Criminal Case Law

SEPTEMBER 2019

 

SEARCH AND SEIZURE: Stop of person apparently sleeping in a running car at the key code security gate of a complex who is disoriented when encountered is lawful. An investigatory stop must be based upon all the circumstances, including the officer's objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers, and must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. "The process does not deal with hard certainties, but with probabilities."  State v. Welch, 2D17-4520 (9/20/19)


https://www.2dca.org/content/download/537342/6064664/file/174520_39_09202019_08212523_i.pdf

 

RESTITUTION: Defendant must be present at restitution hearing, unless his absence is knowing, intelligent, and voluntary.   Meuse v. State, 2D18-659 (9/20/19)


https://www.2dca.org/content/download/537348/6064736/file/180659_114_09202019_08225104_i.pdf

 


PLEA WITHDRAWAL: Defendant is entitled to conflict-free counsel when moving to withdraw plea based on allegation that counsel performed deficiently in advising him. Angeles v. State, 2D18-1870 (9/20/19)


https://www.2dca.org/content/download/537357/6064844/file/181870_39_09202019_08263986_i.pdf

SEARCH AND SEIZURE-FRESH PURSUIT-STOP BAR: Because stop bar was in city limits (though the intersection was not), Defendant's crossing over the stop bar to see if it was safe to make a right turn on red was in city limits, justifying Orlando Police officer in pursuing the Defendant into unincorporated county.   Jones v. State, 5D18-3375 (9/20/19)


https://www.5dca.org/content/download/537304/6064265/file/183375_1257_09202019_08290436_i.pdf


SEARCH AND SEIZURE-AUTOMOBILE: Officers may not search Defendant's car incident to arrest for fleeing and eluding when he is apprehended outside his parked car. Nonetheless, conviction for possession or drugs found in the car is affirmed when appellate counsel failed to argue that the automobile exception did not apply. Defendant may re-raise the issue by motion for post-conviction relief.  Jones v. State, 5D18-3375 (9/20/19)


https://www.5dca.org/content/download/537304/6064265/file/183375_1257_09202019_08290436_i.pdf


ARGUMENT: Court erred is prohibiting counsel for the Defendant from arguing that, had it been tested, the Defendant's fingerprints would not have been found on the baggie of meth.  Turner v. State, 5D18-3772 (9/20/19)

https://www.5dca.org/content/download/537305/6064277/file/183772_1260_09202019_08351728_i.pdf


CREDIT FOR TIME SERVED: Upon resentencing, Court must give the same credit for time served as was previously awarded. Court may not sua sponte rescind jail credit previously awarded at any time even if the initial award was improper.   Cummings v. State, 1D17-5191 (9/18/19)


https://www.1dca.org/content/download/537084/6061953/file/175191_1286_09182019_10380647_i.pdf

QUOTATION:   "It cannot be ignored that Cummings is serving a mandatory life sentence plus thirty years imprisonment. It is, at best, unclear whether Cummings will see any benefit from an additional thirty-four days of jail credit on this life-plus-thirty sentence. . . Courts and litigants seeking real relief may be better off if these claims were limited to ones where the defendant could actually receive a real benefit."   Cummings v. State, 1D17-5191 (9/18/19)


https://www.1dca.org/content/download/537084/6061953/file/175191_1286_09182019_10380647_i.pdf


JURY INSTRUCTION-FELONY MURDER: In homicide case where mother left her discarded newborn baby in a trash bag outside in cold weather and was convicted of first-degree murder under a general verdict, either premeditated murder or murder by child abuse, jury instruction which included instructing the jury on torture and caging the child as part of aggravated child abuse, is proper. An infant in a trash bag can be caging. Being left in the cold can be torture.   Crowell v. State, 1D18-2039 (9/18/19)


https://www.1dca.org/content/download/537085/6061965/file/182039_1284_09182019_10393898_i.pdf

POST CONVICTION RELIEF: Plea colloquy in which the Defendant said that counsel had reviewed all possible defenses with his attorney is insufficient, standing alone, to refute his claim that counsel failed to advise him of the insanity defense.   Bartletto v. State, 1D18-3306 (9/18/19)


https://www.1dca.org/content/download/537087/6061989/file/183306_1286_09182019_10430856_i.pdf

 

COMPETENCY: Once a court has reasonable grounds to question a defendant's competency, it must hold a competency hearing and make an independent determination on whether the defendant is competent to proceed. A.D.H., v.State, 18-4953 (9/18/19)


https://www.1dca.org/content/download/537126/6062471/file/184953_1287_09182019_10452323_i.pdf


SPEEDY TRIAL: Child's prior announcement of an intent to enter a plea of guilty or nolo contendere is a valid basis for the denial of his motion for discharge for speedy trial violation when he backed out of pleaing at the last minute. Continuance is properly charged to the Child.   A.L. v. State, 3D18-1848 (9/18/19)

https://www.3dca.flcourts.org/content/download/537051/6061559/file/181848_809_09182019_10153218_i.pdf

 

EVIDENCE: Photos of the Defendant holding a similar gun on another occasion is inadmissible in armed robbery case absent evidence that the gun is the same one used in the robbery, or has any distinct features or meaningful details linking it to the crime.  Beard v. State, 4D18-159 (9/18/19)


https://www.4dca.org/content/download/537063/6061701/file/180159_1257_09182019_08481197_i.pdf

 

APPEAL-MOOTNESS: Argument that Court improperly sentenced him to prison where he has fewer than 22 points on scoresheet and there is no jury finding of dangerousness is meritorious by moot when Defendant has already completed his sentence. Casiano v. State, 4D18-3255 (9/18/19)


https://www.4dca.org/content/download/537070/6061785/file/183255_1701_09182019_09022516_i.pdf

 

RESENTENCING: Court may not vacate its previous resentencing order which allowed judicial review, in accord with Atwell, based on Atwell being later receded from. The earlier order granting resentencing became final when neither party moved for rehearing or appealed that order. The decisional law effective at the time of the resentencing applies. Jones v. State, 4D18-3589 (9/18/19)


https://www.4dca.org/content/download/537073/6061821/file/183589_1709_09182019_09080333_i.pdf

 

RESENTENCING: Court is not required to resentence Defendant where Atwell, on which the Defendant relied in seeking resentencing, had been receded from. This case is distinguished from Jones v. State, decided the same day.    Davis v. State, 4D19-618 (9/18/19)


https://www.4dca.org/content/download/537076/6061857/file/190618_1257_09182019_09191636_i.pdf

 

EVIDENCE-EXPERT: State is entitled to present a doctor to testify as an expert that Defendant's actions in prescribing oxycontin was not in good faith in accord with proper professional practices. "The right to call witnesses is one of the most important due process rights of a party and accordingly, the exclusion of the testimony of expert witnesses must be carefully considered and sparingly done."    State v. Sills, 4D19-1585 (9/18/19)


https://www.4dca.org/content/download/537083/6061941/file/191585_1704_09182019_09375802_i.pdf


SENTENCE-VINDICTIVENESS: 20 year sentence after trial, and after Court had proposed a cap of eight years for a plea before trial, is not vindictive. There is no presumption of vindictiveness in all cases in which a judge participates in failed plea negotiations, and then sentences the defendant more severely than the sentence contemplated. Court's efforts to facilitate plea negotiations do not compel a conclusion of vindictive sentencing. Discussion of when a sentence is vindictive.   Evans v. State, 2D18-515 (9/13/19)


https://www.2dca.org/content/download/536843/5961619/file/180515_65_09132019_08303903_i.pdf


THEFT-VALUE: State fails to establish that the value of the stolen cell phone is in excess of $100 where it did not present direct testimony of value or, alternatively, evidence of: (1) original market cost; (2) manner in which property was used; (3) condition of property; and (4) percentage of depreciation of property since purchase).  T.D. v. State, 5D18-773 (9/13/19)


https://www.5dca.org/content/download/536795/5961031/file/180773_1259_09132019_08063274_i.pdf

 


JOA: Where there is contradictory and conflicting testimony, weight of evidence and witness's credibility are questions solely for jury. Conflicting testimony should not be determined on motion for judgment of acquittal.   Anglero v. State, 5D18-1289 (9/13/19)


https://www.5dca.org/content/download/536796/5961043/file/181289_1257_09132019_08120439_i.pdf

 


PRISON RELEASEE REOFFENDER: A certified document that demonstrates Appellant was released from a Connecticut correctional institution within three years of the instant offense does not establish that Defendant was released from a prison sentence instead of from temporary detention. PRR sentence remanded for resentencing without prejudice. Alterisio v. State, 5D18-1821 (9/13/19)


https://www.5dca.org/content/download/536798/5961067/file/181821_1260_09132019_08171535_i.pdf



POST CONVICTION RELIEF: An attorney's failure to move to suppress damaging evidence due to a lack of factual investigation or legal research can constitute deficient performance. Defendant is entitled to having his plea vacated where counsel failed to advise him that he had a valid motion to suppress, and the evidence indicated that he would have prevailed on a motion to suppress based on improper Terry stop.   Madison v. Florida, 5D18-3663 (9/13/19)


https://www.5dca.org/content/download/536803/5961127/file/183663_1260_09132019_08273028_i.pdf

 

EVIDENCE-CREDIBILITY: The finder of fact is not required to believe the testimony of any witness, even if unrebutted.   Hernandez v. Cardenas, 5D19-418 (9/13/19)


https://www.5dca.org/content/download/536804/5961139/file/190418_1257_09132019_08290910_i.pdf

 

POST CONVICTION RELIEF: Where Defendant filed an unsworn motion for postconviction relief, Court must give him an opportunity to correct the deficiency. Acevedo-Soto v. State, 5D19-555 (9/13/19)


https://www.5dca.org/content/download/536805/5961151/file/190555_1259_09132019_08375695_i.pdf

 


SCORESHEET: Where a conviction is vacated due to a double jeopardy violation, the Defendant should be properly sentenced under a scoresheet that does not include points for that vacated conviction.    Termitus v. State, 19-583 (9/13/19)


https://www.5dca.org/content/download/536806/5961163/file/190583_1260_09132019_08312503_i.pdf

TRUANCY: By statute, the superintendent may sign a truancy petition herself without an attorney signing it.   Jenkins v. M.F., 5D19-595 (9/13/19)


https://www.5dca.org/content/download/536809/5961199/file/190595_1260_09132019_08432918_i.pdf

 

SENTENCING-PLEA AGREEMENT: Court may sentence Defendant to consecutive probation where plea agreement is for a recommendation not to impose probation. The Court is not bound by the recommendation.  Jennings v. State, 1D17-4006 (9/12/19)

 

https://www.1dca.org/content/download/536782/5960899/file/174006_1284_09122019_03313583_i.pdf

 

SENTENCE-CONCURRENT-FEDERAL AND STATE: Defendant may not withdraw his plea where his agreement was for him to serve twenty years in state custody concurrent with the ten years he was already serving in federal prison, but he was later transferred to state custody so that his total incarceration would be 30 years. An order providing that a state sentence is to be served concurrently with a federal sentence is really only a recommendation and the discretion to determine how and where the sentence would be served belonged to the Department of Corrections.   Johnson v. State, 1D17-5170 (9/12/19)

 

https://www.1dca.org/content/download/536783/5960911/file/175170_1284_09122019_03332474_i.pdf


EVIDENCE: Facebook photo of the Defendant holding a gun consistent with that used in the crime is admissible.   Barnes v. State, 3D17-1979 (9/11/19)


https://www.3dca.flcourts.org/content/download/536623/5958933/file/171979_809_09112019_10013916_i.pdf


DOUBLE JEOPARDY: Where verdict form and charging document alleged only that the acts of solicitation of a minor via computer and traveling to meet a minor occurred only within a single broad time frame, leaving open the possibility that they only occurred once, double jeopardy precludes being convicted of both, notwithstanding that the evidence supported separate acts.   Howard v. State,1D17-1520 (9/9/19)


https://www.1dca.org/content/download/536418/5956677/file/171520_1287_09092019_09055980_i.pdf

 

POST CONVICTION RELIEF: Defendant is not entitled to post conviction relief for failure of counsel to call three witnesses who were not clearly exculpatory but would have undermined the State's witnesses where the Defendant agreed at trial to the witnesses not being called.   Burkhalter v. State, 1D17-2193 (9/9/19)


https://www.1dca.org/content/download/536419/5956689/file/172193_1284_09092019_09064643_i.pdf

CONSPIRACY: Defendant properly convicted of conspiracy to commit murder where he planned the murder of former prisoner who had bit a correctional officer and fellow Klansman by having a CI working undercover for the FBI inject the victim with a fatal dose of insulin, feign a fishing accident, chop up the body, and or/shoot him, and where the Defendant gloated over the fake picture of the dead body ("Ha-ha, oh, shit. Ha-ha, oh, shit. I love it . . . . good job.").   Moran v. State, 1D17-4074 (9/9/19)

https://www.1dca.org/content/download/536420/5956701/file/174074_1284_09092019_09083671_i.pdf



CONSPIRACY: Defendant properly convicted of conspiracy to commit murder where he planned the murder of former prisoner who had bit a correctional officer and fellow Klansman by having a CI working undercover for the FBI inject the victim with a fatal dose of insulin, feign a fishing accident, chop up the body, and or/shoot him, and where the co-defendant gloated over the fake picture of the dead body ("Ha-ha, oh, shit. Ha-ha, oh, shit. I love it . . . . good job.") The Defendant's participation is sufficient to establish the he participated in the crime with the CI.   Newcomb v. State, 1D17-4440 (9/9/19)

 

https://www.1dca.org/content/download/536421/5956713/file/174440_1284_09092019_09092167_i.pdf

 

RESENTENCING: Court may re-sentence the Defendant to the same sentence as before on remand from appeal where, as here, the defendant was afforded due process.  Salowitz v. State, 1D17-4858 (9/9/19)


https://www.1dca.org/content/download/536422/5956725/file/174858_1284_09092019_09103256_i.pdf

 

POST CONVICTION RELIEF: Claims of trial error cannot be raised on a motion for post-conviction relief. Errors must be raised on direct appeal.   Dunn v. State, 1D17-5278 (9/9/19)


https://www.1dca.org/content/download/536423/5956737/file/175278_1284_09092019_09132813_i.pdf

 

APPEAL-PRESERVATION: Defendant's objection to photo lineup as unduly suggestive is not preserved for appeal when the issue is not clearly raised before the trial court.   Jones v. State, 1D18-1425 (9/9/19)


https://www.1dca.org/content/download/536424/5956749/file/181425_1284_09092019_09143542_i.pdf

PRISON RELEASEE REOFFENDER: Life sentence as PRR is not unconstitutional as Cruel or Unusual merely because the predicate offense was committed when the Defendant was fifteen years old.   Singleton v. State, 1D18-2227 (9/9/19)


https://www.1dca.org/content/download/536425/5956761/file/182217_1284_09092019_09170647_i.pdf

COMPETENCY: Court may not merely rely on expert evaluations that the Defedant is competent before sentencing the Defendant. The Court must make an independent determination of competency.   Bowden v. State, 1D18-2676 (9/9/19)


https://www.1dca.org/content/download/536426/5956773/file/182676_1287_09092019_09192145_i.pdf

 

MOTION TO DISMISS: Court cannot grant a 3.190(c)(4) motion to dismiss where the only evidence is Defendant's DNA from blood found on a shirt weeks after the burglary. A trial court cannot dismiss criminal charges because it concludes that the case will not survive a motion for judgment of acquittal. Even if the state's evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial; the issue cannot be resolved by a rule 3.190(c)(4) motion to dismiss. State v. Fay, 2D18-933 (9/6/19)

 

https://www.2dca.org/content/download/536364/5956269/file/180933_39_09062019_07572834_i.pdf

 

DEATH PENALTY-INSTRUCTIONS: Jury must be instructed that the aggravating factors for the death penalty must be found beyond a reasonable doubt, but not that those those factors outweigh the mitigating circumstances beyond a reasonable doubt. Rogers v. State, SC18-150 (9/5/19)

 

https://www.floridasupremecourt.org/content/download/536301/5955627/file/sc18-150.pdf



EVIDENCE: Letters which the Defendant wrote characterizing himself as a ruthless, cold-blooded, cutthroat gangster are admissible in guilt and penalty phases of death case. Rogers v. State, SC18-150 (9/5/19)

 

https://www.floridasupremecourt.org/content/download/536301/5955627/file/sc18-150.pdf

MITIGATING CIRCUMSTANCES: In imposing death penalty, Court need not expressly articulate why the evidence presented warranted the allocation of a certain weight to a mitigating circumstance.   Rogers v. State, SC18-150 (9/5/19)

https://www.floridasupremecourt.org/content/download/536301/5955627/file/sc18-150.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to object to a jury instruction that the Defendant was not entitled to use deadly force in self-defense if he was engaged in unlawful activity (a misstatement of law at the time). Counsel's ignorance of the law is per se ineffective. However, "to the extent that Mr. Bolduc's claim is based solely on counsel's failure to object to the reading of a standard jury instruction, the claim may be dead on arrival under existing law concerning whether such a failure could ever constitute deficient performance."   Bolduc v. State, 2D18-2734 (9/4/19)

https://www.2dca.org/content/download/536179/5954415/file/182734_114_09042019_08241279_i.pdf

 

EVIDENCE-WILLIAMS RULE: In robbery/murder case, evidence of a separate robbery in close temporal proximity and at the same restaurant chain, conducted with a similar modus operandi is admissible.   Silver v. State, 3D17-2320 (9/4/19)

https://www.3dca.flcourts.org/content/download/536239/5955184/file/172320_809_09042019_03061012_i.pdf

 

HEARSAY-INESCAPABLE INFERENCE: The rule of exclusion of evidence which gives rise to an inescapable inference that a non-testifying witness implicated the Defendant does not apply when the witness testifies. Silver v. State, 3D17-2320 (9/4/19)

 

https://www.3dca.flcourts.org/content/download/536239/5955184/file/172320_809_09042019_03061012_i.pdf

 

POST CONVICTION RELIEF: The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. When a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong.   Williams v. State, 3D18-1547 (9/4/19)

 

https://www.3dca.flcourts.org/content/download/536209/5954776/file/181547_809_09042019_10425433_i.pdf

 

MANDATORY MINIMUM: Three year mandatory minimum for possession of a firearm does not apply absent a jury finding that the Defendant personally possessed the firearm. Allen v. State, 3D-18-2375 (9/4/19)

 

https://www.3dca.flcourts.org/content/download/536212/5954812/file/182375_811_09042019_10523833_i.pdf

 

MANDATORY MINIMUM-FIREARM-CONSECUTIVE SENTENCES: Consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged. If, however, multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory. Hernandez v. State, 3D19-0091 (9/4/19)

 

https://www.3dca.flcourts.org/content/download/536229/5955046/file/190091_807_09042019_04401290_i.pdf


INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL: Because appellate counsel was ineffective for failure to argue improper imposition of consecutive mandatory minimum sentences, which would have placed the case in the pipeline for reversal, Defendant is entitled to resentencing.    Hernandez v. State, 3D19-0091 (9/4/19)

https://www.3dca.flcourts.org/content/download/536229/5955046/file/190091_807_09042019_04401290_i.pdf

 

AUGUST 2019

COMPETENCY: Court must hold competency hearing once counsel has raised the issue of the Defendant's mental competency. Court may make a retrospective determination. Gresham v. State, 5D18-124 (8/30/19)


https://www.5dca.org/content/download/535876/5951495/file/180124_1259_08302019_08132206_i.pdf

 

VOP-HEARSAY: Defendant cannot be found to have violated probation based on his probation officer's testimony that the Defendant had been discharged from the treatment program for fighting, when the probation officer did not witness the fight. Evidence is hearsay.  Cote v. State, 5D18-1562 (8/30/19)

 

https://www.5dca.org/content/download/535877/5951507/file/181562_1260_08302019_08174571_i.pdf

 

POST CONVICTION RELIEF: Court is not entitled to appointment of counsel where the record supported the summary denial of the Defendant's motion for postconviction relief. McCloud v. State, 5D18-2476 (8/30/19)


https://www.5dca.org/content/download/535883/5951579/file/182476_1257_08302019_08443128_i.pdf

 

 

DOUBLE JEOPARDY-KIDNAPPING-MULTIPLE COUNTIES: Double jeopardy precludes multiple convictions for kidnapping when the victim is transported over county lines. When there is no temporal break in the victim's confinement, there is only one single criminal episode of kidnapping. Pursuant to the distinct acts test, a single criminal impulse may be punished only once no matter how long the action may continue.   Watkins v. State, 5D18-3302 (8/30/19)


https://www.5dca.org/content/download/535885/5951603/file/183302_1259_08302019_08504516_i.pdf

 

JUDGE-DISQUALIFICATION: Regardless of whether judge ruled correctly in denying as legally deficient the motion for disqualification, disqualification is required whenever the judge rules on the truth of the facts alleged. When a judge looks beyond the mere legal sufficiency of the motion and attempts to refute the charges of partiality, he has exceeded the proper scope of his inquiry and that basis alone establishes grounds for his disqualification.   Novo v. State, 5D19-2290 (8/30/19)


https://www.5dca.org/content/download/535792/5950538/file/192290_1255_08282019_04020475_i.pdf

 

JUDGE-DISQUALIFICATION: Regardless of whether judge ruled correctly in denying as legally deficient the motion for disqualification, disqualification is required whenever the judge rules on the truth of the facts alleged. When a judge looks beyond the mere legal sufficiency of the motion and attempts to refute the charges of partiality, he has exceeded the proper scope of his inquiry and that basis alone establishes grounds for his disqualification.   Robinson v. State, 5D19-2372


https://www.5dca.org/content/download/535793/5950550/file/192372_1255_08282019_04053960_i.pdf

 

MINOR-LIFE SENTENCE-FINDING BY JURY: Judge, not jury, may determine whether a life sentence is appropriate under the statutory factors in §921.1401.  Serrano v. State, 1D17-3669 (8/30/19)


https://www.1dca.org/content/download/535896/5951741/file/173669_1284_08302019_09321054_i.pdf

SENTENCING-CONSIDERATIONS: Eighth Amendment does not prohibit courts from considering victim-impact evidence in sentencing proceeding for minor facing life imprisonment for homicide. A Miller-type juvenile sentencing hearing is not the functional equivalent of a capital sentencing proceeding so that the categorical exclusion of victim-impact evidence is not required.   Serrano v. State, 1D17-3669 (8/30/19)


https://www.1dca.org/content/download/535896/5951741/file/173669_1284_08302019_09321054_i.pdf


POST CONVICTION RELIEF-TIMELINESS-MAILBOX RULE: Court may not rely upon the case docket in denying 3.850 motion as untimely. Under the mailbox rule, a petition by a pro se inmate is deemed filed at the moment in time when the inmate loses control over the document by entrusting its further delivery or processing to agents of the state. Court's suspicion of altered dates does not defeat consideration of the motion.    Snodgrass III v. State, 1D18-4581 (8/30/19)


https://www.1dca.org/content/download/535900/5951789/file/184581_1287_08302019_09353407_i.pdf

PROBATION-JURISDICTION: Defendant who was lawfully sentenced on various counts stacked counts to three years of prison followed by twelve years of probation (originally ending in 2022), after various violations, cannot be sentenced to five years in prison and two years of probation concurrently on the remaining third degree felonies. Absent imposition of consecutive sentences, jurisdiction cannot extend beyond five years combined.   McLendon v. State, 1D19-3017 (8/30/19)


https://www.1dca.org/content/download/535975/5952680/file/193017_1282_08302019_04300601_i.pdf

 

DNA TESTING: Defendant is not entitled to post conviction DNA testing without showing how DNA testing would create a reasonable probability of his acquittal.   Hester v. State, 19-565 (8/29/19)


https://www.1dca.org/content/download/535809/5950743/file/190565_1284_08292019_09405773_i.pdf

 

SEXUAL OFFENDER-REGISTRATION-REMOVAL: Court may not remove sex offender from registration list based on him only recently being identified as a person subject to resistration.   State v. Brena, 3D19-976 (8/28/19),  State v. Hernandez, 3D19-977 (8/28/19)

 

https://www.3dca.flcourts.org/content/download/535724/5949793/file/190976_807_08282019_10203038_i.pdf

 

https://www.3dca.flcourts.org/content/download/535725/5949805/file/190977_807_08282019_10211147_i.pdf



THE LAW: "Equity follows the law." "[T]he maxim 'equitas sequitur legem' is strictly applicable." "The law is the law."    State v. Brena, 3D19-976 (8/28/19), State v. Hernandez, 3D19-977 (8/28/19)

 

https://www.3dca.flcourts.org/content/download/535724/5949793/file/190976_807_08282019_10203038_i.pdf

 

https://www.3dca.flcourts.org/content/download/535725/5949805/file/190977_807_08282019_10211147_i.pdf

 

JOINDER-RELATED CASES: Tampering with a witness who knows about the Defendant's murder of her roommate and solicitation to murder that witness are properly joined to the original murder case.   Luongo v. State, 4D17-3770 (8/28/19)


https://www.4dca.org/content/download/535706/5949571/file/173770_1257_08282019_08451190_i.pdf

 

JUDGE-DISQUALIFICATION: Where a judge has recused herself because of a personal relationship with an attorney, she must do so in all, not just some of that attorney's cases.  Rosales v. Bradshaw, 4D19-1082 (8/28/19)


https://www.4dca.org/content/download/535712/5949643/file/191082_1704_08282019_09205522_i.pdf


JUVENILE-JURISDICTION: Court has no jurisdiction to re-sentence a juvenile who has turned 20 years of age after his sentence is overturned on appeal for failure to consider a comprehensive evaluation.   J.R. v. State, 4D19-1538 (8/28/19)


https://www.4dca.org/content/download/535713/5949655/file/191538_1704_08282019_09222175_i.pdf

 

SENTENCING-VINDICTIVENESS: 364 day jail sentence after trial, and after Defendant had rejected offer of pretrial diversion, is not vindictive.   Carballo v. State, 3D18-1551 (8/28/19)


https://www.3dca.flcourts.org/content/download/535717/5949709/file/181551_809_08282019_10100056_i.pdf

NEOLOGISM OF THE DAY: "Because the panel majority has muddied the recently repristinated jurisdictional waters established by Churchill. . ."   Hicks v. State, 1D17-1830   (8/23/19)


https://www.1dca.org/content/download/535533/5947612/file/171830_1289_08232019_09400309_i.pdf

 

APPEAL-DISPOSITIVENESS: The test for dispositiveness is whether the appellate decision in favor of either party would end the case.     Hicks v. State, 1D17-1830 (8/23/19)

https://www.1dca.org/content/download/535533/5947612/file/171830_1289_08232019_09400309_i.pdf




PRR-MINOR: Eighth Amendment (Graham and Miller) does not preclude imposition of a prison releasee reoffender (PRR) sentence where the predicate offenses were committed when the Defendant was under the age of eighteen.  Marshall v. State, 1D17-5248 (8/23/19)


https://www.1dca.org/content/download/535581/5948188/file/175248_1284_08232019_01392070_i.pdf



SECOND DEGREE MURDER-JOA: Shooting girlfriend while driving and not immediately seeking medical care is sufficient evidence of malicious intent and ill will to sustain a conviction for second degree murder.   Holmes v. State, 1D18-1700 (8/23/19)


https://www.1dca.org/content/download/535585/5948224/file/181700_1284_08232019_01415498_i.pdf

 


EVIDENCE: Evidence that the Defendant resisted arrest by holding off the SWAT team several days after the crime is admissible as evidence reflecting a consciousness of guilt. Holmes v. State, 1D18-1700 (8/23/19)


https://www.1dca.org/content/download/535585/5948224/file/181700_1284_08232019_01415498_i.pdf


IMPEACHMENT-PAST RECORDED RECOLLECTION: Witness's sworn statement in the state attorney's office is admissible as a past recorded recollection where the witness at trial claim she did not remember certain events.   Roberts v. State, 1D18-1834 (8/23/19)


https://www.1dca.org/content/download/535586/5948236/file/181834_1284_08232019_01430446_i.pdf


JURY POLL: Verdict stands when, during the polling of the jury, one juror responded, when asked if this was her verdict, "Reluctantly." The answer merely expressed some sort of reservation about the decision, but it remained an affirmative answer.   Moore v. State, 1D18-2224 (8/23/19)


https://www.1dca.org/content/download/535587/5948248/file/182224_1284_08232019_01442502_i.pdf

 

EVIDENCE-VIDEO: Detective may identify Defendant from a Wal-mart video when he spent time with the Defendant after the arrest and the Defendant's appearance had changed between arrest and trial. Even 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.   Nolan v. State, 1D18-3026 (8/23/19)


https://www.1dca.org/content/download/535589/5948272/file/183026_1284_08232019_01465057_i.pdf

 

SEXUAL BATTERY-CIRCUMSTANTIAL EVIDENCE: The circumstantial evidence that the Defendant left the Victim's mostly nude dead body in the freezing cold with 36 stab wounds, along with his DNA (semen and blood) on and in her body, and had cut his hand on the day in question is sufficient to establish that the sex was not consensual. The general judgment of acquittal standard, not the special circumstantial evidence standard, applies where there is evidence tending to show that the defendant committed or participated in the crime. Reversed en banc.   Shrader v. State, 2D13-2712 (8/23/19)


https://www.2dca.org/content/download/535539/5947684/file/132712_65_08232019_08295919_i.pdf

 

EN BANC REVIEW: Misapplication of circumstantial evidence standard in sexual battery case with a murdered victim warrants en banc review. Conflict between concepts of circumstantial evidence standard and deferring to the jury.   Shrader v. State, 2D13-2712 (8/23/19)


https://www.2dca.org/content/download/535539/5947684/file/132712_65_08232019_08295919_i.pdf

 

ENTRAPMENT: For subjective entrapment, the defendant has the burden of showing that a government agent induced him to commit the charged offense and that he was not predisposed to commit it. State may use evidence of incidents which had been nolle prossed to show predisposition.   Harris v. State, 5D18-1242 (8/23/19)


https://www.5dca.org/content/download/535513/5947390/file/181242_1257_08232019_08050065_i.pdf

 

SENTENCING-DOWNWARD DEPARTURE: Court may not impose a downward departure based of sentence manipulation absent evidence that State intentionally delayed arrest until Defendant's continuing drug sales scored him mandatory prison. The mere presence of continued transactions cannot serve as competent, substantial evidence to support a finding of sentence manipulation.  Washington v. State, 5D18-1698 (8/23/19)

 

https://www.5dca.org/content/download/535514/5947402/file/181698_1260_08232019_08085207_i.pdf

 

 

FORFEITURE OF BOND-REMISSION:   Bondsman is entitled to remission of forfeiture of bond if the Defendant is timely apprehended or bondsman cooperates in finding the Defendant. #1 Anytime Bail 24/7 Inc. v. State of Florida and Clerk of Court, 5D18-2677 (8/23/19)


https://www.5dca.org/content/download/535517/5947438/file/182677_1260_08232019_08155239_i.pdf


INEFFECTIVE ASSISTANCE: On the face of the record, trial counsel was ineffective for not procuring a non-deadly force self-defense instruction when he displayed but did not fire a firearm during a road rage incident.   Copeland v. State, 5D18-2869 (8/23/19)


https://www.5dca.org/content/download/535518/5947450/file/182869_1260_08232019_08253081_i.pdf

 

SENTENCE REVIEW-MINOR: Upon remand from the Supreme Court, no relief is warranted for the discrepancy of a minor who was prosecuted as an adult having a judicial review after 15 years for his first-degree murder conviction where there was no jury finding that he intended to kill the victim, and after 20 years for his kidnapping conviction. "[I]t is hardly this court's or the trial court's place to depart from the sentencing framework. . . explicitly ordered by the Florida Supreme Court, or to declare its remand order unconstitutional. . .Accordingly, because we conclude that Williams is essentially requesting that our court determine the Florida Supreme Court's earlier remand order to be unconstitutional, which we have no authority to do, we affirm his present sentences." Williams v. State, 5D18-3984 (8/23/19)


https://www.5dca.org/content/download/535521/5947486/file/183984_1257_08232019_08564996_i.pdf



PLEA-VOLUNTARINESS: A plea is not rendered involuntary nor is ineffective assistance of counsel established when the defendant is not informed of every possible ramification or limitation concerning gain time or every possible reduction in time to be served. Sharma v. State, 5D19-146 (8/23/19)


https://www.5dca.org/content/download/535522/5947498/file/190146_1257_08232019_08585020_i.pdf

 

POST CONVICTION RELIEF: Trial court must vacate the Defendant's R.3.800(a) asserting that she does not qualify as a habitual violent felony offender or attached records establishing that the sentence is legal on the face of the record.  Ford v. State, 5D19-990 (8/23/19)


https://www.5dca.org/content/download/535523/5947510/file/190990_1260_08232019_09035621_i.pdf


POST CONVICTION RELIEF: Court may not deny as successive a motion for post conviction relief based on newly discovered evidence where the mother and brother of the victim claimed that someone else had confessed to and bragged about the murder. For determining postconviction claims for newly discovered evidence relating to guilty pleas, the evidence must not have been known at the time of the plea, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence, and the defendant must demonstrate a reasonable probability that, but for the newly discovered evidence, he would not have pleaded guilty and would have insisted on going to trial.   George v. State, 5D19-1047 (8/23/19)


https://www.5dca.org/content/download/535524/5947522/file/191047_1260_08232019_09052961_i.pdf


EXCLUSIONARY RULE-MEDICAL RECORDS: The exclusionary rule does not require that the Defendant's medical records acquired by a lawful search warrant must be suppressed if the police previously violated his constitutional right of privacy by subpoenaeing the same records without notice.   Dinkins v. State, 5D17-1567 (8/23/19)


https://www.5dca.org/content/download/535491/5947135/file/171567_1257_08222019_01255599_i.pdf

 

COLLATERAL CRIMES: In a murder prosecution, evidence of a separate shooting one month before to which the Defendant had pled guilty is admissible when the gun in both instances is shown to be the same. The fact that the Defendant had moved to withdraw his plea in the earlier shooting, specifically to thwart the Williams Rule evidence, does not bar the evidence from being used.   Brown v. State, 1D17-3453 (8/22/19)


https://www.1dca.org/content/download/535465/5946822/file/173453_1284_08222019_10000517_i.pdf



