Criminal Case Law

MAY 2018


NEWLY DISCOVERED EVIDENCE: Court properly denied relief based on newly discovered evidence where the evidence was discoverable at time of VOP hearing. Kellum v. State, 43 Fla. L. Weekly D1146a (1st DCA 5/18/18)

https://edca.1dca.org/DCADocs/2016/2188/162188_1284_05182018_08442301_i.pdf


DOUBLE JEOPARDY: Dual convictions for solicitation and traveling to meet minor does not violate Double Jeopardy where based on multiple discrete solicitations, including by using separate email accounts.   Sherman v. State, 43 Fla. L. Weekly D1145a (1st DCA 5/18/18)

https://edca.1dca.org/DCADocs/2013/4464/134464_1284_05182018_08171113_i.pdf


DOUBLE JEOPARDY: Dual convictions for using a computer to solicit child for sex and traveling for sex with a child after solicitation does not violate double jeopardy where record demonstrates that defendant made two or more solicitations.   Dygart v. State, 43 Fla. L. Weekly D1143a (1st DCA 5/18/18)


https://edca.1dca.org/DCADocs/2013/4977/134977_1284_05182018_08200832_i.pdf



DRIVER'S LICENSE REVOCATION: Where licensee was arrested on two separate occasions within a short period of time for driving under the influence, and was later convicted of both offenses on the same day, his license was properly revoked for a period of 5 years pursuant to statute providing for 5-year suspension upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction. Section 322.28(2)(e) creates the legal fiction that the earlier offense is a "prior conviction."   Boulineau v. DHSMV, 43 Fla. L. Weekly D1141a (1st DCA 5/18/18)

https://edca.1dca.org/DCADocs/2017/3684/173684_1281_05182018_10334316_i.pdf


DICTIONARY WARS: To "deem" is "to treat (something) as if . . . it were really something else."   Boulineau v. DHSMV, 43 Fla. L. Weekly D1141a (1st DCA 5/18/18)


https://edca.1dca.org/DCADocs/2017/3684/173684_1281_05182018_10334316_i.pdf


COMPETENCY: Conviction reversed where defendant was found incompetent a year and a half before trial, and record does not contain a subsequent order finding him competent.   Jones v. State, 43 Fla. L. Weekly D1140e (1st DCA 5/18/18)



https://edca.1dca.org/DCADocs/2015/3244/153244_1287_05182018_08432389_i.pdf


COMPETENCY: Court erred by finding defendant competent to proceed based upon parties' stipulation rather than making independent determination.   Burney v. State, 43 Fla. L. Weekly D1139b (5th DCA 5/18/18)



http://5dca.org/Opinions/Opin2018/051418/5D17-1619.op.pdf


DOUBLE JEOPARDY: Defendant cannot be convicted of both dealing in stolen property and petit theft.   Blocker v. State, 43 Fla. L. Weekly D1139a (5th DCA 5/18/18)

http://5dca.org/Opinions/Opin2018/051418/5D18-16.op.pdf


NEWLY DISCOVERED EVIDENCE: Changes in the law--Hurst-is not new evidence, and so a new trial is not warranted.   Walton v. State, 43 Fla. L. Weekly S237a (FLA 5/17/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-448.pdf



DEATH PENALTY-DISPROPORTIONATE: Death penalty is not disproportionate where the co-defendant's life sentence was the result of a plea agreement or for purely legal reasons.   Walton v. State, 43 Fla. L. Weekly S237a (FLA 5/17/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-448.pdf


COSTS-INDIGENT DEFENDANT: Indigent defendants represented by private counsel pro bono are entitled to file motions pertaining to appointment and costs of experts, mitigation specialists, and investigators ex parte and under seal, with service to Justice Administrative Commission and notice to State Attorney's Office, and to have any hearing on such motion ex parte, with only the defendant and the Commission present.   Andrews v. State, 43 Fla. L. Weekly S228b (FLA 5/17/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1034.pdf


POST CONVICTION RELIEF-APPEAL: Court had no jurisdiction to rule on motion for post conviction relief where an appeal of an earlier motion raising substantially similar claims was pending.   Hill v. Jones, 43 Fla. L. Weekly D1136b (1st DCA 5/17/18)


https://edca.1dca.org/DCADocs/2017/1638/171638_1287_05172018_08502221_i.pdf


DOUBLE JEOPARDY: Separate convictions on two counts of resisting officer without violence violated double jeopardy where there was a single criminal episode and a single criminal act, here, running away and struggling on the ground when caught. A continuous resistance to an ongoing attempt to effectuate a person's arrest or detainment constitutes only one single instance of resisting an officer. Johnson v. State, 43 Fla. L. Weekly D1136a (1st DCA 5/17/18)


https://edca.1dca.org/DCADocs/2017/3144/173144_1287_05172018_09035484_i.pdf



DOUBLE JEOPARDY: Separate convictions on counts of sale of meth and count of meth did not violate double jeopardy where offenses were based on different contraband found at different locations through different searches. Robinson v. State, 43 Fla. L. Weekly D1135b (1st DCA 5/17/18)



https://edca.1dca.org/DCADocs/2017/1015/171015_1284_05172018_08485515_i.pdf


JOA-GRAND THEFT: Defendant who never deposited restaurant money she was to take to the bank may be convicted of grand theft.   Crenshaw v. State, 43 Fla. L. Weekly D1135a (1st DCA 5/17/18)



https://edca.1dca.org/DCADocs/2016/5843/165843_1284_05172018_08473213_i.pdf

 

PROBATION REVOCATION: Defendant may be found to have violated probation for failure to seek employment.  Thompson v. State, 43 Fla. L. Weekly D1130a (1st DCA 5/17/18)

https://edca.1dca.org/DCADocs/2017/2751/172751_1285_05172018_09012005_i.pdf

 

QUOTATION (Dissent): "Simple economic realities suggest that a household overseen by an impoverished twenty-something single mom with three young children subsisting on government programs in a challenging job market is not a great candidate for significant discretionary cash flow. . .Simply because a financially indigent mom receives a smidgen of cash from a part-time seasonal janitorial job doesn't mean she can spare a dime in the face of pressing family financial duties or debts.""    Thompson v. State, 43 Fla. L. Weekly D1130a (1st DCA 5/17/18)


https://edca.1dca.org/DCADocs/2017/2751/172751_1285_05172018_09012005_i.pdf

 

GRAND THEFT-VALUE: Evidence was insufficient to establish that the value of a stolen used I-phone 6 was in excess of $300 based on unobjected testimony that the Victim and his mother "checked online how much a used phone with . . . no damage . . . would be worth" and said $340.00.   D.D. v. State, 43 Fla. L. Weekly D1126c (2nd DCA 5/16/18)



https://edca.2dca.org/DCADocs/2017/0769/170769_114_05162018_08313143_i.pdf



POST CONVICTION RELIEF: Counsel was ineffective for failing to move to dismiss information charging defendant with DWLS when he never possessed a Florida driver's license, notwithstanding that he pled to the charge.   Myers v. State, 43 Fla. L. Weekly D1126b (2nd DCA 5/16/18)


https://edca.2dca.org/DCADocs/2017/2558/172558_39_05162018_08381377_i.pdf


JOA-PARAPHERNALIA: Juvenile entitled to judgment of dismissal on two counts of possession of drug paraphernalia where evidence failed to establish that residue on alleged paraphernalia was a controlled substance. R.C. v. State, 43 Fla. L. Weekly D1126a (2nd DCA 5/16/18)


https://edca.2dca.org/DCADocs/2017/1976/171976_39_05162018_08354087_i.pdf


10-20-LIFE-CONSECUTIVE: Consecutive mandatory minimum sentences are unlawful when weapon was not discharged.  Jennings v. State, 43 Fla. L. Weekly D1125a (2nd DCA 5/16/18)

https://edca.2dca.org/DCADocs/2015/4451/154451_114_05162018_08291810_i.pdf


IMPEACHMENT-HOSTILE WITNESS: Court erred by not allowing Defendant to call two witnesses-one of whom denied being offered offered money by the victim's family to implicate the Defendant, and the second that the first excluded witness had told him he had been offered money. Due process allows calling a hostile witness in order to impeach him by prior inconsistent statements.   Brooks v. State, 43 Fla. L. Weekly D1123e (2nd DCA 5/16/18)


https://edca.2dca.org/DCADocs/2016/2105/162105_39_05162018_08303074_i.pdf

 

SEARCH AND SEIZURE-BLOOD DRAW: Fourth Amendment does not prohibit a warrantless blood draw of an unconscious person, incapable of giving actual consent, be pursuant to §316.1932(1)(c). Question certified. McGraw v. State, 43 Fla. L. Weekly D1122b (4th DCA 5/16/18)



https://www.4dca.org/content/download/202962/1805098/file/170232_1711_05162018_09021586_i.pdf



SPEEDY TRIAL: Provision of speedy trial rule providing for 90-day speedy trial extension in cases where a trial has been delayed by an "appeal" by the state applies whenever a trial has been delayed by an appeal, including petitions for extraordinary writs. Buhler v. State, 43 Fla. L. Weekly D1119b (4th DCA 5/16/18)



https://www.4dca.org/content/download/202977/1805233/file/173324_1703_05162018_09352977_i.pdf


PRR: It is unnecessary for jury to make requisite findings for PRR sentence.  Chavis v. State, 43 Fla. L. Weekly D1114b (4th DCA 5/16/18)



https://www.4dca.org/content/download/202956/1805044/file/161132_1257_05162018_08522174_i.pdf


COSTS: There is no need to cite the ordinance for which court costs are imposed. Recognizes but does not certify conflict.  Chavis v. State, 43 Fla. L. Weekly D1114b (4th DCA 5/16/18)



https://www.4dca.org/content/download/202956/1805044/file/161132_1257_05162018_08522174_i.pdf


COMPETENCY: Court erred in accepting defendant's plea agreement without making inquiries into his competency evaluation after an expert was appointed to determine competency of defendant and without entering written order on the issue.   Charles v. State, 43 Fla. L. Weekly D1114a (4th DCA 5/16/18)



https://www.4dca.org/content/download/202963/1805107/file/170248_1709_05162018_09104932_i.pdf



COMPETENCY: Court erred by failing to either conduct a competency hearing or enter an order as to the defendant's competency before accepting his plea. Hernandez v. Hernandez, 43 Fla. L. Weekly D1112b (4th DCA 5/16/18)



https://www.4dca.org/content/download/202973/1805197/file/172313_1709_05162018_09293851_i.pdf



DISCOVERY-MEDICAL EXAM OF VICTIM: Court cannot compel victim to submit to a neurological examination to determine whether he can be present at the trial. The exam infringes upon the victim's right to remain inviolate from an invasive examination not authorized or required by law.   State v. Kersting, 43 Fla. L. Weekly D1112a (4th DCA 5/16/18)



https://www.4dca.org/content/download/202980/1805260/file/180640_1257_05162018_09392601_i.pdf


POST CONVICTION RELIEF-TIMELINESS:  Supplemental motion was both authorized and timely where motion was considered filed on date of stamp from the prison mail system and defendant submitted his supplemental motion days before court ordered state to respond to his original post conviction motion.   Haspel v. State, 43 Fla. L. Weekly D1111a (4th DCA 5/16/18)



https://www.4dca.org/content/download/203035/1805758/file/173475_1708_05172018_03094057_i.pdf



APPEAL-PRESERVATION: Any error in admitting a multi-colored ski mask that was not used in the crime and by permitting an expert witness to testify to an area outside of his expertise is waived. "Because most of the issues were not properly preserved for review, we affirm and we write to once more impress upon counsel the duty to be mindful of preserving the right to appeal, particularly within the rigors of an ongoing jury trial."   Pierre v. State, 43 Fla. L. Weekly D1110b (4th DCA 5/16/18)


https://www.4dca.org/content/download/202958/1805062/file/163956_1257_05162018_08570256_i.pdf

 

SCORESHEET: Any error in scoresheet is irrelevant because record shows that trial judge would have imposed same sentence regardless.   Henion v. State, 43 Fla. L. Weekly D1110a (4th DCA 5/6/18)


https://www.4dca.org/content/download/202966/1805134/file/171193_1257_05162018_09174715_i.pdf



POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to call alibi witness was facially sufficient where defendant identified witness, specified content of witness's testimony, alleged that witness was available to testify at trial, and sufficiently alleged that failure to call witness resulted in prejudice.  McCullough v. State, 43 Fla. L. Weekly D1109a (4th DCA 5/16/18)


https://www.4dca.org/content/download/202965/1805125/file/171166_1708_05162018_09145064_i.pdf

 

JURY INSTRUCTION-ALTERNATE THEORY: Court did not err in giving instruction on the dual theories of premeditation and felony murder where state presented two legally adequate grounds for first-degree murder, premeditation and felony murder.   Vassor v. State, 43 Fla. L. Weekly D1107a (4th DCA 5/16/18)


https://www.4dca.org/content/download/202955/1805035/file/153401_1257_05162018_08501339_i.pdf


SEARCH AND SEIZURE-PRECAUTIONARY SWEEP: Bedroom which was directly adjacent to bathroom where defendant was apprehended and was between four and ten feet from area of arrest was "immediately adjoining" place of arrest, and officers did not need articulable suspicion to conduct precautionary sweep of bedroom.   Copeland v. State, 43 Fla. L. Weekly D1101a (1st DCA 5/16/18)


https://edca.1dca.org/DCADocs/2016/3441/163441_1284_05162018_09000515_i.pdf

 

LESSER INCLUDED:   Court did not err by denying request for instruction on permissive lesser-included offense of battery where charging document did not allege that defendant's touching of stepdaughter's breasts was against stepdaughter's will.   Stoffel v. State, 43 Fla. L. Weekly D1099f (1st DCA 5/16/18)

https://edca.1dca.org/DCADocs/2016/0079/160079_1284_05162018_08554167_i.pdf


POST CONVICTION RELIEF-FINGERPRINTS: Defendant is entitled to a hearing on his claim that counsel was ineffective for ailing to properly challenge sufficiency of fingerprint evidence. Where fingerprint evidence is relied upon to establish that the defendant committed the crime, the circumstances must be such that the print could have been made only at the time the crime was committed.   O'Steen v. State, 43 Fla. L. Weekly D1099e (1st DCA 5/16/18)


https://edca.1dca.org/DCADocs/2016/4027/164027_1287_05162018_09120356_i.pdf


10-20-LIFE-CONSECUTIVE: Where jury found defendant possessed firearm but did not find he discharged it, it was error to sentence defendant to consecutive mandatory minimum sentences for multiple offenses committed during the same criminal episode.   Durant v. State, 43 Fla. L. Weekly D1098a (3rd DCA 5/16/18)


http://3dca.flcourts.org/Opinions/3D17-2388.pdf

 

CHILD HEARSAY: Court's conclusory ruling that child hearsay is admissible is inartful but adequate.  Roberts v. State, 43 Fla. L. Weekly D1094a (3rd DCA 5/16/18)


http://3dca.flcourts.org/Opinions/3D16-0269.rh.pdf

 

COURT RECORDS-CONFIDENTIALITY: Online blog post, including mug shot from a prior criminal proceeding, since sealed, was not a court record connected with the official business of a judicial branch entity.   Rivero v. Farach, 43 Fla. L. Weekly D1091a (3rd DCA 5/16/18)

http://3dca.flcourts.org/Opinions/3D18-0491.pdf



INTERFERING WITH CUSTODY: Defendant who attempted to get minor into his car by offering him money was properly convicted of interfering with custody of a minor . It is not required that minor be physically taken from his parents' custody. Lindemuth v. State, 43 Fla. L. Weekly D1081a (3rd DCA 5/16/18)


http://3dca.flcourts.org/Opinions/3D16-2320.pdf


LIFE SENTENCE-MINOR: The finding of facts on aggravating circumstances and mitigating factors was for purposes of determining whether to impose a life sentence for a minor does not need to be found by a jury. Apprendi inapplicable. Hernandez v. State, 43 Fla. L. Weekly D1079a (3rd DCA 5/16/18)


http://3dca.flcourts.org/Opinions/3D16-0664.pdf


EVIDENCE: First Amendment does not prohibit admission of Defendant's preference for "death/metal music," including songs with lyrics detailing slashing of victims' throats where his continued interest in violent music and lyrics replicating the horrific murder and attempted murder he committed were directly relevant to his lack of remorse, his indifference to the suffering of the victims and their families, and Hernandez's prospects for rehabilitation. Hernandez v. State, 43 Fla. L. Weekly D1079a (3rd DCA 5/16/18)


http://3dca.flcourts.org/Opinions/3D16-0664.pdf

 


WITNESS TAMPERING
: State is not required to prove that victim was attempting to contact law enforcement at the time defendant attempted to intimidate, use physical force, or threaten the victim. Conflict certified. Williams v. State, 43 Fla. L. Weekly D1073a (2nd DCA 5/11/18)


https://edca.2dca.org/DCADocs/2017/0575/170575_65_05112018_08261937_i.pdf

 

QUOTATION: "I. . .note that as a visiting judge, I necessarily wear the home team's jersey and thereby agree with my Second District colleagues to certify conflict in this case with McCray v. State,. . ., a decision of my native court. . .In short, . . . a. . .reasonable person. . .must follow the maxim, 'When in Rome, do as the Romans do,' which is "classically stated, 'Si fueris Romae, Romano vivito more; si fueras alibi, vivito sicut ibi.' St. Ambrose (c. 340-397). . .Stated differently, "should you be in the Second District, live in the Second District's manner; should you be elsewhere, live as they do there."   Williams v. State, 43 Fla. L. Weekly D1073a (2nd DCA 5/11/18)


https://edca.2dca.org/DCADocs/2017/0575/170575_65_05112018_08261937_i.pdf

POST CONVICTION RELIEF: Failure to object to omission of justifiable and excusable homicide instructions in a manslaughter case is remediable under rule 3.850 based on ineffective assistance of counsel where evidence at trial could have supported defense of justifiable or excusable homicide and defendant was actually convicted of manslaughter.    Arteaga v. State, 43 Fla. L. Weekly D1066a (2nd DCA 5/11/18)


https://edca.2dca.org/DCADocs/2015/2500/152500_114_05112018_08221130_i.pdf

STAND YOUR GROUND: Statutory amendment which changes burden of proof from defendant to state at Stand Your Ground immunity hearing is not unconstitutional as a violation of separation of powers, but the amendment does not apply retroactively to a crime committed prior to the enactment of the amendment. Conflict certified.      Love v. State, 43 Fla. L. Weekly D1065b (3rd DCA 5/11/18)


http://www.3dca.flcourts.org/Opinions/3D17-2112.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failing to request an independent act instruction.   Maxwell v. State, 43 Fla. L. Weekly D1064d (5th DCA 5/11/18)


http://5dca.org/Opinions/Opin2018/050718/5D17-3624.op.pdf

COMPETENCY: Where trial court had previously found defendant incompetent to proceed and committed defendant to DCF, and mental health professionals filed report representing that defendant's competency had been restored, trial court committed fundamental error when it found defendant competent to proceed based upon stipulation of parties and expert's report which court had not reviewed, rather than making its own independent determination regarding defendant's competency. The court must always make an independent determination as to a defendant's competency to proceed. Accepting a stipulation of the parties as to competency is not permitted.   Bynum v. State, 43 Fla. L. Weekly D1063a (5th DCA 5/11/18)

http://5dca.org/Opinions/Opin2018/050718/5D16-3342.op.pdf

NELSON HEARING: Court erred by failing to conduct adequate Nelson inquiry before discharging defendant's fourth court-appointed counsel and instead proceeding directly to Faretta hearing.  Webb v. State, 43 Fla. L. Weekly D1062a (5th DCA 5/11/18)



http://5dca.org/Opinions/Opin2018/050718/5D15-3679.op.pdf

 

SENTENCE REVIEW-MINOR: Defendant who was sentenced to thirty years' imprisonment for attempted felony murder and a concurrent fifteen-year sentence for attempted armed robbery committed when he was a juvenile is entitled to resentencing where he was sentenced after the sentence review stature for crimes committed before and the sentences provided for no judicial review to allow early release.   Morris v. State, 43 Fla. L. Weekly S223a (FLA 5/10/18)

 

http://www.floridasupremecourt.org/decisions/2018/sc16-2271.pdf

RULES-AMENDMENT-RECIPROCAL DISCOVERY: Only reports or statements of experts that the defendant intends to use at a hearing or at trial must be disclosed to the prosecutor.   In Re: Amendments to R. 3.220, 43 Fla. L. Weekly S222b (FLA 5/10/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-2004.pdf

 

JURY INSTRUCTIONS: Human Trafficking instruction amended. 43 Fla. L. Weekly S222a (FLA 5/10/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1430.pdf

 

PRISON RELEASEE REOFFENDER: Burglary with Assault of Battery is not a qualifying offense for PRR. The use or threat of physical force or violence must be a necessary element of the crime, and if the crime may be committed without the "use or threat of physical force or violence," then that crime does not qualify.   Crosley v. State, 43 Fla. L. Weekly D1055a (1st DCA 5/10/18)


https://edca.1dca.org/DCADocs/2016/1557/161557_1287_05102018_08533923_i.pdf

COMPETENCY: A defendant's placement in a secure facility may not exceed the maximum sentence for the crime for which the defendant was charged. Court is not required to terminate jurisdiction for involuntarily committed incompetent defendant where counts, if structured consecutively, would not exceed the statutory maximum. Rule of lenity does not apply to commitments under section 916.303, since statute does not reflect intent to punish.   Vansmith v. State, 43 Fla. L. Weekly D1053a (1st DCA 5/10/18)



https://edca.1dca.org/DCADocs/2017/4169/174169_1281_05102018_09015795_i.pdf

MOTION FOR NEW TRIAL: JOA is required when the court is of the opinion that the evidence is insufficient to warrant a conviction; a motion for new trial should be granted when the verdict is contrary to law or the weight of the evidence.   Bell v. State, 43 Fla. L. Weekly D1052c (1st DCA 5/10/18)


https://edca.1dca.org/DCADocs/2017/1319/171319_1284_05102018_08550764_i.pdf

SEARCH AND SEIZURE-RESIDENCE-CONSENT: Previous encounters between narcotics agents and former owner of property in which former owner gave agents authority to enter property and proceed to side door of main house and then to barn if no one responded to knock on side door not basis for denying motion to suppress where consent was given approximately 3 years prior to date of search.  Osorio v. State, 43 Fla. L. Weekly D1043a (4th DCA 5/9/18)



https://www.4dca.org/content/download/202405/1799529/file/170654_1709_05092018_09053244_i.pdf

 

SEARCH AND SEIZURE-RESIDENCE-REASONABLE EXPECTATION OF PRIVACY: Defendant has a reasonable expectation of privacy as to side door of main house or barn where property was posted with "No Trespassing" signs and there was an aggressive pitbull roaming the property. Officers are not permitted to exit the front door area and physically enter or look into other portions of the home or its curtilage pursuant to a "knock and talk."  Osorio v. State, 43 Fla. L. Weekly D1043a (4th DCA 5/9/18)

https://www.4dca.org/content/download/202405/1799529/file/170654_1709_05092018_09053244_i.pdf



STATEMENTS OF DEFENDANT-PRE-MIRANDA STATEMENTS: Court erred in permitting officer to relate that defendant responded to question as to why he was running by stating, "I was shot at by a black male and am scared for my life." When an officer's questions or actions extend beyond requests for basic biographical information and could reasonably be viewed as designed to secure potential incriminating evidence, the questions or actions constitute an interrogation. Good discussion.   Senser v. State, 43 Fla. L. Weekly D1040a (4th DCA 5/4/18)

 

https://www.4dca.org/content/download/202399/1799472/file/162893_1709_05092018_08511064_i.pdf

 

SENTENCING-CONSIDERATIONS: Prosecutor's argument at sentencing that Defendant "has been afforded and given every valuable opportunity in this world. He comes from a very nice family, a very hardworking family, we're venturing to say a wealthy family, a very good-looking family, a white family, an affluent family, a wealthy family, a loving family most importantly," is improper but not reversible absent evidence that the Court was influenced thereby.   Senser v. State, 43 Fla. L. Weekly D1040a (4th DCA 5/4/18)

https://www.4dca.org/content/download/202399/1799472/file/162893_1709_05092018_08511064_i.pdf



JURORS-CHALLENGE-CAUSE-FIREARM BY FELON: Court erred in denying defendant's motion to strike prospective jurors whose responses indicated that defendant's prior felony conviction would influence their ability to render fair and impartial verdict.  Burgess v. State, 43 Fla. L. Weekly D1039a (4th DCA 5/9/18)

https://www.4dca.org/content/download/202400/1799481/file/163274_1709_05092018_08540727_i.pdf


PROVIDING FALSE INFORMATION: No nexus is required between giving false information and any harm (in this case, the death of a missing child earlier).      Melvin v. State, 43 Fla. L. Weekly D1037c (4th DCA 5/9/18)


https://www.4dca.org/content/download/202398/1799463/file/154071_1708_05092018_08411987_i.pdf



UPWARD DEPARTURE: Defendant was convicted of lying about the whereabouts of his missing stepdaughter, whose skeleton was found the next day buried in his back yard. Court erred in finding the Defendant a danger to the community and sentencing the Defendant to an upward departure sentence in prison.   Melvin v. State, 43 Fla. L. Weekly D1037c (4th DCA 5/9/18)


https://www.4dca.org/content/download/202398/1799463/file/154071_1708_05092018_08411987_i.pdf

COMPETENCY: Court erred by failing to conduct competency hearing before accepting nolo contendere plea of Defendant for whom he had previously ordered a psychological evaluation of competency.  Pollock v. State, 43 Fla. L. Weekly D1037a (4th DCA 5/9/18)


https://www.4dca.org/content/download/202410/1799574/file/172805_1709_05092018_09303012_i.pdf

ARGUMENT: Prosecutor's argument that defense counsel's attack on the voluntariness of defendant's confession was a lawyering tactic was improper but harmless.   Lammons v. State, 43 Fla. L. Weekly D1032a (3rd DCA 5/9/18)


https://www.4dca.org/content/download/202410/1799574/file/172805_1709_05092018_09303012_i.pdf

 

SEARCH AND SEIZURE-OBSCURED TAG: Vehicle was lawfully stopped where the word "Florida" is partially obscured (statute has since been changed effective Jan. 1, 2016).   State v. Pena, 43 Fla. L. Weekly D1030a (3rd DCA 5/9/18)


http://www.3dca.flcourts.org/Opinions/3D16-0564.pdf

SEARCH AND SEIZURE-PAT DOWN: Officers who arrived at the restaurant where a large fight had been reported, and were told by a waiter that a group of people, including defendant, had been involved in the fight, had probable cause to pat down defendant based on the continued movements of his hands to the outside of the pocket of his heavy jacket.   State v. Maxwell, 43 Fla. L. Weekly D1028a (3rd DCA 5/9/18)


http://www.3dca.flcourts.org/Opinions/3D17-1597.pdf

 

 

STAND YOUR GROUND: Amendment to Stand Your Ground law is procedural and applies retroactively. Statutory changes to the burden of proof are invariably deemed procedural in nature for purposes of retroactive application. Question Certified. Because change in law occurred while his appeal was under appeal and was therefore pending, the change applies to Defendant. Defendant is entitled to a new SYG hearing.   Martin v. State, 43 Fla. L. Weekly D1016c (2nd DCA 5/4/18)


https://edca.2dca.org/DCADocs/2016/4468/164468_39_05042018_08491722_i.pdf

 


POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Court erred in finding that newly discovered evidence in form of the sworn statement confessing to having committed the crimes himself was not credible without leaving an evidentiary hearing.   Grays v. State, 43 Fla. L. Weekly D1015b (5th DCA 5/4/18)


http://5dca.org/Opinions/Opin2018/043018/5D17-3437.op.pdf

 

MINOR-REVIEW HEARING: Where minor had originally been sentenced to a 40-year sentence followed by lifetime sex offender probation, court erred in modifying the sentence to allow for review hearing without also holding a resentencing hearing.   Ruiz v. State, 43 Fla. L. Weekly D1015a (5th DCA 5/4/18) (Dave Eddy)


http://5dca.org/Opinions/Opin2018/043018/5D17-2877.op.pdf

 

SEARCH AND SEIZURE-STOP AND FRISK: Possession of a concealed firearm, without more does not justify a Terry stop. Neither a tip from a restaurant employee that customer appeared to have a gun nor officer's observation of a bulge in his clothing is reasonable suspicion of criminal activity.   Burnett v. State, 43 Fla. L. Weekly D1014a (5th DCA 5/4/18)

 

http://5dca.org/Opinions/Opin2018/043018/5D16-2615.op.pdf

NEWLY DISCOVERED EVIDENCE: Affidavit of associate medical examiner relating to the slim possibility that victim's internal genital injuries could have been caused by a kick was not newly discovered evidence that would support theory that defendant was innocent of sexual battery.   Taylor v. State, 43 Fla. L. Weekly S212a (FLA 5/3/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1501.pdf


DEATH PENALTY: Hurst does not apply to defendants whose convictions became final before Ring v. Arizona.   Taylor v. State, 43 Fla. L. Weekly S212a (FLA 5/3/18)



http://www.floridasupremecourt.org/decisions/2018/sc17-1501.pdf



BAD DATE: "Taylor testified that when he and Birch reached the dugout they attempted to have vaginal intercourse for less than a minute. She ended the attempt at intercourse and began performing oral sex on him. According to Taylor, he complained that her teeth were irritating him and attempted to pull away. She bit down on his penis. He choked her in an attempt to get her to release him. After he succeeded in getting her to release her bite, he struck and kicked her several times in anger."   She died.    Taylor v. State, 43 Fla. L. Weekly S212a (FLA 5/3/18)

 

http://www.floridasupremecourt.org/decisions/2018/sc17-1501.pdf

RETROACTIVITY (DISSENT): Hurst should apply retroactively. Good discussion of retroactivity. "[T]hat is how the majority of this Court draws its determinative, albeit arbitrary, line. As a result, Florida will treat similarly situated defendants differently -- here, the difference between life and death -- for potentially the simple reason of one defendant's docket delay. Vindication of these constitutional rights cannot be reduced to either fatal or fortuitous accidents of timing."   Taylor v. State, 43 Fla. L. Weekly S212a (FLA 5/3/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1501.pdf

 

RED LIGHT CAMERAS: Local government has authority under section 316.0083(1)(a), Florida Statutes (2014), to contract with a private third-party vendor to review and sort information from red light cameras. Jimenez v. State, 43 Fla. L. Weekly S199c (FLA 5/3/18)



http://www.floridasupremecourt.org/decisions/2018/sc16-1976.pdf

DEATH PENALTY: Hurst does not apply retroactively to death penalty which became final after Ring.   Jones v. State, 43 Fla. L. Weekly S199b (FLA 5/2/18)



http://www.floridasupremecourt.org/decisions/2018/Jones%20v.%20State,%20SC18-285.pdf

 

DEATH PENALTY: Hurst does not apply retroactively to death penalty which became final after Ring.   Reaves v. State, 43 Fla. L. Weekly S199a (FLA 5/2/18)


http://www.floridasupremecourt.org/decisions/2018/Reaves%20v.%20State,%20SC18-57.pdf

CTS-DETAINER: Absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.   Wood v. State, 43 Fla. L. Weekly D996a (3rd DCA 5/2/18)


http://www.3dca.flcourts.org/Opinions/3D17-1537.pdf

 

POST CONVICTON RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel failed to advise him that self-defense was available in murder case when victim/wife stabbed him three times, injured his chin, and broke his tooth.  Sosataquechel v. State, 43 Fla. L. Weekly D992c (3rd DCA 5/2/18)

 

http://www.3dca.flcourts.org/Opinions/3D15-1755.pdf

 

RE-SENTENCING: Court erred in failing to have defendant present for resentencing after court had vacated two of five counts upon which defendant had previously been sentenced.  Poma v. State, 43 Fla. L. Weekly D992b (3rd DCA 5/2/18)



http://www.3dca.flcourts.org/Opinions/3D17-0737.pdf

POST CONVICTION RELIEF-ERROR CORAM NOBIS: Court properly treated defendant's petition for writ of error coram nobis as a motion for post conviction relief and denied it as untimely. A petition for writ of error coram nobis must satisfy the two-year limitation of rule 3.850.   Kemp v. State, 43 Fla. L. Weekly D992a (3rd DCA 5/2/18)


http://www.3dca.flcourts.org/Opinions/3D18-0523.pdf

 

CONSTRUCTIVE POSSESSION-FIREARM: Evidence that juvenile was sole occupant of the back seat of a vehicle occupied by two other persons and that a firearm was on the back seat in the vicinity of juvenile was insufficient to prove that juvenile was in actual or constructive possession of firearm where there was no evidence that juvenile had dominion and control over firearm. Conflict certified.   D.V. v. State, 43 Fla. L. Weekly D988a (3rd DCA 5/2/18)


http://www.3dca.flcourts.org/Opinions/3D16-1593.pdf

MINOR SENTENCED AS ADULT: Where defendant was sentenced under statute which required sentencing court to make "suitability determination" regarding imposition of adult sanctions, but did not require consideration of individualized factors required by Miller v. Alabama, defendant entitled to new sentencing hearing on remand.  Johnson v. State, 43 Fla. L. Weekly D985b (2nd DCA 5/2/18)

https://edca.2dca.org/DCADocs/2017/3122/173122_39_05022018_08381041_i.pdf

 


COSTS:  Costs stricken for failure to cite statutory authority in written cost order.   Greene v. State, 43 Fla. L. Weekly D985a (2nd DCA 5/2/18)


https://edca.2dca.org/DCADocs/2016/4671/164671_114_05022018_08363547_i.pdf

 

DISCOVERY: Burglary conviction reversed where State falsely and repeatedly told defense counsel that it had no DNA report and that no DNA testing had occurred. DNA report showed another person's DNA was found at the crime scene.    Denton v. State, 43 Fla. L. Weekly D983a (4th DCA 5/4/18)


https://www.4dca.org/content/download/202236/1798299/file/170618_1709_05022018_09193196_i.pdf

DISORDERLY CONDUCT-JOA: JOA for disorderly conduct is required where Defendant became loud and boisterous and cussed out cops when store refused to sell him a lizard. Mere boisterous behavior, even if it disrupts the operations of a business and draws onlookers' attention, is not by itself enough to sustain a disorderly conduct conviction. Defendant's act of punching cop upon arrest cannot be considered in determining whether his previous behavior amounted to disorderly conduct.    St. Fleury v. State, 43 Fla. L. Weekly D979a (4th DCA 5/2/18)

https://www.4dca.org/content/download/202237/1798308/file/170787_1709_05022018_09221700_i.pdf

 

JIMMY RYCE: 19-month-old evaluation is not to stale too preclude the defendant being involuntarily committed as a sexually violent predator. Stengel v. State, 43 Fla. L. Weekly D978a (4th DCA 5/2/18)

 

https://www.4dca.org/content/download/202238/1798317/file/171598_1257_05022018_09231561_i.pdf

EVIDENCE-FACEBOOK: Facebook video showing the Defendant sitting in the stolen car in wearing the victim's stolen watch is admissible in carjacking case.   Lamb v. State, 43 Fla. L. Weekly D973a (4th DCA 5/2/18)


https://www.4dca.org/content/download/202235/1798290/file/170545_1257_05022018_09161388_i.pdf

 

EVIDENCE-AUTHENTICATION-FACEBOOK: Social media videos are admissible in criminal cases based on sufficient evidence that the video depicts what the government claims, even though government did not call creator of videos, search the device which was used to create the videos, or obtain information directly from social media website.   Lamb v. State, 43 Fla. L. Weekly D973a (4th DCA 5/2/18)


https://www.4dca.org/content/download/202235/1798290/file/170545_1257_05022018_09161388_i.pdf

 

BEST EVIDENCE RULE: Best Evidence kept rule does not preclude witness identify Defendant from a Facebook video where the original evidence was available and presented.   Lamb v. State, 43 Fla. L. Weekly D973a (4th DCA 5/2/18)


https://www.4dca.org/content/download/202235/1798290/file/170545_1257_05022018_09161388_i.pdf

 

EXPERT: The fact that the digital forensic examiner, while describing his actions, also explained for the jury how Facebook videos are broadcast and then saved to a Facebook profile timeline, did not convert his factual testimony into expert testimony.   Lamb v. State, 43 Fla. L. Weekly D973a (4th DCA 5/2/18)


https://www.4dca.org/content/download/202235/1798290/file/170545_1257_05022018_09161388_i.pdf

 

FACEBOOK VIDEO-AUTHENTICATION: Authentication of a video is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. The mere fact that an item appears online does not make it self-authenticating, but authentication is a low threshold and can be satisfied by testimony that a witness downloaded a Facebook video. Proponent of Facebook video does not require testimony from someone who recorded the video or who appeared in the video. If the video's distinctive characteristics and content, in conjunction with circumstantial evidence, are sufficient to authenticate the video, then the government has met its authentication burden.   Lamb v. State, 43 Fla. L. Weekly D973a (4th DCA 5/2/18)


https://www.4dca.org/content/download/202235/1798290/file/170545_1257_05022018_09161388_i.pdf

IDENTIFICATION: Non-eyewitnesses may testify as to the identification of persons depicted or heard on a recording so long as it is clear the witness is in a better position than the jurors to make those determinations.   Lamb v. State, 43 Fla. L. Weekly D973a (4th DCA 5/2/18)


https://www.4dca.org/content/download/202235/1798290/file/170545_1257_05022018_09161388_i.pdf

 

DARWIN AWARD WINNER: The defendant appeared in the Facebook video just a few hours after the first carjacking, and less than an hour after the second carjacking, driving the first victim's car, wearing the first victim's watch, and stating "we live" when the video was recording, while a codefendant counted the first victim's money.   Lamb v. State, 43 Fla. L. Weekly D973a (4th DCA 5/2/18)

 

https://www.4dca.org/content/download/202235/1798290/file/170545_1257_05022018_09161388_i.pdf

 

MINOR-LENGTHY SENTENCE: 30-year prison sentence for nonhomicide it committed by a minor does not violate the 8th amendment or Graham. Defendant is not entitled to sentence review. Florida Supreme Court has not plainly required that all open quotation term-of-years-juvenile offender sentences provide an mechanism for early release. "While the Court does not believe that the Supreme Court has yet to mandate resentencing of all juveniles sentenced to a term of years without a review mechanism, this issue is ripe for appellate guidance. Certainly there is considerable confusion surrounding the status of juvenile offenders whose original sentences did not violate Graham." Conflict certified.   Hart v. State, 43 Fla. L. Weekly D970a (4th DCA 5/2/18)

https://www.4dca.org/content/download/202240/1798335/file/172468_1257_05022018_09331167_i.pdf

PROBATION-REVOCATION-JURISDICTION: Court lacks jurisdiction to revoke probation where time spent on probation and time of incarceration exceeded the statutory maximum for the offense. Credit must be given for time previously served on probation.   Coppinger v. State, 43 Fla. L. Weekly D969b (4th DCA 5/2/18)


https://www.4dca.org/content/download/202234/1798281/file/170462_1708_05022018_09141950_i.pdf

 

 

POST CONVICTION RELIEF: Claim that counsel was ineffective for advising defendant to reject plea offer because he was confident he would win at trial is legally insufficient where Defendant failed to allege that State would not have withdrawn the offer and that Court would have accepted it.   Brown v. State, 43 Fla. L. Weekly D969a (4th DCA 5/2/18)


https://www.4dca.org/content/download/202239/1798326/file/172428_1708_05022018_09251154_i.pdf

POST CONVICTION RELIEF-RULE 3.800(a): Rule 3.800(a) motion is not correct vehicle for challenging underlying escape conviction.   De Juan v. State, 43 Fla. L. Weekly D955a (1st DCA 4/30/18)


https://edca.1dca.org/DCADocs/2018/0105/180105_1284_04302018_10360479_i.pdf

 

HABITUAL VIOLENT FELONY OFFENDER-PREDICATE CONVICTIONS:   South Carolina crime of aggravated assault with intent to kill does not require a deadly weapon, is therefore broader than Florida's crime of aggravated assault, and accordingly cannot be used as a predicate conviction for purpose of the Habitual Violent Felony Offender designation. Underlying factor not determinative of whether it qualifies as a predicate offense. Crimes are not substantially similar.   Howard v. State, 43 Fla. L. Weekly D954a (1st DCA 4/30/18)


https://edca.1dca.org/DCADocs/2017/3286/173286_1287_04302018_10274379_i.pdf

 

