 Fla. L. Weekly S627a (FLA 10/16/14)

SEARCH AND SEIZURE: Use of real time cell site location emanating from defendant's cell phone to track defendant's vehicle constitutes a search for which probable cause is required. Defendant had a subjective expectation of privacy in the location signals transmitted solely to enable use of his cell phone, even on public roads, and that expectation of privacy was objectively reasonable. Tracey v. State, 39 Fla. L. Weekly S617a (FLA 10/16/14).

QUOTATION: "James Madison. . .is reported to have observed, 'Since the general civilization of mankind, I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.' . . . (T)he ease with which the government, armed with current and ever-expanding technology, can now monitor and track our cell phones, and thus ourselves, with minimal expenditure of funds and manpower, is just the type of 'gradual and silent encroachment' into the very details of our lives that we as a society must be vigilant to prevent." Tracey v. State, 39 Fla. L. Weekly S617a (FLA 10/16/14)

INSANITY: Where court has found defendant incompetent to proceed, court has no authority to find defendant not guilty by reason of insanity if defendant has not waived jury trial. McCroan v. State, 39 Fla. L. Weekly D2189a (10/16/14)

INJUNCTIONS AGAINST STALKING VIOLENCE: Incident in which party against whom injunction was entered was among a group of people who yelled vulgarities at petitioner as she walked to her car was not an incident of stalking where none of the comments could be attributed to that party. Wyandt v. Voccio, 39 Fla. L. Weekly D2181a (10/15/14)

EVIDENCE-REOPENING OF CASE: Trial court improperly denied defendant's motion to reopen case after closing argument where State misleadingly placed into evidence a photograph inaccurately presented as one made of the Defendant upon his arrest and the Defendant sought to reopen the case with the actual booking photograph, and the difference was relevant to identity. Covello v. State, 39 Fla. L. Weekly D2172a (10/15/14)

DOUBLE JEOPARDY--HOME INVASION ROBBERY -- BURGLARY OF A DWELLING WITH ASSAULT: Although the potential sentence for burglary of a dwelling with assault is greater, burglary with an assault is the "lesser" offense for double jeopardy purposes. Covello v. State, 39 Fla. L. Weekly D2172a (10/15/14)

DOUBLE JEOPARDY: Separate convictions for felony battery with great bodily harm and aggravated battery with deadly weapon violated prohibition against double jeopardy where offenses involved single victim and occurred during single criminal episode. Juliao v. State, 39 Fla. L. Weekly D2166a (10/15/14)

DOUBLE JEOPARDY: Trial court can correct an erroneous award of jail credit in a new sentencing hearing without violating double jeopardy. Vindictiveness -- Harsher sentence was not result of vindictiveness where trial court committed legal error at original sentencing by awarding jail credit to be applied to each consecutive sentence, and the trial court merely corrected a legal error at resentencing, as demanded by the state. Kopson v. State, 39 Fla. L. Weekly D2165a 39 Fla. L. Weekly D2165a (10/15/14)

SENTENCING-ATTEMPTED SECOND DEGREE MURDER WITH FIREARM: Fifty-year sentence for attempted second-degree murder, which included 25-year mandatory minimum, impermissibly exceeded 30-year statutory maximum for offense, a second-degree felony reclassified to a first-degree felony based on use of firearm -- Conflict certified. Levine v. State, 39 Fla. L. Weekly D2161c (10/15/14)

SENTENCING-COSTS OF DEFENSE: Error to impose "Appointed Counsel Attorney Fee" without informing defendant of right to hearing to dispute the amount of the indigent legal assistance lien created by the imposition of the cost of defense. Bradshaw v. State, 39 Fla. L. Weekly D2160a (10/14/14)

INJUNCTIONS: Error to enter injunction against repeat violence where threatening remarks ("I will shoot and kill all of you" and "I'll F you up,") were not accompanied by overt acts that would have created a well-founded fear that violence was imminent. Banks v. McFarland, 39 Fla. L. Weekly D2155b (10/13/14)

DOUBLE JEOPARDY: Where defendant had been convicted of lewd or lascivious battery count but jury had failed to reach verdict on sexual battery count based on same criminal episode, and sexual battery count had been scheduled for re-trial, trial court improperly granted defendant's motion to dismiss sexual battery count on double jeopardy grounds. Retrial following hung jury does not violate Double Jeopardy Clause. Muhammad v. State, 39 Fla. L. Weekly D2153a (10/13/14)

