Criminal Case Law

AUGUST 2017

DOWNWARD DEPARTURE: Downward departure is not warranted by officer recommending that Defendant not go to prison.  Hawkins v. State, 42 Fla. L. Weekly D1822a (5th DCA 8/18/17)


http://www.5dca.org/Opinions/Opin2017/081417/5D16-4373.op.pdf

 

DOWNWARD DEPARTURE: The fact that the defendant never left the store with the property he was stealing does not warrant a downward departure.  Hawkins v. State, 42 Fla. L. Weekly D1822a (5th DCA 8/18/17)


http://www.5dca.org/Opinions/Opin2017/081417/5D16-4373.op.pdf

 

DOWNWARD DEPARTURE: Court may not impose a downward departure on the basis that the officers were not injured where that factor is already considered in the sentencing guidelines.  Hawkins v. State, 42 Fla. L. Weekly D1822a (5th DCA 8/18/17)


http://www.5dca.org/Opinions/Opin2017/081417/5D16-4373.op.pdf

 

POST CONVICTION RELIEF: Claim that counsel failed to advise him that he qualified as a habitual felony offender, and if he had been so advised he would have accepted the plea, is sufficient to warrant an evidentiary hearing.  Parenti v. State, 42 Fla. L. Weekly D1819c (5th DCA 8/18/17)


http://www.5dca.org/Opinions/Opin2017/081417/5D16-2203.op.pdf

 

SENTENCING: Court may not order Defendant to make donation to ASPCA as part of sentence for fighting and baiting animals.  Cumberland v. State, 42 Fla. L. Weekly D1818d (5th DCA 8/18/17)


http://www.5dca.org/Opinions/Opin2017/081417/5D16-1012.op.pdf

SENTENCING: Court may not consider subsequent arrest without conviction during sentencing for the primary offense. Brown v. State, 42 Fla. L. Weekly D1817c (5th DCA 8/18/17)

 

http://www.5dca.org/Opinions/Opin2017/081417/5D16-3489.op.pdf



POST CONVICTION RELIEF: A sentence which exceeds the statutory maximum may be corrected by 3.800 notwithstanding that the plea was negotiated. Defendant to be sentenced to maximum or, if State objects, be allowed to withdraw his plea.  Sedell v. State, Fla. L. Weekly D1816a (2nd DCA 8/18/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2018,%202017/2D16-428.pdf




COMPETENCY: Court must allow Defendant to withdraw his plea where he had been adjudicated incompetent and no order had been entered finding him competent. Stipulation of counsel and written reports are insufficient.  Golloman v. State, 42 Fla. L. Weekly D1815d (2nd DCA 8/18/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2018,%202017/2D16-2583.pdf



POST CONVICTION RELIEF: Neither failure to advise Defendant about gain time forfeiture or conditional release, nor failure to present mitigating evidence on a negotiated plea is ineffective assistance.  Ortiz v. State, 42 Fla. L. Weekly D1809a (3rd DCA 8/16/17)

 

http://www.3dca.flcourts.org/Opinions/3D17-0966.pdf

POST CONVICTION RELIEF: Plea is not rendered involuntary where Defendant was advised that it was only recommended that his federal time be served concurrently. Johnson v. State, 42 Fla. L. Weekly D1807b (3rd DCA 8/16/17)


http://www.3dca.flcourts.org/Opinions/3D17-1000.pdf


ARGUMENT: Where defendant presents and argues for its theory of the case, the state is permitted to respond, if true, that defendant's theory was not supported by the evidence at trial, and this does not constitute improper shifting or misstating of the burden of proof.  Noriega v. State, 42 Fla. L. Weekly D1801a (3r DCA 8/16/17)


http://www.3dca.flcourts.org/Opinions/3D16-1740.pdf

SPEEDY TRIAL: Defendant's motion for continuance on misdemeanor charge, made after expiration of speedy trial period on the misdemeanor charge, waived defendant's right to speedy trial on felony charge which was filed outside the 175-day speedy trial period but arose from the same criminal episode. Waiver is construed as an ongoing waiver of speedy trial rights as to all charges arising out of the incident.  State v. Telucian, 42 Fla. L. Weekly D1795a (4th DCA 8/16/17)


https://edca.4dca.org/DCADocs/2016/0277/160277_DC13_08162017_085619_i.pdf

 

JOA-CIRCUMSTANTIAL EVIDENCE: GPS showing Defendant a few miles from burglary, surveillance video showing his associate carrying a bag five days later which turned out to have victim's property in it, and Defendant making a jail call about getting a haircut is insufficient to support conviction.  DeJesus v. State, 42 Fla. L. Weekly D1793b (4th DCA 8/16/17)


https://edca.4dca.org/DCADocs/2015/3072/153072_DC13_08162017_085324_i.pdf

SENTENCING: Fundamental error for court to imply he would not, as general policy, consider defendant's mental health needs as basis for downward departure.  Concha v. State, 42 Fla. L. Weekly D1793a (4th DCA 8/16/17)


https://edca.4dca.org/DCADocs/2016/2046/162046_DC13_08162017_090809_i.pdf

 

PEREMPTORY CHALLENGE: Trial court reversibly erred when it allowed state to use peremptory strike on African American juror where the only race-neutral explanation offered by state applied equally to three non-African American jurors whom state ultimately did not challenge.  Hunter v. State, 42 Fla. L. Weekly D1792a (4th DCA 8/16/17)


https://edca.4dca.org/DCADocs/2015/4475/154475_DC13_08162017_085444_i.pdf

 

JUVENILE-LIFE SENTENCE-RE-SENTENCING: Court erred in imposing concurrent 35-year prison sentences followed by 10 years' probation without affording meaningful opportunity for early release based on demonstration of maturity and rehabilitation. Term of years without possibility of review is unlawful. Thorough discussion and summary of law.  Andrevil v. State, 42 Fla. L. Weekly D1790a (4th DCA 8/16/17)


https://edca.4dca.org/DCADocs/2014/4700/144700_DC08_08162017_085031_i.pdf

 

SENTENCING: Life sentence for burglary is unlawful. Intent to commit rape is not an enhancement.  Rawls v. State, 42 Fla. L. Weekly D1788a (4th DCA 8/16/17)


https://edca.4dca.org/DCADocs/2017/0665/170665_DC13_08162017_091440_i.pdf


RETURN OF PROPERTY: Motion seeking return of itemized list of property defendant wanted the state to return, with reference to receipts given to defendant by sheriff's office and police department, and alleging that property was not fruit of criminal activity or being held as evidence was facially sufficient.   Smith v. State, 42 Fla. L. Weekly D1785a (2nd DCA 8/16/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2016,%202017/2D16-2619.pdf


SENTENCE MANIPULATION: Court may impose downward departure sentence based on finding that law enforcement officers engaged in sentence manipulation by making multiple purchases over course of sting operation for sole purpose of increasing potential sentence, but cannot go below the lowest permissible sentence which would have applied in absence of sentence manipulation.   State v. Johnson, 42 Fla. L. Weekly D1782b (2nd DCA 8/16/17)

 

APPEAL-PRESERVED ISSUE: Challenge to trial court's denial of pretrial motions to suppress recording of victim's cell phone conversation with defendant was not preserved for appellate review where defense counsel stated "no objection" when state moved to introduce the recording at trial. Henry v. State, 42 Fla. L. Weekly D1777b (1st DCA 8/15/17)


https://edca.1dca.org/DCADocs/2016/2415/162415_DC05_08152017_092144_i.pdf

 

STATEMENTS OF DEFENDANT: No error in admitting statements of Defendant whose primary language is Mayan but who had the benefit of a Spanish speaking translator. Martin-Godinez, 42 Fla. L. Weekly D1776c (1st DCA 8/15/17)

 

https://edca.1dca.org/DCADocs/2016/1860/161860_DC05_08152017_091943_i.pdf

 

DEATH PENALTY: Defendant not entitled to relief based on Hurst error, despite nonunanimous jury recommendation of death, where death sentence was final when U.S. Supreme Court decided Ring v. Arizona.  Asay v. State, 42 Fla. L. Weekly S755a (FLA 8/14/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1400.pdf

 


10-20-LIFE: Court has discretion to impose mandatory minimum sentences consecutively or concurrently. Conflict certified.  Jackson v. State, 42 Fla. L. Weekly D1775c (1st DCA 8/14/7)


https://edca.1dca.org/DCADocs/2013/5687/135687_DC13_08142017_093805_i.pdf


10-20-LIFE: Court has discretion to impose mandatory minimum sentences consecutively or concurrently. Conflict certified.  Miller v. State, 42 Fla. L. Weekly D1775b (1st DCA 8/14/17)


https://edca.1dca.org/DCADocs/2013/5503/135503_DC13_08142017_091921_i.pdf

 


RESENTENCING: After granting defendant's motion to correct illegal sentence, trial court erred by simply modifying the illegal sentence rather than granting a new sentencing hearing.   Marana v. State, 42 Fla. L. Weekly D1774a (1st DCA 8/14/17)


https://edca.1dca.org/DCADocs/2014/5829/145829_DC08_08142017_100339_i.pdf

 

COUNSEL: Where trial court conducted full Faretta inquiry at pretrial hearing on two cases before authorizing defendant to represent himself, the two cases were subsequently tried in separate trials on the same day, and the court conducted another full inquiry before the trial of the first case, the court was not required to renew the offer of counsel before the start of the second trial.  Scott v. State, 42 Fla. L. Weekly D1771a (1st DCA 8/14/17)


https://edca.1dca.org/DCADocs/2016/2717/162717_DC05_08142017_101203_i.pdf

DOUBLE JEOPARDY: Separate convictions for use of computer services to solicit a child to engage in sexual conduct, unlawful use of two-way communications device, and traveling to meet a minor did not violate double jeopardy where the offenses were not based on the same conduct. Pasicolan v. State, 42 Fla. L. Weekly D1770b (1st DCA 8/14/17)


https://edca.1dca.org/DCADocs/2014/2634/142634_DC05_08142017_094900_i.pdf

 

 

NON-EXISTENT OFFENCE: New trial required where the jury is instructed on the non-existen crime of attempt to commit attempted sexual battery. Error is fundamental. Heathcock v. State, 42 Fla. L. Weekly D1765a (5th DCA 8/11/17)


http://www.5dca.org/Opinions/Opin2017/080717/5D16-2112.op.pdf

 

APPEAL-PRESERVATION: Any error in allowing CPT interview to be admitted into evidence is not fundamental error and thus must be preserved by objection.  Bubb v. State, 42 Fla. L. Weekly D1764a (5th DCA 8/11/17)


http://www.5dca.org/Opinions/Opin2017/080717/5D16-1778.op.pdf

 

WITNESS TAMPERING: Witness tampering statute does not require state to prove that a witness was attempting to contact law enforcement during the possible commission of criminal offense. Conflict certified.   McCloud v. State, 42 Fla. L. Weekly D1759a (2nd DCA 8/11/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2011,%202017/2D15-5289.pdf

 

SENTENCING-SCORESHEET: 1.5 domestic violence multiplier does not apply where witness tampering is the primary offense.   McCloud v. State, 42 Fla. L. Weekly D1759a (2nd DCA 8/11/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2011,%202017/2D15-5289.pdf



RETROACTIVITY: Hurst does not apply retroactively to cases which became final before Ring v. Arizona. Thorough discussion in dissenting/concurrent opinions. Hitchcock v. State, 42 Fla. L. Weekly S753a (FLA 8/10/17)

http://www.floridasupremecourt.org/decisions/2017/sc17-445.pdf


RETROACTIVITY: "This Court need not tumble down the dizzying rabbit hole of untenable line drawing; instead, the Court could simply entertain Hurst claims for those defendants who properly presented and preserved the substance of the issue, even before Ring arrived. . .In James v. State. . .we. . .concluded that -- despite his case becoming final before the principle of law had a case name -- it would be unjust to deprive James of the benefit of the Supreme Court's holding in Espinosa after he had properly presented and preserved such a claim.. . . Similarly, I believe that defendants who properly preserved the substance of a Ring challenge at trial and on direct appeal prior to that decision should also be entitled to have their constitutional challenges heard.. . [T]he fact that some defendants specifically cited the name Ring while others did not is not dispositive."   Hitchcock v. State, 42 Fla. L. Weekly S753a (FLA 8/10/17), Concurring Opinion.


http://www.floridasupremecourt.org/decisions/2017/sc17-445.pdf

 

QUOTATION: "Reliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable."   Hitchcock v. State, 42 Fla. L. Weekly S753a (FLA 8/10/17) (Pariente dissenting)


http://www.floridasupremecourt.org/decisions/2017/sc17-445.pdf

 

JOA: Defendant is entitled to JOA on charge of alteration of firearm serial number where no evidence establishes where (venue) or when (statute of limitations) the number was scratched out.  Swain v. State, 42 Fla. L. Weekly D1755a (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2015/3780/153780_DC13_08102017_112400_i.pdf

FIREARM-ACTUAL POSSESSION: Evidence does not establish actual possession (triggering a mandatory minimum sentence) where gun is in a bag fifty feet from the Defendant after his girlfriend dumped him and his possessions at the corner and reported him to the police.    Swain v. State, 42 Fla. L. Weekly D1755a (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2015/3780/153780_DC13_08102017_112400_i.pdf




SEVERANCE: Court did not abuse its discretion by denying motion to sever counts charging defendant with felony driving with license suspended and leaving scene of crash involving death. Evidence of defendant's suspended license was relevant to charge of fleeing scene of crash because it showed an additional motive to flee.  Pitts v. State, 42 Fla. L. Weekly D1752b (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2016/2156/162156_DC05_08102017_112658_i.pdf

 

HEARSAY: Testimony by Defendant's girl friend woke her and Defendant up, screamed that something had happened to truck and that defendant responded with shock, placing hands on his head and saying it was not he who drove the truck. Son's out-of-court statement was not hearsay where statement was offered to show effect on the listener rather than truth of the statement.  Pitts v. State, 42 Fla. L. Weekly D1752b (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2016/2156/162156_DC05_08102017_112658_i.pdf

 

CIRCUMSTANTIAL EVIDENCE-JOA: JOA properly denied where the evidence singularly pointed to Appellant as the only possible suspect in th murder of his wife.   Kline v. State, 42 Fla. L. Weekly D1750a (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2016/4338/164338_DC05_08102017_113045_i.pdf

 

THEFT-JOA: JOA for theft is required where defendant repossessed the vehicle in broad daylight after contacting police to report the intended repossession as result of non-payment of a loan.  Johnson v. State, 42 Fla. L. Weekly D1749a (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2016/5350/165350_DC13_08102017_113201_i.pdf

 

DOUBLE JEOPARDY: Dual convictions for grand theft auto and theft of property within the vehicle at the time of the taking violate double jeopardy. Failure to return property from within a repossessed vehicle cannot be theft. Johnson v. State, 42 Fla. L. Weekly D1749a (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2016/5350/165350_DC13_08102017_113201_i.pdf

DOUBLE JEOPARDY: Separate convictions for traveling to meet minor to engage in sexual conduct and solicitation of child for unlawful sexual conduct after using computer services were not impermissible where convictions did not arise from same criminal episode.  Assanti v. State, 42 Fla. L. Weekly D1747b (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2015/1410/151410_DC05_08102017_115352_i.pdf

 

LIFE SENTENCE-JUVENILE-ROBBERY: Defendant who incorrectly moved for relief under Miller v. Alabama, which applies to homicides, should be allowed to amend his motion under Graham, which would require him to allege that he has no meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.  Wright v. State, 42 Fla. L. Weekly D1747a (1st DCA 8/10/19)

https://edca.1dca.org/DCADocs/2016/2337/162337_DC08_08102017_112903_i.pdf

 

FELONY BATTERY: It is fundamental error to find defendant guilty of felony battery as lesser included offense of aggravated battery with deadly weapon where information did not allege great bodily harm.  Kirkland v. State, 42 Fla. L. Weekly D1746a (1st DCA 8/10/17)


https://edca.1dca.org/DCADocs/2015/4751/154751_DC08_08102017_112506_i.pdf

 

COMPETENCY: Unsigned "memo of sentence/order of court" filed with clerk following competency hearing did not satisfy requirement of written competency order.  Hendrix v. State, 42 Fla. L. Weekly D1744b (2nd DCA 8/9/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2009,%202017/2D16-1266.pdf


VOP: Court erred in dismissing probation violations for lack of jurisdiction after finding that defendant was not arrested on the violations until after probationary period expired and probationary period was not tolled where one of the non-criminal violations was absconding from supervision.  State v. Snuffer, 42 Fla. L. Weekly D1740a (4th DCA 8/9/17)


https://edca.4dca.org/DCADocs/2016/3003/163003_DC13_08092017_085034_i.pdf


HABEAS CORPUS: Petition for writ of habeas corpus alleging ineffective assistance of appellate counsel is untimely where filed more than four years after judgment and sentence became final on direct review.  Mendoza v. State, 42 Fla. L. Weekly D1732a (3rd DCA 8/9/17)


http://www.3dca.flcourts.org/Opinions/3D17-1094.pdf


APPEAL-COUNSEL: Because record does not indicate that counsel appointed to represent defendant in violation of probation hearing was also appointed for purpose of appeal, case is remanded to trial court for determination of defendant's eligibility to have counsel appointed for purpose of appeal.   Henley v. State, 42 Fla. L. Weekly D1726a (3rd DCA 8/9/17)


http://www.3dca.flcourts.org/Opinions/3D17-1418.pdf

ARGUMENT: "The defendant savagely, maliciously, and intentionally beat [Emmanuel] causing great bodily injury." is a reasonable inference from the evidence, and a fair reply to Defendant's argument. Beating a woman until she's bleeding, her lip is busted, her eye cannot open, she has to go to the hospital, breaking her eye socket, and spitting on her, all because she disrespected Defendant, was savage and malicious.   Williams v. State, 42 Fla. L. Weekly D1722a (3rd DCA 8/9/17)


http://www.3dca.flcourts.org/Opinions/3D14-2270.pdf


SENTENCING-VINDICTIVENESS: Courts should colloquy a defendant before trial about knowingly, voluntarily, and intelligently rejecting a plea offer. Doing so is not initiating plea discussions, and is not vindictive.  Williams v. State, 42 Fla. L. Weekly D1722a (3rd DCA 8/9/17)


http://www.3dca.flcourts.org/Opinions/3D14-2270.pdf


IMPEACHMENT: Court did not abuse discretion by allowing state to impeach defense witness with seventeen-year-old felony convictions.  Nehring v. State, 42 Fla. L. Weekly D1717a (1st DCA 8/7/17)


https://edca.1dca.org/DCADocs/2016/3252/163252_DC05_08072017_082905_i.pdf

 

PLEA WITHDRAWAL: Court erred by summarily denying motion to withdraw the plea to VOP where Defendant alleged the plea was involuntary because counsel failed to tell him he had an available defense that the violation was not willful and substantial (Tatti) Lane v. State, 42 Fla. L. Weekly D1715b (5th DCA 8/4/17)


http://www.5dca.org/Opinions/Opin2017/073117/5D16-3679.op.pdf


POST CONVICTION RELIEF: Where defendant claimed to sentence did not conform to the plea agreement Court can properly amend the sentence to conform to the plea agreement rather than allowing the Defendant to withdraw the plea.   Wilson v. State, 42 Fla. L. Weekly D1714a (5th DCA 8/4/17)


http://www.5dca.org/Opinions/Opin2017/073117/5D16-1760.op.pdf

 


ESCAPE: Defendant does not commit the crime of escape by failing to return from a one-day pretrial furlough to attend his daughter's funeral. Statute extending limits of confinement does not apply to pretrial detainee had not been sentenced. Rodriguez v. State, 42 Fla. L. Weekly D1704a (5th DCA 8/4/17)


http://www.5dca.org/Opinions/Opin2017/073117/5D16-2616.op.pdf

SEARCH AND SEIZURE-PAT DOWN: Officers may not conduct a patdown because of a trespassing complaint with the defendant was leaving the property at the time of the stop. Hearing someone tell the defendant to leave the property is not reasonable suspicion that the defendant is trespass.   Brown v. State, 42 Fla. L. Weekly D1702b (2nd DCA 8/4/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2004,%202017/2D15-3855.pdf

 

SEARCH AND SEIZURE-PAT DOWN: A valid stop does not necessarily mean that there can be a valid frisk. Officer cannot conduct a patdown on the basis of his sixth sense. Brown v. State, 42 Fla. L. Weekly D1702b (2nd DCA 8/4/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2004,%202017/2D15-3855.pdf

 

COUNSEL: Court must renew offer assistance of counseling prior to sentencing. Alexander v. State, 42 Fla. L. Weekly D1702a (2nd DCA 8/4/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2004,%202017/2D16-1437.pdf

 

COMPETENCY OF DEFENDANT: Where Defendant had been adjudicated incompetent to proceed, and on appeal defendant is deemed ineligible for placement on conditional release under § 916.17. Court may impose appropriate release conditions following remand.   McCray v. State, 42 Fla. L. Weekly D1700a (2nd DCA 8/4/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2004,%202017/2D17-332.pdf

 

POST CONVICTION RELIEF: Counsel was ineffective for failing to move for a mistrial or accept the Court's offer mistrial based on a witnesses vouching for the credibility of victims. Declining a new trial in favor pursuing an appeal which would've resulted in a new trial is not a reasonable trial strategy.   Sierra v. State, 42 Fla. L. Weekly D1698d (2nd DCA 8/4/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2004,%202017/2D15-2769.pdf



APPEAL-JURISDICTION: Court lacked jurisdiction to deny motion to correct illegal sentence while direct appeal was pending.   Baldino v. State, 42 Fla. L. Weekly D1696a (4th DCA 8/2/17)


https://edca.4dca.org/DCADocs/2017/0924/170924_DC13_08022017_092801_i.pdf

 

POST CONVICTION RELIEF: Claim that enhancement of mandatory minimum sentence resulted in illegal sentence could not be denied as untimely because court may correct illegal sentence at any time.   Reynolds v. State, 42 Fla. L. Weekly D1692a (2nd DCA 8/2/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2002,%202017/2D16-5271.pdf

RESISTING WITHOUT VIOLENCE: Unidentified 911 caller's vague description of light-skinned black male wearing shorts and a shirt looking through windows was not sufficient to give rise to reasonable suspicion justifying stop of juvenile, who was spotted about a quarter of a mile away from the neighborhood.  T.P. v. State, 42 Fla. L. Weekly D1690a (2nd DCA 8/2/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2002,%202017/2D15-5543.pdf

 


SEARCH AND SEIZURE: Juvenile's flight in response to officer's attempted consensual encounter was not sufficient to provide officer with reasonable suspicion.  T.P. v. State, 42 Fla. L. Weekly D1690a (2nd DCA 8/2/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2002,%202017/2D15-5543.pdf


JOA-THEFT-BURGLARY: JOA is required where a 2016 silver Dodge Dart was reported stolen and the Child fled from a similar-looking vehicle.    V.G. v. State, 42 Fla. L. Weekly D1689b (2nd DCA 8/2/17)




PSI: Failure to obtain an on-the-record personal waiver of the right to a PSI is not required. Williams v. State, 42 Fla. L. Weekly D1689a (3rd DCA 8/2/17)


http://www.3dca.flcourts.org/Opinions/3D17-1138.pdf

 

CREDIT FOR TIME SERVED: Court erred by summarily denying motion for credit for time served in Texas and South Carolina while on hold for transfer to Florida on a fugitive warrant without attachment of record excerpts conclusively showing no entitlement to relief.  Ridgeway v. State, 42 Fla. L. Weekly D1688c (3rd DCA 8/2/17)


http://www.3dca.flcourts.org/Opinions/3D17-1024.pdf


MANDATORY MINIMUM: Defendant fired a warning shot to chase off the Victim who had barged into his apartment. Court has no discretion to avoid imposing 20-year mandatory minimum sentence for aggravated assault with a firearm committed prior to July 1, 2014. "This case. . . is a classic example of how inflexible mandatory minimum sentences may result in injustices within the legal system that should not be tolerated."   Wright v. State, 42 Fla. L. Weekly D1680b (1st DCA 8/1/17)


https://edca.1dca.org/DCADocs/2015/4331/154331_DC05_08012017_092124_i.pdf

 

 

JULY 2017

JURY INSTRUCTION: Jury must be instructed it must find beyond a reasonable that the Defendant discharged the fireman in its special finding.  Spellers v. State, 42 Fla. L. Weekly D1679a (5th DCA 7/28/17)


http://5dca.org/Opinions/Opin2017/072417/5D17-231.op.pdf

 

TRANSCRIPT: In the absence of a transcript, the court erred by denying the claim that the oral pronouncement conflicts with the written sentence. Court cannot relied on the written minutes.  Nelson v. State, 42 Fla. L. Weekly D1678a (5th DCA 7/28/17)


http://5dca.org/Opinions/Opin2017/072417/5D17-464.op.pdf

 

LOST OR UNPRESERVED EVIDENCE: Court did not violate due process by releasing Defendant's vehicle after 1st trial for DUI manslaughter.  Goodman v. State, 42 Fla. L. Weekly D1669a (4th DCA 7/26/17)


https://edca.4dca.org/DCADocs/2014/4479/144479_DC05_07262017_102726_i.pdf

 

VEHICULAR HOMICIDE: Under DUI manslaughter and vehicular homicide statutes, enhancements for failure to render aid and provide information require only that defendant knew or should have known of the crash or accident, but do not require state to prove defendant knew or should have known of injury or death of victim.  Goodman v. State, 42 Fla. L. Weekly D1669a (4th DCA 7/26/17)


https://edca.4dca.org/DCADocs/2014/4479/144479_DC05_07262017_102726_i.pdf

 

 

SEARCH AND SEIZURE-BLOOD DRAW: Under the circumstances, destruction of evidence by dissipation of alcohol was an exigent circumstance that justifies a warrantless blood draw. Defendant had left the scene and four hours had passed from the time of the accident.  Goodman v. State, 42 Fla. L. Weekly D1669a (4th DCA 7/26/17)

 

https://edca.4dca.org/DCADocs/2014/4479/144479_DC05_07262017_102726_i.pdf

DOUBLE JEOPARDY: Double jeopardy precludes convictions for both DUI manslaughter with failure to render aid and vehicular homicide with failure to render aid where there was a single victim.    Goodman v. State, 42 Fla. L. Weekly D1669a (4th DCA 7/26/17)

 

https://edca.4dca.org/DCADocs/2014/4479/144479_DC05_07262017_102726_i.pdf

 

ACCIDENT REPORT PRIVILEGE: Accident report privilege does not apply to statements made by a witness to an officer where the witness himself was involved in a fender bender under investigation.  Stewart v. Draleaus, 42 Fla. L. Weekly D1666a (4th DCA 7/26/17)


https://edca.4dca.org/DCADocs/2015/2320/152320_DC13_07262017_095754_i.pdf

 

POST CONVICTION RELIEF: Counsel's failure to object to sentence on ground that it exceeded the plea bargain is not ineffective assistance apparent on the face of the record, because counsel may have had a strategic reason for not objecting or moving to withdraw the plea.  Phillips v. State, 42 Fla. L. Weekly D1664a (4th DCA 7/26/17)


https://edca.4dca.org/DCADocs/2016/2344/162344_DC05_07262017_100012_i.pdf

 

CONTINUANCE-PROBATION VIOLATION: Court erred in denying state's request for continuance when it sole witness failed to appear despite due diligence in trying to get the witnesses attendance. State v. Dixon, 42 Fla. L. Weekly D1662a (4th DCA 7/26/17)


https://edca.4dca.org/DCADocs/2017/0481/170481_DC13_07262017_101232_i.pdf

 

AGGRAVATED BATTERY: A punch to the head coupled with the statement that he meant to kill the victim is sufficient to sustain a conviction for aggravated battery. "Having told the manager he was going to kill him, and almost doing so, we conclude there was competent substantial evidence supporting the jury's verdict that Montero intended to cause great bodily harm."   Montero v. State, 42 Fla. L. Weekly D1655b (3rd DCA 7/26/17)


http://www.3dca.flcourts.org/Opinions/3D16-0392.pdf

 

SEARCH AND SEIZURE-PASSENGER: Officer conducting a traffic stop may not only order passenger to exit vehicle during stop in order to protect officer safety, but may also order the passenger to remain. Conflict certified.  Lopez v. State, 42 Fla. L. Weekly D1653b (3rd DCA 7/26/17)

http://www.3dca.flcourts.org/Opinions/3D16-1998.rh.pdf

 

SENTENCING-UPWARD DEPARTURE: Ongoing theft and identity theft acts by the Defendant justify an upward departure from the sentencing guidelines.  Secong v. State, 42 Fla. L. Weekly D1652a (3rd DCA 7/26/17)

 

http://www.3dca.flcourts.org/Opinions/3D15-2894.pdf

 

SENTENCING-JUVENILE: Where there is a discrepancy about the Defendant's date of birth court must hold an evidentiary hearing to determine the correct date of birth to determine whether he was a juvenile at the time of the offenses or not.   Rahmings v. State, 42 Fla. L. Weekly D1651b (3rd DCA 7/26/17)


http://www.3dca.flcourts.org/Opinions/3D16-2742.pdf

 

POST CONVICTION RELIEF: Pie accepting a negotiated plea, defendant effectively waives non-jurisdictional issues. Soto v. State, 42 Fla. L. Weekly D1648c (3rd DCA 7/26/17)


http://www.3dca.flcourts.org/Opinions/3D16-1164.pdf

 

DISCOVERY VIOLATION-EXPERT: Court erred in allowing the member of the child protection team testifying expert where he had not been disclosed as such.   Millette v State, 42 Fla. L. Weekly D1646a (1st DCA 7/26/17)

https://edca.1dca.org/DCADocs/2015/2150/152150_DC13_07262017_090725_i.pdf

 


DICTIONARY WARS: "Reasonable probability" and "Reasonable possibility" compared and contrasted.  Millette v State, 42 Fla. L. Weekly D1646a (1st DCA 7/26/17)


https://edca.1dca.org/DCADocs/2015/2150/152150_DC13_07262017_090725_i.pdf



INDIGENT FOR COSTS: Question certified whether an indigent defendant who is represented by private counsel pro bono is entitled to file motions pertaining to the appointment and costs of experts, mitigation specialists, and investigators ex parte and under seal.  Monroe v. State, 42 Fla. L. Weekly D1636a (1st DCA 7/24/17)


https://edca.1dca.org/DCADocs/2016/4672/164672_DC02_07242017_085336_i.pdf

 

APPEALS-POST CONVICTION RELIEF: Order disposing of some, but not all, claims in motion for post conviction relief is not appealable final order.   Hanner v. State, 42 Fla. L. Weekly D1635b (1st DCA 7/24/17)


https://edca.1dca.org/DCADocs/2016/2410/162410_DA08_07242017_084531_i.pdf

 

 

SENTENCING-MAXIMUM: Sentence of 35 years in prison followed by 15 years' probation, with a 25-year minimum mandatory sentence exceeded statutory maximum for attempted second degree murder with firearm, a first degree felony (30 years).  Collins v. State, 42 Fla. L. Weekly D1634b (1st DCA 7/24/17)

https://edca.1dca.org/DCADocs/2016/4068/164068_DC13_07242017_085138_i.pdf

 

 

RESTITUTION: Court erred by entering a restitution order without a hearing or waiver of hearing. Barone v. State, 42 Fla. L. Weekly D1629c (5th DCA 7/27/17)


http://www.5dca.org/Opinions/Opin2017/071717/5D16-1225.op.pdf

 


HABEAS CORPUS: Petition for writ of habeas corpus collaterally attacking validity of conviction or sentence should be filed in court that imposed sentence and rendered judgment of conviction.  Johnson v. DOC, 42 Fla. L. Weekly D1629a (5th DCA 7/21/17)


http://www.5dca.org/Opinions/Opin2017/071717/5D17-6.op.pdf

 

 

POST CONVICTION RELIEF-HABEAS CORPUS: Defendant cannot raise claim under habeas corpus that could have been raised by 3.850 motion.  Johnson v. DOC, 42 Fla. L. Weekly D1629a (5th DCA 7/21/17)


http://www.5dca.org/Opinions/Opin2017/071717/5D17-6.op.pdf

 

DEATH PENALTY: New trial is required where the death penalty recommendation was by a vote of 8 to 4.   Bevel v. State, 42 Fla. L. Weekly S661a (FLA 7/20/17)

 

POST CONVICTION RELIEF: Counsel was ineffective for failing to conduct adequate mitigation investigation in death penalty case. 15 hours of investigation into mitigation in a death penalty case is inadequate.    Bevel v. State, 42 Fla. L. Weekly S661a (FLA 7/20/17)

 

 

 

CREDIT FOR TIME SERVED: Defendant can seek credit for time served via Florida Rule of Criminal Procedure 3.800(b)(2) during the pendency of a direct appeal. He is not limited to R. 3.801.   Ross v. State, 42 Fla. L. Weekly D1626c (1st DCA 7/20/17)


https://edca.1dca.org/DCADocs/2016/4050/164050_DC13_07202017_085127_i.pdf


EVIDENCE-COLLATERAL CRIMES:  Court erred by admitting evidence of other burglaries where that evidence became a feature of the trial. Also, facts of collateral crimes are not admissible where there are not sufficient points of similarity pointing to the defendant.    Kroll v. State, 42 Fla. L. Weekly D1626a (1st DCA 7/20/17)

 


https://edca.1dca.org/DCADocs/2016/2347/162347_DC13_07202017_084813_i.pdf

 

 

SENTENCING: Sentence of 30 years of imprisonment followed by 15 years of probation is unlawful for first-degree felonies because it exceeds the statutory maximum.  Cannon v. State, 42 Fla. L. Weekly D1625a (1st DCA 7/20/17)


https://edca.1dca.org/DCADocs/2015/5710/155710_DC05_07202017_084335_i.pdf

 

DOUBLE JEOPARDY-MOTION TO SUPPRESS: When a trial court grants a motion to suppress evidence during trial, jeopardy has already attached and double jeopardy forbids a new trial after an appeal by the State. The appeal must be dismissed.   State v. M.C., 42 Fla. L. Weekly D1621c (2nd DCA 7/19/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/July/July%2019,%202017/2D15-2734or.pdf

 

APPEALS: The claim that the written sentence conflicts with the oral pronouncement cannot be raised on appeal where the claim was not made before the trial court.   Brown v. State, 42 Fla. L. Weekly D1620b (3rd DCA 7/19/17)

 

http://www.3dca.flcourts.org/Opinions/3D16-1902.pdf

 


LIFE SENTENCE-JUVENILE-NONHOMICIDE: Defendant who was sentenced to concurrent life terms for second-degree murder and armed robbery committed when he was a juvenile is entitled to resentencing under the new juvenile sentencing legislation.   Pizarro Ortiz v. State, 42 Fla. L. Weekly D1620a (3rd DCA 7/19/17)

 


http://www.3dca.flcourts.org/Opinions/3D16-1902.pdf

 

PRO SE FILINGS: Court may not prohibit defendant from pro se filings without 1st issuing an order to show cause. Chambers v. State, 42 Fla. L. Weekly D1619a (3rd DCA 7/19/17)

 

http://www.3dca.flcourts.org/Opinions/3D17-1100.pdf

 

SEARCH AND SEIZURE-WARRANT: Search warrant is not invalid if the affidavit includes omissions or inaccuracies where they are not material, intentional or deceptive.   Baldino v. State, 42 Fla. L. Weekly D1609a (4th DCA 7/19/17)

 

https://edca.4dca.org/DCADocs/2014/4668/144668_DC08_07192017_084851_i.pdf

 

EVIDENCE-OTHER, CRIMES ACTS OR WRONGS: In child pornography case, evidence of an additional 124 uncharged images of child pornography found on the computer it is NOT admissible.  Baldino v. State, 42 Fla. L. Weekly D1609a (4th DCA 7/19/17)


https://edca.4dca.org/DCADocs/2014/4668/144668_DC08_07192017_084851_i.pdf

 