APRIL 2018

 

TRANSFERRED INTENT-BATTERY SCHOOL EMPLOYEE: Evidence was sufficient that the juvenile intended the teacher, not just the other student with whom he was fighting, so that transferred intent does not apply, and the Child is appropriately convicted of the felony offense. If the doctrine of transferred intent applied, the child could only be convicted of a misdemeanor battery.   TK v. State, 43 Fla. L. Weekly D951b (1st DCA 4/30/18)

https://edca.1dca.org/DCADocs/2017/3815/173815_1284_04302018_10295279_i.pdf

 

 

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on the claim that counsel was ineffective for failing to object to verdict form. Thomas v. State, 43 Fla. L. Weekly D948a (5th DCA 4/27/18)


http://5dca.org/Opinions/Opin2018/042318/5D17-3796.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to call witness to testify that Defendant did not possess firearm, notwithstanding that the witness had made an inconsistent but explainable prior inconsistent statement. McIntosh v. State,43 Fla. L. Weekly D947c (5th DCA 4/27/18)


http://5dca.org/Opinions/Opin2018/042318/5D17-3844.op.pdf

 

MINOR-JUDICIAL REVIEW: Defendant receives a lengthy sentence for the offense committed by juveniles entitled to a full sentencing review hearing. Maxwell v. State, 43 Fla. L. Weekly D947b (5th DCA 4/27/18)


http://5dca.org/Opinions/Opin2018/042318/5D17-3805.op.pdf

 

DEATH PENALTY: Defendant's waiver of postconviction proceedings precludes him from claiming relief under Hurst.   Trease v. State, 43 Fla. L. Weekly S192a (FLA 4/26/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-686.pdf


DEATH PENALTY: Hurst does not apply retroactively to a sentence final prior to Ring v. Arizona.  Evans v. State, 43 Fla. L. Weekly S186b (FLA 4/26/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-869.pdf

 

APPEALS: Court lacks jurisdiction to review order deciding that defendant was not entitled to post conviction discovery.   Robinson v. State, 43 Fla. L. Weekly D944c (1st DCA 4/25/18)


https://edca.1dca.org/DCADocs/2017/3735/173735_1279_04252018_02060666_i.pdf

APPEALS: Appellate Court lacks jurisdiction to consider defendant's argument that trial court erred by imposing restitution after he had filed notice of appeal of convictions and sentences where order in question was filed after the Defendant filed his notice of appeal and the Defendant failed to file a separate notice of appeal of the challenging the restitution order.   Okashah v. State, 43 Fla. L. Weekly D944a (1st DCA 4/25/18)


https://edca.1dca.org/DCADocs/2017/1194/171194_1284_04252018_11513121_i.pdf

 

JUDGMENT OF ACQUITTAL-BURGLARY: Evidence was sufficient to disprove affirmative defense that defendant had consent to enter unoccupied home because he knew homeowner and had dated homeowner's sister.   Dubois v. State, 43 Fla. L. Weekly D943b (1st DCA 4/25/18)


https://edca.1dca.org/DCADocs/2016/4032/164032_1284_04252018_10132926_i.pdf

POST CONVICTION RELIEF-RULE 3.800: Defendant cannot challenge habitual offender sentence under 3.800 by attacking the conviction used to habitualizing him.   Smith v. State, 43 Fla. L. Weekly D939a (1st DCA 4/25/18)


https://edca.1dca.org/DCADocs/2017/1141/171141_1287_04252018_11365492_i.pdf



ALLOCUTION: Court erred in failing to provide defendant opportunity to make an allocution following violation of probation hearing and prior to sentencing. A criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution.    Hill v. State, 43 Fla. L. Weekly D925a (4th DCA 4/25/18)

 

https://www.4dca.org/content/download/202144/1797543/file/170272_1708_04252018_09164556_i.pdf

 

 

COMPETENCY: Court did not err by relying on police reports where Defendant did not object, and in fact offered his own stale reports in evidence.   Bittle v. State, 43 Fla. L. Weekly D924a (4th DCA 4/25/18)

 

https://www.4dca.org/content/download/202139/1797498/file/162714_1257_04252018_09065870_i.pdf

HEARSAY-FORFEITURE BY WRONGDOING: Suspicious jail phone calls is insufficient to establish that Defendant calls the witness to be absent for the trial; Court's ruling that Victim's sworn statements were admissible on that basis was erroneous.    Joseph v. State, (4th DCA 4/25/18)


https://www.4dca.org/content/download/202136/1797471/file/162120_1708_04252018_09003469_i.pdf

EVIDENCE-RAPE SHIELD LAW: Court did not abuse discretion in refusing to allow defendant to cross-exam victim on her prior allegations of rape against Defendant and her employer, even though rape shield law was inapplicable; allegations were irrelevant. Rape Shield Law only applies to consensual sexual activity with someone other than the Defendant. Gomez v. State, 43 Fla. L. Weekly D919a (4th DCA 4/25/18)


https://www.4dca.org/content/download/202137/1797480/file/162350_1257_04252018_09022295_i.pdf

 


HEARSAY-SEXUALLY VIOLENT PREDATORS: Jimmy Ryce commitment reversed where court allowed hearsay testimony on the alleged facts underlying three prior arrests for sex offenses, two of which were No Info'ed and one which resulted in a conviction for simple battery.  Williams v. State, 43 Fla. L. Weekly D918a (4th DCA 4/25/18)


https://www.4dca.org/content/download/202141/1797516/file/164245_1709_04252018_09102944_i.pdf

 


ARGUMENT: Prosecutor's comments on the Defendant's failure to respond to accusations in a phone call with his wife was an improper comment on silent and an improper shifting of the burden of proof. An argument emphasizing a defendant's failure to proclaim his innocence is the equivalent of a burden-shifting argument. Good discussion.   Lenz v. State, Fla. L. Weekly D915b (4th DCA 4/25/18)


https://www.4dca.org/content/download/202143/1797534/file/170198_1709_04252018_09151100_i.pdf

 

PEREMPTORY CHALLENGE: Defense counsel's strike of a female flag football coach was not pretextual. Court's failure to engage in a meaningful genuineness analysis is reversible error.    Lenz v. State, Fla. L. Weekly D915b (4th DCA 4/25/18)


https://www.4dca.org/content/download/202143/1797534/file/170198_1709_04252018_09151100_i.pdf

 

MOTION FOR NEW TRIAL: Court's failure to articulate the standard applied ruling on motion for new trial is not preserved for review by objection nor did it rise to fundamental error. "Here, the trial court did not make any eyebrow-racing comment." Court's failure to articulate the standard it applied when ruling on motion was not preserved for review by objection and did not rise to level of fundamental error. Mitchell v. State, 43 Fla. L. Weekly D914a (4th DCA 4/25/18)

 

https://www.4dca.org/content/download/202151/1797606/file/171225_1257_04252018_09352976_i.pdf



POST CONVICTION RELIEF: The claim that Defendant would not have pled guilty and wouldn't proceeded to trial if you know that DNA evidence was inaccurate sufficient to warrant an evidentiary hearing.  Theodore v. State, 43 Fla. L. Weekly D912a (4th DCA 4/25/18)


https://www.4dca.org/content/download/202153/1797624/file/172180_1709_04252018_09381589_i.pdf

 


HARMLESS ERROR: Failure to suppress the Defendant's 3rd interview with police, conducted after an attorney was trying to invoke his right to remain silent, was harmless since it already confessed in the 2nd interview.   Santos v. State, 43 Fla. L. Weekly D910b (4th DCA 4/25/18)


https://www.4dca.org/content/download/202148/1797579/file/171064_1257_04252018_09311861_i.pdf

 

COMPETENCY OF DEFENDANT: Court exceeded its jurisdiction by requiring DCF to involuntarily commit Defendant, an octogenarian with dementia and eight undersized lobsters, to a mental hospital, where there is no evidence as to potential probability that he would regain competency in the reasonably foreseeable future.  DCF v. Garcia, 43 Fla. L. Weekly D882a (3rd DCA 4/24/18)


https://www.4dca.org/content/download/202148/1797579/file/171064_1257_04252018_09311861_i.pdf



ILLEGAL SENTENCE: Alleged defect in information which did not give notice of potential enhanced sentence does not make sentence illegal. Cannot be corrected under 3.800.   Sharpe v. State, 43 Fla. L. Weekly D880d (1st DCA 4/20/18)


https://edca.1dca.org/DCADocs/2017/5330/175330_1284_04202018_11542810_i.pdf

 


SENTENCING: Oral pronouncement of credit time served controls over written order.   Carter v. State, 43 Fla. L. Weekly D880a (1st DCA 4/20/18)


https://edca.1dca.org/DCADocs/2017/4294/174294_1286_04202018_11382724_i.pdf

POST CONVICTION RELIEF: HVFO must be orally pronounced. Motion to correct based on alleged failure to orally pronounce HFVO designation cannot be dinied without attachment of transcript refuting claim.   Jones v. State,43 Fla. L. Weekly D878b (1st DCA 4/20/18)


https://edca.1dca.org/DCADocs/2017/3009/173009_1286_04202018_11302879_i.pdf

JUDGMENT NON OBSTANTE VEREDICTO: Court erred by deferring to jury verdict ("the jury did not agree. . ., so I will deny the motion" in considering whether the verdict I contrary to the manifest weight of the evidence.   Jordan v. State, 43 Fla. L. Weekly D877b (1st DCA 4/20/18)


https://edca.1dca.org/DCADocs/2017/2818/172818_1287_04202018_11261012_i.pdf

SEXUAL PREDATOR: An adjudication of delinquency counts as a prior (though not a substantive offense) for purposes of sexual predator designation.   Frandi v. State, 43 Fla. L. Weekly D876a (1st DCA 4/20/18)


https://edca.1dca.org/DCADocs/2017/3358/173358_1284_04202018_11360876_i.pdf



POST CONVICTION RELIEF: Court may not deny 3.800 as successive where specific issue had not been raised previously.    Williams v. State, 43 Fla. L. Weekly D872a (2nd DCA 4/20/18)


https://edca.2dca.org/DCADocs/2017/1979/171979_114_04202018_08361980_i.pdf

 


PLEA-VOLUNTARINESS: Court erred in denying claim that plea was involuntary because defendant was not advised that unless sentences were ordered to be served concurrently with sentences in prior cases which defendant was serving on conditional release, the sentences would be served consecutively to the prior sentences. Tthe imposition of consecutive sentences for offenses not charged in the same information is a direct consequence of the plea.   Larson v. State, 43 Fla. L. Weekly D865f (2nd DCA 4/20/18)

 

https://edca.2dca.org/DCADocs/2017/0336/170336_114_04202018_08272748_i.pdf

 

 

POST CONVICTION RELIEF: Claim that counsel was ineffective for failure to investigate and call material witness was sufficient to require attachment of portions of record. Anderson v. State, 43 Fla. L. Weekly D864b (5th DCA 4/20/18)


http://5dca.org/Opinions/Opin2018/041618/5D17-3329.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing or attachment of records on allegation that counsel misadvised that Defendant would not be sentenced to more than his codefendants.   Byron v. State, 43 Fla. L. Weekly D864a (5th DCA 4/20/18)

 

http://5dca.org/Opinions/Opin2018/041618/5D17-3724.op.pdf

VIOLENT FELONY OFFENDER: Aggravated assault with a deadly weapon is a qualifying offense for Violent Felony Offender; Aggravated assault with the intent to commit a felony is not. McNair v. State, 43 Fla. L. Weekly D863a (5th DCA 4/20/18)


http://5dca.org/Opinions/Opin2018/041618/5D17-3453.op.pdf

 

SELF-DEFENSE: JOA is properly denied where evidence of self-defense is equivocal.   Williams v. State, 43 Fla. L. Weekly S183a (FLA 4/19/18)

 

http://www.floridasupremecourt.org/decisions/2018/sc16-2170.pdf

 

 

SENTENCING-MINOR: Defendant who was sentenced to thirty-five years' imprisonment for murder committed when defendant was a juvenile and twenty-five years with a twenty-five mandatory minimum for nonhomicide committed when defendant was juvenile is entitled to resentencing pursuant to chapter 2014-220.   Williams v. State, 43 Fla. L. Weekly S183a (FLA 4/19/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-2170.pdf

PRISON RELEASEE REOFFENDER: Defendant may be sentenced as PRR for new offense where had been sentenced to prison but released on credit time served before being transferred to DOC. Defendant was constructively released from DOC. Conflict certified.   Gray v. State, 43 Fla. L. Weekly D853a (4th DCA 4/18/18)


https://www.4dca.org/content/download/202047/1796701/file/173527_1257_04182018_09404154_i.pdf

 

SENTENCING: Court erred in considering juvenile's subsequent arrests without adjudication included in the PDR. C.J. v. State, 43 Fla. L. Weekly D849a (4th DCA 4/18/18)

 

https://www.4dca.org/content/download/202035/1796593/file/164379_1709_04182018_09100328_i.pdf

 

 

COMPETENCY: Court may not sentence Defendant without holding a competency hearing after appointing expert for that purpose.   Saunders v. State, 43 Fla. L. Weekly D848a (4th DCA 4/18/18)


https://www.4dca.org/content/download/202036/1796602/file/170643_1708_04182018_09182002_i.pdf

 

COMPETENCY: Competency evaluation is not required on the sole basis that the Defendant takes psychotropic medication.  Castillo v. State, 43 Fla. L. Weekly D845b (4th DCA 1/18/18)


https://www.4dca.org/content/download/202032/1796566/file/161452_1708_04182018_08514773_i.pdf

 

SENTENCING: Where information charged defendant with simple third-degree felony sale or delivery of MDMA in one count, but designation "(F2)" was added at end of count, leading to a plea of no contest to that incorrectly classified charge, proper remedy is to reverse sentence on that count.   Davis v. State, 43 Fla. L. Weekly D842a (4th DCA 4/18/18)


https://www.4dca.org/content/download/202039/1796629/file/171156_1708_04182018_09231032_i.pdf



RESTITUTION: Court abused its discretion by requiring defendant to pay restitution in amount of estimated cost to repair damage to vehicle rather than on fair market value at time of loss where no repairs were made or intended to be made.   Davis v. State, 43 Fla. L. Weekly D841a (4th DCA 4/18/18)


https://www.4dca.org/content/download/202039/1796629/file/171156_1708_04182018_09231032_i.pdf

 

BURGLARY IN ACCESS OF $1000: Defendant cannot be sentenced to the enhancement of burglary for damage of more than $1000 defendant was convicted one burglary, the repairs exceeded $2000, but was not apportioned between the burglary he was convicted and that for which he was knocked.   Elliot v. State, 43 Fla. L. Weekly D839a (4th DCA 4/18/18)


https://www.4dca.org/content/download/202037/1796611/file/171046_1709_04182018_09202761_i.pdf

COSTS: Court erred in imposing Public defender fees above the statutory minimum without notice and an opportunity to be heard. Fournier v. State, 43 Fla. L. Weekly D836a (4th DCA 4/18/18)


https://www.4dca.org/content/download/202033/1796575/file/162922_1708_04182018_09044497_i.pdf



RESTITUTION: Court erred in entering a written order determining the amount of restitution without a hearing or the court had orally said that it would reserve ruling.  Fournier v. State, 43 Fla. L. Weekly D836a (4th DCA 4/18/18)


https://www.4dca.org/content/download/202033/1796575/file/162922_1708_04182018_09044497_i.pdf

SEARCH AND SEIZURE: Handcuffing juvenile during the stop did not impermissibly convert the stop into an arrest. Juvenile defendant properly detained and handcuffed for walking and parking lot pulling on car door handles.   I.G. v. State, 43 Fla. L. Weekly D832a (3rd DCA 4/18/18)


http://www.3dca.flcourts.org/Opinions/3D17-0631.pdf



POST CONVICTION RELIEF: Heggs error must be raised within two years. Distinguishes between a "could-have-been-imposed" standard and a "would-have-been-imposed" standard.   Masis v. State, 43 Fla. L. Weekly D830a (3rd DCA 4/18/18)

 

http://www.3dca.flcourts.org/Opinions/3D17-1759.pdf

WITHDRAW PLEA: Where defendant led to one count in return for the state's small profs of another count and later withdraws her plea, the State may proceed on the original information without having to file a new information. When a plea of guilty or nolo contendere is withdrawn and accepted by the court, it is as if the plea had never been entered ab initio. Small v. State, 43 Fla. L. Weekly D819a (2nd DCA 4/18/18)


https://edca.2dca.org/DCADocs/2016/0725/160725_65_04182018_08244840_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for not objecting to State's missed represtations of evidence.   Weitz v. State, 43 Fla. L. Weekly D818a (2nd DCA 4/18/18)


https://edca.2dca.org/DCADocs/2017/2892/172892_114_04182018_08320538_i.pdf



COMPETENCY:   Court must enter written, not just in oral, determination of competency.  Sallee v. State, 43 Fla. L. Weekly D817a (2nd DCA 4/18/18)


https://edca.2dca.org/DCADocs/2016/5407/165407_65_04182018_08310631_i.pdf

DWLS: Defendant cannot be convicted of DWLS as a habitual traffic offender when he had never had a Florida driver's license.  Williams v. State, 43 Fla. L. Weekly D802a (1st DCA 4/18/18)


https://edca.1dca.org/DCADocs/2017/1781/171781_1287_04182018_08593722_i.pdf

 

UPWARD DEPARTURE: §775.082, which authorizes trial judge rather than jury to make finding that defendant poses a danger to public and to impose a state prison where scoresheet points are 22 or fewer, is unconstitutional under Sixth Amendment. What's relevant for Sixth Amendment purposes is not the maximum sentence a statute may authorize with additional fact-finding; it is what may be imposed without the judge making her own findings. "The central point of Apprendi and Blakely is that any fact in a judicial proceeding -- excepting the fact of a prior conviction -- that is used to increase a penalty for a crime beyond the relevant statutory maximum is unconstitutional because a jury, and not a judge, is entrusted with that responsibility under the Sixth Amendment." Conflict certified.   Booker v. State, 43 Fla. L. Weekly D795a (1st DCA 4/18/18)


https://edca.1dca.org/DCADocs/2015/3558/153558_1287_04182018_08454730_i.pdf

 

APPEAL-MOOTNESS: Appeal of sentence is moot where defendant has already served the sentence.  Jones v. State, 43 Fla. L. Weekly D794b (1st DCA 4/17/18)

 

https://edca.1dca.org/DCADocs/2017/2389/172389_1279_04172018_08505462_i.pdf

 


10-20-LIFE-AGGRAVATED ASSAULT: Under statute in effect at time defendant committed offenses, aggravated assault was included in list of enumerated felonies for which mandatory minimum sentences were required, and subsequent amendment of statute removing aggravated assault from that list did not apply to resentencing.   Sheaffers v. State, 43 Fla. L. Weekly D794a (1st DCA 4/17/18)


https://edca.1dca.org/DCADocs/2017/0554/170554_1284_04172018_08470904_i.pdf

 

RESISTING WITH VIOLENCE: Officers were in the lawful performance of legal duty when they accompanied DCF on a welfare check and entered the backyard after the Defendant had previously threatened to "dismember DCF employees and to throw their body parts into a neighbor's yard if DCF entered his home." Exigent circumstances existed. Sosnowski v. State, 43 Fla. L. Weekly D789a (1st DCA 4/17/18)

 

https://edca.1dca.org/DCADocs/2016/4537/164537_1284_04172018_08413904_i.pdf

JOA: JOA is properly denied where witnesses saw Defendant firing gun and throwing bricks thru the window the trailer; conflicting testimony is not the basis for judgment of acquittal.  Brown v. State, 43 Fla. L. Weekly D788e (1st DCA 4/17/18)

https://edca.1dca.org/DCADocs/2016/3243/163243_1284_04172018_08375132_i.pdf

 

LEAVING SCENE OF CRASH: Defendant cannot be convicted of leaving the scene of a crash causing damage where there is no damage to the building with which the defendant of his vehicle collided sustained any damage. Dortch v. State, 43 Fla. L. Weekly D786a (2nd DCA 4/13/18)


https://edca.2dca.org/DCADocs/2016/2407/162407_114_04132018_08250824_i.pdf


SEARCH AND SEIZURE-INVESTIGATORY STOP: One may not be detained on the basis of reasonable suspicion of one's companion, who wore a "pot-smoking sailor hair design," whatever that is.  Johns v. State, 43 Fla. L. Weekly D784a (2nd DCA 4/13/18)


https://edca.2dca.org/DCADocs/2017/0420/170420_39_04132018_08264704_i.pdf

 


CHILD PORN: State is not required to use an expert to establish the age of the actors in alleged child porn; jury may make that determination. Krise v. State, 43 Fla. L. Weekly D782e (5th DCA 4/13/18)


http://5dca.org/Opinions/Opin2018/040918/5D17-2809.op.pdf

 

COMPETENCY OF DEFENDANT: Court must enter a written order reflecting finding of competency.  Pavilus v. State, 43 Fla. L. Weekly D782b (5th DCA 4/13/18)


http://5dca.org/Opinions/Opin2018/040918/5D16-4401.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to call witness to establish that he did not shoot the victim.   Harris v. State, 43 Fla. L. Weekly D781d (5th DCA 4/13/18)


http://5dca.org/Opinions/Opin2018/040918/5D17-2636.op.pdf

VOP-HEARSAY: Victim's testimony that she was in an altercation with the Defendant is insufficient to establish the commission of a battery, the basis for the VOP.   Crawford v. State, 43 Fla. L. Weekly D780a (5th DCA 4/13/18)


http://5dca.org/Opinions/Opin2018/040918/5D17-2729.reh.op.pdf

 

DEFINITIONS: "Altercation" is a "vehement dispute; a noisy argument." An altercation does not equate to the commission of the battery.  Crawford v. State, 43 Fla. L. Weekly D780a (5th DCA 4/13/18)


http://5dca.org/Opinions/Opin2018/040918/5D17-2729.reh.op.pdf


DEATH PENALTY: Death penalty is affirmed where some aggravating factors are stricken but others support the sentence.   Hall v. State, Fla. L. Weekly S178a (FLA 4/12/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1355.pdf


LIMITATION OF ACTIONS: Claim that offense as charged in information is barred by statute of limitations must raise issue in trial court in order to preserve issue for appeal.  State v. Smith, 43 Fla. L. Weekly S177a (FLA 4/12/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-576.pdf

 

DEATH PENALTY-INTELLECTUAL DISABILITY: Court need not apply the Flynn effect to reduce IQ scores.   Quince v. State, 43 Fla. L. Weekly S175a (FLA 4/12/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-127_REVISED.pdf

 

YOUTHFUL OFFENDER: Youthful Offender can be sentenced to more than 6 years in prison for a violation of probation for the commission of the new criminal act, even if the criminal charge is Nolle Prossed.  Ramirez v. State, 43 Fla. L. Weekly D779b (3rd DCA 4/11/18)


http://3dca.flcourts.org/Opinions/3D18-0331.pdf

RECROSS: Court does not abuse discretion in denying request to re-cross a witness where he had an opportunity to cover the material on his initial cross-examination.   Tennyson v. State, 43 Fla. L. Weekly D775b (3rd DCA 4/11/18)


http://3dca.flcourts.org/Opinions/3D16-0625.pdf

TRESPASS: Juvenile does not commit trespass when the building entered, which was under construction, did not have a roof on it yet.  E.C. v. State, 43 Fla. L. Weekly D775a (3rd DCA 4/11/18)


http://3dca.flcourts.org/Opinions/3D17-0924.pdf

MISTRIAL: Court did not abuse discretion by denying motion for mistrial based on officer briefly commenting on victim's believability where a curative instruction was promptly given and there was other substantial evidence corroborating the victim's story.   Blackwood v. State, 43 Fla. L. Weekly D771c (4th DCA 4/11/18)


https://edca.4dca.org/DCADocs/2017/2021/172021_1257_04112018_09544376_i.pdf

YOUTHFUL OFFENDER: Youthful Offender statute is not unconstitutional for AIDS limitations only applying at the time of sentencing, rather than at the time of the offense. Defendant who was 21 at the time of sentencing is not entitled to Youthful Offender Sentencing.   Blackwood v. State, 43 Fla. L. Weekly D771c (4th DCA 4/11/18)


https://edca.4dca.org/DCADocs/2017/2021/172021_1257_04112018_09544376_i.pdf



SENTENCING-FRAGMENTED SENTENCE: Court imposed an illegal fragmented sentence where it ordered sentences for 2 convictions to run concurrently in part and consecutively in part. Defendant has a right to pay his debt to society in one stretch, not in bits and pieces.   Smith v. State, 43 Fla. L. Weekly D771a (4th DCA 4/11/18)


https://edca.4dca.org/DCADocs/2017/1787/171787_1709_04112018_09111396_i.pdf

 


DOUBLE JEOPARDY-DUI-RECKLESS DRIVING: Separate charges for DUI and reckless driving do not violate Double Jeopardy.  Anguille v. State, 43 Fla. L. Weekly D768a (4th DCA 10/11/18)


https://edca.4dca.org/DCADocs/2016/3706/163706_1708_04112018_08583394_i.pdf

 

DOUBLE JEOPARDY: Convictions for both the serious bodily injury and the property damage of the victim violate Double Jeopardy.   Anguille v. State, 43 Fla. L. Weekly D768a (4th DCA 10/11/18)


https://edca.4dca.org/DCADocs/2016/3706/163706_1708_04112018_08583394_i.pdf


DOUBLE JEOPARDY: Separate convictions for unlawful use of two-way communications device and traveling to meet minor during same time period violate double jeopardy.   Kania v. State, 43 Fla. L. Weekly D767a (2nd DCA 4/11/18)

 

https://edca.2dca.org/DCADocs/2016/0687/160687_114_04112018_08300733_i.pdf

 


POST CONVICTION RELIEF: Counsel is not ineffective for failing to call DNA expert to show that he was excluded as contributor to amylase in the underwear of one of 3 victims where he could not show there is a reasonable likelihood that the outcome of the trial would been different had expert been called.   Renfro v. State, 43 Fla. L. Weekly D764a (1st DCA 4/10/18)


https://edca.1dca.org/DCADocs/2017/3451/173451_1284_04102018_10003842_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for not objecting when State had the court reporter read portions of the motion to suppress of Defendant's testimony from the suppression hearing during the trial. A defendant's testimony during a hearing on a motion to suppress may not be entered into evidence against him in a subsequent trial.   Andrews v. State, 43 Fla. L. Weekly D763a (1st DCA 4/10/18)


https://edca.1dca.org/DCADocs/2017/2159/172159_1287_04102018_09525691_i.pdf

 

QUOTATION: "A full reading of the transcript reflects that Appellant did not appear to be admitting guilt, but was instead confirming that the cocaine had been removed from his boxer shorts by the deputy."  Andrews v. State, 43 Fla. L. Weekly D763a (1st DCA 4/10/18)


https://edca.1dca.org/DCADocs/2017/2159/172159_1287_04102018_09525691_i.pdf

 

PRR-HO: Court may not impose ten-year sentence under PRR statute for third-degree felony of resisting arrest with violence, but may impose a ten-year sentence as a Habitual Offender. In doing so, the court must specify that the first five years are as a PRR.   Atmore v. State, 43 Fla. L. Weekly D753a (2nd DCA 4/6/18)


https://edca.2dca.org/DCADocs/2016/4654/164654_39_04062018_08245124_i.pdf




DOUBLE JEOPARDY-DUI-DWLS: Separate convictions for DUI with serious bodily injury and DWLS violate double jeopardy. Double jeopardy challenge is not waived by entering a general plea. The "single homicide rule" that the legislature did not intend to punish a single homicide under two different statutes applies even in circumstances where the double jeopardy analysis set forth in Blockburger may not grant relief. The "single homicide rule" applies to serious bodily injury as well as homicide.  Marsh v. State, 43 Fla. L. Weekly D751b (2nd DCA 4/6/18)


https://edca.2dca.org/DCADocs/2016/3542/163542_114_04062018_08231521_i.pdf



WEIGHING THE EVIDENCE: When sitting as trier of fact, court is free to disbelieve state's witness even if that witness's testimony is unrefuted. The mere fact that the testimony appears uncontradicted does not necessarily make it believable.   Z.E. v. State, 43 Fla. L. Weekly D751a (2nd DCA 4/6/18)


https://edca.2dca.org/DCADocs/2016/5234/165234_39_04062018_08270151_i.pdf

 

HEARSAY: Detective's testimony regarding his review of D.A.V.I.D. which led to his investigation of defendant's wife's van is inadmissible hearsay offered to buttress state's identification of defendant as robber who had driven vehicle to scene of robbery. State's argument that the information was not being offered for its truth, but rather to explain the progression of the robbery's investigation, and that the information in DAVID was simply "data" (which, presumably, made it admissible, according to the State), is unavailing.   Khan v. State, 43 Fla. L. Weekly D747a (2nd DCA 4/6/18)


https://edca.2dca.org/DCADocs/2016/5288/165288_39_04062018_08274793_i.pdf



SILENCE OF DEFENDANT: State's question to defendant on cross-examination as to why he never relayed to detective any details about people defendant claimed would have seen him on night of robbery is an improper comment on Defendant's silence. Conviction reversed.  Khan v. State, 43 Fla. L. Weekly D747a (2nd DCA 4/6/18)


https://edca.2dca.org/DCADocs/2016/5288/165288_39_04062018_08274793_i.pdf

 


APPELLATE COUNSEL-INEFFECTIVENESS: Appellate counsel was ineffective for failing to argue that court's error in excluding impeachment testimony was harmful as to the battery charge as well as the kidnapping charge.   Musson v. State, 43 Fla. L. Weekly D745b (2nd DCA 4/6/13)

https://edca.2dca.org/DCADocs/2017/1208/171208_405_04062018_08590258_i.pdf


HEARSAY-IMPEACHMENT: Testimony that victim said he was going to blame the defendant because she wasn't easy target is admissible impeachment testimony, not hearsay.  Musson v. State, 43 Fla. L. Weekly D745b (2nd DCA 4/6/13)

https://edca.2dca.org/DCADocs/2017/1208/171208_405_04062018_08590258_i.pdf




PRR-APPRENDI: Prison Releasee Re-offender Act does not require jury, rather than judge, to determine Defendant's status as PRR. Tobler v. State, 43 Fla. L. Weekly D744b (5th DCA 4/6/18)


http://5dca.org/Opinions/Opin2018/040218/5D18-80.op.pdf

 

 


FARETTA: Faretta inquiry conducted after defendant invoked right to self-representation was inadequate where trial court merely asked defendant's age, education, and reason defendant believed he could represent himself at change of plea hearing. Court must advise Defendant of any of the disadvantages and dangers of self-representation, or of the possible consequences of the criminal charges against him. (Tony Tatti).   Scott v. State, 43 Fla. L. Weekly D744a (5th DCA 4/6/18)


http://5dca.org/Opinions/Opin2018/040218/5D16-3278.op.pdf

 

POST CONVICTION RELIEF: Court erred in summarily denying motion alleging that DOC's calculation of gain time resulted in defendant having to serve in excess of the 18 months agreed. Court must resentence defendant in accordance with plea agreement or allow defendant to withdraw plea.   Vega v. State, 43 Fla. L. Weekly D743b (5th DCA 4/6/18)


http://5dca.org/Opinions/Opin2018/040218/5D17-3493.op.pdf


DNA TESTING: Court erred in denying legally sufficient motion for post conviction testing of bicycle which defendant alleged was used by someone else to murder victim. "There is nothing before us refuting Lane's claims that someone else murdered the victim using the bicycle long after Lane left the victim alive and that there is a reasonable probability that DNA evidence will be found on the bicycle providing the true identity of the killer." [Colonel Mustard in the garage with the bicycle.]   Lane v. State, 43 Fla. L. Weekly D743a (5th DCA 4/6/18)


http://5dca.org/Opinions/Opin2018/040218/5D17-1982.op.pdf


SELF-REPRESENTATION: Court improperly focused on defendant's ability to represent himself rather than his competence to make that decision, but the issue is moot where Defendant ultimately says he is satisfied with counsel.  Bland v. State, 43 Fla. L. Weekly D742a (5th DCA 4/618)


http://5dca.org/Opinions/Opin2018/040218/5D17-1626.op.pdf

 

SEARCH AND SEIZURE-CONSENT: Defendant's friend who answered detectives' knock on front door of defendant's residence and invited detectives to come inside ("I'll go get him, come in.") did not have apparent authority to consent to detectives' entry. The mere fact that an unknown person opens the door when a police officer knocks cannot, standing alone, support a reasonable belief that the person possesses authority to consent to the officer's entry.   Walker v. State, 43 Fla. L. Weekly D754a (2nd DCA 4/6/18)


https://edca.2dca.org/DCADocs/2016/5577/165577_39_04062018_08284360_i.pdf


DEATH PENALTY: Any Hurst error was harmless beyond reasonable doubt where defendant received unanimous jury recommendation of death. The lack of a mercy instruction does not change the result.  Tanzi v. State, 43 Fla. L. Weekly S173a (FLA 4/5/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1640.pdf

 

DEATH PENALTY: Defendant is entitled to a new penalty phase where death penalty was not based on a unanimous recommendation of death. State v. Smith, 43 Fla. L. Weekly S172a (FLA 4/5/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1542.pdf

 

DEATH PENALTY: Defendant is not entitled to a new penalty hearing where the jury's recommendation of death was unanimous. The fact that the jury was told that its recommendation was merely advisory this not change the outcome.  Taylor v. State, 43 Fla. L. Weekly S171a (FLA 4/5/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1458.pdf



DEATH PENALTY: A new penalty hearing is required with the jury recommendation of death was not unanimous. The refusal to present mitigation does not warrant a later Hurst claim.   Reynolds v. State, 43 Fla. L. Weekly S163a (FLA 4/5/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-793.pdf

 

DEATH PENALTY:  Jury instruction that the recommendation of death is only advisory cannot be the basis for a Hurst challenge.   Reynolds v. State, 43 Fla. L. Weekly S163a (FLA 4/5/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-793.pdf

 


DEATH PENALTY: Any Hurst error was harmless beyond reasonable doubt where defendant received unanimous jury recommendation of death.   Johnston v. State, 43 Fla. L. Weekly S162a (FLA 4/5/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1678.pdf



DEATH PENALTY: Any Hurst error was harmless beyond reasonable doubt where defendant received unanimous jury recomm
endation of death. Crain v. State, 43 Fla. L. Weekly S161b (FLA 4/5/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1475.pdf

 

 

DOUBLE JEOPARDY: One is not entitled to dismissal of charges based on Double Jeopardy before trial.   Boatright v. State, 43 Fla. L. Weekly D741c (1st DCA 4/5/18)


https://edca.1dca.org/DCADocs/2016/5571/165571_1281_04052018_10440850_i.pdf


MANDATORY MINIMUM-CONSECUTIVE: Consecutive mandatory minimum sentences for multiple firearm offenses arising from same criminal episode were impermissible where firearm was not discharged. Pointing firearm multiple times at six different victims at a single location within a short very short period of time occurred within single criminal episode.    Bonner v. State, 43 Fla. L. Weekly D739a (1st DCA 4/5/18)


https://edca.1dca.org/DCADocs/2015/5582/155582_1286_04052018_10311559_i.pdf



APPEAL:   Argument that court erred by excluding evidence of third-party DNA in victim's underwear sexual assault case cannot be raised for first time on appeal.    Robinson v. State, 43 Fla. L. Weekly D738b (1st DCA 4/5/18)


https://edca.1dca.org/DCADocs/2016/3126/163126_1284_04052018_10333997_i.pdf


EVIDENCE: Court did not abuse discretion by permitting nurse to test the process injuries were "what you might see after forced sexual intercourse."   Robinson v. State, 43 Fla. L. Weekly D738b (1st DCA 4/5/18)


https://edca.1dca.org/DCADocs/2016/3126/163126_1284_04052018_10333997_i.pdf


POST CONVICTION RELIEF: Court did not err in denying claim that counsel was ineffective for failing to ensure that FDLE employee who discussed analysis of DNA was qualified to present this evidence where Defendant did not know whether witness was qualified or not.    Redmond v. State, 43 Fla. L. Weekly D738a (1st DCA 4/5/18)


https://edca.1dca.org/DCADocs/2016/1790/161790_1284_04052018_10323244_i.pdf

 

IDENTIFICATION-SHOWUP-SEARCH AND SEIZURE: Showup identification process was unnecessarily suggestive where officer made comment to witness suggesting that defendant was involved in the crime (Cop: "I think this is going to be unusual. There are two people involved and this was the getaway driver, I think."). Evidence seized based on arrest which was based on an unduly suggestive show-up should be suppressed. Suppression is required when an initial arrest sets in motion an unbroken chain of events, which includes the discovery of additional evidence.    Willis v. State, 43 Fla. L. Weekly D736b (1st DCA 4/5/18)

 

https://edca.1dca.org/DCADocs/2016/4752/164752_1287_04052018_10361427_i.pdf


 

HEARSAY-CHILD VICTIM: Court is not required to continue properly scheduled child-hearsay hearing to enable defendant to produce impeachment witnesses.   Jenkins v. State, 43 Fla. L. Weekly D736a (1st DCA 4/5/18)

 

https://edca.1dca.org/DCADocs/2016/5680/165680_1284_04052018_10451127_i.pdf

 


HEARSAY: No abuse of discretion in allowing unobjected-to detective's statements regarding a 911 caller's statements where the out-of-court statements did not provide any evidence of the defendant's guilt and the detective's testimony was merely duplicative of other evidence admitted. Jefferson v. State, 43 Fla. L. Weekly D729a (3rd DCA 4/4/18)


http://3dca.flcourts.org/Opinions/3D16-1071.pdf


POST CONVICTION RELIEF: Claim that scoresheet is inaccurate must be raised under 3.850, not under 3.800.   Gandy v. State, 43 Fla. L. Weekly D724c (2nd DCA  4/4/18)


https://edca.2dca.org/DCADocs/2017/3133/173133_39_04042018_08435029_i.pdf

 

SEXUAL PREDATOR: Sexual predator designation is error where the offense occurred prior to October 1, 1993.  Roberts v. State, 43 Fla. L. Weekly D724b (2nd DCA 4/4/18)


https://edca.2dca.org/DCADocs/2015/3499/153499_114_04042018_08390949_i.pdf

 

APPEAL-INEFFECTIVE ASSISTANCE: Failure to object to absence of jury instruction on justifiable use of nondeadly force constituted ineffective assistance of counsel which was apparent on face of record.  Dupin v. State, 43 Fla. L. Weekly D724a (2nd DCA 4/4/18)


https://edca.2dca.org/DCADocs/2016/4413/164413_39_04042018_08395845_i.pdf

 

COMPETENCY OF DEFENDANT: Court may, that is not required, to impose conditions for release for defendant who is incompetent but does not meet the criteria for commitment.   State v. Spuhler, 43 Fla. L. Weekly D723a (4/4/18)


https://edca.2dca.org/DCADocs/2017/3152/173152_118_04042018_08444773_i.pdf



STATEMENTS OF DEFENDANT: Interrogation at Police Department was custodial where defendant was told he was free to leave and shown where the exits were, but the clear purpose of the interview was to obtain incriminating evidence from defendant and reasonable person in defendant's situation would not have felt free to leave. Suggestions that interrogating officers could effect leniency, coupled with the representation that officer's opinion was superior to that of defendant's own counsel, amounted to outrageous police conduct, and there was a clear nexus between this outrageous conduct and defendant's confession. Wilson v. State, 43 Fla. L. Weekly D715a (2nd DCA 4/4/18)



https://edca.2dca.org/DCADocs/2015/1730/151730_39_04042018_08374782_i.pdf



SENTENCING-CONSIDERATIO
NS: Court improperly considered Defendant's later arrest for cocaine in imposing sentence.  Bradshaw v. State, 43 Fla. L. Weekly D711a (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2017/2493/172493_1709_04042018_09350556_i.pdf