SCORESHEET-OUT OF STATE CONVICTIONS: For scoresheet purposes, Court cannot base its conclusion that the Defendant's out of state conviction was for Accessory after the Fact to Murder based on printouts from South Carolina Clerk showing that the original charge was for murder, corroborated by an article, where the Judgment itself said "Accessory After the Fact to Felony A, B." When the degree of felony or severity level is ambiguous, as here,the prior conviction must be scored at level one.  Taulbee v. State, 1D18-2569 (8/21/19)

 

https://www.1dca.org/content/download/535373/5945687/file/182569_1287_08212019_09065600_i.pdf

 

VOP: Defendant is properly convicted of violating probation where the wrong condition of probation was cited but the Defendant had notice of the wrongful conduct alleged.   Moxey v. State, 3D16-2563 (8/21/19)


https://www.3dca.flcourts.org/content/download/535384/5945831/file/162563_809_08212019_10115266_i.pdf

 

APPEALS: In the absence of a transcript of proceedings, the Court's final judgment will be affirmed. The appellant has the burden of providing the record in dispute.  Diogo v. Diogo, 3D18-1274 (8/21/19)


https://www.3dca.flcourts.org/content/download/535388/5945879/file/181274_809_08212019_10170777_i.pdf

 

POST CONVICTION RELIEF: When a defendant fails to make a showing that any ineffectiveness of counsel would have changed the result, the Court need not determine whether counsel was ineffective.   McGee v. State, 3D18-1921 (8/21/19)


https://www.3dca.flcourts.org/content/download/535391/5945915/file/181921_809_08212019_10204292_i.pdf


RECKLESS DRIVING: Grossly excessive speed (85 in a 45 mph zone) resulting in a fatal accident may constitute reckless driving. Natal v. State, 4D17-1271 (8/21/19)

https://www.4dca.org/content/download/535376/5945729/file/171271_1257_08212019_08562095_i.pdf


FIREARM-MANDATORY MINIMUM: Defendant is subject to mandatory minimum for possession of a firearm during burglary, regardless of its operability.   Brown v. State, 4D17-3492 (8/21/19)


https://www.4dca.org/content/download/535377/5945741/file/173492_1708_08212019_09015444_i.pdf



COLLATERAL CRIMES: Court improperly admitted evidence that the Defendant punched the victim's wife sometime later (an unredacted photo lineup in which the wife in writing identified the Defendant as the one who hit her).  Hudson v. State, 4D18-1715 (8/21/19)

 

https://www.4dca.org/content/download/535398/5945999/file/181715_1709_08212019_09000909_i.pdf

 

JURY INSTRUCTION-SELF-DEFENSE-FORCIBLE FELONY EXCEPTION: Court should not give the forcible felony exception jury instruction where there is no evidence of an underlying felony. Where the Defendant is not committing a separate felony, the instruction invites confusing circular logic. Hudson v. State, 4D18-1715 (8/21/19)

 

https://www.4dca.org/content/download/535398/5945999/file/181715_1709_08212019_09000909_i.pdf


SEARCH AND SEIZURE-GOOD FAITH EXCEPTION-GPS MONITOR: Evidence found because of the GPS Monitor which was illegally placed upon the Defendant (a clerical error by a DOC employee) upon his release from prison is not suppressible. Good Faith Exception.   Maldonado v. State, 4D18-1909 (8/21/19)


https://www.4dca.org/content/download/535378/5945753/file/181909_1257_08212019_09041780_i.pdf

 

RECORDING-PRIVACY: Victim's cell phone recording of argument in her house is admissible where Defendant knew he was being recorded. Defendant did not have a subjective expectation of privacy in his statements when he saw the cell phone in the victim's hand and knew that he was being recorded.    Smiley v. State, 1D18-1792 (8/16/19)


https://www.1dca.org/content/download/535230/5944067/file/181792_1284_08162019_11302868_i.pd
f

 

RECORDING-PRIVACY:     Defendant has no reasonable expectation of privacy in house where he frequently stayed when he had been told to leave. Accordingly, the Victim's cell phone recording of the events in the house is admissible. Defendant's statements during argument after he had been asked to leave do not qualify as "oral communications" protected under the wiretap law because any expectation of privacy under the circumstances is not one society recognizes as reasonable. "Although society generally recognizes as reasonable an expectation of privacy in conversations conducted in a private home. . ., the reasonableness of that expectation presupposes that the speaker has permission to be there in the first place."   Smiley v. State, 1D18-1792 (8/16/19)


https://www.1dca.org/content/download/535230/5944067/file/181792_1284_08162019_11302868_i.pdf


EVIDENCE-STRIKING TESTIMONY: Court may order the Defendant's entire testimony stricken when he becomes argumentative, interrupting, and nonresponsive during cross-examination ("y'all are playing with my life. My life is no joke," "[t]hat's not burglary," etc.)" "Appellant effectively refused to answer the State's questions because his behavior precluded the State from proceeding with its cross-examination and posing further questions."   Wright v. State, 1D18-1956 (8/16/19)


https://www.1dca.org/content/download/535231/5944079/file/181956_1284_08162019_11311369_i.pdf


COLLATERAL CRIMES: Victim's testimony about additional sexual battery and multiple uncharged batteries and aggravated assaults upon her were interwoven with the charged crimes and painted an accurate account of all events, and thus were inextricably intertwined and admissible.   Ansley v. State, 1D18-2091 (8/16/19)


https://www.1dca.org/content/download/535232/5944091/file/182091_1284_08162019_11315962_i.pdf

 

STATEMENTS OF DEFENDANT-CUSTODY: Defendant was not in custody when he went to the police station and confessed to a murder of which the police were unaware.  Barrientos v. State, 2D14-5870 (8/16/19)


https://www.2dca.org/content/download/535193/5943611/file/145870_65_08162019_08312917_i.pdf

 

STATEMENTS OF DEFENDANT-REQUEST FOR COUNSEL: "Um, when you're . . .appointed, uh, an attorney, like, isn't that when you be -- being charged? When you appointed attorney?" is not a clear request for counsel in Detective's response did not constitute steamrolling. Confession is admissible.   State v. Monroe, 2D18-1060 (8/16/19)


https://www.2dca.org/content/download/535217/5943905/file/181060_39_08162019_08325177_i.pdf


JOA-TAMPERING-CIRCUMSTANTIAL EVIDENCE:   Evidence that the Defendant in jailhouse calls asked gang members to handle a witness against him in a separate case, and the witness is later killed, is sufficient circumstantial evidence to justify the Defendant's conviction for tampering, at least if motion for judgment of acquittal is not fully articulated.     Motion for Judgment of Acquittal must specifically argue that the circumstantial evidence was insufficient.     Hudson v. State, 1D17-3593 (8/14/19)


https://www.1dca.org/content/download/534990/5941363/file/173593_1284_08142019_09415065_i.pdf

 

 

SECOND DEGREE MURDER:   Evidence that the Defendant shot his girlfriend with his gun against her head, then drove around with her body in the trunk for days is sufficient evidence to establish second degree murder.    Mackey v. State, 1D17-4086 (8/14/19)


https://www.1dca.org/content/download/534991/5941375/file/174086_1284_08142019_09572911_i.pdf

 

EVIDENCE: Evidence of the exhumation of the body of the victim who had been buried in a sleeping bag under a pile of decorative rocks is admissible to show the Defendant's state of mind, specifically, that his actions were not due to early-onset Alzheimer's.  Mackey v. State, 1D17-4086 (8/14/19)


https://www.1dca.org/content/download/534991/5941375/file/174086_1284_08142019_09572911_i.pdf

 


MINOR-LIFE SENTENCE-NONHOMICIDE: The fact that a minor who does not commit a homicide can be sentenced to a life sentence with a sentence review after twenty years but a minor who commits a homicide can be sentenced to a life sentence with a review after only fifteen years does not render the review statutes arbitrary or a violation of Equal Protection.  Graham v. State, 1D18-2664 (8/14/19)


https://www.1dca.org/content/download/534993/5941399/file/182664_1284_08142019_09592242_i.pdf


DOUBLE JEOPARDY: Convictions for first-degree felony murder and aggravated battery on a law enforcement officer violate double jeopardy under the merger doctrine. The legislature did not intend dual convictions for the same lethal act. It is error to instruct the jury on a nonhomicide offense as a lesser offense to a homicide offense.   Barnett v. State, 2D17-379 (8/14/19)


https://www.2dca.org/content/download/535055/5942167/file/170379_114_08142019_08195204_i.pdf

 

APPEALS-INEFFECTIVE APPELLATE COUNSEL: Appellate counsel was not ineffective for failing to argue on appeal that dual convictions for solicitation and traveling after solicitation violate double jeopardy where the case so holding (Shelley) was not decided until four months after counsel filed his initial brief.   Morejon-Medina v. State, 2D18-3539 (8/14/19)


https://www.2dca.org/content/download/535058/5942209/file/183539_405_08142019_08231271_i.pdf

 


DOUBLE JEOPARDY: Dual convictions for solicitation and traveling after solicitation violate double jeopardy. In order to sustain dual convictions, the charging document itself must foreclose any possibility that the solicitation underlying the traveling charge was the same as that underlying the solicitation charge. Because double jeopardy is fundamental, one of the convictions must be vacated. Morejon-Medina v. State, 2D18-3539 (8/14/19)

 

https://www.2dca.org/content/download/535058/5942209/file/183539_405_08142019_08231271_i.pdf

 

POST CONVICTION RELIEF: Court must give Defendant an evidentiary hearing, or attach portions of the record supporting denial, on claim that State improperly commented on his right to remain silent by arguing that the Defendant "doesn't give you a reason not to believe [the State's main witness;] he gives you a reason to believe everything [the State's main witness] says."   Perez Perez v. State, 2D18-3561 (8/14/19)


https://www.2dca.org/content/download/535059/5942221/file/183561_114_08142019_08244442_i.pdf


POST CONVICTION RELIEF: Court erred in dismissing Defendant's motion for post conviction relief on grounds that Defendant did not pay a "preparation fee" totaling $925.30 where the Defendant claims he never got the order in the record reflects that if he got it, he did not get it in a timely manner.   Rogers v. State, 2D18-3799 (8/14/19)


https://www.2dca.org/content/download/535060/5942233/file/183799_167_08142019_08271696_i.pdf

 

JURY INSTRUCTION-SELF-DEFENSE: Court does not err in failing to instruct on self-defense where there was no evidence that the defendant was protecting himself, or the only error suggesting self-defense was presented for impeachment purposes only.  Hudson v. State, 3D18-500 (8/14/19)

https://www.3dca.flcourts.org/content/download/535071/5942371/file/180500_809_08142019_10331895_i.pdf

 

BATTERY BY STRANGULATION: The State need not prove great bodily harm to establish the crime of domestic battery by strangulation; instead, the State can prove this crime by establishing defendant's actions created a risk of great bodily harm. Lopez-Macaya v. State, 3D18545 (8/14/19)


https://www.3dca.flcourts.org/content/download/535021/5941753/file/180545_809_08142019_10124479_i.pdf

POST CONVICTION RELIEF: In order to establish grounds for relief based on ineffective assistance of counsel, the Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. hen a defendant fails to make a showing as to one prong of Strickland, it is not necessary to delve into whether he has made a showing as to the other prong.   Ryland v. State, 3D18-1222 (8/14/19)


https://www.3dca.flcourts.org/content/download/535023/5941777/file/181222_809_08142019_10171624_i.pdf


POST CONVICTION RELIEF: Where the trial court denies a timely rule 3.850 motion as insufficient on its face, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.  Smith v. State, 3D18-2319 (8/14/19)

 

https://www.3dca.flcourts.org/content/download/535027/5941825/file/182319_812_08142019_10221325_i.pdf



POST CONVICTION RELIEF: While the Florida Supreme Court's decision to accept or deny a petition for discretionary review is pending, the two-year period for filing a postconviction relief motion pursuant to Rule 3.850(b) is tolled. Court erred by dismissing the Defendant's motion for post conviction relief as untimely.   Hanna v. State, 3D19-1239 (8/14/19)


https://www.3dca.flcourts.org/content/download/535032/5941885/file/191239_812_08142019_10315799_i.pdf

 

RECLASSIFICATION-FIREARM: Third-degree murder conviction cannot be reclassified from a second-degree felony to a first-degree felony where the conviction was predicated on the underlying felonies of aggravated assault with a deadly weapon and aggravated battery with a deadly weapon, for which the use of a weapon was an essential element of the offenses.   Wiley v. State, 4D19-587 (8/14/19)


https://www.4dca.org/content/download/535007/5941573/file/190587_1709_08142019_09183958_i.pdf

 

PUBLIC RECORDS-JAIL VISITATION LOGS: Defendant cannot keep the State from looking at the jail visitation logs in order to keep the State from knowing which experts have visited with him. Jail visitation logs of public records subject to no relevant exemptions.     Cruz v. State, 4D19-1321 (8/14/19)


https://www.4dca.org/content/download/535009/5941597/file/191321_1703_08142019_09261834_i.pdf


WAIVER OF APPEARANCE-CALENDAR CALL: Court must accept waivers of appearance at calendar calls and pretrial conferences absent the Court making a specific articulation of what would be achieved if the Defendant appeared.   Lopez Hernandez v. State, 4D19-1413 (8/14/19)


https://www.4dca.org/content/download/535010/5941609/file/191413_1704_08142019_09293735_i.pdf


WAIVER OF APPEARANCE-CALENDAR CALL: Court must accept waivers of appearance at calendar calls and pretrial conferences absent the Court making a specific articulation of what would be achieved if the Defendant appeared.   Banos v. State, 4D19-1413 (8/14/19)

https://www.4dca.org/content/download/535011/5941621/file/191413_1704_08142019_09293735_i.pdf


DEATH PENALTY: Defendant's motion for post conviction relief based on intellectual disability is procedurally barred for not having been timely raised.   Bowles v. State, SC19-1184 (8/13/19)


https://www.floridasupremecourt.org/content/download/534829/5940094/file/sc19-1184__AUG13_EXPEDITED.pdf

 

DEATH PENALTY-PUBLIC RECORDS: Defendant's public records request made after his death warrant is signed may be denied when the Defendant cannot articulate how they would lead to the discovery of admissible evidence relevant to a colorable claim for relief. Bowles v. State, SC19-1184 (8/13/19)


https://www.floridasupremecourt.org/content/download/534829/5940094/file/sc19-1184__AUG13_EXPEDITED.pdf


COMPETENCY: Court must conduct an adequate competency hearing prior to ruling on whether the Defendant has been restored to competency.  Davis v. State, 1D17-4366 (8/13/19)


https://www.1dca.org/content/download/534824/5940034/file/174366_1286_08132019_09502911_i.pdf

 

SENTENCING-GUIDELINES: When the statutory maximum is exceeded by the lowest permissible sentence under the code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.  Abruscato v. State, 1D18-436 (8/13/19)


https://www.1dca.org/content/download/534828/5940082/file/184316_1284_08132019_10002620_i.pdf

BEST EVIDENCE RULE: Where video is not recoverable, the Best Evidence Rule does not barred testimony of witnesses about what was on the video.    Savell v. State, 1D19-0136 (8/13/19)


https://www.1dca.org/content/download/534830/5940106/file/190136_1281_08132019_10062231_i.pdf

PRESERVATION OF ISSUE-PROFFER: Where Proponent of the testimony about what was seen on the irrecoverable video failed to proffer that testimony, the exclusion of that evidence under the Best Evidence Rule is not reviewable on appeal.   Savell v. State, 1D19-0136 (8/13/19)


https://www.1dca.org/content/download/534830/5940106/file/190136_1281_08132019_10062231_i.pdf

SEX OFFENDERS-INTERNET: Sex offenders under supervision may be denied access access to the internet.  Packingham only applies to sex offenders who have finished serving their sentence.   Burnsed v. Florida Commission on Offender Review, 1D17-1281 (8/9/19)


https://www.1dca.org/content/download/534695/5938540/file/175063_1281_08092019_10481568_i.pdf

 

POST CONVICTION RELIEF:   Defendant is entitled to a hearing on claim that counsel was ineffective for failing to call the codefendant as a witness.   Question certified: Does a defendant have to allege a basis for knowing that an uncalled witness would testify favorably in order to present a legally sufficient claim in a Rule 3.850 motion. "It is simply too easy for a convicted defendant to make vague and very possibly speculative allegations concerning how a codefendant would testify. Requiring a defendant to. . .specify how he knows the codefendant would have testified in a certain manner places very little additional burden on the defendant."   Livingston v. State, 18-895 (8/9/19)


https://www.1dca.org/content/download/534710/5938732/file/180895_1287_08092019_10560027_i.pdf

 

PUBLIC RECORDS: Records related to the physical security of a State correctional facility are exempt from disclosure under Florida's public records laws.   Florida DOC v. Miami Herald, 1D18-1324 (8/9/19)


https://www.1dca.org/content/download/534712/5938756/file/181324_1287_08092019_11010984_i.pdf

 

 

HABEAS CORPUS:  A petition for habeas corpus is intended to address issues regarding a defendant's incarceration. It may not be used to collaterally attack a judgment and sentence.   Maxwell v. Inch, 1D18-3695 (8/9/19)


https://www.1dca.org/content/download/534713/5938768/file/183695_1284_08092019_11045939_i.pdf

 

CREDIT FOR TIME SERVED-APPEAL-JURISDICTION: Court may rule on motion to correct credit for time served during the pendency of an appeal on an unrelated issue.   An appeal of a postconviction relief matter will not deprive trial courts of jurisdiction so long as the issues raised in the two cases are unrelated.   Cannie v. State, 1D18-4239 (8/9/19)

 

https://www.1dca.org/content/download/534717/5938822/file/184239_1287_08092019_11082216_i.pdf

 

HEARSAY-EXCITED UTTERANCE: Voicemail from the Defendant's mother to the victim begging her not to go to the house where the Defendant would attempt to murder her is admissible as an excited utterance.   Baity v. State, 1D18-4268 (8/9/19)

 

https://www.1dca.org/content/download/534719/5938852/file/184268_1284_08092019_11161002_i.pdf

 

COSTS: Court may not impose a $65 assessment pursuant to Fla.Stat. 939.185 ("The board of county commissioners may adopt by ordinance an additional court cost, not to exceed $65, to be imposed. . .when a person pleads. . .to, or is found guilty of. . . any felony, misdemeanor, delinquent act, or criminal traffic offense.") without indicating the applicable county ordinance.  Summers v. State, 2D17-3134 (8/9/19)


https://www.2dca.org/content/download/534698/5938582/file/173134_65_08092019_08362499_i.pdf


POST CONVICTION RELIEF-EXPERT: Counsel was not ineffective for failing to "engage in a highly scientific, medicolegal, battle of the experts" unit child homicide case. "[T]he decision to go with a straightforward causation defense, as opposed to a scientific 'battle of the experts,' was a reasonable trial strategy."   Ray v. State, 5D18-1277 (8/9/19)


https://www.5dca.org/content/download/534682/5938398/file/181277_1257_08092019_08274763_i.pdf

 

POST CONVICTION RELIEF:   "If a defendant fails to establish one prong of the Strickland standard, there is no need for the court to examine whether she made a showing as to the other prong."   Ray v. State, 5D18-1277 (8/9/19)


https://www.5dca.org/content/download/534682/5938398/file/181277_1257_08092019_08274763_i.pdf

 

STATEMENTS OF DEFENDANT-MIRANDA-CUSTODY: Defendant was in custody at the police station when she knew she was a runaway, that her house which was being searched contained evidence of crime, and her codefendants were being questioned about their role in the homicide, and when she was under video surveillance, required an escort,, and officers responded without urgency to her requests to leave the room.   Rios v. State, 5D18-1817 (8/9/19)

 

https://www.5dca.org/content/download/534683/5938410/file/181737_1260_08092019_08323073_i.pdf

 

STATEMENTS OF DEFENDANT-MIRANDA-INTERROGATION: "[B]y the time Detective McElroy, for whatever purpose, asked Appellant, 'Okay did you fire the trigger? Or pull the trigger?' the encounter became a custodial interrogation requiring Miranda warnings. A reasonable person would conclude that Detective McElroy's yes or no question was intended to lead to an incriminating response about the specific crime."    Rios v. State, 5D18-1817 (8/9/19)


https://www.5dca.org/content/download/534683/5938410/file/181737_1260_08092019_08323073_i.pdf

 

STATEMENTS OF DEFENDANT-MIRANDA: Post-Miranda statements in her third interrogation must be suppressed when police had improperly questioned her without Miranda twice before and the Detective downplayed the significance of Miranda ("a couple of formalities.").   Rios v. State, 5D18-1817 (8/9/19)


https://www.5dca.org/content/download/534683/5938410/file/181737_1260_08092019_08323073_i.pdf


CROSS-EXAMINATION: Defendant is entitled to bring information about the deferred prosecution agreement between the State and the Victim before the jury to attack the victim's credibility by showing her potential bias in favor of the State. "Defendants may cross-examine a witness about the conditions of a plea bargain entered into between the state and the witness . . .[including] inquiry into the specific nature of the pending charges against a cooperating state witness, and how the pending criminal charges may have influenced the witness's cooperation with the state and the content of incourt statements. Monts v. State, 5D18-3763 (8/9/19)

 

https://www.5dca.org/content/download/534687/5938458/file/183763_1257_08092019_08471707_i.pdf

 

HABITUAL OFFENDER-EX POST FACTO-WITHHOLD OF ADJUDICATION: A withhold adjudication can be the basis for habitualization, notwithstanding that at the time the withhold adjudication was imposed the law did not so allow.   Vilsaint v. State, 3D18-2570 (8/7/19)


https://www.3dca.flcourts.org/content/download/534485/5936363/file/182570_809_08072019_10110860_i.pdf

 

POST CONVICTION RELIEF: Defendant must be given leave to amend a facially legally insufficient motion for post conviction relief pursuant to R. 3.850.   McCray v. State, 3D19-76 (8/7/19)


https://www.3dca.flcourts.org/content/download/534486/5936375/file/190076_812_08072019_10120713_i.pdf


MINOR-LIFE SENTENCE-HOMICIDE: Defendant who was a minor at the time of the homicide, convicted for his role in a carjacking homicide in which it is not clear that he was the one who pulled the trigger and in which the verdict did not specify that the first-degree murder verdict was based on the theory of felony murder or premeditation, the Court may not find that the Defendant actually intended to kill. Defendant is entitled to a sentence review after 15 years, and is not subject to the 40 year minimum mandatory.  Puzio v. State, 4D17-3034 (8/7/19)


https://www.4dca.org/content/download/534503/5936603/file/173034_1708_08072019_08514260_i.pdf

SENTENCING-CONSIDERATIONS-UNCHARGED CRIMES: A trial court may not consider subsequent, uncharged misconduct (here, that he "wished to harm" a witness) when sentencing a defendant for the primary offense. "While the trial court made no comment indicating that it had considered appellant's subsequent misconduct in imposing sentence, the prosecutor's recommendation at the sentencing hearing relied heavily upon the evidence of appellant's post-arrest misconduct."   Garcia v. State, 4D17-3751 (8/7/19)

 

https://www.4dca.org/content/download/534504/5936615/file/173751_1708_08072019_08550408_i.pdf

 

SEARCH AND SEIZURE-WARRANT-VEHICLE: Court does not need to determine whether a driveway as part of the curtilage of a house because a vehicle is a "conveyance," and the warrant authorized the search of any conveyance on the property. Price v. State, 4D18-1293 (8/7/19)

 

https://www.4dca.org/content/download/534505/5936627/file/181293_1708_08072019_08565275_i.pdf


SENTENCING-CONSIDERATIONS: In sentencing the Defendant for possession of marijuana, the Court improperly considered his arrest on a new misdemeanor marijuana charge a week before sentencing. Price v. State, 4D18-1293 (8/7/19)

 

https://www.4dca.org/content/download/534505/5936627/file/181293_1708_08072019_08565275_i.pdf

 

SPECIFIC INTENT-PATIENT BROKERING: Patient brokering is not a specific intent crime. The term "knowingly and willingly" does not equate to specific intent.   State v. Kigar, 4D19-0600 (8/7/19)


https://www.4dca.org/content/download/534509/5936675/file/190600_1704_08072019_09060286_i.pdf


ADVICE OF COUNSEL DEFENSE: The "advice of counsel" defense only applies to crimes of specific intent.   State v. Kigar, 4D19-0600 (8/7/19)


https://www.4dca.org/content/download/534509/5936675/file/190600_1704_08072019_09060286_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to investigate and failing to inform him that he could have filed a motion to suppress the warrantless entry into his home.   Pembleton v. State, 1D18-3289 (8/5/19)

 

https://www.1dca.org/content/download/534329/5934877/file/183289_1286_08052019_09404180_i.pdf

 

 

POST CONVICTION RELIEF: Defendant cannot challenge PRR sentence based on Lewars (PRR does not apply to people released from jail, not prison) pursuant to R.3.850 outside the two year time limit. Lewars does not apply retroactively. Defendant is not barred from attempting to assert his claim under R. 3.800 if its applicability is apparent from the face of the record.   Wilson v. State, 2D17-3161 (8/2/19)

https://www.2dca.org/content/download/534243/5934096/file/173161_65_08022019_08405448_i.pdf

 

RESISTING WITHOUT VIOLENCE-ENTRY INTO MOTEL ROOM: Police may not make a warrantless entry into it a hotel room to arrest the Defendant for domestic violence. It is unlawful for the police to make a warrantless entry into a place protected by the Fourth Amendment for the purpose of arresting a suspect unless an exception to the warrant requirement applies.   Nieves v. State, 2D18-613 (8/2/19)


https://www.2dca.org/content/download/534244/5934108/file/180613_39_08022019_08460555_i.pdf

 


POST CONVICTION RELIEF:     Defendant is entitled to a hearing on claim that counsel was ineffective for failing to call three witnesses to impeach the State's key witness.    Foster v. State, 2D18-2136 (8/2/19)


https://www.2dca.org/content/download/534245/5934120/file/182136_114_08022019_08491835_i.pdf

 

DOUBLE JEOPARDY-UNIT OF PROSECUTION:   Under the the Grappin "a/any" test, only one conviction is possible for having one's girlfriend hand out flyers to three potential jurors intended to influence them on the day of jury selection. "When the article 'a' is used. . .in the text of the statute,. . .each discrete act constitutes an allowable unit of prosecution. . .On the other hand,. . .the adjective 'any' indicates an ambiguity that may require application of the rule of lenity."   Gammage v. State, 2D18-2954 (8/2/19)


https://www.2dca.org/content/download/534249/5934180/file/182954_39_08022019_09012427_i.pdf


POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Defendant is entitled to a hearing on claim that a second eye witness did not see the gun or hear the Defendant demand the Victim's jewelry. Court's conclusion that the new evidence would not have changed the outcome is not supported by attached records.   Johnson v. State, 2D18-3173 (8/2/19)


https://www.2dca.org/content/download/534250/5934192/file/183173_39_08022019_09035098_i.pdf

 

POST CONVICTION RELIEF: Counsel was ineffective for not objecting to the state pointing out the Defendant's wife's off-the-stand reaction to his testimony.  Romero v. State, 5D18-3004 (8/2/19)


https://www.5dca.org/content/download/534204/5933759/file/183004_1259_08022019_09492583_i.pdf

 

POST CONVICTION RELIEF:     Defendant is entitled to a hearing on claim the counsel is ineffective for failing to subpoena a witness who testified at the first trial (a hung jury). Chester v. State, 5D18-3930 (8/2/19)


https://www.5dca.org/content/download/534205/5933771/file/183930_1259_08022019_09513946_i.pdf

POST CONVICTION RELIEF: Rule 3.800(a) does not prohibit a defendant from filing successive motions, but the doctrine of collateral estoppel precludes a defendant from raising in a successive rule 3.800(a) motion an issue argued and determined in a prior motion. Tipsy Coachman doctrine applies to a Rule 3.800(a) motion that had been incorrectly denied as successive.   White v. State, 19-1637 (8/2/19)


https://www.5dca.org/content/download/534208/5933807/file/191637_1257_08022019_09562050_i.pdf

 

10-20-LIFE-STATUTORY MAXIMUM: Although aggravated battery with a firearm is a second-degree felony, punishable by up to fifteen years in prison, when the jury makes a specific factual finding that the Defendant discharged a firearm resulting in great bodily harm, the Defendant must be sentenced to a 25 year minimum mandatory, but cannot be sentenced to 30 years in prison by reclassification of the felony.  Aggravated battery with a firearm is not subject to reclassification to a first-degree felony because the use of a firearm is an essential element of the crime.   Wynn v. State, 5D19-2018 (8/2/19)


https://www.5dca.org/content/download/534210/5933831/file/192018_1260_08022019_10003658_i.pdf



APPEAL-MOTION FOR NEW TRIAL: Where it is unclear whether the trial court used the correct standard to deny a motion for new trial, the potential that the trial court erred does not reach the level of fundamental error.   Williams v. State, 1D17-4593 (8/1/19)


https://www.1dca.org/content/download/534127/5932799/file/174593_1284_08012019_08591939_i.pdf


STATEMENT OF DEFENDANT: Defendant who is represented by counsel may be interrogated by police if he reaches out to them without informing his attorney and affirmatively waives his attorney's presence.  Eversole v. State, 1D18-3659 (8/1/19)

 

https://www.1dca.org/content/download/534130/5932835/file/183659_1284_08012019_09055164_i.pdf

 

PRISON RELEASEE REOFFENDER: Prison Releasee Reoffender statute does not violate  Alleyne or Apprendi.      Hill v. State, 1D19-1077 (8/1/19)


https://www.1dca.org/content/download/534132/5932859/file/191077_1284_08012019_09072584_i.pdf

 

JULY 2019



SEARCH AND SEIZURE: An unauthorized driver of a rental car has standing to challenge a search of that rental car.  Jeansimon v. State, 2D17-4020 (7/31/19)


https://www.2dca.org/content/download/534100/5932456/file/174020_39_07312019_09051453_i.pdf

 

SHIFTING BURDEN OF PROOF: State improperly shifts burden of proof by asking Defendant why the people who he claimed owned the drugs would not "come in here and claim" them. Jeansimon v. State, 2D17-4020 (7/31/19)

 

https://www.2dca.org/content/download/534100/5932456/file/174020_39_07312019_09051453_i.pdf

 

ARGUMENT: Prosecutor may not ask why an officer would make up a lie and sacrifice his career by perjuring himself.   Jeansimon v. State, 2D17-4020 (7/31/19)


https://www.2dca.org/content/download/534100/5932456/file/174020_39_07312019_09051453_i.pdf


SEARCH AND SEIZURE-STANDING-HOTEL ROOM: Occupant of a hotel room has standing to contest search regardless whether he himself paid for the room. "The State offers no case demonstrating that standing hinges on who paid for the room."  State v. M.B.W., 2D17-4149 (7/31/19)

https://www.2dca.org/content/download/534101/5932468/file/174149_65_07312019_09065778_i.pdf


SEARCH AND SEIZURE-EXIGENT CIRCUMSTANCES: After lawfully arresting Defendant and removing him from the hotel room, officers lack exigent circumstances to re-enter the room to pursue another occupant who fled to a back room. "The exigent circumstances exception is not a shortcut by which police may circumvent the requirement of a search warrant."  State v. M.B.W., 2D17-4149 (7/31/19)

https://www.2dca.org/content/download/534101/5932468/file/174149_65_07312019_09065778_i.pdf

 

SEARCH AND SEIZURE-PROTECTIVE SWEEP: After lawfully arresting Defendant and removing him from theo hotel room, officers may not perform a protective sweep after another occupant fled to a back room.   State v. M.B.W., 2D17-4149 (7/31/19)

https://www.2dca.org/content/download/534101/5932468/file/174149_65_07312019_09065778_i.pdf

DISCOVERY VIOLATION: State commits discovery violation when it discloses a witness but fails to disclose that the witness's testimony has changed or is substantially different than what the police report indicates. The State's discovery violation is not cured by the Defendant's failure to depose the witness. State commits a discovery violation when it provides the defendant with a witness's "statement" and thereafter fails to disclose that the witness intends to change that statement to such an extent that the witness is transformed from a witness who "didn't see anything" into an eyewitness who observed the material aspects of the crime charged.   J.S. v. State, 2D18-1221 (7/31/19)

 

https://www.2dca.org/content/download/534102/5932480/file/181221_39_07312019_09093401_i.pdf

 

DOUBLE JEOPARDY: An information is not fundamentally defective where it alleged two counts of violating the same statute, using identical language and relying upon the same two-year range of dates for the commission of both offenses. "Had [Defendant] believed that the time frames (or other allegations). . .were so vague and indefinite as to mislead or hamper him. . . or expose him to the possibility of multiple convictions and punishments for violating the same statute by a single act, he should have filed a motion to dismiss or for a statement of particulars."   Pena-Vazquez v. State, 3D16-2358 (7/31/19)


https://www.3dca.flcourts.org/content/download/534069/5932072/file/162358_809_07312019_09540808_i.pdf


EVIDENCE-REDACTION OF INTERROGATION: False exculpatory statements of Defendant (I never knew the victim) are admissible to show consciousness of guilt. Redaction of video to dlete references to other victims does not unfairly prejudice to Defendant who wishes to assert that he was mistaken as to which victim when making inculpatory statements. State v. Martin, 3D18-945 (7/31/19)

 

https://www.3dca.flcourts.org/content/download/534071/5932096/file/180945_812_07312019_09562916_i.pdf


EXPERT-DAUBERT: Under Daubert, judge must determine whether purported expert testimoy is scientifically valid and properly applied. Court must consider (1) whether the theory can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of a particular scientific technique, as well as the existence of standards controlling the technique's operation; and (4) general acceptance in the scientific community. Trooper's testimony that the vehicle was dipping down due to braking fails Daubert.    Kemp v. State, 4D15-3472 (7/31/19)


https://www.4dca.org/content/download/534112/5932612/file/153472_1709_07312019_09083631_i.pdf


VETERAN'S COURT: Is a defendant who satisfies the criteria for eligibility into veterans' court entitled to admission, or does a judge have discretion to deny admission of a case-by-case basis?   Question certified.   Simeone v. State, 4D18-3470 (7/31/19)


https://www.4dca.org/content/download/534121/5932720/file/183470_1711_07312019_09323203_i.pdf


SENTENCING: Argument of Defendant (who stole a newborn infant from a Jacksonville hospital and fled to South Carolina where she raised the child) that an eighteen year old sentence is unreasonable and/or cruel and unusual punishment lacks merit.   Williams v. State, 1D18-2898 (7/29/19)


https://www.1dca.org/content/download/533996/5931237/file/182898_1284_07292019_08270880_i.pdf

 