DISRUPTING EDUCATIONAL INSTITUTION: Judgment of dismissal is required for disrupting an educational institution based on a fight where the state did not present evidence of specific intent to disrupt school activities nor of any material disruption to the school. This is a crime of specific intent. H.N.B. v. State, 42 Fla. L. Weekly D1603b (4th DCA 7/19/17)

 

https://edca.4dca.org/DCADocs/2016/3111/163111_DC13_07192017_091044_i.pdf

 

 

HABITUAL OFFENDER: Defendant cannot be sentenced as a habitual offender for capital felonies.   Jones v. State, 42 Fla. L. Weekly D1602b (4th DCA 7/19/17)

 

https://edca.4dca.org/DCADocs/2015/1528/151528_DC08_07192017_085047_i.pdf

 


LIFE SENTENCE-JUVENILE-RESENTENCING: On resentencing, the trial court must include in the new judgment or sentence written findings that the defendant is entitled to meaningful review of his sentence.       Cook v. State, 42 Fla. L. Weekly D1602a (4th DCA 7/19/17)


https://edca.4dca.org/DCADocs/2016/2788/162788_DC05_07192017_090848_i.pdf

 

ACCESS TO JUDICIAL RECORDS: Digital recording of trial is a public record subject to disclosure.  Morency v. State, 42 Fla. L. Weekly D1593c (5th DCA 7/14/17)


http://www.5dca.org/Opinions/Opin2017/071017/5D16-3280.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on whether counsel was ineffective for failing to object to portions of self-defense instruction that improperly shifted the burden of proof to the defendant. Williams v. State, 42 Fla. L. Weekly D1592c (5th DCA 7/14/17)


http://www.5dca.org/Opinions/Opin2017/071017/5D17-231.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for not obtaining videotapes from traffic cameras which established that he did not commit the crimes.  Ellis v. State, (5th DCA 7/14/17)

http://www.5dca.org/Opinions/Opin2017/071017/5D16-4326.op.pdf

 

SEARCH AND SEIZURE-RESIDENCE WARRANT: Vague anonymous tip regarding presence of methamphetamine at residence and meth sales by defendant was insufficient to support warrant where there was no information as to reliability of the tipster and no corroborating evidence. Where law enforcement did not observe source at the residence, evidence is insufficient for a warrant.   Castro v. State, 42 Fla. L. Weekly D1588a (2nd DCA 7/14/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/July/July%2014,%202017/2D16-1466.pdf


OPENING THE DOOR: Defense attorney suggesting that detective had made an assumption, followed by the detective responding, "not necessarily" "assuredly did not provide a doorway to introduce an unlawfully obtained statement from the defendant." Defendant's inculpatory (suppressed) statements about his control over the bedroom should not have been admitted in a trial in which he never took the stand and none of his witnesses, it appears, had ever testified in a misleading or untruthful manner. Gutierrez-Hernandez v. State, 42 Fla. L. Weekly D1580a (2nd DCA 7/14/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/July/July%2014,%202017/2D15-3342.pdf

 

OPENING THE DOOR: "A precise formulary for how hard a particular question or response must push against a particular threshold of fairness or truthfulness in order to open the door for otherwise inadmissible evidence has remained elusive, a reflection perhaps of the highly contextual nature of the inquiry. We are satisfied that in this case the door should have remained shut."   Gutierrez-Hernandez v. State42 Fla. L. Weekly D1580a (2nd DCA 7/14/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/July/July%2014,%202017/2D15-3342.pdf



JUDGMENT OF ACQUITTAL: Trial court should have granted motion for judgment of dismissal where state relied on palm print on rearview mirror of vehicle and fact that vehicle was parked outside a building where juvenile was known to have lived to prove grand theft of vehicle.  A.D.P. v. State, 42 Fla. L. Weekly D1579c (2nd DCA 7/14/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/July/July%2014,%202017/2D15-5341.pdf

 



DOUBLE JEOPARDY: Dual convictions for burglary of conveyance and carjacking do not violate double jeopardy because the offenses do not share identical elements and neither is subsumed in the other.   Atkins v. State, 42 Fla. L. Weekly D1578a (1st DCA 7/14/17)


https://edca.1dca.org/DCADocs/2015/4399/154399_DC05_07142017_084309_i.pdf

 

DEATH PENALTY: Defendant entitled to new penalty phase where jury's recommendation of death was not unanimous. Jeffries v. State, 42 Fla. L. Weekly S732a (FLA 7/13/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-1965.pdf

 

DEATH PENALTY: The Court does not entertain claims of disparate sentencing when the codefendant's sentence is the result of a plea.  Jeffries v. State, 42 Fla. L. Weekly S732a (FLA 7/13/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-1965.pdf

 

LIFE IMPRISONMENT-JUVENILE: Because defendant was sentenced in 1972 to life with parole eligibility, was paroled from prison after serving eight and a half years, and thereafter violated his parole by committing a new crime as an adult, leading to his re-incarceration, neither Graham/Miller nor Henry/Atwell is implicated, sentence is not illegal, and defendant is not entitled to resentencing under Florida's newly-enacted juvenile sentencing scheme.  Rooks v. State, 42 Fla. L. Weekly D1573a (3rd DCA 7/12/17)

 

http://3dca.flcourts.org/Opinions/3D16-0289.pdf

 

VOP: Alleged errors in sentencing procedure are not fundamental and are not preserved absent objection.  Green v. State, 42 Fla. L. Weekly D1572a (3rd DCA 7/12/17)

 

http://3dca.flcourts.org/Opinions/3D16-0268.pdf

 


INTERROGATORY VERDICT: Interrogatories for the jury to make findings regarding which incidents of racketeering conduct were proven to establish the requisite pattern of racketeering activity in support of the two racketeering offenses are not required.  Vass v. State, 42 Fla. L. Weekly D1568b (3rd DCA 7/12/17)

 

http://3dca.flcourts.org/Opinions/3D16-0224.pdf

 

RACKEETERING: It is unnecessary for a defendant, at the close of all the evidence, to renew a previous motion for judgment of acquittal to preserve the issue for appellate review.  Vass v. State, 42 Fla. L. Weekly D1568b (3rd DCA 7/12/17)


http://3dca.flcourts.org/Opinions/3D16-0224.pdf

 

PLEA-VOLUNTARINESS: Where state requested in plea agreement that court recommend that defendant's sentence be served concurrently with federal sentence, with defendant's understanding that recommendation is not binding on federal government or Florida Department of Corrections, trial court's failure to advise defendant that he would be required to serve his state and federal sentences consecutively if Florida Department of Corrections and Federal Bureau of Prisons did not accept court's recommendation did not render plea involuntary. Johnson v. State, 42 Fla. L. Weekly D1567b (3rd DCA 7/12/17)

 

http://3dca.flcourts.org/Opinions/3D17-0944.pdf



THEFT: Juvenile is guilty of theft of driver's licenses found in his possession and which he said that he took from a friend without permission. "S.C.'s actions fit snugly within the definition of possessing "stolen" driver's licenses." "Stolen" defined.   S.C. v. State, 42 Fla. L. Weekly D1557a (3rd DCA 7/12/17)


http://3dca.flcourts.org/Opinions/3D16-2066.pdf

 

DICTIONARY: "We use older dictionaries from the 1960s because that is when section 322.212 became law. . .and the terms of a statute should be given their plain and ordinary meaning as they were understood at the time of enactment." S.C. v. State, 42 Fla. L. Weekly D1557a (3rd DCA 7/12/17)


http://3dca.flcourts.org/Opinions/3D16-2066.pdf


INEFFECTIVENESS OF COUNSEL: Failure to request the self-defense jury instruction is ineffective assistance of counsel were the only defense presented was self-defense. The issue may be raised on direct appeal where, as here the error is apparent on the record.  Kruse v. State, 42 Fla. L. Weekly D1554a (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2016/1422/161422_DC13_07122017_085952_i.pdf

 

THEFT-VALUE: First degree petit theft conviction to be reduced to second degree petit theft where state failed to adequately prove the stolen property was valued at $100 or more.   Rosario-Santos v. State, 42 Fla. L. Weekly D1550a (4th DCA 7/12/17)


https://edca.4dca.org/DCADocs/2016/3142/163142_DC13_07122017_091625_i.pdf

 

RESENTENCING: Defendant is entitled to be present and presented with a corrected scoresheet when resentenced. Baker v. State, 42 Fla. L. Weekly D1549b (4th DCA 7/12/17)


https://edca.4dca.org/DCADocs/2016/3989/163989_DC08_07122017_091920_i.pdf



POST CONVICTION RELIEF-PLEA: Court did not err in summarily denying the claim that the Defendant was unable to comprehend plea because on medication where he alleged in his motion that his attorney told him not to mention to the judge that he was taking psychotropic medication.   Stilley v. State, 42 Fla. L. Weekly D1549a (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2017/0283/170283_DC05_07122017_092036_i.pdf

 


POST CONVICTION RELIEF: "A postconviction court is not required to hold hearings on absurd claims or accept as true allegations that defy logic and which are inherently incredible." Here, it is objectively unreasonable to believe that the Defendant facing mandatory life in prison as a PRR would have declined the offer of probation had he not receive bad advice from counsel. Stilley v. State, 42 Fla. L. Weekly D1549a (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2017/0283/170283_DC05_07122017_092036_i.pdf

CONTEMPT-DIRECT: Defendant properly held in direct criminal contempt based on vulgar and disrespectful tirade during calendar call. Only one contempt conviction is appropriate where all obscenities part of the same continuous outburst.   Williams v. State, 42 Fla. L. Weekly D1548a (4th DCA 7/12/17)


https://edca.4dca.org/DCADocs/2016/1720/161720_DC08_07122017_090211_i.pdf

 

SEARCH AND SEIZURE-VEHICLE: Officers had reasonable suspicion to stop defendant's van pursuant to BOLO based on physical description from 911 call given by citizen witness who had no interest in the situation and was fully cooperative with law enforcement, fact that there were virtually no other cars on road at time BOLO went out, fact that witness told law enforcement that there were at least three people in vehicle and was able to identify vehicle's direction of travel, and fact that law enforcement stopped vehicle within 10 minutes of BOLO and less than 5 miles away from where van was initially spotted.   Sammiel v. State, 42 Fla. L. Weekly D1541a (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2015/3310/153310_DC05_07122017_084044_i.pdf

 

SEVERANCE OF COUNTS: Court did not abuse discretion by denying motion to sever counts arising out of separate incidents where the crimes were part of a crime spree, were extremely close in geographic and temporal proximity, and were similar in the manner in which they were committed. Charles v. State, 42 Fla. L. Weekly D1537a (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2015/0658/150658_DC05_07122017_083512_i.pdf

 

EVIDENCE: Court did not abuse discretion in admitting evidence related to an offense that was severed where that offense was inextricably intertwined with the charged crimes and was relevant evidence of flight and concealment.   Charles v. State, 42 Fla. L. Weekly D1537a (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2015/0658/150658_DC05_07122017_083512_i.pdf

 

PSYCHOLOGICAL EVALUATION: Court is not required to appoint a minimum of two experts.   Charles v. State, 42 Fla. L. Weekly D1537a (4th DCA 7/12/17)

https://edca.4dca.org/DCADocs/2015/0658/150658_DC05_07122017_083512_i.pdf

 

VOIR DIRE: Court abused its discretion limiting voir dire to 3-hour time limit and refusing to grant a few additional minutes to reach jurors it could not reach. As a matter of law, a one-to-three minute limit for voir dire examination of each potential juror is unreasonable and an abuse of discretion. Hopkins v. State, 42 Fla. L. Weekly D1536a (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2015/4266/154266_DC13_07122017_084559_i.pdf

 

CHALLENGE FOR CAUSE: Court erred in denying challenges for cause where jurors admitted they might not be able to render impartial decisions if the defendant did not take the stand. Jurors who say "That possibility exists" [that it might negatively influence him] and "I believe I can, yes, [follow the law] him I'm not certain that I can." should be stricken for cause.   Hopkins v. State, 42 Fla. L. Weekly D1536a (4th DCA 7/12/17)


https://edca.4dca.org/DCADocs/2015/4266/154266_DC13_07122017_084559_i.pdf

RESTITUTION: Court abused its discretion in imposing restitution for 2 piece of jewelry which defendant never admitted that she pawned.  James v. State, 42 Fla. L. Weekly D1535a (4th DCA 7/12/17)


https://edca.4dca.org/DCADocs/2015/4854/154854_DC08_07122017_092329_i.pdf


SEX CRIME-AGE OF DEFENDANT-BIRTH CERTIFICATE: Birth certificate is a self-authenticating public record and it along with jury's ability to observe the defendant (58-year-old) is sufficient to find that he was 24 years of age or older.

Terry v. State, 42 Fla. L. Weekly D1533b (4th DCA 7/12/17)

 

https://edca.4dca.org/DCADocs/2015/4219/154219_DC05_07122017_084446_i.pdf




MANDATORY MINIMUM-10-20-LIFE: Consecutive mandatory minimum sentences are permissible but not mandatory where Defendant discharged a firearm in multiple offenses that occurred in the same criminal episode and involved multiple victims.  Abrams v. State, 42 Fla. L. Weekly D1531b (1st DCA 7/11/17)


https://edca.1dca.org/DCADocs/2014/3291/143291_DC08_07112017_082148_i.pdf

 

MANDATORY MINIMUM-10-20-LIFE: Consecutive mandatory minimum sentences are permissible but not mandatory where Defendant discharged a firearm in multiple offenses that occurred in the same criminal episode but only shot one victim. Conflict Certified.   Bradley v. State, 42 Fla. L. Weekly D1531a (1st DCA 7/11/17)

https://edca.1dca.org/DCADocs/2014/2626/142626_DC13_07112017_082005_i.pdf





MANDATORY MINIMUM-10-20-LIFE: Consecutive mandatory minimum sentences are permissible but not mandatory where Defendant discharged a firearm in multiple offenses that occurred in the same criminal episode and firearm was discharged at multiple victims. Dukes v. State, 42 Fla. L. Weekly D1530b (1st DCA 7/11/17)

 

https://edca.1dca.org/DCADocs/2015/4032/154032_DC08_07112017_083040_i.pdf

COSTS: Court erred by imposing all fines, fees, costs, and surcharges as a lump sum.   Clark v. State, 42 Fla. L. Weekly D1527c (1st DCA 7/11/17)


https://edca.1dca.org/DCADocs/2016/4773/164773_NOND_07112017_091403_i.pdf

 

 

POSSESSION OF FIREARM BE FELON-COLLATERAL ESTOPPEL: Where defendant was charged with possession of a firearm by felon and trafficking in cocaine while armed with a firearm, the charges were severed, and jury found defendant guilty of armed trafficking and determined that he "individually carried" a weapon, but did not actually possess a firearm during commission of trafficking offense, state was not collaterally estopped from prosecuting defendant for possession of a firearm by a felon. Because "possession" is defined differently in the jury instructions for violations of sections 775.087 and 790.23, the jury did not necessarily determine the issue of possession under section 790.23 in Joy's favor. State v. Joy, 42 Fla. L. Weekly D1525a (5th DCA 7/7/17)


http://www.5dca.org/Opinions/Opin2017/070317/5D16-1283.op.pdf



DRUG OFFENDER PROBATION: Imposition of drug offender probation for conviction of battery on law enforcement officer is lawful where defendant is a chronic substance abuser under the influence of a controlled substance on night of incident. Powell v. State, 42 Fla. L. Weekly D1521b (5th DCA 7/7/17)


http://www.5dca.org/Opinions/Opin2017/070317/5D16-1810.op.pdf

 

SENTENCING: Court erred when it modified sentence to correct an illegal sentence without holding resentencing hearing.    Davis v. State, 42 Fla. L. Weekly D1521a (5th DCA 7/7/17)


http://www.5dca.org/Opinions/Opin2017/070317/5D17-671.op.pdf


DEPENDENCY: Court erred when it modified permanency as to father when father was involuntarily absent due to incarceration.  T.B. v. State, 42 Fla. L. Weekly D1520d (5th DCA 7/7/17)

 

http://www.5dca.org/Opinions/Opin2017/070317/5D17-807.op.pdf


COSTS OF INVESTIGATION: Court erred in imposing costs of investigation where state did not expressly request these costs.  Foulkes v. State, 42 Fla. L. Weekly D1520c (5th DCA 7/7/17)


http://www.5dca.org/Opinions/Opin2017/070317/5D16-939.op.pdf

HABEAS CORPUS: Petition for writ of habeas corpus which attacks validity of conviction is properly brought in circuit court in county that rendered judgment of conviction.   Milord v. State, 42 Fla. L. Weekly D1520b (5th DCA 7/7/17)


http://www.5dca.org/Opinions/Opin2017/070317/5D16-3422.op.pdf

 

HABEAS CORPUS: Defendant may not collaterally attack a conviction through the process of habeas proceedings where such claims are cognizable under the rule 3.850.  Milord v. State, 42 Fla. L. Weekly D1520b (5th DCA 7/7/17)

 

DISQUALIFICATION: Judge's comments regarding the efficacy of mitigation coordinators in other cases is legally insufficient to justify disqualification.  Peterson v. State, 42 Fla. L. Weekly S720a (FLA 7/6/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-289.pdf

DEATH PENALTY:   New sentencing hearing is required where death recommendation was not unanimous.   Peterson v. State, 42 Fla. L. Weekly S720a (FLA 7/6/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-289.pdf

DEATH PENALTY: New sentencing hearing is required where death recommendation was not unanimous.  Bailey v. Jones, 42 Fla. L. Weekly S719a (FLA 7/6/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-433.pdf


10-20-LIFE-CONSECUTIVE SENTENCES: Imposition of consecutive mandatory minimum sentences under 10-20-Life statute for multiple offenses arising out of single criminal episode was discretionary, not mandatory, where defendant only shot at one victim. Thornes v. State, 42  Fla. L. Weekly D1509b (1st DCA 7/6/17)


https://edca.1dca.org/DCADocs/2014/4431/144431_DC13_07062017_084412_i.pdf



10-20-LIFE-CONSECUTIVE SENTENCES: Imposition of consecutive mandatory minimum sentences under 10-20-Life statute for multiple firearm offenses committed in single criminal episode is permissible but not mandatory Charlemagne v. State, 42 Fla. L. Weekly D1504a (3rd DCA 7/5/17)


http://www.3dca.flcourts.org/Opinions/3D13-2786.pdf


JUVENILE-LIFE SENTENCE: Juvenile's life sentence for homicide with review after 40 years and consecutive 24 year sentence for burglary is lawful.  Cutts v. State, 42 Fla. L. Weekly D1498a (4th DCA 7/5/17)


https://edca.4dca.org/DCADocs/2016/2547/162547_DC05_07052017_093604_i.pdf

 

10-20-LIFE-CONSECUTIVE SENTENCES: Court erred in imposing consecutive mandatory minimum sentences for multiple firearm offenses arising out of single criminal episode where firearm was merely possessed but not discharged. Davis v. State, 42 Fla. L. Weekly D1497b (4th DCA 7/5/17)

 

https://edca.4dca.org/DCADocs/2016/0296/160296_DC08_07052017_091114_i.pdf

 


APPEAL-ARGUMENT: Claim that state relied on different factual theories to prove one of the sexual battery counts at issue, raising the possibility of a non-unanimous verdict, is not fundamental error. Objection must be made at trial or the argument is waived. Defendant may prefer lumping of acts in one count in order to lower possible exposure.  Stalker v. State, 42 Fla. L. Weekly D1497a (4th DCA 7/5/17)


https://edca.4dca.org/DCADocs/2015/4675/154675_DC05_07052017_090954_i.pdf

 

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Where Court failed to make written findings that the Defendant posed a danger to the community under VFOSC, the proper remedy is a new sentencing hearing.   Whittaker v. State, 42 Fla. L. Weekly D1495a (4th DCA 7/5/17)

https://edca.4dca.org/DCADocs/2016/1036/161036_DC13_07052017_091650_i.pdf


PARAPHERNALIA: Where delinquency petition charged Child with possession of paraphernalia under §(b) ("to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance") and evidence established that the paraphernalia would have been under §(a) (packaging for narcotics), JOA is required.   J.V. v. State, 42 Fla. L. Weekly D1494b (4th DCA 7/5/17)


https://edca.4dca.org/DCADocs/2016/0442/160442_DC13_07052017_091426_i.pdf

 


LIFE SENTENCE-JUVENILE: Defendant who received parole-eligible life sentence for nonhomicide committed when he was a juvenile is not entitled to resentencing under Graham v. Florida where he had actually been released from prison twice on parole.  Rogers v. State, 42 Fla. L. Weekly D1493a (4th DCA 7/5/17)


https://edca.4dca.org/DCADocs/2016/3686/163686_DC05_07052017_094358_i.pdf

 

ARGUMENT: Prosecutor's statements during closing arguments which directed jury to consider prior inconsistent statements as substantive evidence rather than just as impeachment evidence were not proper comments on the evidence. Prior inconsistent statements are admissible for impeachment purposes so long as the goal is to have the jury disbelieve both statements rather than to convince the jury that the prior statement is true and the in-court testimony is false.  Abdulla v. State, 42 Fla. L. Weekly D1490b (4th DCA 7/5/17)

 

https://edca.4dca.org/DCADocs/2016/2606/162606_DC13_07052017_093730_i.pdf

 

 

ARGUMENT: Prosecutor's suggestion that witness committed perjury as part of a strategy devised with defense counsel and defendant himself was completely improper. Abdulla v. State, 42 Fla. L. Weekly D1490b (4th DCA 7/5/17)


https://edca.4dca.org/DCADocs/2016/2606/162606_DC13_07052017_093730_i.pdf

 

JUNE 2017

 

LIFE SENTENCE-JUVENILE-VOP: Where defendant was sentenced to community control as a youthful offender when he was seventeen years old, upon revocation of community control for new offenses committed when defendant was eighteen years old, defendant was not entitled to be sentenced pursuant to juvenile offender sentencing law under which he would have to be provided a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Davis v. State, 42 Fla. L. Weekly D1481a (5th DCA 6/30/17)

 

http://5dca.org/Opinions/Opin2017/062617/5D16-2236.op.pdf


YOUTHFUL OFFENDER: Where defendant was initially sentenced as youthful offender, Court must maintain his youthful offender status when sentencing him for community control violation.   Davis v. State, 42 Fla. L. Weekly D1481a (5th DCA 6/30/17)


http://5dca.org/Opinions/Opin2017/062617/5D16-2236.op.pdf

 

POSSESSION OF FIREARM BY FELON: Felon pawning firearms previously owned by her deceased husband is prima facie evidence of possession of firearm by a felon. Henderson distinguished. Argument that Defendant possessed for purpose of lawful disposal was not raised in trial court. State v. Trappen, 42 Fla. L. Weekly D1475b (2nd DCA 6/30/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/June%2030,%202017/2D15-5129.pdf

 

EVIDENCE: Court may prohibit cross-examination on prior instances of contamination in analyses analyst had conducted in other cases where there was no evidence that DNA samples in defendant's case were contaminated. Evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness.  Sexton v. State, 42 Fla. L. Weekly S713a (FLA 6/29/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-62.pdf

 

EVIDENCE: Court did not err in admitting detective's testimony recounting that defendant's wife stated, in response to defendant's claim that he had arrived home at 10:30 p.m. the night before the murder, "He's not telling the truth. He got home at 2:00 a.m."   Sexton v. State, 42 Fla. L. Weekly S713a (FLA 6/29/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-62.pdf

 

EVIDENCE: Photographs and testimony relating to injuries inflicted on victim's body after her death may be admitted. Sexton v. State, 42 Fla. L. Weekly S713a (FLA 6/29/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-62.pdf


DEATH PENALTY: Defendant entitled to new sentencing proceeding where Hurst error occurred and jury's recommendation of death was not unanimous.  Sexton v. State, 42 Fla. L. Weekly S713a (FLA 6/29/17)

 


http://www.floridasupremecourt.org/decisions/2017/sc14-62.pdf

 

DEATH PENALTY: Imposition of death penalty was unconstitutional under decision of U.S. Supreme Court in Hurst v. Florida where jury recommendation of death was not unanimous.  Cole v. State, 42 Fla. L. Weekly S701a (FLA 6/29/17)


http://www.floridasupremecourt.org/decisions/2017/sc13-2245.pdf

 

DEATH PENALTY: Imposition of death penalty was unconstitutional under decision of U.S. Supreme Court in Hurst v. Florida where jury recommendation of death was not unanimous.   Bargo v. State, 42 Fla. L. Weekly S698a (FLA 6/29/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-125.pdf

 

SEARCH AND SEIZURE: In conducting warrantless search of cell phone, officers could not rely in good faith on district court of appeal decision which was not final, well-settled, unequivocal, or clearly established and which was certified for review by the Florida Supreme Court.    Carpenter v. State, 42 Fla. L. Weekly S694a (FLA 6/29/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-2125.pdf

 

QUOTATION: "While an opinion from a district court of appeal may be binding on lower trial courts in Florida . . ., this fact does not necessarily justify law enforcement's reliance on that decision as "binding" law. . . Indeed, this issue can be likened to that of Schrödinger's Cat, where a decision of a district court of appeal may be both binding and not binding." Carpenter v. State, 42 Fla. L. Weekly S694a (FLA 6/29/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-2125.pdf

 

SEARCH AND SEIZURE: Defendant does not have standing to object to search of home where he claims no interest in the part of the home which is searched. Gonzalez v. State, 42 Fla. L. Weekly D1464a (4th DCA 6/28/17)

 

https://edca.4dca.org/DCADocs/2016/0913/160913_DC05_06282017_085440_i.pdf

 

EVIDENCE-WEIGHT: Random testing of one out of 1,000 similar tablets was sufficient to admit evidence of weight. Gonzalez v. State, 42 Fla. L. Weekly D1464a (4th DCA 6/28/17)

https://edca.4dca.org/DCADocs/2016/0913/160913_DC05_06282017_085440_i.pdf


SEALING: Court may not deny petition to seal criminal record based solely upon its consideration of facts as outlined in probable cause affidavit. Where petitioner met requirements of statute and complied with pertinent statutory procedure, he was presumptively entitled to order to seal or expunge court records, and the only issue before trial court was whether factual basis existed to deny petition.  Gotowala v. State, 42 Fla. L. Weekly D1463b (4th DCA 6/28/17)


https://edca.4dca.org/DCADocs/2016/1538/161538_DC13_06282017_085853_i.pdf

 

AGGRAVATED ASSAULT: Judgment of Acquittal for aggravated assault is required where the victim is a one-and-a-half year old child, and there is no evidence that the child experienced fear.   Davis v. State, 42 Fla. L. Weekly D1463a (4th DCA 6/28/17)


https://edca.4dca.org/DCADocs/2016/1383/161383_DC13_06282017_085624_i.pdf

 

BOND: Juvenile (14 yoa) charged as an adult may be held without bond because life is now a possible punishment for juveniles charged as adults with offenses punishable by life where proof of guilt is evident or presumption is great. Reeters v. Israel, 42 Fla. L. Weekly D1460a (4th DCA 6/28/17)

 

https://edca.4dca.org/DCADocs/2017/1366/171366_DC02_06282017_091952_i.pdf

 

SENTENCING: Court's comments during sentencing that defendant's testimony at trial was "untruthful and not believable" and warranted maximum sentence constituted fundamental error.  Session v. State, 42 Fla. L. Weekly D1459b (4th DCA 6/28/17)


https://edca.4dca.org/DCADocs/2015/1525/151525_DC13_06282017_084119_i.pdf

 

SEARCH AND SEIZURE-PLAIN VIEW: Residents of rooming houses are entitled to the same Fourth Amendment protections as residents of single-family houses, so long as rooming house itself is not open to public. Cocaine in pill bottle stashed in concrete latticework attached to foundation of rooming house where defendant was staying was unlawfully seized and should be suppressed. The common internal hallway area of a rooming house is a private, as opposed to a public, place. Open view doctrine does not allow police to seize bottle which they see put in the crawlspace with only a hunch that it is contraband. Full discussion of plain view/open view doctrines.   Davis v. State, 42 Fla. L. Weekly D1456a (2nd DCA 6/28/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/June%2028,%202017/2D16-887.pdf


SPEEDY TRIAL: 60 day time limit for bringing Defendant to trial begins from the date of the demand, regardless of whether Defendant had been arrested.   Cornelius v. State, 42 Fla. L. Weekly D1453b (5th DCA 6/27/17)

 

http://5dca.org/Opinions/Opin2017/062617/5D17-1138.op.pdf



WITNESS-EXPERT: Court's declaration that State witness is an expert in front of jury is not fundamental error where it did not contribute to the verdict.   Norfleet v. State, 42 Fla. L. Weekly D1448a (1st DCA 6/27/17)


https://edca.1dca.org/DCADocs/2016/1632/161632_DC05_06272017_092256_i.pdf

 

POST CONVICTION RELIEF: Claim that Counsel misadvised him that claim of right was a valid defense to carjacking and that he would have pled open upon accurate advise is not cognizable where there was no plea offer. Carter v. State, 42 Fla. L. Weekly D1442a (1st DCA 6/27/17)

 

https://edca.1dca.org/DCADocs/2016/4541/164541_DC05_06272017_093222_i.pdf

 

SENTENCING-CONSECUTIVE: Resentencing is required where the Court erroneously believed it was required to impose consecutive mandatory minimums for attempted murder and possession of a firearm by a felon when there was only one victim.   Fleming v. State, 42 Fla. L. Weekly D1441c (1st DCA 6/27/17)


https://edca.1dca.org/DCADocs/2012/5661/125661_DC13_06272017_090838_i.pdf

 

HABEAS CORPUS: Claims of ineffective assistance of appellate counsel in state court are not subject to federal review where issue is defaulted (i.e., not raised in state court). Attorney error is an objective external factor excusing a procedural default only if the error deprives one of a constitutional right. Since one has no right to counsel for habeas review, attorney error in that review cannot excuse a default.   Davila v. Davis, No. 16-6219 (US 6/26/17)

 


https://www.supremecourt.gov/opinions/16pdf/16-6219_i425.pdf

 

PRETRIAL DETENTION: Under Rule 3.132, a motion for pre-trial detention must be held within 5 days, and the State bears the burden of proving the need for pretrial detention. Watson v. State, 42 Fla. L. Weekly D1452a (5th DCA 6/26/17)


http://5dca.org/Opinions/Opin2017/062617/5D17-1914.op.pdf

 

DEPORTATION: When a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Court may not consider whether the result of the trial would have been different. Lee v. United States, No. 16-327 (US 6/23/17)


https://www.supremecourt.gov/opinions/16pdf/16-327_3eb4.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for not moving to suppress a photo lineup where the Defendant was the only one in the line up with facial scarring.  Walker v. State, 42 Fla. L. Weekly D1433d (5th DCA 6/23/17)


http://5dca.org/Opinions/Opin2017/061917/5D16-4427.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for incorrectly advising defendant that he should not testify because if he took the stand, state would be able to present to jury the details of his extensive criminal record.  Walker v. State, 42 Fla. L. Weekly D1433d (5th DCA 6/23/17)


http://5dca.org/Opinions/Opin2017/061917/5D16-4427.op.pdf

 

NEWLY DISCOVERED EVIDENCE: Court may grant new trial based on newly discovered evidence that victim of lewd and lascivious assault tweeted two years later that she has sleep paralysis, which is characterized by sensory hallucinations.  Boughs v. State, 42 Fla. L. Weekly D1433c (5th DCA 6/23/17)


http://5dca.org/Opinions/Opin2017/061917/5D15-4000.pca%20with%20dissent.pdf


SEARCH AND SEIZURE: Running background checks on the vehicle, the driver, and the passengers are normal parts of a traffic stop and do not unreasonably prolong the stop. Vangansbeke v. State, 42 Fla. L. Weekly D1429b (5th DCA 6/23/17)

http://5dca.org/Opinions/Opin2017/061917/5D16-2688.op.pdf

 

UNLAWFUL PROCURING OF CITIZENSHIP BY FALSE STATEMENT: Jury must be instructed that the false statement (here, that her husband did not fight with the Bosnians nor participate in a massacre) must have contributed to citizenship being granted. The illegal act must have somehow contributed to the obtaining of citizenship. To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.  Maslenjak v. United States, 16-309 (US 6/22/17)

 

https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf

 


DICTIONARY WARS: "[T]o procure" something is "to get possession of " it. Webster's Third New International Dictionary 1809 (2002); accord, Black's Law Dictionary 1401 (10th ed.2014) (defining "procure" as "[t]o obtain (something), esp.by special effort or means"). Maslenjak v. United States, 16-309 (US 6/22/17)


https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf



DISCOVERY-BRADY: Failure to disclose certain interviews weakening the Government's case is a violation of Brady, but not material where there is not reasonable probability of changing the outcome. A new trial is not required where the evidence "is too little, too weak, or too distant from the main evidentiary points to meet Brady's standards." Turner v. United States, 15-1503 (US 6/22/17)


https://www.supremecourt.gov/opinions/16pdf/15-1503_4357.pdf


PUBLIC TRIAL: Structural errors should not be deemed harmless beyond a reasonable doubt. A structural error is one which affect the framework within which the trial proceeds, rather than being "simply an error in the trial process itself. An error can count as structural even if the error does not lead to fundamental unfairness in every case. A violation of the right to a public trial-including excluding the public from jury selection because of limited space--is a structural error. However, counsel was not ineffective for failure to object to exclusion of the jury because there is no showing of fundamental unfairness.   Weaver v. Massachusetts, No. 16-240 (US 6/22/17)


https://www.supremecourt.gov/opinions/16pdf/16-240_g3bi.pdf



POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on the claims that counsel was ineffective for failing to object to late disclosure of a witness who rebutted Defendant's opening statement.  Cruz v. State, 42 Fla. L. Weekly D1415d (4th DCA 6/21/17)

 

https://edca.4dca.org/DCADocs/2016/0423/160423_DC08_06212017_094132_i.pdf


POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on the claims that counsel was ineffective for failing to file notice of alibi and call alibi witness. Cruz v. State, 42 Fla. L. Weekly D1415d (4th DCA 6/21/17)

 

https://edca.4dca.org/DCADocs/2016/0423/160423_DC08_06212017_094132_i.pdf

 

 

FIREARM-CONSECUTIVE SENTENCE: Court erred by imposing consecutive mandatory minimum sentences under 10-20-Life statute where offenses arose from same criminal episode and did not involve discharge of firearm.   Billups v. State, 42 Fla. L. Weekly D1415c (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2014/3130/143130_DC13_06212017_085043_i.pdf

 

ARGUMENT-SHIFTING BURDEN OF PROOF: Prosecutor improperly shifted burden of proof to defendant during closing argument by inviting jury to return guilty verdict based upon defendant's failure to call certain witness equally available to the State and with no special relationship to the Defendant. The state cannot comment on a defendant's failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.  Reid v. State, 42 Fla. L. Weekly D1413a (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2012/2303/122303_DC13_06212017_084116_i.pdf

 

EVIDENCE: Court improperly permitted state to question attempted murder victim regarding his four earlier in-court identifications of the defendant as the shooter in earlier trials. Improper bolstering. Hearsay exception applicable when declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is one of identification made after perceiving the person, applies to out-of-court identifications made close to time the declarant perceived the identified person and not to prior in-court identifications.  Reid v. State, 42 Fla. L. Weekly D1413a (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2012/2303/122303_DC13_06212017_084116_i.pdf


CONTEMPT-DIRECT: Judge committed fundamental error in failing to disqualify himself from presiding at contempt hearing where the contempt charged involved disrespect to or criticism of judge.  Rosenwater v. Deutsche Bank, 42 Fla. L. Weekly D1406a (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2016/4015/164015_DC13_06212017_100258_i.pdf