SENTENCING-DOWNWARD DEPARTURE: Court properly denied downward departure based on his funding that the incident was not isolated.  Fuss v. State, 43 Fla. L. Weekly D710b (4th DCA 4/4/18)



https://edca.4dca.org/DCADocs/2017/0327/170327_1257_04042018_09071380_i.pdf


VIOLENT OFFENDER OF SPECIAL CONCERN: Court may find that Defendant is a danger to the community based on him "clocking somebody in the mouth."  Smith v. State, 43 Fla. L. Weekly D710a (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2016/2525/162525_1708_04042018_08535114_i.pdf

 


EVIDENCE-JAIL CALLS-AUTHENTICATION: Audio recording of jail call was properly authenticated by testimony of records custodian explaining the three-tiered verification process used to identify defendant as inmate who made the call that was ultimately admitted into evidence and played for jury.   Ascencio v. State, 43 Fla. L. Weekly D708a (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2016/0829/160829_1708_04042018_08494412_i.pdf

 

JURORS-ALTERNATE: Error, if any, in allowing alternate juror in jury room after submission of the case for limited purpose of retrieving belongings and exchanging contact info from fellow jurors is not presumed absent an objection. Courts do not assume prejudice to the defendant whenever an alternate juror briefly enters the jury room at the conclusion of trial.   Ascencio v. State, 43 Fla. L. Weekly D708a (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2016/0829/160829_1708_04042018_08494412_i.pdf

 

JUVENILE-SENTENCING: Court erred in committing juvenile to non-secure residential program, rather than following DJJ recommendation for probation without making written findings to support its decision. R.LC. v. State, 43 Fla. L. Weekly D705b (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2017/1379/171379_1708_04042018_09265364_i.pdf

 

JUVENILE-ADULT COURT: Fourteen year old who has been transferred for adult prosecution in one circuit must be transferred for adult prosecution for any felonies in any other circuit.   Sargeant v. State, 43 Fla. L. Weekly D703a (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2017/3753/173753_1703_04042018_09402988_i.pdf

 

TORT-FALSE IMPRISONMENT: Plaintiff who was arrested and held for DUI with a .00 BAL and who loses false arrest claim but wins false imprisonment claim cannot be forced to pay costs to the City. City of Boca Raton v. Basso, 43 Fla. L. Weekly D702a (4th DCA 4/4/18)

https://edca.4dca.org/DCADocs/2017/0976/170976_1708_04042018_09163568_i.pdf

 

MANDATORY MINIMUM: For burglary of a conveyance, the minimum mandatory sentence under 10-20-Life is three years, not ten years. Wallach v. State, 43 Fla. L. Weekly D697a (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2016/0829/160829_1708_04042018_08494412_i.pdf


 

AGGRAVATED ASSAULT WITH A FIREARM: Under the 10-20-Life statute aggravated assault is reclassified to a felony of the second degree with a maximum sentence of fifteen years.   Wallach v. State, 43 Fla. L. Weekly D697a (4th DCA 4/4/18)


https://edca.4dca.org/DCADocs/2016/0829/160829_1708_04042018_08494412_i.pdf




MARCH   2018


DEATH PENALTY: Defendant who received a unanimous recommendation of death is not entitled to relief under Hurst as any error is harmless, not withstanding that the Defendant was borderline mentally ill and failed to present mitigating evidence. Grim v. State, 43 Fla. L. Weekly S155a (FLA 3/29/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1071.pdf


HABITUAL OFFENDER-CONSECUTIVE: Court may not impose consecutive habitual violent felony offender sentences for crimes committed in the same episode.   Gardiner v. State, 43 Fla. L. Weekly D694b (1st DCA 3/29/18)


https://edca.1dca.org/DCADocs/2015/5286/155286_1286_03292018_08391956_i.pdf



APPEALS: Appellate counsel is ineffective for failing to contest consecutive man min as HVFO for crimes committed in same episode. Marshall v. State, 43 Fla. L. Weekly D693b (1st DCA 3/29/18)


https://edca.1dca.org/DCADocs/2017/2763/172763_1282_03292018_08501976_i.pdf

STATEMENTS OF DEFENDANT: Defendant's question whether he could have a lawyer ("Look, can I have a lawyer, man, 'cause y'all is tryin' to confuse me") during post-Miranda interview with law enforcement personnel was an unequivocal request for counsel. Even if inquiry were an equivocal question about a lawyer, officer was required to cease questioning and give simple and straightforward answer. A prefatory statement is subject to the following three-step analysis: (1) was the defendant referring to a constitutionally guaranteed right; (2) was the utterance a clear, bona fide question calling for an answer, not a rumination or a rhetorical question; and (3) did the officer make a good-faith effort to give a simple and straightforward answer.  Daniel v. State, 43 Fla. L. Weekly D682a (5th DCA 3/29/18)

 

http://5dca.org/Opinions/Opin2018/032618/5D16-3340.op.pdf





COMPETENCY-INVOLUNTARY COMMITMENT: Court may not order involuntary commitment of an incompetent defendant absent clear and convincing evidence of prospective neglect of self or threat of harm to others.   Sanders v. State, 43 Fla. L. Weekly D678g (5th DCA 3/28/18)

 

http://5dca.org/Opinions/Opin2018/032618/5D18-475.op.pdf

APPEALS-BELATED: Petition for belated appeal is denied where commissioner appointed by the appellate court finds that Defendant did not request his attorney to file a direct appeal and his claim to the contrary is not credible.  Alvarez v. State, 43 Fla. L. Weekly D676c (3rd DCA 3/28/18)


http://3dca.flcourts.org/Opinions/3D17-1963.rh.pdf

 

PROBATION REVOCATION-JUVENILE: Court must enter a written order as to which conditions were violated.  M.C. v. State, 43 Fla. L. Weekly D676a (3rd DCA 3/28/18)



http://3dca.flcourts.org/Opinions/3D17-1319.pdf

COMPETENCY: Court must enter written order of competency.  D.Y. v. State, 43 Fla. L. Weekly D675a (3rd DCA 3/28/18)


http://3dca.flcourts.org/Opinions/3D17-0400.pdf

 

 

PROBATION REVOCATION: Court may not enter a new judgment after revocation of probation.   Witt v. State, 43 Fla. L. Weekly D668b (2nd DCA 3/28/18)


https://edca.2dca.org/DCADocs/2016/3689/163689_114_03282018_08181574_i.pdf

SILENCE OF DEFENDANT-PRE-ARREST SILENCE: Deputy's testimony during state's case-in-chief that defendant was arrested after he failed to offer any explanation about what had happened amounted to impermissible comment on defendant's right to remain silent. The privilege against self-incrimination provided in the Florida Constitution offers more protection than the right provided in the Fifth Amendment to the United States Constitution.  Urbaniak v. State, 43 Fla. L. Weekly D667a (2nd DCA 3/28/18)


https://edca.2dca.org/DCADocs/2016/4612/164612_65_03282018_08200716_i.pdf

 

POST CONVICTION RELIEF: Upon violation of community control imposed upon release from prison, Court erred by not considering Defendant's claim that earlier counsel was ineffective for not arguing that he had never been on house arrest because of expiration of time due to gain time and failure to award credit for time served.   Pressley v. State, 43 Fla. L. Weekly D666c (2nd DCA 3/28/18)


https://edca.2dca.org/DCADocs/2016/5506/165506_39_03282018_08220840_i.pdf

 

STATEMENTS OF DEFENDANT: When defendant agreed to talk with police "about certain things," he agreed to selectively waive his right to remain silent, so statements are admissible. "Appellant admitted to swinging a machete, but claimed he had not meant to swing it at the victim. Appellant explained that he was angry because he did not want the victim to go to the prosecutor's office and testify against him in a different case. The medical examiner testified that a cut to the victim's neck severed her jugular vein and was the cause of her death."  Madeus v. State, 43 Fla. L. Weekly D665a (4th DCA 3/28/18)


https://edca.4dca.org/DCADocs/2016/2881/162881_1257_03282018_08540774_i.pdf

JURORS-CHALLENGE-CAUSE: Court erred by denying challenge for cause of social worker who twice stated her belief that kids don't lie in instances of child abuse and child sexual abuse. A juror is not impartial when one side must overcome a preconceived opinion in order to prevail. Juror is not rehabilitated by saying she could follow the law. Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.   Campbell v. State, 43 Fla. L. Weekly D661a (4th DCA 3/28/18)


https://edca.4dca.org/DCADocs/2017/0385/170385_1709_03282018_09140158_i.pdf

 

VOP-JUVENILE-TOLLING: There is no tolling provision applicable to juvenile probation violation proceedings by filing an affidavit or issuing a warrant. Juvenile VOP must be by petition and sworn affidavit. An unsworn petition is insufficient.   State v. T.A.K., 43 Fla. L. Weekly D658a (2nd DCA 3/23/18)


https://edca.2dca.org/DCADocs/2017/0549/170549_65_03232018_08434661_i.pdf


POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for arguing or getting jury instruction on constructive possession.    Haney v. State, 43 Fla. L. Weekly D656a (2nd DCA 3/23/18)


https://edca.2dca.org/DCADocs/2017/3816/173816_114_03232018_08453913_i.pdf


HEARSAY: Third party's statement to witness during conversation at bar that he had committed the murder at issue and persuaded defendant to confess to it had sufficient indications of reliability and should have been admitted at trial under Chambers v. Mississippi. Although third-party confession did not qualify as declaration against penal interest for purposes of Florida hearsay exception because declarant was available to testify at trial, defendant was denied right to a fair trial by exclusion of evidence.     Larry v. State, 43 Fla. L. Weekly D655a (2nd DCA 3/23/18)


https://edca.2dca.org/DCADocs/2013/4610/134610_39_03232018_08343663_i.pdf


ARGUMENT: New trial required where prosecutor misrepresented the law on burglary (Defendant is guilty of burglary by fleeing from police into a house) and improperly shifted burden of proof to defendant ("Think about [Defendant's] demeanor on this witness stand. He's being accused of armed burglary of a dwelling. He should be yelling, screaming 'I didn't do this.' He should be yelling and screaming. Yet, he was stuttering over his words. He couldn't even get his story out.").   Roberts v. State, 43 Fla. L. Weekly D651a (5th DCA 3/23/18)


http://5dca.org/Opinions/Opin2018/031918/5D16-2187.op.pdf


QUOTATION: "A defendant's fundamental right to present a defense 'stand[s] for naught if the prosecutor can ridicule a defense so presented, denigrate the accused for his temerity in raising the issue, and misstate the law in contradiction of the judge's instructions, as the prosecutor in this case did.'"  Roberts v. State, 43 Fla. L. Weekly D651a (5th DCA 3/23/18)


http://5dca.org/Opinions/Opin2018/031918/5D16-2187.op.pdf

 


POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to request an alibi defense. Harris v. State, 43 Fla. L. Weekly D650a(5th DCA 3/23/18)


http://5dca.org/Opinions/Opin2018/031918/5D17-3587.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to call Defendant's wife as an alibi witness.   Castro v. State, 43 Fla. L. Weekly D649b (5th DCA 3/23/18)


http://5dca.org/Opinions/Opin2018/031918/5D17-3102.op.pdf

 


POST CONVICTION RELIEF: Court erred in denying claim of ineffective assistance where counsel failed to call witnesses that victim's mother induced the victim to implicate the Defendant so that she could have an affair with Defendant's friend on ground that they would not have been allowed to testify because of motion in limine, counsel inexplicably failed to oppose motion in limine, and their testimony would likely have resulted in acquittal. "Counsel herself inexplicably failed to oppose the motion in limine, stating at the hearing on the motion, 'Your Honor, I can't think of a legal basis for which to allow that in.' Of course, the legal basis would have been that the testimony was relevant, going to the issues of bias and motive of the victim's mother and the victim herself."   Fletcher v. State, 43 Fla. L. Weekly D649a (5th DCA 3/23/18)


http://5dca.org/Opinions/Opin2018/031918/5D17-432.op.pdf


POST CONVICTION RELIEF: Defendant was entitled to a hearing on claim that counsel was ineffective for failing to call material witnesses. The fact that the Court asked if there were any witnesses he wanted counsel to have called and he said no is insufficient to deny a hearing. "We have previously disapproved of relying on such statements, as they may indicate the defendant's belief that it was too late to call further witnesses."  Brown v. State, 43 Fla. L. Weekly D648b (5th DCA 3/23/18)

 

http://5dca.org/Opinions/Opin2018/031918/5D17-2192.op.pdf


RE-CROSS EXAMINATION: Court did not abuse its discretion by refusing to allow defendant to re-cross examine victim where state did not elicit any new matter on re-direct examination, but only a detail which had been addressed in defendant's cross-examination of witness.  Castanos v. State, 43 Fla. L. Weekly D648a (5th DCA 3/23/18)


http://5dca.org/Opinions/Opin2018/031918/5D16-4380.op.pdf

 


MANDATORY MINIMUM-CONSECUTIVE: Court erred in imposing consecutive mandatory minimum sentences for multiple firearm offenses which arose from same criminal episode where firearm was merely possessed but not discharged.   Potchen v. State, 43 Fla. L. Weekly D646c (5th DCA (5th DCA 3/23/18)


http://5dca.org/Opinions/Opin2018/031918/5D14-4336.op.pdf


ATTORNEY DISCIPLINE: Attorney disbarred for failure to adequately supervise a non-lawyer assistant with a known history of fraud and embezzlement. "This case gives new meaning to the phrase 'turning a blind eye.'" Attorney was "curiously uncurious."   The Florida Bar v. Gilbert, 43 Fla. L. Weekly S148c (FLA 3/22/18)


http://www.floridasupremecourt.org/decisions/2018/sc15-2004.pdf


DISQUALIFICATION: Judge who announced after trial, but prior to sentencing, that he would recuse himself from further proceedings did not commit reversible error by failing to articulate specific reasons for his recusal.   Williams v. State, 43 Fla. L. Weekly D646a (1st DCA 3/22/18)


https://edca.1dca.org/DCADocs/2017/0149/170149_1284_03222018_10055628_i.pdf


SEARCH AND SEIZURE-DOG SNIFF: Officers who stopped vehicle in apartment complex parking lot after observing defendant driving without a seatbelt and who placed defendant under arrest for driving without a license within two minutes of initial stop did not violate Fourth Amendment by initiating dog sniff of vehicle 20 minutes later.   Jefferson v. State, 43 Fla. L. Weekly D645a (1st DCA 3/22/18)


https://edca.1dca.org/DCADocs/2017/1057/171057_1284_03222018_10075809_i.pdf

 


JOA-AGGRAVATED ASSAULT: Victim's testimony that Defendant (his father) lunged at him with the cane during a verbal altercation and that both men then stepped backward did not establish that defendant used cane in manner likely to produce death or great bodily harm. ("I open the door, tell him to leave, start cussing each other, and then he gets mad and lunges at me with his cane. I step back to nail him, and he stepped back himself, and then we cussed each other some more.")   Wallace v. State, 43 Fla. L. Weekly D642a (1st DCA 3/22/18)


https://edca.1dca.org/DCADocs/2017/1595/171595_1287_03222018_10160382_i.pdf

 

 

JOA-POSSESSION WITH INTENT TO SELL: $42 and a small box in his pocket holding methamphetamine and eight cocaine rocks of different sizes not individually packaged is insufficient to prove intent to sell. McFarlane v. State, 43 Fla. L. Weekly D640b (2nd DCA 3/21/18)


https://edca.2dca.org/DCADocs/2016/5462/165462_39_03212018_08442210_i.pdf


HABITUAL OFFENDER: One cannot be habitualized for simple possession of cocaine.   Hubbard v. State, 43 Fla. L. Weekly D640a (2nd DCA 3/21/18)


https://edca.2dca.org/DCADocs/2016/5462/165462_39_03212018_08442210_i.pdf

 


COSTS: Court erred by imposing court costs for possession offense after imposing costs under the same statutory provision for companion felony charge.   Anguille v. State, 43 Fla. L. Weekly D630b (4th DCA 3/21/18)


https://edca.4dca.org/DCADocs/2016/3964/163964_1709_03212018_09291243_i.pdf


MANDATORY MINIMUM-CONSECUTIVE: Resentencing required where trial court was under mistaken belief that it was required by 10-20-Life statute to impose mandatory minimum sentences consecutively. Consecutive minimum terms of imprisonment for multiple offenses are not required by the 10-20-Life statute, but are permissible, when the offenses arise from a single criminal episode.   Villanueva v. State, 43 Fla. L. Weekly D630a (4th DCA 3/21/18)

https://edca.4dca.org/DCADocs/2016/0534/160534_1708_03212018_08505445_i.pdf


SEARCH AND SEIZURE-BLOOD DRAW: Warrantless blood draw of unconscious person, incapable of giving actual consent, may be made pursuant to section 316.1932(1)(c), which provides that person incapable of refusal by reason of unconsciousness is deemed not to have withdrawn consent to blood draw and testing. Implied consent law which does not impose a criminal penalty for refusing a blood draw is not an unlawful search. Good discussion.   McGraw v. State, 43 Fla. L. Weekly D618a (4th DCA 3/21/18)


https://edca.4dca.org/DCADocs/2017/0232/170232_1257_03212018_09374456_i.pdf


SENTENCING-YOUTHFUL OFFENDER: Resentencing required before a different judge where trial court refused to consider request for youthful offender sentence made by defendant who was 17 years old at time of offense based upon trial court's stated policy of not allowing youthful offender sentences in cases involving death.   Desantis v. State, 43 Fla. L. Weekly D613a (4th DCA 3/21/18)


https://edca.4dca.org/DCADocs/2016/0618/160618_1257_03212018_09181654_i.pdf

 


SEARCH AND SEIZURE-JURISDICTION: An officer designated as a special deputy assigned to a Multi-Agency Gang Task Force may not make traffic stops outside his jurisdiction unrelated to his special designation. Biondi v. State, 43 Fla. L. Weekly D612a (4th DCA 3/21/18)



https://edca.4dca.org/DCADocs/2016/1711/161711_1709_03212018_09064918_i.pdf


PROBATION-CONDITIONS: Court's failure to orally pronounce certain special conditions need not be stricken where Defendant filed a motion to correct the error, even though court did not correct it.  Thompson v. State, 43 Fla. L. Weekly D608b (2nd DCA 3/16/18)


https://edca.2dca.org/DCADocs/2016/2084/162084_65_03162018_08280284_i.pdf


POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on the claim that counsel was ineffective for failing to object to comments by state in cross-examination and closing argument attempting to shift burden of proof, expressing prosecutor's personal opinions, and misstating the law.  Connelly v. State, 43 Fla. L. Weekly D601a (5th DCA 3/16/18)


http://5dca.org/Opinions/Opin2018/031218/5D17-2226.op.pdf

AGREEMENT: Agreement between defendant and state attorney for one judicial circuit where some of acts occurred for state not to seek the death penalty in exchange for defendant's cooperation in finding body of murder victim was binding on state attorney for a different judicial circuit.    Johnson v. State, 43 Fla. L. Weekly S135a (FLA 3/15/18)


http://www.floridasupremecourt.org/decisions/2018/sc14-1966.pdf

JURORS-PEREMPTORY CHALLENGE: Where Defendant challenges State's race neutral reason for striking a black juror (prior experience with cops) on the the ground that other jurors are similarly situated, Defendant must identify the similarly situated jurors or fail in his challenge.   Johnson v. State, 43 Fla. L. Weekly S135a (FLA 3/15/18)


http://www.floridasupremecourt.org/decisions/2018/sc14-1966.pdf

 

DEATH PENALTY: Defendant who waived jury for penalty is not entitled to relief under Hurst.  Hutchinson v. State, 43 Fla. L. Weekly S133b (FLA 3/15/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1229.pdf


JUDGE-DISQUALIFICATION: Judge's comment that Wife would "just do what she wants," non-verbal expressions and adverse rulings are insufficient to require disqualification.  Erlinger v. Federico, 43 Fla. L. Weekly D606a (1st DCA 3/15/18)


https://edca.1dca.org/DCADocs/2017/0248/170248_1284_03152018_12204553_i.pdf

DOUBLE JEOPARDY: Defendant who enters negotiated plea to two counts (Possession of Firearm by Felon and Grand Theft of the Firearm) waives double jeopardy claim.   Piazza v. State, 43 Fla. L. Weekly D605a (1st DCA 3/15/18)


https://edca.1dca.org/DCADocs/2016/2235/162235_1284_03152018_12175076_i.pdf

 

VOP-JURISDICTION: Probation is tolled when Defendant absconds. State v. Beery, 43 Fla. L. Weekly D597a (2nd DCA 3/14/18)


https://edca.2dca.org/DCADocs/2016/3289/163289_39_03142018_08335795_i.pdf

 

DOUBLE JEOPARDY: Traveling to meet a minor and unlawful use of two-way communications device barred by double jeopardy where one of the two offenses was entirely proven by the other and they were committed during the same criminal episode.  Watkins v. State, 43 Fla. L. Weekly D595a (2nd DCA 3/14/18)


https://edca.2dca.org/DCADocs/2016/0219/160219_114_03142018_08325131_i.pdf

 

SEARCH AND SEIZURE: Informant's tip that Defendant had a concealed firearm does not justify stop; carrying a concealed firearm with a permit is legal, and tip did not allege that Defendant had no permit.   Slydell v. State, 43 Fla. L. Weekly D594a (2nd DCA 3/14/18)


https://edca.2dca.org/DCADocs/2016/4983/164983_39_03142018_08394822_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for advising him that State would withdraw plea offer he tried to suppress the evidence.  Huntoon v. State, 43 Fla. L. Weekly D593a (2nd DCA 3/14/18)


https://edca.2dca.org/DCADocs/2017/0950/170950_114_03142018_08415642_i.pdf

GRAND THEFT: Child cannot be convicted of grand theft where only evidence of value was objected-to hearsay (owner went online to "eBay or something" to ascertain value).   D.J.S. v. State, 43 Fla. L. Weekly D592b (2nd DCA 3/14/18)


https://edca.2dca.org/DCADocs/2017/0935/170935_114_03142018_08405617_i.pdf

SELF-REPRESENTATION: Court cannot disallow self-representation on the basis of a mental health expert who says Defendant has no major mental illness but is incompetent to represent himself based on lack of legal education or rational understanding of the law.    Loor v. State, 43 Fla. L. Weekly D590b (3rd DCA 3/14/18)


http://3dca.flcourts.org/Opinions/3D15-2859.pdf

YOUTHFUL OFFENDER: Court must keep Youthful Offender designation upon multiple violations of probation.  Peatenlane v. State, 43 Fla. L. Weekly D581a (4th DCA 3/14/18)


https://edca.4dca.org/DCADocs/2015/3032/153032_1708_03142018_09183633_i.pdf

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Court may find the Defendant to be a violent felony offender of special concern (danger to the community) upon repeated violations of probation by considering his original offense and marijuana use.     Peatenlane v. State, 43 Fla. L. Weekly D581a (4th DCA 3/14/18)


https://edca.4dca.org/DCADocs/2015/3032/153032_1708_03142018_09183633_i.pdf


QUOTATION (DISSENT): "Under section 948.06(8), a 'danger to the community' is not a freewheeling concept unhinged from the statute. Rock and roll music was once considered dangerous to the morals of teenagers, but that type of soft danger is outside the purview of the statute. . .It is inconceivable that Floridians can be placed in 'danger' by appellant's marijuana consumption."    Peatenlane v. State, 43 Fla. L. Weekly D581a (4th DCA 3/14/18)


https://edca.4dca.org/DCADocs/2015/3032/153032_1708_03142018_09183633_i.pdf

 

LIFE SENTENCE-MINOR-NONHOMICIDE: Minor Defendant who was sentenced to life and violated parole twice is not entitled to sentence review. Stern v. State, 43 Fla. L. Weekly D566a(2nd DCA 3/9/18)

 

https://edca.2dca.org/DCADocs/2017/2718/172718_65_03092018_08472033_i.pdf

 


LIFE SENTENCE-MINOR-NONHOMICIDE: Minor Defendant sentenced to 26 years is entitled to judicial review. All juvenile offenders for nonhomicide offenses whose sentences exceed twenty years are entitled to judicial review.  Cuevas v. State, 43 Fla. L. Weekly D563a (2nd DCA 3/9/18)


https://edca.2dca.org/DCADocs/2016/1122/161122_39_03092018_08341803_i.pdf

 


MENS REA: Statute barring altering animal health document is not overly vague. Mens rea is unstated but implicit. Innocent alterations such as changing the font or adding a logo would not be criminalized; only alterations that made the certificate false or deceptive would constitute a crime. Offenses with no mens rea are disfavored, and a scienter element is often necessary to comply with due process requirements." State v. Carrier, 43 Fla. L. Weekly D559h (2nd DCA 3/9/18)

 

https://edca.2dca.org/DCADocs/2016/2917/162917_39_03092018_08431950_i.pdf

 

DICTIONARY WARS: "Alter" means "to change or modify" and to make 'different in some particular characteristic without changing it into something else." "Simulate" means "to give or assume the appearance or effect of often with the intent to deceive."  State v. Carrier, 43 Fla. L. Weekly D559h (22nd DCA 3/9/18)


https://edca.2dca.org/DCADocs/2016/2917/162917_39_03092018_08431950_i.pdf

 


VAGUENESS: A defendant may not make a facial vagueness challenge if the defendant's conduct is clearly proscribed by the plain and ordinary meaning of the statute.   State v. Carrier, 43 Fla. L. Weekly D559h (22nd DCA 3/9/18)


https://edca.2dca.org/DCADocs/2016/2917/162917_39_03092018_08431950_i.pdf

 

DOUBLE JEOPARDY:   Separate convictions for sexual battery on a person twelve years of age or older but less than eighteen years of age and lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age violated double jeopardy. Connolly v. State, 43 Fla. L. Weekly D558a (5th DCA 3/9/18)

 

http://5dca.org/Opinions/Opin2018/030518/5D17-1142.op.pdf

 

COMPETENCY-COMMITMENT: Court may not commit Defendant where there was no evidence that the mental illness causing defendant's incompetence would respond to treatment and that defendant would regain competency to proceed in the reasonably foreseeable future. DCF v. Kamaluddin, 43 Fla. L. Weekly D557a (5th DCA 3/9/18)


http://5dca.org/Opinions/Opin2018/030518/5D18-116.op.pdf

 

VOP-HEARSAY: Court may not rely solely on hearsay evidence to find a violation of probation based on false imprisonment and battery arising out of a domestic violence incident.  Crawford v. State, 43 Fla. L. Weekly D556b (5th DCA 3/9/18)


http://5dca.org/Opinions/Opin2018/030518/5D17-2729.op.pdf

 

DICTIONARY WARS: An altercation is a vehement dispute; a noisy argument.  Crawford v. State, 43 Fla. L. Weekly D556b (5th DCA 3/9/18)


http://5dca.org/Opinions/Opin2018/030518/5D17-2729.op.pdf


JURY INSTRUCTIONS-POSSESSION: Definition of possession is clarified. "Mere proximity to an item does not establish that the person intentionally exercised control over the item in the absence of additional evidence. Control can be established by proof that (defendant) had direct personal power to control the item or the present ability to direct its control by another."   In Re: Standard Jury Instructions, 43 Fla. L. Weekly S124b (FLA 3/8/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1652.pdf


JURY INSTRUCTIONS-AMENDMENT: New impeachment instruction. "The evidence that a witness may have made a prior statement that is inconsistent with [his] [her] testimony in court should be considered only for the purpose of weighing the credibility of the witness's testimony and should not be considered as evidence or proof of the truth of the prior statement or for any other purpose."   In re: Standard Jury Instructions, 43 Fla. L. Weekly S124a (FLA 3/8/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-2013.pdf

 

DOUBLE JEOPARDY: Double jeopardy does not bar a new penalty phase in which defendant will again be eligible for the death penalty. New capital sentencing scheme is not an ex post facto law.  Victorino v. State, 43 Fla. L. Weekly S123a (FLA 3/8/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1285.pdf

 

 

STATEMENT OF DEFENDANT-REDACTION: Admission of unredacted interview which includes Officer saying Defendant is untruthful is not fundamental error where Detective's statements were not firm statements of assertions of guilt nor a firm personal opinion. Kines v. State, 43 Fla. L. Weekly D554a (1st DCA 3/8/18)


https://edca.1dca.org/DCADocs/2016/4539/164539_1284_03082018_10012438_i.pdf



PRETRIAL DETENTION: Court erred in ordering that defendant be detained pending a hearing regarding the source of his bond money. Sparrow v. State, 43 Fla. L. Weekly D557b (5th DCA 3/7/18)

 

http://5dca.org/Opinions/Opin2018/030518/5D18-607.op.pdf

 


RESISTING WITHOUT VIOLENCE: Officer was in lawful performance of duty when he detained Child for acting as a lookout.    I.B. v. State, 43 Fla. L. Weekly D543a (3rd DCA 3/7/18)


http://3dca.flcourts.org/Opinions/3D17-1368.pdf


POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: The standard for withdrawing a plea based on newly discovered evidence is not whether it is necessary to correct a manifest injustice, but rather whether the new evidence establishes a reasonable probability that, but for the newly discovered evidence, the defendant would not have pleaded guilty and would have insisted on going to trial.   Perez v. State, 43 Fla. L. Weekly D540b (3rd DCA 3/7/18)


http://3dca.flcourts.org/Opinions/3D16-2874.pdf

 

EXPLOITATION OF ELDERLY: Fundamental error for jury instruction to the element that the defendant obtained the property when he knew or should have known the victim lacked the capacity to consent.   Parrondo v. State, 43 Fla. L. Weekly D538a (3rd DCA 3/7/18)


http://3dca.flcourts.org/Opinions/3D16-1939.pdf

 

SENTENCING CONSIDERATIONS: Court erred by implicitly relying on defendant's lack of remorse when imposing sentence.  Symanski v. State, 43 Fla. L. Weekly D535a (2nd DCA 3/7/18)


https://edca.2dca.org/DCADocs/2017/0210/170210_114_03072018_08275406_i.pdf


POST CONVICTION RELIEF: Motion is timely when filed within two years of issuane of mandate eversing defendant's conviction of second-degree murder and remanding for a new trial on that count only.   Gland v. State, 43 Fla. L. Weekly D533a (2nd DCA 3/7/18)


https://edca.2dca.org/DCADocs/2017/1802/171802_39_03072018_08404183_i.pdf

 

STATEMENTS OF DEFENDANT-COUNSEL: Admission of statements defendant made to police after he was confined in psychiatric wing of a hospital violates due process clause of Florida Constitution where police did not tell defendant that his family had retained a lawyer to represent him and instead interviewed him in absence of counsel. When an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney's presence and purpose, regardless of whether the defendant is in custody.   Baskin v. State, 43 Fla. L. Weekly D530b (2nd DCA 3/7/18)


https://edca.2dca.org/DCADocs/2014/3802/143802_39_03072018_08221164_i.pdf

 

STATEMENTS OF DEFENDANT: Admission of defendant's videoed statements to confidential informant in absence of counsel did not violate defendant Sixth Amendment right to counsel where defendant was not in custody and had never been arrested for the charges when he confessed. London v. State, 43 Fla. L. Weekly D528a (4th DCA 3/7/18)

 

https://edca.4dca.org/DCADocs/2016/2211/162211_1257_03072018_08485861_i.pdf


SENTENCING-CONSIDERATIONS: Court erred when it considered a fact at sentencing that specifically conflicted with factual finding by jury (that Defendant had a gun).   Theophile v. State, 43 Fla. L. Weekly D522b (4th DCA 3/7/18)


https://edca.4dca.org/DCADocs/2016/2841/162841_1257_03072018_09053648_i.pdf


JOA-FRAUDULENT USE OF CREDIT CARD: JOA properly denied where state charged defendant alternatively with using a credit card or fraudulently representing he was the holder of the card, and evidence undisputedly showed that defendant used a credit card unlawfully.   Jones v. State, 43 Fla. L. Weekly D520a (4th DCA 3/7/18)


https://edca.4dca.org/DCADocs/2017/0590/170590_1257_03072018_09151162_i.pdf


JUDGE-DISQUALIFICATION: Disqualification not warranted, and otherwise time barred, on the basis tht the judge's wife is a friend of a detective in the case. Defendant's speculative and unfounded allegations of official misconduct are legally insufficient.
Joshua v. State, 43 Fla. L. Weekly D519a (4th DCA 3/7/18)

 

https://edca.4dca.org/DCADocs/2017/2928/172928_1703_03072018_09361151_i.pdf



SENTENCING: Court is not authorized to prohibit Department of Corrections from recommending early termination.   Lizano v. State, 43 Fla. L. Weekly D518a (4th DCA 3/7/18)


https://edca.4dca.org/DCADocs/2016/4329/164329_1709_03072018_09094091_i.pdf



PROBATION-CONDITIONS: No alcohol special conditions which were not related to offense of conviction or offender were invalid.   Lizano v. State, 43 Fla. L. Weekly D518a (4th DCA 3/7/18)


https://edca.4dca.org/DCADocs/2016/4329/164329_1709_03072018_09094091_i.pdf


 

SEARCH AND SEIZURE-PHONE: The good-faith exception to the exclusionary rule does not apply to cell phone searches.  Burton v. State, 43 Fla. L. Weekly D507b (5th DCA 3/2/18)


http://5dca.org/Opinions/Opin2018/022618/5D15-1310.rem%20op.pdf

 

VOP: Court must articulate the counts which the Defendant is found to have violated. Hanks v. State, 43 Fla. L. Weekly D507a (5th DCA 3/2/18)


http://5dca.org/Opinions/Opin2018/022618/5D17-2571.op.pdf

 


COMPETENCY: Court must enter a written order of competency; court minutes are not sufficient.   Davis v. State, 43 Fla. L. Weekly D506b (5th DCA 3/2/18)


http://5dca.org/Opinions/Opin2018/022618/5D17-165.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for advising Defendant to lead guilty to a count which was deleted from the amended information.   Foster v. State, 43 Fla. L. Weekly D506a (5th DCA 3/2/18)


http://5dca.org/Opinions/Opin2018/022618/5D17-3103.op.pdf


DOUBLE JEOPARDY: Separate convictions for DUI manslaughter and vehicular homicide based upon a single death violate double jeopardy.  Granger v. State, 43 Fla. L. Weekly D505a (5th DCA 3/2/18)


http://5dca.org/Opinions/Opin2018/022618/5D16-3406.op.pdf

 

APPEAL-COSTS: Court lacks jurisdiction to enter order for investigative costs while appeal was pending.   Murray v. State, 43 Fla. L. Weekly D504a (5th DC 3/2/18)


http://5dca.org/Opinions/Opin2018/022618/5D17-2215.op.pdf

 

NEWLY DISCOVERED EVIDENCE: A confession by defendant's brother that he was "more responsible than anyone else" for the murder of the victim is not newly discovered evidence evidence and would be inadmissible as hearsay.   Sochor v. State, 43 Fla. L. Weekly S118a (FLA 3/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-929.pdf



LESSER INCLUDED: Failure to give jury instruction on attempted manslaughter as necessarily lesser included offense of attempted second degree murder constituted fundamental error.   Roberts v. State, 43 Fla. L. Weekly S117a (FLA 3/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc15-1320.pdf

 


JUROR-CHALLENGE FOR CAUSE: Court may deny challenge for cause of potential juror who claimed he might fall asleep but who seemed to be cheerful and lively.  Guzman v. State, 43 Fla. L. Weekly S104a (FLA 3/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1711_CORRECTED.pdf

 

JUROR-PEREMPTORY CHALLENGE: State may strike jurors who watch CNN; reason is race neutral.   Guzman v. State, 43 Fla. L. Weekly S104a (FLA 3/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1711_CORRECTED.pdf

 


FEBRUARY 2018

 

DEATH PENALTY-HURST-RETROACTIVITY: Hurst does not apply retroactively to offenses which became final before Ring. Martin v. State, 43 Fla. L. Weekly S115b (FLA 2/28/18) Byrd v. State, 43 Fla. L. Weekly S115a (FLA 2/28/18) Gaskin v. State, 43 Fla. L. Weekly S114c (FLA 2/28/18) Raleigh v. State, 43 Fla. L. Weekly S114a (FLA 2/28/18) Geralds v. State, 43 Fla. L. Weekly S113c (FLA 2/28/18) Barwick v. State, 43 Fla. L. Weekly S113b (FLA 2/28/18) Brown v. State, 43 Fla. L. Weekly S113a (FLA 2/28/18)



10-20-LIFE: Where mandatory minimum of 25 to life is required by 10-20-Life law, additional statutory authority is required to go above the statutory maximum of 30 years for attempted second degree murder.   Byrd v. State, 43 Fla. L. Weekly D499a (1st DCA 2/28/18)


https://edca.1dca.org/DCADocs/2017/3165/173165_1287_02282018_03082296_i.pdf

 

ARGUMENT: Comments by prosecutor in closing argument addressing the conclusiveness of DNA evidence presented at trial and noting that there was no evidence that defendant had any male relatives who could have left matching DNA at the crime scene did not improperly shift burden of proof to defendant.  Statham v. State, 43 Fla. L. Weekly D498c (1st DCA 2/28/18)


https://edca.1dca.org/DCADocs/2017/1070/171070_1284_02282018_02442166_i.pdf

 

AGGRAVATED ASSAULT-JOA: Defendant who tried to kill one victim with an AK-47 and then told another to "shut the hell up," can be convicted of aggravated assault of both. Williams v. State, 43 Fla. L. Weekly D496a (1st DCA 2/28/18)


https://edca.1dca.org/DCADocs/2016/1706/161706_1284_02282018_02424449_i.pdf


WAIVER OF COUNSEL: A defendant who is plainly competent cannot show prejudice from the court's failure to ask questions to confirm that he is competent.  Hooks v. State, 43 Fla. L. Weekly D495 (1st DCA 2/28/18)

 

https://edca.1dca.org/DCADocs/2016/0368/160368_1289_02282018_02353796_i.pdf

 

POST CONVICTION RELIEF: Court may deny motion for extension of time in which to file amended rule 3.850 motion based upon delayed access to one of correctional institution's certified law clerks.  Pinestraw v. State, 43 Fla. L. Weekly D493a (1st DCA 2/28/18)


https://edca.1dca.org/DCADocs/2017/1730/171730_1284_02282018_02471423_i.pdf

 

SENTENCING-SCORESHEET: Resentencing required where scoresheet included juvenile adjudications which occurred more than five years before.    Philmore v. State, 43 Fla. L. Weekly D490b (4th DCA 2/28/18)


https://edca.4dca.org/DCADocs/2015/4602/154602_1708_02282018_08572440_i.pdf

DISQUALIFICATION: No merit to claim that orders entered after defendant filed motion to disqualify judge were void where defendant failed to serve motion on judge. Forney v. State, 43 Fla. L. Weekly D490a (4th DCA 2/28/18)


https://edca.4dca.org/DCADocs/2017/3854/173854_1257_02282018_09234149_i.pdf

 

SENTENCING-VINDICTIVENESS: Imposition of consecutive life sentence on resentencing after court had initially imposed concurrent life sentence constituted a vindictive sentence where resentencing occurred after defendant had successfully challenged initial sentence, and reasons for more severe sentence were not based on defendant's conduct occurring after original sentencing proceeding. Austin v. State, 43 Fla. L. Weekly D489a (4th DCA 2/28/18)
https://edca.4dca.org/DCADocs/2016/1524/161524_1709_02282018_08585334_i.pdf

 

POST CONVICTION RELIEF: A claim that counsel was ineffective for advising the defendant to reject a plea offer because counsel was confident that she could win at trial and that such advice was unreasonable warrants a hearing. Brown v. State, 43 Fla. L. Weekly D488a (4th DCA 2/28/18)


https://edca.4dca.org/DCADocs/2017/2428/172428_1708_02282018_09223156_i.pdf

 

CONTEMPT-DIRECT: Failure to appear in court is indirect, not direct, contempt. Sandelier v. State, 43 Fla. L. Weekly D484a (4th DCA 2/28/18)


https://edca.4dca.org/DCADocs/2016/3695/163695_1709_02282018_09052017_i.pdf


MINOR-SENTENCE REVIEW: Defendant who had served 15 years of a 25-year sentence imposed for second-degree murder committed when he was a juvenile was not entitled to review under juvenile offender sentencing statute. Elkin v. State, 43 Fla. L. Weekly D476e (2nd DCA 2/28/18)


https://edca.2dca.org/DCADocs/2017/1750/171750_65_02282018_08405686_i.pdf

 