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that State committed a Giglio violation by presenting false testimony. Although inconsistencies between witnesses is not a Giglio violation, in the absence of attachments to the record rebutting the Defendant's claims, a hearing is required.  Helvey v. State, 5D18-1487 (7/26/19)

https://www.5dca.org/content/download/533934/5930453/file/181487_1259_07262019_08483241_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failing to object to a jury instruction on recently stolen property, and for misadvising him that, were he to testify, the jury would learn the nature of the Defendant's prior convictions. Helvey v. State, 5D18-1487 (7/26/19)

https://www.5dca.org/content/download/533934/5930453/file/181487_1259_07262019_08483241_i.pdf

 

SEARCH AND SEIZURE-CONSENSUAL ENCOUNTER: Detention is illegal when officer orders group of youths to stop based on a (correct) hunch that they had violated court-imposed curfew.  This was not a consensual encounter. Officer cannot detain a youth who said he didn't have to stop when the officer originally told him, without legal justification,  to do so.   N.J. v. State, 5D18-1949 (7/26/19)

https://www.5dca.org/content/download/533935/5930465/file/181949_1260_07262019_08503797_i.pdf

 

DWLS:   One who has never had a driver's license cannot be found guilty of DWLS.  Geiger v. State, 5D18-2146 (7/26/19)


https://www.5dca.org/content/download/533936/5930477/file/182146_1260_07262019_08531186_i.pdf


POST CONVICTION RELIEF
:   Defendant is entitled to a hearing on claim that counsel was ineffective for failure to call a computer expert to testify about how malware could lead to inadvertent downloading of child pornography.   Motion does not need to name a specific expert who should have been called. Davidson v. State, 5D18-2655 (7/26/19)

 

https://www.5dca.org/content/download/533940/5930531/file/182655_1259_07262019_09030140_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for advising him to reject the plea offer of 30 years in prison.   Hickson v. State, 5D19-888 (7/26/19)


https://www.5dca.org/content/download/533943/5930567/file/190888_1260_07262019_09190552_i.pdf

 

POST CONVICTION RELIEF:     Defendant is entitled to a hearing on claim that counsel was ineffective for failing to advise them of the possibility of a youthful offender sentence. Redden v. State, 5D19-1369 (7/26/19)

 

https://www.5dca.org/content/download/533944/5930579/file/191369_1260_07262019_09212575_i.pdf

 

CIRCUMSTANTIAL EVIDENCE:  Victim's car is broken in to while next to the Defendant's car when the victim dropped her dogs off at the kennel. The stolen property is found in the Defendant's room and the Victim's credit card in his car. JOA required. "Although the State's evidence was sufficient to establish that a vehicle rented to Joseph was involved in the burglary, and that his fingerprints were found on papers located in the vehicle and in Wilkerson's spare bedroom, the uncontroverted evidence was that Joseph was not the only individual who used the car during the rental term or used the spare bedroom."  Joseph v. State, 5D17-3907 (7/25/19)


https://www.5dca.org/content/download/533925/5930352/file/173907_1260_07252019_03565766_i.pdf

 

POSSESSION OF RECENTLY STOLEN PROPERTY: State is not entitled to the inference of guilt arising from the Defendant's possession of recently stolen property where the possession is not exclusive.   Joseph v. State, 5D17-3907 (7/25/19)

https://www.5dca.org/content/download/533925/5930352/file/173907_1260_07252019_03565766_i.pdf

 

COSTS: Court erred in imposing FDLE Operating Trust Fund cost without orally pronouncing it. Montanez v. State, 5D18-193 (7/25/19)

https://www.5dca.org/content/download/533880/5929872/file/180193_1259_07252019_08580982_i.pdf

 

MINOR-SENTENCE REVIEW: Juvenile Defendant who was originally sentenced in 1988 was entitled to a sentence review in 2019 notwithstanding that he had been resentenced in 2017, where it is not clear that in 2017 the Court actually conducted a proper sentence review.   Weiand v. State, 5D19-500 (7/25/19)


https://www.5dca.org/content/download/533918/5930267/file/190500_1260_07252019_02143067_i.pdf

 

SEX OFFENDERS-PROBATION CONDITIONS: Condition of probation or supervised release barring Defendant from accessing the internet is lawful. Packingham, recognizing a constitutional right to internet access for sex offenders, only applies to sex offenders not on probation. Alford v. State, 2D17-4982 (7/24/19)

https://www.2dca.org/content/download/533826/5929193/file/174982_65_07242019_08253887_i.pdf


CIRCUMSTANTIAL EVIDENCE: Evidence is insufficient to establish that the Defendant burglarized and stole property from a school where a cigarette butt with the Defendant's DNA was left at the scene and the Defendant and associate were found a few weeks later in a pickup truck owned by the Defendant with some of the stolen property. An accused's mere presence at the scene does not eliminate a reasonable hypothesis that someone other than the accused committed the crime. Joint possession of the stolen property is also legally insufficient to establish guilt. "Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact. . .Circumstantial evidence is evidence which involves an additional inference to prove the material fact." Dobbins v. State, 2D18-401 (7/24/19)


https://www.2dca.org/content/download/533827/5929205/file/180401_39_07242019_08293085_i.pdf

 

CIRCUMSTANTIAL EVIDENCE DEFINED: "Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact; e.g., 'I saw A shoot B' is direct evidence that A shot B. Circumstantial evidence is evidence which involves an additional inference to prove the material fact; e.g., 'I saw A flee the scene', is circumstantial evidence of A's guilt and direct evidence of flight."   Dobbins v. State, 2D18-401 (7/24/19)


https://www.2dca.org/content/download/533827/5929205/file/180401_39_07242019_08293085_i.pdf


LIFE FELONY: Ninety-years concurrent sentences for three life sentences is unlawful. Unless sentenced to life, the maximum for a life felony is forty years. Upon re-sentencing, Defendant may be sentenced to consecutive sentences up to ninety years.  Thornton v. State, 2D18-1524 (7/24/19)


https://www.2dca.org/content/download/533828/5929217/file/181524_39_07242019_08310127_i.pdf

 

JURORS-PEREMPTORY CHALLENGE: White men fall under the protected class of gender. Court erred by not entertaining Defendant's objection to the State's peremptory challenge of a white man.  Beal v. State, 3D17-1469 (7/24/19)


https://www.3dca.flcourts.org/content/download/533809/5928983/file/171469_812_07242019_09535965_i.pdf

 

POST CONVICTION RELIEF: Court may not summarily deny motion for post conviction relief on the basis of attached portions of the record without actually attaching the portions of the record.   Bradshaw v. State, 3D18-1204 (7/24/19)


https://www.3dca.flcourts.org/content/download/533814/5929043/file/181204_812_07242019_10020529_i.pdf

 

PLEA-WITHDRAWAL: The pressure of having to choose between entering a plea or going to trial does not render a plea involuntary. Withdrawal of the plea of nolo contendere is not warranted.   Milton v. State, 3D19-370 (7/24/19)


https://www.3dca.flcourts.org/content/download/533819/5929103/file/190370_809_07242019_10121648_i.pdf

 

POST CONVICTION RELIEF: Defendant cannot seek post conviction relief by petition for habeas corpus in appellate court, particularly, where as here, the Defendant seeks to evade the trial court's prohibition on Defendant's frivolous filings.    Owens v. State, 3D19-1298 (7/24/19)

https://www.3dca.flcourts.org/content/download/533823/5929151/file/191298_804_07242019_10202708_i.pdf

HEARSAY-STATEMENT AGAINST PENAL INTEREST: Co-Defendant's recorded statement to an informant, later recanted, detailing how he murdered the Defendant's girlfriend at the Defendant's request is admissible under the Statement Against Penal Interest exception to the hearsay rule, but only to the extent the statement is self-inculpating. That part of the statement that inculpates the defendant is inadmissible unless the statements are inextricably intertwined. "That part of a statement that inculpates another must be redacted. The reasons are simple: inculpating another is not a statement against the declarant's penal interest, and . . .such statements rarely have 'particularized guarantees of trustworthiness.'"    Adams v. State, 4D17-966 (7/24/19)

 

https://www.4dca.org/content/download/533802/5928893/file/170966_1709_07242019_09025518_i.pdf

 

CONFRONTATION CLAUSE: Co-Defendant's recorded statement to an informant, later recanted, detailing how he murdered the Defendant's girlfriend at the Defendant's request at the Defendant's request is not barred by the Confrontation Clause because not testimonial.   Adams v. State, 4D17-966 (7/24/19)

 

https://www.4dca.org/content/download/533802/5928893/file/170966_1709_07242019_09025518_i.pdf


EVIDENCE:   Threatening to commit a sexual act on the co-defendant's girlfriend is not, as asserted by Defendant, "evidence only of an innocent person trying to take reasonable steps to correct an injustice." Such evidence, along with the Defendant asking co-defendant to write a letter to the defendant's attorney admitting that neither of them were involved in the crime, to say that he was just trying to impress the informant, and was trying to be a character in the defendant's book, and further telling the co-defendant that his mother did not raise him to be a rat, is evidence of consciousness of guilt.   Adams v. State, 4D17-966 (7/24/19)


https://www.4dca.org/content/download/533802/5928893/file/170966_1709_07242019_09025518_i.pdf

 

EVIDENCE: Recorded phone conversation between the Defendant and the Victim's Father, in which the Defendant denies being involved in the murder, and in which the Father calls the Defendant a liar five times, a punk twice, and a junkie once, and opines that the Defendant had shot his daughter, is inadmissible and warrants a new trial.   Adams v. State, 4D17-966 (7/24/19)


https://www.4dca.org/content/download/533802/5928893/file/170966_1709_07242019_09025518_i.pdf

 

CONFRONTATION CLAUSE/HEARSAY (CONCURRING OPINION): "To decide admissibility under a hearsay exception, reference should be made to the language of the statutory exception and not to the more general, case-by-case approach that would admit testimony based upon 'particularized guarantees of trustworthiness.' Such an approach would allow hearsay exceptions to swallow the rule against hearsay."   Adams v. State, 4D17-966 (7/24/19)


https://www.4dca.org/content/download/533802/5928893/file/170966_1709_07242019_09025518_i.pdf

 

SEARCH AND SEIZURE-ODOR OF MARIJUANA: Officer who conducts a canine search based on smell of marijuana may require passenger to leave in the vehicle a pouch he is wearing which turns out to contain narcotics.   State v. Tigner, 4D18-3106 (7/24/19)


https://www.4dca.org/content/download/533804/5928917/file/183106_1709_07242019_09120066_i.pdf

 

STAND YOUR GROUND: Defendant who was waving a gun around committed the offenses of opening carrying a firearm and improper display of a firearm, and therefore was not immune from prosecution under the Stand Your Ground law when he shot the gun. The fact that the Defendant was not charged with the above offenses is irrelevant. State v. Kirkland, 5D18-3795 (7/24/19)


https://www.5dca.org/content/download/533876/5929824/file/183795_1260_07242019_04153988_i.pdf

 

APPEALS-DISPOSITIVE ISSUE: When State refuses to stipulate, the Court must rule on whether an issue is dispositive.  Cien Fuegos v. State, 5D18-3637 (7/23/19)


https://www.5dca.org/content/download/533788/5928713/file/183637_1252_07232019_02164897_i.pdf



DOUBLE JEOPARDY: Defendant can be prosecuted in state court for lewd and lascivious molestation despite having been convicted for the same acts in federal court. Under the "dual-sovereignty" doctrine, an act that constitutes a crime under both federal and state law can be separately prosecuted by both sovereigns without violating the prohibition against double jeopardy because the offenses are separate.   Kasper v. State, 5D19-179 (7/23/19)


https://www.5dca.org/content/download/533790/5928737/file/190179_1257_07232019_02213235_i.pdf

 

SENTENCING: Defendant cannot be sentenced on four second degree felonies to concurrent sentences of twelve years in prison followed by ten years of probation (22 years of combined prison and probation). None of the sentences can exceed a combined prison/probation maximum of 15 years.   Jackson v. State, 5D19-305 (7/23/19)


https://www.5dca.org/content/download/533791/5928749/file/190305_1260_07232019_02231872_i.pdf


JURY INSTRUCTION-SELF-DEFENSE: Jury instruction providing that the defendant had no duty to retreat if he was not otherwise engaged in criminal activity--the standard instruction at the time--is not fundamental error. Absent objection, error, if any, is not preserved.   Moorer v. State, 1D-1224 (7/23/19)

https://www.1dca.org/content/download/533718/5927861/file/181224_1284_07232019_08421362_i.pdf

 

PRO SE MOTION: Defendant's pro se motion to withdraw plea while represented by counsel, alleging that he did not qualify as a Habitual Violent Felony Offender, is a nullity in the absense of an adversarial relationship with counsel.  Howard v. State, 1D 18-3824 (7/23/19)


https://www.1dca.org/content/download/533723/5927921/file/183824_1284_07232019_08481284_i.pdf(7/23/19)

 

POST CONVICTION RELIEF: Defendant's motion for post conviction relief is properly denied when everything he says is refuted by the record.    Austin v. State, 1D18-3961 (7/23/19)


https://www.1dca.org/content/download/533785/5928671/file/183961_1284_07232019_02305154_i.pdf

 

VOP-HEARSAY: Where the state seeks to revoke probation based on the commission of a new offense, it is required to present direct, non-hearsay evidence linking the defendant to the commission of the offense.   Hallman v. State, 1D18-4070 (7/23/19)


https://www.1dca.org/content/download/533725/5927945/file/184070_1287_07232019_08515402_i.pdf

 

LESSER INCLUDED: Juvenile charged with aggravated battery cannot be convicted of the lesser included offense of category two lesser-included offense of improper exhibition of a dangerous weapon because the petition did not include the element of exhibiting the weapon in a "rude, careless, angry, or threatening manner."   R.C.O. v. State, 1D18-4515  (7/23/19)


https://www.1dca.org/content/download/533729/5927993/file/184515_1287_07232019_08565481_i.pdf

 

DISCLOSURE-THERAPIST NOTES: Defendant charged sex offense against his daughter and stepdaughter is not entitiled to the children's psychotherapist's notes. Absent a clear and unequivocal waiver of the psychotherapist-patient privilege, the compelled disclosure of the confidential therapy notes for the children is an unlawful fishing expedition.  Hicks, LCSW v. State, 1D18-4527 (7/23/19)


https://www.1dca.org/content/download/533730/5928005/file/184527_1282_07232019_08575644_i.pdf



POST CONVICTION RELIEF:   Defendant is entitled to a hearing on claim that counsel was ineffective for advising him to take a plea agreement without informing him of the weaknesses in the State's case.    Johnson v. State, 1D19-0507 (7/23/19)


https://www.1dca.org/content/download/533734/5928053/file/190507_1286_07232019_09013082_i.pdf

 

NEWLY DISCOVERED EVIDENCE: Where police reports showed there was a recording of a jailhouse informant's interaction with the defendant, that recording is not newly discovered evidence. Defendant is time barred from seeking postconviction relief more than two years after his conviction became final on the basis of that recording.   Rupp v. State, 1D19-0574 (7/23/19)

https://www.1dca.org/content/download/533735/5928065/file/190574_1284_07232019_09042974_i.pdf

 

 

CORPUS DELICTI: Testimony that the Defendant was a hunter, a good shooter, coupled with the fact that he had recently killed dead squirrels in his refrigerator, is sufficient circumstantial evidence that he possessed a gun warranting admission of his confession of ownership of the gun over his corpus delicti objection. Porter v. State, 1D17-3577 (7/22/19)

https://www.1dca.org/content/download/533690/5926499/file/173577_1284_07222019_11443186_i.pdf

 

COMPETENCY: Court ordered to hold competency hearing after ignoring previous order from the appellate court to hold the hearing. "When this Court issues a mandate with specific instructions, the lower tribunal must follow those instructions, and has no discretion or authority to do otherwise."   Alcazar v. State, 1D17-4462 (7/22/19)

https://www.1dca.org/content/download/533691/5926511/file/174462_1287_07222019_11464096_i.pdf


SENTENCING-CONSIDERATIONS: At sentencing, Court did not err in considering jail calls which the State used to suggest that the Defendant had gotten other charges dropped by discouraging witnesses from testifying.   Paul v. State, 1D17-5162 (7/22/19)


https://www.1dca.org/content/download/533693/5926535/file/175162_1284_07222019_11482945_i.pdf

 

CRUEL OR UNUSUAL PUNISHMENT: Court is not required to consider the Defendant's mental age, rather than his chronological age.   Paul v. State, 1D17-5162 (7/22/19)


https://www.1dca.org/content/download/533693/5926535/file/175162_1284_07222019_11482945_i.pdf

CONSECUTIVE SENTENCES-MANDATORY MINIMUM: For a Defendant who is sentenced to 25 years with a 10 year minimum mandatory for a qualifying firearm defense (which by statute must be run consecutively to any non-qualifying offense) and to 15 years for a violation of probation, only the 10 year minimum mandatory must be imposed consecutively; the rest of the sentences may be imposed concurrently. "[T]he plain language of subsection (2)(d) speaks to 'any term of imprisonment provided for in this subsection.' The only terms of imprisonment provided for in subsection (2) are minimum mandatory terms." "[N]othing in section 775.087(2)(d) expressly prohibits the non-minimum mandatory component of a sentence to run concurrently to a non-qualifying sentence." Mattox v. State, 1D18-663 (7/22/19)


https://www.1dca.org/content/download/533694/5926547/file/180663_1286_07222019_11493441_i.pdf

FLEEING AND ELUDING (DISSENT): For conviction for fleeing and eluding, what constitutes a marked patrol vehicle needs to be precisely explained and established. "No evidence establishes what the 'police logo' looked like, what it said, its size, where it was placed on the vehicle, whether it was prominently displayed, and whether it was a 'jurisdictional marking' or an 'agency insignia. Officer's testimony that the police vehicle had 'all the decals, lights and everything,' it is not enough. "And to say 'everything' is to say nothing.. . .[G]eneralized statement without details is 'like the proverbial Old Mother Hubbard' because it 'covers everything but touches nothing.'"    Dupree v. State, 1D18-1084 (7/22/19)


https://www.1dca.org/content/download/533697/5926583/file/181084_1284_07222019_11525579_i.pdf

 

FACTUAL BASIS: The fact that the Defendant drowned a mother and her toddler in a community swimming pool is a factual basis for second degree murder. The main purpose in ascertaining a factual basis for a plea is to prevent a defendant from mistakenly pleading to the wrong offense.   Gomez v. State, 1D18-1853 (7/22/19)


https://www.1dca.org/content/download/533700/5926619/file/181853_1284_07222019_11583150_i.pdf

 

VOP: A general conclusion that the defendant was "non-compliant" is insufficient to support a finding of violation of probation. Davis v. State, 1D18-4786 (7/22/19)

 

https://www.1dca.org/content/download/533702/5926643/file/184786_1287_07222019_12012188_i.pdf

 

VOP: Defendant did not willfully violate probation by failing to update his address at the DHSMV where his failure to do so was because he did not have the required $31.  Davis v. State, 1D18-4786 (7/22/19)


https://www.1dca.org/content/download/533702/5926643/file/184786_1287_07222019_12012188_i.pdf

 

MINOR-LIFE SENTENCE-POSSIBILITY OF PAROLE: A juvenile offender's life sentence with the possibility of parole after 25 years does not violate the Eighth Amendment because the juvenile has a meaningful opportunity to receive parole. Defendant is not entitled to resentencing.   Florida v. Jackson, 1D18-5224 (7/22/19)


https://www.1dca.org/content/download/533704/5926667/file/185224_1279_07222019_12150693_i.pdf

 

MINOR-LIFE SENTENCE-POSSIBILITY OF PAROLE: A juvenile offender's life sentence with the possibility of parole after 25 years does not violate the Eighth Amendment because the juvenile has a meaningful opportunity to receive parole. Defendant is not entitled to resentencing.   State v. Cogdell, 1D18-5246 (7/22/19)


https://www.1dca.org/content/download/533705/5926679/file/185246_1279_07222019_12162229_i.pdf

 

MINOR-LIFE SENTENCE-POSSIBILITY OF PAROLE: A juvenile offender's life sentence with the possibility of parole after 25 years does not violate the Eighth Amendment because the juvenile has a meaningful opportunity to receive parole. Defendant is not entitled to resentencing.  State v. Grayer, 1D18-5247 (7/22/19)


https://www.1dca.org/content/download/533706/5926691/file/185247_1279_07222019_12171605_i.pdf

 

MINOR-LIFE SENTENCE-POSSIBILITY OF PAROLE: A juvenile offender's life sentence with the possibility of parole after 25 years does not violate the Eighth Amendment because the juvenile has a meaningful opportunity to receive parole. Defendant is not entitled to resentencing.   State v. Lowe, 1D19-0111 (7/22/19)


https://www.1dca.org/content/download/533707/5926703/file/190111_1279_07222019_12181964_i.pdf

 

MINOR-LIFE SENTENCE-POSSIBILITY OF PAROLE: A juvenile offender's life sentence with the possibility of parole after 25 years does not violate the Eighth Amendment because the juvenile has a meaningful opportunity to receive parole. Defendant is not entitled to resentencing.   State v. Smith, 1D19-124 (7/22/19)


https://www.1dca.org/content/download/533709/5926727/file/190124_1279_07222019_12194702_i.pdf

 

 

MINOR-LIFE SENTENCE-HOMICIDE: Life sentences with the possibility of parole are not unconstitutional under Miller and Graham.  State v. Ratliff, 2D16-5322 (7/19/19)

https://www.2dca.org/content/download/532394/5911068/file/165322_39_07192019_08281807_i.pdf


POST CONVICTION RELIEF-MANDAMUS: To support claim of newly discovered evidence, Defendant may use petition for writ of mandamus to compel the Public Defender's Office to provide him with a copy of report questioning the validity of tests on his hair. A defendant, when represented by a public defender, is entitled to free copies of his or her own records, including copies of all trial and hearing transcripts, motions, State discovery presented to defense counsel, and any other documents that were otherwise prepared at public expense, but not free copies of documents in the possession of the public defender if the documents were not obtained at public expense. Petition for writ of mandamus does not require an affirmative acknowledgment of an obligation to pay for copying costs.   Anthony v. State, 2D18-1987 (7/19/19)

https://www.2dca.org/content/download/532397/5911110/file/181987_39_07192019_08300306_i.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to object to State's mischarecteriazation of evidence in closing argument.   Raysor v. State, 2D18-2610 (7/19/19)

https://www.2dca.org/content/download/532400/5911146/file/182610_114_07192019_08334750_i.pdf

COSTS: Court may not impose $100 County Drug Abuse Trust Fund fee without making a finding of ability to pay.    Reese v. State, 5D18-1102 (7/19/19)


https://www.5dca.org/content/download/532387/5910971/file/181102_1259_07192019_08192261_i.pdf

VOP: Defendant does not violate probation when he is forced to leave his approved residence with little notice through no fault of his own.   Davis v. State, 2D17-4460 (7/17/19)

https://www.2dca.org/content/download/532229/5909115/file/174460_39_07172019_08493989_i.pdf

 

ILLEGAL SENTENCE: Condition of sentence that for each $200,000 paid in restitution the prison sentence will be reduced by one year,, in the absence of a sentencing transcript, cannot be deemed an illegal sentence.   Westervelt v. State, 2D17-4639 (7/17/19)


https://www.2dca.org/content/download/532230/5909127/file/174639_65_07172019_08560588_i.pdf

 

VOP: Trial court must enter a written order listing the grounds for the revocation of probation.   Henly v. State, 3D17-1418 (7/17/19)


https://www.3dca.flcourts.org/content/download/532204/5908803/file/171418_812_07172019_10090006_i.pdf

 

JUDGMENT OF ACQUITTAL: Defendant played with the hem of an underage girl's skirt, tried to kiss her, and otherwise acted creepily. Counsel's failure to move for judgment of acquittal on the charge of lewd and lascivious conduct is not fundamental error, and thus cannot be raised on direct appeal. Defendant may raise the issue of ineffective assistance of counsel in a 3.850 motion.   Aquino v. State, 3D17-1666 (7/17/19)


https://www.3dca.flcourts.org/content/download/532205/5908815/file/171666_809_07172019_10100759_i.pdf

 


DEALING IN STOLEN PROPERTY: Child is properly convicted of dealing in stolen property for selling to "fat tire" bicycles which had been stolen several days earlier where Child's explanations were not deemed believable.   A.F. v. State, 3D18-1362 (7/17/19)

https://www.3dca.flcourts.org/content/download/532209/5908863/file/181362_809_07172019_10133067_i.pdf


JUDGE-DISQUALIFICATION: The fact that a judge has ruled adversely to the party in the past does not constitute a legally sufficient ground for a motion to disqualify.  Pounds v. State, 3D19-1165 (7/17/19)


https://www.3dca.flcourts.org/content/download/532223/5909031/file/191165_806_07172019_10173173_i.pdf


UNANIMOUS VERDICT: Information which alleges attempted murder by the alternative means of ramming his truck into the wife's SUV and thereafter stabbing her with a knife does not unlawfully invite a nonunanimous verdict based on 2 separate theories where they were both part of the same criminal episode.   Cherfrere v. State, 4D13-4071 (7/17/19)


https://www.4dca.org/content/download/532242/5909277/file/134071_1257_07172019_08554857_i.pdf

 

HEARSAY: Officer's testimony that a confidential informant told him that a six-foot-tall, heavy-set black male known as Angel, who drove a two-door red Ford F-150 pickup truck, was interested in purchasing large quantities of prescription pills is inadmissible hearsay. "The State's contention that this testimony was not hearsay is simply wrong. Even if the informant's statements were not offered for their truth, they were irrelevant, because the police officer's reason for investigating appellant was immaterial."   Conyers v. State, 4D17-3790 (7/17/19)


https://www.4dca.org/content/download/532243/5909289/file/173790_1709_07172019_08581214_i.pdf

10/20/LIFE: Defendant is not subject to 10-20-Life based on causing serious bodily injury where both he and his brother fired multiple shots at the Victim with only 1 of the bullets striking him. Counsel for the Defendant was ineffective on the face of the record for failing to move for a Judgment of Acquittal.    Squire v. State, 4D18-290 (7/17/19)


https://www.4dca.org/content/download/532244/5909301/file/180290_1708_07172019_08595433_i.pdf

 

PROBATION-CONDITIONS: Written order of probation requiring that Defendant pay costs in equal monthly payments is unlawful when not orally pronounced nor found in any applicable statute or rule.   Cordero-Callahan v. State, 4D18-2285 (7/17/19)


https://www.4dca.org/content/download/532247/5909337/file/182285_1709_07172019_09040622_i.pdf



PROHIBITION ON PRO SE FILINGS: Court improperly barred the Defendant from making any further pro se motions while denying his Rule 3.800 motion to correct an illegal sentence without giving him an opportunity to respond. Court may not impose the sanction of barring pro se filings without allowing the defendant to respond before considering sanctions.   Carrasco v. State, 4D19-1025 (7/17/19)


https://www.4dca.org/content/download/532249/5909361/file/191025_1257_07172019_09083175_i.pdf

 

INCOMPETENT DEFENDANT-PRETRIAL DETENTION: Mentally incompetent homeless defendant who failed to comply with conditions of release cannot be held in the county jail unless the criteria for pretrial detention is met and appropriate treatment for mental illness is available. "Every effort should be made to avoid an incompetent defendant languishing in jail without adequate treatment." "[T]reatment in a custodial facility should only be ordered as a last resort."    Marino v. State, 4D19-1283 (7/17/19)

https://www.4dca.org/content/download/532250/5909373/file/191283_1704_07172019_09105728_i.pdf



SENTENCING-PREDETERMINATION: Defendant is entitled to a resentencing before a different judge or the original sentencing judge had stated before trial that he intended to sentence the defendant consecutively to his VOP case.   Gunn v. State, 1D17-5062 (7/16/19)

https://www.1dca.org/content/download/532149/5908332/file/175062_1286_07162019_09544447_i.pdf


POST CONVICTION RELIEF: Defendant may not seek postconviction relief by a habeas corpus petition where the claim would be otherwise time-barred by Rule 3.850.   Green v. State, 1D18-1281 (7/16/19)


https://www.1dca.org/content/download/532151/5908356/file/181281_1284_07162019_09563878_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for not seeking suppression of evidence and the State committed a Brady violation.   Smith III v. State, 1D18-3907 (7/16/19)


https://www.1dca.org/content/download/532154/5908392/file/183907_1287_07162019_10030841_i.pdf

 

DISQUALIFICATION-JURISDICTION: Judge who had previously disqualified himself may not deny a motion for DNA testing.   Ratley v. State, 1D18-4184 (7/16/19)


https://www.1dca.org/content/download/532155/5908404/file/184184_1287_07162019_10041556_i.pdf


STAND YOUR GROUND-RETROACTIVITY: Defendant is entitled to a new Stand Your Ground hearing when the burden of proof was altered while his appeal was pending. Stand Your Ground amendment applies retroactively to Defendant's whose convictions had not been made final. Conflict certified.   Washington v. State, 17-1978 (7/15/19)

https://www.1dca.org/content/download/532095/5907744/file/171978_1287_07152019_09575958_i.pdf

 

TRESPASSING-POSTING-JOA: A photograph of a "no trespassing" sign on the ground next to the portable restroom is insufficient to show adecuate posting to sustain trespass by Defendant who bogarted the construction site port-a-potty. JOA required.  Borrico v. State, 5D17-4114 (7/12/19)


https://www.5dca.org/content/download/531690/5900975/file/174114_1259_07122019_08230763_i.pdf



RESENTENCING-ABSENCE OF DEFENDANT: Upon resentencing after appeal, Defendant has the right to present testimony and evidence. Court erred in refusing to allow the Defendant to present evidence because it had already conducted "an extensive sentencing hearing where evidence was presented."   Wilson v. State, 5D18-26 (7/12/19)

 

https://www.5dca.org/content/download/531691/5900987/file/180026_1260_07122019_08264460_i.pdf

 


RECKLESS DRIVING: Grossly excessive speed (accelerating to 85 mph at time of collision) in a residential neighborhood is sufficient to justify a conviction for reckless driving. Grossly excessive speed alone can constitute reckless conduct.   Natal v. State, 4D17-1271 (7/10/19)


https://www.4dca.org/content/download/531540/5899328/file/171271_1257_07102019_08153198_i.pdf

 

SCORESHEET-LEGAL STATUS: Legal status point should not be assessed unless the probationer is on probation when he commits an offense which is before the court for sentencing. Scoresheet which assesses points for a community sanction violation and 12 points as a VFOSC constitutes improper double counting.   Reed v. State, 4D17-3778 (7/10/19)

https://www.4dca.org/content/download/531542/5899352/file/173778_1708_07102019_08260384_i.pdf



MINOR-LIFE IMPRISONMENT-HOMICIDE-JUDICIAL REVIEW: Life imprisonment with a sentence review after 25 years for a 14-year-old who beat a younger child to death is lawful. "Although the sentence review will involve consideration of different factors, given that the judge who handled the resentencing has already taken a position as to whether Appellant is 'fit to reenter society,' it would be appropriate that the sentence review be assigned to a different judge."    Bellay v. State, 4D17-3866 (7/10/19)

https://www.4dca.org/content/download/531543/5899364/file/173866_1257_07102019_08291912_i.pdf

 


MINOR-LIFE IMPRISONMENT-HOMICIDE-JUDICIAL REVIEW: Defendant who committed his offense as a minor before 1983 is not entitled to resentencing under the 1983 guidelines.   Bellay v. State, 4D17-3866 (7/10/19)


https://www.4dca.org/content/download/531543/5899364/file/173866_1257_07102019_08291912_i.pdf

 

EVIDENCE-COLLATERAL CRIMES: In trafficking in oxycodone case, the prosecutor and three of the State's witnesses improperly referred to the fact that Defendant's house was under surveillance, that a search warrant related to narcotics had been issued, and that Defendant was the target. Evidence was not inextricably intertwined. New trial is required. Dawson v. State, 4D18-1586 (7/10/19)


https://www.4dca.org/content/download/531545/5899388/file/181586_1709_07102019_08382397_i.pdf



POST CONVICTION RELIEF-APPEAL PENDING: If the trial court does not rule on a motion to correct a sentencing error while an appeal is pending within 60 days the motion shall be deemed denied. Once the sixty days has passed, an order purporting to resentence a defendant is entered without jurisdiction and is a nullity.   Staples v. State, 3D17-133 (7/10/19)

https://www.3dca.flcourts.org/content/download/531506/5898902/file/170133_809_07102019_09524287_i.pdf


YOUTHFUL OFFENDER: When a youthful offender commits a substantive violation of probation and the trial court elects to impose a sentence in excess of the six-year cap, the sentence necessarily loses his youthful offender status.  Staples v. State, 3D17-133 (7/10/19)


https://www.3dca.flcourts.org/content/download/531506/5898902/file/170133_809_07102019_09524287_i.pdf



EVIDENCE-COLLATERAL CRIMES: Victim's statement that the Defendant, who was charged with severely beating and raping her, said that he had done this to 6 other women is relevant to show how the Defendant had coerced her. The statement was unobjected to and error, if any, was not fundamental.    Hayes v. State, 3D18-409 (7/10/19)


https://www.3dca.flcourts.org/content/download/531512/5898980/file/180409_809_07102019_09584043_i.pdf

 

POST CONVICTION RELIEF-SENTENCE CORRECTION: Defendant's claim that he could not be found guilty of possessing a firearm because the weapon was a pellet gun cannot be raised after his sentence has been served and after 2 years have elapsed. The sentence is not illegal.   Lopez v. State, 3D18-464 (7/10/19)


https://www.3dca.flcourts.org/content/download/531513/5898992/file/180464_809_07102019_09592133_i.pdf


SEARCH AND SEIZURE-BLOOD DRAW: There is no requirement that the Defendant be at fault to justify a blood draw in a DUI manslaughter case. The blood draw statute does not require probable cause of driver fault. "By the plain statutory language, the motor vehicle, rather than 'the person driving or in actual physical control of the motor vehicle,' must have caused the death or serious bodily injury."   State v. Quintanilla, 3D18-1483 (7/10/19)

https://www.3dca.flcourts.org/content/download/531515/5899016/file/181483_812_07102019_10001915_i.pdf

INFORMATION: A charging document that substantially but imperfectly charges a crime is not fundamentally deficient, and any objections must be made before or when he pleads at arraignment. Information which charges the Defendant with taking property when he in fact took money is not fatally defective.   Wilson v. State, 3D19-456 (7/10/19)


https://www.3dca.flcourts.org/content/download/531522/5899100/file/190456_809_07102019_10062187_i.pdf