LIFE SENTENCE FOR JUVENILE FOR HOMICIDE: Although mandatory life without parole sentences for juvenile offenders are prohibited, a sentencing court may still impose a life without parole sentence after conducting an individualized mitigation inquiry. Consecutive sentences aggregating eighty years' imprisonment imposed for non-homicide offenses also committed when defendant was sixteen years old are reversed because such a sentence should be deemed a life sentence for the purposes of Graham v. Florida. Lane v. State, 39 Fla. L. Weekly D2139b (10/13/14)

DOUBLE JEOPARDY: Convictions for Receiving Information about a Minor, Unlawful use of a two-way communication device and traveling to meet a minor violate double jeopardy because they were part of a single episode and the receiving offense is subsumed within the traveling offense and the unlawful use of a communications device offense is subsumed within both of the other two. Conflict certified. Exantus v. State, 39 Fla. L. Weekly D2139a (10/10/14)

INEFFECTIVENESS OF COUNSEL: Failure to inform of consequences of rejecting plea is ineffective assistance of counsel. Robinson v. State, 39 Fla. L. Weekly D2138a (10/10/14)

CAPITAL SEXUAL BATTERY: Failure of jury to find that Defendant is over 18 is not fundamental error. where defendant was over age twenty at time of the event. Mackay v. State, 39 Fla. L. Weekly D2136b (10/10/14)

MANDATORY LIFE SENTENCE FOR JUVENILES: Miller v. Alabama applies retroactively. Burton v. State, 39 Fla. L. Weekly D2136a (10/10/14)

DEALING IN STOLEN PROPERTY--GRAND THEFT: Error to deny requested instruction that "trier of fact may return a guilty verdict on one or the other, but not both, of the counts" of dealing in stolen property and grand theft. Where jury found defendant guilty of both offenses and trial court's solution was to not adjudicate defendant of the lesser offense, grand theft, the error was not harmless because, had jury been properly instructed, it may have found defendant guilty only of the lesser offense. Haywood v. State, 39 Fla. L. Weekly D2131c (10/10/14)

SEARCH AND SEIZURE -- VEHICLE STOP: Error to suppress evidence obtained at stop, conducted by officers who noticed tag light and attached wires were obstructing license plate, based on the single fact that during a turn, the wires shifted and license plate became momentarily unobstructed and readable. Plain reading of statute requires license plate to be plainly visible at all times. State v. English, 39 Fla. L. Weekly D2130a (10/10/14).

DOUBLE JEOPARDY: The specific crime regarding hiring a vehicle with intent to defraud is included in the general theft statute; hence only one offense was committed and convictions of both offenses violates double jeopardy. Chagnon v. State, 39 Fla. L. Weekly D2129d (10/10/14)

HABITUAL OFFENDER-FINE: Because defendant was sentenced as a habitual felony offender, trial court lacked authority to assess a fine. Chagnon v. State, 39 Fla. L. Weekly D2129d (10/10/14)

SENTENCING -- CONSIDERATIONS: Sentencing judge improperly based sentence on unsubstantiated allegations, such as of gang membership and that defendant had committed acts of robbery, and prior charges that had not resulted in convictions. McGill v. State, 39 Fla. L. Weekly D2129c (10/10/14)

SENTENCING--CRIMINAL PUNISHMENT CODE: Where an upward departure sentence is reversed because the trial court failed to file the required written reasons for departure, the trial court may not again impose a departure sentence on remand. Bryant v. State, 39 Fla. L. Weekly S591a (FLA 10/9/14)

NEW TRIAL AFTER DISQUALIFICATION: After motion to disqualify trial judge was granted, successor judge who did not conduct the trial could not competently rule on defendant's motion for new trial because it required weighing the credibility of witnesses. A new trial is required. McCloud v. State, 39 Fla. L. Weekly D2128b (10/9/14)

DISQUALIFICATION: Court's announced policy of not hearing Williams Rule Motions constituted denial of due process to state and was therefore a departure from essential requirements of law. State v. White, 39 Fla. L. Weekly D2125c (10/9/14)

STAND YOUR GROUND LAW: Trial court erred by instructing jury that being felon in possession of firearm was an "unlawful activity," and that if defendant was engaged in unlawful activity, jury had to consider his duty to retreat. Error is fundamental. Dorsey v. State, 39 Fla. L. Weekly D2126a (10/8/14)

PRETRIAL RELEASE ON OWN RECOGNIZANCE: Backlog at laboratory testing substance seized at time of arrest constituted good cause to delay release of arrestee on his own recognizance until the 40th day. However, defendant must be automatically released on the 40th day if no charges are filed. Davis v. State, 39 Fla. L. Weekly D2121a (10/8/14)