MINOR-SENTENCE REVIEW: Minor sentenced to concurrent 40-year sentences for nonhomicides is entitle to resentencing under new juvenile sentencing guidelines. Blount v. State, 43 Fla. L. Weekly D476d (2nd DCA 2/28/18)

 

https://edca.2dca.org/DCADocs/2017/1949/171949_39_02282018_08415715_i.pdf

LESSER INCLUDED: Giving of erroneous standard instruction on manslaughter by act, which included element of intent to kill, as lesser included offense of second degree murder constituted fundamental error even though jury was instructed on manslaughter by culpable negligence where there was no evidence from which jury could have concluded that victim was killed due to culpable negligence. Marshall v. State, 43 Fla. L. Weekly D466a (3rd DCA 2/28/18)

 

http://3dca.flcourts.org/Opinions/3D17-1605.pdf

 

 

JUVENILES-PROBATION: Because adjudication was withheld, the trial court could impose probation for an indefinite period not to exceed T.A.'s nineteenth birthday, but Judge must say so if that is the intent. T.A. v. State, 43 Fla. L. Weekly D462a (2nd DCA 2/23/18)

https://edca.2dca.org/DCADocs/2017/2258/172258_114_02232018_08441524_i.pdf

 

 

SCORESHEET-VICTIM INJURY POINTS: Victim injury points were improperly assessed where victim injury was not an element of offense.     Weeks v. State, 43 Fla. L. Weekly D461a (2DCA 2/23/18)


https://edca.2dca.org/DCADocs/2016/5526/165526_39_02232018_08430500_i.pdf

 

VOP: Court lacked jurisdiction to impose new sentence on count for which defendant had completed his period of community control.   Stump v. State, 43 Fla. L. Weekly D460b (2nd DCA 2/23/18)


https://edca.2dca.org/DCADocs/2017/2408/172408_114_02232018_08460444_i.pdf

 

PUBLIC RECORDS-MANDAMUS: Court erred in summarily denying petition for writ of mandamus seeking to compel state attorney to produce CDs which state claimed are exempt from disclosure without conducting in camera inspection of the CDs to determine whether contents are exempt from disclosure.  Gonzalez v. State, 43 Fla. L. Weekly D460a (2nd DCA 2/23/18)


https://edca.2dca.org/DCADocs/2017/2351/172351_39_02232018_08450853_i.pdf

 


STATEMENTS OF DEFENDANT: Court erred in suppressing certain portions of statements made by defendant after he invoked his right to counsel where the statements at issue were not made in response to questions or actions on part of law enforcement that were reasonably likely to elicit incriminating statements. Waiting with intoxicated Defendant for evidence tech for two hours is not interrogation.   State v. Lantz, 43 Fla. L. Weekly D449b (1st DCA 2/23/18)


https://edca.1dca.org/DCADocs/2017/1681/171681_1286_02232018_09270274_i.pdf

 

A BAD DAY: After being arrested late one night under a bridge, and in close proximity to his dead mother's floating body, Defendant said, "I didn't -- I didn't kill the b****, but somebody paid me to f***ing help him. That was a good way to make money. . . . Somebody else killed her. I didn't kill her. The body was there. He told me to come get her. 10 grand (unintelligible) pay me. Never going to see that money. And now he got away with murder, and I get the f***ing rap."     State v. Lantz, 43 Fla. L. Weekly D449b (1st DCA 2/23/18)

 

https://edca.1dca.org/DCADocs/2017/1681/171681_1286_02232018_09270274_i.pdf

 

MANDATORY MINIMUM: Amendment reducing mandatory minimum sentence for trafficking in hydrocodone does not apply to Defendant who was sentenced under the earlier version of statute.   Bigham v. State, 43 Fla. L. Weekly D449a (1st DCA 2/23/18)

https://edca.1dca.org/DCADocs/2017/2521/172521_1284_02232018_09282272_i.pdf

 

DOUBLE JEOPARDY: Separate convictions for introducing contraband into county detention center and possession of methamphetamine based on a single act of possession violated double jeopardy.   Palmer v. State, 43 Fla. L. Weekly D447a (5th DCA 2/23/18)


http://5dca.org/Opinions/Opin2018/021918/5D17-469.op.pdf

 

DOUBLE JEOPARDY-HEARSAY: Court may not rely on hearsay (probable cause affidavit) to find that two convictions were based on separate quantities of meth in denying motion for post conviction relief raising double jeopardy issue.   Palmer v. State, 43 Fla. L. Weekly D447a (5th DCA 2/23/18)


http://5dca.org/Opinions/Opin2018/021918/5D17-469.op.pdf

 

SENTENCING: In sentencing defendant to a prison term upon revocation of community control, trial court improperly considered allegations in arrest affidavit regarding original charges which were nolle prossed by state to find that defendant presented a danger to the public. Taylor v. State, 43 Fla. L. Weekly D444a (5th DCA 2/23/18)

 

http://5dca.org/Opinions/Opin2018/021918/5D17-2259.op.pdf




DOUBLE JEOPARDY: Separate convictions for extortion and written threats to kill or do bodily injury arising of same criminal transaction violate double jeopardy.   Doyle v. State, 43 Fla. L. Weekly D441a (5th DCA 2/23/18)


http://5dca.org/Opinions/Opin2018/021918/5D17-686.op.pdf

 

ATTORNEY-DISCIPLINE: Suspension cannot exceed three years; disbarment is appropriate. Attorney disbarred for muttering, "Lie, Lie, Lie" and and repeatedly kicking the leg of counsel's table during a hearing. "One can be professional and aggressive without being obnoxious. . .We do not tolerate unprofessional and discourteous behavior."   The Florida Bar v. Ratiner, 43 Fla. L. Weekly S108a (FLA 2/22/18)


http://www.floridasupremecourt.org/decisions/2018/sc13-539.pdf




JUROR-CHALLENGE FOR CAUSE
: Challenge for cause is permissible for jurors who indicated that he was easily bored and might fall asleep and juror who said she would be tired.  Guzman v. State, 43 Fla. L. Weekly S104a (FLA 2/22/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1711.pdf

 

JUROR-CHALLENGE FOR CAUSE: Court did not reversibly err in allowing state to strike African-American venirewoman without providing genuine race-neutral explanation after state explained that they challenged juror because she was CNN viewer and state preferred jurors who watched Fox News.   Guzman v. State, 43 Fla. L. Weekly S104a (FLA 2/22/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1711.pdf

 

SENTENCING-MINOR-INTENT TO KILL: Decision of U.S. Supreme Court in Alleyne v. United States requires the jury and not the trial court to make the factual finding under section 775.082(1)(b), Florida Statutes (2016), as to whether juvenile offender actually killed, intended to kill, or attempted to kill victim.   Williams v. State, 43 Fla. L. Weekly S91a (FLA 2/22/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-506.pdf

 

PRR: Defendant does not qualify for PRR where he had never been physically transferred to DOC under his sentence. Conflict certified.   Lucas v. State, 43 Fla. L. Weekly D440a (2nd DCA 2/21/18)


https://edca.2dca.org/DCADocs/2017/0345/170345_114_02212018_08250517_i.pdf

 

UNION-CONTACT: In sex case, jury is properly instructed that union means contact. Phillips v. State, 43 Fla. L. Weekly D439c (4th DCA 2/21/18)


https://edca.4dca.org/DCADocs/2016/4006/164006_1257_02212018_08521111_i.pdf

 

 

COMPETENCY: Trial counsel's apparent stipulation to defendant's competency based on court-ordered evaluation did not absolve trial court from making independent determination regarding defendant's competency.   Panaro v. State, 43 Fla. L. Weekly D438a (4th DCA 2/21/18)

 

https://edca.4dca.org/DCADocs/2016/1179/161179_1709_02212018_08481790_i.pdf

 

VOP: After a hearing on whether he violated probation, the Defendant is entitled to a separate hearing on disposition.   Harrington v. State, 43 Fla. L. Weekly D434a (4th DCA 2/21/18)


https://edca.4dca.org/DCADocs/2016/1084/161084_1708_02212018_08454556_i.pdf

 

 

RESENTENCING: When resentencing defendant following appellate remand, trial court erred by imposing sentence at hearing that was noticed as a status check, not a sentencing hearing.   Noel v. State, 43 Fla. L. Weekly D432a (4th DCA 2/21/18)


https://edca.4dca.org/DCADocs/2016/4247/164247_1709_02212018_08533995_i.pdf

 

CONFESSION: Detectives violated defendant's Miranda rights when they continued to engage defendant after he had invoked his right to counsel ("They're talking. First one talks, deals. . .Good luck to you man. These guys already talk. All right. So don't say I didn't give you a chance. . .No more breaks after this. The gloves come off.").    Scotsman v. State, 43 Fla. L. Weekly D431a (4th DCA 2/21/18)


https://edca.4dca.org/DCADocs/2015/2729/152729_1709_02212018_08433896_i.pdf

BURGLARY: Child cannot be convicted of burglary of a structure where building under construction had no roof.   I.L. v. State, 43 Fla. L. Weekly D428a (3rd DCA 2/21/18)


http://3dca.flcourts.org/Opinions/3D17-1108.pdf

 


SEARCH AND SEIZURE: Vehicle passenger can be detained on traffic stop.  Cummings v. State, 43 Fla. L. Weekly D417c (1st DCA 2/20/18)

 

https://edca.1dca.org/DCADocs/2016/4167/164167_1284_02202018_12130268_i.pdf

 

PUBLIC RECORDS: Two-week period it took letter to be delivered from state attorney in response to request for public records did not breach requirement to respond promptly. State attorney did not violate public records law by making requested records available for inspection and copying at main office of state attorney instead of at an office closer to the requester's home.   Siegmeister v. Johnson, 43 Fla. L. Weekly D415a (1st DCA 2/20/18)


https://edca.1dca.org/DCADocs/2017/0992/170992_1287_02202018_09042090_i.pdf



SENTENCING CONSIDERATIONS: In sentencing for possession of child porn, Court may consider evidence that Defendant expressed interest in having sex with a child.  Barlow v. State, 43 Fla. L. Weekly D414a (1st DCA 2/20/18)


https://edca.1dca.org/DCADocs/2016/5042/165042_1284_02202018_08571176_i.pdf

 


JURORS-PEREMPTORY CHALLENGE-PRESERVATION: Has a defendant who accepts a jury, but renewed a previously-raised objection to a state peremptory challenge after the challenged juror has been excused but before the jury is sworn, waived that objection? Question certified.   Ivey v. State, 43 Fla. L. Weekly D413d (1st DCA 2/20/18)


https://edca.1dca.org/DCADocs/2015/5803/155803_1289_02202018_08541785_i.pdf



HABEAS CORPUS: Defendant cannot raise by habeas corpus claims which would have been time barred under 3.850.   Welch v. State, 43 Fla. L. Weekly D413c (1st DCA 2/20/18)

 

https://edca.1dca.org/DCADocs/2017/1603/171603_1287_02202018_09070608_i.pdf

 

POST CONVICTION RELIEF: Court may not summarily deny motion without attaching records showing no entitlement to relief.   Laidler v. State, 43 Fla. L. Weekly D413a (1st DCA 2/20/18)


https://edca.1dca.org/DCADocs/2017/2372/172372_1287_02202018_09101383_i.pdf

 

DICTIONARY: "[T]he Supreme Court Committee on Standard Jury Instructions in Criminal Cases might want to consider amending the standard jury instruction . . .to define the terms 'prurient interest' and 'morbid interest.'"    Brown v. State, 43 Fla. L. Weekly D412a (1st DCA 2/19/18)


https://edca.1dca.org/DCADocs/2016/2775/162775_1284_02192018_09124823_i.pdf


JURY PARDON-LESSER INCLUDED: Because jury pardon doctrine has been abrogated by Florida Supreme Court, giving of jury instruction on attempted voluntary manslaughter that incorrectly included an element of intent to kill did not constitute fundamental error, and error was harmless. Conflict certified.   Knight v. State, 43 Fla. L. Weekly D404a (1st DCA 2/19/18)


https://edca.1dca.org/DCADocs/2014/2382/142382_1284_02192018_02352124_i.pdf

 

FUNDAMENTAL ERROR: Fundamental error in a jury instruction can be waived.  Knight v. State, 43 Fla. L. Weekly D404a (1st DCA 2/19/18)


https://edca.1dca.org/DCADocs/2014/2382/142382_1284_02192018_02352124_i.pdf

 

QUOTATION: "Criminal defense lawyers take heed: you may have thought that a waiver of your client's known rights required that you voluntarily and intentionally relinquish them . . . because, after all, that has been the well-worn, long-accepted legal standard. No longer. Now your mere participation in the jury instructions process is sufficient to imply. . .[the transformation of] what had been known as 'unknowing acquiescence'. . .into a voluntary and intentional abandonment of your client's rights."   Knight v. State, 43 Fla. L. Weekly D404a (1st DCA 2/19/18)



https://edca.1dca.org/DCADocs/2014/2382/142382_1284_02192018_02352124_i.pdf

 


RESENTENCING
: Where court failed to re-designate the Defendant a Habitual offender upon a second violation of probation, and sentence otherwise exceeds the statutory maximum, Defendant must be re-sentenced to a legal non-HFO sentence. Bishop v. State, 43 Fla. L. Weekly D402c (5th DCA 2/16/18)


http://www.5dca.org/Opinions/Opin2018/021218/5D17-2497.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to file motion to suppress statements. Davis v. State, 43 Fla. L. Weekly D402a (5th DCA 2/16/18)


http://www.5dca.org/Opinions/Opin2018/021218/5D17-3239.op.pdf


POST CONVICTION RELIEF: Where defendant was previously deemed entitled to appointment of counsel for post conviction motion, it was an abuse of discretion to allow defendant to discharge counsel without an adequate hearing within the rubric of Faretta.  Toro v. State, 43 Fla. L. Weekly D400a (2nd DCA 2/16/18)


https://edca.2dca.org/DCADocs/2016/4349/164349_39_02162018_08491021_i.pdf

 

 

DEATH PENALTY: Death penalty is not barred for a 21 year old on the theory that a 21 year old's brain is not fully developed.  Branch v. State, 43 Fla. L. Weekly S87a (FLA 2/15/18)


http://www.floridasupremecourt.org/decisions/2018/sc18-190.pdf

 


DEATH PENALTY: Telling the jury that its recommendation would only be advisory does not violate Hurst. Franklin v. State, 43 Fla. L. Weekly S86a (FLA 2/15/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-824.pdf


 

SEX OFFENDER RECOMMENDATION: Court may deny petition for removal from sex offender registry based on his otherwise violent criminal history. The decision whether to grant a petition for removal from the sex offender registry filed by an offender who meets the criteria under the statute is discretionary.  Wromas v. State, 43 Fla. L. Weekly D392a (3rd DCA 2/14/18)


http://www.3dca.flcourts.org/Opinions/3D17-2782.pdf

 

WAIVER OF JURY TRIAL: Notwithstanding Rule 3.260, oral waiver of the right to a jury trial is permissible.  Westberry v. State, 43 Fla. L. Weekly D389b (3rd DCA 2/14/18)


http://www.3dca.flcourts.org/Opinions/3D17-2782.pdf

 

SELF DEFENSE:     It is error for a trial court to modify the standard jury instructions and instruct the jury on the victim's right to use force. An instruction on the victim's right to use self-defense is misleading and confusing since it tended to shift the focus away from the issue of whether the defendant was justified in the use of force, and to place emphasis on whether the victim was justified in defending him/herself. Stickney v. State, 43 Fla. L. Weekly D388a (4th DCA 2/14/18)


https://edca.4dca.org/DCADocs/2016/1803/161803_1709_02142018_09460843_i.pdf

 


CONTEMPT: Defendant properly found in contempt from repeatedly butting in, heckling one of the attorneys, saying she "could have been to Disney World four times with my ninety-year-old dad," and "I have bigger fish to fry." Woodward v. State, 43 Fla. L. Weekly D387a (4th DCA 2/14/18)

https://edca.4dca.org/DCADocs/2016/1803/161803_1709_02142018_09460843_i.pdf


CONTEMPT: A transcript of a direct criminal contempt hearing is not necessary to uphold the conviction. Woodward v. State, 43 Fla. L. Weekly D387a (4th DCA 2/14/18)


https://edca.4dca.org/DCADocs/2016/1803/161803_1709_02142018_09460843_i.pdf

 

CIRCUMSTANTIAL EVIDENCE: Defendant properly convicted of murder based on suspicious text messages about disposing of gun and evidence he had purchased the gun shortly before the murder.   Alvarez v. State, 43 Fla. L. Weekly D385a (4th DCA 2/14/18)


https://edca.4dca.org/DCADocs/2016/0802/160802_1257_02142018_09422557_i.pdf

 


FLEEING AND ELUDING: Where there was no dispute that defendant was not operating at a high rate of speed nor with wanton disregard, conviction is reduced to fleeing to elude law enforcement officer with sirens and lights activated. Claim that defendant "weaved" in traffic, without more, is insufficient.   Canidate v. State, 43 Fla. L. Weekly D382c (4th DCA 2/14/18)


https://edca.4dca.org/DCADocs/2016/4162/164162_1709_02142018_10012159_i.pdf



MINOR-SENTENCE REVIEW: "Though the defendant was not sentenced to life or a de facto life sentence, the trend of current case law appears to afford her a review of her 30-year sentence and a meaningful opportunity for release based on demonstrated maturity and rehabilitation."   Bilotti v. State, 43 Fla. L. Weekly D379a (4th DCA 2/14/18)


https://edca.4dca.org/DCADocs/2015/3415/153415_1709_02142018_10435740_i.pdf

 


DEPARTURE-DOWNWARD: "A jury found Schultz guilty of 55 counts of drug trafficking. Given the number of charges, the defendant scored 2549 sentencing points. The lowest permissible sentence under the criminal punishment code was 1890.75 months in prison, approximately 157.5 years." Downward departure reversed where Defendant did not file a motion for downward departure nor did Court make written findings.  State v. Schultz, 43 Fla. L. Weekly D377b (4th DCA 2/14/18)


https://edca.4dca.org/DCADocs/2016/0227/160227_1708_02142018_09402480_i.pdf

 

 

JURORS-PEREMPTORY CHALLENGE-RACE: Court erred in finding that juror's religious affiliation alone was genuine and race-neutral basis for challenge where state did not question juror regarding her religion before exercising the strike and, even after questioning, nothing in the record showed juror's religion (Jehovah Witness) would prevent her from being fair and impartial juror. Striking potential juror based entirely on particular religious affiliation, without any evidence that religion would prevent her from being fair and impartial, is impermissible "religious test" in violation of state and federal constitutions.   Pacchiana v. State, 43 Fla. L. Weekly D367a (4th DCA 2/14/18)

https://edca.4dca.org/DCADocs/2015/3340/153340_1709_02142018_09300913_i.pdf

 


FORFEITURE: Court erred by failing to conduct evidentiary hearing to establish whether claimant had bona fide claim to money found by law enforcement officers in his vehicle, along with evidence of sale of controlled substances and identity fraud, after claimant provided affidavit in which his mother stated that she had given claimant a specified amount of cash as a birthday gift.  Hudson v. State, 43 Fla. L. Weekly D364a (4th DCA 2/14/18)


https://edca.4dca.org/DCADocs/2017/0748/170748_1708_02142018_10112520_i.pdf


MAIL RULE: Motion for post conviction relief was timely filed where stamp on motion reflected that it was placed in the hands of institutional official for mailing less than 30 days after judgment and sentence became final.   Mondeja v. State, 43 Fla. L. Weekly D359a (2nd DCA 2/14/18)


https://edca.2dca.org/DCADocs/2017/1578/171578_39_02142018_08353286_i.pdf


NEBBIA HOLD: Courts lack authority to detain accused for the purpose of inquiring into source of funds used to post bail. Casiano v. State, 43 Fla. L. Weekly D358a (2nd DCA 2/14/18)


https://edca.2dca.org/DCADocs/2017/4150/174150_167_02142018_08372182_i.pdf


RETURN OF PROPERTY: Court cannot deny return of money on sole basis that $3480 was found in a desk at Claimant's brother's residence and "money" is listed as a potential trial exhibit.  Clayton v. State, 43 Fla. L. Weekly D357c (2nd DCA 2/14/18)


https://edca.2dca.org/DCADocs/2017/2671/172671_39_02142018_08362799_i.pdf

 

 

MOTION TO DISMISS: Any motion to dismiss must be in writing. Court cannot dismiss charge over State's objection based on court's perspective of the most suitable way to address juvenile's circumstances.  State v. A.J., 43 Fla. L. Weekly D352a (2nd DCA 2/14/18)


https://edca.2dca.org/DCADocs/2015/2718/152718_39_02142018_08185663_i.pdf



SEX OFFENDER PROBATION-MODIFICATION: Court lacked jurisdiction to impose conditions of sexual offender probation that it previously had affirmatively declined to impose.  Solimon v. State, 43 Fla. L. Weekly D350a (2nd DCA 2/14/18)


https://edca.2dca.org/DCADocs/2016/2980/162980_65_02142018_08250558_i.pdf



SUPERSEDEAS BOND: Court improperly denied supersedeas bond on ground that jury found defendant guilty and that court sentenced defendant below the statutory maximum. Ruiz v. State, 43 Fla. L. Weekly D396a (3rd DCA 2/13/18)


http://www.3dca.flcourts.org/Opinions/3D18-0193.pdf

 


COMPETENCY
: Court erred in failing to hold competency hearing after counsel had filed suggestion of incompetence and court had ordered expert examination of defendant.  Berry v. State, 43 Fla. L. Weekly D342a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2016/1394/161394_1287_02092018_11540437_i.pdf


LIFE SENTENCE-MINOR-HOMICIDE: Defendant is not entitled to jury findings on the statutory sentencing factors justifying a life sentence for a minor.  Copeland v. State, 43 Fla. L. Weekly D341a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2016/5621/165621_1287_02092018_11585817_i.pdf

 

LIFE SENTENCE-MINOR-HOMICIDE: A minor convicted of homicide and sentenced to life is not entitled to a 25 year sentence review if he has previously been convicted of certain offenses, included armed robbery. "If Mr. Copeland had a constitutional problem with being resentenced under this framework with its sentence-review prohibition, he should have argued that point to the Florida Supreme Court before it remanded his case."  Copeland v. State, 43 Fla. L. Weekly D341a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2016/5621/165621_1287_02092018_11585817_i.pdf


CHIILD HEARSAY-UNDUE PREJUDICE: Court ruling that child hearsay is admissible implicitly meant that the Court ruled the evidence's danger of prejudice did not outweigh its probative value.  Thompson v. State, 43 Fla. L. Weekly D340a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2016/1990/161990_1284_02092018_11563859_i.pdf


ARGUMENT: Prosecutor's reference to defendant as "boogeyman" in opening statement is not a basis for reversal where trial court sustained objection, and defendant did not seek curative instruction or move for mistrial. Thompson v. State, 43 Fla. L. Weekly D340a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2016/1990/161990_1284_02092018_11563859_i.pdf

 


LESSER INCLUDED: Court is required to give a lesser-included instruction of the permissive lesser of unnatural and lascivious act only if requested. A court's failure to give an instruction on a permissive lesser-included does not constitute fundamental error.  Thompson v. State, 43 Fla. L. Weekly D340a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2016/1990/161990_1284_02092018_11563859_i.pdf


COMPETENCY: Court abused its discretion by failing to hold competency hearing, adjudicate defendant's competency, and enter an order memorializing that adjudication before proceeding to trial where there were reasonable grounds to suggest that defendant was not mentally competent to proceed. Not even the defendant's stipulation to competency relieves the trial court of the obligation to hold a competency hearing if there are reasonable grounds to question competency.  Walker v. State, 43 Fla. L. Weekly D339a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2016/1809/161809_1286_02092018_11553146_i.pdf


CONSTRUCTIVE POSSESSION: Where Defendant is the sole resident of a garage apartment set up as a meth lab, he is not entitled to a JOA when arrested when another person comes to buy meth from him. Possession here is exclusive, and even if it were joint, evidence is sufficient to establish Defendant's possession. Nolley v. State, 43 Fla. L. Weekly D337a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2017/2122/172122_1284_02092018_12001980_i.pdf


OPINION: Detective's testimony that he tries to go after the meth cook (the Defendant), not the person buying the Sudafed, is not improper opinion evidence when offered on redirect to explain why the other guy was not arrested that day. Further testimony that he determined it was the Defendant who was cooking meth was improper, but not fundamental error.  Nolley v. State, 43 Fla. L. Weekly D337a (1st DCA 2/9/18)


https://edca.1dca.org/DCADocs/2017/2122/172122_1284_02092018_12001980_i.pdf


DOUBLE JEOPARDY: Separate convictions for possession of cocaine with intent to sell and simple possession based on single quantum of cocaine, a portion of which defendant sold to informant and a portion of which he retained, violated double jeopardy. There is no "legal distinction between the produce leaving the peddler's hand or in his pocket and that still on the push cart." Issue is fundamental. St. Louis v. State, 43 Fla. L. Weekly D332a (2nd DCA 2/9/18)


https://edca.2dca.org/DCADocs/2016/1939/161939_65_02092018_08434936_i.pdf


ROBBERY WITH A WEAPON: Defendant is entitled to JOA on robbery with a weapon where the weapon is a disassembled shotgun barrel and there was no evidence it was used as in a way likely to cause death or serious bodily injury. "Oddly, the definition of weapon itself includes a 'deadly weapon,' but the statute does not define a 'deadly weapon.'"  Browne v. State, 43 Fla. L. Weekly D323a (5th DCA 2/9/18)


http://5dca.org/Opinions/Opin2018/020518/5D16-791.op.pdf

 

POST CONVICTION RELIEF: Court erred in summarily denying claim that counsel was ineffective for failing to call a key witness on ground that claim was successive where trial court had originally summarily denied the claim but appellate court reversed and required a hearing.   Mackey v. State, 43 Fla. L. Weekly D317a (5th DCA 2/9/18)


http://5dca.org/Opinions/Opin2018/020518/5D17-3760.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim of ineffective assistance for failure to investigate alibi witnesses and that time card and video surveillance would have shown that he was at work at the time of the crime.  Mitchell v. State, 43 Fla. L. Weekly D316c (5th DCA 2/9/18)


http://5dca.org/Opinions/Opin2018/020518/5D17-908.op.pdf


DEATH PENALTY-HURST: Defendant is not entitled to relief under Hurst where defendant's conviction and sentence became final prior to Ring. Hamilton v. State, 43 Fla. L. Weekly S82a (FLA 2/8/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-42.pdf


JURY INSTRUCTION-MURDER-LEO:
Amendments to include that Defendant knew the victim was a LEO, other changes.   In Re: Standard Jury Instructions, 43 Fla. L. Weekly S79a (FLA 2/8/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-740.pdf

AMENDMENT-JURY INSTRUCTION-LEAVING SCENE OF CRASH: Accident changed to crash. In Re: Standard Jury Instructions, 43 Fla. L. Weekly S78c (FLA 2/8/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1714.pdf



APPEALS: Defendant is not entitled to new trial because of the absence of the jury charge conference from the trial transcript in the absence of a showing of prejudice. Murray v. State, 43 Fla. L. Weekly D313a (1st DCA 2/8/18)


https://edca.1dca.org/DCADocs/2016/0171/160171_1284_02082018_09314282_i.pdf


STAND YOUR GROUND: Defendant cannot prohibit trial court from proceeding on Stand Your Ground on the basis of its pre-hearing ruling that the standard of proof is preponderance of the evidence. The issue of retroactivity of the burden of proof, and whether the shifting of the burden is procedural or substantive, is not ripe.  Rodriguez v. State, 43 Fla. L. Weekly D304b (3rd DCA 2/7/18)


http://3dca.flcourts.org/Opinions/3D17-1633.pdf


HABITUAL VIOLENT FELONY OFFENDER: HVFO is constitutional. Heggs is inapplicable to a defendant who was sentenced as a habitual violent felony offender. Defendant is not subject to sentencing guidelines.  Gutierrez v. State, 43 Fla. L. Weekly D304a (3rd DCA 2/7/18)


http://3dca.flcourts.org/Opinions/3D17-2673.pdf

 

QUOTATION: Second motion for rehearing is denied. "MOTHAF--K y'all and all those that's down with y'all corrupted behavior! You MOTHAF--KS are not GOD and you damn sure not right. From this day forward all HELL will come down on y'all until I'm FREE."  Wright v. State, 43 Fla. L. Weekly D301b (3rd DCA 2/7/18)


http://3dca.flcourts.org/Opinions/3D16-2478.pdf


JURORS-PEREMPTORY CHALLENGE: Peremptory challenges are presumed to be exercised in a nondiscriminatory manner, and the focus of the inquiry is not upon the reasonableness of the asserted nonracial motive but rather the genuineness of the motive.  Martin v. State, 43 Fla. L. Weekly D300a (3rd DCA 2/7/18)


http://3dca.flcourts.org/Opinions/3D16-1247.pdf


TRIAL TRANSCRIPT: Court's response to jury request for trial transcript was not improper where trial court informed jury that transcript was not available at the time, that jury should rely upon its recollection, but that read back of certain portion may be available if necessary.  Douglas v. State, 43 Fla. L. Weekly D298d (3rd DCA 2/7/18)


http://3dca.flcourts.org/Opinions/3D15-0759.pdf



APPEAL-IAC: Appellate counsel was ineffective for failing to raise improper shifting of burden of proof, the same issue on which co-defendant won a new trial. To treat the two differently is a manifest injustice.  Pierre v. State, 43 Fla. L. Weekly D298a (4th DCA 2/7/18)


https://edca.4dca.org/DCADocs/2017/3103/173103_1704_02072018_09352288_i.pdf


DOUBLE JEOPARDY: Defendant could not be convicted of two counts of first degree felony murder and two counts of vehicular homicide/failure to render aid where defendant's actions resulted in death of only two victims.  Oakley v. State, 43 Fla. L. Weekly D295a (4th DCA 2/7/18)


https://edca.4dca.org/DCADocs/2015/4359/154359_1708_02072018_09123962_i.pdf

SELF-REPRESENTATION: Defendant abandoned his request to represent himself after a psychological evaluation finding him sane at th time of the offense and him agreeing to be represented.  Cheney v. Cheney, 43 Fla. L. Weekly D289a (1st DCA 2/5/18)


https://edca.1dca.org/DCADocs/2017/2443/172443_1284_02052018_09234813_i.pdf



DEATH PENALTY: Defendant who was sentenced to death is not entitled to relief under Hurst v. Florida where sentence became final prior to Ring v. Arizona.

Morton v. State, 43 Fla. L. Weekly S78b (FLA 2/2/18)

Overton v. State, 43 Fla. L. Weekly S78a (FLA 2/2/18)

Melton v. State, 43 Fla. L. Weekly S77c (FLA 2/2/18)

Hodges v. State, 43 Fla. L. Weekly S77b (FLA 2/2/18)

Griffin v. State, 43 Fla. L. Weekly S77a (FLA 2/2/18)

Pietri v. State, 43 Fla. L. Weekly S76c (FLA 1/2/1)

Damren v. State, 43 Fla. L. Weekly S76b (FLA 2/2/18)

Lawrence v. State, 43 Fla. L. Weekly S76a (FLA 2/2/18)

Derrick v. State, 43 Fla. L. Weekly S75c (FLA 2/2/18)

Johnson v. State, 43 Fla. L. Weekly S75b (FLA 2/2/18)


MANDAMUS: Judge can be compelled to rule on motion by writ of mandamus where ruling is unduly delayed. "While we are sympathetic to the large caseloads assigned to Florida's circuit judges, we are concerned that the present failure to rule on Horner's motion is unduly impairing his right of access to the courts." Horner v. State, 43 Fla. L. Weekly D274a (5th DCA 2/2/18)


www.5dca.org/Opinions/Opin2018/012918/5D17-3400.op.pdf


RESENTENCING-MINOR: Rule 3.802 motion challenging 30-year sentence for offense committed when defendant was juvenile applies only after juvenile has been resentenced and time for review hearing has arrived.  Katwaroo v. State, 43 Fla. L. Weekly D273a (5th DCA 2/2/18)

 

http://www.5dca.org/Opinions/Opin2018/012918/5D17-2088.op.pdf

LEWD OR LASCIVIOUS EXHIBITION: Lewd pictures transmitted during a live conversation on phone is insufficient to support conviction for lewd or lascivious molestation. Where the pictures are not live, JOA is required. Furlow v. State, 43 Fla. L. Weekly D270 (2nd DCA 2/2/18)


https://edca.2dca.org/DCADocs/2015/1565/151565_39_02022018_08223744_i.pdf

DEATH PENALTY: Defendant who waived any postconviction proceedings including by acknowledging that he "was losing permanently his right to take advantage of any changes that may occur in the law," cannot claim the benefit of Hurst. Death sentence reinstated.  State v. Silvia, 43 Fla. L. Weekly S70a (FLA 2/1/18)

 

http://www.floridasupremecourt.org/decisions/2018/sc17-337.pdf

 

QUOTATION (LEWIS, J., dissenting): "Today this Court advances for the first time a new excuse, not a valid reason, to push Florida's death penalty jurisprudence into an unconstitutional abyss. . .The Court simply turns its eyes from the violation of the Sixth, Eighth, and Fourteenth Amendments."  State v. Silvia, 43 Fla. L. Weekly S70a (FLA 2/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-337.pdf


QUOTATION (LEWIS, J., dissenting): "For the first time, the majority decision eschews recent precedent and denies Hurst relief to a post-Ring, nonunanimous defendant. . .[T]he basis for this decision is simple, albeit misguided. . .[B]y skirting the underlying law, the majority disregards the real substance of the question presented and develops a holding absent any precedential support."  State v. Silvia, 43 Fla. L. Weekly S70a (FLA 2/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-337.pdf

DEATH PENALTY: Defendant entitled to new penalty phase where jury's recommendation of death was not unanimous and sentence became final after U.S. Supreme Court's decision in Ring v. Arizona.  Pagan v. State, 43 Fla. L. Weekly S69a (FLA 2/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-872.pdf

LEWD OR LASCIVIOUS BATTERY-LESSER INCLUDED: Unnatural and lascivious act is not a lesser included of lewd or lascivious battery where the act in question is "traditional penile-vaginal intercourse. Act is not rendered unnatural based solely on the age of the victim. To hold otherwise renders the crimes as identical crimes with differing penalties. Knighton v. State, 43 Fla. L. Weekly S68a (FLA 2/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1426.pdf

AMENDMENT-FORMS: Requirement for notarization in simplified dissolution of marriage is deleted. IN RE: AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE -- FORM 12.901(a), 43 Fla. L. Weekly S58b (FLA 2/1/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-1948.pdf

DEATH PENALTY: Defendant who was sentenced to death is not entitled to relief under Hurst v. Florida where sentence became final prior to Ring v. Arizona.


Stein v. State, 43 Fla. L. Weekly S56a (FLA 1/31/18)

Nelson v. State, 43 Fla. L. Weekly S55c (FLA 1/31/18)

Consalvo v. State, 43 Fla. L. Weekly S55b (FLA 1/31/18)

Whitton v. State, 43 Fla. L. Weekly S55a (FLA 1/31/18)

Gordon v. State, 43 Fla. L. Weekly S54c (FLA 1/31/18)

Sireci v. State, 43 Fla. L. Weekly S54b (FLA 1/31/18)

Krawczuk v. State, 43 Fla. L. Weekly S54a (FLA 1/31/18)

Sliney v. State, 43 Fla. L. Weekly S53c (FLA 1/31/18)

Rodriguez v. State, 43 Fla. L. Weekly S53b (FLA 1/31/18)

Miller v. Jones, 43 Fla. L. Weekly S53a (FLA 1/31/18)

 


CREDIT FOR TIME SERVED: Claim for correction of credit for time served must be raised within one year.  Bryant v. State, 43 Fla. L. Weekly D270a (3rd DCA 1/31/18)

 

http://www.3dca.flcourts.org/Opinions/3D17-2237.pdf

CREDIT FOR TIME SERVED: Once the sentencing judge has awarded a defendant prior prison credit, the Department of Corrections has primary responsibility for calculating the credit. Bryant v. State, 43 Fla. L. Weekly D270a (3rd DCA 1/31/18)


http://www.3dca.flcourts.org/Opinions/3D17-2237.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for advising defendant not to testify where that was a reasonable strategic decision.   Johnson v. State, 43 Fla. L. Weekly D267a (3rd DCA 1/31/18)


http://www.3dca.flcourts.org/Opinions/3D17-0536.pdf

HEARSAY-BUSINESS RECORDS: Testimony of witness employed in executive capacity by company that prepared and maintained records at issue provided proper foundation for admission of business records into evidence.  Jackson v. Household Finance, 43 Fla. L. Weekly D261b (2nd DCA 1/31/18)


https://edca.2dca.org/DCADocs/2015/2038/152038_65_01312018_08190798_i.pdf

 

CONTEMPT: Direct contempt conviction is vacated where court failed to inform defendant of his right to present excusing or mitigating circumstances or to show cause why he should not be held in contempt.  Phelps v. State, 43 Fla. L. Weekly D261a (2nd DCA 1/31/18)


https://edca.2dca.org/DCADocs/2017/0594/170594_39_01312018_08210013_i.pdf



BEST EVIDENCE RULE: Where document at issue is a negotiable instrument, the original, not a copy must be submitted at trial.  Morales v. Fifth Third Mortgage Company, 43 Fla. L. Weekly D257b (4th DCA 1/31/18)


https://edca.4dca.org/DCADocs/2017/1260/171260_1709_01312018_09232598_i.pdf



DEATH PENALTY: Defendant who was sentenced to death is not entitled to relief under Hurst v. Florida where sentence became final prior to Ring v. Arizona.

Booker v. State, 43 Fla. L. Weekly S52c (FLA 1/30/18)

LaMarca v. State, 43 Fla. L. Weekly S52b (FLA 1/30/18)

Davis v. State, 43 Fla. L. Weekly S52a (FLA 1/30/18)

Sochor v. State, 43 Fla. L. Weekly S51c (FLA 1/30/18)

Whitfield v. State, 43 Fla. L. Weekly S51b (FLA 1/30/18)

Rogers v. State, 43 Fla. L. Weekly S51a (FLA 1/30/18)

Mendoza v. State, 43 Fla. L. Weekly S50c (FLA 1/30/18)

Pace v. State, 43 Fla. L. Weekly S50b (FLA 1/30/18)

Occhione v. State, 43 Fla. L. Weekly S50a (FLA 1/30/18)

Gudinas v. State, 43 Fla. L. Weekly S49c (FLA 1/30/18)

Gamble v. State, 43 Fla. L. Weekly S49b (FLA 1/30/18)

Foster v. State, 43 Fla. L. Weekly S49a (FLA 1/30/18)

Brown v. State, 43 Fla. L. Weekly S48c (FLA 1/30/18)

 

DEATH PENALTY: Defendant who was sentenced to death is not entitled to relief under Hurst v. Florida where sentence became final prior to Ring v. Arizona.