 

HABEAS CORPUS: Habeas Corpus action based on failute to properly calculate gaintime must be filed where the Defendant is incarcerated, not the county of conviction.   Guerra v. State, 3D19-760 (7/10/19)


https://www.3dca.flcourts.org/content/download/531526/5899148/file/190760_812_07102019_10073880_i.pdf

 

SENTENCING-MINOR-50-YEAR SENTENCE-REVIEW: Minor/Defendant convicted of murder is lawfully sentenced to serve 50 years in prison without review based on his prior felony record.      Baker v. State, 2D17-2160 (7/10/19)


https://www.2dca.org/content/download/531557/5899526/file/172160_65_07102019_08314133_i.pdf


RECENTLY STOLEN PROPERTY-JOA: When the State's case is based entirely upon the statutory inference, the trial court must direct a judgment of dismissal for the defendant where a reasonable explanation for possession of recently stolen property is totally unrefuted and there is no other evidence of guilt. Stolen property found in the Child's jointly occupied bedroom does not compel the conclusion that he was the thief.   A.L. v. State, 2D17-4572 (7/10/19)


https://www.2dca.org/content/download/531560/5899562/file/174572_39_07102019_08374695_i.pdf

SEARCH AND SEIZURE-DWLS: Police may stop Defendant on suspicion that he was DWLS based to on two previous DWLS arrests of the Defendant in the last year. Information is not stale.   Valero v. State, 2D18-914 (7/10/19)

 

https://www.2dca.org/content/download/531561/5899574/file/180912_65_07102019_08391097_i.pdf



POST CONVICTION RELIEF: Defendant can raise on 3.850 motion claim that counsel was ineffective.   Hartley v. State, 1D17-5073 (7/10/19)

https://www.1dca.org/content/download/531530/5899202/file/175073_1286_07102019_09512361_i.pdf



POST-CONVICTION RELIEF:   Offhand comment making fun of counsel was in jest and not basis for disqualifiction. Discussion on why "judges should avoid attempts at humor while on the bench. . .[J]udicial humor is rarely as funny as the judge thinks it is, and judicial humor is never funny when it is at the expense of an attorney or a party."   Cannon v. State, 1D18-1626 (7/9/19)

https://www.1dca.org/content/download/531427/5898052/file/181626_1284_07092019_11004672_i.pdf


QUOTATION: "It is an immutable and universal rule that judges are not as funny as they think they are."     Cannon v. State, 1D18-1626 (7/9/19)


https://www.1dca.org/content/download/531427/5898052/file/181626_1284_07092019_11004672_i.pdf


CHILD HEARSAY: Court erred in excluding recanted child hearsay that nine year old's father had sexually abused her where DNA confirmed the original statement. Court's theories discounting the DNA evidence and that the child suffered from an Electra complex were speculative and unsupported by evidence.   DNA evidence cannot be considered in determining the reliability of the statement.   State v. Boatman, 1D18-2808 (7/9/19)

https://www.1dca.org/content/download/531435/5898151/file/182808_1282_07092019_11091295_i.pdf

 

ARGUMENT-OPINION AS TO GUILT:   Argument that jury should "return a verdict that truth dictates and justice demands" is not an improper expression of the prosecutor's opinion.   Fountain v. State, 1D18-2883 (7/9/19)


https://www.1dca.org/content/download/531438/5898187/file/182883_1284_07092019_11102501_i.pdf

DOUBLE JEOPARDY:   After appeal, Double Jeopardy does not bar Defendant's sentences for armed robbery and attempted murder from 30 and 35 years consecutively to 65 years concurrently. The change did not modify the Court's original sentencing goal. Whitfield v. State, 1D18-3025 (7/9/19)


https://www.1dca.org/content/download/531439/5898199/file/183025_1284_07092019_11114881_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failure to file motion to suppress statement.   Hicks v. State, 1D18-3097 (7/9/19)

www.1dca.org/content/download/531444/5898259/file/183097_1286_07092019_11172147_i.pdf

POST CONVICTION RELIEF:     Defendant cannot challenge conviction based on erroneous instruction on the possible lesser included offense of manslaughter (which included an intent to kill provision) because his conviction became final before the instruction was determined to be a misstatement of law.   McCrae v. State, 1D18-4115 (7/9/19)


https://www.1dca.org/content/download/531449/5898319/file/184115_1284_07092019_11363397_i.pdf

SEARCH AND SEIZURE-ODOR OF MARIJUANA: Legalization of medical marijuana does not render unlawful a search of the vehicle based on the odor of marijuana.  Johnson v. State, 1D18-4325 (7/9/19)


https://www.1dca.org/content/download/531451/5898343/file/184325_1284_07092019_11401115_i.pdf



MEDICAL MARIJUANA: Florida Department of Health cannot be compelled by injunction to authorize and register Medical Marijuana Treatment Centers to produce medical marijuana.   Florida Department of Health v. Florigrown, L.L.C., 1D18-4471 (7/9/19)


https://www.1dca.org/content/download/531452/5898355/file/184471_1284_07102019_12032204_i.pdf

 

 

HABEAS CORPUS: Defendant may file habeas corpus petition raising different issues than those which were raised in a previous motion to correct illegal sentence. Court erred in ruling that the issues were the same.   Barreiros v. State, 3D18-2584 (7/3/19)

 

https://www.3dca.flcourts.org/content/download/531218/5895574/file/182584_812_07032019_10155223_i.pdf

 

POST CONVICTION RELIEF:   Defendant may use R. 3.800 to raise argument that he was improperly sentenced to stacked mandatory minimums. Depositions are not court records which can be considered to determine whether a sentence is illegal. Defendant's remedy lies with R. 3.850, requiring an evidentiary hearing and subject to a two-year time limit.   Morgan v. State, 3D19-37 (7/3/19)

 

https://www.3dca.flcourts.org/content/download/531219/5895586/file/190037_809_07032019_10164757_i.pdf

POST CONVICTION RELIEF-HABEAS CORPUS: Defendant's request for habeas corpus alleging ineffective assistance of counsel must be filed within two years.   Lucas v. State, 3D19-1183 (7/3/19)


https://www.3dca.flcourts.org/content/download/531223/5895634/file/191183_804_07032019_10205189_i.pdf

 

COUNSEL-WITHDRAWAL: Defendant's attorney, who believed that he had been paid with stolen money and who was under threat of suit by his client's former employer, the victim of the embezzlement at issue, must be allowed to withdraw mid-trial.  Delacruz v. State, 4D17-2103 (7/3/19)

 

https://www.4dca.org/content/download/531182/5895118/file/172103_1709_07032019_08553021_i.pdf

 

 

POST CONVICTION RELIEF: Based on Weatherspoon, State must charge attempted felony murder in order to be entitled to a jury instruction on that crime as an alternative theory to simple attempted murder, but this change in the law does not apply retroactively. Issue certified. Johnson v. State, 4D18-3528 (7/3/19)

 

https://www.4dca.org/content/download/531200/5895346/file/183528_1257_07032019_09053973_i.pdf

 

JUNE 2019

 

DRIVER LICENSE SUSPENSION: Court may not suspend driver's license for 5 years upon a conviction for a drug offense.  Figuerdo v. State, 5D18-3120 (6/28/19)


https://www.5dca.org/content/download/528041/5866461/file/183120_1260_06282019_08554053_i.pdf

 

APPEAL-DOWNWARD DEPARTURE: State may not appeal a downward departure when it did not object at the time. A general objection is insufficient.   Harvey v. State, No. 1D18-1606 (6/28/19)


https://www.1dca.org/content/download/528100/5867178/file/181606_1284_06282019_03364117_i.pdf


DOUBLE JEOPARDY: Convictions for Possession of meth and possession of the same meth with intent to sell within a thousand feet of a proscribed location does not violate double jeopardy.   Cole v. State, 1D18-1689 (6/28/19)


https://www.1dca.org/content/download/528101/5867190/file/181689_1284_06282019_03382256_i.pdf

 


JURY INSTRUCTION-JUSTIFIABLE/EXCUSABLE HOMICIDE: Failure to instruct the jury on justifiable/excusable attempted homicide is not fundamental error where, as here, the Defendant affirmatively agreed to the instruction as read.  Gomez v. State, 5D18-2903 (6/28/19)

https://www.5dca.org/content/download/528040/5866449/file/182903_1257_06282019_08531094_i.pdf

JUROR-CHALLENGE-CAUSE: Where counsel for the Defendant failed to object before the jury was sworn he cannot raise on appeal the State's strike of a juror for cause.     Keith v. State, 1D18-1494 (6/28/19)


https://www.1dca.org/content/download/528099/5867166/file/181494_1284_06282019_03354197_i.pdf


JUVENILE-COMMITMENT: Juvenile may not be committed to a nonsecure residential placement unless the Court makes written findings so justifying.    K.R. v. State, 5D18-3137 (6/28/19)


https://www.5dca.org/content/download/528042/5866473/file/183137_1259_06282019_09080976_i.pdf

 


RES JUDICATA:   One cannot appeal the denial of a motion to suppress in a substantive case when same issue was adversely decided in the appeal of a related VOP case.  Res Judicata.     Latson v. State, 3D18-115 (6/28/19)


https://www.3dca.flcourts.org/content/download/527845/5864278/file/180115_809_06262019_10074459_i.pdf

 

POST CONVICTION RELIEF: Partial recantation by a witness, now claiming that she does not believe the accusations, is not newly discovered evidence warranting a new trial. Morris v. State, 1D18-478 (6/28/19)


https://www.1dca.org/content/download/528098/5867154/file/180478_1284_06282019_03332098_i.pdf

 

APPEAL: When the notice of appeal in the motion to withdraw plea our filed at precisely the same moment the trial court has jurisdiction to rule on the motion to withdraw plea, and the appeal is held in abeyance.   Register v. State, 5D18-3916 (6/28/19)


https://www.5dca.org/content/download/528044/5866497/file/183916_1260_06282019_09152089_i.pdf

 

SENTENCING-UPWARD DEPARTURE: Jury, not judge, must make the finding that the Offender is a danger to the public warranting an upward departure from nonstate prison sanction. Further, in finding the offender to be a danger to the public, the court must do more than merely recite prior convictions.   Riordan v. State, 5D17-2956 (6/28/19)


https://www.5dca.org/content/download/528034/5866377/file/172956_1260_06282019_08384244_i.pdf

 

APPEAL-FUNDAMENTAL ERROR-COMPETENCY: Where Appellant's initial brief raised only the question of whether a competency hearing was conducted, cannot raise in its answer brief the adequacy of the hearing. The issue of the adequacy of the competency hearing was waived.   Rosier v. State, 1D16-2327 (6/28/19)


https://www.1dca.org/content/download/528094/5867112/file/162327_1286_06282019_03220879_i.pdf

 

UNRENUNCIABLE JUDICIAL DUTY: Thorough discussion of the phrase "unrenunciable judicial duty."   Rosier v. State, 1D16-2327 (6/28/19)


https://www.1dca.org/content/download/528094/5867112/file/162327_1286_06282019_03220879_i.pdf

 

QUOTATION: "Florida's appellate judges. . .are not roving squadrons of unrestrained judicial activists looking to assist criminal defendants by overturning convictions."   Rosier v. State, 1D16-2327 (6/28/19)


https://www.1dca.org/content/download/528094/5867112/file/162327_1286_06282019_03220879_i.pdf

 

POST CONVICTION RELIEF: Court properly denied Defendant's motion to withdraw plea based on counsel's alleged misadvise that he would receive a downward departure and his attorney's "bare-bones" argument for a downward departure. "Given that the brief filed on behalf of Santos cites only two cases and is six pages in total length, the irony of Attorney James W. Smith III describing anything as 'bare bones' is not lost on this Court." Santos v. State, 5D18-1318 (6/28/19)


https://www.5dca.org/content/download/528038/5866425/file/181318_1257_06282019_08491188_i.pdf

 

RULES-AMENDMENT: Confidentiality of filings rules tweaked.   In Re: Amendments to Florida Rule of Judicial Administration 2.420, SC19-1049 (6/27/19)


https://www.floridasupremecourt.org/content/download/527990/5865903/file/sc19-1049.pdf

 

RULES-AMENDMENT: Requirement that a lawyer must be board certified to claim expertise or specialization in advertisements is removed. Clarification of when a lawyer may claim specialization or expertise.   In Re: Amendments to Rule Regulating the Florida Bar 4-7.14, No. SC18-2019 (6/27/19)

https://www.floridasupremecourt.org/content/download/527990/5865903/file/sc19-1049.pdf


CONTEMPT: "We do not doubt for an instant that the trial judge heard what he maintains he heard. But we have read the official transcript and have repeatedly listened to the official recording of the shelter hearing, and competent substantial evidence does not support a finding that it was Taylor who said it."   Taylor v. State, 2D18-1598 (6/28/19)


https://www.2dca.org/content/download/528059/5866683/file/181598_39_06282019_08552247_i.pdf


INCONSISTENT VERDICTS: "Although logically under the facts presented to the jury there was no way Appellant could have committed the murder and attempted murder without possessing and discharging a firearm that does not make the verdict truly inconsistent." Inconsistent jury verdicts are permitted in Florida because "jury verdicts can be the result of lenity and therefore did not always speak to the guilt or innocence of the defendant." Conviction upheld. Only true inconsistent verdicts are disallowed. True inconsistent verdicts are those in which an acquittal on one count negates a necessary element for conviction on another count.   Turner v. State, 1D17-3244 (6/28/19)


https://www.1dca.org/content/download/528095/5867124/file/173244_1284_06282019_03262117_i.pdf

 

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to object to jurors seeing him in handcuffs during the trial. Ward v. State, 5D18-3679 (6/28/19)

 

https://www.5dca.org/content/download/528043/5866485/file/183679_1259_06282019_09134163_i.pdf

 

IDENTIFICATION-SHOW UP: Showup identification shortly after the offense by a witness who had seen the Defendant through a peephole and then through a window while he was trying to break into her house is admissible.   Alfonso v. State, 3D17-2617 (6/26/19)


https://www.3dca.flcourts.org/content/download/527843/5864254/file/172617_809_06262019_10041311_i.pdf

 

MINOR-LIFE SENTENCE-HOMICIDE-JURY FINDING: Forty-year mandatory minimum, with review after 25 years, for juveniles who intend to kill does not require a jury finding. Alfonso v. State, 3D17-2617 (6/26/19)


https://www.3dca.flcourts.org/content/download/527843/5864254/file/172617_809_06262019_10041311_i.pdf

 

DURESS-JURY INSTRUCTION: Although it is unclear whether the "choice of evils" concept (the harm that the defendant avoided must outweigh the harm caused by crime charged) that is now element 6 of the standard jury instruction on duress, waived any appeal by failing to object to it.   Franklin v. State, 4D18-1410 (6/26/19)


https://www.4dca.org/content/download/527871/5864600/file/181410_1257_06262019_09142757_i.pdf

 

VIOLATION OF INJUNCTION: Defendant is properly convicted of violating an injunction when he is served with the temporary injunction which was extended and converted to a permanent injunction at the hearing at which she had not appeared.   Garcia v. State 3D18-14732 (6/26/19)


https://www.3dca.flcourts.org/content/download/527859/5864438/file/190060_809_06262019_10222937_i.pdf



JURY INSTRUCTION-SPECIAL INSTRUCTION: In reckless driving prosecution of police officer, State is entitled to a special jury instruction that law enforcement officers on duty are not relieved of the obligation to exercise due care. "A trial judge in a criminal case is not constrained to give only those instructions that are contained in the Florida Standard Jury Instructions.   Hegele v. State, 4D18-835 (6/26/19)


https://www.4dca.org/content/download/527870/5864588/file/180835_1257_06262019_09112238_i.pdf

 

JOA-BURGLARY-THEFT-VEHICLE: Child who fled, along with others, from a stolen vehicle containing stolen property cannot be convicted of theft of the vehicle or the things found in it absent more evidence.   J.A.H. v. State, 2D17-4027 (6/26/19)


https://www.2dca.org/content/download/527888/5864800/file/174027_39_06262019_09034391_i.pdf

 

POST CONVICTION RELIEF: The law of the case doctrine does not bar litigation on the admission of hearsay which was not sufficiently review based on the sufficiency of the evidence in earlier proceedings. If the facts upon which the supreme court's prior conclusions were made are no longer the facts of the case, then the doctrine does not apply.   State v. Parker, 4D18-3112 (6/26/19)


https://www.4dca.org/content/download/527875/5864640/file/183112_1709_06262019_09261090_i.pdf


HABITUAL FELONY OFFENDER: A prior withhold of adjudication may be used as a qualifying offense for HFO sentencing, notwithstanding that the Defendant was not placed on probation (which is required for a withhold).   Robinson v. State, 4D19-652 (6/26/19)


https://www.4dca.org/content/download/527878/5864676/file/190652_1257_06262019_09382430_i.pdf

 

DNA TESTING: Defendant is not entitled to postconviction DNA testing where identity is not an issue.   Rodriguez v. State, 3D19-817 (6/26/19)


https://www.3dca.flcourts.org/content/download/527864/5864498/file/190817_809_06262019_10324116_i.pdf

 


SEARCH AND SEIZURE: Defendant (police officer who created fake police reports to get her estranged husband fired from his job) has no legitimate expectation of privacy in her personal hard drive which was plugged in to her work computer at the police department. Saintemen v. State, 3D17-734 (6/26/19)


https://www.3dca.flcourts.org/content/download/527842/5864242/file/170734_809_06262019_10031813_i.pdf

QUOTATION: "I. . . write separately to emphasize how Fourth Amendment jurisprudence may sometimes upset common sense. . . .[T]his public sector worker has no reasonable expectation of privacy in the contents of a personally owned flash drive when the flash drive is confiscated while plugged into her work computer. This holding, while correct, may come as quite a surprise to anyone who has ever used a personally owned flash drive at work with non-nefarious intentions."   Saintemen v. State, 3D17-734 (6/26/19)


https://www.3dca.flcourts.org/content/download/527842/5864242/file/170734_809_06262019_10031813_i.pdf


POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that is ineffective for failing to raise a statute of limitations argument.   Smith v. State, 3D19-678 (3/26/19)


https://www.3dca.flcourts.org/content/download/527863/5864486/file/190678_812_06262019_10315847_i.pdf

'NUFF SAID: "[T]he defendant asserts that he was 'wrongly convicted of a false charge of grand theft.' The defendant. . .fails to recognize that he pled guilty to the charge of third degree grand theft." Wilson v. State, 3D19-880 (6/26/19)

 

https://www.3dca.flcourts.org/content/download/527865/5864510/file/190880_809_06262019_10330997_i.pdf

 

PEREMPTORY CHALLENGE-DISCRIMINATION:   Defendant is entitled to a seventh trial after prosecutors struck 41 of the 42 black prospective jurors in the previous six trials. "The jury in Flowers' third trial consisted of 11 white jurors and 1 black juror. The lone black juror who served on the jury was seated after the State ran out of peremptorystrikes." Batson affirmed.   Flowers v. Mississipi, No. 17-9572 (US S.Ct. 6/21/19)


https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf


QUOTATION (J. Kavanaugh): "The State appeared to proceed as if Batson had never been decided. The State's relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury. . .The State's actions in the first four trials necessarily inform our assessment of the State's intent going into Flowers' sixth trial. We cannot ignore that history. We cannot take that history out of the case."  Flowers v. Mississipi, No. 17-9572 (US S.Ct. 6/21/19)


https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf


QUOTATION (J. Kavanaugh): "One can slice and dice the statistics and come up with all sorts of ways to compare the State's questioning of excluded black jurors with the State's questioning of the accepted white jurors. But any meaningful comparison yields the same basic assessment: The State spent far more time questioning the black prospective jurors than the accepted white jurors. . .[D]isparate questioning can be probative of discriminatory intent."  Flowers v. Mississipi, No. 17-9572 (US S.Ct. 6/21/19)


https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf

QUOTATION (J. Thomas, Dissent): "Much of the Court's opinion is a paean to Batson v.Kentucky, which requires that a duly convicted criminal go free."   Flowers v. Mississipi, No. 17-9572 (US S.Ct. 6/21/19)


https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf

 

BUT DIDN'T YOU JUST SAY. . .? (J. Thomas, Dissent): "If the Court's opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again." Flowers v. Mississipi, No. 17-9572 (US S.Ct. 6/21/19)


https://www.supremecourt.gov/opinions/18pdf/17-9572_k536.pdf


PRACTICING VETERINARY MEDICINE:   Court properly dismissed the charge of practicing veterinary medicine without a license where Defendant home-treated his injured dog by trying to remove bone fragments from its rectum. Avella v. State, 5D18-1407 (6/21/19)


https://www.5dca.org/content/download/527654/5862037/file/181407_1259_06212019_08332851_i.pdf

CRUELTY TO ANIMAL: Whether the act of trying to remove bone fragments from his dog's rectum constitutes cruelty to animals is a jury question and cannot be resolved by a motion to dismiss.   Avella v. State, 5D18-1407 (6/21/19)


https://www.5dca.org/content/download/527654/5862037/file/181407_1259_06212019_08332851_i.pdf


POST CONVICTION RELIEF: Defendant should be allowed to amend his claims for postconviction relief where his attorney failed to file an amended motion nor to inform Defendant of the need to do so.   Babic v. State, 2D18-1681 (6/21/19)


https://www.2dca.org/content/download/527684/5862412/file/181681_39_06212019_08224368_i.pdf


APPEALS:    A criminal defendant's right to self-representation does not extend to appellate proceedings. In its discretion, appellate court may deem Appellant's request to represent himself.   Garcia v. Schneider, 3D18-2484 (6/21/19)


https://www.3dca.flcourts.org/content/download/527749/5863116/file/182484_814_06212019_05511139_i.pdf

THEFT-VALUE-HEARSAY: Defendant cannot be found guilty of grand theft based upon the theft of less-than-a-year-old Louis Vuitton Neverfull purse and wallet, which the victim had bought for $1500 and $700 respectively. The victim's testimony, over objection, that the replacement value for the items on eBay were about $1000 and $400 is insufficient to establish the value. Hearsay evidence from websites as to value is inadmissible hearsay. Gonzalez v. State, 3D19-479 (6/21/19)


https://www.3dca.flcourts.org/content/download/527664/5862160/file/190479_812_06212019_10205195_i.pdf

QUOTATION: "Courts. . . are presumed to be no more ignorant than the public generally." Gonzalez v. State, 3D19-479 (6/21/19)


https://www.3dca.flcourts.org/content/download/527664/5862160/file/190479_812_06212019_10205195_i.pdf


SENTENCING-CONSIDERATIONS: Consideration of a lack of remorse or failure to take responsibility is fundamental error. In animal abuse case, Court's consideration of the Defendant's failure to take responsibility for the injuries to his dog requires resentencing before a different judge.   Piccinini v. State, 5D17-2919 (6/21/19)


https://www.5dca.org/content/download/527649/5861977/file/172919_1259_06212019_08200401_i.pdf

 

DOUBLE JEOPARDY: To determine whether multiple convictions of solicitation of a minor . . . and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document-not the entire evidentiary record.   Richardson v. State, 2D17-3814 (6/21/19)


https://www.2dca.org/content/download/527676/5862316/file/173814_114_06212019_08195870_i.pdf

CROSS-EXAMINATION: Court erred in limiting cross-examination of a flipping codefendant into the fact that the witness had been facing up to life in prison. Defendant's Sixth Amendment right to confront witnesses outweighs the policy of shielding the jury from learning the maximum penalty the Defendant faced (which was the same as that of the witness).   Rivera v. State, 5D17-1397 (6/21/19)


https://www.5dca.org/content/download/527647/5861953/file/171397_1259_06212019_08105889_i.pdf

 

QUOTATION (Dissent):   "Nobody needed to measure Pinocchio' nose to understand that he often lied."   Rivera v. State, 5D17-1397 (6/21/19)


https://www.5dca.org/content/download/527647/5861953/file/171397_1259_06212019_08105889_i.pdf

 

STATEMENTS OF DEFENDANT-FIFTH AMENDMENT: "Don't know what to tell you. I need a lawyer, man," and statement that he could not tell detectives much because he had to speak to his lawyer first are unambiguous requests for counsel. Statements should have been suppressed. However, error is harmless here.   Wilson v. State, 5D17-3568 (6/21/19)

 

https://www.5dca.org/content/download/527651/5862001/file/173568_1257_06212019_08253273_i.pdf

 

SEARCH AND SEIZURE: One has no reasonable expectation of privacy when uploading child pornography to an online chatroom.   Morales v. State, 1D18-3996 (6/20/19)

 

https://www.1dca.org/content/download/527564/5860982/file/183996_1284_06202019_11350192_i.pdf

 

SEARCH AND SEIZURE: Fourth Amendment does not apply to a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official., here, the chatroom administrator.   Morales v. State, 1D18-3996 (6/20/19)

 

https://www.1dca.org/content/download/527564/5860982/file/183996_1284_06202019_11350192_i.pdf

 

 

SELF-INCRIMINATION-PASSWORD: In determining whether the Fifth Amendment protects compelled disclosure of a password to a phone in the state's possession, the proper legal inquiry is whether the state is seeking to compel a suspect to provide a password that would allow access to information the state knows is on the suspect's cellphone and has described with reasonable particularity. Defendant cannot be compelled to disclose password to cell phone on the assumption that co-defendant had communicated with him before the crime. Where the state establishes factually that it knows that a password existed, that the suspect possesses or controls the password, and that the suspect's actions disclosed or authenticated the password sought it is a foregone conclusion to force its disclosure. Unless the state can describe with reasonable particularity the information it seeks to access on a specific cellphone, an attempt to seek all communications, data and images is an unlawful fishing expedition.   Pollard v. State, 1D18-4572 (6/20/19)


https://www.1dca.org/content/download/527565/5860994/file/184572_1282_06202019_11363454_i.pdf

 

SIMILAR FACT EVIDENCE: In Shaken Baby case, prior instances of abuse committed by the Defendant against a particular child are admissible where the defendant is charged with abusing that child, especially where the Defendant suggested that the child's injuries may have been the result of an accident. There is no need for factual similarity.    Lowery v. State, 1D17-3716 (6/20/19)

 

https://www.1dca.org/content/download/527560/5860934/file/173716_1284_06202019_11312670_i.pdf

 

 

JURY INSTRUCTION-UNCHARGED LESSER: Where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment. In child homicide, Court erred in instructing on malicious punishment as a mens of committing aggravated child abuse although not specifically alleged in the information, but error is harmless.   Lowery v. State, 1D17-3716 (6/20/19)
https://www.1dca.org/content/download/527560/5860934/file/173716_1284_06202019_11312670_i.pdf

 

LESSER INCLUDED: Court did not err in instructing on the lesser of manslaughter by culpable negligence in the absence of evidence of negligence. Manslaughter by culpable negligence is a category 1, necessarily lesser included offense and must be given.  Lowery v. State, 1D17-3716  (6/20/19)

 

https://www.1dca.org/content/download/527560/5860934/file/173716_1284_06202019_11312670_i.pdf

CLOSING ARGUMENT: One hour time limit for closing argument in homicide case is permissible. Lowery v. State, 1D17-3716 (6/20/19)


https://www.1dca.org/content/download/527560/5860934/file/173716_1284_06202019_11312670_i.pdf

 

SCORESHEET-PENETRATION: Penetration points are properly scored when supported by the factual basis and is not objected to, notwithstanding that penetration is not alleged in the information.   Ayos v. State, 4D17-3840 and 4D17-3857 (6/19/19)


https://www.4dca.org/content/download/527449/5859629/file/173840_1708_06192019_08574995_i.pdf

 

COSTS: Costs may be assessed per case, not per count. Ayos v. State, 4D17-3840 and 4D17-3857 (6/19/19)

 

https://www.4dca.org/content/download/527449/5859629/file/173840_1708_06192019_08574995_i.pdf

 

JUVENILE-COMMITMENT-DEVIATION: To justify a commitment disposition that departs from the DJJ's recommendation, Court must articulate an understanding of the different restrictiveness levels and explain why one is better than the other, and point out considerations that DJJ overlooked. Merely listing reasons without convincing analysis is insufficient.   C.C. v. State, 4D17-3890 (6/19/19)


https://www.4dca.org/content/download/527450/5859641/file/173840_1708_06192019_08574995_i.pdf

 

VOP:  A plea of no contest does not constitute competent substantial evidence that the Defendant committed a new law violation. "[E]vidence that a probationer entered a no contest plea to a new charge, without more, is. . . insufficient to sustain a revocation of probation."   Contreras v. State, 2D17-4989 (6/19/19)

 

https://www.2dca.org/content/download/527477/5859983/file/174989_39_06192019_08432376_i.pdf

 

 

VOP: Before a probationer can be imprisoned for failure to pay a monetary obligation, the trial court must inquire into the probationer's ability to pay and make an explicit finding that he willfully failed to do so.   Contreras v. State, 2D17-4989 (6/19/19)


https://www.2dca.org/content/download/527477/5859983/file/174989_39_06192019_08432376_i.pdf

 

HEARSAY:   Out of court statement by cellmate that Defendant had confessed, later disclaimed, is inadmissible and not within the identification exception to the hearsay rule, nor is it admissible for impeachment of the cellmate where the purpose is to establish the truth of the statement. "It is. . .obvious that the State's true aim was to circumvent the hearsay rules."   Lawrence v. State, 2D17-4071 (6/19/19)


https://www.2dca.org/content/download/527475/5859959/file/174071_39_06192019_08421424_i.pdf

 

AGGRAVATED ANIMAL CRUELTY: Slashing and stabbing sheep to death is aggravated animal cruelty. Reyes v. State, 3D18-0164 (6/19/19)


RESENTENCING-DOWNWARD DEPARTURE: A defendant is entitled to a de novo sentencing proceeding after an appellate court determines that the trial court's reason for downward departure are invalid. On remand for resentencing due to the substantive invalidity of a downward departure, the trial court is permitted to impose a downward departure as long as the departure comports with the principles and criteria of the Criminal Punishment Code. Shine v. State, No. SC18-688 (6/13/19)

https://www.floridasupremecourt.org/content/download/527168/5856583/file/sc18-688.pdf

APPEAL-DISPOSITIVE ISSUE-STAND YOUR GROUND-RETROACTIVITY: An issue is dispositive only when it is clear that there will be no trial, regardless of the appeal. Issue of whether the retroactive application of the statutory change to the burden of proof in stand your ground hearings in case in which the Defendant entered a negotiated plea after the hearing is not an appealable because it is not dispositive. Where, as here, the remedy on appeal is a new SYG hearing, the possibility of the trial remains, and so the issue is not dispositive. Discussion of the Gorilla Rule and precognition. Hicks v. State, No. 1D17-1830 (6/12/19)

https://www.1dca.org/content/download/527110/5856050/file/171830_1284_06122019_10414973_i.pdf

STAND YOUR GROUND: Court erred in finding that the Defendant was trespassing, and therefore was not entitled to shoot his sister's boyfriend, who was fighting with the Defendant's brother who had come to his sister's defense. The brother's trespass, if it existed, cannot be imputed to the Defendant. Fletcher v. State, No. 1D18-1867 (6/12/19)

https://www.1dca.org/content/download/527112/5856074/file/181867_1282_06122019_10435429_i.pdf

APPEAL-PRESERVATION-STAND YOUR GROUND-RETROACTIVITY: Defendant cannot raise on appeal the issue of the retroactivity of the change in the burden of proof and stand your ground hearings where he did not raise the argument in the trial court. Good summary of SYG law. Mency v. State, No. 1D18-1993 (6/12/19)

https://www.1dca.org/content/download/527113/5856086/file/181993_1284_06122019_10443998_i.pdf

LIFE SENTENCE-MINOR-HOMICIDE: Minor Defendant who raped and murdered a 17-year-old girl is lawfully sentenced to life in prison with the possibility of a sentence review after 25 years. Jackson v. State, No. 1D18-2541 (6/12/19)

https://www.1dca.org/content/download/527115/5856110/file/182541_1284_06122019_10464248_i.pdf

POST CONVICTION RELIEF: Counsel is not ineffective for not presenting mitigating evidence at sentencing where a life sentence is mandatory. Reese v. State, No. 1D18-3108 (6/12/19)

https://www.1dca.org/content/download/527118/5856146/file/183108_1284_06122019_10491520_i.pdf

POST FACTO-RE-SENTENCING: Defendant may be re-sentenced to life imprisonment, this time as a Habitual Felony Offender, after the life sentence as a Violent Career Criminal is vacated. Bell v. State, No. 1D18-3168 (6/12/19)

https://www.1dca.org/content/download/527119/5856158/file/183168_1284_06122019_10500032_i.pdf

VOP: Defendant cannot be violated for failing to report to probation by May 31 when he was arrested on other grounds on that same date. Remanded for re-sentencing. Ledsome v. State, No. 1D18-3859 (6/12/19)

https://www.1dca.org/content/download/527120/5856170/file/183859_1287_06122019_10510329_i.pdf

RESTITUTION: Restitution order must be entered at the time of sentencing; Restitution order entered before sentencing (here, a year before) must be stricken. Ward v. State, 2D17-3380 (6/12/19)

https://www.2dca.org/content/download/527099/5855906/file/173380_65_06122019_08585525_i.pdf

JURY INSTRUCTIONS: Court's failure to instruct the jury on reasonable doubt and burden of proof is fundamental error. Williams v. State, No. 3D18-1188 (6/12/19)

https://www.3dca.flcourts.org/content/download/527067/5855519/file/181188_812_06122019_10083439_i.pdf

PRETRIAL DETENTION: Court may order a defendant detained without bond beyond first appearance for a reasonable time pending an Arthur bond hearing without making a preliminary finding of proof evident, presumption great. Thourtman v. Junior, No. 3D18-2433 (6/12/19)

https://www.3dca.flcourts.org/content/download/527069/5855543/file/182433_806_06122019_10133810_i.pdf

WHAT THEY TEACH AT JUDGE SCHOOL: "In doing so, the trial court followed the standard practice taught to trial judges in Florida. See, e.g., Fla. Court Educ.5 at 7 (2016) ('In cases in which death or life imprisonment is a possible penalty, the first appearance judge, upon finding of probable cause, will typically order that the defendant be held with no bond.'. . .)". Thourtman v. Junior, No. 3D18-2433 (6/12/19)

https://www.3dca.flcourts.org/content/download/527069/5855543/file/182433_806_06122019_10133810_i.pdf