CONSECUTIVE MANDATORY MINIMUM-FIREARM: Consecutive mandatory minimum sentences for qualifying felonies committed in a single criminal episode where gun is fired are permissible, not mandatory under 10-20-Life. McCormack v. State, 42 Fla. L. Weekly D1401b (4th DCA 6/21/17)

 

https://edca.4dca.org/DCADocs/2015/2886/152886_DC08_06212017_091402_i.pdf

 

COMPETENCY: Where trial court found reasonable grounds to believe juvenile was not mentally competent to proceed and appointed experts to evaluate juvenile, trial court erred in failing to make findings regarding juvenile's competency after evaluations were presented.  D.B. v. State, 42 Fla. L. Weekly D1401a (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2015/1553/151553_DC13_06212017_090731_i.pdf

 

THEFT/DEALING: Separate convictions for petit theft and dealing in stolen property are impermissible.   Roundtree v. State, 42 Fla. L. Weekly D1398b (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2016/1153/161153_DC08_06212017_094536_i.pdf

 

TRESPASS WITH A DANGEROUS WEAPON: Rock which Defendant threatened to throw is a dangerous weapon. Discussion of when threatened use of a weapon makes it dangerous or deadly.   Saint-Fort v. State, 42 Fla. L. Weekly D1394b (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2015/4708/154708_DC05_06212017_093300_i.pdf


10-20-LIFE: Court may not impose consecutive sentences under 10-20-Life statute for offenses which arose from single criminal episode and involved same victim.  Jackson v. State, 42 Fla. L. Weekly D1394a (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2014/4918/144918_DC13_06212017_090504_i.pdf

 

RULE OF COMPLETENESS: Post-arrest exculpatory statement by defendant was properly excluded because it did not explain or shed light on defendant's statements, already admitted, from a controlled phone call with the minor victim. Rule of Completeness only applies when the statement is necessary to give a complete understanding of the total tenor and effect of the already-introduced statement. Good discussion.  Carter v. State, 42 Fla. L. Weekly D1392a (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2015/3132/153132_NOND_06212017_115039_i.pdf

 

ATTORNEYS-DISQUALIFICATION: Court improperly disqualified attorney based on claim that plaintiff's attorney had represented defendant thru its agent with confidential information exchanged, where information exchanged had not been confidential. A discussion in front of a third-party is not entitled to confidentiality.   Oil, L.L.C. v. Stamax Corp., 42 Fla. L. Weekly D1391a (4th DCA 6/21/17)

 


https://edca.4dca.org/DCADocs/2017/0175/170175_DC03_06212017_101253_i.pdf

 

WEAPON-POCKETKNIFE: Where witness saw the point of a knife in Child's hand, but no knife was recovered, Child is entitled to JOA because state failed to prove it was not a common pocketknife. State must establish that the knife is not a "common pocketknife."   G.R.N. v. State, 42 Fla. L. Weekly D1390a (4th DCA 6/21/17)


https://edca.4dca.org/DCADocs/2016/3687/163687_DC13_06212017_100113_i.pdf


SEVERANCE: No error in denying severance of charges where burglary occurred three days after the murder and bloody clothes and stolen property link the two offenses. Lindsey v. State, 42 Fla. L. Weekly D1384a (1st DCA 6/19/17)

 

https://edca.1dca.org/DCADocs/2015/5544/155544_DC05_06192017_091002_i.pdf

 

JURY INSTRUCTION: In burglary case, Court erred in failing to instruct on the affirmative defense of Defendant's consent to enter victim's vehicle. Error is fundamental where Defendant's sole defense was consent to enter the car.  Faulk v. State, 42 Fla. L. Weekly D1383a (1st DCA 6/21/17)


https://edca.1dca.org/DCADocs/2015/5428/155428_DC13_06192017_090815_i.pdf

 

HABEAS CORPUS: A court may review a procedurally defaulted claim if, but for a constitutional error, no reasonable jury would have found the petitioner eligible for the death penalty, not whether a jury might have not have found the petitioner eligible for the death penalty.  Jenkins v. Hutton, No. 16-1116 (US 6/19/17)

 

https://www.supremecourt.gov/opinions/16pdf/16-1116_i4dk.pdf

 


MENTAL HEALTH EXPERT: When certain threshold criteria are met, an indigent defendant whose mental health will be a significant factor at trial is entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense. Examination by a Lunacy Commission appointed by the Court fails to meet the requirement of an independent mental health expert for the Defendant. McWilliams v. Dunn, No. 16-5294 (US 6/19/17)

 

https://www.supremecourt.gov/opinions/16pdf/16-5294_h3dj.pdf

 


SEX OFFENDERS-SOCIAL MEDIA: Statute barring sex offenders from using social media impermissibly infringes upon the legitimate exercise of First Amendment rights. Packingham v. North Carolina, No. 15-1194 (US 6/19/17)


https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf

 


DOUBLE JEOPARDY: Although double jeopardy principles prohibit separate convictions for solicitation and traveling when the offenses are based on the same conduct, separate convictions are not prohibited where the offenses are not based on the same conduct. Because defendant pled to solicitations involving two different victims and modes of communication, text messages with officer posing as 14-year-old girl and email with officer posing as girl's uncle, only one of solicitation convictions was necessarily subsumed in the traveling offense. One solicitation should be vacated. Littleman v. State, 42 Fla. L. Weekly D1382a (1st DCA 6/19/17)

 

https://edca.1dca.org/DCADocs/2014/1642/141642_DC08_06192017_090552_i.pdf

 

 

ATTORNEYS-DISCIPLINE: Attorney Mark Ciaravella referred for discipline for failure to follow appellate court's order to pay filing fee or secure a finding of indigencey. Odhiambo v. State, 42 Fla. L. Weekly D1379a (2nd DCA 6/16/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/June%2016,%202017/2D15-3506.pdf

 


POST CONVICTION RELIEF: Sentence that exceeds statutory maximum many not be imposed, even pursuant to a negotiated plea agreement, and may be challenged at any time under rule 3.800(a).  Parks v. State, 42 Fla. L. Weekly D1378a (2nd DCA 6/16/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/June%2016,%202017/2D16-67.pdf

 

COMPETENCY: Once court ordered that defendant be reevaluated prior to sentencing, it was error to continue to sentencing until the evaluation was done.  Lewinson v. State, 42 Fla. L. Weekly D1373a (5th DCA 6/16/17)


http://www.5dca.org/Opinions/Opin2017/061217/5D16-735.op.pdf


CONFLICT: Court may deny motion to withdraw for conflict where it determines no conflict exists. Court has responsibility to determine whether an actual conflict exists. A possible, speculative, or merely hypothetical conflict is insufficient to support an allegation that an actual conflict of interest exists. Even if a defendant successfully demonstrates the existence of an actual conflict, the defendant must also show that this conflict had an adverse effect upon his lawyer's representation. Defendant's appointed attorney on motion for post conviction relief is not disqualified because as a supervising prosecutor he had approved a plea offer in the underlying case.   Braddy v. State, 42 Fla. L. Weekly S671a (FLA 6/15/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-404.pdf


PUBLIC RECORDS: Handwritten attorney notes, draft documents, and annotated copies of decisional law are not public records.   Braddy v. State, 42 Fla. L. Weekly S671a (FLA 6/15/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-404.pdf

 

DEATH PENALTY: Resentencing required where jury voted 11-1 for death.   Braddy v. State, 42 Fla. L. Weekly S671a (FLA 6/15/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-404.pdf

 


DEATH PENALTY: Defendant is not entitled to Hurst relief for death sentence imposed for second murder for which penalty phase jury unanimously recommended death.    Bevel v. State, 42 Fla. L. Weekly S661a (FLA 6/15/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-770.pdf

 

DEATH PENALTY-INEFFECTIVE ASSISTANCE: Counsel who spent only 16 hours preparing for the penalty phase and failed to find existing mitigating evidence provided ineffective assistance of counsel.   Bevel v. State, 42 Fla. L. Weekly S661a (FLA 6/15/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-770.pdf

 

DEATH PENALTY: Hurst does not apply to death sentences imposed before Ring v. Arizona.    Zack v. State, 42 Fla. L. Weekly S656a (FLA 6/15/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1756.pdf

 

DEATH PENALTY-INTELLECTUAL DISABILITY: IQ above 75, outside the range of error, is presumptively competent for death penalty.   Zack v. State, 42 Fla. L. Weekly S656a (FLA 6/15/17)



http://www.floridasupremecourt.org/decisions/2017/sc15-1756.pdf

 

 

POST CONVICTION RELIEF: Counsel's failure to object to witness statement that Defendant and his friends "do this kind of stuff" (armed robbery/murder) was a strategic decision to not call attention to the comment. Meaning of the phrase was not harmful since the witness "spoke in a colloquial dialect[,] her testimony did not have verb-tense agreement, [and] she tended to mix up verbs and words." Hall v. State, 42 Fla. L. Weekly S654a (FLA 6/15/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-2225.pdf

 

 

IMPEACHMENT: Court erred in allowing state to introduce excerpt from codefendant's recorded statement to impeach defendant's alibi witness.   Byrd v. State, 42 Fla. L. Weekly D1365d (4th DCA 6/14/17)


https://edca.4dca.org/DCADocs/2015/3134/153134_DC13_06142017_084350_i.pdf

 


PROBATION-JURISDICTION: Error to dismiss affidavit of violation. When a probationer absconds from supervision, the probationary period is tolled until the probationer is once more placed under probationary supervision.  State v. Casas, 42 Fla. L. Weekly D1364b (4th DCA 6/14/17)

 

https://edca.4dca.org/DCADocs/2016/2672/162672_DC13_06142017_084728_i.pdf

 

COMPETENCY: Court erred in holding community control violation proceeding where defendant had previously been found incompetent.  Williams v. State, 42 Fla. L. Weekly D1364a(4th DCA 6/14/17)


https://edca.4dca.org/DCADocs/2015/3022/153022_DC13_06142017_084124_i.pdf

 

PRETRIAL DETENTION:  First appearance judge erred when it ruled that it did not have to make any finding whether probable cause affidavit established that proof of guilt was evident or presumption was great before allowing state to hold defendant without bond pending Arthur hearing with judge to whom case would be assigned. Finding that proof of guilt is evident and presumption great can be made on the basis of the Probable Cause Affidavit.   Error harmless.   Ysaza v. State, 42 Fla. L. Weekly D1362a (4th DCA 6/14/17)

 

https://edca.4dca.org/DCADocs/2017/0612/170612_DC02_06142017_085317_i.pdf



SENTENCING-MODIFICATION: Court properly denied motion for modification of sentence as untimely where motion was not filed within 60 days of imposition of the sentence. Montesino v. State, 42 Fla. L. Weekly D1359b (3rd DCA 6/14/17)

 

http://www.3dca.flcourts.org/Opinions/3D17-0758.pdf



EVIDENCE-POSSESSION OF COCAINE: Court erred in allowing state to introduce evidence concerning cash found in defendant's bedroom.   Slocum v. State, 42 Fla. L. Weekly D1354b (1st DCA 6/14/17)


https://edca.1dca.org/DCADocs/2015/4353/154353_DC13_06142017_083838_i.pdf

 

LIFE SENTENCE-JUVENILE: Virginia court's finding (that the geriatric release program allowing eligibility for release at the age of 65 satisfies Graham's requirement that juveniles convicted of a non-homicide crime have a meaningful opportunity to receive parole) is not objectively unreasonable. Habeas Corpus review is accordingly inappropriate. Court expresses no opinion on whether the Eighth Amendment is actually violated under these circumstances. Virginia v. LeBlanc, No. 16-1177 (6/12/17)

 

https://www.supremecourt.gov/opinions/16pdf/16-1177_m648.pdf

 

HEARSAY: In dealing in stolen property case, Defendant's testimony that he had been given permission in an email to take scrap metal is not hearsay, because it is relevant to the Defendant's state of mind, not to prove the truth of the matter asserted. North v. State, 42 Fla. L. Weekly D1342a (2nd DCA 6/9/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/June%2009,%202017/2D16-2030.pdf

 

COSTS: Court may not require juvenile to pay transcription costs as a condition of probation.  J.J.P. v. State, 42 Fla. L. Weekly D1340a (2nd DCA 6/9/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/June%2009,%202017/2D15-4869.pdf



COMPETENCY: Where Defendant proceeded to trial after having been found incompetent to stand trial, and the court never entered an order finding him competent, the Court is authorized to enter a nunc pro tunc order finding him competent. However, testimony of psychologists who had not examined him near the time of trial is legally insufficient to support a finding that he was competent at the time of the trial. Frye v. State, 42 Fla. L. Weekly D1339a (2nd DCA 6/9/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/June/June%2009,%202017/2D12-6418rh.pdf

 

COMPETENCY: Defendant who was adjudicated incompetent to proceed and subsequently found to be a danger to himself and others and subject to involuntary commitment in secure residential facility could not be detained in jail for more than 15 days while awaiting admission to residential facility. Hughes v. State, 42 Fla. L. Weekly D1336d (5th DCA 6/9/17)

 

http://5dca.org/Opinions/Opin2017/060517/5D17-687.op.pdf

 

POST CONVICTION RELIEF: Court must allow Defendant 60 days to amend a facially insufficient motion for postconviction relief rather than dismissing the petition. Mackey v. State, 42 Fla. L. Weekly D1336c (5th DCA 6/9/17)

 

http://5dca.org/Opinions/Opin2017/060517/5D17-133.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on motion for postconviction relief based on claim that counsel failed to file a motion in limine to exclude improper comments on Defendant's exercise of right to remain silent.   Williams v. State, 42 Fla. L. Weekly D1336b (5th DCA 6/9/17)


http://5dca.org/Opinions/Opin2017/060517/5D17-15.op.pdf

 


DOUBLE JEOPARDY: Double jeopardy bars separate convictions for fraudulent use of credit card and petit theft. Hogan v. State, 42 Fla. L. Weekly D1336a (5th DCA 6/9/17)

http://5dca.org/Opinions/Opin2017/060517/5D16-1301.op.pdf

 

NEW EVIDENCE: Recanted codefendant testimony is newly discovered evidence. Court may not summarily deny the motion based on finding that the recantation is not credible without an evidentiary hearing hearing.  McKinnon v. State, 42 Fla. L. Weekly D1335f (5th DCA 6/9/17)


http://5dca.org/Opinions/Opin2017/060517/5D16-3167.op.pdf

 

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Court is required to make written order finding that the defendant posed a danger to the community.  Glenn v. State, 42 Fla. L. Weekly D1334a (1st DCA 6/9/17)

 


https://edca.1dca.org/DCADocs/2016/3820/163820_DC08_06092017_083613_i.pdf



CHALLENGE FOR CAUSE: Court did not err in striking for cause a juror who gave equivocal responses as to whether he would impose death penalty.  Okafor v. State, 42 Fla. L. Weekly S639a (FLA   6/8/17)


https://edca.1dca.org/DCADocs/2016/3820/163820_DC08_06092017_083613_i.pdf

EVIDENCE: Evidence of high capacity magazines at residence of co-perpetrator's house in murder case is error, but harmless.  Okafor v. State,  42 Fla. L. Weekly S639a (FLA 6/8/17)



SPEEDY TRIAL: Prisoner in state custody may demand a speedy trial, even though the prisoner is not in the jurisdiction of the court where the charge is pending. Demand for speedy trial was not rendered invalid by virtue of fact that defendant did not affirmatively represent that he was ready for trial and because defendant had conducted no discovery or provided state with a list of witnesses.   Deriso v. State, 42 Fla. L. Weekly D1330a (5th DCA 6/7/17)


http://5dca.org/Opinions/Opin2017/060517/5D17-1381.op.pdf

VENUE: Failure to allege venue in an indictment or information is an error of form, not of substance and such a defect will not render the charging instrument void absent a showing of prejudice to the defendant.  Carnet v. State, 42 Fla. L. Weekly D1329b (3rd DCA 6/7/17)


http://www.3dca.flcourts.org/Opinions/3D17-0703.pdf



DNA TESTING: Motion for DNA testing is appropriate denied where the defendant argued at trial that the shooting was accidental not identity, and other evidence removed any doubt as to the Defendant being the shooter.   Ordonez-Medina v. State, 42 Fla. L. Weekly D1322a (3rd DCA 6/7/17)


http://www.3dca.flcourts.org/Opinions/3D17-0296.pdf

RESENTENCING: Defendant has a right to be present any time there is a re-sentencing upon remand from appeal. Error may be harmless, but is always error. "To be fair, this court (including, regrettably, this author) has made the very same mistake of conflating the analysis and stating, as a principle of law, that a defendant does not have the right to be present at a resentencing which merely involves a ministerial task." Gonzalez v. State, 42 Fla. L. Weekly D1317c (3rd DCA 5/7/17)


http://www.3dca.flcourts.org/Opinions/3D15-2134.rh.pdf

 

DISCOVERY VIOLATION: State committed discovery violation when it disclosed, after Defendant's opening statement that the murder weapon was the victim's own weapon, new evidence establishing the location of all of the Victim's weapons. New discovery which requires a defendant to "back step" statements already made is prejudicial.  Dabbs v. State, 42 Fla. L. Weekly D1310a (4th DCA 6/7/17)


https://edca.4dca.org/DCADocs/2015/1890/151890_DC13_06072017_083644_i.pdf

DOUBLE JEOPARDY: Double jeopardy does not preclude multiple convictions where the Defendant committed battery on the victim (lesser included of sexual battery) on different days.  Evans v. State, 42 Fla. L. Weekly D1308a (4th DCA 6/7/17)


https://edca.4dca.org/DCADocs/2015/1969/151969_DC05_06072017_083854_i.pdf

RESTITUTION: Court erred in ordering $30,000 restitution without an evidentiary basis, and further erred by coursing defendant to agree to restitution as a way of showing remorse.  Parague v. State, 42 Fla. L. Weekly D1302a (4th DCA 6/7/17)


https://edca.4dca.org/DCADocs/2015/2402/152402_DC08_06072017_084127_i.pdf

 

COLLOQUY: In accepting a guilty plea to a probation violation, the trial court must advise the probationer of the violation charges and, among other things, should tell the probationer of the potential consequences of a guilty plea. At a minimum, the colloquy must inform the defendant of the allegations against him, his right to counsel, and the consequences of an admission or the right to a hearing and it shall afford him an opportunity to be heard.  Donaldson v. State, 42 Fla. L. Weekly D1299c (1st DCA 6/6/17)


https://edca.1dca.org/DCADocs/2016/5302/165302_DC13_06062017_084519_i.pdf

 


STATEMENT OF DEFENDANT-MIRANDA: Court erred in denying defendant's motion to suppress statements made during custodial interrogation where detective misadvised defendant that speaking to police without an attorney present would benefit him. "Ok so it can't hurt you to talk with me but it's up to you." A waiver is not voluntarily and knowingly made if police have affected the ability of the suspect to understand the nature of the rights he is waiving.  Pierce v. State, 42 Fla. L. Weekly D1295a (1st DCA 6/6/17)


https://edca.1dca.org/DCADocs/2015/1984/151984_DC13_06062017_080320_i.pdf

 

FORFEITURE: A defendant may not be held jointly and severally liable under forfeiture statute for property that his co-conspirator acquired from the crime but that the defendant himself did not acquire. Forfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime.  Honeycutt v. United States, No. 16-142 (US 6/5/17)


https://www.supremecourt.gov/opinions/16pdf/16-1177_m648.pdf

MANDATORY MINIMUM: Court is required to impose seven-year mandatory minimum where Defendant is found guilty as charged, and the charge alleges more than 200 grams of cocaine. Better practice would have been for the verdict to include a finding of quantity, but in the absence of that, the mandatory minimum stands.   PineiroCaban v. State, 42 Fla. L. Weekly D1290b (5th DCA 6/2/17)


http://5dca.org/Opinions/Opin2017/052917/5D16-2342.op.pdf

 

DISQUALIFICATION: Judge who had previously disqualified himself in underlying case to rule may not rule on motion for post conviction relief.  Adderly v. State, 42 Fla. L. Weekly D1290a (5th DCA 6/2/17)


http://5dca.org/Opinions/Opin2017/052917/5D16-4439.op.pdf

 

MITIGATION SPECIALIST: Denial of a mitigation specialist in a death penalty case is within the discretion of the court. Middleton v. State, 42 Fla. L. Weekly S637a (FLA 6/1/17)

http://www.floridasupremecourt.org/decisions/2017/sc12-2469_REVISED.pdf


DOUBLE JEOPARDY: Separate convictions for traveling to meet minor to engage in sexual conduct, unlawful use of two-way communications device to facilitate commission of felony, and use of computer to facilitate or solicit sexual conduct of child did not violate double jeopardy where multiple convictions were not based on same conduct but, instead, arose from separate criminal episodes and involved distinct acts of solicitation. Extensive discussion.   Lee v. State, 42 Fla. L. Weekly D1273a (1st DCA 6/1/17)


https://edca.1dca.org/DCADocs/2015/0945/150945_DC08_06012017_084821_i.pdf

 

DOWNWARD DEPARTURE: Downward departure based on lack of record and familial support is legally insufficient.  Lee v. State, 42 Fla. L. Weekly D1273a (1st DCA 6/1/17)

 

https://edca.1dca.org/DCADocs/2015/0945/150945_DC08_06012017_084821_i.pdf


QUOTATION: "[T]he decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator."). Bounded by four different ocean currents that form a massive clockwise-circulating sea vortex, the Sargasso Sea is a unique region in the North Atlantic Ocean known for its seaweed and clear blue water, depicted "in literature and media as an area of mystery," most notably in Jules Verne's 20,000 Leagues Under the Sea.   Lee v. State, 42 Fla. L. Weekly D1273a (1st DCA 6/1/17)


https://edca.1dca.org/DCADocs/2015/0945/150945_DC08_06012017_084821_i.pdf


PROBATION REVOCATION: Evidence was sufficient to support finding that defendant committed a new law violation by failure to register as a sex offender by failing to register a cell phone number.   Brown v. State, 42 Fla. L. Weekly D1269b (1st DCA 6/1/17)


https://edca.1dca.org/DCADocs/2016/1559/161559_DC05_06012017_091310_i.pdf

CONSECUTIVE SENTENCES: Resentencing required where trial court believed, based on then-existing precedent, that it was required to impose consecutive mandatory minimum sentences under 10-20-Life statute. Chambers v. State, 42 Fla. L. Weekly D1269a (1st DCA 6/1/17)

https://edca.1dca.org/DCADocs/2015/4006/154006_DC08_06012017_090613_i.pdf

 

LIFE SENTENCE-JUVENILE-NON-HOMICIDE: Sentence of life imprisonment for nonhomicide offense committed by juvenile was unconstitutional, even when juvenile committed homicide in the same criminal episode, where sentence did not clearly provide meaningful opportunity for early release. Hawkins v. State, 42 Fla. L. Weekly D1268a (1st DCA 6/1/17)

https://edca.1dca.org/DCADocs/2016/1120/161120_DC08_06012017_090747_i.pdf

 

POST CONVICTION RELIEF: Court erred in summarily denying claim that counsel was ineffective for advising defendant to reject a plea offer because counsel was certain that a better plea offer would be made, and that defendant would have accepted the plea offer but for counsel's advice. Drakus v. State, 42 Fla. L. Weekly D1267b (1st DCA 6/1/17)

 

https://edca.1dca.org/DCADocs/2016/3398/163398_DC08_06012017_091828_i.pdf

 

MAY  2017


DEATH PENALTY: Court may not prohibit death as a penalty. The indictment does not have to list potential aggravating factors as elements. State v. Lopez, 42 Fla. L. Weekly D1267a (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2017/0425/170425_DC03_05312017_092438_i.pdf


POST CONVICTION RELIEF: By neglecting to request a self-defense instruction that was clearly applicable to the facts and circumstances of the case, trial counsel was constitutionally ineffective. Ineffectiveness is apparent on the face of the record and thus can be corrected on direct appeal. Kruse v. State, 42 Fla. L. Weekly D1265a (4th DCA 5/31/17)

 

https://edca.4dca.org/DCADocs/2016/1422/161422_DC13_05312017_090957_i.pdf

 

 

DOWNWARD DEPARTURE-MENTAL ILLNESS:   Avoidant Personality Disorder is a mental disorder qualifying the Defendant for a departure. It is not the burden of the Defendant to demonstrate that his necessary treatment was so specialized that it could not be provided in the Department of Corrections.   Kovalsky v. State, 42 Fla. L. Weekly D1264a ( 4th DCA 5/31/17)

https://edca.4dca.org/DCADocs/2015/3916/153916_DC13_05312017_084953_i.pdf


DOUBLE JEOPARDY: Separate convictions for possession of firearm by convicted felon and possession of ammunition by convicted felon based on defendant's simultaneous possession of firearm and ammunition violated prohibition against double jeopardy. Issue is not waived where Defendant entered an open plea.   Brown v. State, 42 Fla. L. Weekly D1261a (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2016/3433/163433_DC13_05312017_092018_i.pdf


SEARCH AND SEIZURE: Officer had probable cause to arrest juvenile where officer was aware at time he placed juvenile under arrest that juvenile was on probation, out three hours past his curfew, and did not appear to be within any possible exception to curfew requirement. Officer is not required to investigate and eliminate every possibility that Defendant's violation of curfew was authorized.  State v. C.J., 42 Fla. L. Weekly D1259a (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2016/2574/162574_DC13_05312017_091426_i.pdf


COMPETENCY OF DEFENDANT: Where Court entered order requiring examination of defendant's competency and appointed doctor to examine defendant, Court reversibly erred by proceeding to trial without conducting a competency hearing.   Baker v. State, 42 Fla. L. Weekly D1257a (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2016/0492/160492_DC08_05312017_090820_i.pdf


EVIDENCE: Character evidence for peacefulness may be excluded if witness's testimony is not sufficiently broadly based.  Romans v. State, 42 Fla. L. Weekly D1255a (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2014/4817/144817_DC08_05312017_083626_i.pdf

DOWNWARD DEPARTURE: Court erred by finding that the offense was not unsophisticated based on the severity of the injuries.  Romans v. State, 42 Fla. L. Weekly D1255a (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2014/4817/144817_DC08_05312017_083626_i.pdf

 

ARGUMENT: Prosecutor's comments that Defendant was a three-time convicted felon and to acquit jury would have to believe theofficer and witnesses were all work were ill-advised but not reversible error.   Thompson v. State, 42 Fla. L. Weekly D1253a (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2014/1466/141466_DC05_05312017_083418_i.pdf

 

COMPETENCY OF DEFENDANT: Where defendant had documented disability and trial court found information provided by defense counsel reasonable grounds for ordering a competency evaluation, it was error to proceed to trial where no evaluation report was filed, no hearing was conducted, and no order was entered.  Zieler v. State, 42 Fla. L. Weekly D1242b (4th DCA 5/31/17)


https://edca.4dca.org/DCADocs/2015/4175/154175_DC13_05312017_085621_i.pdf

 

PUBLIC RECORDS: Upon making a public records request related to chain of custody of evidence, Defendant is entitled to more than just an evidence card, or proof that there is no more documentation.  Tracy v. State, 42 Fla. L. Weekly D1239b (1st DCA 5/31/17)


https://edca.1dca.org/DCADocs/2015/5829/155829_DC13_05312017_084018_i.pdf

 

POST CONVICTION RELIEF: Claim that defendant would not have rejected plea offers if counsel had informed him that he qualified for mandatory prison releasee reoffender was not conclusively refuted by record. Defendant is entitled to an evidentiary hearing.   Smith v. State, 42 Fla. L. Weekly D1238d (1st DCA 5/31/17)


https://edca.1dca.org/DCADocs/2016/1691/161691_DC13_05312017_084116_i.pdf

 

POST CONVICTION RELIEF: Claim that defendant involuntarily entered plea out of well-founded fear that counsel would be unprepared for trial was sufficient to require evidentiary hearing or attachment of portions of record conclusively refuting claim.  Hinson v. State, 42 Fla. L. Weekly D1238c (1st DCA 5/31/17)


https://edca.1dca.org/DCADocs/2016/2638/162638_DC08_05312017_084250_i.pdf

 

LIFE SENTENCE-JUVENILE: Defendant who received life sentence with possibility of parole for offenses committed when he was a juvenile is not entitled to resentencing where defendant was afforded meaningful opportunity to obtain release and, in fact, was released on parole, violated parole and was reincarcerated, and has been assigned a presumptive parole release date so that he continues to be considered for release on parole.   Currie v. State, 42 Fla. L. Weekly D1238a (1st DCA 5/31/17)


https://edca.1dca.org/DCADocs/2016/5578/165578_DC05_05312017_084713_i.pdf

 

TRESPASS: Non-student wearing a school uniform and in a non-public area of the school is sufficient to establish trespass.  J.H. v. State, 42 Fla. L. Weekly D1221a (3rd DCA 5/31/17)


http://www.3dca.flcourts.org/Opinions/3D16-2379.pdf

 

LIFE SENTENCE-JUVENILE: Defendant does not waive Miller and Atwell by having entered into a negotiated plea. Reid v. State, 42 Fla. L. Weekly D1216a (3rd DCA 5/31/17)

 

http://www.3dca.flcourts.org/Opinions/3D16-1051.pdf

 

DEPORTATION: In the context of statutory rape offenses that criminalize sexual intercourse based solely on the ages of the participants, the generic federal definition of "sexual abuse of a minor" requires the age of the victim to be less than 16. A conviction under a state statute criminalizing consensual sexual intercourse between a 21-year-old and a 17-year-old does not qualify as sexual abuse of a minor under the INA. To determine whether an alien's conviction qualifies as an aggravated felony , the Court employs a categorical approach by looking to the statute of conviction, rather than to the specific facts underlying the crime.  Esquivel-Quintana v. Sessions, No. 16-54 (US 5/30/17)


https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf


GAG ORDER: Court may prohibit all attorneys from making extrajudicial comments until after jury is sworn in a high publicity trial where said statements pose an imminent and substantial threat to a fair trial.  Dippolito v. State, 42 Fla. L. Weekly D1203a (4th DCA 5/26/17)


https://edca.4dca.org/DCADocs/2017/1145/171145_DC02_05262017_103041_i.pdf

 

INFORMATION-DEFECT: Court may allow State to amend the name of the victim in a BLEO case where there is no prejudice nor confusion as to the identity of the victim.  Taylor v. State, 42 Fla. L. Weekly D1202b (2nd DCA 5/26/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2026,%202017/2D15-3249.pdf


VICTIM'S PRIOR ACTS OF VIOLENCE AND REPUTATION: Court erred in excluding defendant's proffered testimony concerning his knowledge of specific acts of violence by the victim and his knowledge of victim's reputation in the community for violence. In cases where a claim of self-defense is raised, evidence of the victim's reputation is admissible to disclose his or her propensity for violence and the likelihood that the victim was the aggressor, while evidence of prior specific acts of violence by the victim is admissible to reveal the reasonableness of the defendant's apprehension at the time of the incident.  Brown v. State, 42 Fla. L. Weekly D1200a (2nd DCA 5/26/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2026,%202017/2D16-2592.pdf

POST CONVICTION RELIEF: Allegation that trial counsel failed to advise him of elements of the offense and possible defenses is not refuted by the factual basis being recited at the plea hearing.   Parhm v. State, 42 Fla. L. Weekly D1199b (2nd DCA 5/26/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2026,%202017/2D16-3344.pdf


PLEA WITHDRAWAL: Court lacks jurisdiction to deny motion to withdraw plea after the notice of appeal is filed. Court should have dismissed the motion for lack of jurisdiction.   Hawthorne v. State, 42 Fla. L. Weekly D1199a (2nd DCA 5/26/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2026,%202017/2D16-105.pdf

RESTITUTION: When no evidence of what the child could reasonably be expected to earn is presented at the restitution hearing, the trial court cannot make a finding on this issue. M.O. v. State, 42 Fla. L. Weekly D1198b (2nd DCA 5/26/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2026,%202017/2D16-1903.pdf


JUROR INTERVIEWS: Juror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceedings. Comments about the judicial system being unfair to defendants did not amount to discussions about the facts of the case, nor did the comments demonstrate any possible prejudice to Defendant.  Dowd v. State, 42 Fla. L. Weekly D1192a (2nd DCA 5/26/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2026,%202017/2D14-4961.pdf



NEW TRIAL: The standard for a motion for a new trial is whether the verdict is against the weight of the evidence, not whether the evidence is sufficient a motion for judgment of acquittal.  Paul v. State, 42 Fla. L. Weekly D1190d (5th DCA 5/26/17)

http://5dca.org/Opinions/Opin2017/052217/5D17-114.op.pdf

POST CONVICTION RELIEF: Remanded for attachment of record refuting claim.  Guies Johnson v. State, 42 Fla. L. Weekly D1190a (5th DCA 5/26/17)

http://5dca.org/Opinions/Opin2017/052217/5D17-322.op.pdf


SENTENCING-VACATED COUNT-CONCURRENT: When a defendant challenges one count in a postconviction motion and that count is vacated, the trial court is without authority to modify a sentence on an unchallenged count by changing concurrent to consecutive.   Johnson v. State, 42 Fla. L. Weekly D1188b (5th DCA 5/26/17)


http://5dca.org/Opinions/Opin2017/052217/5D17-255.op.pdf


RECLASSIFICATION: Reclassification of aggravated battery conviction from second-degree felony to first-degree felony was improper where jury was instructed on both use-of-deadly-weapon and great-bodily-harm forms of aggravated battery, but returned a general verdict.   Lathan v. State, 42 Fla. L. Weekly D1188a (5th DCA 5/26/17)


http://5dca.org/Opinions/Opin2017/052217/5D16-389.op.pdf


JURORS-PEREMPTORY CHALLENGE: A party does not have a right to "unstrike" a peremptory challenge, but may do so under appropriate circumstances. Withdrawal of peremptory challenge after a party has exhausted its peremptory challenges could be warranted by unusual or extenuating circumstances.   McCray v. State, 42 Fla. L. Weekly S618a (FLA 5/25/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1235.pdf


DEATH PENALTY-NONUNANIMOUS RECOMMENDATION: Hurst does not apply retroactively to a case which became final in 1985.  Oats v. Jones, 42 Fla. L. Weekly S616a (FLA 5/25/17)

http://www.floridasupremecourt.org/decisions/2017/sc17-68.pdf

DEATH PENALTY-INTELLECTUAL DISABILITY: Judge, not jury, can make determination as to whether Defendant is intellectually disabled for purposes of the Death Penalty. Florida's procedure for determining intellectual disability is constitutional.  Oats v. Jones, 42 Fla. L. Weekly S616a (FLA 5/25/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-68.pdf

 

DEATH PENALTY: Hurst does not apply to death sentences which became final before Ring v. Arizona (2002).  Zakrewski v. Jones, 42 Fla. L. Weekly S615a (FLA 5/25/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-729.pdf


SEARCH AND SEIZURE-OPEN VIEW: Officer seizing Defendant's close from the hospital emergency room bay after the Defendant walked into the emergency room is lawful. Under open view doctrine, seizure of bag of defendant's clothing was justified because there was probable cause to associate the bloody clothes with criminal activity where defendant was a self-described victim of a crime. Under the open view doctrine, objects such as weapons or contraband found in a public place can be seized without a warrant.   Purifoy v. State, 42 Fla. L. Weekly D1185a (1st DCA 5/25/17)


https://edca.1dca.org/DCADocs/2014/4007/144007_DC05_05252017_085623_i.pdf


DOUBLE JEOPARDY: Separate convictions for both traveling to meet minor after solicitation and for use of two-way communications device in commission of felony violate double jeopardy.    Dettle v. State, 42 Fla. L. Weekly D1182c (1st DCA 5/25/17)


https://edca.1dca.org/DCADocs/2014/1382/141382_NOND_05252017_084540_i.pdf


POST CONVICTION RELIEF: Court may not deny Motion for Post Conviction relief without attaching record showing no entitlement to relief.  Bolton v. State, 42 Fla. L. Weekly D1182b (1st DCA 5/25/17)


https://edca.1dca.org/DCADocs/2016/4051/164051_DC13_05252017_090037_i.pdf

 