OTHER CRIMES, WRONGS, OR ACTS: The claim that trial court erred by permitting a prosecution witness to vouch for the credibility of a Williams rule witness and by allowing testimony of the Williams rule witness to become feature of trial is not preserved for review by specific, contemporaneous objection. Mansueto v. State, 39 Fla. L. Weekly D2120a (10/8/14)

QUOTATION: "There is no viable substitute for well-versed trial advocacy and no shortcut for acquiring a firm grasp on the articulation of proper and contemporaneous trial objections." Mansueto v. State, 39 Fla. L. Weekly D2120a (10/8/14)

STATEMENTS OF DEFENDANT: No error in denying motion to suppress recording of telephone conversation between defendant and his mother at police station where police never made any assurance to defendant that his calls would be made in private and defendant knew he was being recorded. Davis v. State, 39 Fla. L. Weekly D2119a (10/8/14)

SEARCH AND SEIZURE -- WARRANT: Affidavit was insufficient to establish probable cause to search residence where affidavit contained no facts that would establish probable cause to believe residence itself contained any evidence of illegal activity. Mere proximity to shed from which odor of marijuana emanated or yard which contained various car parts and vehicles, one of which displayed license plate which belonged to a vehicle reported stolen years before, was not sufficient to support issuance of warrant for search of residence. Coronado v. State, 39 Fla. L. Weekly D2113b (10/8/14)

INEFFECTIVE ASSISTANCE OF COUNSEL: Failure to inform defendant of maximum penalty faced if he proceeded to trial rather than accept plea is an allegation of deficient performance. Wilson v. State, 39 Fla. L. Weekly D2107a (10/8/14)

RESTITUTION: Victim's testimony of his belief as to the amount it would cost to repair damage caused to his vehicle by juvenile was insufficient to support restitution award. J.A.B. v. State, 39 Fla. L. Weekly D2096b (10/3/14)

SENTENCING-PRR: Consecutive sentences under prison releasee reoffender statute for offenses committed during single criminal episode are not unlawful -- Conflict certified. Tarelo v. State, 39 Fla. L. Weekly D2096a (10/3/14)

VEHICULAR HOMICIDE : Evidence that defendant was traveling at a speed of more than 80 miles an hour on a two-lane highway where the posted speed was 55 miles per hour when he collided with a vehicle which had stopped in defendant's lane of traffic while making a left turn was insufficient to support conviction for vehicular homicide. -- Defendant's operation of his vehicle may have been careless or negligent, but it did not meet the level of recklessness required to convict him of vehicular homicide. Luzardo v. State, 39 Fla. L. Weekly D2089b (10/1/14)

JURY INSTRUCTIONS-ATTEMPTED MANSLAUGHTER: Use of then-current standard jury instruction on attempted manslaughter, which erroneously included the element of intent to kill, where defendant timely objected and was convicted of an offense not more than one step removed from the attempted manslaughter charge, was reversible error. Lugones v. State, 39 Fla. L. Weekly D2089a (10/1/14)

PRETRIAL RELEASE -- REVOCATION: Trial court did not abuse discretion in revoking defendants' release to PTI after they were charged with new criminal activity while released within PTI program. PTI program falls within the pretrial release statute, under which the prosecution of a defendant who does not fulfill obligations may continue at the discretion of the prosecuting authority. Revocation of bonds without adversarial hearing was not a violation of due process. Harris v. State, 39 Fla. L. Weekly D2085a (10/1/14)

SEARCH AND SEIZURE: Where officer saw defendant running alone on a dark street in a high crime area, officer observed defendant attempt to open a vehicle by pulling and jiggling door handles, defendant attempted to hide when officer activated his emergency lights, and defendant thereafter fled from officer, there was probable cause to stop and arrest defendant for loitering and prowling. Perez-Tejon, 39 Fla. L. Weekly D2084b (10/1/14)

WAIVER OF ATTORNEY: It was reversible error for trial court to fail to hold a Faretta hearing within reasonable time following defendant's initial and multiple subsequent unequivocal requests for self-representation, and to allow several crucial stages in the proceedings to pass without defendant having opportunity to represent himself. Harden v. State, (10/1/14)

PROBATION REVOCATION: Error to permit state to amend probation violation affidavit during probation violation hearing to drop new law violation of prostitution and substitute five different new law violations. Osteen v. State, 39 Fla. L. Weekly D2081a (10/1/14)