QUOTATION (DISSENT): "[W]e are duty-bound to follow the Florida Supreme Court's decision in State v. Arthur. . ., which unambiguously held that 'before release on bail pending trial can ever be denied, the state must come forward with a showing that the proof of guilt is evident or the presumption is great.' . . .The majority opinion embraces a contrary view, creating a procedural mechanism possessed of both logic and practicality. And it may well be that my position possesses neither logic nor practicality, constrained as it is by a faithful adherence to Florida Supreme Court precedent. . . Because the majority opinion is not similarly constrained, I must respectfully dissent." Thourtman v. Junior, No. 3D18-2433 (6/12/19)

https://www.3dca.flcourts.org/content/download/527069/5855543/file/182433_806_06122019_10133810_i.pdf

QUOTATION (Dissent): "Arthur says what it means and means what it says." Thourtman v. Junior, No. 3D18-2433 (6/12/19)

https://www.3dca.flcourts.org/content/download/527069/5855543/file/182433_806_06122019_10133810_i.pdf

ADMINISTRATIVE PROBATION: Administrative probation is non-reporting probation which can only be imposed by the Department of Corrections, but Defendant who is sentenced by court to administrative probation is estopped from challenging its legality when he violates it because he reaped its benefit. Cadet v. State, No. 3D19-178 (6/12/19)

https://www.3dca.flcourts.org/content/download/527070/5855555/file/190178_809_06122019_10145027_i.pdf

VETERAN'S COURT: Court may exercise its discretion to deny a qualifying Defendant from entry into Veteran's Court. A judge's decision on whether to admit an eligible and willing defendant into veterans' court is a discretionary act. Simeone v. State, No. 4D18-3470 (6/12/19)

https://www.4dca.org/content/download/527059/5855417/file/183470_1703_06122019_09160624_i.pdf

APPEALS-PRESERVATION-DISPOSITIVE ISSUE: Defendant may not appeal denial of motion to suppress narcotics where Defendant pled as well to BLEO and Resisting with Violence. To plead and appeal, the issue mt be dispostive of the entire case, not only some counts. An issue is dispositive only if, regardless of whether the appellate court affirms or reverses the lower court's decision, there will be no trial of the case. Milliron v. State, No. 1D16-3889 (1st DCA 6/7/19)

https://www.1dca.org/content/download/526797/5852802/file/163889_1284_06072019_11133032_i.pdf

PTI: Under Fla.Stat. §397.334(2) a court may order an individual charged with a nonviolent felony to enter a pretrial treatment-based drug court program upon motion of a party or the court. The Court's power to order drug court treatment is discretionary, and a late application is sufficient basis for denial. Byrd v. State, No. 1D17-1529 (1st DCA 6/7/19)

https://www.1dca.org/content/download/526798/5852814/file/171529_1286_06072019_11181025_i.pdf

SEARCH AND SEIZURE: Officers lawfully detained the Defendant on reasonable suspicion after an anonymous caller reported an unknown individual on a motorcycle walking around an abandoned home at night and Defendant on motorcycle tried to flee officers. Weakley v. State, No. 1D17-2727 (1st DCA 6/7/19)

https://www.1dca.org/content/download/526799/5852826/file/172727_1284_06072019_11204563_i.pdf

QUOTATION: "Lowering the bar in this Fourth Amendment anonymous tip case is a limbo dance I cannot join." Weakley v. State, No. 1D17-2727 (1st DCA 6/7/19)

https://www.1dca.org/content/download/526799/5852826/file/172727_1284_06072019_11204563_i.pdf

POST CONVICTION RELIEF-CONSECUTIVE SENTENCES: One cannot be sentenced to consecutive sentences for multiple homicides resulting from placing one bomb, but where the record is not clear that a single bomb was placed, the consecutive sentences cannot be challenged under Rule 3.800. Jarvis v. State, No. 1D17-4186 (1st DCA 6/7/19)

https://www.1dca.org/content/download/526801/5852850/file/174186_1284_06072019_11274281_i.pdf

MOTION FOR NEW TRIAL: In ruling on a motion for new trial the correct standard is weight of the evidence, not sufficiency of the evidence. However, error here, if any, was not preserved by an articulated objection. Kline v. State, No. 1D18-1706 (1st DCA 6/7/19)

https://www.1dca.org/content/download/526805/5852904/file/181706_1284_06072019_11345639_i.pdf

MANDATORY MINIMUM-ILLEGAL SENTENCE: Defendant may not move to correct an illegal sentence which failed to impose a ten-year mandatory minimum for possession of a firearm because Rule 3.800 only authorizes the defendant to move to correct an adverse ruling. Conflict certified. Earl v. State, No. 1D18-3828 (1st DCA 6/7/19)

https://www.1dca.org/content/download/526809/5852952/file/183828_1279_06072019_11432659_i.pdf

CONSTRUCTIVE POSSESSION: Defendant cannot be found guilty of possession of pills found in the center console under paperwork belonging to the defendant where the vehicle is jointly occupied. "[T]he presence of some of a defendant's personal items in the same area as contraband merely supports an inference that the defendant had knowledge of and dominion and control over the substance" but does not disprove the reasonable hypothesis of innocence that someone else placed the contraband in the glove compartment. Nugent v. State, No. 2D17-3169 (2nd DCA 6/7/19)

https://www.2dca.org/content/download/526781/5852604/file/173169_39_06072019_09023749_i.pdf

CONVICTION RELIEF: A claim that a sentence was illegally imposed because the information did not charge the defendant with an element required for his [or her] sentence is cognizable in a rule 3.800(a) motion. Reed v. State, No. 2D18-2005 (2nd DCA 6/7/19)

https://www.2dca.org/content/download/526788/5852688/file/182005_65_06072019_09092718_i.pdf

WITHDRAWAL OF PLEA: Counsel's failure to advise Defendant that entry of a plea would likely result in termination of parental rights is adequate grounds to withdraw the plea. "Failure to inform [a defendant] of [a] collateral consequence may not have rendered the plea involuntary, but . . . ignorance of it does meet the 'good cause' test for a pre-sentence plea withdrawal." Purcell v. State, 5D17-2901 (5th DCA 6/7/19)

https://www.5dca.org/content/download/526763/5852370/file/172901_1260_06072019_08183139_i.pdf

JURY INSTRUCTIONS-AMENDMENT: Jury instructions related to insanity, involuntary intoxication/specific intent, Entrapment, and jury findings for Alleyne enhancements. In re: Standard Jury Instructions, 44 Fla. L. Weekly S181a (FLA 65/6/19)

https://www.floridasupremecourt.org/content/download/526693/5851591/file/sc18-2029.pdf

APPEAL-PRESERVATION: Defendant who pleads guilty or nolo contendere forfeits the right to appeal the judgment unless he expressly reserves the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved. Osborne v. State, 44 Fla. L. Weekly D1442a (1st DCA 6/5/19)

https://www.1dca.org/content/download/526679/5851453/file/172765_1284_06052019_03000424_i.pdf

CERTIORARI: Appellate court lacks jurisdiction to entertain a petition for writ of certiorari absent a finding that the petitioner has suffered an irreparable harm that cannot be remedied on direct appeal. Martinez v. State, 44 Fla. L. Weekly D1440c (3rd DCA 6/5/19)

https://www.3dca.flcourts.org/content/download/526673/5851379/file/190876_804_06052019_10223349_i.pdf

OPENING THE DOOR: Defendant opened the door to statement by witness that she (the Defendant) had told the witness that she had previously tried to poison her husband by antifreeze when and direct the witness said that he did not believe that she had tried to kill her husband. Dippolito v. State, 44 Fla. L. Weekly D1429a (4th DCA 6/5/19)

https://www.4dca.org/content/download/526587/5850315/file/172486_1257_06052019_09071289_i.pdf

ENTRAPMENT: Law enforcement's invited participation of the "Cops" TV program in the investigation of her solicitation to murder her husband is not objective entrapment. Objective entrapment is a question of law for the court and thus there is no right to a jury determination of the issue. Dippolito v. State, 44 Fla. L. Weekly D1429a (4th DCA 6/5/19)

https://www.4dca.org/content/download/526587/5850315/file/172486_1257_06052019_09071289_i.pdf

APPEAL-PRESERVATION-JUVENILE-SENTENCING-COMMITMENT LEVEL: Where Child does not object when Court exceeds DJJ's recommended commitment level, the issue is not preserved for appeal. D.L.T. v. State, 44 Fla. L. Weekly D1428a (4th DCA 6/5/19)

https://www.4dca.org/content/download/526596/5850423/file/182528_1257_06052019_09295384_i.pdf

POST CONVICTION RELIEF: Defendant's motion for postconviction relief is deficient where it alleges that counsel did not advise him that he was facing a mandatory life sentence as a PRR if he turned down the plea offer, but failed to allege that the State would not have withdrawn the plea offer and the court would have accepted it. Holmes v. State, 44 Fla. L. Weekly D1427b (4th DCA 6/5/19)

https://www.4dca.org/content/download/526595/5850411/file/182249_1708_06052019_09284106_i.pdf

SEXUAL BATTERY-JURY INSTRUCTIONS: Court erred in instructing jury on the elements of sexual battery by using the word "butt" rather than "anus," where the instructions include no definition for "butt." Error is fundamental. Ramirez Ramos v. State, 44 Fla. L. Weekly D1424b (4th DCA 6/5/19)

https://www.4dca.org/content/download/526590/5850351/file/181035_1709_06052019_09145801_i.pdf

SEARCH AND SEIZURE-INVESTIGATORY STOP: Police had reasonable suspicion to stop the defendant who matched the description of one of the people by a citizen informant who said that three men entered a house, a gunshot was heard, and 2 men came out. Joseph v. State, 44 Fla. L. Weekly D1424a (4th DCA 6/5/19)

https://www.4dca.org/content/download/526589/5850339/file/180538_1257_06052019_09123224_i.pdf

PLEA-WITHDRAWAL: Court must appoint conflict-free counsel to represent Defendant on motion to withdraw plea. Cuciak v. State, 44 Fla. L. Weekly D1423a (4th DCA 6/5/19)

https://www.4dca.org/content/download/526588/5850327/file/180437_1709_06052019_09104996_i.pdf

DOWNWARD DEPARTURE-ISOLATED INCIDENT: Multiple bank robberies over a six-month period were not isolated incidents, and thus did not merit a downward departure sentence. State v. Crossley-Robinson, 44 Fla. L. Weekly D1421a (4th DCA 6/5/19)

https://www.4dca.org/content/download/526591/5850363/file/181393_1709_06052019_09190805_i.pdf

MAY 2019

DEPOSITION-FIFTH AMENDMENT-CERTIORARI: Defendant may not challenge pretrial by petition for writ of certiorari the Court's ruling that the Defendant may not take the deposition of a key witness who intends to make a blanket 5th amendment refusal to testify. "Although Magbanua persuasively argues that the protective order preventing any pretrial questioning of Adelson significantly impairs her ability to prepare a defense, any material injury to Magbanua may be corrected on direct appeal." Interesting discussion. Magbanua v. State, No. 1D19-1875 (1st DCA 5/31/19)

https://www.1dca.org/content/download/526375/5848300/file/191875_1279_05312019_04002232_i.pdf

SCORESHEET: Court may not deny without a hearing Defendant's objection to points on the sentencing scoresheet for convictions which he claims do not exist. Murphy v. State, 44 Fla. L. Weekly D1415b (2nd DCA 5/31/19)

https://www.2dca.org/content/download/526330/5847847/file/170731_114_05312019_08475042_i.pdf

DOUBLE JEOPARDY: Dual convictions for unlawfully using a two-way communications device and transmitting material harmful to minors via electronic mail violates double jeopardy because the elements of the former are subsumed in the elements of the latter. Transmitting an image, information, or data via electronic mail necessarily involves the use of a "two-way communications device. Weitz v. State, 44 Fla. L. Weekly D1413a (2nd DCA 5/31/19)

https://www.2dca.org/content/download/526333/5847883/file/180072_39_05312019_09061457_i.pdf

JUVENILE-SENTENCING: Court is not required to set forth findings justifying departure from DJJ recommendation in deciding whether to commit juvenile even when DJJ recommended probation; findings are required only when court departs from recommended restrictiveness level of commitment). C.T.A. v. State, 44 Fla. L. Weekly D1408a (5th DCA 5/31/19)

https://www.5dca.org/content/download/526323/5847763/file/183330_1257_05312019_08234830_i.pdf

DWLS-JOA: Defendant who never had a driver's license cannot be convicted of DWLS. Hayes v. State, 44 Fla. L. Weekly D1402a (5th DCA 5/31/19)

https://www.5dca.org/content/download/526314/5847655/file/181110_1260_05312019_08005125_i.pdf

SUSPENDED SENTENCE: Upon violation of community control, Court may impose the full suspended sentence if he understands that he has authority to impose less than the full suspended sentence. Jenkins v. State, 44 Fla. L. Weekly D1401a (5th DCA 5/31/19)

https://www.5dca.org/content/download/526320/5847727/file/182706_1257_05312019_08184608_i.pdf

CONTINUANCE: Court abused discretion in denying motion to continue VOP hearing when the original public defender became unavailable due to being called up for military service a week before the hearing and the substitute public defender announced herself unprepared to proceed. Criminal defendants are entitled to preparation sufficient to assure at least minimal quality of counsel. Boffo v. State, 44 Fla. L. Weekly D1399c (5th DCA 5/31/19)

https://www.5dca.org/content/download/526313/5847643/file/180015_1260_05312019_07571674_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failing to call exculpatory witnesses. Payne v. State, 44 Fla. L. Weekly D1398b (5th DCA 5/31/19)

https://www.5dca.org/content/download/526325/5847787/file/190036_1259_05312019_08292343_i.pdf

AMENDMENT-JURY INSTRUCTIONS: Standard Jury Instructions are modified to clarify possession instruction, lessers. ("Mere proximity to a substance does not establish that the person intentionally exercised control over the substance in the absence of additional evidence." In re: Standard Jury Instructions, 44 Fla. L. Weekly S179a (FLA 5/30/19)

https://www.floridasupremecourt.org/content/download/526241/5847059/file/sc18-1860.pdf

ADVERSARY PRELIMINARY HEARING: Defendant who is out on bond but subject to restrictions and who remains uncharged for more than 21 day is not entitled to a hearing to lift the conditions for failure of the State to file charges. Williams v. State, 44 Fla. L. Weekly D1396a (1st DCA 5/30/19)

https://www.1dca.org/content/download/526145/5845871/file/185337_1281_05302019_09385166_i.pdf

POST CONVICTION RELIEF: Defendant who had pled guilty to manslaughter is entitled to a hearing on claim that counsel was ineffective for failing to tell him that the pathologist report said that the Defendant's battery of the victim was not the cause of death. A generalized plea colloquy confirming satisfaction with counsel was insufficient to refute a claim based on counsel's failure to advise of a specific defense or facts supporting it. McBee v. State, 44 Fla. L. Weekly D1395a (1st DCA 5/30/19)

https://www.1dca.org/content/download/526139/5845799/file/173383_1286_05302019_09304161_i.pdf

GRAND THEFT: Defendant cannot be found guilty of grand theft of liquor where there was no evidence as to its value. Wade v. State, 44 Fla. L. Weekly D1388a (3rd DCA 5/29/19)

http://3dca.flcourts.org/Opinions/3D18-2078.pdf

LESSER INCLUDED-JURY INSTRUCTION-JURY PARDON: Failure to give a requested jury instruction on a necessarily lesser included offense one step removed from the charged offense is subject to a harmless error analysis and is no longer per se reversible error. Franklin v. State, 44 Fla. L. Weekly D1385a (2nd DCA 5/29/19)

https://www.2dca.org/content/download/526044/5844671/file/172958_173_05292019_08330922_i.pdf

SENTENCING-CONSIDERATIONS: In sentencing Defendant for L & L, Court improperly considered a videotape the Defendant roaming through the children section of a library on a separate date . Defendant must be re-sentenced by a different judge. Court may not consider uncharged conduct nor rely on speculation that the defendant has committed or may commit other crimes based on its view of the uncharged conduct. Tharp v. State, 44 Fla. L. Weekly D1384a (2nd DCA 5/29/19)

https://www.2dca.org/content/download/526048/5844719/file/174513_114_05292019_08383999_i.pdf

REVERSE WILLIAMS RULE: Defendant is entitled to present evidence that another person had committed a burglary in the same area in a strikingly similar manner. The reverse Williams rule is simply the application of Williams rule principles to the circumstance in which a defendant (rather than the State) seeks to introduce evidence of similar crimes committed by another person (rather than the defendant) to show that the defendant did not commit the offense for which he or she is being tried. Newby v. State, 44 Fla. L. Weekly D1377a (2nd DCA 5/29/19)

https://www.2dca.org/content/download/526040/5844623/file/170228_39_05292019_08305356_i.pdf

KINDA WEIRD: "Lieutenant William Byrd drove by Mr. Newby, who was jogging across one such road. He was wearing boxer shorts, a T-shirt, and dress socks with no shoes. The temperature was in the forties -- cold by Florida standards. That got the lieutenant's Spidey senses tingling. . . Mr. Newby said that he started to undress outside, but that he then saw a car drive past that belonged to people he knew lived nearby, and that he jogged over to meet them. When he got to the house where they lived, he decided to keep jogging." Newby v. State, 44 Fla. L. Weekly D1377a (2nd DCA 5/29/19)

https://www.2dca.org/content/download/526040/5844623/file/170228_39_05292019_08305356_i.pdf

COUNSEL: Court must allow substitution of counsel on the eve of the trial and grant a two or three day continuance for the new attorney to prepare where, as here the request for substitution of counsel was not made in bad faith and Defendant and only very recently been made aware of the trial date. Jones v. State, 44 Fla. L. Weekly D1366a (4th DCA 5/29/19)

https://www.4dca.org/content/download/526029/5844479/file/180656_1709_05292019_08443365_i.pdf

DISCOVERY-DISCLOSURE: Court did not err in excluding a Facebook video purporting to show the Defendant at a concert on the date and time of the armed burglary on the ground that it was not disclosed until the middle of the trial. Carn v. State, 44 Fla. L. Weekly D1364a (4th DCA 5/29/19)

https://www.4dca.org/content/download/526028/5844467/file/171834_1257_05292019_08425916_i.pdf

EVIDENCE: Evidence that the Victim had a large sum of money in his house at the time of the home invasion robbery is admissible to show motive notwithstanding the lack of evidence that the Defendant knew about the settlement. Carn v. State, 44 Fla. L. Weekly D1364a (4th DCA 5/29/19)

https://www.4dca.org/content/download/526028/5844467/file/171834_1257_05292019_08425916_i.pdf

HEARSAY-OUT-OF-COURT IDENTIFICATION: Recorded statement of store employee who identified the Defendant from a video recording, but who is not present at the actual robbery, is inadmissible. Ellison v. State, 44 Fla. L. Weekly D1362a (4th DCA 5/29/19)

https://www.4dca.org/content/download/526028/5844467/file/171834_1257_05292019_08425916_i.pdf

HEARSAY-OUT-OF-COURT IDENTIFICATION: Recorded statements of identification by eyewitnesses are admissible because such statements are not hearsay by statutory definition, but a description of the person so identified is inadmissible hearsay. Ellison v. State, 44 Fla. L. Weekly D1362a (4th DCA 5/29/19)

https://www.4dca.org/content/download/526028/5844467/file/171834_1257_05292019_08425916_i.pdf

EVIDENCE-SILENCE: The fact that the Defendant hung up phone when officer told him he was investigating an armed robbery is not admissible. "Under federal law, a defendant's pre-arrest, pre-Miranda silence may be used as substantive evidence of a defendant's guilt where a defendant has not expressly invoked the privilege against self-incrimination. . . The Florida Supreme Court, in contrast, has concluded that 'a defendant's privilege against self-incrimination guaranteed under article I, section 9 of the Florida Constitution is violated when his or her pre-arrest, pre-Miranda silence is used against the defendant at trial as substantive evidence of the defendant's consciousness of guilt.'" Ellison v. State, 44 Fla. L. Weekly D1362a (4th DCA 5/29/19)

https://www.4dca.org/content/download/526028/5844467/file/171834_1257_05292019_08425916_i.pdf

SELF-DEFENSE-VICTIM'S PRIOR ACT OF VIOLENCE: Evidence of the Victim's prior violent act of meeting of the woman a few days before the alleged murder, known to the Defendant at the time, is admissible to show the Defendant's reasonable apprehension of violence by the Victim. All doubts as to the admission of self-defense evidence must be resolved in favor of the accused. Farrell v. State, 44 Fla. L. Weekly D1361a (4th DCA 5/29/19)

https://www.4dca.org/content/download/526030/5844491/file/180683_1709_05292019_08472892_i.pdf

APPEAL-TIMELINESS: When Order Denying a Motion to Correct Illegal sentence is rendered on March 5th and the appeal is not filed until April 5th, the appeal is untimely. April 5th would have been the 31st day. (Maxwell Smart: "Missed by that much!.) Wallace v. State, 44 Fla. L. Weekly D1359b (1st DCA 5/28/19)

https://www.1dca.org/content/download/525956/5843605/file/191359_1279_05282019_10391938_i.pdf

STATEMENT OF DEFENDANT: Appellate court need not decide whether in custody interview of the defendant by a Child Protective Investigator requires Miranda because error here, if any, is harmless. Cooley v. State, 44 Fla. L. Weekly D1357a (1st DCA 5/28/19)

https://www.1dca.org/content/download/525950/5843535/file/174001_1284_05282019_10240357_i.pdf

MITIGATION-JURISDICTION: Court may not deny motion to mitigate while the appeal is pending. Court should have denied the motion for lack of jurisdiction because of the pending appeal. Underwood v. State, 44 Fla. L. Weekly D1351c (2nd DCA 5/24/19)v https://www.2dca.org/content/download/525590/5839023/file/174525_65_05242019_08385728_i.pdf

INEFFECTIVENESS-APPELLATE COUNSEL: Appellate counsel was ineffective for failing to argue that the court impermissibly considered lack of remorse and truthfulness and sentencing. "And continuing to lie is not going to help. . . Your insistence on trying to diminish your culpability is not helping your situation. You would be much better off in my eyes and certainly everyone else's if you would just tell the truth." Error is fundamental. Beauchamp v. State, 44 Fla. L. Weekly D1351a (5th DCA 5/24/19)

https://www.5dca.org/content/download/525573/5838837/file/183381_1255_05242019_08201378_i.pdf

POST CONVICTION RELIEF: Court is not bound by State's concession that a hearing is required on claim made a motion for postconviction relief, and may properly deny the motion without hearing. Amaro v. State, 44 Fla. L. Weekly D1349a (5th DCA 5/24/19)

https://www.5dca.org/content/download/525571/5838813/file/172744_1257_05242019_08063766_i.pdf

POST CONVICTION RELIEF: Defendant is not entitled relief on claim that counsel was ineffective for not requesting a Daubert hearing on expert testimony on tool marks, where his evidence that such testimony is scientifically unreliable was limited to articles found in a Google search without the underlying articles being admitted in evidence. Amaro v. State, 44 Fla. L. Weekly D1349a (5th DCA 5/24/19)

https://www.5dca.org/content/download/525571/5838813/file/172744_1257_05242019_08063766_i.pdf

POST CONVICTION RELIEF: Defendant failed to show prejudice in the Court's failure to give the jury the required cautionary instruction that if a question submitted by a juror is not allowed for any reason, the juror must not discuss it with the other jurors and must not hold it against either party. Prejudice is not presumed. Amaro v. State, 44 Fla. L. Weekly D1349a (5th DCA 5/24/19)

https://www.5dca.org/content/download/525571/5838813/file/172744_1257_05242019_08063766_i.pdf

EXPERT OPINION-EVIDENCE CODE: Frye is dead, Daubert is resurrected. Delisle receded from. In re: Amendments to the Florida Evidence Code, 44 Fla. L. Weekly S170a (FLA May 23, 2019)

https://www.floridasupremecourt.org/content/download/525509/5838164/file/sc19-107.pdf

QUOTATION: "Like the little-known codicil in the Faber College constitution, the concurring opinion cites section II.G.1. of our internal operating procedures. . .[N]o court, including ours, has ever cited this language or any part of section II. Ever." In re: Amendments to the Florida Evidence Code, 44 Fla. L. Weekly S170a (FLA May 23, 2019)

https://www.floridasupremecourt.org/content/download/525509/5838164/file/sc19-107.pdf

SENTENCING-CONSECUTIVE SENTENCES: Upon violation of probation, Court may impose sentences consecutively notwithstanding that the original sentences had been concurrent with each other. Forte v. State, 44 Fla. L. Weekly D1348a (3rd DCA 5/22/19)

http://www.3dca.flcourts.org/Opinions/3D19-0368.pdf

RECLASSIFICATION: A first-degree felony shall be reclassified to a life felony if a weapon or firearm is used. Second degree murder is a felony of the first degree, and when committed with a firearm, is reclassified as a life felony. Sheppard v. State, 44 Fla. L. Weekly D1344b (3rd DCA 5/22/19)

http://www.3dca.flcourts.org/Opinions/3D19-0638.pdf

WITHHOLD OF ADJUDICATION: Court may not withhold adjudication on the charge of False Report of Bomb Threat. The statutory authority to suspend a sentence for the crime does not include the authority to withhold adjudication of guilt. State v. Hansen, 44 Fla. L. Weekly D1335a (4th DCA 5/22/19)

https://www.4dca.org/content/download/525423/5837115/file/180261_1709_05222019_09202950_i.pdf

JURY INSTRUCTION-LESSER INCLUDED-LEWD AND LASCIVIOUS: Court is not required to give a permissive lesser included simple battery instruction on the charges lewd or lascivious molestation. The lesser crime of battery includes the elements of lack of consent. Statute on lewd and lascivious battery eliminates the defense of consent, but the act can nevertheless be consensual. De Aragon v. State, 44 Fla. L. Weekly D1330b (4th DCA 5/22/19)

https://www.4dca.org/content/download/525422/5837103/file/172010_1257_05222019_09185183_i.pdf

STATEMENTS OF DEFENDANT-VOLUNTARINESS: Once a suspect has waived Miranda rights, police are not required to end an interrogation if the defendant makes an equivocal or ambigu him ous request for counsel. Only an unambiguous and unequivocal request for counsel requires that police terminate an interrogation. A "Go ahead and f*****g sign off that I need a lawyer or whatever if I'm being arrested. If I'm not being arrested, then take me to a cell for my other warrants, so I can go ahead and get this s**t over with" is not an unequivocal and unambiguous invocation of his right to counsel. Gaskey v. State, 44 Fla. L. Weekly D1322a (1st DCA 5/21/19, corrected 5/24/19)

https://www.1dca.org/content/download/525278/5835462/file/172793_1284_05242019_09062638_i.pdf

PLEA-WITHDRAWAL: In order to show cause why the plea should be withdrawn, mere allegations are not enough; the defense must offer proof that the plea was not voluntarily and intelligently entered. Vito v. State, 44 Fla. L. Weekly D1326a (1st DCA 5/21/19)

https://edca.1dca.org/DCADocs/2017/3076/173076_1284_05212019_10283883_i.pdf

PLEA-WITHDRAWAL: Defendant cannot withdraw a plea to 117 counts of possession of child porn and 2 counts of possession with intent to promote child porn based on the allegation that he would not have entered the plea if he had known that his counsel failed to reserve the right to appeal an order denying his motion to dismiss the last 2 counts where, as here, there was no prejudice since it is unlikely the Defendant would have proceeded to trial anyways, and the Motion to dismiss was meritless. Mallet v. State, 44 Fla. L. Weekly D1325a (1st DCA 5/21/19)

https://edca.1dca.org/DCADocs/2017/4627/174627_1284_05212019_10291578_i.pdf

CORPUS DELICTI: Child cannot be convicted of possession of firearm by a delinquent or a minor after confessing to owning a gun found in a car occupied by the Child and 2 other people not all of whom were delinquents. "If all of the occupants of the car in which the gun was found had previously been found to have committed delinquent acts. . .this would be a no-brainer affirmance. . .[H]owever, . . .this is one of those uncommon cases where. . .proof of the identity of the person who committed the offense was necessary to prove that a crime was committed at all." N.G.S. v. State, 44 Fla. L. Weekly D1316a (2nd DCA 5/17/19)

https://www.2dca.org/content/download/525186/5834425/file/174650_39_05172019_08343721_i.pdf

DOUBLE JEOPARDY-STALKING: Dual convictions for violation of injunction for stalking are not barred by double jeopardy where there are two distinct acts, here, firstt yelling at the Victim from across the street and then, after police arrived yelling "Bitch, I'm coming to get you" while pounding on his chest with both fists. Good discussion. Jacobs v. State, 44 Fla. L. Weekly D1313a (2nd DCA 5/17/19)

https://www.2dca.org/content/download/525176/5834305/file/172437_65_05172019_08273424_i.pdf

SWELLING A STREAM: Sixth case in Florida, and the second one this spring, in which the phrase "swelling a common stream of action" was used. Jacobs v. State, 44 Fla. L. Weekly D1313a (2nd DCA 5/17/19)

https://www.2dca.org/content/download/525176/5834305/file/172437_65_05172019_08273424_i.pdf

DOUBLE JEOPARDY: To determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document. Sherman v. State, 44 Fla. L. Weekly D1309a (1st DCA 5/16/19)

https://www.1dca.org/content/download/525078/5833295/file/134464_1286_05162019_10050739_i.pdf

APPEALS-INEFFECTIVE ASSISTANCE OF COUNSEL: Defendant cannot raise on direct appeal claim that counsel was ineffective for failing to move for a judgment of acquittal or failure to contest the value of the stolen property. If counsel had done so, the State could have reopened the case. Any relief must be sought under R 3.850. Stephens v. State, 44 Fla. L. Weekly D1308a (1st DCA 5/16/19)

https://www.1dca.org/content/download/525079/5833307/file/170850_1284_05162019_10084857_i.pdf

CIRCUMSTANTIAL EVIDENCE: Theory that evidence of the burglary is too circumstantial to sustain a conviction because someone else might have committed the burglary and put the stolen items in the car occupied by the defendant is too far-fetched to compel the court to grant a motion for judgment of acquittal. Stephens v. State, 44 Fla. L. Weekly D1308a (1st DCA 5/16/19)

https://www.1dca.org/content/download/525079/5833307/file/170850_1284_05162019_10084857_i.pdf

REVOCATION OF PROBATION-HEARSAY: Hearsay evidence is admissible in violation of probation hearings, but hearsay evidence that is not corroborated by non-hearsay evidence is insufficient to establish a violation of probation. Baldwin v. State, 44 Fla. L. Weekly D1306b (1st DCA 5/16/19)

https://www.1dca.org/content/download/525083/5833355/file/180465_1286_05162019_10215222_i.pdf

APPEAL-INEFFECTIVE ASSISTANCE: Claim that counsel was ineffective for failing to request the jury instruction on reckless driving as a lesser included offense cannot be raised on direct appeal. It is not inconceivable that there was a tactical explanation for counsel's decision not to request the lesser included instruction. Lee v. State, 44 Fla. L. Weekly D1304a (1st DCA 5/16/19)

https://www.1dca.org/content/download/525087/5833403/file/181842_1284_05162019_10325678_i.pdf

FINALITY OF ORDER: Where Defendant was initially sentenced to life in prison and later violated parole and was recommitted to serve a life sentence in thereafter was erroneously resentenced to life imprisonment with the possibility of review after 25 years, and neither party appeal that ruling, the trial court lacks jurisdiction to rescind the order and delete provision about sentence review. Because the order granting resentencing became final when neither party moved for rehearing or appealed the order, the trial court had no authority to enter a second order rescinding the original order. Simmons v. State, 44 Fla. L. Weekly D1301b (1st DCA 5/16/19)

https://www.1dca.org/content/download/525082/5833343/file/180191_1287_05162019_10192731_i.pdf

DOUBLE JEOPARDY-PROBATION: Where Court modified probation to require drug treatment upon the Defendant's testing positive for marijuana, the defendant cannot be later accused of violating probation on the basis of that positive test. Since Defendant's probationary sentence had already been enhanced for the same violation of this condition, a second enhancement or punishment based upon the same violation would impose multiple punishments for the same offense. Mitchell v. State, 44 Fla. L. Weekly D1294a (4th DCA 5/15/19)

https://www.4dca.org/content/download/525016/5832551/file/180855_1709_05152019_08443780_i.pdf

DOUBLE JEOPARDY-LEAVING SCENE OF ACCIDENT: Multiple convictions for leaving the scene of an accident in which 3 cars were hit does not violate double jeopardy since the crashes happen seconds apart and at different locations in the parking lot. Breland v. State, 44 Fla. L. Weekly D1291a (4th DCA 5/15/19)

https://www.4dca.org/content/download/525015/5832539/file/180537_1257_05152019_08432363_i.pdf

HEARSAY-PRIOR INCONSISTENT STATEMENT: Officer's testimony that the phone number was the Defendant's, based on the Defendant's girlfriend's alleged statement (denied by the girlfriend) to the officer that it was, leading to the procurement of phone records was inadmissible hearsay. The records thereby linked to the defendant were consequently inadmissible. Helms v. State, 44 Fla. L. Weekly D1288a (4th DCA 5/15/19)

https://www.4dca.org/content/download/525011/5832491/file/173811_1708_05152019_08392728_i.pdf

PRISON RELEASEE REOFFENDER: To qualify as a prison releasee re-offender the Defendant must have been incarcerated in and physically released from a prison, not a county jail. Helms v. State, 44 Fla. L. Weekly D1288a (4th DCA 5/15/19)

https://www.4dca.org/content/download/525011/5832491/file/173811_1708_05152019_08392728_i.pdf

SEARCH AND SEIZURE-ANONYMOUS TIP: Officers lacked reasonable suspicion to detain the Defendant based on an anonymous call that a black male with dreads, wearing designer pants with glitter on the back side of the pants, standing by a convertible black Camaro parked in front of a liquor store was dealing drugs out of the vehicle. The anonymous tip's assertion of illegal conduct must be corroborated in some way to establish its reliability. The Defendant's quick return to the vehicle, bending down, and placing something inside the vehicle is insufficient corroboration of illegal activity to justify the stop. "Appellant's retreat to the vehicle did not evidence criminal activity. Indeed, if appellant could not retreat, then he was not free to leave, which circumstance constitutes a seizure for Fourth Amendment purposes." Dieujuste v. State, 44 Fla. L. Weekly D1285a (4th DCA 5/15/19)

https://www.4dca.org/content/download/525014/5832527/file/173842_1709_05152019_08421874_i.pdf