COMPETENCY: Court may not proceed to trial after having appointed an expert to evaluate defendant for competency to proceed without holding competency hearing or entering written order of competency.  Williams v. State, 42 Fla. L. Weekly D1182a (1st DCA 5/25/17)


https://edca.1dca.org/DCADocs/2016/1812/161812_DC13_05252017_085850_i.pdf

 

SENTENCING-HABITUAL OFFENDER: Incorrect calculation in sentencing guidelines scoresheet is irrelevant when defendant was sentenced as a habitual offender.  Pitts v. State, 42 Fla. L. Weekly D1175c (3rd DCA 5/24/17)


http://www.3dca.flcourts.org/Opinions/3D16-0327.pdf

 

EVIDENCE-WILLIAMS RULE: Evidence of prior incidents of Defendant pushing and confronting victim are admissible to show Defendant's motive and intent.  Gilchrease v. State, 42 Fla. L. Weekly D1174a (3rd DCA 5/24/17)


http://www.3dca.flcourts.org/Opinions/3D16-1027.pdf


DNA TESTING:  Defendant's motion for postconviction DNA testing was legally insufficient because he failed to show a reasonable probability existed that the test results would exonerate him.  Cain v. State, 42 Fla. L. Weekly D1169c (4th DCA 5/24/17)


https://edca.4dca.org/DCADocs/2016/2997/162997_DC05_05242017_092845_i.pdf


STATEMENTS OF DEFENDANT: Motion to suppress should have been granted after Defendant made an unequivocal request for an attorney ("I need to see a lawyer). Once the right to counsel is invoked, police questioning is required to cease. Rhodes v. State, 42 Fla. L. Weekly D1151a (1st DCA 5/19/17)

https://edca.1dca.org/DCADocs/2015/5852/155852_DC13_05192017_090428_i.pdf

 

JUVENILE-SENTENCING: Where PDR says that a non-residential commitment is OK if court finds protection of the public best served thereby, commitment is not a deviation from the recommendation.  State v. I.D., 42 Fla. L. Weekly D1148a (1st DCA 5/19/17)


https://edca.1dca.org/DCADocs/2016/3630/163630_DC05_05192017_092249_i.pdf



DWLS: Defendant who is a habitual traffic offender cannot be prosecuted under §322.34(2)(c) for DWLS because habitual traffic violators are excluded by the plain language of the statute. Also, people who have never had a license cannot be convicted of DLWS.   Finney v. State, 42 Fla. L. Weekly D1147b (1st DCA 5/19/17)


https://edca.1dca.org/DCADocs/2017/0356/170356_DC03_05192017_092705_i.pdf



POST-CONVICTION RELIEF: A claim that counsel failed to investigate a defendant's mental health and failed to seek a competency determination is cognizable in a rule 3.850 motion.  Turem v. State, 42 Fla. L. Weekly D1137a (5th DCA 5/19/17)


http://5dca.org/Opinions/Opin2017/051517/5D17-552.op.pdf

 

JURORS-CHALLENGE FOR CAUSE: Court properly denied challenge for cause when juror ultimately indicated she could be fair and impartial.  Caylor v. State, 42 Fla. L. Weekly S608a (FLA 5/18/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1823.pdf

 

DEATH PENALTY: Defendant who receives non-unanimous recommendation of death is entitled to re-sentencing pursuant to Hurst.  Caylor v. State, 42 Fla. L. Weekly S608a (FLA  5/18/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-1823.pdf

 

AMENDMENTS TO RULES: Clarification of rules for gifts to Judges. In Re: Amendments to the Code of Judicial Conduct, 42 Fla. L. Weekly S605b (FLA 5/18/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-680.pdf

 

POST CONVICTION DNA TESTING: Defendant is not entitled to post conviction DNA testing when the results would not overcome the overwhelming evidence of guilt. Bates v. State, 42 Fla. L. Weekly S604a (FLA 5/18/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc16-1178.pdf

 

DANGEROUS SEXUAL FELONY OFFENDER: Defendant qualifies as a Dangerous Sexual Felony Offender (with a 25 year minimum mandatory) if he has a prior conviction under a similar statute. The prior record need not be for an offense with identical elements.  Acevedo v. State, 42 Fla. L. Weekly S601a (FLA 5/18/17)



DEATH PENALTY: Defendant is entitled to a new sentencing hearing where the death recommendation is 10-2).  Hertz v. State, 42 Fla. L. Weekly S599a (FLA 5/18/17)

 

CREDIT FOR TIME SERVED: Credit may be waived when waiver is specific, voluntary, and clear from face of record. Wolter v. State, 42 Fla. L. Weekly D1135a (4th DCA 5/17/17)

 

https://edca.4dca.org/DCADocs/2016/4375/164375_DC05_05172017_091429_i.pdf



DOWNWARD DEPARTURE: Downward departure sentence on basis that the victim of grand theft, who had dementia, was a willing participant in the theft of his own money. "There is no amount of willing participation which is legally insignificant for purposes of a theft offense, yet sufficient enough for downward departure."  State v. Imber, 42 Fla. L. Weekly D1131b (2nd DCA 5/17/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2017,%202017/2D16-2113.pdf

 

MANDATORY MINIMUM-CONSECUTIVE: Defendant entitled to resentencing where trial court ordered consecutive mandatory minimum sentences believing it had no discretion under 10-20-life to do otherwise.  Martins v. State, 42 Fla. L. Weekly D1127a (2nd DCA 5/17/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2017,%202017/2D16-741.pdf


CONTEMPT: Defendant's failure to obey court order to submit to a drug test and then return to courtroom should have been for indirect criminal contempt, rather than direct criminal contempt.   White v. Junior, 42 Fla. L. Weekly D1123a (3rd DCA 5/17/17)


http://www.3dca.flcourts.org/Opinions/3D17-0963.pdf

 

DOUBLE JEOPARDY-CHILD ABUSE: A continuous series of acts constituting malicious punishment with no temporal or spatial break can be only one crime of child abuse.  Weaver v. State, 42 Fla. L. Weekly D1121c (3rd DCA 5/17/17)


http://www.3dca.flcourts.org/Opinions/3D16-0537.pdf

 

GRAND THEFT-JUDGMENT OF ACQUITTAL: Where the only evidence of grand theft is the victim saying he estimated the value as "like 300", Defendant is entitled to JOA and for the charge to be lessened to petit theft.  Sirmons v. State, 42 Fla. L. Weekly D1120a (4th DCA 5/17/17)


https://edca.4dca.org/DCADocs/2015/1538/151538_DC13_05172017_085646_i.pdf



DOUBLE JEOPARDY: Double jeopardy does not bar separate convictions for aggravated battery and manslaughter of the same victim, where one of the counts was codefendant punching the victim (Defendant guilty under a principal theory) and the other was the Defendant kicking the victim to death. Mercer v. State, 42 Fla. L. Weekly D1112a (1st DCA 5/16/17)

https://edca.1dca.org/DCADocs/2015/5147/155147_DC05_05162017_084711_i.pdf

 

CONTEMPT: A stream of profanity is sufficient to sustain a finding of contempt.  Swain v. State, 42 Fla. L. Weekly D1118a (4th DCA 5/17/17)


https://edca.4dca.org/DCADocs/2016/0467/160467_DC13_05172017_090856_i.pdf

 

CONTEMPT: A mocking comment to the judge asking if he "felt better" after sentencing the Defendant for contempt should not be considered a separate act of contempt, but part of the first.   Swain v. State, 42 Fla. L. Weekly D1118a (4th DCA 5/17/17)


https://edca.4dca.org/DCADocs/2016/0467/160467_DC13_05172017_090856_i.pdf

CONTEMPT: Court failed to allow the Defendant an opportunity to present evidence in his defense by only asking, "why shouldn't I hold you in direct contempt right now?" Swain v. State, 42 Fla. L. Weekly D1118a (4th DCA 5/17/17)

 

https://edca.4dca.org/DCADocs/2016/0467/160467_DC13_05172017_090856_i.pdf



RESTITUTION-JURISDICTION: Court lacks jurisdiction to hold restitution hearing after a notice of appeal has been filed.   Kahkonen v. State, 42 Fla. L. Weekly D1109d (1st DCA 5/16/17)

https://edca.1dca.org/DCADocs/2016/3883/163883_DC08_05162017_085153_i.pdf

HEGGS-HABITUAL VIOLENT FELONY OFFENDER: Defendant cannot be sentenced as a Habitual Violent Felony Offender for an offense committed during the Heggs window (October 1, 1995, through May 24, 1997).  Bell v. State, 42 Fla. L. Weekly D1109c (1st DCA 5/16/17)


https://edca.1dca.org/DCADocs/2016/3324/163324_DC08_05162017_085020_i.pdf

 

MURDER-PREMEDITATION: Shooting victim four times quickly is insufficient evidence of premeditation to support first degree murder conviction. Ineffective assistance in failing to raise lack of premeditation in motion for JOA is apparent from the face of the record.   Barnes v. State, 42 Fla. L. Weekly D1106a (5th DCA 5/12/17)


http://5dca.org/Opinions/Opin2017/050817/5D15-2798.reh%20op.pdf


POSSESSION OF FIREARM BY FELON-COLLATERAL ESTOPPEL: State is not prohibited from proceeding on a severed possession of firearm by felon count where jury found that de will Defendant did not carry a firearm but did not necessarily find that he did not possess one.  State v. Joy, 42 Fla. L. Weekly D1105b (5th DCA 5/12/17)

 

http://5dca.org/Opinions/Opin2017/050817/5D16-1283.op.pdf

 

POST CONVICTION RELIEF: Order required the requiring the Defendant to write a legible motion is not the same as an order striking the motion for postconviction relief.  Dunbar v. State, 42 Fla. L. Weekly D1105a (5th DCA 5/12/17)

http://5dca.org/Opinions/Opin2017/050817/5D16-4018.op.pdf

 

POST CONVICTION RELIEF: Failure to request a second competency hearing after the defendant relapsed into incompetency is ineffective assistance of counsel.  Ramon v. State, 42 Fla. L. Weekly D1104a (5th DCA 5/12/17)


http://5dca.org/Opinions/Opin2017/050817/5D16-3781.op.pdf

 

SENTENCING-JUVENILE: Ten-year minimum mandatory for juvenile convicted of robbery with a firearm is lawful and not a violation of Cruel and Unusual Punishment.  Young v. State, 42 Fla. L. Weekly D1103d (5th DCA 5/12/17)


http://5dca.org/Opinions/Opin2017/050817/5D16-1610.op.pdf

 

SEARCH AND SEIZURE: Shining a flashlight in a car is not an unconstitutional search and seizure.  State v. Holt, 42 Fla. L. Weekly D1103b (5th DCA 5/12/17)


http://5dca.org/Opinions/Opin2017/050817/5D16-651.op.pdf


ESCAPE: Failure to return to a Work Release Program is escape.  State v. Vance, 42 Fla. L. Weekly D1102c (5th DCA 5/12/17)


http://5dca.org/Opinions/Opin2017/050817/5D16-503.op.pdf

 

ATTORNEY-WITHDRAWAL OF PLEA: Defendant is entitled to a conflict-free attorney on motion to withdraw plea.  Fisher v. State, 42 Fla. L. Weekly D1102a (5th DCA 5/12/17)

 


http://5dca.org/Opinions/Opin2017/050817/5D15-4306.op.pdf

 

PRISON RELEASEE REOFFENDER: Defendant who was sentenced to prison but released from jail with credit for time served is not eligible for PRR. Conflict certified. Lewars v. State, 42 Fla. L. Weekly D1098b (2nd DCA 5/12/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2012,%202017/2D15-3471.pdf

 

QUOTATION: "We decline to adopt the reasoning of . . .Louzon because. . .they seem to have skipped the "plain language" step of the statutory-construction analysis. . . .[T]he other district courts impermissibly expanded the plain meaning of the words in the statute. . .by impermissibly injecting words. . .that simply are not there."  Lewars v. State, 42 Fla. L. Weekly D1098b (2nd DCA 5/12/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2012,%202017/2D15-3471.pdf

 

QUOTATION: Under the expressio unius canon and the interchangeable inclusio unius canon,when a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded. Lewars v. State, 42 Fla. L. Weekly D1098b (2nd DCA 5/12/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2012,%202017/2D15-3471.pdf



DOUBLE JEOPARDY: Separate convictions for felony battery and battery on licensed security officer violated prohibition against double jeopardy.  Marsh v. State, 42 Fla. L. Weekly D1096c (2nd DCA 5/12/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2012,%202017/2D15-3566.pdf

 

BATTERY OF LICENSE SECURITY OFFICER: Defendant is improperly convicted of battery on a license security officer who was not wearing a uniform.  Marsh v. State, 42 Fla. L. Weekly D1096c (2nd DCA 5/12/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2012,%202017/2D15-3566.pdf

 


CIRCUMSTANTIAL EVIDENCE-MURDER: Defendant is convicted of killing mother and child, where he was involved in a contested paternity case. Motive and opportunity is insufficient to sustain murder conviction. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Wright v. State, 42 Fla. L. Weekly S587a (FLA 5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-2410.pdf

 


JURORS-CHALLENGE FOR CAUSE: In order to preserve and objection to Court's failure to grant a challenge for cause, one must object and re-object before accepting the panel. "[I]t is the objection/re-objection process . . . that is the decisive element in a juror-objection-preservation analysis,"   Cozzie v. State, 42 Fla. L. Weekly S579a (FLA 5/11/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc13-2393.pdf

 


COLLATERAL CRIME EVIDENCE: Evidence that Defendant attacked another girl at the same location a week before is he murdered the Victim is permissible Williams Rule evidence.   Cozzie v. State, 42 Fla. L. Weekly S579a (FLA 5/11/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc13-2393.pdf

 

SEARCH AND SEIZURE: Anonymous tip of a suspicious person in a vehicle who had run out of the woods covered in blood, holding a knife, changing his clothes and throwing something in the woods justifies a stop. Pasha v. State, 42 Fla. L. Weekly S569a (5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc13-1551.pdf

 

HEARSAY-EXCITED UTTERANCE: 911 call that caller saw Defendant running around with a knife while covered in blood is admissible as an excited utterance, notwithstanding that the declarant testified she was not excited at the time.  Pasha v. State, 42 Fla. L. Weekly S569a (5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc13-1551.pdf


IMPEACHMENT: Impeachment by prior testimony is improper where the witness's attention is not drawn to any prior inconsistent statement.    Pasha v. State, 42 Fla. L. Weekly S569a (5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc13-1551.pdf


EVIDENCE: Evidence of Defendant's prior possession of a firearm is permissible to explain why witness thought he had a gun even though murder was committed without a firearm. Davis v. State, 42 Fla. L. Weekly S558a (FLA 5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1794.pdf


ARGUMENT: No error in allowing the State to show a powerpoint slide including a witness crying on the stand during the trial.  Davis v. State, 42 Fla. L. Weekly S558a (FLA 5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1794.pdf


BAKER ACT: Judge may not preside over Baker Act hearing by video.  John Doe v. State, 42 Fla. L. Weekly S553b (FLA 5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1852.pdf


POST CONVICTION RELIEF: Failure to disclose letter accompanying extradition request to Ecuador that the Defendant would not be executed is not exculpatory evidence. Serrano v. State, 42 Fla. L. Weekly S545a (FLA 5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-258.pdf

 

ARGUMENT: Counsel was not ineffective for failing to object to State calling the Defendant "diabolical" and a "liar." Serrano v. State, 42 Fla. L. Weekly S545a (FLA 5/11/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-258.pdf

 

POLYGRAPH: Polgraph evidence is inadmissible. Serrano v. State, 42 Fla. L. Weekly S545a (FLA 5/11/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-258.pdf

 

DEATH PENALTY: Defendant is entitled to resentencing under Hurst where the death recommendation was 9-3. Serrano v. State, 42 Fla. L. Weekly S545a (FLA 5/11/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-258.pdf


RETURN OF PROPERTY: Motion for return of property filed more than 60 days after appellate mandate is untimely. Montesime v. State, 42 Fla. L. Weekly D1094d (3rd DCA 5/10/17)

http://www.3dca.flcourts.org/Opinions/3D17-0166.pdf

 

PRO SE FILING: Court may not bar Defendant from pro se filings in all cases, just in those in which he has abused process. Quintero v. State, 42 Fla. L. Weekly D1094c (3rd DCA 5/10/17)


http://www.3dca.flcourts.org/Opinions/3D16-2861.pdf

 


INDEPENDENT ACT: Defendant properly convicted of felony murder, attempted second degree murder, aggravated battery with deadly weapon, and burglary when he knowingly accompanied two others to victim's home to fight them, resulting in one victim killed by bat and Defendant beating another unconscious.  Padron v. State, 42 Fla. L. Weekly D1090a (3rd DCA 5/10/17)


http://www.3dca.flcourts.org/Opinions/3D15-0830.pdf

 

 

LESSER-COMPOUND OFFENSE: If the evidence conclusively establishes that the use of force was contemporaneous with the theft, and that use of force and the act of taking constitute a continuous series of acts or events, a defendant is not entitled to the compound offense instruction, and the jury is not permitted to consider returning verdicts of guilty for the two component offenses of theft and assault. Conflict certified.  Gordon v. State, 42 Fla. L. Weekly D1087a (3rd DCA 5/10/17)

 

http://www.3dca.flcourts.org/Opinions/3D16-0626.pdf

 

APPEAL-PRESERVATION: Defendant's objection to testimony that rape victim sought and got psychological treatment afterwards was based on relevance, not prejudice, and so was not preserved for appeal.  Knight v. State, 42 Fla. L. Weekly D1085a (3rd DCA 5/10/17)


http://www.3dca.flcourts.org/Opinions/3D16-0627.pdf

 

DOUBLE JEOPARDY: Convictions for grand theft and organized fraud violate the prohibition against double jeopardy. Double jeopardy may be waived if there is a plea agreement.  Gomez v. State, 42 Fla. L. Weekly D1083a (3rd DCA 5/10/17)


http://www.3dca.flcourts.org/Opinions/3D16-0372.pdf

 


RECKLESS DRIVING: Driving onto Smith v. State the sidewalk and hitting a pedestrian is not reckless driving.  Smith v. State, 42 Fla. L. Weekly D1067a (2nd DCA 5/10/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2010,%202017/2D16-1013.pdf

 

JUROR-CHALLENGE FOR CAUSE: Challenge for cause of jurors who said they would give greater credence to law enforcement officers should be granted. Harmless error analysis does not apply to challenges for cause.  Rodriguez v. State, 42 Fla. L. Weekly D1065a (2nd DCA 5/10/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2010,%202017/2D15-2961.pdf


VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Any error in trial court's conducting a "danger hearing" at which she found defendant to be "a violent offender of special concern," although defendant did not meet statutory criteria that trigger necessity for such a hearing, was not preserved for appeal where counsel did not object.  Simmons v. State, 42 Fla. L. Weekly D1063a (4th DCA 5/10/17)


https://edca.4dca.org/DCADocs/2016/1040/161040_DC05_05102017_090424_i.pdf

 

CONFLICT OF INTEREST: Fact that defense counsel was originally prosecutor on the same case (filed information, made a plea offer, appeared at two hearings) does not require reversal, per se. Counsel's acts may have violated Florida Bar Rule 4-1.11, which prohibits switching hates without consent, but rule seems to be designed to protect government, not the client.  Flaherty v. State, 42 Fla. L. Weekly D1059a (4th DCA 5/10/17)


https://edca.4dca.org/DCADocs/2015/4777/154777_DC05_05102017_084811_i.pdf

 

SPEEDY TRIAL: Defendant's motion for continuance on misdemeanor charge, which was filed after expiration of both misdemeanor and felony speedy trial periods, did not waive right to speedy trial on felony charge which was based on same conduct for which defendant was initially arrested and which state filed after it had nolle prossed the misdemeanor charge and after felony speedy trial period had expired. State is not entitled to recapture.  State v. Telucian, 42 Fla. L. Weekly D1058a (4th DCA 5/10/17)


https://edca.4dca.org/DCADocs/2016/0277/160277_DC05_05102017_085849_i.pdf

 

PRETRIAL DETENTION: Although it was error for first appearance judge not to determine whether defendant was entitled to bond, error was harmlesswhere defendant was charged with offense punishable by life and proof of guilt was evident and presumption great. Ysaza v. State, 42 Fla. L. Weekly D1057a (4th DCA 5/10/17)


https://edca.4dca.org/DCADocs/2017/0612/170612_DC02_05102017_090855_i.pdf

 

RESTITUTION-JURISDICTION: Court lacks jurisdiction to enter order for restitution after notice of appeal had been filed. Hime v. State, 42 Fla. L. Weekly D1047b (1st DCA 5/5/17)


https://edca.1dca.org/DCADocs/2015/3866/153866_DC08_05052017_090130_i.pdf

 

MURDER-PREMEDITATION: Defendant following this ex-wife through a restaurant after she insulted him, shooting her once, pausing, then five more times, is sufficient premeditation to support a finding of first degree murder. "Premeditation does not take much time at all." Veney v. State, 42 Fla. L. Weekly D1047a (1st DCA 5/5/17)


https://edca.1dca.org/DCADocs/2016/1294/161294_DC05_05052017_090348_i.pdf

 

UPWARD DEPARTURE: Court cannot base upward departure on Defendant under 22 points for fleeing and eluding on basis of charge for which the Defendant was acquitted (aggravated battery on LEO). There must be a nexus showing how a non-state prison sanction, such as jail, could present a danger to the community.  Johnson v. State, 42 Fla. L. Weekly D1046a (1st DCA 5/5/17)


https://edca.1dca.org/DCADocs/2016/1577/161577_DC13_05052017_090604_i.pdf



UNLAWFUL SENTENCE: Life sentence for attempted sexual battery exceeds the statutory maximum.  Gay v. State, 42 Fla. L. Weekly D1044e (1st DCA 5/5/17)


https://edca.1dca.org/DCADocs/2016/2152/162152_DC13_05052017_090755_i.pdf


PROBATION-TOLLING: Absconding from supervision is an independent basis for tolling probation. Tucker v. State, 42 Fla. L. Weekly D1044d (1st DCA 5/5/17)


https://edca.1dca.org/DCADocs/2016/5058/165058_DC05_05052017_090933_i.pdf

 

CONSOLIDATION: Court erred by denying State's motion to consolidate felony murder and child abuse with aggravated manslaughter of a child where the same child's death is at issue, and the State would be unable to offer alternative theories (culpable negligence vs. child abuse).  State v. Milbry, 42 Fla. L. Weekly D1040b (5th DCA 5/5/17)


http://5dca.org/Opinions/Opin2017/050117/5D16-3360.op.pdf


SELF-REPRESENTATION: Faretta inquiry is inadequate where Court did not make Defendant aware of the disadvantages of self-representation or possible penalties. Slinger v. State, 42 Fla. L. Weekly D1037a (5th DCA 5/5/17)


http://5dca.org/Opinions/Opin2017/050117/5D16-874.op.pdf


SEX OFFENDER PROBATION: Court may not order sex offender probation without clearly delineating the conditions that were applicable to defendant.  Nero v. State, 42 Fla. L. Weekly D1036c (5th DCA 5/5/17)


http://5dca.org/Opinions/Opin2017/050117/5D16-4038.op.pdf

POST CONVICTION RELIEF-JURISDICTION: Where appellate court reversed trial court's initial denial of rule 3.850 motion because court did not rule on a second claim, trial court was without jurisdiction to enter order denying the second claim prior to appellate court's issuance of mandate. Dingey v. State, 42 Fla. L. Weekly D1036b (5th DCA 5/5/17)

 

http://5dca.org/Opinions/Opin2017/050117/5D17-669.op.pdf

 

POST CONVICTION RELIEF-APPEAL: Appeal of order denying second motion to correct illegal sentence was timely because rendition of that order was tolled by motion for rehearing, but not timely for the first motion for which he did not move for rehearing. Coleman v. State, 42 Fla. L. Weekly D1036a (2nd DCA 5/5/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2005,%202017/2D16-3084.pdf

 

POST CONVICTION RELIEF: Counsel was not ineffective for stipulating to expert's finding that Defendant was competent to stand trial.  Hampton v. State, 42 Fla. L. Weekly S536a (FLA 5/4/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1360.pdf


POST CONVICTION RELIEF: Counsel was ineffective for failing to redact reference to an outstanding warrant from the recording of his interrogation, but no showing of prejudice. Hampton v. State, 42 Fla. L. Weekly S536a (FLA 5/4/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-1360.pdf

 

POST CONVICTION RELIEF: Counsel was not ineffective for failing to redact numerous statements by interrogating officer, since the statements were needed to explain to the jury why Hampton confessed and why his statements to the police were wildly inconsistent.   Hampton v. State, 42 Fla. L. Weekly S536a (FLA 5/4/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1360.pdf

 

DEATH PENALTY: Where the jury did not make the requisite factual findings, nor unanimously vote to impose a sentence of death (9-3), Hurst requires re-sentencing.  Hampton v. State, 42 Fla. L. Weekly S536a (FLA 5/4/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1360.pdf



DEATH PENALTY: Petitioner whose sentence became final before Ring v. Arizona was decided is not entitled relief on claim that death penalty based on judicial override was unconstitutional.  Marshall v. State, 42 Fla. L. Weekly S533a (FLA 5/4/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-779.pdf

 

SUBSTITUTION OF COUNSEL: Court erred in striking defendant's motion to substitute counsel for Capital Collateral Regional Counsel on basis that CCRC has not filed a motion to withdraw. Rules of Judicial Administration authorize the termination of an attorney's appearance through substitution of counsel.  Merck v. State, 42 Fla. L. Weekly S528a (FLA 5/4/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-899.pdf

 

DEATH PENALTY: State cannot establish that Hurst error in defendant's case was harmless beyond reasonable doubt where jury did not make requisite factual findings and did not unanimously recommend sentence of death.  Card v. State, 42 Fla. L. Weekly S527b (FLA 5/4/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-453.pdf

 

AFTERTHOUGHT DEFENSE: Court erred by denying request for a special jury instruction on the afterthought defense to robbery.  Calafell v. State, 42 Fla. L. Weekly D1032a (3rd DCA 5/3/17)


http://www.3dca.flcourts.org/Opinions/3D15-0852.pdf

 

FELONY MURDER: Murder conviction is upheld where conviction for the underlying felony of robbery is reversed, but jury entered a general verdict and evidence supported premeditated murder.  Calafell v. State, 42 Fla. L. Weekly D1032a (3rd DCA 5/3/17)


http://www.3dca.flcourts.org/Opinions/3D15-0852.pdf


JUVENILES-PLEA: Court commits fundamental error by not making proper inquiry into juvenile's waiver of counsel.  T.R. v. State, 42 Fla. L. Weekly D1026a (2nd DCA 5/3/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2003,%202017/2D16-2523.pdf

 

POST CONVICTION RELIEF: Claim of ineffective assistance of counsel that counsel should have challenged the convictions of armed burglary and aggravated assault as fatally inconsistent where jury found that the defendant did not possess a firearm.  Smith v. State, 42 Fla. L. Weekly D1025a (2nd DCA 5/3/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/May/May%2003,%202017/2D16-1197.pdf


SPEEDY TRIAL: Where state charged defendant within rule 3.191 speedy trial time period but failed to notify him of charges until after its expiration, state is nonetheless entitled to recapture period. Prior precedents receded from.  State v. Born-Suniaga, 42 Fla. L. Weekly D1016a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2015/4853/154853_DC13_05032017_085706_i.pdf


JUDGE-DISQUALIFICATION: Declining to continue case to accommodate defense counsels vacation is insufficient basis for disqualification. "Allowing the witnesses to testify the following week, as opposed to delaying the trial for weeks or months into the future, might be inconvenient to defense counsel, but is not inconsiderate to the defendant whose liberty is at stake."  Fetzner v. State, 42 Fla. L. Weekly D1012a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2015/2572/152572_DC05_05032017_084909_i.pdf

 

JUDGE-DISQUALIFICATION: Allegations that judge scolded counsel, without context, is insufficient to warrant disqualification. Judge's expression of dissatisfaction with counsel or a client's behavior alone does not give rise to a reasonable belief that the trial judge is biased. Fetzner v. State, 42 Fla. L. Weekly D1012a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2015/2572/152572_DC05_05032017_084909_i.pdf

 

MISTRIAL: Mistrial is not warranted where officer improperly said that a nontestifying witness gave a description of the Defendant, but the description was not inculpatory.  Fetzner v. State, 42 Fla. L. Weekly D1012a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2015/2572/152572_DC05_05032017_084909_i.pdf


CONCEALMENT OF CHILD: Statute prohibiting concealment of child applies to concealing the child from the person entitled to custody as well as from the court.  Flynn v. State, 42 Fla. L. Weekly D1010a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2015/3792/153792_DC05_05032017_085100_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that his attorney was ineffective for failing to move to disqualify judge for communicating with the victim's family and other grounds.   Bishop v. State, 42 Fla. L. Weekly D1009b (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2016/2807/162807_DC08_05032017_093035_i.pdf


DEALING IN STOLEN PROPERTY: Court erred by instructing that possession of stolen gives rise to an inference that Defendant knew it was stolen when it is undisputed that the property had been lent to the Defendant. Horvath v. State, 42 Fla. L. Weekly D1007a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2016/1719/161719_DC08_05032017_092042_i.pdf

 

PLEA WITHDRAWAL: Defendant must be allowed to withdraw his plea to possession of firearm by a felon where the predicate felony was reversed five days after the plea was entered. Also must be allowed to withdraw his plea to other counts since it was all part of the same plea agreement.  Tyler v. State, 42 Fla. L. Weekly D1006b (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2016/0766/160766_DC13_05032017_091925_i.pdf

 

STATEMENTS OF DEFENDANT: State may impeach Defendant by inconsistent post-arrest, pre-Miranda voluntary statement.  Roundtree v. State, 42 Fla. L. Weekly D1005a (4th DCA 5/23/17)


https://edca.4dca.org/DCADocs/2015/2105/152105_DC05_05032017_084714_i.pdf


PROBATION-REVOCATION: Probation was not tolled when Defendant is charged with absconding. Court erred by dismissing the affidavit.  State v. Capeletti, 42 Fla. L. Weekly D1003a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2016/3015/163015_DC13_05032017_093350_i.pdf

 

SEXUAL BATTERY: "Union" in the sexual battery statute means "contact."   Tirado v. State, 42 Fla. L. Weekly D1002a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2015/0802/150802_DC05_05032017_084503_i.pdf


HEARSAY-BUSINESS RECORDS: List of items stolen made by store manager in preparation for trial is not admissible as a business record.  Coates v. State, 42 Fla. L. Weekly D1001a (4th DCA 5/3/17)


https://edca.4dca.org/DCADocs/2015/4218/154218_DC13_05032017_085418_i.pdf

 

HEARSAY: Portion of police-recorded conversations between victim and defendant during which the victim asked defendant why he continued forcing himself on her when his friend told defendant "not to do it" was not inadmissible hearsay where statement of friend relayed by victim was not introduced for truth of the matter but for the reaction of defendant/listener. Hwang v. State, 42 Fla. L. Weekly D1000a (4th DCA 5/3/17)

 

https://edca.4dca.org/DCADocs/2014/3288/143288_DC05_05032017_083945_i.pdf


COMPETENCY OF DEFENDANT: Court may not proceed to change of plea and sentencing where motion for competency evaluation remains unresolved. Pamphile v. State, 42 Fla. L. Weekly D993c (1st DCA 5/1/17)

https://edca.1dca.org/DCADocs/2016/3387/163387_DA16_05022017_100011_i.pdf



CONSECUTIVE SENTENCES-10/20/LIFE: Resentencing is required when Court mistakenly believed it was required to impose consecutive sentences for first degree murder, armed robbery, and possession of a firearm by a felon. Conflict certified.  Wilson v. State, 42 Fla. L. Weekly D993b (1st DCA 5/2/17)


https://edca.1dca.org/DCADocs/2015/2818/152818_DC08_05022017_094609_i.pdf

 


INDIGENT DEFENDANT: Indigent defendant represented by private counsel pro bono is not entitled to file motions for costs for experrt, mitigation specialists, and investigators ex parte and under seal, with service to the Justice Administrative Commission and notice to the state attorney's office, and to have any hearing on such motions ex parte, with only the defendant and the Commission present. Question certified.   Andrews v. State, 42 Fla. L. Weekly D990f (1st DCA 5/2/17)


https://edca.1dca.org/DCADocs/2016/0733/160733_DC02_05022017_095814_i.pdf

 


APRIL 2017

 

APPEALS-MANDATE: When an appellate court issues a mandate, compliance with the mandate by the circuit court is purely a ministerial act. The circuit court does not have the authority to modify, nullify or evade that mandate The trial court does not have authority to pick for itself which count to dismiss. Manata v. State, 42 Fla. L. Weekly D989c (1st DCA 4/28/17)

https://edca.1dca.org/DCADocs/2015/1925/151925_DC08_04282017_094645_i.pdf

 

PROBATION-SPECIAL CONDITION: Special condition of sex offender probation which is not orally pronounced must be stricken.  Fosmire v. State, 42 Fla. L. Weekly D989b (1st DCA

4/28/17)https://edca.1dca.org/DCADocs/2015/4953/154953_DC08_04282017_102606_i.pdfSENTENCING-

 

JUVENILE-LIFE: Court may impose life imprisonment for first-degree murder on a juvenile where Court conducted an individualized sentencing considered the statutory factors and provided for review hearing after 25 years.  Hawkins v. State, 42 Fla. L. Weekly D989a (1st DCA 4/28/17)


https://edca.1dca.org/DCADocs/2016/1120/161120_DC08_04282017_102940_i.pdfSENTENCING-

 

JUVENILE-LIFE: Life sentence for juvenile for nonhomicide (armed robbery) is unconstitutional notwithstanding that there was a contemporaneous first-degree murder conviction. Hawkins v. State, 42 Fla. L. Weekly D989a (1st DCA 4/28/17)

https://edca.1dca.org/DCADocs/2016/1120/161120_DC08_04282017_102940_i.pdfPOST

 

CONVICTION RELIEF: Defendant should be for afforded a hearing on her claim that counsel was ineffective for failing to investigate and challenge evidence andfailing to inform her of potential defenses prior to her guilty plea.   Fry v. State, 42 Fla. L. Weekly D987b (1st DCA 4/28/17)

 

https://edca.1dca.org/DCADocs/2016/3832/163832_DC08_04282017_104546_i.pdfPOST

 

CONVICTION RELIEF: Defendant is entitled to hearing on his claim that his no contest plea was not a knowing and voluntary waiver of his rights.   Moorer v. State, 43 D987a (1st DCA 4/28/17)

 

https://edca.1dca.org/DCADocs/2015/3662/153662_DC13_04282017_102352_i.pdf

 

MANDATORY MINIMUM-CONSECUTIVE: Resentencing is required where the Court wrongly believed that it had no discretion to impose concurrent mandatory minimum sentences for offenses involving a firearm.  Butner v. State, 42 Fla. L. Weekly D979b (2nd DCA 4/28/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/April/April%2028,%202017/2D14-3868.pdf

 


DEPORTATION: Defendant is allowed to withdraw guilty plea where attorney failed to advise him of automatic deportation (aggravated assault with deadly weapon), and court did not warn him. Even when defendants have received the warning required by rule 3.172(c)(8) from the court during their plea colloquy, they may still show prejudice if they were subject to automatic deportation under the federal immigration statutes. Blackwood v. State, 42 Fla. L. Weekly D977a (2nd DCA 4/28/17)

 