Davis v. State, 43 Fla. L. Weekly S48b (FLA 1/29/18)

Bowles v. State, 43 Fla. L. Weekly S48a (FLA 1/29/18)

Bell v. State, 43 Fla. L. Weekly S47c (FLA 1/29/18)

Fotopoulos v. State, 43 Fla. L. Weekly S47b (FLA 1/29/18)

Foster v. State, 43 Fla. L. Weekly S47a (FLA 1/29/18)

Long v. State, 43 Fla. L. Weekly S46c (FLA 1/29/18)

Jennings v. State, 43 Fla. L. Weekly S46b (FLA 1/29/18)

 


HEARSAY-STATEMENT AGAINST PENAL INTEREST: Court did not abuse its discretion by refusing to admit witness's testimony regarding third party's confession where third party's statement to witness did not carry requisite indicia of trustworthiness, particularly because statement was made on a fishing trip. Discussion of factors to be considered in ruling on admissibility of statement against interest and four-factor test for admission of third-party confession set out by U.S. Supreme Court in Chambers v. Mississippi.   Payton v. State, 43 Fla. L. Weekly D250a (1st DCA 1/29/18)


https://edca.1dca.org/DCADocs/2016/0732/160732_1286_01292018_09221997_i.pdf

 

 

DEATH PENALTY: Defendant who was sentenced to death is not entitled to relief under U.S. Supreme Court decision in Hurst v. Florida where sentence became final prior to U.S. Supreme Court decision in Ring v. Arizona. (Same holding in 38 cases this week).  Jeffries v. State, 43 Fla. L. Weekly S46a (FLA 1/26/18)


http://www.floridasupremecourt.org/decisions/2018/Jeffries%20v.%20State,%20SC17-920%20(3.851).pdf

 

COMPETENCY: Court must conduct a competency hearing after psychiatrist conducted a court-ordered evaluation and prepared a written report.  Perez v. State, 43 Fla. L. Weekly D248a (1st DCA 1/26/18)


https://edca.1dca.org/DCADocs/2016/5109/165109_1287_01262018_12254982_i.pdf

 


INJUNCTION: Court is not required to stay the hearing on a permanent injunction on the basis that going forward would jeopardize 5th Amendment right against self-incrimination in a pending criminal case.    Speegle v. Rhoden, 43 Fla. L. Weekly D245a (1st DCA 1/26/18)


https://edca.1dca.org/DCADocs/2017/0596/170596_1284_01262018_12465272_i.pdf

 

DOUBLE JEOPARDY-DEALING IN STOLEN PROPERTY/THEFT: Separate convictions for dealing in stolen property and theft based on same conduct violated double jeopardy. A court is precluded from allowing a defendant to plead guilty to both offenses if they are based on a single course of conduct.  Thomas v. State, 43 Fla. L. Weekly D243b (1st DCA 1/26/18)


https://edca.1dca.org/DCADocs/2017/0596/170596_1284_01262018_12465272_i.pdf

 

COSTS: Court may not impose sheriff's office investigative cost in absence of request on the record for imposition of this cost; inclusion of actual cost in arrest report is not sufficient.  Thomas v. State, 43 Fla. L. Weekly D243b (1st DCA 1/26/18

 

https://edca.1dca.org/DCADocs/2017/0596/170596_1284_01262018_12465272_i.pdf

 

DOUBLE JEOPARDY: Separate convictions for traveling to meet a minor and use of two-way communications device to facilitate the commission of a felony violate prohibition against double jeopardy.  Bermudez v. State, 43 Fla. L. Weekly D242c (2nd DCA 1/26/18)


https://edca.2dca.org/DCADocs/2015/4361/154361_114_01262018_08190941_i.pdf

 

MINOR-LIFE IMPRISONMENT: Court may not sentence a minor to life imprisonment for robbery with a firearm without providing a meaningful opportunity for release.  Wirth v. State, 43 Fla. L. Weekly D242b (2nd DCA 1/26/18)


https://edca.2dca.org/DCADocs/2016/2527/162527_114_01262018_08212124_i.pdf


INFORMATION-DEFECTIVE: Defendant cannot be convicted for violation of a subsection of sexual predator statute where the information failed to cite that subsection and omitted essential elements of the offense.  Richards v. State, 43 Fla. L. Weekly D239c (2nd DCA 1/26/18)


https://edca.2dca.org/DCADocs/2015/3818/153818_39_01262018_08175190_i.pdf

 

INFORMATION-ALTERNATIVE THEORY: Where the jury is instructed on an alternate theory of the charged crime but that alternate theory was not charged in the information, it is fundamental error if it is clear that the jury returned a verdict on that uncharged theory.   Richards v. State, 43 Fla. L. Weekly D239c (2nd DCA 1/26/18)


https://edca.2dca.org/DCADocs/2015/3818/153818_39_01262018_08175190_i.pdf

 

VIOLENT FELONY OFFENDER: Court must enter a written order showing reasons for its finding that the defendant, as a violent felony offender of special concern, poses a danger to the community.  Wells v. State, 43 Fla. L. Weekly D239a (5th DCA 1/26/18)


http://www.5dca.org/Opinions/Opin2018/012218/5D17-1257.op.pdf


PLEA-WITHDRAWAL: Court must strike defendant's pro se motion to withdraw plea where defendant was represented by counsel and motion did not allege an adversarial relationship with counsel.  Sargent v. State, 43 Fla. L. Weekly D238b (5th DCA 1/26/18)


http://www.5dca.org/Opinions/Opin2018/012218/5D16-3992.op.pdf

 

JURORS-PEREMPTORY CHALLENGE: Melbourne re-affirmed. A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court must specifically consider and rule on whether the race-neutral reason is pretextual, without requiring a second objection from the opponent of the challenge. The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. The relevant circumstances that the court is to consider in determining whether the explanation is pretextual include such factors as the racial makeup of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged venireperson; or singling out the venireperson for special treatment. Where the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court cannot assume that a genuineness inquiry was actually conducted. Court must not conflate Steps 2 and 3.   Spencer v. State, 43 Fla. L. Weekly S34a (FLA 1/25/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1599.pdf

 

JURORS: "Jurors are not fungible."  Spencer v. State, 43 Fla. L. Weekly S34a (FLA 1/25/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1599.pdf

 

DEATH PENALTY-JURY FINDINGS OF AGGRAVATION: Where jury recommendation of death was unanimous, and based on defendant's confession and the aggravation in the case, post conviction court properly held that any error under Hurst is harmless. Philmore v. State, 43 Fla. L. Weekly S33a (FLA 1/25/8)


http://www.floridasupremecourt.org/decisions/2018/sc17-711.pdf

LIFE SENTENCE-MINOR: Defendant who was sentenced to 40 years' imprisonment without the opportunity to obtain early release based on demonstration of maturity and rehabilitation for attempted murder committed while he was a juvenile is entitled to be resentenced.  Lee v. State, 43 Fla. L. Weekly S32a (FLA 1/25/18)


http://www.floridasupremecourt.org/decisions/2018/sc14-416.pdf

 

POST CONVICTION RELIEF: Petition for postconviction relief filed within 2 years after the appellate court's mandate is not time barred.  McDade v. State, 43 Fla. L. Weekly D231a (3rd DCA 1/24/18)


http://www.3dca.flcourts.org/Opinions/3D17-2642.pdf

JOA-THEFT: JOA is required where there is no evidence of felonious intent when Defendant cashed a check given to him as a deposit for remodeling work he never performed within the time promised. "We are dismayed by the State's choice to pursue this criminal prosecution all the way through an appeal in the face of such weak or non-existent facts and evidence." Leggett v. State, 43 Fla. L. Weekly D230a (3rd DCA 1/24/18)

 


http://www.3dca.flcourts.org/Opinions/3D16-2872.pdf

 

HEARSAY: Victim's statement that bank told her that the check had been deposited immediately is inadmissible hearsay. Hearsay rule does not authorize hearsay testimony about the contents of business records that have not been admitted as evidence.  Leggett v. State, 43 Fla. L. Weekly D230a (3rd DCA 1/24/18)


http://www.3dca.flcourts.org/Opinions/3D16-2872.pdf


CREDIT FOR TIME SERVED: Absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant.  Cadet v. State, 43 Fla. L. Weekly D225a (3rd DCA 1/24/18)


http://www.3dca.flcourts.org/Opinions/3D17-1532.pdf

 

DOWNWARD DEPARTURE: On VOP, statement that defendant has been granted a previous downward departure based on a valid uncoerced plea agreement, and that it would be inappropriate, too harsh and contrary to the principles of graduated sanctions to impose lowest permissible sentence, absent a downward departure, was not a valid basis for imposition of downward departure sentence.  State v. Shine, 43 Fla. L. Weekly D224b (3rd DCA 1/24/18)


http://www.3dca.flcourts.org/Opinions/3D15-2876.rh.pdf

 

BELATED APPEAL: Belated appeal from order denying second motion for post conviction relief granted where defendant alleged that he did not receive copy of order denying motion until after time for taking appeal had expired and filed prison mailroom log which supported that allegation. McKenzie v. State, 43 Fla. L. Weekly D224a (3rd DCA 1/24/18)


http://www.3dca.flcourts.org/Opinions/3D17-2249.pdf

 

EVIDENCE-JAIL CLOTHES: Video recording of defendant's confession where he was wearing jail clothes and handcuffs was not so prejudicial as to substantially outweigh the probative value of the video confession.  Burton v. State, 43 Fla. L. Weekly D222b (3rd DCA 1/24/18)


http://www.3dca.flcourts.org/Opinions/3D16-1081.rh.pdf

 

EVIDENCE-BOOKING PHOTO: Court did not err in admitting defendant's booking photograph as evidence where defense raised questions about deputy's ability to identify defendant. Newton v. State, 43 Fla. L. Weekly D216a (4th DCA 1/24/18)


https://edca.4dca.org/DCADocs/2016/3750/163750_1257_01242018_08522926_i.pdf

 

APPEAL-INEFFECTIVE ASSISTANCE: Claim that counsel was ineffective for failing to file motion to suppress evidence discovered in warrantless search of abandoned cell phone not cognizable on direct appeal where ineffectiveness was not apparent from face of record, which indicated that motion would likely have been fruitless due to exigencies of the situation.  Barton v. State, 43 Fla. L. Weekly D215a (4th DCA 1/24/18)


https://edca.4dca.org/DCADocs/2016/0280/160280_1257_01242018_08471339_i.pdf


MASK: Pulling t-shirt over one's face constitutes wearing a mask.  Clark v. State, 43 Fla. L. Weekly D214a (4th DCA 1/24/18)


https://edca.4dca.org/DCADocs/2017/0160/170160_1257_01242018_08532724_i.pdf




JURORS-PEREMPTORY-CHALLENGE-GENDER: Neither having a "bad feeling" about juror nor fact that defendant "doesn't want" a prospective juror is race- or gender-neutral reason for peremptory challenge. Defendant's challenges of all four male jurors was discriminatory.  Johnson v. State, 43 Fla. L. Weekly D205d (1st DCA 1/22/18)


https://edca.1dca.org/DCADocs/2016/4316/164316_1284_01222018_08394872_i.pdf

 

 

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Affidavits by two witnesses that the Defendant's brother was the shooter is sufficient newly discovered evidence to warrant a hearing. Utile v. State, 43 Fla. L. Weekly D203a (5th DCA 1/19/18)


http://www.5dca.org/Opinions/Opin2018/011518/5D17-2668.op.pdf


POST CONVICTION RELIEF-JURY INSTRUCTION: Defendant is not entitled to a new trial where his conviction was final before the given manslaughter by act jury instruction had been held to be fundamentally flawed.  Utile v. State, 43 Fla. L. Weekly D203a (5th DCA 1/19/18)

http://www.5dca.org/Opinions/Opin2018/011518/5D17-2668.op.pdf

COSTS-APPEAL: Defendant is entitled to be awarded appellate costs where his conviction was reversed on appeal and state subsequently entered nolle prosequi.  Mathis v. State, 43 Fla. L. Weekly D202b (5th DCA 1/19/18)


http://www.5dca.org/Opinions/Opin2018/011518/5D14-492.op.mot%20rev.pdf

APPEAL-VOP: Defendant cannot appeal court's failure to enter written order showing which conditions are violated where he fails to preserve error. The court minutes from trial, listing the conditions of probation orally found by the court to have been violated by a defendant is not a substitute for a proper revocation order because court minutes and the minute book entries are specifically excluded from the definition of a court order.  Mendenhall v. State, 43 Fla. L. Weekly D202a (1/19/18)


http://www.5dca.org/Opinions/Opin2018/011518/5D17-812.op.pdf

COMPETENCY: Court cannot accept plea without making independent finding of competency or issuing written order on competency following brief competency hearing conducted after experts appointed to evaluate defendant's competency filed reports opining that defendant was competent to proceed.   Carrion v. State, 43 Fla. L. Weekly D196a (2nd DCA 1/19/18)


https://edca.2dca.org/DCADocs/2014/2151/142151_173_01192018_08251295_i.pdf

 

CHILD HEARSAY: Court erred in admitting child hearsay without conducting factual analysis before ruling that out-of-court statements made by victim were admissible at trial and addressing why time, content, and circumstances of each statement provided sufficient safeguards of reliability.   Hyre v. State, 43 Fla. L. Weekly D192a (2nd DCA 1/19/18)


https://edca.2dca.org/DCADocs/2016/3133/163133_39_01192018_08315440_i.pdf



DEATH PENALTY: In determining whether one is suffers an intellectual disability precluding the death penalty, the Court must take into account the standard error of measurement (SEM) of IQ tests and when a defendant's IQ test score falls within the margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. Court declines to rule whether the requirement that the Defendant show intellectual disability by clear and convincing evidence is unconstitutional. Quince v. State, 43 Fla. L. Weekly S18a (FLA 1/18/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-127.pdf

QUOTATION: "The Flynn effect refers to a theory in which the intelligence of a population increases over time, thereby potentially inflating performance on IQ examinations. The accepted increase in scoring is approximately three points per decade or 0.33 points per year."  Quince v. State, 43 Fla. L. Weekly S18a (FLA 1/18/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-127.pdf

 

DEATH PENALTY: Defendant is not entitled to relief from imposition of death penalty under decision of U.S. Supreme Court in Hurst v. Florida where defendant waived his right to a penalty phase jury.   Quince v. State, 43 Fla. L. Weekly S15a (FLA 1/18/18)


http://www.floridasupremecourt.org/decisions/2018/sc17-931.pdf

ATTORNEY-DISCIPLINE: Attorney disbarred for issuing meaningless "Official Legal Certifications" to sell marijuana. Disbarment is appropriate where the most prominent features of attorney's misconduct are incompetence and extremely serious harm to clients. The Florida Bar v. Christensen,43 Fla. L. Weekly S17a (FLA 1/18/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-1081.pdf


SEARCH AND SEIZURE-INCIDENT TO ARREST: Warrantless search of backpack was not valid as search incident to arrest where backpack was not in area within defendant's immediate control at time of search, but was instead in officers' exclusive control with no possibility of defendant accessing the backpack.  Harris v. State, 43 Fla. L. Weekly D187b (3rd DCA 1/17/18)


http://www.3dca.flcourts.org/Opinions/3D16-1101.pdf


VOP: Court must enter a written revocation order.  Mitchell v. State, 43 Fla. L. Weekly D187a (3rd DCA 1/17/18)


http://www.3dca.flcourts.org/Opinions/3D17-0307.pdf


DUI-BLOOD TEST: Blood draw does not require a warrant where officer testifies it would take four hours to get a warrant.  Missouri v. McNeely distinguished.   Aguilar v. State, 43 Fla. L. Weekly D179a (3rd DCA 1/17/18)

http://www.3dca.flcourts.org/Opinions/3D13-2167.pdf


DOUBLE JEOPARDY: Where defendant was convicted of DUI manslaughter, DUI causing serious bodily injury, and DUI causing damage to property or person, two additional convictions for DUI violate double jeopardy and are to be vacated.   Aguilar v. State, 43 Fla. L. Weekly D179a (3rd DCA 1/17/18)


http://www.3dca.flcourts.org/Opinions/3D13-2167.pdf

PROBATION REVOCATION: Evidence that probation officer did not find the Defendant at his home is not enough to show that the Defendant had moved without permission. Bryant v. State,

 

HABITUAL OFFENDER: Habitual offender designation for possession of cocaine was improper.    Hubbard v. State, 43 Fla. L. Weekly D163b (2nd DCA 1/17/18)


https://edca.2dca.org/DCADocs/2014/5977/145977_65_01172018_08295474_i.pdf



FIRST AMENDMENT: "There is a First Amendment right to videotape police officers while they are conducting their official duties in public. . .Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public."   Pickett v. State, 43 Fla. L. Weekly D159b (1st DCA 1/17/18)


https://edca.1dca.org/DCADocs/2017/0293/170293_1287_01172018_09184917_i.pdf


SENTENCING HEARING: Court denied defendant due process when it interrupted him at sentencing hearing and refused to listen to defendant's statements prior to sentencing. Chesser v. State, 43 Fla. L. Weekly D157b (2nd DCA 1/12/18)


https://edca.2dca.org/DCADocs/2016/3391/163391_39_01122018_08232831_i.pdf

 

VOP: Court must enter written revocation order specifying conditions violated.  R.H. v. State, 43 Fla. L. Weekly D157a (2nd DCA 1/12/18)


https://edca.2dca.org/DCADocs/2016/4541/164541_65_01122018_08281882_i.pdf

 

PROBATION-CONDITIONS: Sex offender can be prohibited from possessing a smart phone. The prohibition on possessing an internet accessible cell phone is reasonably related to the trial court's instruction barring him from accessing the internet without a treatment safety plan. Pinnock v. State, 43 Fla. L. Weekly D156a (2nd DCA 1/12/18)


https://edca.2dca.org/DCADocs/2016/1711/161711_65_01122018_08211806_i.pdf


PROBATION-CONDITIONS: Probation officer cannot prescribe new conditions of probation (here, that he not possess a smart phone), but any such argument was not preserved at VOP hearing.   Pinnock v. State, 43 Fla. L. Weekly D156a (2nd DCA 1/12/18)


https://edca.2dca.org/DCADocs/2016/1711/161711_65_01122018_08211806_i.pdf

SENTENCING-FACTORS: Resentencing required where at sentencing state presented extensive evidence of incidents of defendant's misconduct at jail, which Court apparently considered.  Love v. State, 43 Fla. L. Weekly D155a (2nd DCA 1/12/18)


https://edca.2dca.org/DCADocs/2017/0076/170076_39_01122018_08294050_i.pdf

JUVENILE-SENTENCING: Court is not required to explain reasons decision to commit Child, only for departure from DJJ recommendation.  K.M.W. v. State, 43 Fla. L. Weekly D154b (5th DCA 1/12/18)


http://www.5dca.org/Opinions/Opin2018/010818/5D17-1735.op.pdf

 

YOUTHFUL OFFENDER: Court is permitted to sentence youthful offender who substantively violates probation to a prison sentence in excess of 6 years, but may not impose a minimum mandatory term. Conflict certified.  Cooper v. State, 43 Fla. L. Weekly D153c (5th DCA 1/12/18)


www.5dca.org/Opinions/Opin2018/010818/5D17-2326.op.pdf

 

CREDIT FOR TIME SERVED: Court may not rely on written plea form to deny motion for additional jail credit in absence of any evidence that defendant specifically waived jail credit.  Fulgham v. State, 43 Fla. L. Weekly D153b (5th DCA 1/12/18)


http://www.5dca.org/Opinions/Opin2018/010818/5D17-3178.op.pdf

PROBATION-EARLY TERMINATION: Court may not provide that there will be no consideration of early termination of probation.  O.P. v. State, 43 Fla. L. Weekly D150a (5th DCA 1/12/18)


http://www.5dca.org/Opinions/Opin2018/010818/5D17-1210.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to conduct investigation which would have revealed information that could have been used to effectively impeach key prosecution witness, failing to impeach state witnesses with prior inconsistent statements, and failing to call any defense witnesses.  Klaus v. State, 43 Fla. L. Weekly D148a (5th DCA 1/12/18)


http://www.5dca.org/Opinions/Opin2018/010818/5D17-1079.op.pdf

POST CONVICTION RELIEF: A statement of satisfaction with counsel alone is generally insufficient to conclusively refute a claim that counsel was ineffective.  Klaus v. State, 43 Fla. L. Weekly D148a (5th DCA 1/12/18)


http://www.5dca.org/Opinions/Opin2018/010818/5D17-1079.op.pdf


CHANGE OF VENUE: Court did not err in denying change of venue where Defendant was the subject of extensive publicity for having killed four people, including officers, in a separate murder case. The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely upon the evidence presented in the courtroom. Absent an extreme or unusual situation, the need to change venue should not be determined until an attempt is made to select a jury.   Morris v. State, 43 Fla. L. Weekly S7a (FLA 1/11/18)


http://www.floridasupremecourt.org/decisions/2018/sc15-2395.pdf

EVIDENCE: Defendant's statement in jail that "I repent for killing" is properly admitted in murder trial.   Morris v. State, 43 Fla. L. Weekly S7a (FLA 1/11/18)


http://www.floridasupremecourt.org/decisions/2018/sc15-2395.pdf

 

EVIDENCE: Evidence of Defendant's involvement in a prior murder is admissible when relevant to developing the circumstances leading up to the murder.  Kirkman v. State, 43 Fla. L. Weekly S1a (FLA 1/11/18)


http://www.floridasupremecourt.org/decisions/2018/sc16-808.pdf


POST CONVICTION RELIEF: Where defendant filed timely rule 3.850 motion and trial court ordered state to respond, defendant could not thereafter file amended motions adding additional claims without seeking leave to amend.  Wrencher v. State, 43 Fla. L. Weekly D146a (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2017/2014/172014_1257_01102018_09484501_i.pdf

COLLATERAL CRIMES: Testimony that Defendant broke everything in the room after committing charged battery by strangulation is admissible to contextualize the charged offense.  Cartagena v. State, 43 Fla. L. Weekly D142a (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2016/2200/162200_1708_01102018_09155234_i.pdf

 

SENTENCING-MULTIPLIER: Court may not apply 1.5 multiplier Trial court erred in applying 1.5 multiplier for "domestic violence in the presence of a related child" where jury was never presented with an interrogatory regarding child's presence, and jury made no such finding.  Cartagena v. State, 43 Fla. L. Weekly D142a (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2016/2200/162200_1708_01102018_09155234_i.pdf

VOIR DIRE: Court did not err in granting new trial based on court's failure to allow defendants to question several members of jury venire before they were excused for bias. Irimi v. R.J. Reynolds, 43 Fla. L. Weekly D138a (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2015/0759/150759_1257_01102018_08591778_i.pdf

 

SENTENCING-CONSIDERATIONS: Court impermissibly considered pending and unresolved charge of failure to appear in making its sentencing determination. New judge required for resentencing.  Baehren v. State, 43 Fla. L. Weekly D136a (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2016/0364/160364_1709_01102018_09064566_i.pdf

ALLOCUTION: A criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge.   Baehren v. State, 43 Fla. L. Weekly D136a (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2016/0364/160364_1709_01102018_09064566_i.pdf

 

RECLASSIFICATION-10-20-LIFE: Aggravated Assault with a firearm may not be reclassified as a second degree felony based on use of a firearm, but client is nonetheless subject to a twenty-year mandatory minimum.  Davis v. State, 43 Fla. L. Weekly D135b (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2016/1868/161868_1257_01102018_09141709_i.pdf


JURORS-CHALLENGE FOR CAUSE: Potential jurors who express significant reservations about their ability to be impartial should be excused for cause where their responses to attempts at rehabilitation are conditional or equivocal. Juror who are reluctant to accept that false confessions happen ("It's possible. But a crime of this nature I mean who would be crazy enough to admit guilt?") should be stricken for cause.   Rentas v. State, 43 Fla. L. Weekly D129b (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2016/0533/160533_1709_01102018_09083476_i.pdf

 

JURORS-CHALLENGE FOR CAUSE-REHABILITATION: "Few jurors would resolutely continue to admit that they have a bias after having a prosecutor and a trial judge cloak them in a duty to be fair. Some answers by prospective jurors should simply be deemed alone disqualifying, no matter how earnestly counsel and the trial judge seek to save them." Rentas v. State, 43 Fla. L. Weekly D129b (4th DCA 1/10/18)

 

https://edca.4dca.org/DCADocs/2016/0533/160533_1709_01102018_09083476_i.pdf

READ-BACK: Where testimony is read-back, the applicable cross-examination testimony must be read back as well. Rentas v. State, 43 Fla. L. Weekly D129b (4th DCA 1/10/18)


https://edca.4dca.org/DCADocs/2016/0533/160533_1709_01102018_09083476_i.pdf

 

 

HEARSAY-STATEMENT AGAINST INTEREST: Court erred by excluding that portion of statement by co-defendant to jailhouse informant that the police had the wrong guy. Exception to hearsay rule for statements against interest includes statements which do not need to amount to a full confession by the declarant, but which, taken in context, are be against the declarant's interest and tend to exculpate the defendant.  Baez v. State, 43 Fla. L. Weekly D116a (2nd DCA 1/5/18)


https://edca.2dca.org/DCADocs/2016/2905/162905_39_01052018_08390563_i.pdf



JOA-CULPABLE NEGLIGENCE: Throwing a smoke bomb at a house is not culpable neglience (exposing another to personal injury). Culpable negligence requires conduct of a type likely to cause death or great bodily harm.   J.C. v. State, 43 Fla. L. Weekly D108a (2nd DCA 1/5/18)


https://edca.2dca.org/DCADocs/2017/0792/170792_39_01052018_08532593_i.pdf

QUOTATION: "So I think we should reevaluate Azima in an appropriate case. I do hope, however, that the appropriate case involves facts a little more deserving of prosecution than what appears from our record to be little (if anything) more than a preteen boy's careless exuberance with a smoke bomb around the Fourth of July."  J.C. v. State, 43 Fla. L. Weekly D108a (2nd DCA 1/5/18)


https://edca.2dca.org/DCADocs/2017/0792/170792_39_01052018_08532593_i.pdf

POST CONVICTION RELIEF: There is no requirement that same judge preside over both trial and post conviction proceedings. Jacobson v. State, 43 Fla. L. Weekly D106a (2nd DCA 1/5/18)


https://edca.2dca.org/DCADocs/2016/5188/165188_65_01052018_08424129_i.pdf

 

APPEALS: Appellate court lacks jurisdiction of appeal contesting voluntariness of his appeal absent a motion to withdraw plea in trial court.  Rhines v. State, 43 Fla. L. Weekly D91b (3rd DCA 1/3/18)


http://www.3dca.flcourts.org/Opinions/3D17-1479.pdf

 

SPEEDY TRIAL: Defendant who is serving sentence in foreign state is not entitled to benefit of Florida speedy trial rule until he is returned to jurisdiction of State of Florida. Klein v. State, 43 Fla. L. Weekly D91a (3rd DCA 1/3/18)

http://www.3dca.flcourts.org/Opinions/3D17-2123.pdf

 

COMPETENCY: Court did not reversibly err by failing to hold competency hearing after appointing confidential expert to evaluate defendant for purpose of aiding defense counsel in determining defendant's competency to proceed where request for confidential expert evaluation was made as precautionary measure and was insufficient to trigger mandatory competency hearing.  Atwater v. State, 43 Fla. L. Weekly D94a (1st DCA 1/2/18)


https://edca.1dca.org/DCADocs/2016/3174/163174_1284_01022018_02254437_i.pdf

 


DECEMBER 2017


POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel was ineffective for failing to object to coercive Allen charge (jurors that they had to stay as long as it took to reach a verdict and could not go home until they did so). Prejudice need not be alleged. Holder v. State, 43 Fla. L. Weekly D84a (2nd DCA 12/29/17)


https://edca.2dca.org/DCADocs/2016/2082/162082_114_12292017_08424083_i.pdf


APPEALS-MOOTNESS: Appeal of temporary injunction must be dismissed for mootness where permanent injunction is ultimately dismissed (jail inmate sought injunction against C.O for harassing him).   Trowell v. Crawford, 43 Fla. L. Weekly D83c (2nd DCA 12/29/17)


https://edca.2dca.org/DCADocs/2016/4880/164880_109_12292017_08461281_i.pdf

DOUBLE JEOPARDY: Separate convictions for using a computer to solicit a person believed to be a parent of a child and traveling to meet minor did not violate double jeopardy where defendant was charged with two separate acts of solicitation, and the agreement to travel was reached only after the second solicitation.  Kuckuck v. State, 43 Fla. L. Weekly D80b (5th DCA 12/29/17)


http://www.5dca.org/Opinions/Opin2017/122517/5D16-3828.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel was ineffective for failing to advise him about habitualization.    Short v. State, 43 Fla. L. Weekly D79d (5th DCA 12/29/17)


www.5dca.org/Opinions/Opin2017/122517/5D17-2996.op.pdf

 

MANDATORY MINIMUM: Court erred in imposing mandatory minimum where information did not sufficiently allege that defendant possessed firearm.  Robinson v State, 43 Fla. L. Weekly D79c (5th DCA 12/29/17)


www.5dca.org/Opinions/Opin2017/122517/5D16-1427.op.pdf

 

COMPETENCY: Court erred by denying, as legally insufficient, counsel's final motion to determine competency. Claim that rejection of plea offer was based on misadvice by counsel regarding maximum penalty for crime, including 25-year mandatory minimum, was facially sufficient, notwithstanding that Defendant did not receive minimum mandatory sentence because of an error in the verdict form. E.C. v. State, 43 Fla. L. Weekly D79b (5th DCA 12/29/17)


http://www.5dca.org/Opinions/Opin2017/122517/5D17-3861.op.pdf

 


SENTENCING: Court fundamentally erred in entering a sentencing order without conducting a sentencing hearing and without orally pronouncing the sentence in court.  Hutto v. State, 43 Fla. L. Weekly D78e (1st DCA 12/29/17)


https://edca.1dca.org/DCADocs/2016/0908/160908_1287_12292017_08512101_i.pdf


PRETRIAL DETENTION: Court may not deny bond on attempted second degree murder where no written motion for pretrial detention was filed. State's oral motion made at first appearance is not sufficient.  Rhagnan v. State, 43 Fla. L. Weekly D80a (5th DCA 12/27/17)


http://www.5dca.org/Opinions/Opin2017/122517/5D17-4043.op.pdf

 

POST CONVICTION RELIEF: Court may not summarily deny claim as facially insufficient without giving defendant opportunity to amend.  Cameron-Osorio v. State, 43 Fla. L. Weekly D77a (2nd DCA 12/27/17)


https://edca.2dca.org/DCADocs/2016/5023/165023_DC08_12272017_082750_i.pdf


SENTENCING-CONSIDERATIONS: Child is entitled to resentencing before a different judge where court considered offenses for which juvenile had not yet been charged or convicted.   N.D.W. v. State, 43 Fla. L. Weekly D76b (2nd DCA 12/27/17)



https://edca.2dca.org/DCADocs/2016/4521/164521_DC08_12272017_081955_i.pdf



CONFLICT: Court erred in summarily denying motion alleging trial counsel labored under conflict of interest because he also represented, in a separate case, a man who allegedly had confessed to defendant that he had committed the crimes at issue in that case.  Mendez-Domingo v. State, 43 Fla. L. Weekly D75a (2nd DCA 12/27/17)


https://edca.2dca.org/DCADocs/2015/3430/153430_DC13_12272017_081111_i.pdf


APPEALS: Appeal of denial to suppress statement is not cognizable where not dispositive.  Daniel v. State, 43 Fla. L. Weekly D74a (2nd DCA 12/27/17)

 

https://edca.2dca.org/DCADocs/2016/0535/160535_DA08_12272017_081537_i.pdf


RESTITUTION: Court erred in ordering defendant to reimburse burglarized church for the church's purchase of Lifelock, Inc., memberships for thirteen church employees whose personal identification information was on thumb drive that was stolen from church.  A.J.S. v. State, 43 Fla. L. Weekly D72a (2nd DCA 12/27/17)


https://edca.2dca.org/DCADocs/2016/1642/161642_DC08_12272017_081737_i.pdf

 

SEPARATION OF POWERS: Sheriff failed to show that circuit court's chief judge exceeded his authority by issuing an administrative order requiring sheriff, as an officer of the court, to provide security for certain court facilities where no sessions of court are held.   Knight v. Twelfth Judicial Circuit, 43 Fla. L. Weekly D70b (2nd DCA 12/27/17)


https://edca.2dca.org/DCADocs/2017/0965/170965_DC02_12272017_083126_i.pdf



SENTENCING-NONHOMICIDE-JUVENILE: Thirty year sentence for juvenile for nonhomicide offense for without meaningful opportunity for early release is unconstitutional. Kelsey (Graham) applies to all juveniles who have been sentenced to term-of-year sentences of more than twenty years in prison but who would not have the opportunity for judicial review.  Alfaro v. State, 43 Fla. L. Weekly D69a (2nd DCA 12/27/17)


https://edca.2dca.org/DCADocs/2016/5013/165013_DC13_12272017_082103_i.pdf


CORPUS DELICTI: Conviction of possession of firearm by minor cannot stand where corpus delicti of charge consisted solely of inadmissible hearsay. J.J.J. v. State, 43 Fla. L. Weekly D68a (2nd DCA 12/27/17)



https://edca.2dca.org/DCADocs/2015/2350/152350_DC13_12272017_080942_i.pdf

HEARSAY: When the only possible relevance of an out-of-court statement is directed to the truth of the matters stated by a declarant, the subject matter is classic hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. When the only relevance of an out-of-court statement is to prove the truth of the matter asserted, the statement is hearsay and is not rendered admissible when the nonhearsay purpose for which it was admitted is not relevant to the issues in dispute. Argument that Court did not admit what the father said but merely that the policeman's conclusion that Child was the person he needed to talk to is meritless.   J.J.J. v. State, 43 Fla. L. Weekly D68a (2nd DCA 12/27/17)

 

https://edca.2dca.org/DCADocs/2015/2350/152350_DC13_12272017_080942_i.pdf

TRIAL PRACTICE: In L & L case, Court may allow victim to testify in a chair in front of the jury box, with the prosecutor sitting beside him, where no objection is made.   Stevenson v. State, 43 Fla. L. Weekly D67e (1st DCA 12/27/17)


https://edca.1dca.org/DCADocs/2016/3177/163177_1284_12272017_09563062_i.pdf


STAND YOUR GROUND: In Stand Your Ground hearing, evidence need not be considered undisputed where victim (deceased) did not testify.  Brown v. State, 43 Fla. L. Weekly D67d(1st DCA 12/27/17)


https://edca.1dca.org/DCADocs/2017/2007/172007_1281_12272017_10421512_i.pdf



FELONY BATTERY-JOA: Knocking out a baby tooth is not great bodily harm, permanent disfigurement, or permanent disability.   D.M. v. State, 43 Fla. L. Weekly D64a (3rd DCA 12/27/17)


http://3dca.flcourts.org/Opinions/3D16-2838.pdf

HVFO: Defendant cannot be designated a Habitual Violent Felony Offender on the basis of him being on probation for a prior offense, but may be on the basis of him having a prior qualifying offense within five years of conviction. Garcia v. State, 43 Fla. L. Weekly D59b (3rd DCA 12/27/17)


http://3dca.flcourts.org/Opinions/3D17-1216.pdf

 

DOUBLE JEOPARDY: Separate convictions for resisting officer with violence (punching officer) and without violence (running away) violated double jeopardy principles where the two acts were part of a single criminal episode. Johnson v. State, 43 Fla. L. Weekly D36c (2nd DCA 12/22/17)


https://edca.2dca.org/DCADocs/2016/3816/163816_DC08_12222017_081038_i.pdf

 

REVOCATION OF PROBATION: Court may not enter new judgments following revocation of probation. West v. State, 43 Fla. L. Weekly D36b (2nd DCA 12/22/17)


https://edca.2dca.org/DCADocs/2016/2351/162351_DC08_12222017_080953_i.pdf

 

APPELLATE COUNSEL-INEFFECTIVE: Appellate counsel is ineffective for limiting appeal, based on improper exclusion of impeachment evidence, to challenge of the kidnapping conviction where the impeachment evidence would have applied to another count as well.   Musson v. State, 43 Fla. L. Weekly D34f (2nd DCA 12/22/17)


https://edca.2dca.org/DCADocs/2017/1208/171208_DA16_12222017_081240_i.pdf



POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failing to call victim to testify for mitigation purposes at VOP hearing.  Addison v. State, 43 Fla. L. Weekly D34b (5th DCA 12/22/17)


http://www.5dca.org/Opinions/Opin2017/121817/5D17-2692.op.pdf


SEARCH AND SEIZURE: Officer who sees Defendant lean into a bait vehicle may not stop him when he drives away in a different vehicle shortly thereafter.   A.M. v. State, 43 Fla. L. Weekly D32b (5th DCA 12/22/17)


www.5dca.org/Opinions/Opin2017/121817/5D17-1062.op.pdf

 

POST CONVICTION RELIEF: Court erred in denying as untimely Defendant's motion for postconviction relief under rule 3.840 where the motions were filed within 2 years of the date of the appellate mandate.  Starkes v. State, 43 Fla. L. Weekly D27a (1st DCA 12/21/17)

https://edca.1dca.org/DCADocs/2017/0479/170479_1287_12212017_11440594_i.pdf

 

POST CONVICTION RELIEF: Claim of ineffective assistance of counsel is legally sufficient where Defendant claimed that he rejected a 3-year plea offer because counsel told him 3 years was the maximum he could receive. Montgomery v. State, 43 Fla. L. Weekly D25b (1st DCA 12/21/17)


https://edca.1dca.org/DCADocs/2017/1990/171990_1286_12212017_11563785_i.pdf


POST CONVICTION RELIEF: Where Defendant did not ask that sentences be restructured, and all of the sentences exceeded the statutory limit (probation and incarceration exceeded 5 years for third degree felonies), Court did not err in denying motion to correct sentence where the sentences could have been restructured to impose sentences which complied with statutory limits and the plea agreement.  Butler v. State, 43 Fla. L. Weekly D25a (1st DCA 12/21/17)


https://edca.1dca.org/DCADocs/2017/0764/170764_1284_12212017_11451391_i.pdf

 

ARGUMENT: Prosecutor's remark in closing argument that state had proved defendant's knowledge that substance he possessed was in fact cocaine and that jury had not heard any contradictory testimony or evidence to rebut that fact did not amount to comment on defendant's right to remain silent or improperly shift burden of proof to defendant.  Payne v. State, 43 Fla. L. Weekly D24a (1st DCA 12/21/17)


https://edca.1dca.org/DCADocs/2016/4115/164115_1284_12212017_11413000_i.pdf


ARGUMENT: Argument suggesting that officers should be believed because he is a "sworn law enforcement officer, tasked with upholding justice" is improper, but does not warrant a mistrial where a curative instruction is given.  Payne v. State, 43 Fla. L. Weekly D24a (1st DCA 12/21/17)


https://edca.1dca.org/DCADocs/2016/4115/164115_1284_12212017_11413000_i.pdf


SELF-DEFENSE: Court erred in excluding defendant's testimony describing a prior instance when the victim threatened him with a machete. Specific acts of violence committed by a victim against a defendant during a prior confrontation.   Jones v. State, 43 Fla. L. Weekly D23a (1st DCA 12/21/17)


https://edca.1dca.org/DCADocs/2016/4104/164104_1287_12212017_11403014_i.pdf

 

STATEMENTS OF DEFENDANT: Statements of Defendant are admissible where Defendant made voluntary pre-Miranda statements and post-Miranda statements, and the officers did not engage in a deliberate two-step interrogation strategy. "I hope you know what kind of trouble you are in," is not deliberate pre-Miranda interrogation.   Lebron v. State, 42 Fla. L. Weekly S986a (FLA 12/21/17)


http://www.floridasupremecourt.org/decisions/2017/sc13-442.pdf

DANGEROUS SEXUAL OFFENDER ACT:  DSOA authorizes trial court to impose a mandatory minimum sentence anywhere in the range of twenty-five years to life, even if that sentence exceeds the statutory maximum for the crime. Williams v. State, 42 Fla. L. Weekly S982a (FLA 12/21/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-785.pdf

QUOTATION: The result of the majority's continued acceptance of the legal fiction created in Mendenhall is a legal system where a defendant who is twice convicted of a second-degree felony, as in this case, is authorized to receive a harsher sentence than one who is repeatedly convicted of attempted murder. . .. Surely this draconian and absurd outcome was not intended by the Legislature when it enacted the DFSO Act." (J. Quince, dissenting).  Williams v. State, 42 Fla. L. Weekly S982a (FLA 12/21/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-785.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to move for change of venue where motion would likely have been denied.    Ellerbee v. State, 42 Fla. L. Weekly S973a (FLA 12/21/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-2010.pdf


POST CONVICTION RELIEF: Counsel was not ineffective for failing to move for mistrial based on various comments about religion during jury selection and arguments, given the context.  Ellerbee v. State, 42 Fla. L. Weekly S973a (FLA 12/21/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-2010.pdf


POST CONVICTION RELIEF: Counsel was ineffective for failing to uncover significant child abuse for penalty phase in murder case.   Ellerbee v. State, 42 Fla. L. Weekly S973a (FLA 12/21/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-2010.pdf