GRAND THEFT-VALUE: Victim's testimony that her daughter told her that the stolen bracelet was worth close to $300 is insufficient to establish the felony value. The sheer volume of the items stolen cannot sustain an inference that the cumulative value is above $100. "[E]ven where stolen items would appear to have a minimum value based on the nature of the item, a lack of evidence as to that value is typically fatal." Bruce v. State, 44 Fla. L. Weekly D1284a (4th DCA 5/15/19)

https://www.4dca.org/content/download/525010/5832479/file/173740_1708_05152019_08363606_i.pdf

CAREER CRIMINAL: One cannot be designated a Violent Career Criminal based on a prior conviction for attempted burglary, which is not an enumerated felony. Bruce v. State, 44 Fla. L. Weekly D1284a (4th DCA 5/15/19)

https://www.4dca.org/content/download/525010/5832479/file/173740_1708_05152019_08363606_i.pdf

SEARCH AND SEIZURE: School resource officer may not search a juvenile based solely on a hunch that he might have a weapon. T.L.B. v. State, 44 Fla. L. Weekly D1283d (4th DCA 5/15/19)

https://www.4dca.org/content/download/525018/5832575/file/181907_1709_05152019_08475737_i.pdf

MANDAMUS: Defendant who had been barred by the trial court from filing further frivolous motions attacking his conviction may not apply for a writ of mandamus to require the trial court to rule on further motions. Byrd v. State, 44 Fla. L. Weekly D1281b (3rd DCA 5/15/19)

http://3dca.flcourts.org/Opinions/3D19-0672.pdf

8TH AMENDMENT: Sentence of life imprisonment with possibility of parole after 25 years for first-degree murder committed by a minor does not violate the 8th Amendment. State v. Calix, 44 Fla. L. Weekly D1281a (3rd DCA 5/15/19)

http://3dca.flcourts.org/Opinions/3D16-2784.pdf

POST CONVICTION RELIEF-FAILURE TO FILE PRETRIAL MOTION: Counsel for the defendant was ineffective for failing to file a pretrial motion to dismiss based on pre-arrest delay resulting in destruction of potentially exculpatory surveillance video recordings. State v. Ellis, 44 Fla. L. Weekly D1280a (3rd DCA 5/15/19)

http://3dca.flcourts.org/Opinions/3D17-2478.pdf

CONTINUANCE: Court did not abuse discretion in denying motion to continue to allow fingerprint testing of a watch found on the victim's body where counsel could have arranged for the testing earlier. Lindsay v. State, 44 Fla. L. Weekly D1276c (1st DCA 5/13/19)

https://www.1dca.org/content/download/524941/5831765/file/180122_1284_05132019_08590694_i.pdf

DOUBLE JEOPARDY: To determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court may consider only the charging document. Dygart v. State, 44 Fla. L. Weekly D1276a (1st DCA 5/13/19)

https://www.1dca.org/content/download/524937/5831717/file/134977_1286_05132019_08501398_i.pdf

HABEAS CORPUS-INEFFECTIVENESS: Defendant may not use habeas corpus, asserting manifest injustice, to claim that Counsel was ineffective for failing to advise him of an entrapment defense more than 2 years after the conviction is final. Watkins v. State, 44 Fla. L. Weekly D1275a (1st DCA 5/13/19)

https://www.1dca.org/content/download/524946/5831825/file/183649_1279_05132019_09052354_i.pdf

DOWNWARD DEPARTURE-CONSENT: Court did not abuse discretion in finding that the sex abuse of the minor was not consensual where the 15-year-old victim admitted to a generally consensual relationship but testified that she felt uncomfortable with the sexual activity and "wanted out." Hayes v. State, 44 Fla. L. Weekly D1274b (1st DCA 5/13/19)

https://www.1dca.org/content/download/524939/5831741/file/173466_1286_05132019_08574033_i.pdf

SENTENCING MULTIPLIER: If the total resulting sentence with the multiplier applied exceeded the statutory maximum sentence for Appellant's primary offense, the multiplier could not be applied, and the statutory maximum had to be imposed on the primary offense. 90.59-year sentence is vacated for the Defendant to be sentenced to no more than 15 years for the primary offense but no less than bottom of the guidelines (44.45 years) as an aggregate sentence. Hayes v. State, 44 Fla. L. Weekly D1274b (1st DCA 5/13/19)

https://www.1dca.org/content/download/524939/5831741/file/173466_1286_05132019_08574033_i.pdf

ENHANCEMENT-FIREARM: Attempted first-degree murder offense is reclassified to a life felony where the Defendant fired a gun. The use of a firearm is not an essential element of attempted murder. Alleyne does not apply because the enhancement is not an element of the charged offense. Moss v. State, 44 Fla. L. Weekly D1271a (1st DCA 5/13/19)

https://www.1dca.org/content/download/524938/5831729/file/173328_1284_05132019_08564356_i.pdf

RAPE SHIELD STATUTE: The rape shield statute only bars evidence of actual sex acts by the Victim, not nonconsensual molestation of the juvenile victim by other men. The juvenile victim's statement that other men had molested her should have been admitted because it tended to prove that she had a motivation to fabricate her allegations. But here error is harmless based on the overwhelming evidence. Thorne v. State, 44 Fla. L. Weekly D1266a (1st DCA 5/13/19)

https://www.1dca.org/content/download/524940/5831753/file/174242_1284_05132019_08582326_i.pdf

CONSTRUCTIVE POSSESSION: Defendant is entitled to Judgment of Acquittal for possession of drugs found in a bedroom which was accessible by many people who lived there. The fact that some items in the room belong to someone other than the Defendant (women's shoes) along with items clearly owned by the Defendant overcomes any implication that the Defendant had exclusive use of the room and the narcotics in it. Thomas v. State, 44 Fla. L. Weekly D1263a (2nd DCA 5/10/19)

https://www.2dca.org/content/download/524869/5830955/file/170417_39_05102019_08410979_i.pdf

PAROLE REVOCATION: Defendant is improperly found to have violated parole where commission does not make a finding that the Defendant's use of cocaine was a willful and substantial violation. Lancaster v. Florida Commission on Offender Review, 44 Fla. L. Weekly D1259a (5th DCA 5/10/19)

https://www.5dca.org/content/download/524853/5830769/file/182871_1255_05102019_08392118_i.pdf

POST CONVICTION RELIEF: Rule 3.800(a) is available to correct scoresheet errors apparent from the face of the record, and therefore may be filed after the two-year limit of Rule 3.850, but only allows resentencing if the sentence could not have been imposed under a correct scoresheet. Gil de Rubio v. State, 44 Fla. L. Weekly D1265a (2nd DCA 5/10/19)

https://www.2dca.org/content/download/524881/5831099/file/182253_114_05102019_08452572_i.pdf

POST CONVICTION RELIEF: A motion for postconviction relief under Rule 3.850 must be filed within 2 years of the judgment becoming final. In the case of a scoresheet error, resentencing is required unless the record conclusively shows the same sentence would have been imposed with a correct scoresheet. Where the scoresheet error was due to the scoring of the charge that was reversed and remanded on appeal and ultimately Nolle Prossed, and where a a written amended judgment was never entered on the remaining counts, the conviction never became final and the Defendant may seek relief under Rule 3.850. Gil de Rubio v. State, 44 Fla. L. Weekly D1265a (2nd DCA 5/10/19)

https://www.2dca.org/content/download/524881/5831099/file/182253_114_05102019_08452572_i.pdf

RETURN OF PERSONAL PROPERTY: One has 4 years to seek to recover specific personal property under Fla.Stat. 95.11(3)(i), but only sixty days from the conclusion of the proceedings under Fla.Stat. 705.105. Court may not summarily deny as untimely a motion for return of property under s. 705.105 without attaching portions of the record supporting the ruling. Adams v. State, 44 Fla. L. Weekly D1254a (5th DCA 5/10/19)

https://www.5dca.org/content/download/524852/5830757/file/182424_1260_05102019_08341098_i.pdf

SEXUAL PREDATOR-DESIGNATION-JURISDICTION: Court may not designate the Defendant a Sexual Predator after he has served his sentence in full. Mckenzie v. State, 44 Fla. L. Weekly D1252a (5th DCA 5/10/19)

https://www.5dca.org/content/download/524851/5830745/file/182206_1260_05102019_08320344_i.pdf

MINOR-MANDATORY MINIMUM-SECOND DEGREE MURDER WITH A FIREARM: Juvenile is lawfully sentenced to a 25 year firearm mandatory minimum with review after 20 years. Dinnall v. State, 44 Fla. L. Weekly D1251a (5th DCA 5/10/19)

https://www.5dca.org/content/download/524855/5830793/file/183497_1257_05102019_08533778_i.pdf

INVESTIGATIVE COSTS: Court improperly imposed $8752 and investigative costs without a sufficient evidentiary basis. Gissendanner v. State, 44 Fla. L. Weekly D1250d (5th DCA 5/10/19)

https://www.5dca.org/content/download/524845/5830673/file/180150_1259_05102019_08135719_i.pdf

POST CONVICTION RELIEF: Court may not deny motion for postconviction relief without addressing all claims, either orally or in writing. Charles v. State, 44 Fla. L. Weekly D1250c (5th DCA 5/10/19)

https://www.5dca.org/content/download/524846/5830685/file/180392_1259_05102019_08170632_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to argue that the court improperly considered the defendant's "psychopathy" and that he might "be a budding psychopath" when there was no evidence to support these conclusions. Johns v. State, 44 Fla. L. Weekly D1250b (5th DCA 5/10/19)

https://www.5dca.org/content/download/524849/5830721/file/181877_1259_05102019_08254131_i.pdf

DOWNWARD DEPARTURE: Court's decision as to whether to impose a downward departure sentence is a judgment call within the sound discretion of the court. Kiley v. State, 44 Fla. L. Weekly D1250a (5th DCA 5/10/19)

https://www.5dca.org/content/download/524849/5830721/file/181877_1259_05102019_08254131_i.pdf

PRECEDENT: A statement in a district court of appeal opinion that was not essential to the decision of the court is obiter dictum and without force as precedent. Kiley v. State, 44 Fla. L. Weekly D1250a (5th DCA 5/10/19)

https://www.5dca.org/content/download/524849/5830721/file/181877_1259_05102019_08254131_i.pdf

DEFINITION OF "A": "A" means "any." "The purpose of the indefinite article is to indicate a noun that is, in some way, variable, unidentified, or unspecified. . . Linguistically, 'a' refers to 'any or each' of a type when used with a subsequent restrictive modifier. . . The word 'a' is 'a function word before singular nouns when the referent is unspecified.'" Famiglio v State, 44 Fla. L. Weekly D1260d (2nd DCA 5/10/19)

https://www.2dca.org/content/download/524876/5831039/file/180467_114_05102019_08440097_i.pdf

DEFINITION-WHEN SOMETHING OCCURS: "In common parlance, predicating a condition on 'when something occurs' or 'at the time something occurs,' is normally understood to mean the first time that the something occurs. This is so because conditional statements such as these are made with a view towards the future, as a way of indicating that a consequent condition will arise from a future condition's occurrence. And since the future cannot be known (except in hindsight), we would ordinarily read a provision. . .to align with the way we experience the passing of temporal events; that is, we would consider the future condition's first occurrence to be the operative one, even if it is a condition that might be capable of repetition." Famiglio v State, 44 Fla. L. Weekly D1260d (2nd DCA 5/10/19)

https://www.2dca.org/content/download/524876/5831039/file/180467_114_05102019_08440097_i.pdf

EXPERT: Testimony of trooper who testified as to braking effects in vehicular homicide case must be considered under the Frye test. Court must first determine whether the expert's method for determining braking is new or novel. If so, Court must determine admissibility of the expert opinion based on the general acceptance within the relevant scientific community. If method is not new or novel, the witness may offer pure opinion evidence based on his training and experience. '[A] trial court must have some role in ensuring the reliability of expert testimony, even if the testimony is not based on new or novel scientific methods." Kemp v. State, 44 Fla. L. Weekly D1246a (4th DCA 5/8/19)/p>

CREDIT FOR TIME SERVED: DOC, not the court, calculates the time served after sentencing, including time in the county jail after sentencing. Any relief sought for jail time spent after sentencing must be sought through DOC administrative proceedings. " Hardison v. State, 44 Fla. L. Weekly D1245a (4th DCA 5/8/19)

https://www.4dca.org/content/download/524713/5829370/file/181532_1257_05082019_08570503_i.pdf

SENTENCING-MINOR-HOMICIDE: A minor defendant convicted of first degree murder is entitled to a sentence review after 15 years, not 40 years, where jury did not find and was not asked whether he actually killed, intended to kill or attempted to kill the victims. Puzio v. State, 44 Fla. L. Weekly D1243a (4th DCA 5/8/19)

https://www.4dca.org/content/download/524705/5829274/file/173034_1708_05082019_08490991_i.pdf

PSI-ILLEGAL SENTENCE: Failure to order a PSI before sentencing a juvenile to life in prison for murder is an illegal sentence, cognizable under R. 3.800(b). White v. State, 44 Fla. L. Weekly D1240b (4th DCA 5/8/19)

https://www.4dca.org/content/download/524707/5829298/file/173500_1708_05082019_08521336_i.pdf

MINOR-LIFE SENTENCE-JURY FINDING: The juvenile sentencing procedure set forth in section 921.1401 does not violate the Sixth Amendment under Apprendi. Judge, not jury, may make the necessary factual findings. White v. State, 44 Fla. L. Weekly D1240b (4th DCA 5/8/19)

https://www.4dca.org/content/download/524707/5829298/file/173500_1708_05082019_08521336_i.pdf

APPEAL: Defendant is entitled to a new trial when the transcript for one day of the nine day trial is missing. Palomino v. State, 44 Fla. L. Weekly D1240a (4th DCA 5/8/19)

https://www.4dca.org/content/download/524709/5829322/file/180197_1709_05082019_08541899_i.pdf

COMPETENCY: Court may not accept plea and sentence the Defendant after competency evaluation was ordered but no hearing on competency was held nor was an order finding the defendant competent entered. Little v. State, 44 Fla. L. Weekly D1231b (4th DCA 5/8/19)

https://www.4dca.org/content/download/524703/5829250/file/172611_1257_05082019_09173825_i.pdf

CERTIORARI: The time, trouble, and expense of an unnecessary trial are not considered irreparable injury, which is required for the State to pursue a petition for writ of certiorari. State v. Gottfried, 44 Fla. L. Weekly D1228c (3rd DCA 5/8/19)

http://3dca.flcourts.org/Opinions/3D19-0699.pdf

REVOCATION OF PROBATION: Violation of probation is upheld where Court revoked the Defendant's probation on an uncharged violation of an uncharged violation, where the record shows that the Court would have revoked probation anyways on properly proven grounds. Clauson v. State, 44 Fla. L. Weekly D1228a (3rd DCA 5/8/19)

http://3dca.flcourts.org/Opinions/3D18-0425.pdf

CONTROLLING LAW: When a district court of appeal issues an opinion deciding a point of law that opinion is binding throughout the state where there is no other district court which is issued a contrary opinion, notwithstanding that the Supreme Court has accepted review of the opinion. Link v. State, 44 Fla. L. Weekly D1226b (3rd DCA 5/8/19)

http://3dca.flcourts.org/Opinions/3D19-0759.pdf

STAND YOUR GROUND: Defendant has an absolute right to a Stand Your Ground hearing. Link v. State, 44 Fla. L. Weekly D1226b (3rd DCA 5/8/19)

http://3dca.flcourts.org/Opinions/3D19-0759.pdf

ARGUMENT-MISTRIAL: Prosecutor's passing reference to a jail call in closing argument does not warrant a mistrial. Odom v. State, 44 Fla. L. Weekly D1225a (3rd DCA 5/8/19)

http://3dca.flcourts.org/Opinions/3D17-1330.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on his claim that he did not receive the benefit of the bargain when the federal Bureau of Prisons did not honor his state court agreement that his federal and state time would be served concurrently. Heath v. State, 44 Fla. L. Weekly D1223c (3rd DCA 5/8/19)

http://3dca.flcourts.org/Opinions/3D18-2117.pdf

POST CONVICTION RELIEF: Defendant is not entitled to postconviction relief based on attorney's failure to communicate a probationary offer when record shows that no probationary offer ever existed. "[C]ounsel cannot be deficient for failing to communicate a nonexistent offer." Forbes v. State, 44 Fla. L. Weekly D1221b (2nd DCA 5/8/19)

https://www.2dca.org/content/download/524681/5828986/file/180952_65_05082019_08495365_i.pdf

TALKING LIKE A LAWYER: "The Alcorn elements are conjunctive. . . The Alcorn elements also unfold chronologically, meaning that the elements develop temporally with the requisite first development. . ." Forbes v. State, 44 Fla. L. Weekly D1221b (2nd DCA 5/8/19)

https://www.2dca.org/content/download/524681/5828986/file/180952_65_05082019_08495365_i.pdf

SENTENCING-DOWNWARD DEPARTURE: Court may not impose a downward departure sentence on the basis of physical disability where there was no testimony that the defendant had ever been diagnosed or treated for mental illness nor were medical records or testimony to substantiate the claims of physical disability submitted. State v. Bellamy, 44 Fla. L. Weekly D1214a (2nd DCA 5/8/19)

https://www.2dca.org/content/download/524670/5828848/file/170806_39_05082019_08431916_i.pdf

VOP-POSSESSION OF PORNOGRAPHY: Sex offender probation may be violated by mere possession of pornography notwithstanding that the pornography in question is not related to his deviant behavior. And having a "Barely Legal" magazine is never a good thing. Quijano v. State, 44 Fla. L. Weekly D1213a (2nd DCA 5/8/19)

https://www.2dca.org/content/download/524671/5828860/file/172541_65_05082019_08442820_i.pdf

CERTIORARI: Defendant cannot seek through petition for writ of certiorari to compel the trial court to allow evidence of a confession by another individual to the crime with which the Defendant is charged. Exclusion of the 3rd party confession may be raised only on appeal. There is no irreparable harm when the issue can be raised on appeal. Segura v. State, 44 Fla. L. Weekly D1210a (1st DCA 5/6/19)

https://www.1dca.org/content/download/524562/5827621/file/180520_1279_05062019_02461000_i.pdf

VOP-JURISDICTION: Court lacks jurisdiction where the Defendant had already served the statutory maximum time before the filing of the probation violation. Dooly v. State, 44 Fla. L. Weekly D1209a (1st DCA 5/6/19)

https://www.1dca.org/content/download/524566/5827669/file/182455_1287_05062019_02494319_i.pdf

KIDNAPPING: The act of pulling the victim from the hotel gym, down the hall, and to the pool deck in an attempted rape is sufficient to support a conviction for kidnapping. The asportation of the victim was neither inherent nor incidental to the attempted sexual battery. Gloston v. State, 44 Fla. L. Weekly D1208b (1st DCA 5/6/19)

https://www.1dca.org/content/download/524558/5827573/file/172756_1284_05062019_02302973_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for allowing the Defendant to plead to a trafficking amounts of cocaine when the probable cause affidavit alleged a lesser amount, and for failing to file a motion to dismiss. The signed plea form does not bar the Defendant from raising Counsel's failure to conduct an adequate investigation. Brown v. State, 44 Fla. L. Weekly D1206a (1st DCA 5/6/19)

https://www.1dca.org/content/download/524567/5827681/file/183623_1286_05062019_02502814_i.pdf

DOUBLE JEOPARDY: Single homicide rule bars convictions for both vehicular homicide and fleeing and eluding with death. Daniel v. State, 44 Fla. L. Weekly D1201a (1st DCA 5/6/19)

https://www.1dca.org/content/download/524561/5827609/file/180516_1287_05062019_02361109_i.pdf

EVIDENCE-EXPERT-MENTAL HEALTH: A properly qualified witness may testify as an expert about them mental health of the defendant notwithstanding that he or she is not a licensed psychologist, psychiatrist, or physician. Wanless v. State, 44 Fla. L. Weekly D1197b (1st DCA 5/6/19)

https://www.1dca.org/content/download/524557/5827561/file/170448_1286_05062019_02290932_i.pdf

MANDATORY MINIMUM-10-20-LIFE-CONSECUTIVE SENTENCE: Consecutive sentences for one gunshot with the multiple assault victims and no physical injuries is not permitted. "As the Florida Supreme Court continues to develop rules in this area, it may well conclude that any gunshot is enough. Or it may decide that a single act can be 'bifurcated' if it simultaneously harms multiple people. Or it may abandon its current rules altogether and decide to untether the legality of consecutive mandatory-minimum sentences from the number of victims or gunshots. But based on the Florida Supreme Court precedent as we now understand it, Wanless's consecutive mandatory-minimum sentences cannot stand." Wanless v. State, 44 Fla. L. Weekly D1197b (1st DCA 5/6/19)

https://www.1dca.org/content/download/524557/5827561/file/170448_1286_05062019_02290932_i.pdf

QUOTATION-CONSECUTIVE SENTENCES: "For twenty years, the complexity and conundrums of Florida's sentencing law have created a degree of confusion as to when consecutive or concurrent sentences are permissible. . .[O]ur supreme court ought to bring greater clarity to this area of the law and, if possible, return to a textually-based jurisprudence." Wanless v. State, 44 Fla. L. Weekly D1197b (1st DCA 5/6/19)

https://www.1dca.org/content/download/524557/5827561/file/170448_1286_05062019_02290932_i.pdf

JOA-LEWD AND LASCIVIOUS EXHIBITION: "They saw Mr. Mesen's pants unzipped and the victim's arm extending into his pants, moving back and forth, but they could not see the victim's hand. His pants were not pulled down; they may have been unbuttoned but were definitely unzipped." One cannot be convicted of lewd or lascivious exhibition on elderly person by victim masturbating Defendant inside his pants without exposing his genitals. "Expose" means to make something visible." Mesen v. State, 44 Fla. L. Weekly D1194a (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524437/5826287/file/164971_39_05032019_09211986_i.pdf

TOO WEIRD: "The fact that the victim had her hand in the defendant's pants is merely incidental to what is proscribed by the statute, which criminalizes actions taken by the defendant, not the inducement of an action taken by the victim. The evidence supports only one action alleged to have been taken by the defendant: unzipping his fly within reach of a victim who is disabled or elderly, so as to place his genitals within reach of her touch without making them visible." Mesen v. State, 44 Fla. L. Weekly D1194a (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524437/5826287/file/164971_39_05032019_09211986_i.pdf

DEFINITION-EXPOSURE-LATIN: "The doctrine of noscitur a sociis (a 'word is known by the company it keeps') is relied upon 'to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.'. . .A meaning of the word exposes' that includes merely exposure to a grasp through or under clothing cannot be employed to describe a term -- 'exhibition'-- that indicates the presentation of something to another's viewing. Mesen v. State, 44 Fla. L. Weekly D1194a (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524437/5826287/file/164971_39_05032019_09211986_i.pdf

UNLAWFUL USE OF TWO-WAY COMMUNICATIONS DEVICE: Mere possession of walkie-talkies in the trunk of a car occupied by defendant implicated in a string of attempted burglary's does not support a conviction for unlawful use of two-way communications device. Sanchez v. State, 44 Fla. L. Weekly D1185a (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524440/5826329/file/170258_114_05032019_08401774_i.pdf

CRIMINAL MISCHIEF: Defendant cannot be convicted of first degree criminal mischief for damages to the door by which he did attempted to burglarize the store based on the store manager's guess about the costs of replacement. The jury's "life experience" concerning how much certain repairs might cost cannot substitute for actual evidence of the value of the damage. Sanchez v. State, 44 Fla. L. Weekly D1185a (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524440/5826329/file/170258_114_05032019_08401774_i.pdf

SENTENCING-CONSIDERATIONS: Due Process forbids the Court considering a Defendant's truthfulness at trial and continued assertions of innocence. Sanchez v. State, 44 Fla. L. Weekly D1185a (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524440/5826329/file/170258_114_05032019_08401774_i.pdf

CONFIDENTIAL INFORMANT-DISCLOSURE: Court must not order State to disclose the identity of a confidential informant without first holding an in camera hearing. State v. Jean, 44 Fla. L. Weekly D1184b (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524462/5826593/file/182281_167_05032019_08593647_i.pdf

CREDIT FOR TIME SERVED-PRISON CREDIT: Defendant who is in prison is not entitled for credit time served under a detainer. Monroe v. State, 44 Fla. L. Weekly D1183a (2nd DCA 5/3/19)

https://www.2dca.org/content/download/524453/5826485/file/180795_114_05032019_08474790_i.pdf

HEARSAY-CONFRONTATION CLAUSE: Statement made to CPT is improperly admitted pursuant to Fla.Stat. 90.803(24) because it violates the Confrontation Clause (Crawford) where the Victim was unavailable and the Defendant had no prior opportunity to depose her. Malave v. State, 44 Fla. L. Weekly D1182a (5th DCA 5/3/19)

https://www.5dca.org/content/download/524425/5826137/file/173225_1259_05032019_08373151_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that Counsel was ineffective for opening the door to harmful evidence. Vogds v. State, 44 Fla. L. Weekly D1181a (5th DCA 5/3/19)

https://www.5dca.org/content/download/524432/5826221/file/183192_1260_05032019_09081618_i.pdf

SUBSTITUTION OF COUNSEL: Court must allow substitution of counsel after jury selection but before presentation of evidence. A defendant always retains the right to discharge his or her court-appointed counsel and to be represented by private counsel. Wilcox v. State, 44 Fla. L. Weekly D1180a (5th DCA 5/3/19)

https://www.5dca.org/content/download/524426/5826149/file/181636_1260_05032019_08450075_i.pdf

POST CONVICTION RELIEF: Counsel may waive instruction on attempted manslaughter when the Defendant is charged with attempted first degree murder and convicted of attempted second degree murder. Decision may be tactical. Questions certified: May a defendant in a noncapital case waived category one lesser included offenses? If so must defense counsel announce express waiver on the record? Is failure to give the attempted manslaughter instruction fundamental error when counsel affirmatively declines to requested? Is the jury pardon doctrine abrogated? Lathan v. State, 44 Fla. L. Weekly D1177a (5th DCA 5/3/19)

https://www.5dca.org/content/download/524427/5826161/file/181979_1254_05032019_08542708_i.pdf

PROBATION-MODIFICATION: Court may deny motion to modify probation without a hearing where the motion only sought modification of existing probationary conditions. Osborne v. State, 44 Fla. L. Weekly D1174c (5th DCA 5/3/19)

https://www.5dca.org/content/download/524433/5826233/file/183997_1254_05032019_09100866_i.pdf

EVIDENCE CODE-AMENDMENT-JUDICIAL NOTICE: Supreme Court adopts the legislative amendment in family law cases allowing the court to take judicial notice of any record of any court when imminent danger is been alleged or is impractical to give prior notice to the parties. In Re: Amendments to the Florida Evidence Code, 44 Fla. L. Weekly S161a (FLA 5/2/19)

https://www.floridasupremecourt.org/content/download/524343/5825227/file/SC19-105.pdf

CONSENT: The giving of consent is a verbal act, and therefore testimony that someone has given consent is not hearsay. Mendez-Carmona v. State, 44 Fla. L. Weekly D1174a (1st DCA 5/2/19)

https://www.1dca.org/content/download/524400/5825909/file/181252_1284_05022019_11050287_i.pdf

JURY INSTRUCTION-GOOD FAITH: Defendant is not entitled to a "good faith" instruction where her defense was that someone else put the stolen money in her bank account. Carr v. State, 44 Fla. L. Weekly D1173a (1st DCA 5/2/19)

https://www.1dca.org/content/download/524398/5825885/file/180401_1284_05022019_11033221_i.pdf

APPEAL-INEFFECTIVENESS: Defendant cannot raise on direct appeal that counsel was ineffective for not asking for instruction on the lesser offense of resisting without violence where prejudice is not indisputable and there may be some tactical explanation for the failure to request the instruction. Israel v. State, 44 Fla. L. Weekly D1172a (1st DCA 5/2/19)

https://www.1dca.org/content/download/524399/5825897/file/180596_1284_05022019_11041446_i.pdf

JURY INSTRUCTIONS-REREADING: Court did not err in rereading a portion of the jury instructions which answered a specific jury question. Jackson v. State, 44 Fla. L. Weekly D1169b (1st DCA 5/2/19)

https://www.1dca.org/content/download/524397/5825873/file/180373_1284_05022019_11020379_i.pdf

10-20-LIFE-CONSECUTIVE SENTENCES: Court may impose consecutive mandatory minimum sentences where there are multiple victims of the aggravated assault but only one victim who is actually shot, where multiple shots are fired. Jackson v. State, 44 Fla. L. Weekly D1169b (1st DCA 5/2/19)

https://www.1dca.org/content/download/524397/5825873/file/180373_1284_05022019_11020379_i.pdf

DOUBLE JEOPARDY: Separate convictions for use of computer services to solicit a minor to engage in sexual conduct, unlawful use of two-way communications device, and traveling to meet a minor violate double jeopardy where convictions are based on the same conduct. Court may only consider the charging document to determine whether multiple convictions for these offenses were based on the same conduct. Pasicolan v. State, 44 Fla. L. Weekly D1169a (1st DCA 5/2/19)

https://www.1dca.org/content/download/524350/5825309/file/142634_1284_05022019_09144913_i.pdf

DOUBLE JEOPARDY: Dual convictions for use of a computer to facilitate a parent to consent to sexual conduct a child and traveling to meet minor violate double jeopardy when based on the same conduct. Courts may only consider the charging document. Coffey v. State, 44 Fla. L. Weekly D1168a (1st DCA 5/2/19)

https://www.1dca.org/content/download/524386/5825741/file/151299_1284_05022019_10314710_i.pdf

POST CONVICTION RELIEF-COUNSEL: Court's decision whether to appoint counsel on Defendant's motion for postconviction relief is discretionary. Drakus v. State, 44 Fla. L. Weekly D1166a (1st DCA 5/2/19)

https://www.1dca.org/content/download/524392/5825813/file/174457_1286_05022019_10522382_i.pdf

POST CONVICTION RELIEF: Court must make factual findings on the record on Defendant's motion for postconviction relief. Drakus v. State, 44 Fla. L. Weekly D1166a (1st DCA 5/2/19)

https://www.1dca.org/content/download/524392/5825813/file/174457_1286_05022019_10522382_i.pdf

CIRCUMSTANTIAL EVIDENCE-MURDER: Defendant cannot be convicted of murder based on his withdrawal of money from victim's ATM where her body was never recovered. Garcia v. State, 44 Fla. L. Weekly D1152a (3rd DCA 5/1/19)

http://3dca.flcourts.org/Opinions/3D15-2815.pdf

VOP-VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Court may not dismiss the violation of probation for a Violent Felony Offender of Special Concern without holding a VOP hearing and making a written findings as to whether the Offender poses a danger to the community. State v. Rincon, 44 Fla. L. Weekly D1150a (3rd DCA 5/1/19)

http://3dca.flcourts.org/Opinions/3D18-1282.pdf

COMPETENCY: Court does not have to order a competency evaluation where no bona fide question about competency was raised. Byron v. State, 44 Fla. L. Weekly D1143b (3rd DCA 5/1/19)

http://3dca.flcourts.org/Opinions/3D17-1267.pdf

POST CONVICTION RELIEF-JURISDICTION: Trial court has jurisdiction to consider motion for postconviction relief while the appellate court considers a separate motion for habeas corpus based on ineffectiveness of appellate counsel. Gyden II v. State, 44 Fla. L. Weekly D1142e (3rd DCA 5/1/19)

http://3dca.flcourts.org/Opinions/3D18-2230.pdf

BOND-REVOCATION: Trial court can revoke bond and/or modify pretrial release conditions notwithstanding that the 1st appearance Judge declined to do so. Johnson v. State, 44 Fla. L. Weekly D1139a (4th DCA 5/1/19)

https://www.4dca.org/content/download/524303/5824749/file/190826_1703_05012019_09253710_i.pdf

NELSON HEARING: Defendant waived his right to a Nelson inquiry where he took no steps to have the hearing held and ultimately expressed satisfaction with counsel that the change of plea hearing. Soltis v. State, 44 Fla. L. Weekly D1135b (4th DCA 5/1/19)

https://www.4dca.org/content/download/524295/5824653/file/180598_1257_05012019_09083298_i.pdf

COMPETENCY: Court did not commit fundamental error in accepting Defendant's plea without a competency hearing when he had been found to be incompetent his competency had been raised in a separate case with which the Court was unaware. Thomas v. State, 44 Fla. L. Weekly D1134a (4th DCA 5/1/19)

https://www.4dca.org/content/download/524294/5824641/file/180306_1257_05012019_09070785_i.pdf

COMPETENCY: Court must conduct a comps a hearing within twenty days of ordering a competency evaluation. Long v. State, 44 Fla. L. Weekly D1133a (4th DCA 5/1/19)

https://www.4dca.org/content/download/524292/5824617/file/173261_1711_05012019_09024531_i.pdf

DOWNWARD DEPARTURE: Defendant's felony battery is not an isolated incident when the Defendant cannot count how many times he'd been in fights before. ("How many [fights] have I been in? I can't even tell ya." Radice v. State, 44 Fla. L. Weekly D1131a (4th DCA 5/1/19)

https://www.4dca.org/content/download/524292/5824617/file/173261_1711_05012019_09024531_i.pdf

STAND YOUR GROUND: Amendment to Stand Your Ground law, changing burden of proof, applies retroactively to pending cases. Conflict certified. Manley v. State, 44 Fla. L. Weekly D1129b (2nd DCA 5/1/19)

https://www.2dca.org/content/download/524306/5824797/file/162272_39_05012019_08494773_i.pdf

PRISON RELEASEE REOFFENDER: PRR does not apply to battery on a law enforcement officer. McAlkich v. State, 44 Fla. L. Weekly D1129a (2nd DCA 5/1/19)

https://www.2dca.org/content/download/524307/5824809/file/164675_114_05012019_08513182_i.pdf

APRIL 2019

PLEA-VOLUNTARINESS-DEPORTATION: Attorney's failure to advise defendant that his plea for possession of cocaine would result in mandatory deportation is ineffective assistance of counsel. The court's admonishment that the Defendant could be deported is not cure the deficiency. Alsubsie v. State, 44 Fla. L. Weekly D1122a (1st DCA 4/29/19)

https://www.1dca.org/content/download/524179/5823341/file/173517_1287_04292019_09260581_i.pdf