DISCOVERY: Victim's medical records are protected from disclosure by both constitutional and statutory rights to privacy, as well as the psychotherapist-patient privilege. Court may not order disclosure without compelling reasons, which do not exist in this Motion to Withdraw plea. S.P. v, Vecchio, 39 Fla. L. Weekly D2072b (10/1/14)

SEARCH AND SEIZURE: Police may not search hotel room with consent of whoever answers the door without confirming that he was the one who rented the room. Subsequent search of the defendant is unlawful where initial entry was illegal and he was not told of his right to refuse the search of his person. Brunson v. State, 39 Fla. L. Weekly D2071a (10/1/14)

INEFFECTIVE ASSISTANCE OF COUNSEL: Misadvise to reject plea offer is ineffective assistance of counsel. Brice v. State, 39 Fla. L. Weekly D2070c (10/1/14)

EVIDENCE: Officer's testimony about when crimes began did not amount to expression of officer's opinion as to defendant's guilt. Haspel v. State, 39 Fla. L. Weekly D2067a (10/1/14)

POSSESSION OF CHILD PORN WITH INTENT TO PROMOTE: Because law enforcement discovered all the images in one search, only one conviction was supported. Chesser v. State, 39 Fla. L. Weekly D2061a (10/1/14)

SEPTEMBER 2014

PROBATION: Court may not order defendant to serve one year of probation during time that she would still be imprisoned on a different count. Smith v. State, 39 Fla. L. Weekly D2056a (9/26/14)

DOUBLE JEOPARDY: Order modifying "No Violent Contact" to "No Contact" violated defendant's double jeopardy rights. Briggs v. State, 39 Fla. L. Weekly D2055c (9/26/14)

SEARCH AND SEIZURE: Officers' entry into curtilage of defendant's residence, which was surrounded by two fences and had "no trespassing" signs posted, was illegal. Curtilage was a part of the home itself, and defendant had a reasonable expectation of privacy in the curtilage. Brown v. State, 39 Fla. L. Weekly D2051a (9/24/14)

SALE OF OXYCODONE WITHIN 1000 FEET OF CHURCH: Evidence was insufficient to support conviction for sale of oxycodone within 1000 feet of church where state failed to offer evidence from which jury could find that church services were being regularly conducted at church at the time of the crime. Wilder v. State, 39 Fla. L. Weekly D2044a (9/24/14)

LIFE SENTENCE FOR HOMICIDE FOR JUVENILE: Question certified whether the Supreme Court's decision in Miller v. Alabama operates to revive the prior sentence of life with parole eligibility after 25 years previously contained in that statute. Tyson v. State, 39 Fla. L. Weekly D2043b (9/24/14)

THEFT/ DEALING IN STOLEN PROPERTY: Where defendant has been erroneously adjudicated guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct following an open plea of guilty or no contest, the proper remedy is for the appellate court to remand the case for the trial court to exercise its discretion in vacating the adjudication of guilt of either offense and to resentence defendant on the remaining offense. Anucinski v. State, 39 Fla. L. Weekly S583a (FLA 9/24/14)

AGGRAVATED ASSAULT-TRANSFERRED INTENT: Error to give jury instruction that allowed jury to find defendants guilty if they threatened one victim and caused fear in the other victim, but error was harmless where evidence showed that defendants' threats were directed at both victims and caused fear in both victims. Schepman v. State, 39 Fla. L. Weekly D2024a (9/19/14)

AND/OR: "As many other cases have noted, Florida courts have long condemned the use of the conjunctions "and/or" and "or" to connect multiple defendants or multiple victims within a single criminal charge. . . We urge prosecutors and trial judges to avoid such faulty shortcuts." Schepman v. State, 39 Fla. L. Weekly D2024a (9/19/14)

SCOLDING ATTORNEY: "We note with incredulity that the State was able to brief this case without even referencing James or Tindle, or any of the subsequent cases following them. Rather than concede error, as in Tindle, or attempt to distinguish the cases that Defendants relied upon as controlling, the State simply ignored them. This briefing technique, if one can call it that, is wholly unhelpful and unprofessional. We expect more from the lawyers practicing before the court." Schepman v. State, 39 Fla. L. Weekly D2024a (9/19/14)

STAND YOUR GROUND: Trial court to conduct pretrial evidentiary hearing on motion to dismiss charges based on immunity under section 776.032, rather than addressing the motion at trial as trial court verbally stated it would do Satyanand v. State, 39 Fla. L. Weekly D2014a (9/19/14)

PRETRIAL DETENTION: Where defendant was released on bond, failed to appear at trial, and was subsequently arrested on alias capias, trial court erred in ordering defendant held without bond without determining whether failure to appear was willful or finding that no co