 

HABEAS CORPUS: Inmate may challenge close management confinement bases on his limited libety interest in being housed with the general population.   Banks v. State, 42 Fla. L. Weekly S969b (FLA 12/21/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1478.pdf

 

JOA: Where evidence did not establish that the incident occurred at the time alleged, JOA is required. Cardona v. State, 43 Fla. L. Weekly D20a (4th DCA 12/20/17)


https://edca.4dca.org/DCADocs/2015/3737/153737_1709_12202017_09360754_i.pdf

 

RESENTENCING: Court erred in holding that a de novo resentencing hearing after order granting post conviction relief was unnecessary on grounds that court would not consider a youthful offender sentence.    Betty v. State, 43 Fla. L. Weekly D18b (4th DCA 12/20/17)


https://edca.4dca.org/DCADocs/2015/1864/151864_1709_12202017_09065530_i.pdf

DISCOVERY-EXPERT: Court must allow a continuance where state committed a discovery violation by a late disclosure of an expert witness.   McDuffie v. State, 43 Fla. L. Weekly D14a (2nd DCA 12/20/17)


https://edca.2dca.org/DCADocs/2016/0294/160294_DC13_12202017_082025_i.pdf

SEARCH AND SEIZURE: Officer lacked probable cause to arrest for attaching an unassigned tag because the officer did not observe her attach the license plate. Defendant's statement to officer that license plate had been attached to vehicle by a friend was not sufficient to validate arrest. Weaver v. State, 43 Fla. L. Weekly D13a (2nd DCA 12/20/17)

 

https://edca.2dca.org/DCADocs/2016/4461/164461_DC13_12202017_082123_i.pdf

 

ATTEMPTED MURDER OF LEO: New trial required where trial court failed to give requested jury instruction that Defendant must know that victim was a law enforcement officer.  Rivera v. State, 43 Fla. L. Weekly D12a (2nd DCA 12/20/17)


https://edca.2dca.org/DCADocs/2013/4742/134742_DC13_12202017_081828_i.pdf

 

BRIBERY: JOA properly denied required on bribery charge where mayor became a private consultant to hurry up construction of a pump station.  Bateman v. State, 43 Fla. L. Weekly D9a (3rd DCA 12/20/17)

 


MANDATORY MINIMUM-FIREARM-STACKING: Mandatory minimums for use of firearm may be stacked when Defendant separately brandished gun toward different officers, minutes separating each act.   Jordan v. State, 43 Fla. L. Weekly D7a (3rd DCA 12/20/17)



UNAUTHORIZED ACCESS OF COMPUTER NETWORK: Hacking into another's Facebook account constitutes the crime of unauthorized access of computer network.  Umhoefer v. State, 43 Fla. L. Weekly D11a (2nd DCA 12/20/17)


https://edca.2dca.org/DCADocs/2015/3968/153968_DC05_12202017_081925_i.pdf

 

 

ATTEMPTED FELONY MURDER: Double jeopardy does not preclude convictions for attempted felony murder and armed robbery where there were multiple acts of force to take property before Defendant shot the victim. Newbhard v. State, 43 Fla. L. Weekly D2d (3rd DCA 12/20/17)


http://3dca.flcourts.org/Opinions/3D15-0709.pdf

 

UPWARD DEPARTURE-APPRENDI: Court may sentence Defendant who scores under 22 points to prison without a jury finding that she is a danger to the public. Statute is a mitigation law, not an upward departure law.   Brown v. State, 42 Fla. L. Weekly D2657b (5th DCA 2017)


http://www.5dca.org/Opinions/Opin2017/121117/5D16-1045.op.pdf


RECORDS: Because a public defender or court-appointed lawyer is an "official," mandamus is an appropriate remedy to compel such an official to provide a defendant with copies of legal documents prepared at public expense.  Norris v. State, 42 Fla. L. Weekly D2656b (5th DCA 12/15/17)


http://www.5dca.org/Opinions/Opin2017/121117/5D17-2447.op.pdf

SEXUAL PREDATOR: Defendant cannot be designated a sexual predator for a second degree felony in absence of evidence of a previous sex offense conviction.  Wright v. State, 42 Fla. L. Weekly D2656a (5th DCA 12/15/17)


http://www.5dca.org/Opinions/Opin2017/121117/5D17-2290.op.pdf

 

 

JIMMY RYCE: Court improperly shifted burden of proof by finding that reports recommending release submitted by State were stale and denying release with no contrary evidence. Golden v. State, 42 Fla. L. Weekly D2655b (5th DCA 12/15/17)


http://www.5dca.org/Opinions/Opin2017/121117/5D17-330.op.pdf


SEARCH AND SEIZURE-INVESTIGATORY STOP: Officer who observed defendant urinating in restaurant parking lot at 4:45 p.m. had reasonable suspicion to believe defendant had committed a crime by violating county's public nudity ordinance.   State v. Harris, 42 Fla. L. Weekly D2654a (5th DCA 12/15/17)


http://www.5dca.org/Opinions/Opin2017/121117/5D16-4228.op.pdf



EXPERT: Where parties argued Daubert without objection, the Daubert standard applies. Kemp v. State, 42 Fla. L. Weekly D2648a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2015/3472/153472_1257_12132017_08431126_i.pdf

 

EXPERT: Officer's testimony that the Defendant braked based on marks on car (showing he did not lose consciousness, as claimed), is admissible under Daubert. But see dissent. ("Corporal Dooley's . . .testimony amounted to little more than a subjective and unverifiable opinion and represents precisely the sort of junk science that should never be countenanced in a court of law. . . Dooley's repeated invocation of the magic words 'training and experience' was insufficient.  Kemp v. State, 42 Fla. L. Weekly D2648a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2015/3472/153472_1257_12132017_08431126_i.pdf


STATEMENTS OF DEFENDANT: Investigating officer may not translate her own videotaped interview with the defendant while testifying on the stand. When the State seeks to admit into evidence a recording in Spanish, generally "a sworn interpreter must be provided to translate such conversations. Mendez-Martinez v. State, 42 Fla. L. Weekly D2647a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2016/3541/163541_1709_12132017_09472010_i.pdf


JURIES: Six-person juries in all non-death penalty cases is lawful.  Lessard v. State, 42 Fla. L. Weekly D2637a (1st DCA 12/13/17)


https://edca.1dca.org/DCADocs/2015/5300/155300_1284_12132017_11324773_i.pdf

 

QUOTATION (concurring opinion): "Williams, which dismissed the centuries-old common law practice of twelve-member juries as a mere 'historical accident' . . . was based on dubious anecdotal assertions and demonstrably incorrect statistical and sociological principles that have plagued this body of jurisprudence ever since. . . [I]ts reasoning foundered on glaring misinterpretations of social science research and inept methodologies, so much so that one prominent commentator said that the 'quality of social science scholarship displayed . . . would not win a passing grade in a high school psychology class.'"  Lessard v. State, 42 Fla. L. Weekly D2637a (1st DCA 12/13/17)


https://edca.1dca.org/DCADocs/2015/5300/155300_1284_12132017_11324773_i.pdf

 

APPEAL: A delayed restitution hearing does not toll or postpone the time to appeal from a criminal sentence.  Silky v. State, 42 Fla. L. Weekly D2635b (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2017/2945/172945_1711_12132017_09554901_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to an appeal on claim that counsel failed to convey a plea offer to him.  Cosme v. State, 42 Fla. L. Weekly D2635a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2017/0464/170464_1709_12132017_09502317_i.pdf

 

SENTENCING: Court may not consider a subsequent arrest without conviction in imposing sentence. Contemporaneous objection is not required.   Hillary v. State, 42 Fla. L. Weekly D2634a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2016/2991/162991_1709_12132017_09143161_i.pdf

 

HABITUAL OFFENDER: Defendant may not be sentenced as a Habitual Offender when not given notice before entering his plea. Hillary v. State, 42 Fla. L. Weekly D2634a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2016/2991/162991_1709_12132017_09143161_i.pdf


PSI: Court must order PSI before sentencing a first-time offender.   Householder v. State, 42 Fla. L. Weekly D2626b (4th DCA 12/13/17)

 

https://edca.4dca.org/DCADocs/2016/2225/162225_1709_12132017_09125986_i.pdf

 

SENTENCING-JUVENILE: 55 year sentence for juvenile violates 8th Amendment where it contains no provision for early release.   Burger v. State, 42 Fla. L. Weekly D2626a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2014/4886/144886_1709_12132017_08382575_i.pdf

 

SENTENCING-CONSIDERATIONS: Court may not consider subsequent crime for which Defendant has not been convicted.   Smith v. State, 42 Fla. L. Weekly D2625a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2015/0518/150518_1257_12132017_08452216_i.pdf

 

WITNESS TAMPERING: One can be convicted of witness tampering by threatening to kill witness if he reports the crime, regardless whether the victim is attempting to contact police at the time. Conflict certified.   Taffe v. State, 42 Fla. L. Weekly D2619a (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2015/4262/154262_1257_12132017_08464977_i.pdf

 

APPEALS: Supreme Court opinion holding that failure to give a permissive lesser included instruction is not binding, and prior precedent is binding, because it was a concurring opinion by only three justices.   Caruthers v. State, 42 Fla. L. Weekly D2616g (4th DCA 12/13/17)


https://edca.4dca.org/DCADocs/2015/4262/154262_1257_12132017_08464977_i.pdf

 

EVIDENCE: Court did not abuse discretion by admitting a video recording of defendant's confession where he was wearing jail clothes and handcuffs upon finding that unfair prejudice of jury seeing defendant in jail clothes and handcuffs did not substantially outweigh the probative value of the video confession.  Burton v. State, 42 Fla. L. Weekly D2614a (3rd DCA 12/13/17)


http://3dca.flcourts.org/opinions/3D16-1081.pdf

 

SENTENCING-PRR: Court must impose a mandatory minimum sentence under 10/20/Life notwithstanding that the sentence of life is imposed anyways.   Burks v. State, 42 Fla. L. Weekly D2611a (3rd DCA 12/13/17)


http://3dca.flcourts.org/opinions/3D17-0175.pdf


DOUBLE JEOPARDY: Convictions for second degree murder and unlawful possession of a firearm while engaged in a criminal offense violate double jeopardy. The State cannot convict and sentence a defendant with two substantive offenses for the single act of possession of one weapon. Debose v. State, 42 Fla. L. Weekly D2610b (3rd DCA 12/13/17)


http://3dca.flcourts.org/opinions/3D17-0175.pdf

 

APPEAL-POST CONVICTION RELIEF: Once a notice of appeal of an order denying a first motion for postconviction relief has been filed, the trial court is without jurisdiction to consider the second motion for postconviction relief while that appeal remains pending.  Rua-Torbizco v. State, 42 Fla. L. Weekly D2609a (3rd DCA 12/13/17)


http://3dca.flcourts.org/opinions/3D17-2293.pdf

 

VOP: Court may not revoke probation for use of drugs where defendant never received written notice of that he could not use drugs. Oral pronouncement, alone, of a condition of probation is not enough. Chaney v. State, 42 Fla. L. Weekly D2608a (3rd DCA 12/13/17)


http://3dca.flcourts.org/opinions/3D15-1276.pdf

 

APPEAL-JOA: Court lacks jurisdiction of state's appeal of order granting defendant's motion for judgment of acquittal following jury deadlock and declaration of mistrial. State may appeal a judgment of acquittal only after a jury verdict.  State v. Lundy, 42 Fla. L. Weekly D2607a (3rd DCA 12/13/17)


http://3dca.flcourts.org/opinions/3D16-0801.pdf

 

EVIDENCE: In Lewd and Lascivious case, court properly excluded evidence of thirteen-year-old victim's unrelated acts of prostitution and prohibited defense from introducing evidence that victim was the initiator of sexual contact, as consent is not a defense to the crime charged.  Bentley v. State, 42 Fla. L. Weekly D2605a (3rd DCA 12/13/17)


http://3dca.flcourts.org/opinions/3D16-0893.pdf

 

ENTRAPMENT: Defendant is not required to give presuit notice of intent to assert entrapment. Defendant's not guilty plea was sufficient to notify state of possibility that he could raise entrapment defense.  Ayala v. State, 42 Fla. L. Weekly D2589c (2nd DCA 12/13/17)


https://edca.2dca.org/DCADocs/2016/3327/163327_DC13_12132017_081611_i.pdf


BAIL: Defendant who failed to appear at competency hearing is entitled to bond hearing, notwithstanding suggestion of incompetency.  Eckford v. State, 42 Fla. L. Weekly D2588a (5th DCA 12/11/17)


http://www.5dca.org/Opinions/Opin2017/121117/5D17-3825.op.pdf

 

FARETTA: No "magic words" or specific questions are necessary to ensure an adequate Faretta inquiry. Inquiry is not rendered inadequate because of court's failure to ask defendant specific questions. Question certified whether a Faretta inquiry invalid if the court does not explicitly inquire as to the defendant's age, experience, and understanding of the Rules of Criminal Procedure? Hooks v. State, 42 Fla. L. Weekly D2578a (1st DCA 12/6/17)


https://edca.1dca.org/DCADocs/2016/0368/160368_1284_12062017_08224202_i.pdf


RETURN OF PROPERTY: Defendant is entitled to an evidentiary hearing for return of property, other than for non-specific "miscellaneous items." Johnson v. State, 42 Fla. L. Weekly D2571a (4th DCA 12/6/17)


https://edca.4dca.org/DCADocs/2016/2840/162840_1709_12062017_09002941_i.pdf


HEARSAY: Testimony of the asset protection detective as to the contents of the price tags indicating value of stolen merchandise did not constitute hearsay. K.M. v. State, 42 Fla. L. Weekly D2568a (3rd DCA 12/6/17)


http://3dca.flcourts.org/Opinions/3D17-0184.pdf

 

DEALING IN STOLEN PROPERTY: JOA is required for dealing in stolen property when Defendant made a controlled buy of stolen herbicide with intent to use it on his own farm. Rodriguez v. State, 42 Fla. L. Weekly D2555a (2nd DCA 12/6/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/December/December%2006,%202017/2D16-271.pdf


TRESPASS IN UNOCCUPIED CONVEYANCE: Defendant is not guilty of trespass in unoccupied conveyance where evidence failed to establish that he knew or should have known that car from which he was seen fleeing was stolen. T.K.O. v. State, 42 Fla. L. Weekly D2554a (2nd DCA 12/6/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/December/December%2006,%202017/2D16-4154.pdf


APPEALS: Court's ruling that collateral crimes would be admissible in L & L case is not appeable following a plea where issue is neither stipulated to be, nor held to be, dispositive.  Foster v. State, 42 Fla. L. Weekly D2553a (4th DCA 12/6/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/December/December%2006,%202017/2D16-3902.pdf


PRISON RELEASEE REOFFENDER: Defendant who was sentenced to DOC but released from jail with credit for time served before being sent to prison does not qualify as PRR for the subsequent offense.   Taylor v. State, 42 Fla. L. Weekly D2551a (2nd DCA 12/6/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/December/December%2006,%202017/2D16-3130.pdf


GUIDELINES: Defendant is not subject to Criminal Punishment code for offenses committed prior to May 24, 1997.  Miller v. State, 42 Fla. L. Weekly D2550a (2nd DCA 12/6/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/December/December%2006,%202017/2D16-217rh.pdf

SCORESHEET: Juvenile dispositions are included on scoresheet. Fact that jury did not make finding in juvenile case is irrelevant.  Johnson v. State, 42 Fla. L. Weekly D2546e (5th DCA 12/1/17)


http://www.5dca.org/Opinions/Opin2017/112717/5D17-1462.op.pdf

POST CONVICTION RELIEF: Defendant who files a legally insufficient Motion for Post Conviction Relief is entitled to an opportunity to amend. Williams v. State, 42 Fla. L. Weekly D2546b (5th DCA 12/1/17)


http://www.5dca.org/Opinions/Opin2017/112717/5D17-1919.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to advise him properly on his right to testify.   Feliciano v. State, 42 Fla. L. Weekly D2541b (5th DCA 12/1/17)


http://www.5dca.org/Opinions/Opin2017/112717/5D17-1388.op.pdf

 

SPLIT SENTENCE: A true split sentence consists of a total period of confinement with all or part of that confinement suspended. For a true split sentence, upon VOP the Defendant cannot be sentenced to more than the suspended period. Where, as here, the Defendant received a probationary split sentence, Defendant can be sentenced to the statutory maximum.  Peterson v. State, 42 Fla. L. Weekly D2540c (5th DCA 12/1/17)


www.5dca.org/Opinions/Opin2017/112717/5D16-4341.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on the claim counsel misadvised Defendant that the State could inquire into specific nature of prior convictions if defendant testified.  Ward v. State, 42 Fla. L. Weekly D2540b (5th DCA 12/1/17)

http://www.5dca.org/Opinions/Opin2017/112717/5D17-677.op.pdf

 

EVIDENCE-COLLATERAL CRIMES: Introduction of collateral crime evidence is not reversible error where not objected to and injected by Defendant to establish alibi that he was smoking a blunt with his lady.  Kerry v. State, 42 Fla. L. Weekly D2540a (5th DCA 12/1/17)

http://www.5dca.org/Opinions/Opin2017/112717/5D17-1006.op.pdf

 

REDACTION: Failure to redact defendant's use of racial epithets in recorded interview that was played for jury was not preserved for review by objection and did not, under circumstances of instant case, amount to fundamental error. "Unless such language is relevant, it should be excluded. We caution the State that in our view, under most circumstances, the use of racial epithets should be redacted. Kerry v. State, 42 Fla. L. Weekly D2540a (5th DCA 12/1/17)


http://www.5dca.org/Opinions/Opin2017/112717/5D17-1006.op.pdf

 

NOVEMBER 2017



DOUBLE JEOPARDY: Separate convictions for dealing in stolen property and grand theft violated double jeopardy where offenses were committed in connection with one scheme or course of conduct.  Bennett v. State, 42 Fla. L. Weekly D2538a (1st DCA 11/30/17)


https://edca.1dca.org/DCADocs/2016/5467/165467_1286_11302017_08470249_i.pdf


VOP: Defendant violated probation by going to the wrong office for the first meeting, then failing to go to the correct address after being told where it was.   Junk v. State, 42 Fla. L. Weekly D2537a (1st DCA 11/30/17)

https://edca.1dca.org/DCADocs/2016/3636/163636_1286_11302017_08433704_i.pdf

POST CONVICTION RELIEF: Defendant who alleges that counsel was ineffective for failing to impeach witness with the fact that the witness admitted to being high on cocaine at the time of the crime is entitled to an evidentiary hearing. Atwater v. State, 42 Fla. L. Weekly D2535a (1st DCA 11/30/17)


https://edca.1dca.org/DCADocs/2016/4968/164968_1286_11302017_08452428_i.pdf

 

GRAND THEFT-JOA: Defendant is entitled to JOA where value of the property stolen (42-inch flat screen television, 32-inch flat screen television, computer tablet, laptop computer, desktop computer, Xbox 360, surround sound system, and some pictures) was not proven to be over $300. The victim's estimate that the property was worth $4000 is insufficient. A mere guess at, or uninformed estimate of the value of stolen property is insufficient, absent other proof, to establish value beyond a reasonable doubt.  Carter v. State, 42 Fla. L. Weekly D2534a (1st DCA 11/30/17)


https://edca.1dca.org/DCADocs/2017/1349/171349_1286_11302017_08481466_i.pdf


PLEA WITHDRAWAL: Court erred in denying pre-sentencing motion to withdraw plea without hearing, particularly where counsel's remark that defendant had "buyer's remorse" indicated a possible conflict of interest between counsel (who thus undermined Defendant's argument) and defendant asserted that he did not have his discovery.  Benjamin v. State, 42 Fla. L. Weekly D2519c (2nd DCA 11/29/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2029,%202017/2D16-5289.pdf


JOA-GRAND THEFT OF VEHICLE: Child is entitled to judgment of dismissal where state failed to prove that juvenile knew car he was driving when stopped by police was stolen. State could not rely on statutory inference that person in possession of recently stolen property knew or should have known that property was stolen where juvenile presented reasonable explanation for his possession of vehicle (he got the keys from a friend and they went to meet some girls.). C.T. v. State, 42 Fla. L. Weekly D2510a (3rd DCA 11/29/17)


http://3dca.flcourts.org/Opinions/3D17-0980.pdf

 


POST CONVICTION RELIEF-IMMIGRATION: Claim that trial court's failure to advise defendant of possible immigration consequences rendered his plea involuntary is time-barred where motion was not filed within two-year time limitation, and defendant failed to establish that in the exercise of due diligence he could not have ascertained the possible immigration consequences of his plea within the two-year period.  Jules v. State, 42 Fla. L. Weekly D2508b (3rd DCA 11/29/17)


http://3dca.flcourts.org/Opinions/3D17-0980.pdf


HABITUAL OFFENDER
: Because adjudication on predicate offense had been withheld rather than defendant having been convicted, HFO designation is only permissible if defendant was still on probation when he committed subsequent offenses in the instant case.  Gilman v. State, 42 Fla. L. Weekly D2483b (3rd DCA 11/22/17)


http://www.3dca.flcourts.org/Opinions/3D17-0013.pdf

BELATED APPEAL: Because adjudication on predicate offense had been withheld rather than defendant having been convicted, HFO designation is only permissible if defendant was still on probation when he committed subsequent offenses in the instant case. Alvarez v State, 42 Fla. L. Weekly D2482b (3rd DCA 11/22/17)


http://www.3dca.flcourts.org/Opinions/3D17-1963.pdf

ARGUMENT: In misstatement/slip of the tongue in which State referred to defendant as "not on the stand because he paid for a hotel room," promptly amended to "not on trial," state did not improperly comment on defendant's failure to testify.   Pierre-Louise v. State, 42 Fla. L. Weekly D2482a (3rd DCA 11/22/17)


http://www.3dca.flcourts.org/Opinions/3D16-0940.pdf



JURISDICTION: Florida court has subject matter jurisdiction of criminal case (attempted sexual battery) where more than half of ship's passengers embarked from and disembarked in Florida, and defendant's conduct had an effect on Florida. The fact that both the Defendant and victim were crewmembers not from Florida does not detract from the effect on Florida. Paul v. State, 42 Fla. L. Weekly D2478d (3rd DCA 11/22/17)


http://www.3dca.flcourts.org/Opinions/3D16-2038.pdf


COSTS: Defendant cannot be required to pay the State's costs of bringing two witnesses from foreign state to testify at defendant's sentencing where their testimony was inadmissible.  Mook v. State, 42 Fla. L. Weekly D2477a (4th DCA 11/22/17)


https://edca.4dca.org/DCADocs/2016/2179/162179_1708_11222017_08551735_i.pdf

SENTENCING: Motion asserting that consecutive habitual offender and non-habitual offender sentences for offenses that were committed during single criminal episode were illegal was facially insufficient where defendant failed to allege how court records demonstrated that crimes were committed during same criminal episode.  Hollins v. State, 42 Fla. L. Weekly D2474a (4th DCA 11/22/17)


https://edca.4dca.org/DCADocs/2017/0411/170411_1257_11222017_09002881_i.pdf


COMPETENCY: Where court orders a competency evaluation, it must conduct a hearing.  Jones v. State, 42 Fla. L. Weekly D2472a (4th DCA 11/22/17)


https://edca.4dca.org/DCADocs/2017/1805/171805_1709_11222017_10030079_i.pdf


NELSON/FARETTA: New trial required where Court failed to conduct an adequate Nelson or Faretta hearing. Davis v. State, 42 Fla.L. Weekly D2467c (2nd DCA 11/22/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2022,%202017/2D15-3102.pdf



POST CONVICTION RELIEF: Counsel was not ineffective for failing to demand that court give defendant more time to consult with counsel before deciding not to testify after court permitted state to introduce as rebuttal a recorded interview of defendant that contradicted his defense at trial. But see dissent. Giles v. State, 42 Fla. L. Weekly D2464c (1st DCA 11/20/17)


https://edca.1dca.org/DCADocs/2016/2665/162665_1284_11202017_09571491_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary area hearing on claim that his attorney threatened to withdraw if Defendant did not accept the plea. Abbas v. State, 42 Fla. L. Weekly D2464a (5th DCA 11/17/17)


http://www.5dca.org/Opinions/Opin2017/111317/5D17-2049.op.pdf


DISCOVERY VIOLATION: State is not required to disclose an oral, unrecorded witness statement. State did not committed discovery violation by failing to disclose fingerprint experts oral statement that the other person's fingerprints did not matched the latent prints on items obtained from the crime scene. Scott v. State, 42 Fla. L. Weekly D2461a (5th DCA 11/17/17)


http://www.5dca.org/Opinions/Opin2017/111317/5D16-3843.op.pdf

 

JOA-THEFT: Child is entitled to judgment of dismissal where state's case rested on the inference arising from his possession of recent stolen property, but the juvenile satisfactorily explained that possession.   K.P. v. State, 42 Fla. L. Weekly D2455a (2nd DCA 11/17/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2017,%202017/2D16-3652.pdf

 

SEARCH AND SEIZURE: Defendant who was passenger in the vehicle may be lawfully detained for the duration of the stop.  Deno v. State, 42 Fla. L. Weekly D2454a (2nd DCA 11/17/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2017,%202017/2D16-567.pdf


FALSE INFORMATION: Defendant who was the passenger in a car may be arrested for providing false information to law enforcement officer after the officer learned that she had given a false name response to his request for identification. Deno v. State, 42 Fla. L. Weekly D2454a (2nd DCA 11/17/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2017,%202017/2D16-567.pdf



POST CONVICTION RELIEF: In murder case, counsel was ineffective for failing to adequately investigate and prepare for the penalty phase and to challenge the voluntariness of his confession.   State v. Morrison, 42 Fla. L. Weekly S926c (FLA 11/16/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1880.pdf

DEATH PENALTY: Defendant who waived penalty phase jury is not entitled to relief under Hurst.   Dessaure v. State, 42 Fla. L. Weekly S926a (FLA 11/16/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1075.pdf


DEATH PENALTY: Defendant who waived penalty phase jury is not entitled to relief under Hurst.   Allred v. State, 42 Fla. L. Weekly S925a (FLA 11/16/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-846.pdf


KIDNAPPING: Defendant's acts of directing two victims to disrobe completely before ordering them to move behind a tree, which he was attempting to hide behind while committing sexual battery on one victim, is sufficient to warrant a conviction for kidnapping.   Glover v. State, 42 Fla. L. Weekly D2447a (4th DCA 11/15/17)


https://edca.4dca.org/DCADocs/2016/1182/161182_1257_11152017_09153607_i.pdf

 

CONSTRUCTIVE POSSESSION: Defendant is not entitled to judgment of acquittal where he was the only person in the car when the drugs were found. The fact that another person had briefly been in the car, without more, does not negate the inference of constructive possession.   State v. Lee, 42 Fla. L. Weekly D2446b (4th DCA 11/15/17)


https://edca.4dca.org/DCADocs/2016/2269/162269_1709_11152017_09203823_i.pdf

 

JOA: The state is permitted to appeal a judgment of acquittal entered after a jury verdict.    State v. Lee, 42 Fla. L. Weekly D2446b (4th DCA 11/15/17)


https://edca.4dca.org/DCADocs/2016/2269/162269_1709_11152017_09203823_i.pdf


STAND YOUR GROUND: Court may not enter an order granting Defendant immunity from prosecution without determining whether Defendant was involved in criminal activity just prior to shooting the victim. For stand your ground immunity, the court must find that,at the time defendant used deadly force, he reasonably believed that such force was necessary to prevent imminent death or great bodily harm to himself or to prevent imminent commission of a forcible felony, was not engaged in criminal activity, and was in a place he had a right to be. Appellate court does not address the question of whether caring a concealed firearm is criminal activity for the purpose of the Stand Your Ground law.   State v. Chavers, 42 Fla. L. Weekly D2443a (4th DCA 11/15/17)


https://edca.4dca.org/DCADocs/2016/3006/163006_1709_11152017_09243764_i.pdf

 

VOIR DIRE-JUDGE'S PARTICIPATION: Judge commits fundamental error during voir dire by previewing hypothetical facts that matched the evidence, asking jurors to assess hypotheticals as though they were the victims, and telling the jurors that the defendant in the hypotheticals should not go free.   Grigg v. State, 42 Fla. L. Weekly D2440a (1st DCA 11/15/17)


https://edca.1dca.org/DCADocs/2016/1368/161368_1287_11152017_08332524_i.pdf

 

COMPETENCY OF DEFENDANT: Court must conduct a competency hearing when there are reasonable grounds to believe defendant is not competent to proceed. English v. State, 42 Fla. L. Weekly D2439a (1st DCA 11/15/17)


https://edca.1dca.org/DCADocs/2016/2133/162133_1286_11152017_08345284_i.pdf



STATEMENTS OF DEFENDANT: Defendant's statements made to police after he said he did not understand his Miranda warnings should have been suppressed. Defendant's statement that "I can't afford a lawyer anyhow," indicates that he did not understand his Miranda rights.   Noh v. State, 42 Fla. L. Weekly D2437a (2nd DCA 11/15/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2015,%202017/2D15-4264.pdf

 

COMPETENCY OF DEFENDANT: Where defendant had been adjudicated incompetent to proceed, court was required to make independent determination that defendant had been restored to competency before accepting plea to reduced charge.     Moulton v. State, 42 Fla. L. Weekly D2434a (2nd DCA 11/15/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2015,%202017/2D16-5416or.pdf


POST CONVICTION RELIEF: Defendant may not raise the inadequacy of the jury instructions on manslaughter by act that attempted manslaughter by act on a motion for postconviction relief; the issue should have been raised on direct appeal.    Pinson v. State, 42 Fla. L. Weekly D2425c (3rd DCA 11/15/17)


http://www.3dca.flcourts.org/Opinions/3D15-0735.pdf


NEWLY DISCOVERED EVIDENCE
: Defendant is not entitled to new trial on the basis of newly discovered evidence that the victim's daughter in a homicide case was abused by the victim's husband, suggesting a possible motive for the husband murdering the victim, because in a new trial that evidence would be inadmissible as irrelevant and more prejudicial than probative. Suggs v . State, 42 Fla. L. Weekly S900a  (FLA 11/9/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-576.pdf


SENTENCING-NONHOMICIDE-JUVENILE: Defendant who was sentenced to a sentence longer than twenty years for nonhomicide offense committed while he was a juvenile is entitled to resentencing under juvenile sentencing statutes and judicial review of sentence after twenty years. All juvenile offenders with sentences longer than twenty years are entitled to judicial review. Montgomery v. State, 42 Fla. L. Weekly D2414d (5th DCA 11/9/17)


http://www.5dca.org/Opinions/Opin2017/110617/5D14-3615.op.pdf


MANDATORY MINIMUM: Defendant who was sentenced to mandatory minimum sentence of twenty-five years under 10-20-Life statute for nonhomicide offense committed while he was a juvenile is entitled to judicial review and possibility of early release after twenty years.  Montgomery v. State, 42 Fla. L. Weekly D2414d (5th DCA 11/9/17)


http://www.5dca.org/Opinions/Opin2017/110617/5D14-3615.op.pdf



POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel was ineffective for failing to object to prosecutor's misstatements of facts in closing argument.  Pamphile v. State, 42 Fla. L. Weekly D2412a (5th DCA 11/9/17)


http://www.5dca.org/Opinions/Opin2017/110617/5D16-3195.op.pdf

OPENING THE DOOR: Defendant did not open door to the nature of his prior drug convictions by testifying that he had four prior felonies or crimes of dishonesty in 2010, although convictions actually occurred in a different year. "Opening the door is not an all-or-nothing concept. Rather, a court must consider 'how wide' the defendant opens the door."  Farr v. State, 42 Fla. L. Weekly D2410a (4th DCA 11/8/17)


https://edca.4dca.org/DCADocs/2016/3814/163814_1709_11082017_09063105_i.pdf

 

WITHDRAW PLEA: Defendant is entitled to a hearing on his motion to withdraw plea where he alleged that he entered the plea expecting that he would serve the sentence in federal prison.  Williams v. State, 42 Fla. L. Weekly D2409a (4th DCA 11/8/17)


https://edca.4dca.org/DCADocs/2017/1047/171047_1709_11082017_09095972_i.pdf

 

STAND YOUR GROUND: Stand Your Ground law does not repeal and replace the law on self-defense. "We hold that the two statutes are not irreconcilable and, indeed, compliment each other."   Pileggi v. State, 42 Fla. L. Weekly D2407b (4th DCA 11/8/17)


https://edca.4dca.org/DCADocs/2015/2780/152780_1257_11082017_08454331_i.pdf

 

APPEAL-INEFFECTIVE ASSISTANCE: Where charge is amended to second-degree fleeing and eluding (with the added element of wanton disregard for safety) and counsel failed to realize that the new element is amended, his ineffectiveness cannot be remedied on direct appeal.   Cohen v. State, 42 Fla. L. Weekly D2407a (4th DCA 11/8/17)


https://edca.4dca.org/DCADocs/2016/1342/161342_1257_11082017_08554077_i.pdf



SENTENCING: Four-year sentence for possession of 20 grams or less of cannabis, a first-degree misdemeanor, exceeded statutory maximum.   Williams v. State, 42 Fla. L. Weekly D2406b (4th DCA 11/8/17)


https://edca.4dca.org/DCADocs/2016/3402/163402_1708_11082017_09050748_i.pdf

 

PLEA-WITHDRAWAL: Court must appoint conflict-free counsel to represent defendant at evidentiary hearing on motion to withdraw plea based on misadvice of counsel.  Jones v. State, 42 Fla. L. Weekly D2406a (4th DCA 11/8/17)


https://edca.4dca.org/DCADocs/2016/2721/162721_1709_11082017_08584882_i.pdf

 

DOUBLE JEOPARDY: Fact that defendant was disciplined at correctional facility for violating inmate code of conduct by attacking a corrections officer did not bar state from prosecuting defendant for battery on law enforcement officer. State v. Jones, 42 Fla. L. Weekly D2403a (4th DCA 11/8/17)


https://edca.4dca.org/DCADocs/2016/3390/163390_1709_11082017_09041311_i.pdf


PLEA-WITHDRAWAL: Defendant was entitled to hearing on motion to withdraw plea alleging plea was involuntary because of trial court's unrecorded side-bar statements indicating defendant would receive a more severe sentence if he did not take a negotiated plea.  Tubbs v. State, 42 Fla. L. Weekly D2397a (1st DCA 11/8/17)


https://edca.1dca.org/DCADocs/2016/3510/163510_1287_11082017_08445819_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claims that counsel was ineffective in lewd and lascivious case for not challenging admission of witnesses to whom Victim allegedly made disclosures, and evidence of other uncharged acts of sexual abuse, animal abuse, and battery on his daughter.   Curran v. State, 42 Fla. L. Weekly D2393c (1st DCA 11/8/17)


https://edca.1dca.org/DCADocs/2015/5222/155222_1286_11082017_08400586_i.pdf

COUNSEL: Court must renew offer of counsel prior to sentencing.   Richardson v. State, 42 Fla. L. Weekly D2393b (1st DCA 11/8/17)


https://edca.1dca.org/DCADocs/2016/4778/164778_1287_11082017_08470159_i.pdf


DOUBLE JEOPARDY-SINGLE HOMICIDE RULE: Separate convictions and sentences for fleeing or eluding causing serious bodily injury or death and vehicular homicide violated defendant's double jeopardy protections where offenses related to single homicide. Vehicular homicide and leaving the scene of an accident with death does not violate the single homicide rule. Discussion. Conflict certified. McCullough v. State, 42 Fla. L. Weekly D2389a (2nd DCA11/817)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2008,%202017/2D16-31.pdf


SENTENCING-HOMICIDE BY JUVENILE: Court conducted appropriate sentencing hearing in accordance with section 921.1401 before imposing 40-year sentence but erred in failing to make necessary written findings regarding defendant's entitlement to sentencing review. Defendant is eligible for sentence review where he was convicted of offense that he committed before he was age 18 and that was reclassified as life felony.   Brown v. State, 42 Fla. L. Weekly D2388e (2nd DCA 11/8/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2008,%202017/2D15-5617.pdf

 

SENTENCING: Due Process violated when Court interrupted Defendant at sentencing hearing and refused to listen to his statements before imposing sentence.   Chesser v. State, 42 Fla. L. Weekly D2388d (2nd DCA 11/8/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2008,%202017/2D16-3391.pdf

DEADLY WEAPON: A BB or pellet gun can be a deadly weapon for the purposes of the crime of robbery; deadliness is a jury question. Bellegarde v. State, 42 Fla. L. Weekly D2388a (3rd DCA 11/8/17)


http://www.3dca.flcourts.org/Opinions/3D16-613.pdf


JURORS-PEREMPTORY-DISCRIMINATION: State's reason for peremptory challenge of twenty-four-year-old, unmarried, African-American juror, that she was too young and inexperienced to serve on jury, was a genuine, race-neutral reason for striking the juror.  Phelps v. State, 42 Fla. L. Weekly D2384a (3rd DCA 11/8/17)


http://www.3dca.flcourts.org/Opinions/3D15-0121.pdf


EVIDENCE: Testimony that witness had seen Defendant with a gun of the type used in the murder a month prior to the crime is admissible.   Phelps v. State, 42 Fla. L. Weekly D2384a (3rd DCA 11/8/17)


http://www.3dca.flcourts.org/Opinions/3D15-0121.pdf


SECOND DEGREE MURDER-UNBORN CHILD: Defendant was properly found guilty of second degree murder of an unborn quick child who was killed when defendant shot the child's mother. The common law born alive rule, which requires the fetus to be born alive in order to be considered a human being entitled to protection of homicide statute, has been abrogated by statute. Conflict certified. Wyche v. State, 42 Fla. L. Weekly D2367g (1st DCA 11/6/17)


https://edca.1dca.org/DCADocs/2015/4797/154797_1284_11062017_08473719_i.pdf


RETURN OF PROPERTY: Court erred in summarily denying motion for return of property based on state's dispute that movant owned property where records did not conclusively demonstrate defendant had no ownership or possessory interest in property.   Riley v. State, 42 Fla. L. Weekly D2367a (5th DCA 11/3/17)


http://www.5dca.org/Opinions/Opin2017/103017/5D15-4037.op.pdf

 

JOA-GRAND THEFT: Court erred in denying motion for judgment of acquittal on grand theft charge where state failed to prove value of stolen items was over $300.   Martin v. State, 42 Fla. L. Weekly D2366b (5th DCA 11/3/17)


http://www.5dca.org/Opinions/Opin2017/103017/5D16-892.op.pdf


POST CONVICTION RELIEF: Claim that counsel was ineffective for failing to object to or move for mistrial based on prosecutorial misconduct must be raised in rule 3.850 motion.  King v. State, 42 Fla. L. Weekly D2365a (5th DCA 11/3/17)


http://www.5dca.org/Opinions/Opin2017/103017/5D17-2072.op.pdf

 

LIFE IMPRISONMENT-HOMICIDE-JUVENILE: Juveniles serving life sentences with parole eligibility are entitled to relief under Miller and Graham even if their presumptive parole release dates may not be a de facto life sentence. Conflict certified.   State v. Ratliff, 42 Fla. L. Weekly D2361b (2nd DCA 11/3/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2003,%202017/2D16-5322.pdf

 

 

EVIDENCE-WILLIAMS RULE: In case charging murder of a 13-month old baby, Court may admit evidence of Defendant beating a different child three weeks before.  Kirkland-Williams v. State, 42 Fla. L. Weekly D2358c (2nd DCA 11/3/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2003,%202017/2D15-1525.pdf

 

DEATH PENALTY: New penalty phase proceeding is required for the death sentences was based upon a nonunanimous jury recommendation and the sentence became final after Ring v. Arizona. Belcher v. State, 42 Fla. L. Weekly S888a (FLA (11/2/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1144.pdf

 

DEATH PENALTY: Hurst does not apply to defendant who waived penalty phase jury. Twilegar v. State, 42 Fla. L. Weekly S887a (FLA 11/2/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-839.pdf

 