SENTENCING-JUVENILE: Under the sentence review statute, is the Court required to review the aggregate sentence that the juvenile is serving from the same sentencing hearing in determining whether to modify the sentence? Question Certified. Purdy v. State, 42 Fla. L. Weekly D967a (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D16-370.reh.op.pdf

 

SENTENCING-GUIDELINES DOWNWARD DEPARTURE: Evidence does not support a finding that the defendant's conduct was an isolated incident for which he showed remorse nor that he acted in unsophisticated manner nor that he was a minor participant. Driving the getaway car does not make you a minor participant. State v. Milaci, 42 Fla. L. Weekly D965a (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D16-2353.op.pdf

 

YEP: "Let me tell you something, what I'm doing is probably going to be appealed and probably reversed."  State v. Milaci, 42 Fla. L. Weekly D965a (5th DCA 4/28/17)

http://5dca.org/Opinions/Opin2017/042417/5D16-2353.op.pdf

 

HABEAS CORPUS: Defendant may not raise by habeas corpus what was previously denied on direct appeal and under Rule 3.850.  Howarth v. DOC, 42 Fla. L. Weekly D964c (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D16-3598.op.pdf

 

POST CONVICTION RELIEF-JURISDICTION: Trial court has no jurisdiction to consider motion for postconviction relief which had been remanded where there was a separate appeal concerning the same merits.   Black v. State, 42 Fla. L. Weekly D964b (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D16-4327.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that the plea was involuntary because he was not informed about of the possible maximum sentence as a habitual offender in the absence of records attached conclusively refuting the claim.  Vaughan v. State, 42 Fla. L. Weekly D964a (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D16-4443.op.pdf

 

POST CONVICTION RELIEF: Defendant made a sufficient claim for relief by alleging that his attorney was ineffective for failing to object imposition of costs of incarceration for which the Court failed to cite statutory authority.  Hornstra v. State, 42 Fla. L. Weekly D963b (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D17-388.op.pdf

 

 

HABEAS CORPUS-JURISDICTION: Jurisdiction for habeas corpus petition challenging the validity of the conviction or sentence lies with the courts that imposed the judgment and sentence.  Baker v. DOC, 42 Fla. L. Weekly D962b (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D16-3334.op.pdf

 

TRIAL: Court erred by denying Defendant's request for a brief recess to secure a key witness. Cheremont v. State, 42 Fla. L. Weekly D961a (5th DCA 4/28/17)

 

http://5dca.org/Opinions/Opin2017/042417/5D16-1360.op.pdf

 

HEARSAY: Court may allow a detective to testify as to a statement by the Defendant's son that he and the Defendant were responsible for the murder where the statement was consistent with the son's trial testimony and admitted to rebut the implication that he had an improper motive - the plea agreement - to fabricate.  Tundidor v. State, 42 Fla. L. Weekly S507a (FLA 4/28/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-2276.pdf

 

ATTORNEY/CLIENT PRIVILEGE: The attorney client privilege is lost when the communication is made in the presence of a third party. Communications between codefendants and their counsel regarding issues of their joint defense are still protected by privilege.  Tundidor v. State, 42 Fla. L. Weekly S507a (FLA 4/28/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-2276.pdf

 

DEATH PENALTY: Any Hurst error in not correctly advising the jury is harmless given that the recommendation of death was unanimous.  Tundidor v. State, 42 Fla. L. Weekly S507a (FLA 4/28/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-2276.pdf

 

JUROR: A comment by a single juror which does not reveal that the juror had knowledge of other homicides committed by the Defendant does not require that the entire jury panel be stricken.  Morris v. State, 42 Fla. L. Weekly S502a (FLA 4/27/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-1317.pdf

 

DEATH PENALTY: Any Hurst error in not correctly advising the jury is harmless given thathe recommendation of death was unanimous.  Morris v. State, 42 Fla. L. Weekly S502a (FLA 4/27/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-1317.pdf

 

AMENDMENT-JURY INSTRUCTION: Amendment to jury instruction on false report to LEO, Unlawful use of communication device.   In re: Jury Instructions, 42 Fla. L. Weekly S501a (FLA 4/27/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc16-2239.pdf

 

AMENDMENT-JURY INSTRUCTION: Amendment to jury instruction on drug cases. In re: Jury Instructions, 42 Fla. L. Weekly S500a (FLA 4/27/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-1692.pdf

 

JURY INSTRUCTION-MANSLAUGHTER: The failure to instruct the jury on justifiable or excusable homicide for manslaugher is fundamental error unless the Defendant expressly concedes that the homicides were not justified or excusable.  State v. Spencer, 42 Fla. L. Weekly S494a (FLA 4/27/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc16-54.pdf

 

QUOTATION: "Once again, the jury pardon doctrine rears its ugly head. I would recede from State v. Lucas,. . .-- a flawed opinion rooted in the inherent lawlessness of the jury pardon doctrine.  State v. Spencer, 42 Fla. L. Weekly S494a (FLA 4/27/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc16-54.pdf

 

DEATH PENALTY: Hurst violation where death recommendation is 9-3. Altersberger v. State, 42 Fla. L. Weekly S490b (FLA 4/27/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-628.pdf

 

JUVENILES-VIOLATION OF CURFEW: Court may not order juvenile detained for five days for violating curfew. Court must follow indirect contempt procedures. A.P. v. State, 42 Fla. L. Weekly D963a (5th DCA 4/27/17)


http://5dca.org/Opinions/Opin2017/042417/5D17-1041op.pdf

 

SECOND DEGREE MURDER-RECLASSIFICATION: Second degree murder cannot be reclassified to a life felony based on possession of a deadly weapon where evidence did not support the finding that he possessed a deadly weapon, notwithstanding jury finding. The statement by one witness to police that the Defendant carried a stick was impeachment, not substantive evidence.   Castillo v. State, 42 Fla. L. Weekly D954a (3rd DCA 4/26/17)

 

http://www.3dca.flcourts.org/Opinions/3D15-1868.pdf

 

APPEALS-JURISDICTION: Defendant's untimely motion for rehearing does not toll the time to file appeal. Watkins v. State, 42 Fla. L. Weekly D953a (3rd DCA 4/26/17)

 

http://www.3dca.flcourts.org/Opinions/3D16-2650.pdf

 

PUBLIC RECORDS: Court may deny media access to pretrial discovery and may close hearings in high-profile case.  Miami Herald Media, 42 Fla. L. Weekly D950a (3rd DCA 4/26/17)

 

http://www.3dca.flcourts.org/Opinions/3D17-0079.pdf

 

DISQUALIFICATION: Judge's stated policy of sua sponte releasing a defendant on recognizance or de minimus bond if state does not file an information by the twenty-first day after the arrest of defendant is valid basis for disqualification of judge. Motion to disqualify judge may rely on judge's announcement of his policy in other cases in order to establish a well-founded fear that the judge will not be impartial.  State v. Dixon, 42 Fla. L. Weekly D945a(3rd DCA 4/26/17)

 

http://www.3dca.flcourts.org/Opinions/3D17-0281.pdf

 

POST CONVICTION RELIEF: Claim that plea was based upon misadvice regarding deportation consequences given by person posing as immigration attorney was facially sufficient. Rila v. State, 42 Fla. L. Weekly D940a (4th DCA 4/26/17)

 

https://edca.4dca.org/DCADocs/2016/3917/163917_DC13_04262017_090417_i.pdf

 

DISCHARGE OF COUNSEL: Court did not abuse its discretion by denying defendant a more extensive Nelson inquiry where defendant's complaints were raised after trial began were generalized dissatisfaction with strategy.  Morris v. State, 42 Fla. L. Weekly D937a (4th DCA 4/26/17)

 

https://edca.4dca.org/DCADocs/2015/4775/154775_DC05_04262017_085457_i.pdf

 

RULE OF COMPLETENESS: Rule of completeness did not compel admission of defendant's exculpatory post-arrest station house statement after state introduced tape of a controlled phone call between minor victim of sexual offense and defendant that was made earlier the same day.   Carter v. State, 42 Fla. L. Weekly D935b (4th DCA 4/26/17)

 

https://edca.4dca.org/DCADocs/2015/3132/153132_DC05_04262017_085347_i.pdf

 

DIRECT FILE-JUVENILE: Statute authorizing adult sanctions for juveniles charged as adults, listing factors to be considered by trial courts is presumed appropriate and that court is not required to set forth specific findings or enumerate criteria on which decision is based.  Mendoza-Magadan v. State, 42 Fla. L. Weekly D935a (4th DCA 4/26/17)

 

https://edca.4dca.org/DCADocs/2016/1458/161458_DC05_04262017_085955_i.pdf

 

COSTS: Court cannot asses $15,000 public defender fee without informing Defendant of right to object. Carillo v. State, 42 Fla. L. Weekly D933b (2nd DCA 4/26/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/April/April%2026,%202017/2D15-5112.pdf

 

JUVENILE-SENTENCING: Court may not commit juvenile to maximum-risk program where he does not meet criterion. T.B. v. State, 42 Fla. L. Weekly D931a (1st DCA 424/17)

 

https://edca.1dca.org/DCADocs/2016/5161/165161_DC13_04242017_085805_i.pdfSENTENCING-

 

UPWARD DEPARTURE: Judge, not jury, may decide whether Defendant is a danger to the public, warranting an upward departure for a homeless woman stealing food for her four children. Extensive discussion, en banc.  Woods v. State, 42 Fla. L. Weekly D921a (1st DCA 3/24/17)

 

https://edca.1dca.org/DCADocs/2015/4042/154042_DC05_04242017_082257_i.pdfPROBATION

 

REVOCATION-SPLIT SENTENCE: Where Defendant received a true split sentence Court must sentence him to know more than a term of incarceration suspended from the original split sentence upon revocation of probation. Harris v. State, 42 Fla. L. Weekly D916c (5th DCA 4/21/17)

 

http://5dca.org/Opinions/Opin2017/041717/5D16-1310.op.pdf

 

APPELLATE COUNSEL-INEFFECTIVE: Appellate counsel was ineffective for not arguing that the illegal general sentence exceeded the statutory maximum.  Munoz v. State, 42 Fla. L. Weekly D915a (5th DCA 4/21/17)

 

http://5dca.org/Opinions/Opin2017/041717/5D17-154.op.pdf

 

POST CONVICTION RELIEF: Court erred by summarily denying claim of newly discovered evidence (new science article that the injury is consistent with medical causes unrelated to abuse) as untimely where record does not show that was untimely; further Court improperly relied upon evidence outside the record. An evidentiary hearing is required.   Duncan v. State, 42 Fla. L. Weekly D914a (2nd DCA 4/21/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/April/April%2021,%202017/2D16-2625.pdf

 

POST CONVICTION RELIEF-DEPORTATION: Court erred by summarily denying the claim that counsel was ineffective for misadvised Defendant about deportation consequences of guilty plea. Advising the Defendant that "if you are not a U.S. citizen you are subject to deportation," does not cure any prejudice from counsel's misadvice.  Goddard v. State, 42 Fla. L. Weekly D912a (2nd DCA 4/21/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/April/April%2021,%202017/2D16-2969.pdf

 

DEATH PENALTY: Because Defendant's death sentence was final on appeal before Ring v. Arizona, defendant is not entitled to relief under Hurst.  Rodriguez v. State, 42 Fla. L. Weekly S483a (FLA 4/20/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-1795.pdf

 

POST CONVICTION RELIEF-DEATH PENALTY: "Counsel cannot be considered deficient for failing to do what he actually did." and "Trial counsel cannot be deemed ineffective for failing to raise a meritless objection."  Banks v. State, 42 Fla. L. Weekly S479a (FLA 4/20/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-979.pdf

 

DEATH PENALTY: New sentencing hearing is required where the recommendation of death was not unanimous (10-2 vote).  Banks v. State, 42 Fla. L. Weekly S479a (FLA 4/20/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-979.pdf

 

DEATH PENALTY: New sentencing hearing is required where the recommendation of death was not unanimous (10-2 vote).  Brookins v. State, 42 Fla. L. Weekly S475a (FLA 4/20/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-418.pdf

 

 

OPENING THE DOOR: Defendant who stabbed a fellow inmate to death on the bus opened the door to previous incident when he hid a shank in his clothing by denying that he knew how to hide the shank.   Brookins v. State, 42 Fla. L. Weekly S475a (FLA 4/20/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-418.pdf

 

COMMENT ON SILENCE: It is not an improper comment on the Defendant's exercise of the right to remain silent by asking why he did not tell his original story to the police, when on direct he had talked about why he kept silent so that he would not be considered a snitch. A defendant cannot testify to a motive for keeping the alleged actual killer's identity a secret and then use his right to silence to shield that motive from attack on cross-examination. Brookins v. State, 42 Fla. L. Weekly S475a (FLA 4/20/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-418.pdf

 

 

LIFE SENTENCE-JUVENILE-NON-HOMICIDE: Juvenile nonhomicide offenders are entitled to sentences that provide a meaningful opportunity for early release based on demonstrated maturity and rehabilitation during their natural lifetimes and that gain time fails to meet those requirements. 100-year sentence, even with gain time exceeds defendant's life expectancy, and so the sentence is unconstitutional as applied to the juvenile defendant convicted of a nonhomicide offense.  Johnson v. State, 42 Fla. L. Weekly S470a (FLA 4/20/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc13-711.pdf

 

 

CONSTITUTION-AMENDMENT-VOTING RESTORATION: Proposed amendment relating to restoration of voting rights to convicted felons qualifies for ballot. Proposed amendment allows felons to vote after sentence, including probation is completed. Murderers and sex offenders are excluded. Advisory Opinion re: Voting Restoration Amendment, 42 Fla. L. Weekly S464a (FLA 4/20/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc16-1785.pdf

 

REIMBURSEMENT OF FINES AND RESTITUTION: When a criminal conviction is invalidated by a reviewing court and no retrial will occur, the State is obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.  Nelson v. Colorado, No. 15-1256 (4/19/17)

 

https://www.supremecourt.gov/opinions/16pdf/15-1256_5i36.pdf

 

SENTENCING-DETERRENCE: Court may consider general deterrence as a sentencing factor.   Chambers v. State, 42 Fla. L. Weekly D911a (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/3922/153922_DC08_04192017_091107_i.pdf

 

SENTENCING-SCORESHEET ERROR: Defendant is entitled to resentencing where there is a scoresheet error notwithstanding that the sentence imposed was well above the sentence the minimum sentence with or without the error. Chambers v. State, 42 Fla. L. Weekly D911a (4th DCA 4/19/17)

https://edca.4dca.org/DCADocs/2015/3922/153922_DC08_04192017_091107_i.pdf

 

SEX OFFENDER PROBATION: Court may impose sex offender probation as a special condition of probation without stating the particular terms. Conflict certified. Levandoski v. State, 42 Fla. L. Weekly D910a (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/4801/154801_DC05_04192017_092127_i.pdfRACKETEERING-

 

PREDICATE ACTS: JOA is required when State fails to prove the Defendant directly participated in 2 or more predicate incidents. Rimless hub-and-spoke conspiracy. Defendant is not vicariously liable for predicate acts committed by others. Godinez v. State, 42 Fla. L. Weekly D907a (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2016/1600/161600_DC13_04192017_092252_i.pdfGOOD

 

GOOD FAITH INSTRUCTION: Counsel was ineffective for failing to request a good faith instruction after arguing a good faith defense. Issue is cognizable on direct appeal because it is apparent from the face of the record.   Hardman v. State, 42 Fla. L. Weekly D906b (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/1366/151366_DC13_04192017_090057_i.pdf


 

RESTITUTION: State's motion to order restitution filed 5 days after sentencing should have been granted. State v. Sandomeno, 42 Fla. L. Weekly D906a (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/3298/153298_DC13_04192017_090946_i.pdfCOSTS-

 

JUVENILES: A court cannot assess the teen court cost upon a juvenile unless the court has adjudicated the juvenile as delinquent. A county ordinance allowing for a court cost on a withheld adjudication of delinquency is invalid because an ordinance penalty may not exceed the penalty imposed by the state.  F.F. v. State, 42 Fla. L. Weekly D905b (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/3254/153254_DC08_04192017_090743_i.pdfAPPEAL-

 

DOWNWARD DEPARTURE: State may not appeal a downward departure where the only issue raised before the trial court was whether the court should depart from the guidelines not whether there was a valid basis for the departure.   State v. Richardville, 42 Fla. L. Weekly D905a (4th DCA 4/19/17)

https://edca.4dca.org/DCADocs/2016/2745/162745_DC05_04192017_092555_i.pdf

 

REPUTATION FOR VIOLENCE: Court properly excluded evidence of the victim's reputation for violence where Defendant did not assert self-defense.  Styles v. State, 42 Fla. L. Weekly D904a (4th DCA 4/19/17)

https://edca.4dca.org/DCADocs/2015/0165/150165_DC05_04192017_085904_i.pdfHEARSAY-

 

TEXT MESSAGES: Text messages sent by defendant to victim, found in data extraction from victim's phone, were hearsay but, by introducing victim testimony that defendant had sent the message, the state established the statutory exception allowing admission of "party's own statement" for use against that party.  Gayle v. State, 42 Fla. L. Weekly D902a (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2016/1975/161975_DC05_04192017_092430_i.pdf

 

HEARSAY: An Extraction Report is not hearsay because it is created by a machine and is not a "statement" made by a "declarant."    Gayle v. State, 42 Fla. L. Weekly D902a (4th DCA  4/19/17)

 

https://edca.4dca.org/DCADocs/2016/1975/161975_DC05_04192017_092430_i.pdf

 

SPEEDY TRIAL: Waiver of speedy trial is a waiver for all charges arising from that arrest including newly filed felony charges.  McClover v. State, 42 Fla. L. Weekly D898d (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/2284/152284_DC08_04192017_090437_i.pdfPROSECUTORIAL

 

VINDICTIVENESS: Vindictiveness is presumed when State adds a new count (theft at a different Wal-Mart) after the defendant prevails on appeal.  McClover v. State, 42 Fla. L. Weekly D898d (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/2284/152284_DC08_04192017_090437_i.pdf

 

ABANDONMENT: Retail theft includes the attempt to commit retail theft, and so abandonment is a defense. When an attempt is subsumed in the substantive crime, the defense of abandonment applies. The defendant did not commit Retail Theft if the defendant abandoned her attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of her criminal purpose.  McClover v. State, 42 Fla. L. Weekly D898d (4th DCA 4/19/17)

 

https://edca.4dca.org/DCADocs/2015/2284/152284_DC08_04192017_090437_i.pdf

 

CONTEMPT: Order finding direct contempt of court must include detailed factual findings.  Y.C. v. State, 42 Fla. L. Weekly D892a (3rd DCA 4/19/17)

 

http://www.3dca.flcourts.org/Opinions/3D16-2220.pdf

 

APPEALS-MITIGATION: Order denying Motion to mitigate is not reviewable by appeal. Lavers v. State, 42 Fla. L. Weekly D886a (2nd DCA 4/19/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/April/April%2019,%202017/2D15-4209.pdf

 

CREDIT FOR TIME SERVED: Warrantless arrest for violation of probation may entitle defendant to jail credit even if defendant was arrested in a different county on a new law offense and held in that county's jail.   Cox v. State, 42 Fla. L. Weekly D877c (1st DCA 4/18/17)

 

https://edca.1dca.org/DCADocs/2016/1576/161576_DC08_04182017_090507_i.pdf

 

DEATH PENALTY: Death sentence violates Hurst where the jury recommendation of death was not unanimous. McMillian v. State, 42 Fla. L. Weekly S459a (FLA 4/13/17)


http://www.floridasupremecourt.org/decisions/2017/sc14-1796.pdf

 

STATEMENT OF DEFENDANT: Where defendant has been arrested for attempted murder of law enforcement, and an attorney has been appointed for that case, Law enforcement investigators are not barred from interrogating the Defendant about the murder that the law enforcement officers were investigating when they were shot at. There is no ineffective assistance of counsel for not moving to file a motion to suppress since it was without merit.  McMillian v. State, 42 Fla. L. Weekly S459a (FLA 4/13/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-1796.pdf

 

REDACTION: Counsel was not ineffective for failing to move to redact the Defendant's statements where, when placed in context, the interrogating officers' statements would correctly be interpreted as techniques of interrogation. McMillian v. State, 42 Fla. L. Weekly S459a (FLA 4/13/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-1796.pdf

 

IDENTIFICATION: As a general rule, members of the victim's family should not identify a murder victim at trial where nonrelated, credible witnesses are available to make the identification.  McMillian v. State, 42 Fla. L. Weekly S459a (FLA 4/13/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1796.pdf

 

TELEPHONE RECORDS: Non-experts may testify about phone records, cell site maps, and cell phone records. McMillian v. State, 42 Fla. L. Weekly S459a (FLA 4/13/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc14-1796.pdf

 

COSTS: Special statutory court costs for battery, sex offenses, and domestic violence (are assessed per count not per case (§§938.085, 938.08, AND 938.10).  McNeil v. State, 42 Fla. L. Weekly S453a (FLA 4/13/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-979.pdf

 

APPEALS: Stipulations of dispositiveness are binding on the appellate court. Churchill v. State, 42 Fla. L. Weekly S451b (FLA 4/13/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc16-654.pdf

 

AMENDMENTS-JURY INSTRUCTIONS-BRIBERY: In re: Standard Jury Instructions, 42 Fla. L. Weekly S450a (FLA 4/13/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-1884.pdf

 

AMENDMENTS-JURY INSTRUCTIONS-CAPITAL CASES: New jury instructions in light of Hurst requiring a unanimous recommendation of death, and specific findings as to aggravating circumstances. In re: Standard Jury Instructions, 42 Fla. L. Weekly S449a (FLA 4/13/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc17-583.pdf

 

AMENDMENTS-RULES REGULATING THE FLORIDA BAR: Certified Legal Interns must pass a Level II background investigation.  In re: Amendments, 42 Fla. L. Weekly S442a (FLA 4/13/17)

hhtp://www.floridasupremecourt.org/decisions/2017/sc16-1963.pdf

 

POST CONVICTION RELIEF: Failure to obtain surveillance video which would have shown that the defendant was not the shooter is sufficient to require an evidentiary area hearing or attachment of record showing no entitlement to relief. Long v. State, 42 Fla. L. Weekly D869b (1st DCA 4/13/17)

https://edca.1dca.org/DCADocs/2016/1454/161454_DC08_04132017_114142_i.pdf'LIFE

 

SENTENCE-JUVENILE: 35 years imprisonment for offenses committed by juvenile does not violate Graham or Miller, and Defendant is not entitled to resentencing under new juvenile sentencing framework. Davis v. State, 42 Fla. L. Weekly D869a (1st DCA 4/13/17)

https://edca.1dca.org/DCADocs/2016/4554/164554_DC05_04132017_114603_i.pdf

 

SENTENCING: Court may structure sentences for multiple counts of that the aggregate sentence of one year in jail would be completed before probation begins. Bell v. State, 42 Fla. L. Weekly D864a (5th DCA 4/13/17)

http://5dca.org/Opinions/Opin2017/041017/5D16-1417.op.pdf

 

SENTENCING: Court may not order Defendant convicted of dogfighting to make a contribution to the American Society for Prevention of Cruelty to Animals. Bell v. State, 42 Fla. L. Weekly D864a (5th DCA 4/13/17)

 

http://5dca.org/Opinions/Opin2017/041017/5D16-1417.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel wasineffective for failing to will challenge wiretap will based on an insufficient probable cause affidavit, and that if the motion had been granted he would not have pled guilty. Hampton v. State, 42 Fla. L. Weekly D861b (5th DCA 4/13/17)

 

http://5dca.org/Opinions/Opin2017/041017/5D15-2745.op.pdf

 

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to prepare a defense expert witness is sufficient to require an evidentiary hearing unless records are attached conclusively refuting the claim. Newton v. State, 42 Fla. L. Weekly D861a (5th DCA 4/13/17)

 

http://5dca.org/Opinions/Opin2017/041017/5D16-4339.op.pdf

 

COMPETENCY: Where defendant had been adjudicated incompetent, Court may not accept guilty plea without reading expert reports or making written order finding defendant competent. The defendant and the other parties may not stipulate to competency. Rumph v. State, 42 Fla. L. Weekly D860a (5th DCA 4/13/17)

http://5dca.org/Opinions/Opin2017/041017/5D15-3550.op.pdf

 

APPEALS: Court lacks jurisdiction to deny motion to amend where the amendment related to an original motion for postconviction relief which was being reviewed on appeal at the time. Black v. State, 42 Fla. L. Weekly D858a (5th DCA 4/13/17)

http://5dca.org/Opinions/Opin2017/041017/5D16-3695.op.pdf

 

PROBATION REVOCATION-JURISDICTION: Court erred by dismissing warrant for violation of probation on grounds of lack of jurisdiction without addressing whether Defendant had absconded, which would toll the probationary period. State v. Hicks, 42 Fla. L. Weekly D856b (4th DCA 4/12/17)

https://edca.4dca.org/DCADocs/2016/2771/162771_DC13_04122017_091715_i.pdf

 

BAKER ACT: Petitioner is entitled to immediate release for the record did not contain clear and convincing evidence that he was a danger to himself or others. C.W. v. State, 42 Fla. L. Weekly D851a (5th DCA 4/12/17)

http://5dca.org/Opinions/Opin2017/041017/5D17-1023.corr.op.pdf

 

JUVENILES-COMMITMENT LEVEL: Court may not commit juvenile to a high risk program over DJJ'S less harsh recommendation without justifying the deviation. A.V. v. State, 42 Fla. L. Weekly D840e (2nd DCA 4/12/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/April/April%2012,%202017/2D16-175.pdf

 

SEXUALLY VIOLENT PREDATORS: Court is authorized deny petition for release from civil commitment based on conflict thing testimony at a limited hearing as to whether conditions had changed. Barron v. State, 42 Fla. L. Weekly D838a (3rd DCA 4/12/17)

 

http://www.3dca.flcourts.org/Opinions/3D16-0587.pdf

 

JURY INSTRUCTIONS-LESSER INCLUDED-MANSLAUGHTER: Giving of erroneous jury instruction on manslaughter by act as lesser included offense of second degree murder did not constitute fundamental error where jury was also instructed on manslaughter by culpable negligence. Walters v. State, 42 Fla. L. Weekly D832a (3rd DCA 4/12/17)

 

http://www.3dca.flcourts.org/Opinions/3D08-1518.rh.pdf

 

INDEPENDENT ACT: Court is not required to give instruction on the independent act doctrine with there is no evidence to support the theory that the Defendant was part of a plan to scare the victim or that codefendant deviated from the plan by shooting him. Simon v. State, 42 Fla. L. Weekly D823a (4th DCA 4/12/17)

https://edca.4dca.org/DCADocs/2015/3336/153336_DC05_04122017_090123_i.pdf

 

STATEMENTS OF DEFENDANT: Defendant's statement is not suppressible where Defendant invoked right to remain silent but later reinitiated communication with the detective. Simon v. State, 42 Fla. L. Weekly D823a (4th DCA 4/12/17)

 

https://edca.4dca.org/DCADocs/2015/3336/153336_DC05_04122017_090123_i.pdf

 

STATEMENTS OF DEFENDANT: Where officers give Miranda warnings at police station before the Defendant is in custody and the interrogation then becomes confrontational to the point of being custodial, officers are not required to re-administer Miranda. Day v. State, 42 Fla. L. Weekly D819a (4th DCA 4/12/17)

 

https://edca.4dca.org/DCADocs/2015/4361/154361_DC05_04122017_090254_i.pdf

 

RESTITUTION: Court may not base amount of restitution solely on objected-to hearsay testimony. Williams v. State, 42 Fla. L. Weekly D810b (1st DCA 4/11/17)

https://edca.1dca.org/DCADocs/2015/5124/155124_DC08_04112017_084123_i.pdf

 

VOIR DIRE: Court erred by barring defense counsel from questioning prospective jurors on their attitudes on interracial crime in the case of a black defendant charged with murdering a white victim. Jones v. State, 42 Fla. L. Weekly D813b (4th DCA 4/12/17)

 

https://edca.4dca.org/DCADocs/2014/4360/144360_DC13_04122017_084350_i.pdf

 

RESTITUTION-HEARSAY: Repair estimate is inadmissible hearsay for purpose of showing the cost of repairing the victim's car bumper. A.J.A. v. State, 42 Fla. L. Weekly D802a (5th DCA 4/7/17)

 

http://5dca.org/Opinions/Opin2017/040317/5D16-3248.op.pdf

 

 

EVIDENCE-VOICE IDENTIFICATION: Opinion testimony identifying the Defendant's voice on recordings by officers who had only one short in person conversation with him is admissible. Johnson v. State, 42 Fla. L. Weekly D797b (5th DCA 4/7/17)

http://5dca.org/Opinions/Opin2017/040317/5D15-2721.op.pdf

 

APPELLATE COUNSEL: Appellate counsel was ineffective for failing to raise issue that trial court improperly denied defendant's rule 3.850 motions for post conviction relief while motion to withdraw plea was pending. Williams v. State, 42 Fla. L. Weekly D797a (5th DCA 4/7/17)

http://5dca.org/Opinions/Opin2017/040317/5D16-3798.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel misadvised him that the court had agreed to reinstate his probation if he entered an open plea. Lamkin v. State, 42 Fla. L. Weekly D796c (5th DCA 4/7/17)

http://5dca.org/Opinions/Opin2017/040317/5D16-3157.op.pdf

 

LESSER INCLUDED: State is not entitled to a jury instruction on attempted felony murder when only attempted murder is charged in the information does not allege the elements of attempted felony murder. Weatherspoon v. State, 42 Fla. L. Weekly S405a (FLA 4/6/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-1542.pdf

 

 

HABITUAL VIOLENT FELONY OFFENDER: Enhanced and mandatory minimum penalties for life felonies were not permitted at the time the Defendant was convicted of attempted first-degree murder. Flanders v. State, 42 Fla. L. Weekly D792d (3rd DCA 4/6/17)

http://www.3dca.flcourts.org/Opinions/3D17-0365.pdf

 

HEARSAY: No judgment shall be set aside or reversed on the ground of the improper admission or rejection of evidence unless the error complained of has resulted in a miscarriage of justice. Rodriguez v. State, 42 Fla. L. Weekly D789a (3rd DCA 4/5/17)

http://www.3dca.flcourts.org/Opinions/3D15-2339.pdf

 

FORFEITURE-ADVERSARIAL PROBABLE CAUSE HEARING: Court erred in finding probable cause linking funds recovered in home to criminal activity without definitively ruling on the criminal defendant's father's standing to challenge forfeiture of portion of currency he claimed belonged to him and without addressing father's motions to disclose confidential informant and to suppress evidence found in home and statements made by the defendant. Toussaint v. City of Fort Lauderdale, 42 Fla. L. Weekly D786a (4th DCA 4/5/17)

https://edca.4dca.org/DCADocs/2016/2505/162505_DC13_04052017_091130_i.pdf

 

COSTS: Error to impose crime lab costs and public defender costs in excess of statute without informing Defendant of right to contest the amounts. Taylor v. State, 42 Fla. L. Weekly D781a (4th DCA 4/5/17)

 

https://edca.4dca.org/DCADocs/2016/0008/160008_DC08_04052017_090122_i.pdfSENTENCING-

 

GUIDELINES-DEPARTURE: Court erred in sentencing Defendant to prison on VOP where Defendant violated with technical violations and 4 counts of sexual battery, no evidence was submitted at the hearing of the sexual batteries, and the scoresheet called for nonstate prison sanction. The Court did not make finding sufficient Lee establishing a nexus between the Defendant and danger to the public. McCarthy v. State, 42 Fla. L. Weekly D775b (2nd DCA 4/5/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/April/April%2005,%202017/2D15-1511.pdf

 

CONTEMPT: Juvenile charged with contempt may be placed in secure detention for no more than 5 days for her 1st offense and no more than 15 days for subsequent offenses. C.R.T. v. State, 42 Fla. L. Weekly D793a (5th DCA 4/4/17)

http://5dca.org/Opinions/Opin2017/040317/5D17-0962.op.pdf

 

 

10-20-LIFE-APPRENDI: Technical defects in an information are no longer structural constituting per se reversible error under Apprendi. Discrepancy between "injury" and "serious injury" in information and statute do not make any Apprendi error an illegal sentence. Robinson v. State, 42 Fla. L. Weekly D758b (1st DCA 4/4/17)

 

https://edca.1dca.org/DCADocs/2016/1988/161988_DC05_04042017_091349_i.pdfPOST

 

CONVICTION RELIEF: Error to summarily deny claim that counsel was ineffective for misrepresenting that all discovery responses had been received and were not beneficial to defense, and that such misrepresentation induced defendant to enter plea. Farley v. State, 42 Fla. L. Weekly D757c (1st DCA 4/4/17)

 

https://edca.1dca.org/DCADocs/2016/3491/163491_DC08_04042017_092036_i.pdf

 

SENTENCING: A court imposing a sentence on one count of conviction may consider sentences imposed on other counts. Whether the sentence for the predicate offense is one day or one decade, a district court does not violate the terms of §924(c) so long as it imposes the mandatory minimum "in addition to" the sentence for the violent or drug trafficking crime. Dean v. United States, No. 15-9260 (US 4/3/17)

 

https://www.supremecourt.gov/opinions/16pdf/15-9260_8nj9.pdf

 

MARCH 2017

SEARCH AND SEIZURE-CONSENSUAL ENCOUNTER: Where officers knocked on Defendant's door, Defendant slammed the door, officers followed Defendant because they smelled marijuana in his apartment, and confronted him in a fast food drive-through, the encounter is not a consensual encounter. A reasonable person would not feel free to leave. Evidence properly suppressed. State v. Beans, 42 Fla. L. Weekly D750a (5th DCA 3/31/17)

http://www.5dca.org/Opinions/Opin2017/032717/5D16-647.op.pdf


SENTENCING: Where the time of the offense spans 2 different sets of guidelines, the Defendant is entitled to be sentence under that which provides the lightest sentence. Defendant sentenced for capital 6 battery is entitled to parole after 25 years because the date of this offense spans a period with and without possibility of parole. Seeley v. State, 42 Fla. L. Weekly D748d (5th DCA 3/31/17)

http://www.5dca.org/Opinions/Opin2017/032717/5D16-3793.op.pdf


RESTITUTION-VALUE OF STOLEN PROPERTY: A mere guesstimate of value does not support a restitution order. Victim's testimony at restitution hearing provided sufficient evidentiary basis for value on foreign currency ranging from a minimum of $2000 to a maximum of $3600, but did not support trial court's finding that juvenile stole $5000 in foreign currency. J.J. v. State, 42 Fla. L. Weekly D748c (5th DCA 3/31/17)

http://www.5dca.org/Opinions/Opin2017/032717/5D16-2404.op.pdf

COMPETENCY: Court must enter a written order finding the juvenile competent to proceed if the child has previously been found incompetent. Oral finding is insufficient. T. M. v. State, 42 Fla. L. Weekly D748b (5th DCA 3/31/17)


http://www.5dca.org/Opinions/Opin2017/032717/5D15-4244%20op.pdf

RECLASSIFICATION: Court may not reclassify conviction for aggravated battery with a deadly weapon to a first-degree felony where it is not clear whether conviction was based on the weapon being deadly or the degree of harm. Aggravated battery using a deadly weapon is not enhanceable because use of a deadly weapon is an essential element of the crime. Perez-Flores v. State, 42 Fla. L. Weekly D748a (5th DCA 3/31/17)

http://www.5dca.org/Opinions/Opin2017/032717/5D15-3965.op.pdf

POST CONVICTION RELIEF: Court erred in vacating convictions where counsel's ineffectiveness did not concern those convictions. State v. Anderson, 42 Fla. L. Weekly D746b (5th DCA 3/3/17)

http://www.5dca.org/Opinions/Opin2017/032717/5D16-462.op.pdf

SEARCH AND SEIZURE-WARRANT-RESIDENCE: There is probable cause sufficient for a search warrant the apartment when the Defendant drove from his apartment to meet undercover officers to deliver cocaine at a nearby IHOP. State v. Hayward, 42 Fla. L. Weekly D744a (5th DCA 3/31/17)

http://www.5dca.org/Opinions/Opin2017/032717/5D16-1717.op.pdf

DISQUALIFICATION-TIMELINESS: Motion to disqualify judge is timely when not made within 10 days of the statements made by the judge, but was filed within 10 days after the judge was reassigned the case. State v. Gresham, 42 Fla. L. Weekly D743c (5th DCA 3/31/17)

http://www.5dca.org/Opinions/Opin2017/032717/5D17-665.op.pdf

RULE OF SEQUESTRATION: Court did not abuse its discretion by denying motion for mistrial where victim interacted with family members during break in victim's testimony. Defendant failed to show that the change in testimony was the result of what was said during that interaction. Heady v. State, 42 Fla. L. Weekly D740c (1st DCA 3/31/17)