STATEMENTS OF DEFENDANT-CUSTODIAL INTERROGATION: Defendant was not in custody when interrogated at the sheriff's office about the death of his daughter notwithstanding that he requested an attorney and is requests to terminate the interview were not honored. A request for an attorney need not be honored when the Defendant had not been Mirandized. Thomason v. State, 44 Fla. L. Weekly D1119a (1st DCA 4/29/19)

https://www.1dca.org/content/download/524175/5823291/file/172828_1284_04292019_09221893_i.pdf

LIFE SENTENCE: A life sentence without the possibility of parole for participation in murder is lawful when the offense occurred after the Defendant had turned eighteen. The age of 18 is the bright line between being a juvenile and an adult. Farmer v. State, 44 Fla. L. Weekly D1116a (1st DCA 4/29/19)

https://www.1dca.org/content/download/524180/5823353/file/180331_1284_04292019_09270729_i.pdf

SCORESHEET: The "adult-on-minor sex offense" multiplier does not apply to unlawful sexual activity under section 794.05. Ellison v. State, 44 Fla. L. Weekly D1115c (1st DCA 4/29/19)

https://www.1dca.org/content/download/524181/5823365/file/181629_1282_04292019_09280941_i.pdf

SPECIAL JURY INSTRUCTION: A special jury instruction which constitute a statement of stipulated fact (that law enforcement had failed to preserve evidence), rather than a statement of what the law is, should not be given. Dawson v. State, 44 Fla. L. Weekly D1114a (1st DCA 4/29/19)

https://www.1dca.org/content/download/524176/5823303/file/172985_1284_04292019_09235214_i.pdf

APPEALS-ENFORCEMENT OF MANDATE: Where Court accepted the Defendant's plea without holding a competency hearing after competency had been raised previously, and whereupon remand the Court cannot make a retroactive determination of competency at the time the original plea the court may not thereafter revisit the issue and reinstate the previous sentence. Elder v. State, 44 Fla. L. Weekly D1105a (2nd DCA 4/26/19)

https://www.2dca.org/content/download/524122/5822774/file/133440_173_04262019_10084147_i.pdf

STAND YOUR GROUND: Change to Stand Your Ground law applies retroactively in pending cases. Conflict certified. Feaster v. State, Fla. Weekly D1103a (2nd DCA 4/29/19)

https://www.2dca.org/content/download/524124/5822798/file/173612_39_04262019_08290841_i.pdf

SENTENCING-CONSIDERATIONS: Court improperly considers its inference, unsubstantiated by evidence, that the the defendant was a drug dealer based on the quality of the meth. A trial judge violates a defendant's due process rights by basing his or her sentence, at least in part, on uncharged offenses. Defendant is entitled to resentencing with a different judge. Shelko v. State, 44 Fla. L. Weekly D1098b (5th DCA 4/26/19)

https://www.5dca.org/content/download/524114/5822672/file/181162_1260_04262019_08191733_i.pdf

VOP: Court may find the defendant in violation of probation based on evidence adduced at a trial in which he was acquitted. Antinarelli v. State, 44 Fla. L. Weekly D1098a (5th DCA 4/26/19)

https://www.5dca.org/content/download/524117/5822708/file/183377_1257_04262019_08290796_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel did not tell him that he had a right to testify, but rather only advised him that it was in his best interest not to testify, where if he had testified he would have made a claim supporting an independent act defense. Williams v. State, 44 Fla. L. Weekly D1096b (5th DCA 4/26/19)

https://www.5dca.org/content/download/524113/5822660/file/180871_1259_04262019_08123935_i.pdf

SENTENCING-CONSIDERATIONS: Court may consider lack of remorse or refusal to accept responsibility when sentencing Defendant within the statutory range. "We can no longer embrace the blanket, judge-made rule that when it comes to sentencing." Prior case law to the contrary is receded from. Question certified. Davis v. State, 44 Fla. L. Weekly D1079c (1st DCA 4/25/19)

https://www.1dca.org/content/download/524036/5821832/file/170165_1284_04252019_08591788_i.pdf

SENTENCING-CONSIDERATIONS-DISSENT: "Overturning thirty years of precedent and creating conflict with all other Florida appellate courts, a bare majority of this Court enfeebles what for decades has been an easily administered bright-line sentencing rule for Florida judges: do not punish -- or appear to punish -- a defendant who maintains his innocence for a perceived lack of remorse or the failure to take responsibility or accept guilt for the crime proven." Davis v. State, 44 Fla. L. Weekly D1079c (1st DCA 4/25/19)

https://www.1dca.org/content/download/524036/5821832/file/170165_1284_04252019_08591788_i.pdf

QUOTATION: "Paradoxically, the majority embraces a patchwork of primarily federal cases with a hodgepodge of state cases supporting its view as if Florida courts should reflexively deem them as superior in kind to what our legislature and state judiciary have thoughtfully developed and implemented over the past decades. But, what principle of state judicial power says, "Fed is Best -- Chuck State Law," where the Supremacy Clause is not in play?" Davis v. State, 44 Fla. L. Weekly D1079c (1st DCA 4/25/19)

https://www.1dca.org/content/download/524036/5821832/file/170165_1284_04252019_08591788_i.pdf

PRETRIAL DETENTION: Although it was within trial court's discretion to revoke bond in earlier offense at defendant's initial appearance on new charges, where state did not seek pretrial detention and the new charges did not allege a capital or life felony, it was error to order petitioner to be held without bond on new charges without determining issue of pretrial release or detention in accordance with procedural rules. Rodriguez v. State, 44 Fla. L. Weekly D1099a (5th DCA 4/24/19)

https://www.5dca.org/content/download/523903/5820321/file/191114_1255_04242019_10060967_i.pdf

SENTENCING-DEPARTURE: Defendant established a legal basis to downward departure based on the need for specialist fear for mental disorder where he had previously been diagnosed as bipolar and treated for that. Hiraldo v. State, 44 Fla. L. Weekly D1078c (2nd DCA 4/24/19)

https://www.2dca.org/content/download/523958/5820999/file/181678_39_04242019_08395253_i.pdf

STAND YOUR GROUND: Amendment to Stand Your Ground law applies retroactively. The fact that the Defendant was convicted at trial should have no bearing on the Court's determination on the immunity issue. Horton v. State, 44 Fla. L. Weekly D1078b (2nd DCA 4/24/19)

https://www.2dca.org/content/download/523935/5820723/file/172852_39_04242019_08450027_i.pdf

SENTENCING-EXCESS OF STATUTORY MAXIMUM: Under the Criminal Punishment Code, the Court may/must impose the lowest permissible sentence on additional offenses even if that exceeds the statutory maximum for that count, notwithstanding that the Defendant is sentenced to more than that lowest permissible sentence on a separate count. Here, the defendant was lawfully sentenced to life in prison for the primary offense (armed robbery with a firearm) and twenty years for the additional offense which was a third-degree felony. "We conclude that the LPS [Lowest Permissible Sentence] is an individual minimum sentence which applies to each felony at sentencing for which the LPS exceeds that felony's statutory maximum sentence, regardless of whether the felony is the primary or an additional offense." Champagne v. State, 44 Fla. L. Weekly D1074a (2nd DCA 4/24/19)

https://www.2dca.org/content/download/523936/5820735/file/173072_65_04242019_08353616_i.pdf

VOP-CREDIT FOR TIME SERVED: Court must delineate the jail credit to which the Defendant is entitled distinguishing it from the prison credit which is to be calculated by the Department of Corrections. The trial court need not calculate prison credit so long as the trial court checks the standard box allowing all appropriate prior prison credit. Crandall v. State, 44 Fla. L. Weekly D1072a (2nd DCA 4/24/19)

https://www.2dca.org/content/download/523976/5821215/file/182721_65_04242019_08405909_i.pdf

SEARCH AND SEIZURE-OBSCURED TAG: License plate frame that obscured words "MyFlorida.com" and "Sunshine State" did not provide legal basis for traffic stop. State v. Morris, 44 Fla. L. Weekly D1062a (4th DCA 4/24/19)

https://www.4dca.org/content/download/523915/5820471/file/182470_1257_04242019_09144578_i.pdf

HABEAS CORPUS: Petition for habeas corpus alleging ineffective assistance of appellate counsel filed more than 8 years after the judgment in final is procedurally barred. Torres v. Inch, 44 Fla. L. Weekly D1034a (3rd DCA 4/24/19)

http://3dca.flcourts.org/Opinions/3D19-0402.pdf

HEARSAY: Court properly excluded the digital recording of a 911 call where the victim had not listened to the CD offered in evidence and therefore did not authenticate it. T.M. v. State, 44 Fla. L. Weekly D1032a (3rd DCA 4/24/19)

http://3dca.flcourts.org/Opinions/3D18-0894.pdf

DOUBLE JEOPARDY: Double jeopardy does not bar separate convictions for domestic battery by strangulation simple battery based on 2 separate, distinct acts of strangulation at 2 different times in 2 different locations. "If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie." Martin v. State, 44 Fla. L. Weekly D1025a (3rd DCA 4/24/19)

http://3dca.flcourts.org/Opinions/3D19-0007.pdf

DEALING IN STOLEN PROPERTY: Pawning stolen property in questionable circumstances is evidence that the seller knew it was stolen. Quinones v. State, 44 Fla. L. Weekly D1023a (3rd DCA 4/24/19)

http://3dca.flcourts.org/Opinions/3D17-1769.pdf

SENTENCING: Defendant may be sentenced to forty years as a prison releasee re-offender for a first-degree felony (30 year maximum) where court could have sentence him to life in prison as a habitual felony offender. Sapp v. State, 44 Fla. L. Weekly D1021a (1st DCA 4/22/19)

https://www.1dca.org/content/download/523765/5818844/file/182399_1284_04222019_09425876_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to relief on claim that counsel was ineffective for not disputing his status as a prison releasee re-offender or it is undisputed that he had previously been released from county jail, not prison. Delon v. State, 44 Fla. L. Weekly D1020b (1st DCA 4/22/19)

https://www.1dca.org/content/download/523767/5818868/file/183648_1286_04222019_09453000_i.pdf

VOP: Defendant cannot be found in willful violation of condition that he maintain full-time employment when the condition does not provide for a good faith effort exception. Boyd v. State, 44 Fla. L. Weekly D1020a (1st DCA 4/22/19)

https://www.1dca.org/content/download/523768/5818880/file/183773_1284_04222019_09465172_i.pdf

APPEALS-POST CONVICTION RELIEF: Order which denied 5 of 6 claims for postconviction relief but did not address the 6th claim is not an appealable final order. Wells v. State, 44 Fla. L. Weekly D1017a (1st DCA 4/22/19)

https://www.1dca.org/content/download/523759/5818772/file/174309_1279_04222019_09345592_i.pdf

VOP: Evidence that on one occasion, Defendant appellant moved away from the CPS device for approximately five minutes before returning to it is not competent, substantial evidence of a substantial and willful violation. King v. State, 44 Fla. L. Weekly D1016b (1st DCA 4/22/19)

https://www.1dca.org/content/download/523764/5818832/file/181227_1287_04222019_09420166_i.pdf

SEVERANCE: Defendant is not entitled to a severance based on the possibility that the defendant could, if tried separately, call the codefendant to testify that he had coerced the Defendant into committing the crime. The fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance. Fernanders v. State, 44 Fla. L. Weekly D1015a (1st DCA 4/22/19)

https://www.1dca.org/content/download/523760/5818784/file/174459_1284_04222019_09354652_i.pdf

RESTITUTION: Court may not order restitution for the outstanding balance on the loan on the vehicle which the Defendant destroyed. Good discussion. Tolbert v. State, 44 Fla. L. Weekly D1009a (1st DCA 4/22/19)

https://www.1dca.org/content/download/523757/5818748/file/173240_1287_04222019_09283968_i.pdf

COMPETENCY: Court may not accept Defendant must his plea and impose sentence following competency evaluation without issuing a written order determining that he is in fact competent. Milton v. State, 44 Fla. L. Weekly D1008f (1st DCA 4/22/19)

https://www.1dca.org/content/download/523756/5818736/file/170900_1287_04222019_09263883_i.pdf

BAIL: After revoking Defendant's pretrial release court must grant Defendant a hearing on a motion to set bond. An application for modification of bail on any felony charge must be heard by a court in person, at a hearing with the defendant present, and with at least three hours' notice to the state attorney. Calzetta v. State, 44 Fla. L. Weekly D1008d (5th DCA 4/22/19)

https://www.5dca.org/content/download/523777/5818978/file/191065_1255_04222019_10052274_i.pdf

APPEALS-JURISDICTION: An order which reserved jurisdiction over child support and equitable distribution, but not over timesharing and parental responsibility, is nonappealable as a nonfinal orrder as to any of the issue. Browner v. Browner, 44 Fla. L. Weekly D1020c (1st DCA 4/22/19)

https://www.1dca.org/content/download/523770/5818904/file/190556_1279_04222019_09491881_i.pdf

SEVERANCE: Defendant is not entitled to a severance based on the possibility that the defendant could, if tried separately, call the codefendant to testify that he had coerced the Defendant into committing the crime. The fact that the defendant might have a better chance of acquittal or a strategic advantage if tried separately does not establish the right to a severance. Fernanders v. State, 44 Fla. L. Weekly D1015a (1st DCA 4/22/19)

https://www.1dca.org/content/download/523760/5818784/file/174459_1284_04222019_09354652_i.pdf

RESTITUTION: Court may not order restitution for the outstanding balance on the loan on the vehicle which the Defendant destroyed. Good discussion. 44 Fla. L. Weekly D1009a (1st DCA 4/22/19)

https://www.1dca.org/content/download/523757/5818748/file/173240_1287_04222019_09283968_i.pdf

COMPETENCY: Court may not accept Defendant must his plea and impose sentence following competency evaluation without issuing a written order determining that he is in fact competent. Milton v. State, 44 Fla. L. Weekly D1008f (1st DCA 4/22/19)

https://www.1dca.org/content/download/523756/5818736/file/170900_1287_04222019_09263883_i.pdf

BAIL: After revoking Defendant's pretrial release court must grant Defendant a hearing on a motion to set bond. An application for modification of bail on any felony charge must be heard by a court in person, at a hearing with the defendant present, and with at least three hours' notice to the state attorney. Calzetta v. State, 44 Fla. L. Weekly D1008d (5th DCA 4/22/19)

https://www.5dca.org/content/download/523777/5818978/file/191065_1255_04222019_10052274_i.pdf

SEARCH AND SEIZURE-VEHICLE STOP: Failure to maintain a single lane alone cannot establish probable cause when the action is done safely, but justifies a stop when the vehicle is operated in an unusual manner such as when it almost collides with another vehicle. State v. Wilson, 44 Fla. L. Weekly D1007a (5th DCA 4/18/19)

https://edca.5dca.org/DCADocs/2018/2117/182117_1260_04182019_08334286_i.pdf

MOTION TO DISMISS: Court properly denied motion to dismiss notwithstanding that the victim testified that the Defendant was unconscious and unaware at the time she engaged in sexual intercourse with him. Whether the defendant knowingly or willingly committed the sexual act is a question of general intent to be determined by the trier of fact and, thus, not an issue to be decided by the trial court on a Rule 3.190(c)(4) motion to dismiss. State v. Griffin, 44 Fla. L. Weekly D1006a (5th DCA 4/18/19)

https://edca.5dca.org/DCADocs/2018/1781/181781_1260_04182019_08314293_i.pdf

INCONSISTENT VERDICTS: Conviction for robbery with a firearm or deadly weapon is not inconsistent with finding that the Defendant did not carry a firearm during the commission of the robbery. A firearm-looking weapon can be considered a deadly weapon. Mitchell v. State, 44 Fla. L. Weekly D1003a (5th DCA 4/18/19)

https://edca.5dca.org/DCADocs/2018/3811/183811_1254_04182019_08480376_i.pdf

APPEALS: Appeal should be dismissed for lack of jurisdiction where there is a total disconnect between the Defendant's notice of appeal (order prohibiting pro se filings) and the subject matter of his initial brief (the merits of the Defendant's Motion for Post Conviction Relief). Jenkins v. State, 44 Fla. L. Weekly D1002a (5th DCA 4/18/19)

https://edca.5dca.org/DCADocs/2018/1490/181490_1252_04182019_08274447_i.pdf

PRESENTENCE INVESTIGATION REPORT: Court must consider a new PSI for defendant who is sentenced after a retrial. Slinger v. State, 44 Fla. L. Weekly D1000e (5th DCA 4/18/19)

https://edca.5dca.org/DCADocs/2017/3829/173829_1260_04182019_08211137_i.pdf

DOUBLE JEOPARDY: Defendant cannot be convicted of both felony murder and the underlying felony. Williams v. State, 44 Fla. L. Weekly D1000c (3rd DCA 4/17/19)

http://3dca.flcourts.org/Opinions/3D19-0369.pdf

CONCEALED WEAPON: A firearm is not concealed when it is partially visible because the butt is sticking out of the console. State v. Hodges, 44 Fla. L. Weekly D1000b (3rd DCA 4/17/19)

http://3dca.flcourts.org/Opinions/3D18-0032.pdf

JUDGE-DISQUALIFICATION: The fact that an attorney made a campaign contribution to a judge or served on a judge's campaign committee does not, without more, require disqualification. Benitez v. Benitez, 44 Fla. L. Weekly D999 (3rd DCA 4/17/19)

http://3dca.flcourts.org/Opinions/3D18-0905.pdf

EVIDENCE-WILLIAMS RULE: Testimony of two other young women regarding their molestations by defendant where there were significant points of similarity is admissible. Stubbs v. State, 44 Fla. L. Weekly D985a (4th DCA 4/17/19)

https://www.4dca.org/content/download/523623/5817132/file/173295_1257_04172019_09011309_i.pdf

DOUBLE JEOPARDY-COLLATERAL ESTOPPEL: Collateral estoppel does not bar state from introducing at retrial on murder and conspiracy charges an acquaintance's testimony that defendant had solicited him to commit murder, although this testimony was the factual basis for the solicitation charge for which defendant was acquitted at his first trial, when the verdicts are irreconcilably inconsistent and the convictions are later vacated for legal error unrelated to the inconsistency. Rutledge v. State, 44 Fla. L. Weekly D984b (4th DCA 4/17/19)

https://www.4dca.org/content/download/523625/5817156/file/173659_1257_04172019_09104681_i.pdf

MINOR-LIFE SENTENCE-HOMICIDE: When resentencing Defendant who was a juvenile the time of the murder Court must include language providing for sentence review after 25 years. Lacue v. State, 44 Fla. L. Weekly D984a (4th DCA 4/17/19)

https://www.4dca.org/content/download/523622/5817120/file/171300_1257_04172019_08585258_i.pdf

PRISON RELEASEE REOFFENDER: Defendant who was released from county jail is not eligible for sentencing as a prison releasee re-offender. Razz v. State, 44 Fla. L. Weekly D983b (4th DCA 4/17/19)

https://www.4dca.org/content/download/523621/5817108/file/162400_1709_04172019_08582113_i.pdf

CONFESSION-VOLUNTARINESS: When officer during interrogation implied that asserting self-defense would be the Defendant's "only out," the Defendant's confession is involuntary. An express quid pro quo is not required for a claim of undue influence or coercion. The test is whether the Defendant was unable to make a choice free from unrealistic open delusions. Police misrepresentations of law are much more likely to render a suspect's confession involuntary. Johnson v. State, 44 Fla. L. Weekly D980a (4th DCA 4/17/19)

https://www.4dca.org/content/download/523626/5817168/file/181084_1709_04172019_09121977_i.pdf

POST CONVICTION RELIEF: Forfeiture of gametime is a collateral consequence of a plea and does not render the plea involuntary. Brown v. State, 44 Fla. L. Weekly D977c (4th DCA 4/17/19)

https://www.4dca.org/content/download/523633/5817252/file/183270_1709_04172019_09330250_i.pdf

STAND YOUR GROUND: Amendment shifting burden of proof to state applies to cases pending on appeal even when immunity hearing was held before effective date of statute. Conflict certified. Whitham v. State, 44 Fla. L. Weekly D975a (2nd DCA 4/17/19)

https://www.2dca.org/content/download/523640/5817340/file/163388_39_04172019_08313183_i.pdf

JUDGMENT-SNAPOUT: Court must prepare a proper sentencing document, rather than relying on a snapout form. "[T]he Tenth Circuit has persisted in using [snapout forms] despite a cavalcade of opinions from this court decrying this practice and pointing out specific problems with the circuit's widespread use of the forms." Dagan v. State, 44 Fla. L. Weekly D974a (2nd DCA 4/17/19)

https://www.2dca.org/content/download/523644/5817388/file/174828_173_04172019_08354898_i.pdf

CHILD ABUSE-MALICIOUS PUNISHMENT: Aggravated child abuse by malicious punishment does not require a finding of physical injury. Making the child eat his own feces is malicious. Reinard v. State, 44 Fla. L. Weekly D993b (1st DCA 4/16/19)

https://www.1dca.org/content/download/523611/5817015/file/180006_1284_04162019_02470635_i.pdf

CONSECUTIVE SENTENCE-10-20-LIFE: Court may not impose consecutive minimum mandatory sentences for aggravated assault and possession of a firearm by felon were the offenses occurred during a single criminal episode involving one victim. Consecutive sentences are permissible for single-episode crimes only when there are either multiple victims or multiple injuries. Bradley v. State, 44 Fla. L. Weekly D989b (1st DCA 4/16/19)

https://www.1dca.org/content/download/523610/5817003/file/175463_1287_04162019_02453567_i.pdf

IMPEACHMENT-TEXT MESSAGES: Text messages excluded from case-in-chief due to a failure to timely file notices collateral crime evidence are properly admitted as impeachment where they contradict the Defendant's testimony that the Victim initiated contact. Russell v. State, 44 Fla. L. Weekly D989a (1st DCA 4/16/19)

https://www.1dca.org/content/download/523608/5816979/file/174925_1284_04162019_02412934_i.pdf

MANDATORY MINIMUM-CONSECUTIVE SENTENCES: Court may not impose consecutive mandatory minimum sentences for multiple firearm offenses where they were committed without discharging a firearm during a single criminal episode. Rogers v. State, 44 Fla. L. Weekly D987c (1st DCA 4/16/19)

https://www.1dca.org/content/download/523602/5816915/file/173522_1286_04162019_02304883_i.pdf

JUVENILE-SECURE DETENTION: Court has no authority to reimpose any portion of the juvenile's original sentence based on the juvenile's unsuccessful discharge from treatment. J.A. v. Housel, 44 Fla. L. Weekly D972a (3rd DCA 4/15/19)

http://3dca.flcourts.org/Opinions/3D19-0692.pdf

STAND YOUR GROUND-RETROACTIVITY: Amendment to Stand Your Ground law applies retroactively. Defendant's conviction does not foreclose a rehearing on the Defendant's Stand Your Ground motion, but if the motion is denied, the conviction is reinstated. Rivera v. State, 44 Fla. L. Weekly D970b (2nd DCA 4/12/19)

https://www.2dca.org/content/download/523450/5815381/file/170496_39_04122019_08491965_i.pdf

DNA-EXPERT-STATISTICAL SIGNIFICANCE: An expert need not be a statistician to testify regarding the statistical significance of a DNA match, but must demonstrate a sufficient knowledge of the database grounded in the study of authoritative sources. On facts, this expert should have been allowed to testify to the statistical significance of a DNA match. State v. Bethley, 44 Fla. L. Weekly D971a (2nd DCA 4/12/19)

https://www.2dca.org/content/download/523455/5815441/file/184143_167_04122019_08572264_i.pdf

VOP: Defendant does not violate the condition of probation enough possess a weapon or firearm by the fact that he possessed ammunition. Livingstone v. State, 44 Fla. L. Weekly D970a (2nd DCA 4/12/19)

https://www.2dca.org/content/download/523451/5815393/file/171695_114_04122019_08503804_i.pdf

JURY INSTRUCTION-ATTEMPTED MANSLAUGHTER: Court committed fundamental error because the jury instruction for attempted manslaughter did not exclude justifiable and excusable homicide from the definition of attempted manslaughter, and also omitted the introduction to the homicide instruction that defines justifiable and excusable homicide. Sams v. State, 44 Fla. L. Weekly D967c (2nd DCA 4/12/19)

https://www.2dca.org/content/download/523449/5815369/file/162117_39_04122019_08473388_i.pdf

DOWNWARD DEPARTURE: Defendant is not entitled to a downward departure based on knee injury sustained while resisting arrest. "The defendant's medical records generated while at the jail show, at best, that he had some swelling in his left knee and was given over-the-counter acetaminophen, a knee brace, and access to a wheelchair. . . [H]e was told by the doctor who examined him that he would 'be all right.'." State v. Schuler, 44 Fla. L. Weekly D964a (5th DCA 4/12/19)

https://edca.5dca.org/DCADocs/2018/3086/183086_1260_04122019_09134066_i.pdf

SENTENCING-CHILD PORNOGRAPHY: 100 year sentence is not cruel and unusual for possession of 20 counts of child pornography. Berben v. State, 44 Fla. L. Weekly D962a (5th DCA 4/12/19)

https://edca.5dca.org/DCADocs/2017/1428/171428_1259_04122019_08152794_i.pdf

SENTENCING-CHILD PORNOGRAPHY-CONSIDERATIONS: Court improperly considered the inference, and supported by evidence, that the Defendant had or might distribute the child pornography images in imposing a 100 year sentence. "Just as we do not punish an individual who possesses illegal drugs the same as one who manufactures or sells drugs, so too do we distinguish punishment for one who possesses child pornography from one who sexually assaults children or manufactures or distributes child pornography. Berben was not convicted of distributing child pornography and should not have been sentenced as if he had." Berben v. State, 44 Fla. L. Weekly D962a (5th DCA 4/12/19)

https://edca.5dca.org/DCADocs/2017/1428/171428_1259_04122019_08152794_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for advising him to reject the plea offer. Rish v. State, 44 Fla. L. Weekly D960a (5th DCA 4/12/19)

https://edca.5dca.org/DCADocs/2018/3657/183657_1259_04122019_09175020_i.pdf

LIMITATION OF ACTIONS: Defendant is not entitled to dismissal of information based on the twenty-six year delay between issuance of arrest capias and actual service where aw enforcement made several diligent attempts to locate defendant and uncontradicted evidence that defendant fled from the state and attempted to avoid prosecution with the use of multiple aliases. State v. Grammig, 44 Fla. L. Weekly D959c (5th DCA 4/12/19)

https://edca.5dca.org/DCADocs/2017/3416/173416_1260_04122019_08204034_i.pdf

CURLY APOSTROPHES: Apostrophes must be curly. In Re: Amendments to the Rules Regulating the Florida Bar, 44 Fla. L. Weekly S143a (FLA 4/11/19)

https://www.floridasupremecourt.org/content/download/523359/5814265/file/sc18-1683_BIENNIAL%20PETITION_NOTICE%20OF%20CORRECTION.pdf

JUDGES-DISCIPLINE: Judge reprimanded for removing a second attorney from sidebar conference in full view jury. "[T]he two attorneys were speaking respectfully to the Court during the sidebar, and were merely taking turns addressing the court, not speaking over each other. It appears that the attorneys had not breached the order and decorum of the proceedings in any way, other than aggravating Judge Bailey by working together to articulate an argument during a sidebar." Inquiry Concerning Judge Dennis Bailey, 44 Fla. L. Weekly S141b (FLA 4/11/19)

https://www.floridasupremecourt.org/content/download/523386/5814595/file/SC18-2060.pdf

AMENDMENTS TO JURY INSTRUCTIONS: Minor amendments to instructions on possession of firearm, domestic battery by strangulation, neglect of a child, false information to LEO, and human trafficking. In Re: Standard Jury Instructions in Criminal Cases, 44 Fla. L. Weekly S141a (FLA 4/11/19)

https://www.floridasupremecourt.org/content/download/523385/5814583/file/SC18-2030.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to follow up on her question to the Defendant at trial about his whereabouts at the time of the crime, and even if there were error it was harmless. State v. Smith, 44 Fla. L. Weekly D958a (1st DCA 4/11/19)

https://www.1dca.org/content/download/523348/5814141/file/172911_1287_04112019_08552364_i.pdf

ALIBI: Court cannot exclude a defendant's own alibi testimony for failure to file and serve proper notice of an alibi defense. State v. Smith, 44 Fla. L. Weekly D958a (1st DCA 4/11/19)

https://www.1dca.org/content/download/523348/5814141/file/172911_1287_04112019_08552364_i.pdf

SENTENCING-UPWARD DEPARTURE-DANGER TO PUBLIC: Court improperly sentenced Defendant who scored under 22 points to prison upon violation of probation by relying on facts other than her prior record. Gaymon v. State, 44 Fla. L. Weekly D957c (1st DCA 4/11/19)

https://www.1dca.org/content/download/523349/5814153/file/173335_1287_04112019_08562039_i.pdf

SENTENCING-SCORESHEET: Prior convictions more than 15 years old may not be included on the scoresheet. Platt v. State, 44 Fla. L. Weekly D956a (4th DCA 4/10/19)

https://www.4dca.org/content/download/523200/5812899/file/182231_1257_04102019_09210329_i.pdf

PROBATION-EARLY TERMINATION: Plea agreement which includes a "no early termination" clause is enforceable. Sturgeon v. State, 44 Fla. L. Weekly D955c (4th DCA 4/10/19)

https://www.4dca.org/content/download/523203/5812935/file/183406_1703_04102019_09264861_i.pdf

COSTS-ACQUITTED DEFENDANT: Acquitted defendant is not entitled to reimbursement for costs of house arrest imposed as a condition of pretrial release. Whitley v. State, 44 Fla. L. Weekly D952a (4th DCA 4/10/19)

https://www.4dca.org/content/download/523202/5812923/file/182610_1257_04102019_09253291_i.pdf

APPEAL-COMPETENCY: In case have proceeded to disposition without a competency determination having been made, the appropriate remedy on repeal is not to vacate conviction, but rather to remand to determine if the court can make a nunc pro tunc finding of competency. Machin v. State, 44 Fla. L. Weekly D948a (4th DCA 4/10/19)

https://www.4dca.org/content/download/523193/5812815/file/172787_1711_04102019_08511512_i.pdf

SENTENCING-CONSIDERATIONS-DETERRENCE: General deterrence is a proper sentencing factor and does not violate due process rights. GOOD DISCUSSION. Gallo v. State, 44 Fla. L. Weekly D946a (4th DCA 10/10/19)

https://www.4dca.org/content/download/523196/5812851/file/181236_1257_04102019_09123844_i.pdf

YUCK: "[Defendant] was trying to drink the blood that was pooling from his own head on the floor" and "appeared [to be] having a conversation with Satan." Gallo v. State, 44 Fla. L. Weekly D946a (4th DCA 10/10/19)

https://www.4dca.org/content/download/523196/5812851/file/181236_1257_04102019_09123844_i.pdf

HEARSAY: Court properly excluded Defendant's statements made days after the shooting death of the Defendant' wife: the shooting an accident, offered to rebut the inference that is defense of accidental shooting was a recent fabrication, because said statements were too far removed in time from the shooting. Boggess v. State, 44 Fla. L. Weekly D944e (4th DCA 10/10/19)

https://www.4dca.org/content/download/523198/5812875/file/181943_1257_04102019_09181076_i.pdf

POST CONVICTION RELIEF-TIMELINESS: Defendant must raise claim that counsel was ineffective for not advising him of the immigration consequences within 2 years of when he could have ascertained the immigration consequences of the plea with due diligence. It is not enough to allege that the defendant learned of the possibility of deportation only upon the commencement of deportation proceedings after the two-year limitations period has expired. Lopez-Gonzales, 44 Fla. L. Weekly D944b (3rd DCA 10/10/19)

http://3dca.flcourts.org/Opinions/3D18-0993.pdf

DOUBLE JEOPARDY: Convictions for use of computer service to solicit parent and traveling to meet child violate double jeopardy where is not clear that the crimes are for distinct acts. To avoid double jeopardy, the information must clearly on its face show each count as a separate and distinct act. Baker v. State, 44 Fla. L. Weekly D942a (3rd DCA 10/10/19)

http://3dca.flcourts.org/Opinions/3D17-1881.pdf

STATEMENTS OF DEFENDANT-COERCION: Statement made by interrogating officers to defendant himself a narcotics officer suspected of stealing money from a sting operation is coerced would obtain under threat of removal from office ("We have to make this look like an isolated incident if you want to try to maintain your position in narcotics"). State v. Socarras, 44 Fla. L. Weekly D935a (3rd DCA 10/10/19)

http://3dca.flcourts.org/Opinions/3D18-0783.pdf

LATIN PHRASES-5th AMENDMENT HISTORY: "Historically,'[t]he right against self-incrimination originated in the maxim nemo tenetur seipsum prodere ('no man shall be compelled to incriminate himself'.)'" State v. Socarras, 44 Fla. L. Weekly D935a (3rd DCA 10/10/19)

http://3dca.flcourts.org/Opinions/3D18-0783.pdf

CROSS-EXAMINATION: Court did not err in restricting cross-examination of eyewitness who was arrested for a crime which was later dropped. Mitchell v. State, 44 Fla. L. Weekly D933b (3rd DCA 4/10/19)

http://3dca.flcourts.org/Opinions/3D17-2718.pdf

DUPLICATE JUDGMENT: Court may not enter a 2nd judgment of guilt upon finding that the defendant violated probation. Byra v. State, 44 Fla. L. Weekly D928a (2nd DCA 4/10/19)

https://www.2dca.org/content/download/523224/5813187/file/181297_65_04102019_08545313_i.pdf

DOUBLE JEOPARDY: Double jeopardy bars convictions for both unlawful use of a two-way communications device and use of a computer to solicit child or acts arising out of a single criminal episode. Wright v. State, 44 Fla. L. Weekly D927a (2nd DCA 4/10/19)

https://www.2dca.org/content/download/523222/5813163/file/181164_114_04102019_08534476_i.pdf

JUDGES: Judge's comments to excused jurors scolding them for their unwillingness to serve and made in the presence of the actual jury is not fundamental error. Weddington v. State, 44 Fla. L. Weekly D923a (1st DCA 4/9/19)

https://www.1dca.org/content/download/523121/5811941/file/180501_1284_04092019_08153983_i.pdf