JUDGES-DISCIPLINE: Judge violated the duty of impartiality and to disqualify himself from cases involving an attorney who he twice held in contempt, sued civilly, ran for election against, and, after the attorney made a sexual innuendo about his wife, responded with heated and profane words. 30 day suspension. Inquiry Concerning a Judge re: Yacucci, 42 Fla. L. Weekly S885a (FLA 11/2/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-2178.pdf




DEATH PENALTY: Three drug death penalty protocol is lawful.  Hannon v. State, 42 Fla. L. Weekly S879b (FLA 11/1/17)



http://www.floridasupremecourt.org/decisions/2017/sc17-1618.pdf


DEATH PENALTY: Defendant is not entitled to a new penalty phase proceeding notwithstanding that his trial attorney failed to investigating any mitigating circumstances and said "Well, we had nothing to mitigate. He was not guilty. He didn't do it. That was it." In fact, Defendant began using drugs and alcohol at age eleven and had a history of using LSD on a regular basis at the age of fifteen, as well as crystal methamphetamine, hallucinogenic mushrooms, and crack cocaine; suffered parental neglect, and neurological impairments; had suffered various head injuries, including losing consciousness at football practice in the ninth grade, getting kicked in the head by a bull, being hit by scaffolding at work, and being involved in several car accidents.    Hannon v. State, 42 Fla. L. Weekly S879b (FLA 11/1/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1618.pdf

 

HABEAS CORPUS: Habeas corpus may not be used to file successive rule 3.850 motions or to raise issues which would be untimely if considered as a motion for post conviction relief under rule 3.850.  Scott v. State, 42 Fla. L. Weekly D2350c (3rd DCA 11/1/17)

http://www.3dca.flcourts.org/Opinions/3D17-2032.pdf


BELATED APPEAL: Where defendant contends he requested trial counsel to file an appeal of sentence and trial counsel agreed but failed to do so, and state's response raises a good faith basis to dispute this assertion, a judge is appointed as a commissioner to hold an evidentiary hearing and determine the issue.   Santiago v. State, 42 Fla. L. Weekly D2350b (3rd DCA 11/1/17)

http://www.3dca.flcourts.org/Opinions/3D17-2044.pdf

 

ENFORCEMENT OF MANDATE: Where appellate court reversed downward departure sentence and mandated imposition of guidelines sentence, Court may not vacate guilty plea altogether.   State v. Perez-Diaz, 42 Fla. L. Weekly D2349b (3rd DCA 11/1/17)

 


http://www.3dca.flcourts.org/Opinions/3D16-2420.pdf

APPEALS-JURISDICTION: Defendant cannot appeal voluntariness of his plea agreement where he did not file a motion to withdraw the plea and the trial court.  Hanes v. State, 42 Fla. L. Weekly D2349a (3rd DCA 11/1/17)


http://www.3dca.flcourts.org/Opinions/3D16-1550.pdf


POST CONVICTION RELIEF: Court erred in dismissing a filing styled as "Lawsuit for False Imprisonment" as a motion for postconviction relief where is plain that the Plaintiff intended file a civil complaint.  Lucas v. State, 42 Fla. L. Weekly D2337b (2nd DCA 11/1/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/November/November%2001,%202017/2D17-274.pdf

 

SEXUAL BATTERY: Defendant can be convicted of sexual battery where he forces people at gunpoint to perform sexual acts. Defendant can be convicted of 2 counts of sexual battery for each act when he forces to people to perform sexual acts on each other.   Henry v. State, 42 Fla. L. Weekly D2335a (4th DCA 11/1/17)


https://edca.4dca.org/DCADocs/2016/1708/161708_1257_11012017_08583425_i.pdf


CIRCUMSTANTIAL EVIDENCE: Evidence is sufficient to convict Defendant where victim's decapitated body was found inside a barrel, Defendant was the last person to be with the victim before she went missing, people testified that they saw a barrel by his SUV and in his apartment, Defendant spoke to victim's brother and started crying and said "it wasn't supposed to be like this," he had cuts on his arm and forearm, gave conflicting stories, and his and the victim's cell phones pinged off the same tower.    Edwards v. State, (4th DCA 11/1/17)

https://edca.4dca.org/DCADocs/2015/3253/153253_1257_11012017_08471245_i.pdf

JURY INSTRUCTION: Court must give requested jury instruction on improper exhibition of a firearm, a permissive lesser included offense for attempted first-degree murder. Error is not harmless where the defendant was convicted of aggravated assault, an offense one step removed from improper exhibition of a firearm.   Caruthers v. State, 42 Fla. L. Weekly D2332a (4th DCA 11/1/17)

https://edca.4dca.org/DCADocs/2016/1567/161567_1709_11012017_08565172_i.pdf

EVIDENCE: Video of an altercation in a convenience store between Defendant and 1 of the victims is inextricably intertwined with the subsequent shooting incident and relevant to show Defendant's state of mind.  Caruthers v. State, 42 Fla. L. Weekly D2332a (4th DCA 11/1/17)


https://edca.4dca.org/DCADocs/2016/1567/161567_1709_11012017_08565172_i.pdf

 

HEARSAY: Officer may not testify about the victim's description of the gun which the defendant rested on the sill of his car window during the robbery. The error is not harmless where the officer's hearsay testimony was the only evidence corroborating the victim's previous description of the gun.   Anderson v. State, 42 Fla. L. Weekly D2329a (4th DCA 11/1/17)


https://edca.4dca.org/DCADocs/2015/4300/154300_1709_11012017_08501032_i.pdf


HEARSAY: Court erred by admitting detective's testimony that he spoke to the victim's homeless shelter case manager who verified that the victim was employed and regularly drug tested.   Dunbar v. State, 42 Fla. L. Weekly D2324b (4th DCA 11/1/17)


https://edca.4dca.org/DCADocs/2013/3255/133255_1709_11012017_08374108_i.pdf


DISQUALIFICATION FROM WORK IN POSITION OF TRUST: Appellant is exempt from disqualification from work in a position of trust based on his conviction for indecent exposure where ALJ found that he was rehabilitated and presented no danger to children.   A.P. v. DCF, 42 Fla. L. Weekly D2317a (4th DCA 11/1/17)


https://edca.4dca.org/DCADocs/2017/1016/171016_1709_11012017_09220790_i.pdf


OCTOBER 2017

 

SELF-REPRESENTATION: Court must allow Defendant to represent himself notwithstanding Defendant's statement that he was "illiterate as to the law" and had previously been held to be mentally ill.   Holmes v. State, 42 Fla. L. Weekly D2309c (1st DCA 10/31/17)


https://edca.1dca.org/DCADocs/2016/0140/160140_1287_10312017_08321520_i.pdf

AGGRAVATED ASSAULT WITH FIREARM: Twenty-year sentence for aggravated assault was legal because of minimum-mandatory sentence provision of section 775.087(2)(a)2.   Walters v. State, 42 Fla. L. Weekly D2309a (1st DCA 10/31/17)



https://edca.1dca.org/DCADocs/2017/3209/173209_1284_10312017_08542809_i.pdf

AGGRAVATED ASSAULT WITH FIREARM: Aggravated assault is not subject to reclassification based on use of firearm where firearm was essential element of offense.. Walters v. State, 42 Fla. L. Weekly D2309a (1st DCA 10/31/17)

 

https://edca.1dca.org/DCADocs/2017/3209/173209_1284_10312017_08542809_i.pdf

 

 

PRETRIAL DETENTION: Court may not order pretrial detention without specifying reasons. Resentencing should be before a different judge. Shalem v. Junior, 42 Fla. L. Weekly D2357a (3rd DCA 10/31/17)


http://www.3dca.flcourts.org/Opinions/3D17-2312.rh.pdf


DISQUALIFICATION: Court may not deny motion to disqualify solely on basis that motion was improperly served where it was ultimately received by judge.  Baker v. State, 42 Fla. L. Weekly D2308a (1st DCA 10/31/17)


https://edca.1dca.org/DCADocs/2017/1702/171702_1282_10312017_08413566_i.pdf

 

 

OCTOBER 2017


JUVENILE-HOMICIDE-SENTENCING: All juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation.  Ejak v. State, 42 Fla. L. Weekly D2306a (2nd DCA 10/27/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2027,%202017/2D13-5332.pdf


JURY INSTRUCTION: Failure to use the word "knowingly" in jury instruction on charge of possession of conveyance used for trafficking was not fundamental where defendant's knowledge of his possession of the car was never disputed. Thames v. State, 42 Fla. L. Weekly D2303a (2nd DCA 10/27/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2027,%202017/2D16-2896.pdf

 

DOUBLE JEOPARDY: Separate convictions for unlawful use of two-way communications device to facilitate or further commission of felony and traveling to meet minor during the same time period were improper.   Rubio v. State, 42 Fla. L. Weekly D2302a (2nd DCA 10/27/17)



http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2027,%202017/2D15-5603.pdf

 

SEARCH AND SEIZURE-KNOCK AND ANNOUNCE: Officers violated knock and announce statute when they breached front door of residence 15 to 20 seconds after they began knock and announce procedure when officers had no reason to believe there were weapons in residence, warrant was executed early in the morning, and officers had no reason to believe defendant knew they were coming, that anyone inside residence was at risk of harm, or that defendant or his family might try to escape or destroy evidence.  Falcon v State, 42 Fla. L. Weekly D2301a (2nd DCA 10/27/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2027,%202017/2D15-4134.pdf



QUOTATION: "We urge law enforcement agencies to use SWAT tactics to execute search warrants sparingly and to take special care that their use does not simply become par for the course."  Falcon v State, 42 Fla. L. Weekly D2301a (2nd DCA 10/27/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2027,%202017/2D15-4134.pdf


QUOTATION: "The SWAT unit leader testified that the unit had executed the warrant at that time for the safety of the unit. When asked what had prevented the unit from waiting until, for example, noon, the unit leader replied, "daylight." Falcon v State, 42 Fla. L. Weekly D2301a (2nd DCA 10/27/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2027,%202017/2D15-4134.pdf


COMPETENCY OF DEFENDANT: Dismissal of information based upon ostensible permanent incompetency of defendant was premature when record does not support assertion that defendant met statutory definition of intellectual disability. State v. Noel, 42 Fla. L. Weekly D2295b (5th DCA 10/27/17)


http://www.5dca.org/Opinions/Opin2017/102317/5D16-4393.op.pdf

WEAPON: An automobile can be considered a weapon for purposes of reclassification of degree of offense. Conflict certified.  Hurd v. State, 42 Fla. L. Weekly D2293b (5th DCA 10/27/17)


http://www.5dca.org/Opinions/Opin2017/102317/5D17-1802.op.pdf

POST CONVICTION RELIEF: Court may not deny facially insufficient claims without affording defendant opportunity to amend.  Mozie v. State, 42 Fla. L. Weekly D2293a (5th DCA 10/17/17)


http://www.5dca.org/Opinions/Opin2017/102317/5D17-882.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitle to a hearing on claim that was ineffective for failure to adequately advise defendant as to the details and strength of the state's case, and that had he been properly advised defendant would have accepted state's plea offer instead of going to trial. Brown v. State, 42 Fla. L. Weekly D2292b (5th DCA 10/27/17)


http://www.5dca.org/Opinions/Opin2017/102317/5D16-3437.op.pdf


POST CONVICTION RELIEF: Court erred in summarily denying claim that counsel was ineffective for failure to call as a witness co-defendant who would have testified that defendant was not present at crime scene. Court erred in speculating that co-Defendant would have asserted Fifth Amendment if called to testify.  Black v. State, 42 Fla. L. Weekly D2291a (5th DCA 10/27/17)


http://www.5dca.org/Opinions/Opin2017/102317/5D17-2853.op.pdf

 

AMENDMENT-JURY INSTRUCTIONS: Prostitution instructions modified; definition of structure broadened.  In re: Standard Jury Instructions, 42 Fla. L. Weekly S869a (FLA 10/26/17)

http://www.floridasupremecourt.org/decisions/2017/sc17-1439.pdf

 

COMPETENCY: Court must enter a written finding of competency following oral pronouncement. Rodriguez v. State, Fla. L. Weekly D2286f (3rd DCA 10/25/17)


http://www.3dca.flcourts.org/Opinions/3D16-0215.pdf

 

LOST EVIDENCE: Destruction of the Defendant's Bentley in DUI Manslaughter case was not exculpatory where it was fully examined and photographed before the first trial.   Goodman v. State, 42 Fla. L. Weekly D2285b (4th DCA 10/25/17)


https://edca.4dca.org/DCADocs/2014/4479/144479_NOND_10252017_090620_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that Defendant rejected a favorable offer because counsel failed to warn him that he qualified as a habitual offender.  McGriff v. State, 42 Fla. L. Weekly D2285a (4th DCA 10/27/17)


https://edca.4dca.org/DCADocs/2017/1111/171111_DC08_10252017_093129_i.pdf

 

NEUTRALITY OF JUDGE-VOP: Where judge conducted independent investigation by looking up probable cause affidavit from a previous case, the judge departed from a position of neutrality and failed to afford defendant due process.  Lang v. State, 42 Fla. L. Weekly D2284a (4th DCA 10/25/17)


https://edca.4dca.org/DCADocs/2016/2546/162546_DC13_10252017_092221_i.pdf

 

BURGLARY-CONSENT: Court erred in failing to instruct jury on affirmative defense of consent to enter dwelling -- Error was fundamental where failure to instruct jury on affirmative defense deprived defendant of his sole theory of defense. Harrison v. State, 42 Fla. L. Weekly D2279a (4th DCA 10/25/17)


https://edca.4dca.org/DCADocs/2016/2422/162422_DC08_10252017_092036_i.pdf

SEARCH AND SEIZURE-PRETEXTUAL STOP: Officers who observed defendant's vehicle parked on the wrong side of the road had probable cause to stop vehicle and issue citation. A pretextual stop (such as the one that may very well have occurred here) can still serve as a valid basis to stop and detain an individual so long as there is an objective basis for the law enforcement officer's intervention.  State v. Battle, 42 Fla. L. Weekly D2271a (2nd DCA 10/25/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2025,%202017/2D16-640.pdf


INEFFECTIVE ASSISTANCE-APPEAL: Appellate counsel rendered ineffective assistance by failing to argue that dual convictions for transmitting material harmful to minors under section 847.0138 and unlawfully using two-way communications device under section 934.215 violated double jeopardy.  Weitz v. State, 42 Fla. L. Weekly D2263a (2nd DC 10/25/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2025,%202017/2D16-4703.pdf

 

 

SEALING: Where Defendant pled to child abuse, FDLE may not deny application for certificate of eligibility to seal record because Defendant pled guilty to a charge related to an act of domestic violence. Court must make the finding as to whether the offense related to an act of domestic violence, precluding the record from being sealed. Failure to issue certificte shoud be raised by petition for mandamus. Lazard v. State, 42 Fla. L. Weekly D2253b (5th DCA 10/20/17)


http://www.5dca.org/Opinions/Opin2017/101617/5D16-3976.op.pdf



POST CONVICTION RELIEF: Motion challenging prison releasee reoffender designation was not improperly successive where prior motion raising same issue was dismissed as facially insufficient.   Williams v. State, 42 Fla. L. Weekly D2248a (5th DCA 10/20/17)


http://www.5dca.org/Opinions/Opin2017/101617/5D17-2543.op.pdf



SEARCH AND SEIZURE-VEHICLE-SCOPE: Officer who lawfully stopped vehicle for traffic infraction could properly order defendant to exit vehicle, even if officer did not have particularized basis for believing that defendant was threat to officer's safety.  State v. Benjamin, 42 Fla. L. Weekly D2247b (5th DCA 10/20/17)


http://www.5dca.org/Opinions/Opin2017/101617/5D16-4152.op.pdf


REJECTING PLEA OFFER: "Defense counsel should have warned Appellant, in the firmest manner possible, that by rejecting the State's plea offer, Appellant was very likely to receive a harsher sentence. To advise a criminal defendant that a trial court would ordinarily give a defendant the same or similar sentence which the defendant had just rejected in a plea offered by the State is simply not accurate legal advice." Tigner v. State, 42 Fla. L. Weekly D2242a (1st DCA 10/20/17)

 

APPEAL: Denial of motion to suppress is not appealable where court implicitly found the Defendant's testimony not credible. Absent objection, Court does not have to make a specific finding as to credibility.   Mack v. State, 42 Fla. L. Weekly D2241a (1st DCA 10/20/17)

 


STAND YOUR GROUND: Court erred in instructing jury that defendant had a duty to retreat if he was engaged in unlawful activity while defending himself where conviction occurred in 2012. The self-defense statute in effect in 2012 contained no provision that defendant has a duty to retreat if he was engaged in unlawful conduct.   Eady v. State, 42 Fla. L. Weekly D2237a (2nd DC 10/20/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2020,%202017/2D15-3153.pdf

SENTENCING-VINDICTIVENESS: Where trial judge had off the record discussions about pleading to a reduced charge and asked if State would accept 6.3 years but after trial imposed 25 years, the sentence is presumptively vindictive. Forman v. State, 42 Fla. L. Weekly D2234a (2nd DCA 10/20/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2020,%202017/2D15-5165.pdf


RULES REGULATING BAR-AMENDMENTS: New rules for short-tem limited legal ser ices program.      In re: Amendments, 42 Fla. L. Weekly S849a (FLA 10/9/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-458.pdf

PROBATION-JUVENILE: Court may not bar juvenile from participating in sports until he makes honor role.  J.R.M. v. State, 42 Fla. L. Weekly D2229a (4th DCA 10/18/17)


https://edca.4dca.org/DCADocs/2017/0832/170832_DC08_10182017_095432_i.pdf

 

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Court is authorized to make a finding of dangerousness for purposes of VFOSC; jury is not required for that finding. Souza v. State, 42 Fla. L. Weekly D2228a (4th DCA 10/18/17)

 

https://edca.4dca.org/DCADocs/2016/2809/162809_DC05_10182017_092526_i.pdf

COUNSEL: Order accepting no contest plea and imposing sentence is reversed because trial court improperly sentenced defendant without renewing offer of counsel before sentencing.   Williams v. State, 42 Fla. L. Weekly D2225a (4th DCA  10/18/17)

 

https://edca.4dca.org/DCADocs/2016/2111/162111_DC13_10182017_091233_i.pdf



APPEAL-PRESERVATION-CHILD HEARSAY: Claim that trial court erred by allowing state to introduce child hearsay because the prejudicial impact outweighed any probative value of the evidence was not preserved where defendant never objected on that ground.   Anderson v. State, 42 Fla. L. Weekly D2224a (4th DCA 10/18/17)


https://edca.4dca.org/DCADocs/2015/4676/154676_DC08_10182017_091113_i.pdf

UPWARD DEPARTURE: Court may not impose upward departure on resentencing without articulating grounds. Calixte v. State, 42 Fla. L. Weekly D2221b (4th DCA 10/18/17)


https://edca.4dca.org/DCADocs/2017/0069/170069_DC13_10182017_094740_i.pdf

POST CONVICTION RELIEF: When a defendant rejects a plea offer based on the alleged misadvice of counsel, the trial court cannot cure the deficiency by later informing the defendant of the actual sentence faced. Defendant would not have been able to go back and accept the offer that he previously rejected and that was no longer available; the damage has been done. Evidentiary hearing is required. Phillips v. State, 42 Fla. L. Weekly D2220a (2nd DCA 10/18/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2018,%202017/2D16-5034.pdf

APPEALS-PRESERVED: Claim that trial court improperly increased negotiated sentence after defendant failed to appear for sentencing hearing was not preserved for review where defendant did not seek to withdraw plea.  Simmons v. State, 42 Fla. L. Weekly D2219a (2nd DCA 10/18/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2018,%202017/2D16-1023.pdf



POST CONVICTION RELIEF: Appellate counsel was ineffective for failing to argue that conviction for lewd or lascivious sexual battery was barred by statute of limitations. Brown v. State, 42 Fla. L. Weekly D2204c (3rd DCA 10/18/17)


http://www.3dca.flcourts.org/opinions/3D17-1271.pdf



RETURN OF PROPERTY: Court erred in denying motion for return of property as insufficient without identifying why the motion was insufficient and granting leave to amend within a reasonable time. Motion must allege(1) that it is exclusively the movant's own property; (2) that it was not the fruit of illegal activity; and (3) that it is not being held for evidentiary purposes.   Watkins v. State, 42 Fla. L. Weekly D2202a (3rd DCA 10/18/17)


http://www.3dca.flcourts.org/opinions/3D16-2754.pdf

 

RESTITUTION-APPEAL-JURISDICTION: Court lacked jurisdiction to enter restitution order after notice of appeal had been filed.   Thompson v. State, 42 Fla. L. Weekly D2187b (1st DCA 10/16/17)



COMPETENCY: After trial court had determined that there were reasonable grounds to question defendant's competency, it was error to fail to conduct hearing, independently adjudicate issue of defendant's competency, and enter written order on competency.   Sheheane v. State, 42 Fla. L. Weekly D2186a (1st DCA 10/16/17)

 

SENTENCING-LIFE-JUVENILE: Concurrent sentences of thirty years' imprisonment followed by ten years' sexual offender probation without judicial review for nonhomicide offenses committed when defendant was a juvenile are unconstitutional.  Mosier v. State, 42 Fla. L. Weekly D2181b (2nd DCA 10/13/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2013,%202017/2D16-5457.pdf


DOUBLE JEOPARDY: Separate convictions for use of computer services to solicit the consent of a parent to engage in unlawful sexual contact with the child and traveling to meet minor violate double jeopardy where charges are based on the same conduct. Good discussion in concurring opinion by Lambert.   Straitiff v. State, 42 Fla. L. Weekly D2175e (5th DCA 10/13/17)


http://www.5dca.org/Opinions/Opin2017/100917/5D16-2913.reh.op.pdf



DEATH PENALTY: Death sentence violates Hurst v. Florida where jury's recommendation of death was not unanimous. Taylor v. Jones, 42 Fla. L. Weekly S848a (FLA 10/12/17)



http://www.floridasupremecourt.org/decisions/2017/sc17-1145.pdf

 

JURY INSTRUCTIONS-AMENDMENT: Soliciting sex with minor and traveling to meet minor instructions are changed. In Re: Standard Jury Instructions, 42 Fla. L. Weekly S846a will (FLA 10/12/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1438.pdf

POST CONVICTION RELIEF: Testimony by lab analyst, later discredited, which overstated the extent to which pubic hair could be identify its source is not newly discovered evidence sufficient to warrant a new trial where not all of the analyst's testimony was false. "Although some of his testimony overstated the degree of accuracy of his analysis, other statements were well within the bounds of the field."  Duckett v. State, 42 Fla. L. Weekly S844a (FLA 10/12/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-793.pdf



COSTS: $65 additional court cost may not be imposed in juvenile cases where adjudication is withheld.   C.M. v. State, 42 Fla. L. Weekly D2173a (3rd DCA 10/11/17)

 

http://www.3dca.flcourts.org/Opinions/3D17-0858.pdf

 

LIFE SENTENCE-JUVENILE: Juvenile defendant who was sentenced to life with parole was released on parole violated and was returned to prison, is not entitled to resentencing. Because defendant had already been provided with a meaningful opportunity to release, was released, and violated, his sentence of life imprisonment is legal. Through discussion of history of case law on life sentences for juveniles.   Vennissee v. State, 42 Fla. L. Weekly D2170b (3rd DCA 10/11/17)


http://www.3dca.flcourts.org/Opinions/3D16-1604.pdf

READ BACK OF TESTIMONY: Court properly denied jury's request for copies of transcripts of testimony and properly informed the jury that are read back in testimony was possible if they can identify those portions of testimony it wish to have read back.  Castellon-Lopez v. State, 42 Fla. L. Weekly D2170a (3rd DCA 10/11/17)


http://www.3dca.flcourts.org/Opinions/3D16-0424.pdf



SENTENCING-JUVENILE-JUDICIAL REVIEW: Court set a specified in sentencing documents that the defendant is entitled to judicial review sentence after 20 years under the circumstances of this case, which involved offenses committed prior to July 1, 2014.   Matias v. State, 42 Fla. L. Weekly D2167b (2nd DCA 10/11/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2011,%202017/2D16-971.pdf


SENTENCING: Life sentence for second degree murder, a first PBL, is not illegal merely because he would've been such as the 2nd penalty had he committed a life felony. Young v. State, 42 Fla. L. Weekly D2162a (4th DCA 10/11/17)

 

https://edca.4dca.org/DCADocs/2017/1850/171850_DC05_10112017_094522_i.pdf

VOIR DIRE: "The right to ask potential jurors questions during voir dire about bias remains one of the most important, and often overlooked, protections against jury discrimination." Court erred in dismissing thirty-one jurors for bias without allowing defense counsel to examine them.  Irimi v. R.J. Reynolds, 42 Fla. L. Weekly D2156b (4th DCA 10/11/17)


https://edca.4dca.org/DCADocs/2015/0759/150759_DC05_10112017_090751_i.pdf

COSTS: Discretionary fines and surcharges must be orally pronounced. Murphy v. State, 42 Fla. L. Weekly D2147c (1st DCA 10/11/17)

 

https://edca.1dca.org/DCADocs/2014/5788/145788_DC08_10112017_090705_i.pdf

 

PROBATION REVOCATION: Court had jurisdiction to revoke defendant's probation where violation of probation affidavit was filed prior to expiration of five-year period of probation. Where there was conflict between oral pronouncement and written sentence on issue of whether jail credit operated to shorten defendant's probation, the oral pronouncement is controlling.  Spatcher v. State, 42 Fla. L. Weekly D2141b (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2016/5656/165656_DC05_10062017_102429_i.pdf

 

APPEALS: Where there was conflict between oral pronouncement and written sentence on issue of whether jail credit operated to shorten defendant's probation, the oral pronouncement is controlling.   Frost v. Frost, 42 Fla. L. Weekly D2141a (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2017/0196/170196_DC05_10062017_102717_i.pdf

 

COMPETENCY OF DEFENDANT: So long as Court holds a competency hearing and makes an independent determination of competency, the lack of proper foundation for considering the evaluator's reports is not fundamental error.  Hendrix v. State, 42 Fla. L. Weekly D2140a (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2016/2924/162924_DC08_10062017_101739_i.pdf

 

GRAND THEFT-JOA: Defendant is entitled to Judgment of Acquittal for theft where he repossessed vehicles as collateral for unpaid loan, and thus lacked felonious intent. Where the taker honestly believes that he or she has a right to property, the taker cannot be convicted of theft, even though the taker may have been mistaken.  Johnson v. State, 42 Fla. L. Weekly D2139a (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2016/5350/165350_DC13_10062017_102021_i.pdf

 

JUVENILES-SENTENCING: Court may not deviate from DJJ'S recommendation without stating reasons.  T.S. v. State, 42 Fla. L. Weekly D2138b (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2017/0744/170744_DC13_10062017_104719_i.pdf

 

AGGRAVATED BATTERY-RECLASSIFICATION: Court may not reclassify offense from second-degree felony to a first-degree felony based on the use of a weapon where it cannot be determined that the conviction was not based on the use of a deadly weapon.  Helton v. State, 42 Fla. L. Weekly D2137b (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2013/2656/132656_DC08_10062017_095014_i.pdf

 

SENTENCING-SEXUAL PREDATOR: Kidnapping conviction does not qualify Defendant as a sexual predator with the victim was not a minor. Sexual battery without force is not a basis for a sexual predator designation where the offenses are second-degree felonies.  Flint v. State, 42 Fla. L. Weekly D2137a (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2017/1212/171212_DC13_10062017_105008_i.pdf

 

POST CONVICTION RELIEF: Counsel provided ineffective assistance by failing to investigate whether the alleged BB gun was actually an air pistol capable of firing lightweight plastic projectiles.   Plummer v. State, 42 Fla. L. Weekly D2133a (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2016/5736/165736_DC05_10062017_102556_i.pdf

BATTERY-JOA: Teacher's age cannot be convicted of battery of pre-kindergarten students for non-abusive touching of a student where jury acquitted her of child abuse. Teaching personnel are permitted to administer non-abuse of corporal discipline and to touch them non-abusively against their will. Morris v. State, 42 Fla. L. Weekly D2129c (1st DCA 10/6/17)


https://edca.1dca.org/DCADocs/2017/0552/170552_DC13_10062017_103054_i.pdf


SELF-REPRESENTATION: Court erred by allowing Defendant to represent himself at pre-trial Williams rule hearing without conducting a Faretta inquiry.  Dickerson v. State, 42 Fla. L. Weekly D2128a (5th DCA 10/6/17)

http://www.5dca.org/Opinions/Opin2017/100217/5D16-3316.op.pdf

APPEALS: Denial of motion to suppress is not preserved for appeal where Defendant will pled no contest without either a stipulation or determination that the denial of motion to suppress was dispositive. Where Defendant apparently believed that he could appeal, he may be allowed to timely move to withdraw his plea.  Russ v. State, 42 Fla. L. Weekly D2125a (2nd DCA 10/6/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2006,%202017/2D16-2009.pdf

AIDING AND ABETTING: Defendant who distracted the victim in order to set up his codefendant's robbery of him may properly be convicted of aggravated battery as an aider and abettor.   Delgado v. State, 42 Fla. L. Weekly D2123d (2nd DCA 10/6/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2006,%202017/2D16-1035.pdf

JOA: Defendant cannot be convicted of attempted sale of cannabis when he only pretended to sell the cannabis so that he could rob the victim.   Delgado v. State, 42 Fla. L. Weekly D2123d (2nd DCA 10/6/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2006,%202017/2D16-1035.pdf



DISCOVERY-BRADY: Brady violation has three components: the evidence must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Cumulative discovery violations, including discredited firearm identification evidence, is insufficient to warrant a new trial. Vigorous dissent.   Smith v. State, 42 Fla. L. Weekly S835a (FLA 10/5/17)


http://www.floridasupremecourt.org/decisions/2017/sc13-2246.pdf

 

SENTENCING: Court did not violate due process by announcing rule that it would not "go backwards" by imposing a lighter sentence for instant offense than defendant earned for his earlier convictions where the sentence was not product of some arbitrary rule but was product of court's studied consideration. Good discussion of sentencing theory.  Tyson v. State, 42 Fla. L. Weekly D2121a (1st DCA 10/5/17)


https://edca.1dca.org/DCADocs/2015/4707/154707_DC05_10052017_081933_i.pdf

 


MANSLAUGHTER: An automobile can be considered a weapon for purpose of reclassification of the degree of the felony. Discussion of Houck (whether a pavement can be a weapon) Conflict certified.   Shepard v. State, 42 Fla. L. Weekly D2118b (1st DCA 10/5/17)


https://edca.1dca.org/DCADocs/2015/3836/153836_DC08_10052017_081711_i.pdf

 

SENTENCING: Court erred in considering defendant's lack of remorse in imposing sentence.  Shepard v. State, 42 Fla. L. Weekly D2118b (1st DCA 10/5/17)

https://edca.1dca.org/DCADocs/2015/3836/153836_DC08_10052017_081711_i.pdf

 

JOA: JOA is required where the State cannot establish that the car the Child was seen stealing or burglarizing was the car alleged in the petition.   A.P. v. State, 42 Fla. L. Weekly D2117a (3rd DCA 10/4/17)


http://www.3dca.flcourts.org/Opinions/3D16-2813.pdf


APPEAL: Trial court is without jurisdiction to extend the time for taking an appeal.   Hernandez v. State, 42 Fla. L. Weekly D2115b (3rd DCA 10/4/17)


http://www.3dca.flcourts.org/Opinions/3D16-2240.pdf


COSTS: Section 939.185(1)(a) does not authorize a Florida county to adopt an ordinance imposing an additional $65 court cost where a juvenile is found delinquent but adjudication is withheld.   H.S. v. State, 42 Fla. L. Weekly D2114a (3rd DCA 10/4/17)


http://www.3dca.flcourts.org/Opinions/3D17-0398.pdf

 

COMPETENCY: Where defendant was previously found incompetent, Court erred in finding defendant competent to proceed based on parties' stipulation to defendant's competency.   Hanna v. State, 42 Fla. L. Weekly D2111a (4th DCA 10/4/17)


https://edca.4dca.org/DCADocs/2016/0770/160770_DC08_10042017_093522_i.pdf


POST CONVICTION RELIEF:  Counsel's admission at trial that he failed to provide effective assistance cannot form basis of an ineffective assistance of counsel claim.  Douse v. State, 42 Fla. L. Weekly D2107a (4th DCA 10/4/17)

https://edca.4dca.org/DCADocs/2016/1762/161762_DC05_10042017_095144_i.pdf




HEARSAY-EXCITED UTTERANCE
: 911 call made about two minutes after Defendant threw a pipe at his car may be admissible as an excited utterance, notwithstanding that the Declarant looked for the pipe and seemed calm on the recording.   Roop v. State, 42 Fla. L. Weekly D2097a (2nd DCA 10/4/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2004,%202017/2D15-1573.pdf


POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on motion for postconviction relief where he alleges that he would not have tendered the plea had he known that he would be deported.  Huerta v. State, 42 Fla. L. Weekly D2096b (2nd DCA 10/4/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/October/October%2004,%202017/2D16-3946.pdf



BAIL: Bail is not per se excessive or unreasonable simply because the Defendant is unable to pay it.  Knight v. State, 42 Fla. L. Weekly D2091c (1st DCA 10/2/17)


https://edca.1dca.org/DCADocs/2017/1832/171832_DC02_10022017_081229_i.pdf


 

SEPTEMBER 2017

 

DEATH PENALTY: Defendant is not entitled to relief from death penalty based on a nonunanimous death recommendation where his sentence became final prior to Ring. Lambrix v. State, 42 Fla. L. Weekly S833a (FLA 9/29/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1687.pdf

 

DOUBLE JEOPARDY: Separate convictions for attempted sexual battery and battery were precluded by double jeopardy where battery was part and parcel of attempted sexual battery.   Morrison v. State, 42 Fla. L. Weekly D2091a (5th DCA 9/29/17)


http://www.5dca.org/Opinions/Opin2017/092517/5D16-1054.op.pdf


VOLUNTARY INTOXICATION:   Defendant is entitled to a hearing on claim that counsel failed to pursue a voluntary intoxication defense on the mistaken belief that it was was unavailable to him. Reynolds v. State, 42 Fla. L. Weekly D2090b (5th DCA 9/29/17)


http://www.5dca.org/Opinions/Opin2017/092517/5D17-407.op.pdf

 


SEARCH AND SEIZURE-RESIDENCE: "No Soliciting" sign posted on front door of home did not prohibit law enforcement officers from knocking and talking to home's occupant.   State v. Crowley, 42 Fla. L. Weekly D2089a (1st DCA 9/29/17)


https://edca.1dca.org/DCADocs/2016/3380/163380_DC13_09292017_083728_i.pdf

 


DWLS: Defendants who have never possessed a driver license may not be charged under section 322.34(5), as having a driver license that has been revoked under the habitual traffic offender statute is a necessary element of the offense. "Driving privilege" refers to all the individuals who may lawfully operate vehicles on Florida's roads, not to people who have no license at all.   State v. Miller, 42 Fla. L. Weekly S831a (FLA 9/28/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1170.pdf


DEATH PENALTY: Defendant is not ineligible for relief from the death penalty based on intellectual deficit is not warranted where any deficit is attributed to him being shot in the head in the aftermath or after the underlying murder. Jones v. State, 42 Fla. L. Weekly S830a (FLA 9/28/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-1549.pdf

 

STAND YOUR GROUND: Stand Your Ground Law does not confer civil liability immunity to a criminal defendant based upon an immunity determination in the criminal case.   Kumar v. Patel, 42 Fla. L. Weekly S828a (FLA 9/28/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1457.pdf

 

STATEMENT OF DEFENDANT: If a reasonable person in the suspect's position would understand that the police have probable cause to arrest the suspect for a serious crime s, that circumstance militates strongly toward the conclusion that the suspect is in custody. Once Defendant admitted that he touched victim's butt and detective urged him to tell the truth, the interrogation at the police station became custodial, notwithstanding that he had been told before that he was free to leave.  Cushman v. State, 42 Fla. L. Weekly D2076a (2nd DCA 9/27/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2027,%202017/2D16-1267.pdf

 

 

DOUBLE JEOPARDY: Separate convictions for sexual battery and lewd or lascivious battery violated double jeopardy where convictions were based on same specific sexual conduct with single victim.  Fleming v. State, 42 Fla. L. Weekly D2073d (2nd DCA 9/27/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2027,%202017/2D16-469.pdf




SEVERANCE OF CHARGES: Court did not abuse discretion by failing to sever charge of battery from charge of second degree murder where the two offenses were connected by temporal proximity, physical proximity, and a common motive. The battery was motivated by the Defendant not being given money for drugs and the murder was motivated by the Victim's son not sharing a bottle of Xanax.  Hammond v. State, 42 Fla. L. Weekly D2073a (1st DCA 9/27/17)


https://edca.1dca.org/DCADocs/2016/0897/160897_DC05_09272017_094059_i.pdf


CORPUS DELICTI: In concealed firearm case, Corpus Delicti does not preclude evidence of the Defendant's admission that he had a gun in his waistband.   Hathaway v. State, 42 Fla. L. Weekly D2072c (1st DCA 9/27/17)


https://edca.1dca.org/DCADocs/2016/4797/164797_DC05_09272017_095713_i.pdf


APPEALS: Order denying defendant's motion to dismiss for fraud upon court is not an appealable order.   Baker v. State, 42 Fla. L. Weekly D2070c (1st DCA 9/27/17)


https://edca.1dca.org/DCADocs/2017/0604/170604_DA08_09272017_095933_i.pdf



EVIDENCE-VIDEOTAPE-AUTHENTICATION: Videotape from a shop near a store which was robbed is authenticated under the "silent witness" theory.   Richardson v. State, 42 Fla. L. Weekly D2058a (4th DCA 9/27/17)

https://edca.4dca.org/DCADocs/2015/1808/151808_DC05_09272017_092317_i.pdf



WITHHOLD OF ADJUDICATION: Court cannot withhold adjudication of guilt on first degree felonies.  State v. Dahl, 42 Fla. L. Weekly D2053a (4th DCA 9/27/17)


https://edca.4dca.org/DCADocs/2016/3001/163001_DC13_09272017_093135_i.pdf



SELF-DEFENSE: Defendant was entitled to assert self-defense in a burglary case when Defendant argued that he committed battery in self-defense and was then required, in self-defense, to continue the battery inside victim's apartment. For a defendant to be entitled to a special jury instruction, the special instruction was a correct statement of the law and not misleading or confusing.   St. Pierre v. State, 42 Fla. L. Weekly D2050a (4th DCA 9/29/17)

https://edca.4dca.org/DCADocs/2016/1669/161669_DC08_09272017_092704_i.pdf

ARGUMENT: Argument that since this is not a death penalty case State will not have to show aggravated circumstances or heightened planning is not improper.   Weingrad v. State, 42 Fla. L. Weekly D2046a (4th DCA 9/27/17)


https://edca.4dca.org/DCADocs/2016/0446/160446_DC05_09272017_092422_i.pdf



STATEMENT OF DEFENDANT: Fact that Miranda warnings did not specifically say that right to an attorney continues throughout the questioning is insufficient to render the confession suppressible.  Weingrad v. State, 42 Fla. L. Weekly D2046a (4th DCA 9/27/17)


https://edca.4dca.org/DCADocs/2016/0446/160446_DC05_09272017_092422_i.pdf

 

IRONY: "[W]itness testimony was admitted at trial from Weingrad's co-defendant that he woke her, with a sledgehammer in his hands, and told her "I did it. I did it," and that she then discovered the victim dead laying on her bed with her head misshapen and blood and tissue everywhere. There was also ample testimony. . . from multiple witnesses testifying . . .that he was trying to find a way to kill the victim and make it look like an accident." Weingrad v. State, 42 Fla. L. Weekly D2046a (4th DCA 9/27/17)

 


https://edca.4dca.org/DCADocs/2016/0446/160446_DC05_09272017_092422_i.pdf

HABEAS CORPUS: Defendant is not entitled to relief on his claim that he is entitled to a cumulative review of all evidence supporting his claim of actual innocence.   Lambrix v. Jones, 42 Fla. L. Weekly S825a (FLA 9/26/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1608.pdf


HABEAS CORPUS: Defendant is not entitled to relief on claim that he was denied the right to DNA testing, as he has not explained how DNA testing would lead to his exoneration.