DOUBLE JEOPARDY: Separate convictions and sentences for use of computer service to solicit person believed to be parent of child to engage in unlawful sexual conduct with person believed to be a child and for traveling for purpose of engaging in unlawful sexual conduct with person believed to be child were barred by double jeopardy principles. State v. Murphy, 42 Fla. L. Weekly D739c (1st DCA 3/31/17)

https://edca.1dca.org/DCADocs/2012/4514/124514_DC13_03312017_084915_i.pdf

LIFE SENTENCE-JUVENILE-NONHOMICIDE: A juvenile's sentence to a term of years with parole eligibility can violate the Eighth Amendment. 99-year prison terms with parole eligibility for crimes committed by juvenile were unconstitutional. Marshall v. State, 42 Fla. L. Weekly D738a (2nd DCA 3/31/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2031,%202017/2D16-1095.pdf

LIFE SENTENCE-JUVENILE-NONHOMICIDE: Defendant who was sentenced to concurrent terms of life imprisonment with eligibility for parole for offenses committed when he was a juvenile is entitled to resentencing in conformance with recently enacted sentencing review statutes. Davis v. State, 42 Fla. L. Weekly D737b (2nd DCA 3/31/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2031,%202017/2D15-5723.pdf

PROBATION REVOCATION: Because probation was tolled while he absconded, Defendant in not entitled to credit for time served on probation previously. Jacoby v. State, 42 Fla. L. Weekly D736a (2nd DCA 3/31/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2031,%202017/2D15-4318.pdf

CREDIT FOR TIME SERVED: Where defendant is sentenced to prison followed by probation, earns gain time for early release, and subsequently violated probation, he is entitled to credit for time served only for the time served in prison, not the sentence originally imposed. Jacoby v. State, 42 Fla. L. Weekly D736a (2nd DCA 3/31/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2031,%202017/2D15-4318.pdf

HEARSAY-EXCEPTIONS: Deputy's testimony regarding victim's description of defendant is not admissible as identification that is admissible as an excited utterance. Second deputy's testimony regarding description of defendant he received in a BOLO was double hearsay and was erroneously admitted. Livingston v. State, 42 Fla. L. Weekly D731a (2nd DCA 3/31/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2031,%202017/2D13-4502.pdf

CIRCUMSTANTIAL EVIDENCE: Circumstantial evidence that an angry lover killed the victim is sufficiently rebutted by evidence that the Defendant stole a victim's phone, his and her phones were found at the crime scene, his palm print was found in her blood at the crime scene and he had washed in bleach. White v. State, 42 Fla. L. Weekly S400a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-625.pdf

DEATH PENALTY: Death penalty is reversed where the recommendation of death was by a vote of 8-4 and the Jury made no factual findings. White v. State, 42 Fla. L. Weekly S400a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-625.pdf

DEATH PENALTY: Defendant is entitled to a new sentencing proceeding pursuant to Hurst where the jury recommendation of death was not unanimous. Orme v. State, 42 Fla. L. Weekly S394a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc13-819.pdf

VOIR DIRE-INDIVIDUAL: Any error in not permitting defense to ask individual jurors whether they could be open to mitigation was harmless. Bradley v. State, 42 Fla. L. Weekly S391a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1412.pdf

EVIDENCE: One-time reference to officers job specialty as a "high risk specialty officer" was not so prejudicial as to vitiate the entire trial. Bradley v. State, 42 Fla. L. Weekly S391a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1412.pdf

IMPEACHMENT: Any error in allowing state to impeach its own witness was harmless where the witness gave testimony favorable to the state and was not called merely to impeach him and where events in question were preserved on dashcam. Bradley v. State, 42 Fla. L. Weekly S391a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1412.pdf

OBJECTIONS: An objection is properly preserved if made shortly after the comment even though not exactly contemporaneously. An objection need not always be made at the moment and examination enters impermissible areas inquiry. Bradley v. State, 42 Fla. L. Weekly S391a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1412.pdf

DEATH PENALTY: Defendant is entitled to a new sentencing proceeding pursuant to Hurst where the jury recommendation of death was not unanimous. Bradley v. State, 42 Fla. L. Weekly S391a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1412.pdf

MURDER-MANSLAUGHTER-JURY INSTRUCTION: Erroneous manslaughter by act instruction is not fundamental error in all cases. Where the defendant was charged with first-degree murder, convicted of second-degree murder, and jury was correctly instructec on manslaughter by culpable negligence as an alternative to second-degree murder, the erroneous manslaughter by act instruction was cured. Extensive discussion. State v. Dominique, 42 Fla. L. Weekly S386b (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-1613.pdf

COSTS: Due Process requires that the Court individually pronounce discretionary fees, costs and fines. Osterhoudt v. State, 42 Fla. L. Weekly S386a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-303.pdf

ATTEMPTED SECOND DEGREE MURDER OF LEO: Enhancement of attempted second-degree murder of a law enforcement officer is a reclassification statute that creates a substantive criminal offense and therefore knowledge of the victim was a law enforcement officer is an essential element. Because 782.065 creates a separate substantive offense the case is remanded for a new trial rather than re-sentencing on a lesser offense. The Standard Jury Instructions should be amended to treat the crime of Murder or Attempted Murder of a Law Enforcement Officer in a manner similar to Assault or Battery on a Law Enforcement Officer. Ramroop v. State, 42 Fla. L. Weekly S381a (FLA 3/30/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-1816.pdf

LIFE IMPRISONMENT-JUVENILE: 155 years in prison with parole for a juvenile is the equivalent of a life sentence and must be vacated. Yero v. State, 42 Fla. L. Weekly D730b (3rd DCA 3/29/17)

http://www.3dca.flcourts.org/Opinions/3D16-0891.pdf

APPEALS: Court lacks jurisdiction to enter a new sentencing order to conform to the released opinion but before the appellate mandate has been issued. Jimenez v. State, 42 Fla. L. Weekly D721a (3rd DCA 3/29/17)

http://www.3dca.flcourts.org/Opinions/3D16-0561.pdf

SEARCH AND SEIZURE: Defendant has a reasonable expectation of privacy in information retained by an event data recorder ("black box") located in his impounded vehicle. State v. Worsham, 42 Fla. L. Weekly D711c (4th DCA 3/29/17)

https://edca.4dca.org/DCADocs/2015/2733/152733_DC05_03302017_114829_i.pdf

QUOTATION: "'A yaw rotation is a movement around the yaw axis of a rigid body that changes the direction it is pointing, to the left or right of its direction of motion. The yaw rate or yaw velocity of a car, aircraft, projectile or other rigid body is the angular velocity of this rotation.' . . .Yes, I also didn't know what this was." State v. Worsham, 42 Fla. L. Weekly D711c (4th DCA 3/29/17)

https://edca.4dca.org/DCADocs/2015/2733/152733_DC05_03302017_114829_i.pdf

SENTENCING: Sentence of ten years in prison followed by ten years of probation exceeded 15-year statutory maximum for sexual battery. Jones v. State, 42 Fla. L. Weekly D711b (4th DCA 3/29/17)

https://edca.4dca.org/DCADocs/2014/0846/140846_DC13_03292017_084921_i.pdf

RULE OF COMPLETENESS: Court did not abuse discretion in allowing the jury to hear the 911 recording in which the defendant accuses the victim of attacking him and refers to the victim's prior criminal history but which omitted references to the victim's prior bad acts, because the redaction did not create a misleading impression. Schwartzberg v. State, 42 Fla. L. Weekly D708b (4th DCA 3/29/17)

https://edca.4dca.org/DCADocs/2015/2304/152304_DC08_03292017_085252_i.pdf

DOUBLE JEOPARDY: There is no double jeopardy violation for 2 battery convictions from the same episode where the convictions were based on distinct acts. Schwartzberg v. State, 42 Fla. L. Weekly D708b (4th DCA 3/29/17)

https://edca.4dca.org/DCADocs/2015/2304/152304_DC08_03292017_085252_i.pdf

SENTENCING-CONSIDERATION: Court erred in considering uncharged misconduct that occurred after the charged crime in sentencing the defendant. Resentencing will occur with a different judge. Schwartzberg v. State, 42 Fla. L. Weekly D708b (4th DCA 3/29/17)

https://edca.4dca.org/DCADocs/2015/2304/152304_DC08_03292017_085252_i.pdf

PROBATION-TOLLING: Where the VOP affidavit and warrant both charged defendant with absconding, and at the relevant hearing the state highlighted the absconding charge, these actions were sufficient to bring the issue to the court's attention, and the probationary period was tolled until defendant was returned to supervision. State v. Capeletti, 42 Fla. L. Weekly D708a (4th DCA 3/29/17)

https://edca.4dca.org/DCADocs/2016/3015/163015_DC13_03292017_091612_i.pdf

DEATH PENALTY-INTELLECTUAL DISABILITY: Eighth Amendment bars courts from disregarding current medical standards in order to ignore Defendant's intellectual disability in imposing the death penalty.  Moore v. Texas, No. 15-797 (US 3/28/17)

https://www.supremecourt.gov/opinions/16pdf/15-797_n7io.pdf


SENTENCING-HOMICIDE-JUVENILE: Court is not required to have jury determine whether defendant killed, intended to kill, or attempted to kill victim. Question certified as to whether Alleyne applies. Leppert v. State, 42 Fla. L. Weekly D702c (5th DCA 3/27/16)

http://www.5dca.org/Opinions/Opin2017/032717/5D16-2238.op.pdf

COSTS: Error to impose "Sheriff's Office Investigative Cost" fee where state did not request this fee on the record, nor discretionary fines and surcharges not orally pronounced. Moinette v. State, 42 Fla. L. Weekly D702a (1st DCA 3/27/17)

https://edca.1dca.org/DCADocs/2015/5559/155559_DC13_03272017_083020_i.pdf

ARGUMENT-PRESERVATION: Claim that defendant was deprived of fair trial as result of argument comparing defendant and codefendants to "a pack of wolves" was not preserved for appeal by objection, and isolated comment did not rise to level of fundamental error. Williams v. State, 42 Fla. L. Weekly D701a (1st DCA 3/27/17)

https://edca.1dca.org/DCADocs/2016/1807/161807_DC05_03272017_114346_i.pdf

PROBATION REVOCATION: Fundamental error to revoke probation for failure to complete community service hours where order had set future date to complete hours. Gozia v. State, 42 Fla. L. Weekly D698e (1st DCA 3/24/17)

https://edca.1dca.org/DCADocs/2016/5305/165305_DC13_03242017_082248_i.pdf

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL: Failure to raise claim that trial court erred by not renewing offer of counsel at probation revocation sentencing. Defendant waived counsel the beginning of the hearing but Court failed to renew offer before sentencing. Williams v. State, 42 Fla. L. Weekly D696b (5th DCA 3/24/17)

http://www.5dca.org/Opinions/Opin2017/032017/5D16-2358.op.pdf

POST CONVICTION RELIEF: Indigent defendant is entitled to court-appointed counsel to assist in preparation of motion to withdraw plea. Hart v. State, 42 Fla. L. Weekly D696a (5th DCA 3/24/17)

http://www.5dca.org/Opinions/Opin2017/032017/5D16-3050.op.pdf

POST CONVICTION RELIEF: Defendant should have been given opportunity to amend his claim that counsel was ineffective for not filing a motion to disqualify judge where he alleged deficient performance but failed to allege prejudice. Wheeler v. State, 42 Fla. L. Weekly D695a (5th DCA 3/24/17)

http://www.5dca.org/Opinions/Opin2017/032017/5D16-867.op.pdf

DEATH PENALTY: Imposition of death penalty on basis on non-unanimous recommendation is unlawful. Baker v. State, 42 Fla. L. Weekly S375a (FLA 2/24/17)

http://www.floridasupremecourt.org/decisions/2017/sc13-2331.pdf

JURORS: Defendant is not entitled to 6 peremptory charges for each count in the indictment. Jackson v. State, 42 Fla. L. Weekly S361a (FLA 3/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc13-1232.pdf

CHALLENGE FOR CAUSE: Court did not err by denying challenge for cause in a murder case of a juror who had a family member murdered but who unequivocally and repeatedly indicated that she would endeavor to be a fair and impartial juror. Jackson v. State, 42 Fla. L. Weekly S361a (FLA 3/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc13-1232.pdf

MISTRIAL: No error to deny motion for mistrial where witness made a passing allusion to the Defendant being released in violation of order in limine about no mention of Defendant's past record. Jackson v. State, 42 Fla. L. Weekly S361a (FLA 3/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc13-1232.pdf

DEATH PENALTY: Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is unconstitutional. Jackson v. State, 42 Fla. L. Weekly S361a (FLA 3/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc13-1232.pdf

AMENDMENT-RULES: Rules created for ineffective assistance of counsel in Termination of Parental Rights cases. In re: Amendments, 42 Fla. L. Weekly S357a (FLA 3/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-553.pdf

DEATH PENALTY: Imposition of death penalty violated decision of U.S. Supreme Court in Hurst v. Florida where jury's recommendation of sentence of death was nonunanimous. Deviney v. State, 42 Fla. L. Weekly S355a (FLA 3/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-1903.pdf

DOWNWARD DEPARTURE: Downward departure based on defendant's need for specialized treatment for mental disorder was valid reason for departure. State v. Wiley, 42 Fla. L. Weekly D690c (1st DCA 3/23/17)

https://edca.1dca.org/DCADocs/2015/0858/150858_DC05_03232017_081111_i.pdf

CONSECUTIVE SENTENCES: Consecutive sentences are permissible but not required for possession of firearm by a felon and attempted second-degree murder. Burns v. State, 42 Fla. L. Weekly D690b (1st DCA 3/23/17)

https://edca.1dca.org/DCADocs/2015/5195/155195_DC08_03232017_084144_i.pdf

SCORESHEET: Court must not include on scoresheet offens

es any offenses for which the defendant sentenced as a prison releasee were offender. It is error to include multiplier for law enforcement protection to scoresheet for possession of cocaine, since the multiplier is only for an offense which should not be on the scoresheet. Sheffield v. State, 42 Fla. L. Weekly D689d (1st DCA 3/23/17)

https://edca.1dca.org/DCADocs/2016/1319/161319_DC13_03232017_084647_i.pdf

SECOND DEGREE MURDER-LESSER: Appellate counsel was ineffective for failing to keep Appellant's conviction from becoming final by asking this court to amend its per curiam decision by including a citation to relevant cases and filing for discretionary review in the Supreme Court, which would have made this a pipeline case. Kerney v. State, 42 Fla. L. Weekly D687a (3rd DCA 3/22/17)

http://www.3dca.flcourts.org/Opinions/3D15-0392.pdf

DOUBLE JEOPARDY: Brugal v. State, Court erred by dismissing counts based on double jeopardy where evidence established temporal and spatial distinctions among the criminal acts of lewd and lascivious conduct. Brugal v. State, 42 Fla. L. Weekly D685b (3rd DCA 3/22/17)

http://www.3dca.flcourts.org/Opinions/3D15-0637.pdf

EVIDENCE: Court did not abuse discretion in allowing testimony that the defendant had a gun on the bed posed during the lewd and lascivious acts because it established the subjective fear of the Victim and her delay in reporting the offense. Brugal v. State, 42 Fla. L. Weekly D685b (3rd DCA 3/22/17)

http://www.3dca.flcourts.org/Opinions/3D15-0637.pdf

WITHDRAWAL OF PLEA: Court is not required to hold an evidentiary hearing where the record conclusively shows that the defendant is not entitled to relief. Williams v. State, 42 Fla. L. Weekly D685a (3rd DCA 3/22/17)

http://www.3dca.flcourts.org/Opinions/3D15-2618.pdf

POST CONVICTION RELIEF: Defendant who was convicted of second-degree murder after jury was erroneous instruction on manslaughter as a lesser included offense is entitled to a new trial. State v. Guerra, 42 Fla. L. Weekly D684a (3rd DCA 3/22/17)

http://www.3dca.flcourts.org/Opinions/3D14-0372.pdf

JUVENILES-SENTENCING: Court may not depart from DJJ's recommendation of supervised probation for solicitation to commit murder without detailed reasons why recommendation is inappropriate. D.V. v. State, 42 Fla. L. Weekly D669c (4th DCA 3/22/17)

https://edca.4dca.org/DCADocs/2015/1876/151876_DC08_03222017_092001_i.pdf

APPELLATE COURT TICKED OFF: "In the end, the trial judge imposed a sentence contrary to the notion of juvenile justice set forth in the Florida Statutes and described by the United States and Florida Supreme Courts. . .For the act of writing the note signed by the child's friend, the trial court sentenced the child, who had no previous delinquency incidents, to a maximum risk residential program. . . . Here, the trial judge focused excessively on the characterization of the crime, which sounds worse than the details of its execution. . . Our reversal is not a green light to impose some other level of commitment; by serving the sentence imposed, the child has overpaid his debt to Florida. The case is remanded to the circuit court for the imposition of a sentence of time served." D.V. v. State, 42 Fla. L. Weekly D669c (4th DCA 3/22/17)

https://edca.4dca.org/DCADocs/2015/1876/151876_DC08_03222017_092001_i.pdf

DOUBLE JEOPARDY: Where defendant enters into a plea agreement to charges which would otherwise be barred by double Jeopardy, he is not entitled to reversal of the lesser offense. Kidder v. State, 42 Fla. L. Weekly D669a (2nd DCA 3/22/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2022,%202017/2D16-608.pdf

SECOND DEGREE MURDER: Evidence is sufficient to establish depraved mind and imminently dangerous conduct supporting a conviction for second degree murder for punching an unconscious victim. Starks v. State, 42 Fla. L. Weekly D665a (2nd DCA 3/22/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2022,%202017/2D15-1762.pdf

APPEALS: Appellate court cannot address issues raised on appeal that had not been raised in the Rule 3.800(a) motion. Aponte v. State, 42 Fla. L. Weekly D652a (2nd DCA 3/17/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2017,%202017/2D15-4245.pdf

COMPETENCY: Court must enter written order of competency, rather than relying on the parties' stipulation alone. Arnold v. State, 42 Fla. L. Weekly D647a (2nd DCA 3/17/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2017,%202017/2D15-2275.pdf

POST CONVICTION RELIEF: A claim of ineffective assistance of counsel for failing to object to a sleeping juror ordinarily requires an evidentiary area hearing. Rosado v. State, 42 Fla. L. Weekly D645a (5th DCA 3/17/17)

http://www.5dca.org/Opinions/Opin2017/031317/5D16-3113.op.pdf

APPEALS-SCIENTIFIC EVIDENCE: Adoption of the Daubert standard does not change the rule that certiorari review is not available to challenge pretrial exclusion of expert witness. Rhoades v. Rodriguez, 42 Fla. L. Weekly D644c (5th DCA 3/17/17)

http://www.5dca.org/Opinions/Opin2017/031317/5D16-4285.op.pdf

POST CONVICTION RELIEF: Defendant may not raise under Rule 3.800 claim that aggravated assault was not a qualifying offense for purpose of sentencing defendant as 3-time violent felony offender. McNair v. State, 42 Fla. L. Weekly D644b (5th DCA 3/17/170

http://www.5dca.org/Opinions/Opin2017/031317/5D16-4019.op.pdf

POST CONVICTION RELIEF: Error to summarily deny claim that sentence for attempted armed robbery exceeded statutory maximum because trial court misclassified conviction as a first-degree felony. White v. State, 42 Fla. L. Weekly D644a (5th DCA 3/17/17)

http://www.5dca.org/Opinions/Opin2017/031317/5D16-3562.op.pdf

RESTITUTION: Court may not include in restitution items that were not listed in the petition, plea agreement predisposition report or discovery. J.D. v. State, 42 Fla. L. Weekly D643a (5th DCA 3/17/17)

http://www.5dca.org/Opinions/Opin2017/031317/5D16-2521.op.pdf

POST CONVICTION RELIEF: Court erred by summarily denying the claim that defendant's decision not to testify was due to misadvice by counsel that he could be impeached with the specific nature of his prior convictions. Joseph v. State, 42 Fla. L. Weekly D642b (5th DC 3/17/17)

http://www.5dca.org/Opinions/Opin2017/031317/5D16-2442.op.pdf

DOUBLE JEOPARDY: Separate convictions for simple battery and aggravated battery arising from single criminal episode violated prohibition against double jeopardy. Munoz v. State, 42 Fla. L. Weekly D642a (5th DCA 3/17/17)

http://www.5dca.org/Opinions/Opin2017/031317/5D16-1747.op.pdf

HIV-SEXUAL INTERCOURSE: "Sexual intercourse" as used in §384.24(2) includes oral and anal intercourse between two men. Debaun v. State, 42 Fla. L. Weekly S322a (FLA 3/16/17)

http://www.floridasupremecourt.org/decisions/2017/sc13-2336.pdf

ARGUMENT: Golden Rule violation to argue, in describing strangulation death, "Everybody on this jury has been swimming before, I presume, or has been underwater before where you get to that point where you're losing breath and you need to get to the surface. And you get that heavy feeling in your chest. And it feels so good when you get up to the surface and finally get a breath of fresh air." Improper argument was not fundamental; contemporaneous objection was required. "[Ou]r affirmance of the convictions in no way validates such misconduct nor somehow renders it merely 'awful but lawful.'" Sampson v. State, 42 Fla. L. Weekly D638a (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D15-1662.pdf

ARGUMENT: It is improper to invoke a "miscarriage of justice" argument as a strawman to evoke sympathy for the victim. Sampson v. State, 42 Fla. L. Weekly D638a (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D15-1662.pdf

QUOTATION: "The concerns we express here are not new. Sadly, our appellate courts have for decades expressed consternation over the recurring misconduct of attorneys during closing arguments. . .That such misconduct persists, despite these clarion calls, deepens our disquiet." Sampson v. State, 42 Fla. L. Weekly D638a (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D15-1662.pdf

ARGUMENT: Prosecutor's closing argument that attacked and denigrated defense counsel, suggesting that defense counsel was not acting in good faith or lied to jury, was improper. Comments cannot be considered invited if State failed to object to the comments which they claim as their license to make improper arguments. Compendium of improper arguments. Scala v. State, 42 Fla. L. Weekly D636a (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D11-1979.pdf

APPEALS: Where transcripts contain errors, omissions, inconsistencies, and inaccuracies which preclude the appellate court from adequately reviewing the proceedings below, a new trial is required. Scala v. State, 42 Fla. L. Weekly D636a (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D11-1979.pdf

QUOTATION-CARL SANDBURG: "If the law is against you, talk about the evidence. . .If the evidence is against you, talk about the law, and, since you ask me, if the law and the evidence are both against you, then pound on the table and yell like hell." Scala v. State, 42 Fla. L. Weekly D636a (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D11-1979.pdf

POST CONVICTION RELIEF: Failure to object to erroneous omission of justifiable or excusable homicide instruction is harmless where the defense was identity. Byrd v. State, 42 Fla. L. Weekly D635e (3rd DCA 3/15/17)'

http://www.3dca.flcourts.org/Opinions/3D17-0068.pdf

POST CONVICTION RELIEF: Court need not, and should not, inform the jury of its right to a read-back of testimony in response to a question about the facts of the case. Byrd v. State, 42 Fla. L. Weekly D635e (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D17-0068.pdf

LIFE SENTENCE-JUVENILE-LIFE SENTENCE: 152 year sentence on juvenile for nonhomicide with parole but without judicial review is unconstitutional. Carter v. State, 42 Fla. L. Weekly D633a (3rd DCA 3/15/17)

http://www.3dca.flcourts.org/Opinions/3D16-1090.pdf

SPEEDY TRIAL: Continuances sought in misdemeanor case is not a waiver of speedy trial right to the felony case where the felony charge (possession of narcotics found in the Defendant's wrecked car) did not arise from the same conduct or episode as the misdemeanor DUI case. Crimes can constitute separate criminal episodes for speedy trial purposes even though they happen at the same time. State v. Fair, 42 Fla. L. Weekly D626a (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2016/1067/161067_DC05_03152017_090352_i.pdf

EVIDENCE-REFRESHING RECOLLECTION: Court erred by not allowing Defendant to refresh an officer's recollection with an audio recorded (not transcribed) deposition. In a nonjury case, the judge does not have to leave the bench when the officer's recollection is refreshed. J.G. v. State, 42 Fla. L. Weekly D623b (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2015/4415/154415_DC05_03152017_085330_i.pdf

HEARSAY: Hearsay is admissible in non-capital sentencing hearings, absent a request for sentence enhancement. Case of first impression. McInerney v. State, 42 Fla. L. Weekly D622a (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2015/1527/151527_DC08_03152017_095315_i.pdf

RESTITUTION-JURISDICTION: Court has no jurisdiction to determine amount of restitution after defendant has filed a notice of appeal notwithstanding that of reserve jurisdiction to determine the amount of the restitution. McInerney v. State, 42 Fla. L. Weekly D622a (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2015/1527/151527_DC08_03152017_095315_i.pdf

DICTIONARY WARS-ONLY: "[A]s a matter of statutory construction, the term "only," although capable of varying meanings depending on the context of its use as an adverb or an adjective, ordinarily imposes some limiting function over the term or phrase it modifies." Cohen v. Shushan, 42 Fla. L. Weekly D601a (2nd DCA 3/15/17)

EVIDENCE-UNCHARGED CRIMES: Court erred in admitting evidence of uncharged collateral crime involving the defendant's punching the victim's wife where that altercation was not inextricably intertwined with the earlier stabbing of the Victim. Hudson v. State, 42 Fla. L. Weekly D621a (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2016/0007/160007_DC13_03152017_085447_i.pdf

APPEALS-HABEAS CORPUS: Appellate counsel was ineffective for failing to argue that the two predicate incidences to establish a pattern of racketeering did not occur within 5 years of each other. New appeal limited to this issue is warranted. Castillo v. State, 42 Fla. L. Weekly D616a (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2016/1738/161738_DC03_03152017_090818_i.pdf

POST CONVICTION RELIEF: Claims that defense counsel failed to convey plea offer gave us advice about maximum and minimum sentences and misadvised defendant that she could be sentenced as youthful offender are sufficient to warrant a hearing where not conclusively refuted by the record. Bynes v. State, 42 Fla. L. Weekly D615a (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2016/2209/162209_DC08_03152017_090946_i.pdf

CREDIT FOR TIME SERVED: Motion to correct credit for time served filed within one year of appellate mandate is timely. Castillo v. State, 42 Fla. L. Weekly D614b (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2016/3081/163081_DC13_03152017_091539_i.pdf

ALLOCUTION: Court erred in subjecting Defendant to cross-examination during allocution. Guerra v. State, 42 Fla. L. Weekly D614a (4th DCA 3/15/17)

https://edca.4dca.org/DCADocs/2015/1235/151235_DC13_03152017_084409_i.pdf

RESTITUTION: Evidence is insufficient to support the amount the Court ordered to pay restitution where the only evidence supported that amount was the owner's testimony which was based on what a jeweler said the replacement value of the property was. O.W. v. State, 42 Fla. L. Weekly D613a(1st DCA 3/15/17)

https://edca.1dca.org/DCADocs/2016/2766/162766_DC13_03152017_083348_i.pdf

MISTRIAL-SILENCE OF DEFENDANT: It is an improper reference to the Defendant's right to remain silent to ask if he had ever told his version of events to the police. Court did not abuse its discretion in denying motion for mistrial based on State's isolated question highlighting Defendant's refusal to talk to police officer where objection to the testimony was sustained in a curative instruction given. Chester v. State, 42 Fla. L. Weekly D611b (1st DCA 3/15/17)

https://edca.1dca.org/DCADocs/2015/5254/155254_DC08_03152017_083123_i.pdf

DOUBLE JEOPARDY-CREDIT OR TIME SERVED: Court violates double jeopardy by rescinding jail credit on its own motion after it was awarded. Ray v. State, 42 Fla. L. Weekly D608a (2nd DCA 3/15/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2015,%202017/2D16-2056.pdf

COSTS: Court may not impose a "jury fee" for exercising right to jury trial. Howard v. State, 42 Fla. L. Weekly D595a (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2015/2423/152423_DC08_03102017_091400_i.pdf

COSTS: Court may not impose a public defender's fee in excess of the statutory minimum "without advising defendant of right to challenge the discretionary portion of the fee. Howard v. State, 42 Fla. L. Weekly D595a (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2015/2423/152423_DC08_03102017_091400_i.pdf

SHACKLING OF DEFENDANT: Where Defendant insists on wearing jail jumpsuit to trial, it is error to also require him to wear shackles, but the error is harmless. Henderson v. State, 42 Fla. L. Weekly D594d (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2016/0917/160917_DC05_03102017_092057_i.pdf

PLEA COLLOQUY: Court must conduct plea colloquy before accepting plea to violation of probation. Anderson v. State, 42 Fla. L. Weekly D594c (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2016/4656/164656_DC13_03102017_093650_i.pdf

POST CONVICTION RELIEF: Court must address claims of ineffective assistance of counsel where Defendant made it clear that he was raising separate claims for relief in a section entitled "Supporting Facts." Kelly v. State, 42 Fla. L. Weekly D594b (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2016/3020/163020_DC08_03102017_093429_i.pdf

JUVENILES-COMMITMENT LEVEL: Court may not deviate from DJJ recommendation of minimum-risk commitment without requisite findings. It is insufficient that the court have a legally sufficient basis to deviate from the recommendation: the Court must also articulate its understanding of the restrictiveness levels and why a minimum-risk commitment was not better suited to the juvenile's needs. The court's using "magic buzzwords" does not meet the strict requirements under E.A.R. M.J. v. State, 42 Fla. L. Weekly D592a (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2016/2613/162613_DC13_03102017_092417_i.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to object to comments linking gun to marijuana in closing argument where those comments were fair response to arguments presented by the defense. State v. Ling, 42 Fla. L. Weekly D591a (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2015/4714/154714_DC13_03102017_091610_i.pdf

JUROR CONDUCT: No fundamental error occurred when primary juror carried to the jury room the alternate juror's notepad just moments before the bailiff retrieved it at the trial court's request. Morgan v. State, 42 Fla. L. Weekly D590a (1st DCA 3/10/17)

https://edca.1dca.org/DCADocs/2016/1630/161630_DC05_03102017_092243_i.pdf

INFORMATION-SWORN TESTIMONY: Court is not required to dismiss information charging leaving the scene of an accident when it is based on the officer's sworn testimony not on the testimony of an eyewitness. A"material witness" under rule 3.140 is one whose testimony is both legally relevant and substantial. The threshold is whether the sworn testimony is sufficient to establish in the mind of a reasonable prosecutor that there exists probable cause to believe that the defendant committed the crime. The prosecutor is not necessarily limited to reliance on legally admissible evidence. State v. Gonzalez, 42 Fla. L. Weekly D585b (5th DCA 3/10/17)

http://www.5dca.org/Opinions/Opin2017/030617/5D15-4099.op.pdf

MANDATORY MINIMUM: It is error to impose consecutive mandatory minimum sentences for aggravated assault and possession of firearm by a convicted felon where the charges stemmed from same criminal episode. Simmons v. State, 42 Fla. L. Weekly D585a (5th DCA 3/10/17)

http://www.5dca.org/Opinions/Opin2017/030617/5D15-4529.op.pdf

DOUBLE JEOPARDY: Separate convictions for first-degree felony murder with a weapon, fleeing and eluding causing injury or death, and driving without a license causing bodily injury or death violated double jeopardy where the convictions arose out of a single course of conduct causing a single death. A single course of conduct causing a single death cannot support convictions for both a homicide offense and an offense enhanced by the same death. Conflict certified. Linton v. State, 42 Fla. L. Weekly D584a (5th DCA 3/10/17)

http://www.5dca.org/Opinions/Opin2017/030617/5D15-4394.op.pdf

POST CONVICTION RELIEF: Motion for postconviction relief is untimely when filed more than 2 years after the conviction is final and the evidence was not actually newly discovered. Lamb v. State, 42 Fla. L. Weekly D582c (5th DCA 3/10/17)

http://www.5dca.org/Opinions/Opin2017/030617/5D16-4266.op.pdf

RESISTING WITHOUT VIOLENCE: Juvenile may not be found guilty of resisting without violence 4 flight from Terry stop where there was insufficient ev idence that officer at all well-founded in reasonable suspicion to conduct a stop . Juvenile's proximity to a robbery suspects known direction of travel and unprovoked flight is insufficient to allow officer to form reasonable suspicion of criminal activity. Flight, standing alone, is insufficient to form the basis of a resisting without violence charge. B.M. v. State, 42 Fla. L. Weekly D581a (2nd DCA 3/10/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2010,%202017/2D15-4782.pdf

LIFE SENTENCE-JUVENILE: Prohibition on life sentences for juveniles without possibility of release is a constitutional right which is to be applied retroactively. Defendant is entitled to resentencing review hearing. Braxton v. State, 42 Fla. L. Weekly D580a (2nd DCA 3/10/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2010,%202017/2D15-3473.pdf

HABEAS CORPUS: Petitioner is entitled to a new trial on second-degree murder where the jury instruction on manslaughter by act was fundamentally erroneous, and prior petition raising claims of ineffective assistance of counsel was denied without explanation. New trial is necessary to avoid manifest injustice. Wardlow v. State, 42 Fla. L. Weekly D579a (2nd DCA 3/10/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2010,%202017/2D16-370..pdf

AGGRAVATED CHILD NEGLECT-JOA: Defendant who apparently drops child while swinging him by the ankles may be found guilty of felony battery but cannot be found guilty of aggravated child neglect for delaying adequate treatment. Poczatek v. State, 42 Fla. L. Weekly D575a (2nd DCA 3/10/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2010,%202017/2D16-370..pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: The 2009 NAS report does not constitute newly discovered evidence. Anderson v. State, 42 Fla. L. Weekly S286c (FLA 3/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc12-1252.pdf

DEATH PENALTY: Hurst v. Florida, requiring unanimous jury recommendation to impose to sentence, applies retroactively. Anderson v. State, 42 Fla. L. Weekly S286c (FLA 3/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc12-1252.pdf

QUOTATION: "Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense." Anderson v. State, 42 Fla. L. Weekly S286c (FLA 3/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc12-1252.pdf

FAILURE TO PRESERVE EVIDENCE: The State's constitutional duty to preserve evidence is limited to evidence that is exculpatory in which the Defendant would be unable to obtain comparable evidence by other reasonably available means. When the State failed to preserve potentially useful evidence due process violated only if the Defendant can show bad faith. The allegation that the evidence was allowed to deteriorate is insufficient here. Anderson v. State, 42 Fla. L. Weekly S286c (FLA 3/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc12-1252.pdf

SCIENTIFIC EVIDENCE: The legislative adoption of the Daubert standard in 2013 does not apply retroactively. Counsel for the Defendant was not ineffective or challenging the scientific evidence under Frye because fiber analysis was not novel scientific evidence. The Daubert standard is more lenient in terms of admitting novel scientific evidence than Frye. Anderson v. State, 42 Fla. L. Weekly S286c (FLA 3/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc12-1252.pdf

JURY INSTRUCTIONS-AMENDMENTS: Conspiracy instruction has the following language added: "Renunciation remains a defense to conspiracy to commit a crime where some harm was done." In re: Standard Jury Instructions in Criminal Cases, 42 Fla. L. Weekly S286b (FLA 3/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-724.pdf

DEATH PENALTY-HURST: Defendant is entitled to new sentencing hearing where jury made a non-unanimous recommendation of death and failed to make any factual findings as to aggravating and mitigating factors. Ault v. State, 42 Fla. L. Weekly S282 (3/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1551.pdf

COMPETENCY: Court is required to hold a hearing on juvenile's mental condition after attorney's statements gave ground to believe he was incompetent. A.L.Y. v. State, 42 Fla. L. Weekly D568a (4th DCA 3/8/17)

https://edca.4dca.org/DCADocs/2015/4391/154391_DC13_03082017_093903_i.pdf

10-20-LIFE: Defendant is not subject to mandatory minimum of 25 years imprisonment where the indictment did not allege that discharged the firearm causing death or great bodily harm. Error was not cured by the jury finding that the Defendant discharged a firearm causing death or great bodily harm. Bienaime v. State, 42 Fla. L. Weekly D567a (4th DCA 3585 17)

https://edca.4dca.org/DCADocs/2015/0163/150163_DC08_03082017_091426_i.pdf

JOA-POSSESSION WITH INTENT TO SELL: 3.31 grams of crack cocaine and $1086 on his person is insufficient to establish that the Defendant possessed the cocaine with intent to sell. Thomas v. State, 42 Fla. L. Weekly D563b (4th DCA 3/8/17)

https://edca.4dca.org/DCADocs/2015/3424/153424_DC13_03082017_093637_i.pdf

STATEMENTS OF DEFENDANT: Question regarding defendant's employment during booking process fell within "routine booking question" exception to Miranda. Tobiassen v. State, 42 Fla. L. Weekly D560a (4th DCA 3/8/17)

https://edca.4dca.org/DCADocs/2015/3076/153076_DC05_03082017_093333_i.pdf

STATEMENTS OF DEFENDANT-INTERROGATION: Confining suspect to holding cell for 4 hours does not subject a suspect to functional equivalent of interrogation.  Statements he made then are admissible. Gordon v. State, 42 Fla. L. Weekly D559a (4th DCA 3/8/17)

https://edca.4dca.org/DCADocs/2014/2901/142901_DC05_03082017_091048_i.pdf

STATEMENTS OF DEFENDANT-INTERROGATION: Statements made by detective to defendant generally expressing sympathy were not reasonably likely to elicit an incriminating response, and detective's response to defendant's question regarding likely charges did not initiate conversation, assume wrongdoing on defendant's part, or call for defendant to respond.  Gordon v. State, 42 Fla. L. Weekly D559a (4th DCA 3/8/17)

https://edca.4dca.org/DCADocs/2014/2901/142901_DC05_03082017_091048_i.pdf

JURY INSTRUCTION-KNOWLEDGE: Jury instruction which omitted defendant's knowledge of presence of substance is error regardless of Defendant's misidentification defense. Error not harmless. Terrell v. State, 42 Fla. L. Weekly D558a (4th DCA 3/8/17 )

https://edca.4dca.org/DCADocs/2015/0765/150765_DC13_03082017_091724_i.pdf

JUVENILES-SENTENCING: Court erred by departing from DJJ's recommended disposition without requesting restrictiveness level recommendation from DJJ. D.A.H. v. State, 42 Fla. L. Weekly D556a (4th DCA 3/8/17)

https://edca.4dca.org/DCADocs/2015/2645/152645_DC13_03082017_093151_i.pdf

LIFE SENTENCE-JUVENILE-HOMICIDE: Defendant who was sentenced to life imprisonment for second-degree murder committed when he was a juvenile is entitled to be resentenced under the new sentence review statute. Brown v. State, 42 Fla. L. Weekly D555a (3rd DCA 3/8/17)

http://www.3dca.flcourts.org/Opinions/3D15-2759.pdf

SENTENCING-CHILD PORNOGRAPHY: Court may consider reused unsworn victim impact statements maintained by the FBI when fashioning sentences for multiple counts of possession of child pornography. Conflict certified. Dickie v. State, 42 Fla. L. Weekly D547b (2nd DCA 3/8/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2008,%202017/2D15-2709.pdf

SENTENCING: Court commits fundamental error by suggesting that the sentence might've been different if the defendant had cooperated and admitted guilt. McDowell v. State, 42 Fla. L. Weekly D545a (1st DCA 3/7/17)

https://edca.1dca.org/DCADocs/2016/3227/163227_DC13_03072017_090050_i.pdf

JURY QUESTION: Court violated rule 3.410 by failing to consult with counsel before responding to question submitted by jury during deliberations. MacDonald v. State, 42 Fla. L. Weekly D544a (1st DCA 3/7/17)

https://edca.1dca.org/DCADocs/2014/4458/144458_DC13_03072017_084717_i.pdf

DOUBLE JEOPARDY: Double Jeopardy prohibits separate convictions for use of the computer service to solicit consent of parents to engage in unlawful sexual conduct with child and traveling to meet minor to engage in unlawful sexual conduct after using computer services where both charges were based on the same conduct of asking fictitious mother for sex with her fictitious child. Santiago-Morales v. State, 42 Fla. L. Weekly D543b (1st DCA 3/7/17)

https://edca.1dca.org/DCADocs/2015/1018/151018_DC08_03072017_085613_i.pdf

 

DISQUALIFICTION: Due Process requires disqualification of judge from presiding over a criminal case where the judge is under investigation for corruption by the prosecuting office. Rippo v. Baker, No. 16-6316 (US 3/6/17)


https://www.supremecourt.gov/opinions/16pdf/16-6316_32h6.pdf

 


GUIDELINES: The Federal Sentencing Guidelines, including §4B1.2(a)'s residual clause ("a crime of violence"), are not subject to vagueness challenges under the Due Process Clau Because they merely guide the district courts' discretion,the Guidelines are not amenable to a vagueness challenge. Beckles v. United States, No. 15-8544 (US 3/6/17)


https://www.supremecourt.gov/opinions/16pdf/15-8544_2co3.pdf

JURORS-RACIAL BIAS: Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee.   Pena-Rodriguez v. Colorado, No. 15-606 (US 3/6/17)


https://www.supremecourt.gov/opinions/16pdf/15-606_886b.pdf

 

JURY DELIBERATIONS: Where a juror makes a clear statement during deliberations that indicates he relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that Court consider evidence of the juror's statement. There must be a showing that a juror made statements that tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Exception to the rule that jury deliberations may not be intruded upon. Pena-Rodriguez v. Colorado, (US S.Ct. 3/6/17)



https://www.supremecourt.gov/opinions/16pdf/15-606_886b.pdf

 

QUOTATION: "It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history."   Pena-Rodriguez v. Colorado, (US S.Ct. 3/6/17)

https://www.supremecourt.gov/opinions/16pdf/15-606_886b.pdf

 

POST CONVICTION RELIEF: Post conviction court properly denied claim that counsel was ineffective for failure to advise defendant to accept plea offer and about all of pertinent matters relevant to his case. It was not ineffective assistance of counsel to say that Defendant had a possibility of being acquitted. Wait v. State, 42 Fla. L. Weekly D529c (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2016/1167/161167_DC05_03032017_090134_i.pdf

 

QUOTATION (DISSENT): "A criminal trial is not the occasion for hoping for a miracle at a client's expense." Wait v. State, 42 Fla. L. Weekly D529c (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2016/1167/161167_DC05_03032017_090134_i.pdf

 

GAIN TIME: Department has discretion to award 60 days of gain-time to inmates whose crimes were committed on or after October 1, 1995, and who have completed GED certificate, and Department should have, at minimum, considered prisoner's request. Newell v. State, 42 Fla. L. Weekly D538a (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2016/2025/162025_DC03_03032017_090344_i.pdf

 

EVIDENCE-PHOTOGRAPHS: Photograph showing victim's injuries is relevant to show that the knife was used in a deadly manner and the relevance was not substance that weighed by the danger of undue prejudice. Jackson v. State, 42 Fla. L. Weekly D537a (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2016/0144/160144_DC05_03032017_085933_i.pdf

 

SELF-DEFENSE-STAND YOUR GROUND: Stand your ground immunity and self-defense claim can be overcome where Defendant gave inconsistent versions of events and admitted he lied to law enforcement. Defendant's version of events need not be accepted merely because he is the only surviving witness to the fight. Early v. State, 42 Fla. L. Weekly D535b (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2015/0316/150316_DC05_03032017_083617_i.pdf

 

GAIN TIME: Department of Corrections is not required to apply gain time to multiple life sentences for offenses occurring prior to June 15, 1983. Diaz v. Jones, 42 Fla. L. Weekly D533a (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2016/3037/163037_DC02_03032017_090553_i.pdf

 

QUOTATION: "Compelling the Department of Corrections to deduct gain-time from a life sentence would clearly result in the sort of absurdity the court is constrained to eschew." Diaz v. Jones, 42 Fla. L. Weekly D533a (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2016/3037/163037_DC02_03032017_090553_i.pdf

 

 

IMPEACHMENT: Where defendant truthfully responded to prosecutor's questions whether he had ever been convicted of felony and the number of those prior convictions, trial court erred in allowing prosecutor to ask how many of defendant's prior felonies were crimes of dishonesty. Spradling v. State, 42 Fla. L. Weekly D529b (1st DCA 3/3/17)

https://edca.1dca.org/DCADocs/2016/0222/160222_DC05_03032017_090039_i.pdf

 

POST CONVICTION RELIEF: Court must not summarily deny facially insufficient claims for ineffective assistance of counsel without affording defendant an opportunity to amend. Washington v. State, 42 Fla. L. Weekly D528c (5th DCA 3/3/17)

http://www.5dca.org/Opinions/Opin2017/022717/5D16-2902.op.pdf

 

SENTENCING-JUVENILE-NONHOMICIDE: Juvenile who was sentenced to 25-years will be entitled to judicial review. Any sentence for a juvenile for a nonhomicide offense in excess of 20 years is entitled to judicial review. Burrows v. State, 42 Fla. L. Weekly D528b (5th DCA 3/3/17)

http://www.5dca.org/Opinions/Opin2017/022717/5D15-3478.op.pdf

 

POST CONVICTION RELIEF: Claim the plea was invalid because probation was not part of the plea agreement warrants an evidentiary hearing unless conclusively refuted by the record. Childs v. State, 42 Fla. L. Weekly D528a (5th DCA 3/3/17)

http://www.5dca.org/Opinions/Opin2017/022717/5D16-3638.op.pdf

 

MANDATORY MINIMUM-JURY FINDING: Where jury finds the defendant guilty of aggravated battery with a firearm as charged in the information, the court is required to impose the mandatory minimum under 10-20-life. Florida law does not require an express indication that special findings are made beyond a reasonable doubt when such indication may be inferred from the record. State v. Woodall, 42 Fla. L. Weekly D525a (5th DCA 3/3/17)

http://www.5dca.org/Opinions/Opin2017/022717/5D16-429.op.pdf

 

APPEAL-PRESERVATION-LESSER INCLUDED: A request for a lesser included offense jury instruction is preserved for appellate review where trial counsel makes a specific request, trial counsel sets forth required grounds for the request, and judge understands the request and denies it. Wong v. State, 42 Fla. L. Weekly S250a (FLA 3/2/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-2192.pdf

 

LESSER INCLUDED: Defendant, who was charged with both lewd or lascivious battery and lewd or lascivious molestation, was entitled to requested instruction on permissive lesser included offense of committing an unnatural and lascivious act where information alleged all of elements of unnatural and lascivious act and there was some evidence to support those allegations. Wong v. State, 42 Fla. L. Weekly S250a (FLA 3/2/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-2192.pdf

 

FIREARM-OPEN CARRY LAW: Law prohibiting openly carrying firearms does not infringe on Second Amendment. Norman v. State, 42 Fla. L. Weekly S239 (FLA 3/2/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-650.pdf

 

LIFE SENTENCE-JUVENILE: Court erred by summarily denying claim that mandatory sentence of life imprisonment with possibility of parole after twenty-five years was erroneously imposed for homicide defendant committed when he was a juvenile. New sentencing scheme applies retroactively. Wilkinson v. State, 42 Fla. L. Weekly D515e (3rd DCA 3/1/17)

http://www.3dca.flcourts.org/Opinions/3D16-0544.pdf

 

SENTENCING-JUVENILE: Due process violated by conducting part of sentencing hearing (testimony of Child's parent and DJJ representative) in absence of Child. C.D.C. v. State, 42 Fla. L. Weekly D511a (4th DCA 3/1/17)

https://edca.4dca.org/DCADocs/2015/4227/154227_DC13_03012017_091029_i.pdf

DOUBLE JEOPARDY: Separate convictions for burglary of dwelling with assault or battery while armed and masked, aggravated assault with deadly weapon while masked, and attempted sexual battery using great force or deadly weapon committed during same criminal episode do not violate double jeopardy. Courts should not look beyond the statutory elements when conducting a double jeopardy analysis. Conflict certified. Tambriz-Ramirez v. State, 42 Fla. L. Weekly D508b (4th DCA 3/1/17)

https://edca.4dca.org/DCADocs/2015/2957/152957_DC05_03012017_090110_i.pdf

DOUBLE JEOPARDY: Aggravated battery must be consecutive to shooting into an occupied vehicle by statute. When an unlawful sentence is corrected on motion for post conviction relief, the sentence must be restructured to run consecutively. Marshall v. State, 42 Fla. L. Weekly D507a (1st DCA 3/1/17)

https://edca.1dca.org/DCADocs/2014/2350/142350_DC08_03012017_084226_i.pdf

BURGLARY-JURY INSTRUCTIONS: No fundamental error where Court instructed in part that burglary requires intent to commit burglary where other parts of the instruction are not circular reasoning. Padilla v. State, 42 Fla. L. Weekly D503b (2nd DCA 3/1/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2001,%202017/2D15-1973.pdf

 

COMPETENCY: Court erred in failing to conduct proper competency hearing after court-appointed experts submitted written reports indicating defendant was competent and defense counsel stipulated. Cramer v. State, 42 Fla. L. Weekly D503a (2nd DCA 3/1/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2001,%202017/2D15-1434.pdf

 

SENTENCING: Court may not rely on Defendant's subsequent arrest in imposing sentence. Consideration of subsequent charges with which the defendant has not been convicted violates due process. New judge must resentence Defendant. Discussion. Fernandez v. State, 42 Fla. L. Weekly D502a (2nd DCA 3/1/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/March/March%2001,%202017/2D14-5886.pdf

 

 

FEBRUARY 2017

SECOND-DEGREE MURDER: A defendant may not be convicted of second-degree felony murder when the predicate offense is conspiracy to commit armed robbery. Smith v. State, 42 Fla. L. Weekly D488a (1st DCA 2/24/17)

https://edca.1dca.org/DCADocs/2015/4231/154231_DC08_02242017_092122_i.pdf

SENTENCING-WITHHOLD OF ADJUDICATION: Court may not withhold adjudication on felony drug case without placing Defendant on probation. Godil v. State, 42 Fla. L. Weekly D487a (5th DCA 2/24/17)

http://5dca.org/Opinions/Opin2017/022017/5D16-488.op.pdf

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL: Counsel was ineffective for not raising on direct appeal Court's failure to conduct Faretta hearing. Error is not harmless. Balzourt v. State, 42 Fla. L. Weekly D486b (5th DCA 2/24/17)

http://5dca.org/Opinions/Opin2017/022017/5D16-2929.op.pdf

SENTENCING: Resentencing before a different judge is required where immediately prior to sentencing trial court speculated about defendant's past behavior, for which there was no record basis and the subject matter of which was not relevant to sentence. Larry v. State, 42 Fla. L. Weekly D485a (5th DCA 2/24/17)

http://5dca.org/Opinions/Opin2017/022017/5D16-2929.op.pdf

SENTENCING-HOMICIDE-JUVENILE: Sentence of 50 years with a review after 25 years is lawful. Question certified whether Alleyne requires a jury to make factual findings as to whether the juvenile offender actually killed, intended to kill or attempted to kill the victim. Colon v. State, 42 Fla. L. Weekly D484c (5th DCA 2/24/17)

http://5dca.org/Opinions/Opin2017/022017/5D16-1789.op.pdf

NEW TRIAL: The standard for motion for new trial is the weight to the evidence, not the sufficiency of the evidence. Loudermilk v. State, 42 Fla. L. Weekly D484a (5th DCA 2/24/17)

http://5dca.org/Opinions/Opin2017/022017/5D16-728.op.pdf

SEARCH AND SEIZURE-INVESTIGATIVE STOP: Officer has reasonable suspicion of criminal activity where he observes the defendant roaming in and out of the wood line at 3 AM near home that was burglarized 30 minutes earlier and he ran into the woods when officers identified themselves. Flight alone is insufficient to raise reasonable suspicion but it may be considered among other factors. Grayson v. State, 42 Fla. L. Weekly D480b (5th DCA 2/24/17)

http://5dca.org/Opinions/Opin2017/022017/5D15-3128.op.pdf

JURORS: PEREMPTORY CHALLENGE: Age (youth) is not a protected cognizable class for an objection to a peremptory challenge claiming discrimination. Truehill v. State, 42 Fla. L. Weekly S223a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1514.pdf

EVIDENCE-OTHER CRIMES: Evidence of the defendant's escape from prison in a series of robberies and crimes between Louisiana in Florida is relevant and admissible dissimilar fact evidence. Truehill v. State, 42 Fla. L. Weekly S223a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1514.pdf

PROSECUTORIAL MISCONDUCT-ARGUMENT: Justice for the victim and message to the Defendant arguments ("let this defendant know you can't kidnap people") are improper, but here the error is harmless. Truehill v. State, 42 Fla. L. Weekly S223a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1514.pdf

PROSECUTORIAL MISCONDUCT: Slide show saying "The dead cannot cry out for justice. It is the duty of the living to do so for them." is an improper appeal to juror emotions to the jury's emotions and the "prosecutor's insistence that this was permissible is of great concern. . . [and] perverts the purpose of closing argument." But error is harmless.Truehill v. State, 42 Fla. L. Weekly S223a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1514.pdf

DEATH PENALTY: Where the recommendation for death is unanimous, Hurst does not preclude imposition of the death penalty on the grounds that the jury was advised that its recommendation was only advisory. Truehill v. State, 42 Fla. L. Weekly S223a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1514.pdf

STATEMENTS OF DEFENDANT-CUSTODIAL INTERROGATION: When interrogation is predominately accusatorial and confrontational in nature, taking place in police interrogation room, notwithstanding that police advised defendant, before she agreed to be questioned, that she was free to leave, as every other aspect of the two interrogations would have led reasonable persons to believe otherwise. Myers v. State, 42 Fla. L. Weekly S214a (FLA 2/23/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1486.pdf

JURY INSTRUCTION AMENDMENTS: Minor Amendments, no change to possession instruction. DUI instruction clarified. In re:Standard Jury Instructions, 42 Fla. L. Weekly S213a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-1681.pdf

SEARCH AND SEIZURE-FELLOW OFFICER RULE: Fellow officer rule does not allow blood draw at accident scene when the officer ordering the blood draw had not been told other officer's concern that defendant might be intoxicated. The fellow officer rule does not allow an officer to assume probable cause for an arrest or a search and seizure from uncommunicated information known solely by other officers. Montes-Valeton v. State, 42 Fla. L. Weekly S210a(2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1672.pdf

BLOOD DRAW-CONSENT: Consent is involuntary where officer, without probable cause, read the defendant the implied consent warnings that came with the blood draw kit and , threatening that a refusal would result in driver license suspension. Montes-Valeton v. State, 42 Fla. L. Weekly S210a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-1672.pdf

POST CONVICTION RELIEF: Claim that defendant received a mandatory minimum sentence based on jury finding that he possessed a firearm although information only charged carrying a firearm is not an illegal sentence, and cannot be corrected under rule 3.800. Martinez v. State, 42 Fla. L. Weekly S209a (FLA 2/23/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-1620.pdf

 

INEFFECTIVE ASSISTANCE: Counsel provided ineffective assistance of counsel under the Sixth Amendment by presenting a psychologist's testimony in penalty phase of murder trial that the Defendant's race (Black), is a factor "know[n]to predict future dangerousness."  Buck v. Davis, No. 15-8049 (US 2/22/17)

 

https://www.supremecourt.gov/opinions/16pdf/15-8049_f2ah.pdf

 

 

DISCOVERY-ATTORNEY-CLIENT PRIVILEGE: Trial court erred in denying public defender's motion for protective order from third-party subpoena duces tecum for deposition where information sought was communicated during attorney-client relationship and with the expectation that the information would remain confidential. Office of the Public Defender v. Lakicevic, 42 Fla. L. Weekly D476a (3rd DCA 2/22/17)

http://www.3dca.flcourts.org/Opinions/3D15-2084.pdf

EVIDENCE-RAPE SHIELD LAW: Defendant cannot invoke Rape Shield Law to limit victim's testimony. Portillo v. State, 42 Fla. L. Weekly D473a (3rd DCA 2/22/17)

http://www.3dca.flcourts.org/Opinions/3D15-2441.pdf

BOLSTERING: Unobjected-to testimony of lead investigator and unobjected-to comments during closing argument did not improperly bolster victim's credibility, and were invited by defense counsel. Pineda v. State, 42 Fla. L. Weekly D471a (3rd DCA 2/22/17)

http://www.3dca.flcourts.org/Opinions/3D15-2542.pdf

LIFE SENTENCE-JUVENILE: Defendant who was sentenced to life with possibility of parole for offense committed when he was a juvenile in 1972 is entitled to resentencing in conformance with recently enacted legislation under Atwell. Edwards v. State, 42 Fla. L. Weekly D464b (2nd DCA 2/22/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2022,%202017/2D15-5724.pdf

LIFE SENTENCE-JUVENILE: Defendant who was sentenced to life with possibility of parole for offense committed when he was a juvenile is entitled to resentencing in conformance with recently enacted legislation under Atwell. Burney v. State, 42 Fla. L. Weekly D464a (2nd DCA 2/22/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2022,%202017/2D16-162.pdf

PROHIBITION: Prohibition is available only to prevent a lower tribunal's unauthorized exercise of jurisdiction. Rule 3.151, which provides for dismissal of related offenses not consolidated for trial, does not implicate county court's jurisdiction to entertain prosecution on refusal charge. State v. Hamilton, 42 Fla. L. Weekly D459b (2nd DCA 2/22/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2022,%202017/2D16-2754.pdf

MASK: One is subject to the enhancement for wearing a mask even though one does not remain with the face covered during the entire criminal episode. L.D.H. v. State, 42 Fla. L. Weekly D450a (4th DCA 2/22/17)

https://edca.4dca.org/DCADocs/2016/0186/160186_DC05_02222017_091945_i.pdf

COMPETENCY: A retrospective evaluation after trial that the defendant is incompetent is unauthorized. Laster v. State, 42 Fla. L. Weekly D449a (4th DCA 2/22/17)

https://edca.4dca.org/DCADocs/2014/2068/142068_DC05_02222017_085437_i.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to request competency evaluation is sufficient for an evidentiary hearing. Dinnall v. State, 42 Fla. L. Weekly D448b (4th DCA 2/22/17)

https://edca.4dca.org/DCADocs/2016/0051/160051_DC08_02222017_091834_i.pdf

MANDATORY MINIMUM-CONSECUTIVE: Consecutive mandatory minimum sentences for offenses arising from same criminal episode and involving one victim and not involving discharge of firearm were improper. Lopez v. State, 42 Fla. L. Weekly D442a (1st DCA 2/21/17)

https://edca.1dca.org/DCADocs/2016/3828/163828_DC13_02212017_084819_i.pdf

BAIL-EXCESSIVENESS: Since petitioner asserts that she can post no bond over $10,000, and has not established that a bond over $10,000 is excessive, it would be an idle gesture for this court to find that $250,000 bond is excessive.Knight v. State, 42 Fla. L. Weekly D441a (1st DCA 2/21/17)

https://edca.1dca.org/DCADocs/2016/4322/164322_DC02_02212017_084931_i.pdf

DEATH PENALTY: Newly enacted death penalty sentencing statute which was found to be unconstitutional because it does not require a unanimous jury recommendation of sentence of death can constitutionally be applied to pending prosecutions if the jury unanimously recommends a sentence of death. Trial courts in pending prosecutions may properly proceed with death qualifying juries. Evans v. State, 42 Fla. L. Weekly S200a (FLA 2/20/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-1946.pdf

DUI: Second refusal to submit to breath alcohol test can properly be punished as a criminaloffense. Williams v. State, 42 Fla. L. Weekly D438a (5th DCA 2/17/17)

http://5dca.org/Opinions/Opin2017/021317/5D14-3543.op.pdf

DUI: Breath alcohol tests are permissible under the search incident to arrest exception to the Fourth Amendment's warrant requirement. Williams v. State, 42 Fla. L. Weekly D438a (5th DCA 2/17/17)

http://5dca.org/Opinions/Opin2017/021317/5D14-3543.op.pdf

DOUBLE JEOPARDY: DUI manslaughter and leaving scene of accident are not barred by double Jeopardy. Prestano v. State, 42 Fla. L. Weekly D436b (5th DCA 2/17/17)

http://5dca.org/Opinions/Opin2017/021317/5D16-2500.op.pdf

HABEAS CORPUS: Defendant cannot assert double jeopardy claim by habeas corpus where the issue could have been raised on direct appeal or by 3.850, but is now untimely. Double jeopardy cannot be raised under 3.800. Banks v. State, 42 Fla. L. Weekly D436a (5th DCA 2/17/17)

http://5dca.org/Opinions/Opin2017/021317/5D16-4323.op.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to object to improper argument (theory of defense is despicable, desperate, and a re-victimization of the victim) is sufficient to warrant a hearing. Neeley v. State, 42 Fla. L. Weekly D434a (2nd DCA 2/17/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2017,%202017/2D16-1183.pdf

ATTORNEY-MISAPPROPRIATION OF CLIENT FUNDS: Attorney who had used money intended for depositions and placed in operating account rather than the trust fund is suspended from the practice of law for one year. The Florida Bar v. Wynn, 42 Fla. L. Weekly S199a (FLA 2/16/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-1323.pdf

SCIENTIFIC EVIDENCE: Court declines to adopt legislative changes to §§ 90.702 and 90.704, to the extent they are procedural, changing the test for admissibility of scientific evidence from Frye to Daubert. Daubert may unconstitutionally infringe upon the right to trial by jury and access to the court. Court will wait until there is a case and controversy to determine the extent to which these rule changes are procedural or substantive or unconstitutional. In Re Amendments to the Florida Evidence Code, 42 Fla. L. Weekly S179a (FLA 2/16/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-181.pdf

HEARSAY ELDERLY ABUSE: Court declines to adopt legislative changes to §§ 90.803(24) allowing hearsay in cases of elderly abuse where witness is unavailable to the extent that the changes are procedural rather than substantive. Change may violate Crawford in the right of confrontation. Court will wait until there is a case and controversy to determine the extent to which these rule changes are procedural or substantive or unconstitutional. In Re Amendments to the Florida Evidence Code, 42 Fla. L. Weekly S179a (FLA 2/16/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-181.pdf

OTHER CRIMES, WRONGS OR ACTS: In case of a defendant accused of using the identity of a woman in Ohio to get telephones and open accounts in her name, it was error to admit evidence that the defendant had personal information of another woman in a different state. Evidence only showed defendant's propensity to commit bad acts. Defendant did not open the door in opening statements by submitting that someone else had committed the offenses. Goggins v. State, 42 Fla. L. Weekly D429a (1st DCA 2/16/17)

https://edca.1dca.org/DCADocs/2016/1216/161216_DC13_02162017_093146_i.pdf

COSTS: Court has no statutory authority to impose a venire fee. Brown v. State, 42 Fla. L. Weekly D427b (1st DCA 2/16/17)

https://edca.1dca.org/DCADocs/2015/2546/152546_DC08_02162017_092238_i.pdf

NEWLY DISCOVERED EVIDENCE: Standard for review of newly discovered evidence is whether defendant has established that the evidence was not known or knowable at time of the plea, and that there is a reasonable probability that, with such knowledge, defendant would not have pleaded guilty and would have gone to trial. Court erred by following the then-existing standard of manifest injustice and clear evidence. Perez v. State, 42 Fla. L. Weekly D413a (3rd DCA 2/15/17)

http://3dca.flcourts.org/Opinions/3D14-2530.pdf

ARGUMENT: Prosecutor referring to trial as a circus, accusing defense counsel of fabricating facts, and calling self-defense just a theory is improper. Error is harmless where no one but Defendant said self-defense and victim was shot seven times with two guns. Mora v. State, 42 Fla. L. Weekly D412a (3rd DCA 2/15/17)

http://3dca.flcourts.org/Opinions/3D15-1434.pdf

QUOTATION: "One imagines that improper argument of this kind might diminish if the prosecutor who created the issue at trial was required to research and write the appellee's brief, and then argue the appeal here." Mora v. State, 42 Fla. L. Weekly D412a (3rd DCA 2/15/17)

http://3dca.flcourts.org/Opinions/3D15-1434.pdf

RULES OF JUDICIAL ADMIN: Proposal for settlement must be served by E-Mail in order to get entitlement to attorney's fees. Wheaton v. Wheaton, 42 Fla. L. Weekly D411b (3rd DCA 2/15/17)

http://3dca.flcourts.org/Opinions/3D16-0490.pdf

IMPEACHMENT: Where defense counsel brought out exculpatory portions of defendant's statement during cross-examination of the detective under rule of completeness, State was entitled to bring out evidence of defendant's nine prior felonies and crimes of dishonesty. Conflict certified. Nock v. State, 42 Fla. L. Weekly D395a (4th DCA 2/15/17)

https://edca.4dca.org/DCADocs/2014/1240/141240_DC05_02152017_091657_i.pdf

RULE OF COMPLETENESS: Court properly found that state was not required to introduce entire video recording of defendant's conversation with detective under rule of completeness where state did not offer video into evidence. Rule of completeness only applies when the written or recorded statement is admitted, not when only testimony about the statement is admitted. Nock v. State, 42 Fla. L. Weekly D395a (4th DCA 2/15/17)

https://edca.4dca.org/DCADocs/2014/1240/141240_DC05_02152017_091657_i.pdf

SENTENCING: In sentencing defendant for sexual battery on person 12 years of age or older without physical force, trial court could properly consider similar fact evidence admitted at trial. Cabriano v. State, 42 Fla. L. Weekly D392a (4th DCA 2/15/17)

https://edca.4dca.org/DCADocs/2015/2649/152649_DC05_02152017_092626_i.pdf

POST CONVICTION RELIEF: Defendant waived right to supplement post conviction motion by failing to raise it at initial post conviction proceedings or appeal. Johnson v. State, 42 Fla. L. Weekly D391b (4th DCA 2/15/17)

https://edca.4dca.org/DCADocs/2016/2670/162670_DC05_02152017_093734_i.pdf

POSSESSION-KNOWLEDGE: Evidence that brass fitting found in defendant's pocket had been altered with copper mesh in order to smoke cocaine, and burnt cocaine was visible in fitting, was sufficient to support finding that defendant knew of the presence of cocaine. Although the the ordinary presumption that one has knowledge of drugs found in his possession may not apply when there are only trace amounts of drug 'lint' or 'dust,' the presumption does apply when the substance is found on an implement which is usable only for the obviously knowing use of the drug. Holloman v. State, 42 Fla. L. Weekly D391a (4th DCA 2/15/17)

https://edca.4dca.org/DCADocs/2016/1242/161242_DC05_02152017_093328_i.pdf

ANDERS BRIEF: Counsel writing Anders brief must master the trial record, thoroughly research the law, and identify any arguments that may be advanced on appeal.
Redmon v. State, 42 Fla. L. Weekly D389b (1st DCA 2/14/17)

https://edca.1dca.org/DCADocs/2016/0225/160225_DC05_02142017_081324_i.pdf

COSTS: Error to impose appointed attorney lien payment assessment in excess of statutory minimum without notice and opportunity to be heard. Trusty v. State, 42 Fla. L. Weekly D388a (1st DCA 2/14/17)

https://edca.1dca.org/DCADocs/2015/1233/151233_DC08_02142017_081040_i.pdf

COSTS: Error to impose cost for Gulf Coast College Community Justice Assessment Center where offense did not involve a motor vehicle. Trusty v. State, 42 Fla. L. Weekly D388a (1st DCA 2/14/17)

https://edca.1dca.org/DCADocs/2015/1233/151233_DC08_02142017_081040_i.pdf

COSTS: Error to impose fine for Drug Abuse Trust Fund where offense did not involve alcohol or drugs. Trusty v. State, 42 Fla. L. Weekly D388a (1st DCA 2/14/17)

https://edca.1dca.org/DCADocs/2015/1233/151233_DC08_02142017_081040_i.pdf

STATEMENTS OF DEFENDANT: Child is not in custody when questioned while sitting in the driveway with her friend when the officer walked up and started conversation about the purse with the marijuana in it. A reasonable child would believe she was free to leave, notwithstanding that the officer believed she was not free to leave. State v. M.C., 42 Fla. L. Weekly D383a (2nd DCA 2/10/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2010,%202017/2D15-2734.pdf

RESISTING WITHOUT VIOLENCE: "Simply put, the odor of marijuana emanating from a group cannot, by itself, form the basis of a lawful detention of any particular member of that group. Nor can the fact that each member of the group engulfed in "billowing smoke," as the officer testified, smelled equally of marijuana." Officer was not engaged in lawful execution of legal duty, so juvenile's refusal to be searched could not support charge of obstructing an officer without violence. B.G. v. State, 42 Fla. L. Weekly D382a (2nd DCA 2/10/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2010,%202017/2D15-5380.pdf

POST CONVICTION RELIEF: Expression of satisfaction with counsel during plea colloquy was not a valid basis for denying relief. Failing to investigate alerting K-9's records is facially sufficient claim of ineffective assistance of counsel. Sanchez v. State, 42 Fla. L. Weekly D380b (2nd DCA 2/10/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2010,%202017/2D16-1510.pdf