Lambrix v. Jones, 42 Fla. L. Weekly S825a (FLA 9/26/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-1608.pdf

PRETRIAL RELEASE: Hurricane Irma and supreme court administrative order closing courts tolls the requirement of filing an information within 40 days.   Nelson v. Junior, 42 Fla. L. Weekly D2041b (3rd DCA 9/20/17)


http://www.3dca.flcourts.org/Opinions/3D17-2065.pdf


DEATH PENALTY: New sentencing hearing is required where death recommendation in not unanimous.  Doorbal v. Jones, 42 Fla. L. Weekly S822a (FLA 9/20/17)


http://www.floridasupremecourt.org/decisions/2017/sc17-349.pdf


SEARCH AND SEIZURE-PASSENGER: Law enforcement officers may, as a matter of course, detain passengers of a vehicle for the reasonable duration of a traffic stop without violating the Fourth Amendment.  Presley v. State, 42 Fla. L. Weekly S817a (FLA 9/20/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-2089.pdf

 

QUOTATION: "[P]assengers need be wary of the risk of detention when choosing whether to ride in a car with a faulty taillight."  Presley v. State, 42 Fla. L. Weekly S817a (FLA 9/20/17)

http://www.floridasupremecourt.org/decisions/2017/sc16-2089.pdf



LIFE SENTENCE-JUVENILE: Defendant who was 16 years old at the time of murder and was sentenced to life with the possibility of parole is entitled to resentencing under chapter 2014-220. Parole does not provide for the individualized consideration of the Defendant's juvenile status.  Albritton v. State, 42 Fla. L. Weekly D2035c (1st DCA 9/20/17)


https://edca.1dca.org/DCADocs/2015/2776/152776_DC13_09202017_085653_i.pdf

 

10-20-LIFE-CONSECUTIVE MANDATORY MINIMUM: Holding that consecutive mandatory minimum terms are permissible but not mandatory where multiple firearm offenses are committed contemporaneously and multiple victims are shot at does not apply retroactively.   Osei v. State, 42 Fla. L. Weekly D2034b (1st DCA 9/20/17)

 

https://edca.1dca.org/DCADocs/2016/5828/165828_DC05_09202017_092722_i.pdf

 

RETROACTIVITY: A change in the law does not apply retroactively unless the change: (a) emanates from the Florida or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance. A decision must satisfy all three of these prongs before it can be applied retroactively to a case that was already final.  Osei v. State, 42 Fla. L. Weekly D2034b (1st DCA 9/20/17)


https://edca.1dca.org/DCADocs/2016/5828/165828_DC05_09202017_092722_i.pdf

 

SEARCH AND SEIZURE-VEHICLE: Officer who observed that defendant was extremely intoxicated approximately one hour before he stopped vehicle defendant was driving, had founded suspicion that defendant was driving under the influence, despite that Defendant was not driving erratically. Jacobson v. State, 42 Fla. L. Weekly D2033a (1st DCA 9/20/17)

 

https://edca.1dca.org/DCADocs/2016/1400/161400_DC05_09202017_091940_i.pdf



DOUBLE JEOPARDY: Double Jeopardy does not preclude habitualization of a Defendant convicted of an enhanced felony (manslaughter with a firearm).  McKinney v. State, 42 Fla. L. Weekly D2032b (3rd DCA 9/20/17)

 

http://www.3dca.flcourts.org/Opinions/3D17-1703.pdf

 

DIRECT CRIMINAL CONTEMPT: Court erred in holding defendant in direct criminal contempt for being intoxicated in court where Court did not observe Defendant drink alcohol or behave inappropriately, but instead relied on probation officers testimony about his breathalyzer test. If court needs to rely on testimony from others is not direct criminal contempt. Brown v. State, 42 Fla. L. Weekly D2014b (2nd DCA 9/15/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2015,%202017/2D16-2791.pdf

 

JUDGMENT OF ACQUITTAL: JOA is required where the evidence fails to establish that the car the Defendant was seen rummaging through was the same car which the victim said he owned and which had been burglarized.  B.R.W. v. State, 42 Fla. L. Weekly D2013a (2nd DCA 9/15/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2015,%202017/2D16-664.pdf

 

COMPETENCY OF DEFENDANT: Court erred in revoking drug offender probation based on a new law violation without conducting a competency hearing following receipt of reports on his competency.   Mansfield v. State, 42 Fla. L. Weekly D2009c (2nd DCA 9/15/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2015,%202017/2D15-4325.pdf

 

NELSON HEARING: Court erred by declining to hold Nelson hearing and assuming that the Defendant's complaints about counsel were not warranted.  Mansfield v. State, 42 Fla. L. Weekly D2009c (2nd DCA 9/15/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2015,%202017/2D15-4325.pdf

 


SENTENCING-VINDICTIVENESS: Defendant is entitled to a new judge upon re-sentencing where the original trial judge expressed over-familiarity and condescension with the Defendant (" Now I've known you all your life."and "I remember when you was charged with cattle rustling. . .of Bill DeShawn's. . .cow out on Highway 70. . .Well, I just remember all those things, Henry."). Mansfield v. State, 42 Fla. L. Weekly D2009c (2nd DCA 9/15/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2015,%202017/2D15-4325.pdf

RETURN OF PROPERTY: Court erred in denying motion for return of property as untimely without attaching portions of record conclusively show refuting claim. Simmons v. State, 42 Fla. L. Weekly D2009b (2nd DCA 9/15/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2015,%202017/2D16-3871.pdf



POST CONVICTION RELIEF: Court erred by summarily denying the claim that counsel was provided ineffective assistance of counsel by failing to move for a Franks hearing to challenge the validity of the affidavit used to obtain the arrest warrant.  Conley v. State, 42 Fla. L. Weekly D2008a (2nd DCA 9/15/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2015,%202017/2D16-5417.pdf




CIRCUMSTANTIAL EVIDENCE: Evidence that someone vaguely matching the defendant's description, that the defendant reported the body of the deceased, and the victim's blood on his shoes is sufficient circumstantial evidence to sustain his conviction for murder.  Glover v. State, 42 Fla. L. Weekly S810a (FLA 9/14/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1578.pdf



EVIDENCE: Court properly excluded evidence of the Victim's drug use based on lab reports for the Defendant presented no evidence suggesting that drugs played a role in the homicide. Glover v. State, 42 Fla. L. Weekly S810a (FLA 9/14/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1578.pdf




NELSON HEARING: A generalized complaint about counsel does not trigger a required Nelson hearing.   Glover v. State, 42 Fla. L. Weekly S810a (FLA 9/14/17)



http://www.floridasupremecourt.org/decisions/2017/sc15-1578.pdf

DEATH PENALTY: New sentencing hearing is required where jury made a non-unanimous recommendation of death (10-2).   Glover v. State, 42 Fla. L. Weekly S810a (FLA 9/14/17)

 


http://www.floridasupremecourt.org/decisions/2017/sc15-1578.pdf

LESSER INCLUDED: Court is not required to give a lesser included jury instruction for second-degree arson, a permissive lesser included offense, where the evidence is undisputed that the structure was a dwelling.   Stevens v. State, 42 Fla. L. Weekly S807a (FLA 9/14/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1357.pdf

PEREMPTORY CHALLENGE-DISCRIMINATION: African-American juror giving prosecutor a dirty look was not a valid race-neutral reason for peremptory challenge of juror where the dirty look occurred outside the presence of the trial court and defense counsel.   Ivey v. State, 42 Fla. L. Weekly D2004a (1st DCA 9/13/17)


https://edca.1dca.org/DCADocs/2015/5803/155803_DC08_09132017_100546_i.pdf

SUSPENDED SENTENCE-WITHHOLD OF ADJUDICATION: Court has discretion to withhold adjudication while imposing a suspended prison sentence with probation.   Fowler v. State, 42 Fla. L. Weekly D2003a (1st DCA 9/13/17)


https://edca.1dca.org/DCADocs/2016/3223/163223_DC13_09132017_095126_i.pdf

 

DISCOVERY: State committed discovery violation when it fails to inform Defendant that a witness's trial testimony would be different from sworn statement to the police.  Parker v. State, 42 Fla. L. Weekly D2002a (1st DCA 9/13/17)


https://edca.1dca.org/DCADocs/2016/1855/161855_DC13_09132017_090749_i.pdf

 

RULES OF APPELLATE PROCEDURE-AMENDMENTS: Separate PDFs are required for the record, divided by the transcript, documents in evidence, and index, which must be searchable. In re: AMENDMENTS, 42 Fla. L. Weekly S794a (FLA 9/7/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1377.pdf

 


POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Defendant is entitled to an evidentiary hearing when a third party submits an affidavit claiming sole responsibility for the crime.  Mills v. State, 42 Fla. L. Weekly D2000a (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D17-517.op.pdf

EVIDENCE: Detective should not be asked or permitted to state opinion when the circumstances amounted to consensual sex or some form of attempted sexual battery. State v. Ryan, 42 Fla. L. Weekly D1999b (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D16-3318.op.pdf

 

MISTRIAL: Court properly denied motion for mistrial after Defendant's status as a probationer was committed to evidence where Defendant opened the door by eliciting that information from the victim on cross-examination. Rose v. State, 42 Fla. L. Weekly D1999a (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D16-1028.op.pdf

 

RESENTENCING-JUVENILE: Court properly considered defendant's subsequent convictions at individualized sentencing hearing under juvenile sentencing statutes.   Barnes v. State, 42 Fla. L. Weekly D1998a (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D16-1353.op.pdf

DISCOVERY-RICHARDSON: Court erred in failing to hold Richardson hearing after state introduced Defendant's statement made to State's forensic psychologist which constituted an admission and which was not disclosed to the defense during discovery.   Jackson v. State, 42 Fla. L. Weekly D1997a (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D16-619.op.pdf

DISCOVERY: Court is not required to order the state to disclose to defense which, out of a number of recorded jail calls, it intends to introduce at trial.   State v. Cummins, 42 Fla. L. Weekly D1996a (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D17-2077.op.pdf

 

POST CONVICTION DNA TESTING: Court erred in denying facially sufficient motion seeking additional DNA testing by an outside agency without ordering state to respond or holding an evidentiary hearing.  Poole v. State, 42 Fla. L. Weekly D1995b (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D17-1442.op.pdf

 

DRUG OFFENDER PROBATION: Where defendant was not convicted of one of the specific crimes for which drug offender probation was authorized, he could only be placed on drug offender probation following open plea if he committed nonviolent felony as defined in statute and total points were sixty points or fewer.   Taylor v. State, 42 Fla. L. Weekly D1995a (5th DCA 9/7/17)


http://www.5dca.org/Opinions/Opin2017/090417/5D16-2974.op.pdf

CIVIL THEFT: Claim of civil theft of money embezzled from the corporation previously owned by the husband and wife is not barred by the divorce since the assets were not marital property. A corporation is not the personal feedback for anyone shareholder.  Dr. Rooter Supply v. McVay, 42 Fla. L. Weekly D1992a (5th DCA 9/7/17)

http://www.5dca.org/Opinions/Opin2017/090417/5D14-3498.op.pdf

EVIDENCE: Defendant's enemies list, and testimony by the people on it, is admissible in murder trial when the Victim is on the list.   Beckman v. State, 42 Fla. L. Weekly D1975a (3rd DCA 9/6/17)


http://www.3dca.flcourts.org/Opinions/3D15-0304.pdf

 

EVIDENCE: Evidence is admissible to show consciousness of guilt that Defendant created a second list of people he wanted to kill to prevent their testifying in his murder case.  Beckman v. State, 42 Fla. L. Weekly D1975a (3rd DCA 9/6/17)

 


http://www.3dca.flcourts.org/Opinions/3D15-0304.pdf

 

 

EVIDENCE: Court can exclude medical evidence that the Defendant had Asperger's syndrome where defense was allowed to introduce evidence that defendant generally acted differently from most people.  Beckman v. State, 42 Fla. L. Weekly D1975a (3rd DCA 9/6/17)


http://www.3dca.flcourts.org/Opinions/3D15-0304.pdf

 

HEARSAY-EXCITED UTTERANCE: Evidence of statements made by defendant in 911 call shortly after the killing ("Oh my God, call 911. . .Please, come quickly, I accidentally shot my father.") were not admissible under excited utterance exception to hearsay rule where there was no showing that defendant was under any stress or excitement at the time of the call. "[S]ince spontaneity is the principal, and often the only, guarantee of trustworthiness for the exceptions . . ., its absence should result in exclusion of the statement." Beckman v. State, 42 Fla. L. Weekly D1975a (3rd DCA 9/6/17)

 


http://www.3dca.flcourts.org/Opinions/3D15-0304.pdf

 

SENTENCING-JUVENILE-APPRENDI: Court, not jury, may make the factual findings justifying a lengthy prison sentence up to and including life imprisonment or a juvenile. Apprendi does not require the jury to make the Miller factual findings. Beckman v. State, 42 Fla. L. Weekly D1975a (3rd DCA 9/6/17)

 

http://www.3dca.flcourts.org/Opinions/3D15-0304.pdf

 

FELONY LITTERING: Dumping litter on one's own private property can, in certain circumstances, constitute a violation of the Florida Litter Law.   Cosio v. State, 42 Fla. L. Weekly D1959d (2nd DCA 9/6/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2006,%202017/2D16-2439.pdf

 

 

FELONY LITTERING: Plants, living or dead, are not litter. Cosio v. State, 42 Fla. L. Weekly D1959d (2nd DCA 9/6/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2006,%202017/2D16-2439.pdf

 

QUOTATION: "One man's trash is another man's treasure. But sometimes it's just another man's nuisance."  Cosio v. State, 42 Fla. L. Weekly D1959d (2nd DCA 9/6/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2006,%202017/2D16-2439.pdf

 

QUOTATION: "[U]nder the doctrine of noscitur a sociis (a word is known by the company it keeps), one examines the other words used within a string of concepts to derive the legislature's overall intent. . .With that principle in mind, it defies any reasonable understanding of what could plausibly be characterized as "litter," or "garbage," or "trash," or "rubbish" to maintain, as the State does here, that live, verdant plant life and forestry falls within the ambit of any of those words. A living tree is not trash, at least under the Florida Litter Law. To broaden the meaning of litter to include growing things that are rooted in the earth would imbue more than an "unintended breadth" of definition into the statute's language. . .-- it would foist an outright distortion on the common meaning of "garbage," "rubbish," "trash," or "refuse. Nor under these circumstances does the felled state of the trees and brush on Mr. Cosio's yard transubstantiate their material into litter for purposes of the statute."   Cosio v. State, 42 Fla. L. Weekly D1959d (2nd DCA 9/6/17)

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2006,%202017/2D16-2439.pdf


QUOTATION: "Although the State's pursuit of a felony case through a jury trial against an elderly gentleman who hoarded junk on his overgrown yard strikes us as a rather questionable expenditure of criminal justice resources, that is not a basis upon which we can disturb the trial court's ruling, and so we affirm the judgment below."   Cosio v. State, 42 Fla. L. Weekly D1959d (2nd DCA 9/6/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/September/September%2006,%202017/2D16-2439.pdf

LIMITATION OF ACTIONS: Charge of lewd and lascivious molestation must be dismissed if not prosecuted within 3 years of the date the incident was first reported to DCF. Curry v. State, 42 Fla. L. Weekly D1957a (4th DCA 9/6/17)

 

RESENTENCING-SUCCESSOR JUDGE: Where defendant is resentenced by a new judge following a successful appeal , and the successor judge indicates that he is not inclined to revisit the sentence previously imposed, notwithstanding that he reviewed all the mitigating material submitted, the Defendant is entitled to another resentencing hearing by another judge.   Davis v. State, 42 Fla. L. Weekly D1952a (4th DCA 9/6/17)



QUOTATION: "The majority has scoured the trial judge's words, like a medieval monk pouring over sacred text, looking for nuances that would support reversal. Here, the legal basis for reversal is that the judge violated the constitution by failing to exercise "independent judgment." A failure to exercise independent judgment is a flimsy notion upon which to erect a reversal. If law involves the drawing of lines, who can say when independent judgment begins and ends?"   Davis v. State, 42 Fla. L. Weekly D1952a (4th DCA 9/6/17)

QUOTATION: "The sad irony of the law is that a judge can shred the Constitution in sentencing so long as he does not utter words that give him away."  Davis v. State, 42 Fla. L. Weekly D1952a (4th DCA 9/6/17)


MANDATORY MINIMUM
: 10-year mandatory minimum sentence cannot be imposed where the jury did not expressly find actual possession of the firearm.    Hicks v. State,  42 Fla. L. Weekly D1949b (4th DCA 9/6/17)



APPEALS: Appellate court lacks jurisdiction to entertain appeal taken by defendant from an order granting relief under rule 3.800.   Brown v. State, 42 Fla. L. Weekly D1969a (3rd DCA 9/6/17)


http://www.3dca.flcourts.org/Opinions/3D17-1698.pdf

 

SENTENCING-10-20-LIFE-CONSECUTIVE: Court has discretion to impose concurrent or consecutive mandatory minimum sentences where offenses occurred in same criminal episode and involved multiple victims. Resentencing is required where Court thought otherwise under then-existing case law.  Goodson v. State, 42 Fla. L. Weekly D1938a (1st DCA 9/5/17)


https://edca.1dca.org/DCADocs/2013/3549/133549_DC08_09052017_113309_i.pdf

 

DOUBLE JEOPARDY: Dual convictions for use of computer to facilitate or solicit parent to consent to sexual conduct of child and traveling to meet minor to engage in sexual conduct with consent of parent did not constitute a double jeopardy violation where the two convictions were not based on same conduct.  Coffey v. State, 42 Fla. L. Weekly D1936a (1st DCA 9/5/17)


https://edca.1dca.org/DCADocs/2015/1299/151299_DC08_09052017_113708_i.pdf

 

DOUBLE JEOPARDY: Dual convictions for traveling and unlawful use of two-way communications device constituted double jeopardy.    Coffey v. State, 42 Fla. L. Weekly D1936a (1st DCA 9/5/17)


https://edca.1dca.org/DCADocs/2015/1299/151299_DC08_09052017_113708_i.pdf

 

ENTRAPMENT: Argument that defendant was induced to solicit because ad was posted in adult dating section of Craigslist and because undercover agent brought up the suggestion that her daughter needed to lose her virginity for religious reasons lacks merit.  Coffey v. State, 42 Fla. L. Weekly D1936a (1st DCA 9/5/17)


https://edca.1dca.org/DCADocs/2015/1299/151299_DC08_09052017_113708_i.pdf

 

EVIDENCE-RELEVANCE: Evidence that Defendant suffered sexual abuse as a child was within Court's discretion to excluded as needlessly cumulative and likely to inflame emotions of jurors and possibly distract them from relevant legal issues.  Coffey v. State, 42 Fla. L. Weekly D1936a (1st DCA 9/5/17)


https://edca.1dca.org/DCADocs/2015/1299/151299_DC08_09052017_113708_i.pdf

 

SENTENCING: Defendant is not entitled to relief on claim that written sentence conflicts with oral pronouncement where trial court determined after hearing that transcript was in error and that written sentence complies with oral pronouncement.   Santiago v. State, 42 Fla. L. Weekly D1935a (5th DCA 9/1/17)


http://www.5dca.org/Opinions/Opin2017/082817/5D16-758.op.pdf


MARCHMAN ACT-VENUE: Marchman Act petition must be filed in the county were the treatment is located, but improper venue is waived if not asserted.   J.P. v. J.N., 42 Fla. L. Weekly D1933b (5th DCA 9/1/17)


http://www.5dca.org/Opinions/Opin2017/082817/5D16-3789.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on the question of whether counsel was ineffective for failing to object to jury instruction on third-degree murder as a lesser included offense of first-degree murder without attaching records refuting his claim that there is no evidence that the death occurred in connection with the purchase of marijuana.  White v. State, 42 Fla. L. Weekly D1933a (5th DCA 9/1/17)


http://www.5dca.org/Opinions/Opin2017/082817/5D17-844.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on the question of whether counsel was ineffective for failing to properly prepare defendant to testify at trial, and that if counsel had properly advised him, incriminating text messages would have been kept out of evidence.  White v. State, 42 Fla. L. Weekly D1933a (5th DCA 9/1/17)

 

http://www.5dca.org/Opinions/Opin2017/082817/5D17-844.op.pdf

VOP: Court can proceed on violation despite the fact that the State dropped the charge of domestic violence which was the basis of the violation.   State v. Mitchum, 42 Fla. L. Weekly D1930a (5th DCA 9/1/17)


http://www.5dca.org/Opinions/Opin2017/082817/5D16-3214.op.pdf

POST CONVICTION RELIEF: Court erred by summarily denying the claim that counsel was ineffective for failing to interview or investigate state witnesses in failing to present a defense theory in order to preserve the opportunity to present first and last closing arguments. Defendant's acquiescence in the strategy does not insulate his performance from judicial review.   Downs v. State, 42 Fla. L. Weekly D1929a (5th DCA 9/1/17)


http://www.5dca.org/Opinions/Opin2017/082817/5D16-3535.op.pdf


POST CONVICTION RELIEF-APPEAL: The appeal from the denial of the second motion for postconviction relief is dismissed where an order had not been rendered dispensing with a motion for rehearing of the order denying the 1st motion for postconviction relief.  Minix v. State, 42 Fla. L. Weekly D1928b (5th DCA 9/1/17)

 

http://www.5dca.org/Opinions/Opin2017/082817/5D16-2556.op.pdf

JOA-FAILURE TO REGISTER: JOA for failure to comply with sex offender registration requirements must be granted where State failed to demonstrate that Defendant qualified as a sex offender.  State cannot rely on the inference that because he was given a 10-year sentence in 1995 he must've been released from incarceration after October 1, 1997.   Clay v. State, 42 Fla. L. Weekly D1928a (5th DCA 9/1/17)

 

http://www.5dca.org/Opinions/Opin2017/082817/5D16-2987.op.pdf

 

JOA: A defendant does not waive the arguments made in a motion for judgment of acquittal at the close of the State's case by subsequently introducing evidence.   Clay v. State, 42 Fla. L. Weekly D1928a (5th DCA 9/1/17)

 

http://www.5dca.org/Opinions/Opin2017/082817/5D16-2987.op.pdf



POST CONVICTION RELIEF: Court erred in summarily denying the claim that counsel was ineffective for failing to advise defendant of a meritorious motion to suppress and that if he had properly advised him he would not have entered the plea.  Guevara v. State, 42 Fla. L. Weekly D1927c (5th DCA 9/1/17)


http://www.5dca.org/Opinions/Opin2017/082817/5D16-3464.op.pdf


POST CONVICTION RELIEF: Court erred by summarily denying claims that counsel was ineffective for failing to object to improper closing argument in failing to adequately cross-examine expert witness.   Burt v. State, 42 Fla. L. Weekly D1927b (5th DCA 9/1/17)

 


http://www.5dca.org/Opinions/Opin2017/082817/5D17-724.op.pdf

AUGUST 2017



DEATH PENALTY: Aggravator of a particularly vulnerable victim applies where the Defendant is in a de facto role of stepparent.  Covington v. State, v. 42 Fla. L. Weekly S787a (FLA 8/31/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1252.pdf

DEATH PENALTY: Aggravator of heinous, atrocious, and cruel applies where the victim has multiple broken bones and the Defendant sawed through the child victim's neck with a bread knife while she cried.  Covington v. State, v. 42 Fla. L. Weekly S787a (FLA 8/31/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1252.pdf

DEATH PENALTY: Court must consider parole ineligibility as a mitigating factor, that failure to do so here is harmless error. Covington v. State, v. 42 Fla. L. Weekly S787a (FLA 8/31/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-1252.pdf

DEATH PENALTY: A defendant who has waived the right to a penalty phase jury is not entitled to relief under Hurst. Covington v. State, v. 42 Fla. L. Weekly S787a (FLA 8/31/17)

 

http://www.floridasupremecourt.org/decisions/2017/sc15-1252.pdf

POST CONVICTION RELIEF: Counsel is not ineffective for not arguing that the transcript of the Defendant's conversation should have said "f***er" instead of "f**ing." Gregory v. State, 42 Fla. L. Weekly S779a (FLA 8/31/17)


http://www.floridasupremecourt.org/decisions/2017/sc15-1663.pdf



LESSER INCLUDED-MANSLAUGHTER: Manslaughter is a necessarily lesser included offense of second-degree felony murder because both offenses require some action by the defendant that ultimately causes the victim's death. However, where the evidence supports the charged offense as well as the requested instruction on a necessarily lesser included offense, any error in failing to give the requested instruction is harmless because the defendant is not entitled to an opportunity for a jury pardon.  Dean v. State, 42 Fla. L. Weekly S769a (FLA 8/31/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1314.pdf


LESSER INCLUDED (concurring): "My colleague argues that there is no inherent error in failure to instruct on an immediate lesser-included offense because there is no right for the jury to exercise its pardon power. . . This Court has recognized the opposite for as long as there has been a Florida Supreme Court. . . .To hold otherwise, as the majority currently does, is to recede from centuries of caselaw without an explanation."   Dean v. State, 42 Fla. L. Weekly S769a (FLA 8/31/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1314.pdf

QUOTATION:  "So, Dean wins a pyrrhic victory. He receives a favorable answer on manslaughter being a lesser included offense of second-degree felony murder, but he does not receive a new trial with a proper jury instruction on the lesser included offense of manslaughter. In my view, there would be a real possibility that the jury would have found him guilty of the lesser included offense, not as a result of the jurors disregarding their oath, but because the facts of this case could fit into manslaughter. Accordingly, I dissent."   Dean v. State, 42 Fla. L. Weekly S769a (FLA 8/31/17)


http://www.floridasupremecourt.org/decisions/2017/sc16-1314.pdf


STATE ATTORNEY: Gov. has authority to reassign prosecution of death penalty eligible cases when State Attorney announces her intention to implement a blanket policy of not seeking the death penalty.   Ayala v. Scott, 42 Fla. L. Weekly S766b (FLA 8/31/17)

http://www.floridasupremecourt.org/decisions/2017/sc17-653.pdf



STAND YOUR GROUND: Court properly determined law enforcement officer who shot a man who had failed to obey commands to drop a weapon and pointed the weapon at officers was entitled to immunity under Florida's Stand Your Ground law. Law enforcement officers are entitled to seek immunity under the Stand Your Ground law. Question Certified.   State v. Peraza, 42 Fla. L. Weekly D1917a (4th DCA 8/30/17)


https://edca.4dca.org/DCADocs/2016/2675/162675_DC05_08302017_095639_i.pdf

DEATH PENALTY: Court's order precluding death as a possible punishment on grounds that no constitutional penalty phase procedure was in place is quashed. Aggravating factors need not be alleged in the indictment.   State v. Chapman, 42 Fla. L. Weekly D1915a (4th DCA 8/30/17)


https://edca.4dca.org/DCADocs/2017/0428/170428_DC03_08302017_093244_i.pdf



RETURN OF PROPERTY: Motion for return of property including "all other miscellaneous items" is legally sufficient for a hearing. Defendant need not establish proof of ownership in order to allege a facially sufficient claim for the return of property.  Johnson v. State, 42 Fla. L. Weekly D1910a (4th DCA 8/30/17)


https://edca.4dca.org/DCADocs/2016/2840/162840_DC13_08302017_091709_i.pdf


COMPETENCY OF DEFENDANT: After defense counsel moved to have defendant evaluated for competency, trial court improperly allowed defendant to waive his right to the required competency hearing and proceed to trial without determining his competency. Hearing cannot be waived. Raithel v. State, 42 Fla. L. Weekly D1906a (4th DCA 8/30/17)

 

https://edca.4dca.org/DCADocs/2016/3196/163196_DC13_08302017_092310_i.pdf

 

RETURN OF PROPERTY: Court erred in finding the motion for return of property was untimely when the petition for discretionary review was still pending when the motion was filed.  Eugene v. State, 42 Fla. L. Weekly D1905a (4th DCA 8/30/17)


https://edca.4dca.org/DCADocs/2016/3535/163535_DC13_08302017_092903_i.pdf



CREDIT FOR TIME SERVED: An inmate in the custody of DOC must exhaust administrative remedies for gain time or credit owed within DOC before he is entitled to judicial remedies.   Dunbar v. State, 42 Fla. L. Weekly D1890a (3rd DCA 8/30/17)


http://www.3dca.flcourts.org/Opinions/3D17-1464.pdf


DOUBLE JEOPARDY: Defendant waives double jeopardy claims when entering a negotiated plea agreement. Higginbotham v. State, 42 Fla. L. Weekly D1886d (1st DCA 8/30/17)


https://edca.1dca.org/DCADocs/2016/2523/162523_DC05_08302017_090933_i.pdf

ENFORCEMENT OF APPELLATE MANDATE: Where appellate court ordered trial court to vacate the grand theft conviction and sentence for organized fraud, State cannot thwart the order by Nolle processing the organized fraud count. 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.  Manata v. State, 42 Fla. L. Weekly D1886b (1st DCA 8/30/17)


https://edca.1dca.org/DCADocs/2015/1925/151925_DC13_08302017_090514_i.pdf

DISCOVERY VIOLATION: State committed discovery violation by not disclosing on alleged statements by the defendant to the Victim admitting the theft on the theory that the disclosure was not required because the defendant could have deposed the victim. Court erred in not considering the harm in preparation created by the non-disclosure.  Z.L. v. State, 42 Fla. L. Weekly D1885b (2nd DCA 8/30/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2030,%202017/2D16-3504.pdf

 

VOP-YOUTHFUL OFFENDER: Court erred in sentencing Defendant upon violation of probation without continuing youthful offender status.   Jaques v. State, 42 Fla. L. Weekly D1885a (2nd DCA 8/30/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2030,%202017/2D16-2404.pdf

VOP: Defendant is improperly convicted of violating community control where his car broke down at the gas station and he could not come home for 50 minutes.   Rousey v. State, 42 Fla. L. Weekly D1882a (2nd DCA/30/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2030,%202017/2D16-4186.pdf

 

SENTENCING-HABITUAL OFFENDER-ATTEMPTED SECOND DEGREE MURDER: Defendant was properly sentenced to life in prison for first-degree felony (attempted second degree murder with a weapon) where he qualified as habitual felony offender.   Clark v. State, 42 Fla. L. Weekly D1881a (2nd DCA 8/30/17)


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2030,%202017/2D16-5292.pdf

JOA-NEGLECT OF CHILD CAUSING GREAT BODILY HARM: Defendant's conduct in allowing 4-year-old child to descend, unassisted, a flight of stairs that the child had regularly traversed previously without significant incident did not rise to level of culpable negligence or willful failure to care for child's well-being.  Medina v. State, 42 Fla. L. Weekly D1878a (2nd DCA 8/30/17)

 


http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2030,%202017/2D15-654.pdf

 

EVIDENCE: Evidence that Defendant was under the influence of marijuana at the time of the incident is not a basis for criminal liability for neglect of a child absent proof that the ability to supervise or care for the child was impaired.   Medina v. State, 42 Fla. L. Weekly D1878a (2nd DCA 8/30/17)

 

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2017/August/August%2030,%202017/2D15-654.pdf

 

COSTS: Court may not impose discretionary costs without providing Defendant notice and opportunity to object.  Cooler v. State, 42 Fla. L. Weekly D1873b (1st DCA 8/28/17)


https://edca.1dca.org/DCADocs/2015/3664/153664_DC08_08282017_084005_i.pdf



SENTENCING-10-20-LIFE-CONSECUTIVE: Where Defendant was convicted of one qualifying felony into non-qualifying felonies, court may impose mandatory minimum sentences to run consecutively.   Armstead v. State, 42 Fla. L. Weekly D1872b (1st DCA 8/28/17)

 


https://edca.1dca.org/DCADocs/2013/4728/134728_DC05_08282017_083719_i.pdf

 

DRIVING RECORD: Department's records are prima facie evidence that the driver committed the offenses identified in its records, and that the burden then shifts to the driver to dispute the evidence.   Carpenter v. DHSMV, 42 Fla. L. Weekly D1875a (1st DCA 8/28/17)

 

https://edca.1dca.org/DCADocs/2017/0234/170234_DC02_08282017_091121_i.pdf

 

JUVENILES-SENTENCING: Upon deviating from DJJ's recommendation of probation, Court erred in committing juvenile to nonsecure residential program without first securing a commitment level recommendation from DJJ. K.L.L. v. State, 42 Fla. L. Weekly D1871b (1st DCA 8/28/17)

 

https://edca.1dca.org/DCADocs/2016/5840/165840_DC08_08282017_090916_i.pdf


APPEALS: Judgment which reserves jurisdiction to determine disposition of marital home should refinance not be possible is a nonappealable nonfinal order.  Fischer v. Fischer, 42 Fla. L. Weekly D1871a (1st DCA 8/28/17)

 

https://edca.1dca.org/DCADocs/2016/4285/164285_DA08_08282017_090355_i.pdf

 

SENTENCING: 25-year minimum mandatory sentence for trafficking between 28 grams and 30 grams of hydrocodone was not illegal where offense was committed before statutory amendment which reduced minimum mandatory sentence for trafficking in that amount of hydrocodone.    Anderson v. State, 42 Fla. L. Weekly D1870a (1st DCA 8/28/17)


https://edca.1dca.org/DCADocs/2017/1277/171277_DC05_08282017_091248_i.pdf

 

POST CONVICTION RELIEF: Notwithstanding that he pled to armed robbery with a firearm, Defendant may claim ineffective assistance of counsel for failure to move to suppress evidence where he alleges he would have proceeded to trial, but the claim may be summarily denied where there it is not objectively reasonable that he would have proceeded to trial.  Guzman-Aviles, 42 Fla. L. Weekly D1864b (5th DCA 8/25/17)


http://5dca.org/Opinions/Opin2017/082117/5D17-250.op.pdf

 

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Court may not sentence defendant as a violent felony offender of special concern without making a written finding as to why he poses a danger to the community. Brown v. State, (5th DCA 8/25/17)


http://5dca.org/Opinions/Opin2017/082117/5D17-190.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failure to obtain photographs of his hands, which would have shown a cut made by the victim's knife, in a case in which self-defense was asserted.  Trawick v. State, 42 Fla. L. Weekly D1863a (5th DCA 8/25/17)

http://5dca.org/Opinions/Opin2017/082117/5D16-2367.op.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failing to call assisted attorney at suppression hearing who would've testified that police at arrested his mother resulting in his cooperating in exchange for the possibility of his mother's immunity.  Jones v. State, 42 Fla. L. Weekly D1862c (5th DCA 8/25/17)


http://5dca.org/Opinions/Opin2017/082117/5D16-1377.op.pdf


POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failure to request an independent act jury instruction for offense of burglary with a firearm where defendant alleged that no guns were taken to the burglarized home, he did not enter the home, it had been agreed beforehand that no guns would be used or taken, and that co-defendant acquired the guns from inside the home.   Jones v. State, 42 Fla. L. Weekly D1862c (5th DCA 8/25/17)


http://5dca.org/Opinions/Opin2017/082117/5D16-1377.op.pdf

 

EVIDENCE-OPINION: Lay witness testimony regarding speed of a vehicle may be admissible. Lay witness may testify the motorcycles going at a high rate of speed based on the sound of the motorcycle. Perception is not limited to visual perception.   Sajiun v. Santiago, 42 Fla. L. Weekly D1857a (4th DCA 8/23/17)


https://edca.4dca.org/DCADocs/2016/0589/160589_DC05_08232017_085632_i.pdf



COMPETENCY: Court must conduct a hearing and issue a written order determining competency after it previously found reasonable grounds to question Defendant's competence.  Hawks v. State, 42 Fla. L. Weekly D1851a (4th DCA  8/23/17)

https://edca.4dca.org/DCADocs/2016/2403/162403_DC13_08232017_090642_i.pdf


INFORMATION-AMENDMENT: State may not amend the information after the victim's testimony to reflect digital rather than oral penetration. The argument that the change did not implicate a different statute fails.  Simbert v State, 42 Fla. L. Weekly D1849a (4th DCA 8/23/17)


https://edca.4dca.org/DCADocs/2016/1633/161633_DC08_08232017_085904_i.pdf

 

ARGUMENT: State improperly asked jury to determine whether the victim was lying as the test determining Defendant's guilt, but the issue is not preserved if not objected to.    Simbert v State, 42 Fla. L. Weekly D1849a (4th DCA 8/23/17)


https://edca.4dca.org/DCADocs/2016/1633/161633_DC08_08232017_085904_i.pdf

POST CONVICTION RELIEF-MANIFEST INJUSTICE: Where similarly situated co-defendant had his conviction reversed based on Court's failure to suppress improper traffic stop, appellate counsel was ineffective for failure to argue similarly. Conviction reversed.   Johnson v. State, 42 Fla. L. Weekly D1848a (4th DCA 8/23/17)

 


SEQUESTRATION OF WITNESS: Court may exclude the mother of the Defendant from the courtroom during evidentiary hearings and trial based on the State saying they may call her as a rebuttal witness.  Tillman v. State, 42 Fla. L. Weekly D1844a (4th DCA 8/23/17)


https://edca.4dca.org/DCADocs/2013/2516/132516_DC05_08232017_084724_i.pdf


STATEMENT OF DEFENDANT--MIRANDA: Defendant was not in custody during his second interrogation where he had already confessed earlier after Miranda, the door of the interrogation room was not locked, and he had been told he was free to leave. Tillman v. State, 42 Fla. L. Weekly D1844a (4th DCA 8/23/17)


https://edca.4dca.org/DCADocs/2013/2516/132516_DC05_08232017_084724_i.pdf


SENTENCING-JUVENILE
: Juvenile sentenced to 31 years followed by 15 years of probation for crimes committed prior to new juvenile sentencing statute is not entitled to a sentence review. The sentence is neither a life sentence nor does the law apply retroactively. Question certified.   Tillman v. State, 42 Fla. L. Weekly D1844a (4th DCA 8/23/17)


https://edca.4dca.org/DCADocs/2013/2516/132516_DC05_08232017_084724_i.pdf

 

THEFT-VALUE: First degree petit theft conviction is vacated with the evidence did not establish the fair market value of an iPad stolen from the school at the time of the offense nor the cost of replacement within a reasonable time thereafter. Electrical components are subject to accelerated obsolescence; purchase price alone is generally insufficient to establish the value of such property him.   Y.R. v. State, 42 Fla. L. Weekly D1837a (3rd DCA 8/23/17)


http://3dca.flcourts.org/Opinions/3D16-1935.pdf

 

DOWNWARD DEPARTURE: Statement that Defendant had been given a downward departure based on a plea agreement before violating probation is not a valid basis for imposition of a downward departure on the VOP.   State v. Shine, 42 Fla. L. Weekly D1832c (3rd DCA 8/23/17)


http://3dca.flcourts.org/Opinions/3D15-2876.pdf



JUDGE-DISQUALIFICATION: Fact that trial judge is a Facebook "friend" with lawyer representing a potential witness and potential party in pending litigation is not valid basis for disqualification of judge. Conflict certified.  Law Offices of Herssein and Heirsein v. United Services Automobile Association, 42 Fla. L. Weekly D1830a (3rd DCA 8/23/17)

 

http://3dca.flcourts.org/Opinions/3D17-1421.pdf

RESENTENCING: Where Court agreed that separate convictions for traveling and unlawful use of computer service violated double jeopardy, court must consider a revised scoresheet before resentencing Defendant.  Jarrell v. State, 42 Fla. L. Weekly D1828a (1st DCA 8/21/17)

 

https://edca.1dca.org/DCADocs/2016/3896/163896_DC13_08212017_090544_i.pdf

DOUBLE JEOPARDY: Separate convictions for grand theft and dealing in stolen property violated double jeopardy where offenses were committed during single, ongoing scheme. Adoye v. State, 42 Fla. L. Weekly D1824c (1st DCA 8/21/17)

 

https://edca.1dca.org/DCADocs/2016/3432/163432_DC13_08212017_090329_i.pdf

 

ARGUMENT-PRESERVATION: Improper comments by prosecutor during voir dire cross-examination closing argument are not preserved for review if not objected to. Breeden v. State, 42 Fla. L. Weekly D1824b (1st DCA 8/21/17)


https://edca.1dca.org/DCADocs/2014/3749/143749_DC05_08212017_085543_i.pdf

 

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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