PROSECUTORIAL MISCONDUCT: Prosecutor's inappropriate remarks during closing argument, including repeatedly referring to defendant as a pedophile, making an inappropriate justice for the victim argument, and falsely stating that defendant had admitted to inappropriate sexually-related activities with victim, constituted fundamental error. Florida Bar is notified for purposes of discipline. Rodriguez v. State, 42 Fla. L. Weekly D369d (5th DCA 2/10/17)

http://5dca.org/Opinions/Opin2017/020617/5D15-3622.op.pdf

POST CONVICTION RELIEF: Court erred in failing to consider claim that counsel was ineffective for failing to move to suppress defendant's confession on basis that she was too intoxicated to waive her constitutional rights. Dingey v. State, 42 Fla. L. Weekly D369c (5th DCA 2/10/17)

http://5dca.org/Opinions/Opin2017/020617/5D16-3326.op.pdf

BURGLARY-AFFIRMATIVE DEFENSE: Court must give jury instruction on the affirmative defense that Defendant was licensed to enter the dwelling where there is some evidence to support that affirmative defense. Pilafjian v. State, 42 Fla. L. Weekly D366a (5th DCA 2/10/17)

http://5dca.org/Opinions/Opin2017/020617/5D15-4057.op.pdf

SENTENCING-MURDER BY JUVENILE: Where Defendant did not actually possess or discharged a firearm during the crime, Court did not err in denying defendant's motion to impanel jury to make the factual finding as to whether the defendant actually killed, intended to kill or attempted to kill the victim. Question Certified: Does Alleyne allow the trial court to make the factual finding as to whether a juvenile offender actually killed, intended to kill, or attempted to kill the victim? Williams v. State, 42 Fla. L. Weekly D363b (5th DCA 2/10/17)

http://5dca.org/Opinions/Opin2017/020617/5D16-1348.op.pdf

PLEA WITHDRAWAL: Court abused discretion in summarily denying motion to withdraw plea which alleged the state withheld exculpatory information until after sentencing. Moody v. State, 42 Fla. L. Weekly D363a (5th DCA 2/10/17)

http://5dca.org/Opinions/Opin2017/020617/5D15-4380.op.pdf

SEARCH AND SEIZURE-INCIDENT TO ARREST: District school board officer had no probable cause to arrest defendant who was walking on track on school property at nighttime for trespass on school property where the school kept the track open at night and posted signs inviting the public to access the track after school hours. State v. Rand, 42 Fla. L. Weekly D352e (1st DCA 2/10/17)

https://edca.1dca.org/DCADocs/2015/0335/150335_DC05_02102017_081432_i.pdf

SEARCH AND SEIZURE-INCIDENT TO ARREST: "The bottom line here is that the officer disregarded the school's open-track policy. He said he 'didn't take the time to look at the sign right in front of the gate' and he didn't investigate Mr. Rand's reasons for being at the track. Under these circumstances, we find no error in the trial court's decision not to give the officer's sloppy work a Fourth Amendment pass." State v. Rand, 42 Fla. L. Weekly D352e (1st DCA 2/10/17)

https://edca.1dca.org/DCADocs/2015/0335/150335_DC05_02102017_081432

PROBATION-CONDITIONS: Court erred in imposing a condition of probation requiring Defendant to obtain a GED or high school diploma. Silas v. State, 42 Fla. L. Weekly D352a (1st DCA 2/10/17)

https://edca.1dca.org/DCADocs/2015/3335/153335_DC08_02102017_082113_i.pdf

JURY INSTRUCTIONS-WELFARE FRAUD: Standard jury instruction for welfare fraud modified to include EBT card. In re: Standard Jury Instructions, 42 Fla. L. Weekly S150a (FLA 2/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-1184.pdf

APPEALS-PRESERVATION OF ISSUE: State is not required to object to a downward departure sentence in order to preserve the issue for appellate review where state argued against the downward departure. State v. Wiley, 42 Fla. L. Weekly S149a (FLA 2/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-2389.pdf

JUROR MISCONDUCT: New trial is not required where juror claimed that jurors conducted internet research into meaning of Defendant's facial tattoo, but Court deemed the claim not credible. Dubose v. State, 42 Fla. L. Weekly S143a (FLA 2/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc10-2363.pdf

CURTILAGE: Gap in fence to allow for driveway does not prevent the area being considered the curtilage of a house. Dubose v. State, 42 Fla. L. Weekly S143a (FLA 2/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc10-2363.pdf

CHANGE OF VENUE: Court did not err in denying motion for change of venue on ground that it was impracticable to obtain qualified jury in county where action was pending due to pretrial publicity. Knowledge of the incident because of its notoriety is not, in and of itself, grounds for a change of venue. Dubose v. State, 42 Fla. L. Weekly S143a (FLA 2/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc10-2363.pdf

DEATH PENALTY: Hurst violation occurred where jury did not find the existence of aggravators was proven beyond reasonable doubt, that the aggravators were sufficient to impose death, and that the aggravators outweighed mitigators. Dubose v. State, 42 Fla. L. Weekly S143a (FLA 2/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc10-2363.pdf

JURY INSTRUCTIONS: Knowledge element added to standard jury instructions on assaults on state attorneys, judges. In Re: Standard Jury Instructions, 42 Fla. L. Weekly S142a (FLA 2/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-1185.pdf

LIFE IMPRISONMENT-JUVENILE-NON-HOMICIDE: Defendant who was initially sentenced to life imprisonment for nonhomicide offenses committed while he was a juvenile is entitled to resentencing under new juvenile sentencing legislation. A defendant whose original sentence violated Graham v. Florida, and who was thereafter resentenced, is entitled to resentencing under 77.082(3)(c) and 921.1402. Grantley v. State, 42 Fla. L. Weekly D349g (3rd DCA 2/8/17)

http://www.3dca.flcourts.org/Opinions/3D10-0173.pdf

STATEMENTS OF DEFENDANT: Court did not err in failing to suppress statement based on law enforcement's failure to explicitly advise defendant of his right to stop interrogation at any time where warning implicitly included the right to stop questioning.. Prior precedents receded from. Morris v. State, 42 Fla. L. Weekly D346c (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2014/3303/143303_DC05_02082017_083559_i.pdf

COMPETENCY: Court erred by proceeding with change of plea hearing without determining defendant's competency where trial court had earlier ordered a competency evaluation. Bain v. State, 42 Fla. L. Weekly D346b (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2016/0536/160536_DC13_02082017_085946_i.pdf

CHILD PORNOGRAPHY: Video evidence showing young girls undressing and using bathroom in defendant's home and several of which showed the defendant entering bathroom and activating recording device is probative of identity of owner of the child porn. Scott v. State, 42 Fla. L. Weekly D346a (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2014/4658/144658_DC05_02082017_083730_i.pdf

ALLOCUTION: Court erred in forcing defendant to be sworn in before his allocution at sentencing hearing and in subjecting defendant to cross-examination. A criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution, not subject to cross-examination. Guerra v. State, 42 Fla. L. Weekly D345b (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2015/1328/151328_DC13_02082017_083903_i.pdf

APPEALS-PRESERVATION-SELF-DEFENSE: No fundamental error in failing to give unrequested deadly force self-defense instruction in robbery/battery case. Non-deadly force instruction was given. Objection was required to preserve issue. Gregory v. State, 42 Fla. L. Weekly D345a (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2015/1867/151867_DC05_02082017_084335_i.pdf

LIFE SENTENCE-JUVINILE-HOMICIDE, NON-HOMICIDE: Defendant who received life sentence for murder committed as juvenile and sentence of 45 years' imprisonment for robbery committed as juvenile is entitled to new sentencing hearing. A defendant whose original sentence violated Graham v. Florida and who was subsequently resentenced prior to July 1, 2014, is entitled to be resentenced with possibility of sentence review. O'Neal v. State, 42 Fla. L. Weekly D343a (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2014/0602/140602_DC13_02082017_083307_i.pdf

BURGLARY OF DWELLING: Defendant who entered an attached porch with intent to commit a crime is guilty of burglary of a dwelling. Morlas v. State, 42 Fla. L. Weekly D341a (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2015/3148/153148_DC05_02092017_104750_i.pdf

EVIDENCE: Evidence of a high speed car chase in which defendant was a passenger is inextricably intertwined with burglary and relevant to establish consciousness of guilt. Morlas v. State, 42 Fla. L. Weekly D341a (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2015/3148/153148_DC05_02092017_104750_i.pdf

BURGLARY, PORN AND MR. ED: "[T]he area at issue constitutes an "attached porch" and, as such, a "dwelling." United States Supreme Court Justice Potter Stewart famously said of pornography, "I know it when I see it.". . .To rephrase a popular 1960s television show theme, "a porch is a porch of course, of course," and the reasonable person (and perhaps a Supreme Court Justice as well), when viewing this area, would conclude, as do we, that it is an "attached porch." Morlas v. State, 42 Fla. L. Weekly D341a (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2015/3148/153148_DC05_02092017_104750_i.pdf

DEPORTATION: Court erred by denying defendant's motion for postconviction relief seeking to vacate conviction on grounds that it would subject to mandatory deportation. State v. Pierre-John Lundy, 42 Fla. L. Weekly D338a (4th DCA 2/8/17)

https://edca.4dca.org/DCADocs/2015/3829/153829_DC13_02082017_085428_i.pdf

COMPETENCY: Where Child had been referred for competency evaluation and been found competent to proceed by two doctors, court may not proceed to bench trial without conducting competency hearing and entering and appropriate written order. Court may not rely on stipulations of counsel about the results of the evaluation reports. B.R.C. v. State, 42 Fla. L. Weekly D337a (2nd DCA 2/8/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2008,%202017/2D15-3718.pdf

CONSTRUCTIVE POSSESSION: JOA is required where only evidence of possession of bag of methamphetamine in a jointly occupied vehicle was the defendant's proximity to the bag and his unusual behavior (not making eye contact). Sanders v. State, 42 Fla. L. Weekly D336a (2nd DCA 2/8/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2008,%202017/2D15-2360.pdf

JURY PARDON--LESSER INCLUDED: Failure to instruct jury on simple battery, the next immediate necessarily lesser-included offense of battery within detention facility, was per se reversible error, even though no reasonable jury could have determined that the battery in this case did not take place in a detention facility. Discussion. Question certified. Lewis v. State, 42 Fla. L. Weekly D328b (1st DCA 2/7/17)

https://edca.1dca.org/DCADocs/2015/3807/153807_DC13_02072017_081358_i.pdf

JURY PARDON: 'There can be no reconciliation among the jury pardon doctrine, present-day standard jury instructions, and the required oath of jurors. . . [I]n navigating their duty to follow the law and to properly consider the evidence, while retaining the option of jury nullification, present day jurors in Florida shoulder an immediate ethical burden and confront obvious conflicts of interest. . . This deontic debate over the jury pardon stems from the preservation of an archaic doctrine (once purposeful and necessary) in a modern legal forum, the result of which is jury conflict of interest, jury instructions laced with mutually exclusive theory, and subsequent and inevitable judicial inefficiency." Lewis v. State, 42 Fla. L. Weekly D328b (1st DCA 2/7/17)

https://edca.1dca.org/DCADocs/2015/3807/153807_DC13_02072017_081358_i.pdf

MANDATORY MINIMUM-CONSECUTIVE: Consecutive mandatory minimum sentences for multiple firearm offenses were impermissible where offenses arose from same criminal episode and jury specifically found that defendant but did not discharge firearm. Clark v. State, 42 Fla. L. Weekly D326a (1st DCA 2/7/17)

https://edca.1dca.org/DCADocs/2016/1255/161255_DC08_02072017_082531_i.pdf

MANDATORY MINIMUM-CONSECUTIVE: Consecutive mandatory minimum terms under 10-20-Life statute are permissible, but not mandatory, where defendant shot at multiple victims. Lumpkin v. State, 42 Fla. L. Weekly D325a (1st DCA 2/7/17)

https://edca.1dca.org/DCADocs/2015/3431/153431_DC13_02072017_081217_i.pdf

DOUBLE JEOPARDY: Double jeopardy is not violated where court changes "will" to "may" it was clear from the record that early termination of probation and the use of the term "will" was a scrivener's error. Nilio v. State, 42 Fla. L. Weekly D317f (1st DCA 2/3/17)

https://edca.1dca.org/DCADocs/2015/3453/153453_DC05_02032017_091345_i.pdf

UPWARD DEPARTURE: Upon violation of probation, where the Defendant scored 22 points or less for a non-forcible third-degree felony the court must impose nonstate prison sanctions in the absence of written findings that such a sentence would present a danger to the public. Terry v. State, 42 Fla. L. Weekly D317e (1st DCA 2/3/17)

https://edca.1dca.org/DCADocs/2016/2711/162711_DC13_02032017_092829_i.pdf

FELONY BATTERY: "Counterintuitive though it may be, felony battery is not a forcible felony since a battery can be committed by touching another against the person's will." Terry v. State, 42 Fla. L. Weekly D317e (1st DCA 2/3/17)

https://edca.1dca.org/DCADocs/2016/2711/162711_DC13_02032017_092829_i.pdf

POST CONVICTION RELIEF: Claim that Defendant rejected the plea offer based on counsel policy is misadvised that his recorded statement cannot be admitted in evidence is sufficient to warrant an evidentiary hearing. Gray v. State, 42 Fla. L. Weekly D314b (5th DCA 2/3/17)

http://5dca.org/Opinions/Opin2017/013017/5D16-3260.op.pdf

FORFEITURE-PROBABLE CAUSE: Methamphetamine residue on a glass pipe in a vehicle is sufficient to warrant forfeiture of the vehicle. Brevard County Sheriff's Office v. Brown, 42 Fla. L. Weekly D312a (5th DCA 2/3/7)

http://5dca.org/Opinions/Opin2017/013017/5D15-3390.op.pdf

MURDER-PREMEDITATION: Evidence that victim was shot four times in rapid succession was insufficient to support a finding of premeditation. Offense is reduced to second degree murder. Barnes v. State, 42 Fla. L. Weekly D310a (5th DCA 2/3/17)

http://5dca.org/Opinions/Opin2017/013017/5D15-2798.op.pdf

APPEALS-JURISDICTION: Trial Court may not deny motion to withdraw plea after notice of appeal has been filed because it is divested of jurisdiction. Gipson v. Gipson, 42 Fla. L. Weekly D305a (2nd DCA 2/3/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2003,%202017/2D15-4671.pdf

CONSPIRACY: Multiple convictions arising from a single conspiracy, even if the conspiracy has multiple objectives, violate double jeopardy. Conspiring to kill two people for different reasons is one conspiracy. Batson v. State, 42 Fla. L. Weekly D301a (4th DCA 2/1/17)

https://edca.4dca.org/DCADocs/2015/2728/152728_DC13_02012017_085123_i.pdf

ARGUMENT-BURDEN SHIFTING: State did not improperly shift the burden of proof by suggesting an argument that the Defendant's girlfriend and employee would have been cooperative with police if his self-defense claim were true. Pacetti v. State, 42 Fla. L. Weekly D293b (4th DCA 2/1/17)

https://edca.4dca.org/DCADocs/2015/2728/152728_DC13_02012017_085123_i.pdf

MANDATORY MINIMUM: Court may not impose consecutive mandatory minimum sentences for multiple convictions where the gun was not fired and the offenses arose out of the same criminal episode. Tolbert v. State, 42 Fla. L. Weekly D290a (4th DCA 2/1/17)

https://edca.4dca.org/DCADocs/2015/3926/153926_DC08_02012017_085826_i.pdf

SPEEDY TRIAL-RECAPTURE: Immediate discharge is appropriate where the information, which was sealed, was inaccessible to defendant during speedy trial. And he was not notified of the charges until after speedy trial had expired, and thus could not have known the need to file a notice of expiration. State is not entitled to recapture. Irrelevant whether state or clerk intended to conceal the information from the defendant. State v. Drake, 42 Fla. L. Weekly D287a (2nd DCA 2/1/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/February/February%2001,%202017/2D14-4916.pdf

 

JANUARY 2017


SEARCH AND SEIZURE-RESIDENCE-HOT PURSUIT: Warrantless home entry is not justified by hot pursuit when underlying conduct is a nonviolent misdemeanor and evidence related thereto is outside the home. State v. Markus, 42 Fla. L. Weekly S98a (FLA 1/31/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-801.pdf

APPEALS-DRIVER'S LICENSE-ADMINISTRATIVE REVIEW: A circuit court must review and consider video evidence of the events which are of record as part of its competent, substantial evidence analysis in first tier administrative review. Evidence which is totally contradicted and totally negated and refuted by video evidence of record, is not competent, substantial evidence. Wiggins v. FDHSMV, 42 Fla. L. Weekly S85a (FLA 1/31/17)

http://www.floridasupremecourt.org/decisions/2017/sc14-2195.pdf

SEARCH AND SEIZURE-PLAIN VIEW: Seizure is lawful under plain view where officer entered car to retrieve defendant's cash for safekeeping, not to search for evidence. State v. Johnson, 42 Fla. L. Weekly D281b (1st DCA 1/31/17)

https://edca.1dca.org/DCADocs/2015/5289/155289_DC13_01312017_081246_i.pdf

CONSPIRACY: Defendant cannot be convicted of conspiracy where there is no evidence of an agreement between defendant and another person to sell cocaine. Defendant saying he is going to get cocaine to sell to informant, going to two houses, then coming back with crack is insufficient to show conspiracy. Error is fundamental. George v. State, 42 Fla. L. Weekly D274b (5th DCA 1/27/17)

http://5dca.org/Opinions/Opin2017/012317/5D16-2190.op.pdf

LIFE SENTENCE-JUVENILE: On sentence review, where defendant was sentenced to both terms of years on some counts in life imprisonment on another, the Court is required to consider the aggregate prison sentence. Purdy v. State, 42 Fla. L. Weekly D272a (5th DCA 1/27/17)

http://5dca.org/Opinions/Opin2017/012317/5D16-370.op.pdf

MANDATORY MINIMUM: Three-year minimum mandatory for armed robbery and armed carjacking are required to run concurrently, not consecutively. Purdy v. State, 42 Fla. L. Weekly D272a (5th DCA 1/27/17)

http://5dca.org/Opinions/Opin2017/012317/5D16-370.op.pdf

POST CONVICTION RELIEF-DEATH PENALTY-INTELLECTUAL DISABILITY: Defendant who was earlier afforded an evidentiary hearing on intellectual disability and denied relief is entitled to a new hearing so that his claim can be reviewed within the new parameters of Hall v. State which requires all prongs of the intellectual disability test to be considered together holistically. Hall v. State applies retroactively. Franqui v. State, 42 Fla. L. Weekly S29a (FLA 1/26/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-1441.pdf

SEQUESTRATION: Florida Evidence Code is not applicable to administrative proceedings; sequestration of witnesses is not required. Florida Industrial Power Users Group v. Graham, 42 Fla. L. Weekly S42a (1st DCA 1/26/17)

http://www.floridasupremecourt.org/decisions/2017/sc15-2146.pdf

SEQUESTRATION: Daughter of murder victim as next of kin is entitled to remain in courtroom in spite of rule of sequestration. Daughtry v. State, 42 Fla. L. Weekly D262a (4th DCA 1/25/17)

https://edca.4dca.org/DCADocs/2014/1939/141939_DC05_01252017_084949_i.pdf

EVIDENCE-PRESERVATION OF ISSUE: Claim that Court erred by allowing testimony about typical beliefs of drug dealers is not properly preserved where the objection was only based on speculation. Orton v. State, 42 Fla. L. Weekly D256a (4th DCA 1/25/17)

https://edca.4dca.org/DCADocs/2015/1540/151540_DC05_01252017_085923_i.pdf

CARRYING CONCEALED FIREARM-JOA: Defendant cannot be convicted of carrying a concealed firearm found under the front seat of the vehicle when the Defendant was already at his vehicle when officer approached. Brunson v. State, 42 Fla. L. Weekly D254a (4th DCA 1/25/17)

https://edca.4dca.org/DCADocs/2015/2704/152704_DC13_01252017_091327_i.pdf

EVIDENCE-OPINION: Lay witness opinion is admissible if it is within the ken of an intelligent person with a degree of experience. Everett v. State, 42 Fla. L. Weekly D242a (3rd DCA 1/25/17)

http://www.3dca.flcourts.org/Opinions/3D15-1219.pdf

JUDGMENT OF ACQUITTAL: "A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law." Chavis v. State, 42 Fla. L. Weekly D241d (3rd DCA 1/25/17)

http://www.3dca.flcourts.org/Opinions/3D15-2294.pdf

POST CONVICTION RELIEF: Appellate counsel was not ineffective for failing to argue that police officers were acting outside their jurisdiction when they were acting under a mutual aid agreement. Aldin v. State, 42 Fla. L. Weekly D236a (3rd DCA 1/25/17)

http://www.3dca.flcourts.org/Opinions/3D14-3144.pdf

LIFE SENTENCE-HOMICIDE-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. Miller v. State, 42 Fla. L. Weekly D229a (3rd DCA 1/25/17)

http://www.3dca.flcourts.org/Opinions/3D15-2492.rh2.pdf

MOTION FOR NEW TRIAL-JURORS: Court did not abuse discretion in denying motion for new trial based on juror's post-trial interview indicating he did not believe the State had proven the charge, despite acknowledging that they had reached an anonymous verdict. Woodruff v. State, 42 Fla. L. Weekly D226b (3rd DCA 1/25/17)

http://www.3dca.flcourts.org/Opinions/3D15-1892.pdf

EVIDENCE: Evidence that the victim had falsely claimed to be pregnant from a different person is irrelevant and inadmissible in lewd and lascivious case. Woodruff v. State, 42 Fla. L. Weekly D226b (3rd DCA 1/25/17)

http://www.3dca.flcourts.org/Opinions/3D15-1892.pdf

DEATH PENALTY-NOTICE: Rather than striking death penalty notice, court should sever those portions of the notice which do not require unanimity of a death recommendation. Question certified. State v. Quinones, 42 Fla. L. Weekly D263b (5th DCA 1/24/17)

http://5dca.org/Opinions/Opin2017/012317/5D16-4292.op.pdf

HABEAS CORPUS: Jurisdiction for petition of habeas corpus is in the county where the defendant was convicted, not where he is incarcerated. Torres v. State, 42 Fla. L. Weekly D222a (1st DCA 1/23/17)

https://edca.1dca.org/DCADocs/2016/1602/161602_DC05_01232017_091830_i.pdf

POST CONVICTION RELIEF: Defendant is not entitled to relief and claimed that appellate counsel was ineffective for not arguing that mandatory minimum sentences do not have to be consecutive where the Supreme Court decision so holding was not released until after the opinion and mandate in his case. Watts v. State, 42 Fla. L. Weekly D221a (1st DCA 1/23/16)

https://edca.1dca.org/DCADocs/2016/1765/161765_DC02_01232017_091931_i.pdf

SEXUAL PREDATOR: Court may not use as the predicate prior conviction for sexual predator designation where the conviction on the predicate conviction were entered after the offense for which defendant was being designated a sexual predator occurred. Hardy v. State, 42 Fla. L. Weekly D214d (5th DCA 1/20/16)

http://5dca.org/Opinions/Opin2017/011617/5D16-3636.op.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective for advising defendant to reject plea offer was not conclusively refuted by record. Webb v. State, 42 Fla. L. Weekly D214a (5th DCA 1/20/17)

http://5dca.org/Opinions/Opin2017/011617/5D16-3139.op.pdf

POST CONVICTION RELIEF: Defendant who was sentenced to life in prison with possibility of parole is entitled to resentencing in conformance with recent legislation because the existing parole system does not comply with Miller. Frazier v. State, 42 Fla. L. Weekly D211b (2nd DCA 1/20/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/January/January%2020,%202017/2D15-5244.pdf

POST CONVICTION RELIEF: Defendant who was sentenced to life in prison with possibility of parole is entitled to resentencing in conformance with recent legislation because the existing parole system does not comply with Miller. Wells v. State, 42 Fla. L. Weekly D211a (2nd DCA 1/20/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/January/January%2020,%202017/2D15-5618.pdf

DISCOVERY: The fact that the state is unaware of an incident report does not relieve it of its duty to disclose it. The state, not the defense has the burden to show that the defense was not prejudiced. Wagner v. State, 42 Fla. L. Weekly D204a (3rd DCA 1/18/17)

http://3dca.flcourts.org/Opinions/3D16-0298.pdf

RESENTENCING: Court does not have jurisdiction to resentence defendant 3 years after the original sentence based on defendant's violation of sentencing agreement which provided for the defendant to be resentenced to 35 years in prison if he engaged in certain behavior (filing complaints or motions for post-conviction relief). Jurisdiction cannot be created by agreement of the parties. Watson v. State, 42 Fla. L. Weekly D188a(4th DCA 1/18/17)

https://edca.4dca.org/DCADocs/2014/4394/144394_DC13_01182017_082849_i.pdf

SEARCH AND SEIZURE-PROTECTIVE SWEEP: Mere suspicion that there may have been other people on premises not sufficient to justify intrusion into the curtilage. Daniels v. State, 42 Fla. L. Weekly D184a (2nd DCA 1/18/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/January/January%2018,%202017/2D15-4371.pdf

SEARCH AND SEIZURE-WARRANT: Observations made by officer from the curtilage of the home cannot be used to support probable cause; warrant is otherwise insufficient place of employment without those observations. Daniels v. State, 42 Fla. L. Weekly D184a (2nd DCA 1/18/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/January/January%2018,%202017/2D15-4371.pdf

SEARCH AND SEIZURE: Mere fact that readily ascertainable details such as defendant's location were verified does not show that tipster had knowledge of concealed criminal activity. Daniels v. State, 42 Fla. L. Weekly D184a (2nd DCA 1/18/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/January/January%2018,%202017/2D15-4371.pdf

APPEALS: Court has no jurisdiction to rule on Defendant's motion to withdraw plea where notice of appeal had been filed. Flores v. State, 42 Fla. L. Weekly D181b (4th DCA 1/18/17)

https://edca.4dca.org/DCADocs/2015/3457/153457_DC13_01182017_084810_i.pdf

CREDIT FOR TIME SERVED: Court may not give credit to time spent on community control towards the pre-year mandatory minimum sentence when the defendant is resentenced after appeal. State v. Bray, 42 Fla. L. Weekly D180b (4th DCA 1/18/17)

https://edca.4dca.org/DCADocs/2015/4576/154576_DC13_01182017_085746_i.pdf

COSTS: Court may not impose public defender fee in excess of statutory minimum without requiring proof of amount of fees imposed. Alexis v. State, 42 Fla. L. Weekly D185a (4th DCA 1/18/17)

https://edca.4dca.org/DCADocs/2015/2201/152201_DC13_01182017_084011_i.pdf

CONTEMPT: Juvenile may not be arrested for failing to appear at contempt proceedings where record does not show that the juvenile was properly served. Appearing at hearing to contest jurisdiction and lack of service does not waive the requirement service of process. J.L. v. State, 42 Fla. L. Weekly D174a (1st DCA 1/17/17)

https://edca.1dca.org/DCADocs/2016/3236/163236_DC03_01172017_091532_i.pdf

HABITUAL OFFENDER-PREDICATE CONVICTIONS: Court may not rely upon a prior felony conviction and a violation of probation in the same case as the 2 qualifying convictions to sentence the defendant as a habitual offender. Dallas v. State, 42 Fla. L. Weekly D173c (1st DCA 1/17/17)

https://edca.1dca.org/DCADocs/2016/3236/163236_DC03_01172017_091532_i.pdf

RESTITUTION: Court may not enter restitution order without 1st holding a hearing to determine the amount absent agreement or stipulation between the parties. Johnson v. State, 42 Fla. L. Weekly D173b (1st DCA 1/17/17)

https://edca.1dca.org/DCADocs/2015/1736/151736_DC08_01172017_090104_i.pdf

APPEALS: Ruling suppressing evidence of sustained where State failed to present evidence of exigent circumstances, notwithstanding that they had the opportunity to do so. State v. Guevara, 42 Fla. L. Weekly D168c (5th DCA 1/13/17)

http://5dca.org/Opinions/Opin2017/010917/5D16-792.pca.pdf

WITHHOLD OF ADJUDICATION: Court may not withhold the adjudication for third-degree felonies where the Defendant had 2 or more prior felonies that did not arise from the same transaction. State v. Ly, 42 Fla. L. Weekly D168b (5th DCA 1/13/16)

http://5dca.org/Opinions/Opin2017/010917/5D15-4261.op.pdf

DISCOVERY: Court erred in failing to conduct Richardson hearing when State sought to admit expert testimony of assault nurse examiner who had not been listed as an expert witness and who testified that the lack of vaginal injury is not unusual in rape cases. Bess v. State, 42 Fla. L. Weekly D167b (5th DCA 1/13/17)

http://5dca.org/Opinions/Opin2017/010917/5D15-3295.op.pdf

DOUBLE JEOPARDY: Where double jeopardy violation is raised for 1st time on appeal, the burden is on the Defendant to demonstrate that the violation is apparent on the face of the record. Griffith v. State, 42 Fla. L. Weekly D163a (5th DCA 1/13/17)

http://5dca.org/Opinions/Opin2017/010917/5D15-4203.op.pdf

PRISON RELEASEE REOFFENDER ACT: Vehicular homicide is a qualifying offense for PRR sentencing; it involves the use or threat of physical force or violence against an individual. Ball v. State, 42 Fla. L. Weekly D161b (5th DCA 1/13/17)

http://5dca.org/Opinions/Opin2017/010917/5D16-625.op.pdf

COMPETENCY: Court may not dismiss charges on incompetent Defendant on basis of physical condition and dementia until five years have elapsed. State v. Carey, 42 Fla. L. Weekly D153c (3rd DCA 1/11/17)

http://3dca.flcourts.org/Opinions/3D15-1003.pdf

STATEMENTS OF DEFENDANT: The Sixth Amendment prohibits law enforcement officers from deliberately eliciting statements from a defendant after the right to counsel has attached. Saunders v. State, 42 Fla. L. Weekly D151a (4th DCA 1/11/17)

https://edca.4dca.org/DCADocs/2015/1396/151396_DC13_01112017_084144_i.pdf

STATEMENTS OF DEFENDANT: Recordings of statements made to cellmate/jailhouse informant, in which defendant discussed hiring a hitman to kill witness were not admissible, notwithstanding fact that informant initially gathered statements on his own initiative without law enforcement, where law enforcement had outfitted informant with a wire, arranged for him to receive a reduced sentence, and had come up with plan wherein law enforcement was involved undercover. Saunders v. State, 42 Fla. L. Weekly D151a (4th DCA 1/11/17)

https://edca.4dca.org/DCADocs/2015/1396/151396_DC13_01112017_084144_i.pdf

APPEALS: State may not supplement the record with evidence not submitted to the trial court. Crockett v. State, 42 Fla. L. Weekly D150a (1st DCA 1/10/17)

https://edca.1dca.org/DCADocs/2015/1745/151745_NOND_01102017_085926_i.pdf

APPEALS: Question certified whether an appellate court may independently determine whether an issue is dispositive rather than accepting the parties stipulation that it is. Grimes v.State, 42 Fla. L. Weekly D149a (1st DCA 1/10/17)

https://edca.1dca.org/DCADocs/2015/0782/150782_DC05_01102017_085421_i.pdf

DEATH PENALTY: Discussion of recent history of death penalty. A trial court has no authority to determine the applicability of the death penalty before a defendant has been tried and convicted of a capital offense. (Concurring opinion). State v. Gonzalez, 42 Fla. L. Weekly D146d (2nd DCA 1/6/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/January/January%2006,%202017/2D16-3262.pdf

PLEA AGREEMENT: It is fundamental error to sentence the Defendant for criminal mischief where that count was not included on the plea form nor discussed during the plea colloquy. McCraney v. State, 42 Fla. L. Weekly D146a (5th DCA 1/6/17)

http://5dca.org/Opinions/Opin2017/010217/5D15-2148.op.pdf

JOA-INTENT TO SELL: Possession of a large amount of cash in pocket ($1086) combined with a small amount of crack cocaine is insufficient circumstantial evidence to support possession with intent to sell charge. Thomas v. State, 42 Fla. L. Weekly D142b (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/3424/153424_DC13_01042017_081846_i.pdf

CONCEALED WEAPON: Statute prohibiting the unlicensed carrying of a concealed firearm does not violate the Second Amendment. Cox v. State, 42 Fla. L. Weekly D141b (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/4101/154101_DC05_01042017_082643_i.pdf

ARGUMENT-FUNDAMENTAL ERROR: Prosecutor's unobjected-to arguments were improper for appealing to the jury's emotions; for asking the jurors to convict in order to help the victim "move on" and "repair the rest of her life," implying information not presented to the jury; and expressing the prosecutor's personal opinion, but the error was not fundamental given the overwhelming evidence of guilt. Robinson v. State, 42 Fla. L. Weekly D140a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2014/4270/144270_DC05_01042017_075829_i.pdf

ENTRAPMENT: Defendant's post-inducement use of drug-trade jargon during a drug transaction is admissible to show that defendant was predisposed to commit the crime before the government induced him. Blanco v. State, 42 Fla. L. Weekly D136a (3rd DCA 1/4/17)

http://3dca.flcourts.org/Opinions/3D14-2622.pdf

QUOTATION (dissent): "It is one of the functions of this Court to undo injustice when the law has been improperly applied." Blanco v. State, 42 Fla. L. Weekly D136a (3rd DCA 1/4/17)

http://3dca.flcourts.org/Opinions/3D14-2622.pdf

ATTEMPTED SECOND DEGREE MURDER-JOA: Court should have granted motion for judgment of acquittal where evidence did not establish ill will, hatred, spite or evil intent when Defendant accelerated his car while the officer was struggling to handcuff and uncooperative passenger, dragging the officer 15 to 20 feet down the road. Clark v. State, 42 Fla. L. Weekly D135a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/4022/154022_DC13_01042017_082454_i.pdf

RESISTING WITH VIOLENCE: A dog is not a person. Trying to push the dog's head away while it is biting the Defendant's leg is not resisting with violence. Allen v. State, 42 Fla. L. Weekly D134a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/2282/152282_DC05_01042017_080940_i.pdf

https://edca.4dca.org/DCADocs/2015/2400/152400_DC05_01042017_080947_i.pdf

VOP: Evidence that probation officer did not find the Defendant at home twice and there was a realtor's lock on the door is insufficient evidence that the Defendant had moved without permission. Allen v. State, 42 Fla. L. Weekly D134a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/2574/152574_DC08_01042017_081505_i.pdf

JUVENILE SENTENCING: Court may lawfully sentence child to commitment followed by probation. Davis v. State, 42 Fla. L. Weekly D129a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/3165/153165_DC05_01042017_081711_i.pdf

SENTENCING: Court may not impose a harsher sentence because Defendant refuses to admit his guilt. Allen v. State, 42 Fla. L. Weekly D125a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/2574/152574_DC08_01042017_081505_i.pdf

QUOTATION: "A defendant's rights are infringed when he or she is forced to make a choice to either remain silent at a sentencing hearing and risk that the court regard this silence as a failure to accept responsibility, or to make an incriminating statement upon the trial court's prodding, or to falsely admit wrongdoing and risk a perjury conviction in hopes of securing a measure of leniency. Any defendant in such a situation is in a vulnerable position and faced with a Hobson's choice." Allen v. State, 42 Fla. L. Weekly D125a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/2574/152574_DC08_01042017_081505_i.pdf

DECLARATORY JUDGMENT-REMOVAL OF PUBLIC RECORDS: Court abused its discretion by not addressing claimant certain DUI convictions did not exist in complaint to remove erroneous public records. Mulvey v. Forman, 42 Fla. L. Weekly D122a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2015/4687/154687_DC08_01042017_083538_i.pdf

JOA-BURGLARY WITH ASSAULT: Defendant/Burglar is held at gun point by victim, who sees him reach toward his waist and is alarmed. A pellet gun is later found hidden in his waistband. Defendant cannot be found guilty of assault regardless of the victim's well-founded in fear where no actual threat is made. "[W]hile the appellant might have been threatening to the victim (that is, actually caused him fear), he did not intentionally threaten him (that is, intended to cause him fear)." J.S. v. State, 42 Fla. L. Weekly D121a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2014/3775/143775_DC13_01042017_075642_i.pdf

APPEALS-PRESERVATION OF ISSUE: Court must make a definitive ruling on admission or exclusion of evidence for the issue to be preserved. If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. § 90.104(1)(b). Issue of exclusion of evidence about Defendant's probationary status is not preserved where defendant files motion in limine, State agrees, and Judge says "She agrees. Collins v. State, 42 Fla. L. Weekly D119b (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2014/0063/140063_DC05_01042017_075020_i.pdf

SENTENCING-CONSIDERATIONS-OUT OF COUNTY DEFENDANT: Court improperly considered that the defendant came from a different county to commit crimes in his county. Andrews v. State, 42 Fla. L. Weekly D118a (4th DCA 1/4/17)

https://edca.4dca.org/DCADocs/2016/0903/160903_DC13_01042017_084549_i.pdf

 

PROBATION REVOCATION: Where case is remanded for resentencing after finding that probation had been revoked on basis of both valid and invalid violations Court erred in resentencing defendant in his absence, especially where the court's relied upon a transcript from a hearing at which neither the defendant nor his attorney were present. Thompson State, v. 42 Fla. L. Weekly D93c (3rd DCA 1/4/17)

http://3dca.flcourts.org/Opinions/3D15-2629.pdf

 

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