STATEMENTS OF DEFENDANT: Defendant was not in custody for purposes of Miranda in order to the ground at pistol point and asked what happened. A traffic stop or investigatory stop is not transformed into a custodial interrogation or formal arrest when police ask the person if he or she has any weapons or drugs. Young v. State, 44 Fla. L. Weekly D921d (1st DCA 4/9/19)

https://www.1dca.org/content/download/523120/5811929/file/175245_1284_04092019_08145538_i.pdf

COSTS: Judgment may not include imposition of discretionary fines and surcharges when neither was orally pronounce. Cheeks v. State, 44 Fla. L. Weekly D921a (1st DCA 10/9/19)

https://www.1dca.org/content/download/523118/5811905/file/172994_1286_04092019_08133239_i.pdf

HEARSAY-STATEMENTS OF CO-DEFENDANT: Admissions of statements of co-defendant regarding events leading up to the charged incident is not fundamental error when isolated, passing references, were not mentioned in Status as arguments, and did not become a feature the trial. Powell v. State, 44 Fla. L. Weekly D919a (1st DCA 10/9/19)

https://www.1dca.org/content/download/523119/5811917/file/173615_1284_04092019_08141563_i.pdf

INSANITY: Court may not accept the voluntary stipulation between prosecutor and defense counsel that the Defendant is not billed reason of insanity. Lowry v. State, 44 Fla. L. Weekly D896a (1st DCA 4/5/19)

https://www.1dca.org/content/download/523041/5811002/file/172942_1282_04052019_09191288_i.pdf

JAIL CALL: Defendant's statement in jail call "you gonna help me get the help that I need?" Is admissible as a statement by a party opponent. Smith v. State, 44 Fla. L. Weekly D894a (1st DCA 4/5/19)

https://www.1dca.org/content/download/523043/5811026/file/181661_1284_04052019_09204168_i.pdf

VOP-CREDIT FOR TIME SERVED: After supervision is revoked and a prison sentence is imposed, a defendant is not entitled to credit against his prison sentence for the time previously spent on supervision. An exception exists when a new term of supervision is imposed after a violation. In that case, an award of credit is required when necessary to ensure that the total term of supervision does not exceed the statutory maximum. However, when a defendant's supervision is revoked, and he is sentenced to prison with no supervision to follow, this exception does not apply, even if the new prison term combined with the previous supervisory sentence results in a total that exceeds the statutory maximum. Gordon v. State, 44 Fla. L. Weekly D893a (1st DCA 4/5/19)

https://www.1dca.org/content/download/523050/5811116/file/184096_1284_04052019_09264998_i.pdf

APPEALS-CERTIORARI-SECOND-TIER REVIEW: "As a case travels up the judicial ladder, review should consistently become narrower, not broader." Second-tier review is limited to whether lower court departed from the essential requirements of law, i.e. whether the ruling violated a clearly established principle of law resulting in a miscarriage of justice. Conviction for resisting without violence for fleeing a car dealership where he was not welcome is affirmed. Stamitoles v. State, 44 Fla. L. Weekly D891c (1st DCA 4/5/19)

https://www.1dca.org/content/download/523045/5811050/file/182345_1281_04052019_09222375_i.pdf

APPEAL-INEFFECTIVE ASSISTANCE: Claim that counsel was ineffective for not pursuing a motion to suppress may only be raised when Defendant establishes indisputable prejudice. Bishop v. State, 44 Fla. L. Weekly D891b (1st DCA 4/5/19)

https://www.1dca.org/content/download/523048/5811092/file/183675_1284_04052019_09252448_i.pdf

VIOLATION-SANCTION: Court may not exclude a defense witness who is on state's witness list and had been deposed as a sanction for Defendant not listing that witness. Ward v. State, 44 Fla. L. Weekly D888a (5th DCA 4/5/19)

https://edca.5dca.org/DCADocs/2017/2441/172441_1260_04052019_08354187_i.pdf

JEOPARDY-POSSESSION OF CHILD PORNOGRAPHY: Convictions for one count of unlawful possession of sexual performance by a child (10 or more images) and separate convictions for possession of child pornography for those images in Count I is not barred by double jeopardy. Taylor v. State, 44 Fla. L. Weekly D884a (5th DCA 4/5/19)

https://edca.5dca.org/DCADocs/2018/0213/180213_1257_04052019_08411795_i.pdf

POST CONVICTION RELIEF-MANDATORY MINIMUM-RETROACTIVITY: Supreme Court opinion holding that consecutive minimum-mandatory sentences from a single episode in which the Defendant did not fire a gun does not apply retroactively. "When the Florida Supreme Court interprets a statute. . ., it explains not just what the statute means now, but also what the statute has always meant. However if the sentence was not illegal at the time it was imposed, the defendant is not entitled to relief under Rule 3.800(a) by virtue of a later-decided case. If he had appealed, he would have won, but he didn't, so he is screwed. Hester v. State, 44 Fla. L. Weekly D881b (1st DCA 4/3/19)

https://www.1dca.org/content/download/522984/5810305/file/181209_1284_04032019_02483280_i.pdf

POSSESSION-KNOWLEDGE: Evidence that Defendant was aware of marijuana plants on the property, standing alone is insufficient to support conviction for manufacturing cannabis. Terry v. State, 44 Fla. L. Weekly D879a (1st DCA 4/3/19)

https://www.1dca.org/content/download/522977/5810227/file/175386_1287_04032019_10564693_i.pdf

SECOND DEGREE MURDER-CIRCUMSTANTIAL EVIDENCE-JOA: Evidence of an argument between the defendant and his girlfriend later being found shot to death in her bathroom at their home is sufficient to prove that the Defendant shot her. Charlier v. State, 44 Fla. L. Weekly D877b (3rd DCA 4/3/19)

http://3dca.flcourts.org/Opinions/3D17-2327.pdf

MEDICAL MARIJUANA: Florida Constitution does not allow qualified patients and caregivers to grow, cultivate, and/or process their own marijuana. Florida Department of Health v. Redner, 44 Fla. L. Weekly D873b (1st DCA 4/3/19)

https://www.1dca.org/content/download/522978/5810239/file/181505_1287_04032019_10590917_i.pdf

MINOR-SENTENCING: 35 year concurrent sentences for homicide and non-homicide committed by a juvenile is legal. A thirty-five year sentence is not a life, mandatory life, or a de facto life sentence. Burns v. State, 44 Fla. L. Weekly D873a (1st DCA 4/3/19)

https://www.1dca.org/content/download/522917/5809489/file/171953_1284_04032019_10294399_i.pdf

ARGUMENT-SHIFTING BURDEN OF PROOF-DNA: State improperly shifted burden of proof by arguing that the Defendant in his interrogation did not deny paternity or save more to proclaim his innocence, but the error was harmless. "The comments and question cannot alter DNA evidence to a 99.9% certainty, bolstered by the other evidence." Grimsley v. State, 44 Fla. L. Weekly D872a (1st DCA 4/3/19)

https://www.1dca.org/content/download/522919/5809507/file/172803_1284_04032019_10302645_i.pdf

PROBATION REVOCATION-SENTENCING: A new sentencing hearing is required where defendant is found guilty of violating probation based on commission of a new offense (sexual battery) and technical violations, and the technical violations were not supported by evidence, and it is not clear that the Court would have imposed the same sentence without the technical violations. Kimmons v. State, 44 Fla. L. Weekly D871a (1st DCA 4/3/19)

https://www.1dca.org/content/download/522914/5809453/file/160204_1286_04032019_10272612_i.pdf

COMPETENCY: Court may find the defendant competent to stand trial based upon other evidence, notwithstanding Defendant's delusional explanation for the murder and his history of mental illness. Not every defendant whose mental health problems manifest in bizarre or irrational behavior is legally incompetent to stand trial. Rodgers v. State, 44 Fla. L. Weekly D870a (1st DCA 4/3/19)

https://www.1dca.org/content/download/522973/5810179/file/174325_1284_04032019_10521359_i.pdf

HEARSAY-EXCITED UTTERANCE: 911 call in which victim reported that defendant had been sending her death threats all day in text and voice mail messages is admissible under excited utterance exception, notwithstanding two hour gap between the threat and the victim's call to 911. Lee v. State, 44 Fla. L. Weekly D864f (1st DCA 4/3/19)

https://www.1dca.org/content/download/522915/5809465/file/171469_1284_04032019_10281318_i.pdf

EVIDENCE-JAIL CALLS: Statements made by victim in recorded jail calls are admissible hearsay for purpose of providing context for defendant's responses. Lee v. State, 44 Fla. L. Weekly D864f (4/3/19)

https://www.1dca.org/content/download/522915/5809465/file/171469_1284_04032019_10281318_i.pdf

POSSESSION OF CONTRABAND IN CUSTODY: Defendant is properly convicted of possession of contraband based on him being found in jail with the synthetic cannabinoid cigarette. Statute prohibits possession of any drugs, not only those listed in Fla.Stat. 893.02. Diaz v. State, 44 Fla. L. Weekly D859a (3rd DCA 4/3/19)

http://3dca.flcourts.org/Opinions/3D17-0464.pdf

SENTENCING: Sentence of fifty-eight months in prison followed by one year of probation for possession of cocaine was illegal as sentence exceeds the statutory maximum. Buggs v. State, 44 Fla. L. Weekly D857a (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522932/5809687/file/174040_114_04032019_08465935_i.pdf

STAND YOUR GROUND-JURY INSTRUCTION: Confusing and contradictory jury instruction conflating different parts of the Stand Your Ground law require a new trial. Dooley v. State, 44 Fla. L. Weekly D854b (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522926/5809615/file/170368_114_04032019_09144284_i.pdf

STAND YOUR GROUND-JURY INSTRUCTION: Section 776.013(3) gives immunity to one who reasonably believed the use of deadly force was "necessary . . . to prevent death or great bodily harm . . . or to prevent the commission of a forcible felony," and is not available to one involved in unlawful activity. 776.012(1) does allow one involved in unlawful activity to invoke Stand Your Ground immunity. Dooley v. State, 44 Fla. L. Weekly D854b (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522926/5809615/file/170368_114_04032019_09144284_i.pdf

GRUMPY OLD MAN WITH A GUN: "Trevor Dooley and David James got into an argument over whether a teenager should be allowed to skateboard on a basketball court. By the end of the encounter, Mr. James had been shot dead by Mr. Dooley." Dooley v. State, 44 Fla. L. Weekly D854b (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522926/5809615/file/170368_114_04032019_09144284_i.pdf

JURY INSTRUCTIONS-QUOTATION: "Pinning the precise degree of assumed correctness to approved standard jury instructions seems to be an exercise of elusive measurement. On the one hand, the Florida Supreme Court has held that standard jury instructions 'are published under this Court's authority and are presumed to be correct.' . . . On the other hand, that pronouncement has come to be tethered to so many qualifications it leaves one to wonder whether what remains could truly be said to be a presumption." Dooley v. State, 44 Fla. L. Weekly D854b (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522926/5809615/file/170368_114_04032019_09144284_i.pdf

VOCABULARY: "In some respects, the confusion here resembles that sometimes seen with the use of asyndetons -- the omission of conjunctive or disjunctive signals within a list -- which 'can suggest the essential unity of the items . . . . [or] can also be used to evoke a sense of disorder.'" Dooley v. State, 44 Fla. L. Weekly D854b (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522926/5809615/file/170368_114_04032019_09144284_i.pdf

COSTS: Court must orally pronouncing statutory authority before imposing a discretionary $500 fine and 5% surcharge. Davis v. State, 44 Fla. L. Weekly D854a (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522942/5809807/file/180892_65_04032019_08504514_i.pdf

COMPETENCY: "If the Defendant is incompetent and unlikely to read gain competency, the State must either institute the customary civil commitment proceeding or release him. If an incompetent defendant cannot be restored to competency in the reasonably foreseeable future, the State can either institute a civil commitment proceeding or it can release the defendant. It is an either-or proposition. There is no third alternative. . . [T]he Court's direction to 'release the defendant' does not brook anything besides an unconditional release." The Court may not order conditional release. Schofield v. Judd, 44 Fla. L. Weekly D850a (2nd DCA 4/3/19)

https://www.2dca.org/content/download/522970/5810143/file/184827_167_04032019_08524701_i.pdf

PRO SE FILINGS: Court may not prohibit further pro se filings without warning the defendant of the consequences. Roland v. State, 44 Fla. L. Weekly D847a (4th DCA 4/3/19)

https://www.4dca.org/content/download/522910/5809399/file/183033_1709_04032019_09291654_i.pdf

JUVENILE-ADJUDICATORY HEARING-ABSENCE OF JUVENILE: Court properly proceeded with adjudicatory hearing in absence of the juvenile after finding that his absence was voluntary, but court may not proceed to disposition in the absence of the juvenile. J.R. v. State, 44 Fla. L. Weekly D846b (4th DCA 4/3/19)

https://www.4dca.org/content/download/522905/5809339/file/181719_1708_04032019_09214882_i.pdf

RESTITUTION-VALUATION: Victim's guesstimate of value of a stolen necklace, based on the replacement value of similar necklaces is insufficient to establish the value of it. Using websites, catalogs, or contacts with non-witnesses to price the value of an item constitutes reliance on hearsay. Morrill v. State, 44 Fla. L. Weekly D843a (4th DCA 4/3/19)

https://www.4dca.org/content/download/522899/5809267/file/180781_1708_04032019_09041410_i.pdf

FORFEITURE-VEHICLE-FRAUD: Forfeiture of a Cadillac Escalade because it was purchased under a false name may be an excessive fine under the 8th Amendment of the Constitution. Tejada v. Forfeiture of 2015 Cadillac Escalade, 44 Fla. L. Weekly D841b (4th DCA 4/3/19)

https://www.4dca.org/content/download/522903/5809315/file/181474_1709_04032019_09164469_i.pdf

CAREER CRIMINAL: Defendant cannot be sentenced as a Violent Career Criminal based on his conviction for grand theft, not an enumerated felony. Hastie v. State, 44 Fla. L. Weekly D840b (4th DCA 4/3/19)

https://www.4dca.org/content/download/522987/5810329/file/183159_1709_04032019_03260464_i.pdf

INFORMATION-AMENDMENT: State may not amend the charge of capital sexual battery mid-trial to alter the item of penetration based on the trial testimony (Victim testified it was a gun, not a penis or finger as charged). Viladoine v. State, 44 Fla. L. Weekly D839a (4th DCA 4/3/19)

https://www.4dca.org/content/download/522897/5809243/file/160218_1709_04032019_08454690_i.pdf

MARCH 2019

INCONSISTENT VERDICTS-LEAVING SCENE OF ACCIDENT: Convictions for leaving the scene of an accident with injury and with property damage from the same accident is inconsistent. Leaving the scene of an accident with property damage requires that there be only property damage, no injury. Linen v. State, 44 Fla. L. Weekly D838a (2nd DCA 3/29/19)

https://www.2dca.org/content/download/521338/5790236/file/163691_114_03292019_08360956_i.pdf

APPEAL-INEFFECTIVENESS: Appellate court will not entertain claims that trial counsel was ineffective for failing to move for judgment of acquittal based on the state billing to prove the value of the stolen property. Only when there is indisputable prejudice will the appellate court consider that trial counsel was ineffective. Because State might have reopened its case to prove value, the prejudice here was not indisputable. Gaskins v. State, 44 Fla. L. Weekly D834b (5th DCA 3/29/19)

https://edca.5dca.org/DCADocs/2018/1089/181089_1257_03292019_08520516_i.pdf

VOP-YOUTHFUL OFFENDER: Defendant who was initially sentenced to probation is youthful offender and his probation is revoked for substantive offense must be sentenced to serve the minimum mandatory for use of a firearm that would have applied to the original offense. Cooper v. State, 44 Fla. L. Weekly D830b (5th DCA 3/29/19)

https://edca.5dca.org/DCADocs/2017/2326/172326_1257_03292019_08385306_i.pdf

PAROLE REVOCATION: Defendant's revocation of parole is vacated with the record is not clear that the examiner found that the Defendant's use of drugs was a willful and substantial violation of probation (Defendant used drugs to self medicatefor side effects of cancer). Lancaster v. State, 44 Fla. L. Weekly D830a (5th DCA 3/29/19)

https://edca.5dca.org/DCADocs/2018/2871/182871_1255_03292019_09270880_i.pdf

SCORESHEET-JURY FINDING-PENETRATION: Failure of jury to find penetration, if required by Alleyne, is harmless if the record demonstrates that a rational jury would have found the fact of penetration. Vereen v. State, 44 Fla. L. Weekly D826a (1st DCA 3/28/19)

https://www.1dca.org/content/download/521299/5789872/file/165189_1286_03282019_10524051_i.pdf

CREDIT FOR TIME SERVED: Defendant is not entitled to credit for time served on all counts upon VOP because probation was concurrent and Defendnt is sentenced to consecutive sentences upon VOP. Triatik v. State, 44 Fla. L. Weekly D825a (1st DCA 3/28/19)

https://www.1dca.org/content/download/521303/5789920/file/181426_1286_03282019_10563351_i.pdf

CREDIT FOR TIME SERVED: When a trial court imposes probation, it must credit jail time against the probationary term if the combined time would exceed the statutory maximum sentence. Triatik v. State, 44 Fla. L. Weekly D825a (1st DCA 3/28/19)

https://www.1dca.org/content/download/521303/5789920/file/181426_1286_03282019_10563351_i.pdf

LICENSING: Perfunctory revocation of nursing license without consideration of the underlying circumstances is unlawful. Brewer v. Florida Department of Health, Board of Nursing, 44 Fla. L. Weekly D821a (1st DCA 3/28/19)

https://www.1dca.org/content/download/521300/5789884/file/172179_1287_03282019_10534782_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for not pursuing a Stand Your Ground defense. "We cannot presume counsel acted in a strategic manner here given the rapidly evolving state of the law at the time of the appellant's trial." Waters v. State, 44 Fla. L. Weekly D820a (1st DCA 3/28/19)

https://www.1dca.org/content/download/521301/5789896/file/173653_1286_03282019_10543665_i.pdf

10/20/LIFE: Court may not impose ten-year mandatory minimum for possession of firearm where the grounds for enhancement were not alleged in the information. Agenor v. State, 44 Fla. L. Weekly D815e (2nd DCA 3/27/19)

https://www.2dca.org/content/download/521197/5788654/file/173759_114_03272019_08571178_i.pdf

MINOR-SENTENCE REVIEW: Defendant who was sentenced to thirty years in prison for armed robberies committed when he was seventeen years old is not entitled to have sentence reviewed under new juvenile sentencing law. Graham does not apply to a thirty-year sentence. Francois v. State, 44 Fla. L. Weekly D813b (3rd DCA 3/27/19)

http://3dca.flcourts.org/Opinions/3D18-0218.pdf

POST CONVICTION RELIEF: Defendant may voluntary dismiss motion for postconviction relief prior to the court's entry of an order ruling on it. Thomas v. State, 44 Fla. L. Weekly D813a (3rd DCA 3/27/19)

http://3dca.flcourts.org/Opinions/3D18-2487.co.pdf

DRUG COURT: Administrative order barring more than one admission into the drug court program is unlawful. Gincley v. State, 44 Fla. L. Weekly D808a (4th DCA 3/27/19)

https://www.4dca.org/content/download/521193/5788600/file/183067_1704_03272019_09120493_i.pdf

APPEALS-INEFFECTIVENESS: Appellate counsel was ineffective for failing to argue that the court erred in not holding a competency hearing after having ordered a competency evaluation. Flaherty v. State, 44 Fla. L. Weekly D806a (4th DCA 3/27/19)

https://www.4dca.org/content/download/521192/5788588/file/182872_1704_03272019_09104067_i.pdf

JURY INSTRUCTIONS: Reading the instructions for the lesser included in an improper order does not warrant a new trial where the jury was unlikely to be confused. "While the erroneous instruction would naturally cause some confusion, this did not transform the error into one that reached down into the validity of the trial." Johnson v. State, 44 Fla. L. Weekly D801a (4th DCA 3/27/19)

https://www.4dca.org/content/download/521184/5788492/file/173776_1257_03272019_08595683_i.pdf

STAND YOUR GROUND-RETROACTIVE: Amendment to Stand Your Ground law which requires state to prove by clear and convincing evidence that immunity does not apply does not apply retroactively. Mandate affirmed pending Supreme Court resolution. Rivera v. State, 44 Fla. L. Weekly D800a (4th DCA 3/27/19)

https://www.4dca.org/content/download/521175/5788384/file/164328_1257_03272019_08544429_i.pdf

CONTEMPT-JUVENILE: Contempt finding is vacated were Court did not strictly comply with the statute related to juvenile contempt. E.M. v. State, 44 Fla. L. Weekly D799a (4th DCA 3/27/19)

https://www.4dca.org/content/download/521180/5788444/file/173557_1708_03272019_08581188_i.pdf

MINOR-SENTENCING: Fifty year sentence for first degree murder committed by a juvenile is lawful. The jury does not met need to make the factual finding that the defendant intended to be killed because that finding is inherent in the conviction for first-degree murder regardless whether the Defendant was the killer or a mere principal. Bailey v. State, 44 Fla. L. Weekly D789a (2nd DCA 3/22/19)

https://www.2dca.org/content/download/433183/4698946/file/170023_65_03222019_08304043_i.pdf

RETURN OF PROPERTY: Motion for return of property filed more than 60 days after appellate court issued mandate is untimely. Horvatt v. State, 44 Fla. L. Weekly D788c (5th DCA 3/22/19)

https://edca.5dca.org/DCADocs/2018/1912/181912_1257_03222019_08181409_i.pdf

VOP-JURISDICTION-TOLLING: Dismissal of an affidavit of violation of probation nullifies the tolling of probation that came with the filing of the affidavit. The offender shall receive credit for all tolled time against his term of probation if the Court dismisses the affidavit of violation. Keene v. State, 44 Fla. L. Weekly D787a (5th DCA 3/22/19)

https://edca.5dca.org/DCADocs/2018/3353/183353_1260_03222019_08224145_i.pdf

COLLATERAL ESTOPPEL-POSSESSION OF a FIREARM BY FELON: Collateral estoppel does not bar prosecution for possession of a firearm by a felon after that charge was severed when identity is not necessarily the basis for the jury's verdict. Jones v. State, 44 Fla. L. Weekly D786b (5th DCA 3/22/19)

https://edca.5dca.org/DCADocs/2017/3924/173924_1257_03222019_08070846_i.pdf

COSTS: Court may not order investigative costs based on an affidavit from the sheriff, admitted over a hearsay objection, that his detectives are paid $38 per hour when the only testimony from one of the detectives was that he made $28 per hour. Negron v. State, 44 Fla. L. Weekly D783a (5th DCA 3/22/19)

https://edca.5dca.org/DCADocs/2018/1401/181401_1260_03222019_08160545_i.pdf

JURISDICTION-PENDING APPEAL: Pro se notice of appeal by represented defendant divests the trial court of jurisdiction to rule on his motion to withdraw his plea. Carroll v. State, 44 Fla. L. Weekly D782a (5th DCA 3/22/19)

https://edca.5dca.org/DCADocs/2018/0098/180098_1260_03222019_08095611_i.pdf

SEARCH AND SEIZURE-PROBATIONARY SEARCH-CELL PHONE: Probation Officer may search a probationer's cell phone without reasonable suspicion Question certified as being a matter of great public importance. State v. Phillips, 44 Fla. L. Weekly D780a (5th DCA 3/22/19)

https://edca.5dca.org/DCADocs/2018/0098/180098_1260_03222019_08095611_i.pdf

DEFINITION: "May do either" logically can be interpreted only as "may do either but not both." N.A. v. DCF, 44 Fla. L. Weekly D778a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431184/4682250/file/183374_1709_03202019_10081710_i.pdf

SILENCE OF DEFENDANT: Defendant's silence during a controlled call with a codefendant is admissible as an adoptive admission to what the codefendant said during that phone call. Brooks v. State, 44 Fla. L. Weekly D776a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431175/4682142/file/173448_1257_03202019_09280713_i.pdf

LEWD OR LASCIVIOUS EXHIBITION-AGE OF DEFENDANT: Testimony by percipient witness that the Defendant was an older man combined with the jury's opportunity to observe the defendant in court is sufficient to show that the Defendant was over the age of 18 at the time of the offense. Dedominicis v. State, 44 Fla. L. Weekly D771a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431179/4682190/file/180596_1257_03202019_09390175_i.pdf

SELF-DEFENSE-JURY INSTRUCTION: Court committed fundamental error when it erroneously instructed the jury that the danger facing defendant "need have been actual" instead of "need not have been actual. Appellate court cannot determine whether the Court actually omitted the word "not" or whether the error is in the transcription by the court reporter. "The situation here underlines the importance of including in the record the written collection of instructions on the law that the jury takes into deliberations." Saloman v. State, 44 Fla. L. Weekly D769a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431180/4682202/file/180679_1709_03202019_10270306_i.pdf

EXPERT-BOLSTERING: A law enforcement officer cannot testify under the guise of expertise as to whether the case is 1 of self-defense. An officer may not testify about the credibility or the plausibility of the versions of events given by the Defendant or other witnesses. Saloman v. State, 44 Fla. L. Weekly D769a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431180/4682202/file/180679_1709_03202019_10270306_i.pdf

SECOND DEGREE MURDER: Defendant is properly convicted of second-degree murder when he shot the victim after having sufficient time to cool off before going to his car to get the gun with which he shot the victim several times. Saloman v. State, 44 Fla. L. Weekly D769a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431180/4682202/file/180679_1709_03202019_10270306_i.pdf

GUIDELINES-SCORESHEET-PRESERVATION OF ISSUE: Claim that scoresheet should not have included hundred 60 sexual penetration points is not preserved for appeal when the defendant never raised the issue at sentencing. Ayos v. State, 44 Fla. L. Weekly D767a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431244/4682982/file/173857_1708_03202019_10510452_i.pdf

COSTS: Costs maybe assessed only per case, not per count. Ayos v. State, 44 Fla. L. Weekly D767a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431244/4682982/file/173857_1708_03202019_10510452_i.pdf

FALSE NAME: Defendant cannot be convicted of giving a false name for lying about his name when questioned on suspicion of trespassing. One can only be convicted if he gives a false name upon arrest or lawful detention; a consensual encounter is not a lawful detention. However, the defendant can be convicted of resisting without violence if he then runs away. K.O. v. State, 44 Fla. L. Weekly D762a (4th DCA 3/20/19)

https://www.4dca.org/content/download/431183/4682238/file/182546_1708_03202019_10013966_i.pdf

JUVENILES-COMMITMENT LEVEL: Court may not depart from commitment level recommended by DJJ without making adequate findings on the record. Parroting of information in the DJJ's comprehensive assessment and PDR is insufficient to establish acceptable reasons for varying from the recommended disposition. J.D.P. v. State, 44 Fla. L. Weekly D761c (2nd DCA 3/20/19)

https://www.2dca.org/content/download/431186/4682280/file/164072_39_03202019_08250836_i.pdf

MEDICAL RECORDS-INVESTIGATIVE SUBPOENAS: State may not subpoena medical records in a leaving the scene of an accident case in order to see if the Defendant was under the influence of alcohol for the possible purpose of impeachment trial. Gomillion v. State, 44 Fla. L. Weekly D758a (2nd DCA 3/20/19)

https://www.2dca.org/content/download/431206/4682526/file/181640_167_03202019_08330796_i.pdf

VOP: Separate charges and convictions are not required to support a substantive violation of probation based upon the commission of a new law violation. McClendon v. State, 44 Fla. L. Weekly D754c (3rd DCA 3/20/19)

http://3dca.flcourts.org/Opinions/3D19-0152.pdf

EVIDENCE: Asking whether another witness is wrong or mistaken is not improper. M.H. v. State, 44 Fla. L. Weekly D754a (3rd DCA 3/20/19)

http://3dca.flcourts.org/Opinions/3D18-0312.pdf

QUOTATION-ABRAHAM LINCOLN: "How many legs does a dog have if you call his tail a leg? Four. Saying that a tail is a leg doesn't make it a leg." State v. Herrera-Fernandez, 44 Fla. L. Weekly D749a (3rd DCA 3/20/19)

http://3dca.flcourts.org/Opinions/3D17-1481.pdf

PLEA OFFER: State's invitation for defense counteroffer including specific terms and waiving the minimum mandatory is an "offer" and empowers the Court to make its own proposal waiving the minimum mandatory."[T]he prosecutor 'invited' the defense to make a 'counteroffer' of 75 months. . .and agreed that the State would 'accept' such a 'counteroffer' if made by the defendant. This was, plainly and simply, a State offer, regardless of the prosecutor's characterization of it as an 'invited counteroffer.' It was no more a counteroffer than a dog's tail is a fifth leg. Because the trial court properly determined that the "invited counteroffer" was really a below-guidelines plea offer that also waived the mandatory minimum sentence, and because that plea offer was not withdrawn by the State, the trial court was within its authority to extend its own plea offer to the defendant." State v. Herrera-Fernandez, 44 Fla. L. Weekly D749a (3rd DCA 3/20/19)

http://3dca.flcourts.org/Opinions/3D17-1481.pdf

JUROR-CHALLENGE PEREMPTORY: Defendant's challenge to State's use of a peremptory challenge fails where defendant never specified juror's race; defense never contended that state's proffered reasons were pretextual; and there was no basis offered to suggest disparate or "non-race neutral" treatment of juror in context of other voir dire questioning. Helfrich v. State, 44 Fla. L. Weekly D748a (3rd DCA 3/20/19)

http://3dca.flcourts.org/Opinions/3D16-1941.pdf

VOIR DIRE-LIMITATIONS: Court's order directing defense counsel not to discuss excessive 4 through voir dire deprive Defendant of a fair trial. Where a juror's attitude about a particular legal doctrine is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of the voir dire properly includes questions about and references to that legal doctrine. It is improper to curtail questioning on the theory of defense, even where counsel is permitted to inquire generally. Ruiz v. State, 44 Fla. L. Weekly D743d (3rd DCA 3/20/19)

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

THEFT-VALUE: School principal is competent to testify about the value of projectors when he is the guy who orders them. Howard v. State, 44 Fla. L. Weekly D743b (3rd DCA 3/20/19)

http://3dca.flcourts.org/Opinions/3D18-0155.pdf

SPEEDY TRIAL: Counsel is permitted to waive defendant speedy trial rights without consulting defendant. Steel v. State, 44 Fla. L. Weekly D737a (1st DCA 3/20/19)

https://www.1dca.org/content/download/431169/4682064/file/173978_1284_03202019_09332125_i.pdf

COSTS: Court can consider in-kind payments by his mother towards his rents and any disability payments in determining the payment plan or paying criminal costs. Flanagan v. State, 44 Fla. L. Weekly D730a (1st DCA 3/18/19)

https://www.1dca.org/content/download/431088/4681334/file/175290_1284_03182019_10055515_i.pdf

MINOR-LIFE SENTENCE: Minor who is paroled and violates can be sentenced to life in prison. Day v. State, 44 Fla. L. Weekly D729a (1st DCA 3/18/19)

https://www.1dca.org/content/download/431090/4681358/file/181063_1284_03182019_10121482_i.pdf

DOUBLE JEOPARDY: Dual convictions for selling a mixture of heroin and fentanyl do not violate double jeopardy. Each type of controlled substance constitutes an allowable unit of prosecution. Discussion of the "a/any test." Edwards v. State, 44 Fla. L. Weekly D726b (2nd DCA 3/15/19)

https://www.2dca.org/content/download/430941/4680028/file/180807_65_03152019_08513163_i.pdf

POST CONVICTION RELIEF: "Waddell claimed that the trial court informed him. . .that if he proceeded to trial and lost, he would receive the maximum sentence. . . .[T]hose words proved prophetic. In denying the Motion, the trial court stated, '[a] review of the records shows no such statements made by the Court.' The trial court, however, declined to share those records with us. Accordingly. . .we reverse the summary denial." Waddell v. State, 44 Fla. L. Weekly D721c (5th DCA 3/15/19)

https://edca.5dca.org/DCADocs/2018/3373/183373_1260_03152019_10051675_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to object to the Court's ruling that he had to choose between the defense of entrapment or that he lacked the intent to commit the crime. Asserting the entrapment defense is not necessarily inconsistent with denial of the crime even when it is admitted that the requisite acts occurred, for the defendant might nonetheless claim that he lacked the requisite bad state of mind. Knapp v. State, 44 Fla. L. Weekly D716g (5th DCA 3/15/19)

https://edca.5dca.org/DCADocs/2018/2596/182596_1259_03152019_09491516_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to advise defendant that rejected plea offer represented the minimum sentence defendant could receive. Kitchen v. State, 44 Fla. L. Weekly D711b (1st DCA 3/13/19)

https://www.1dca.org/content/download/430841/4678799/file/173309_1286_03132019_10585124_i.pdf

CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to advise defendant that rejected plea offer represented the minimum sentence defendant could receive. Defense counsel is required to advise the defendant of all pertinent matters bearing on the decision to accept or reject a plea offer, including the possible range of sentencing. Kitchen v. State, 44 Fla. L. Weekly D711b (1st DCA 3/13/19)

https://www.1dca.org/content/download/430841/4678799/file/173309_1286_03132019_10585124_i.pdf

MINOR-LIFE SENTENCE-HOMICIDE: In imposing a life sentence on a minor who commits a homicide, the court is not required to make specific findings for the factors listed in 921.1401. Robinson v. State, 44 Fla. L. Weekly D711a (1st DCA 3/13/19)

https://www.1dca.org/content/download/430847/4678871/file/180933_1284_03132019_11054853_i.pdf

CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel failed to advise him that he was facing a mandatory life sentence is a prison releasee re-offender. Ogden v. State, 44 Fla. L. Weekly D708a (1st DCA 3/13/19)

https://www.1dca.org/content/download/430843/4678823/file/174040_1286_03132019_11004868_i.pdf

EVIDENCE-HOMICIDE: Timeline, motive, and opportunity is sufficient circumstantial evidence to sustain a conviction for murder. Ford v. State, 44 Fla. L. Weekly D706a (1st DCA 3/13/19)

https://www.1dca.org/content/download/430842/4678811/file/173359_1284_03132019_10594658_i.pdf

RESENTENCING: Defendant is entitled to resentencing were calculated the total points on his scoresheet was incorrect and it cannot be said the same sentence would have been imposed regardless upon resentencing, the defendant may be sentenced as a Violent Felony Offender of Special Concern even though the Court had not previously considered whether the Defendant was a danger to the community. A defendant's designation as a VFOSC does not depend on a finding that the defendant poses a danger to the community. Moore v. State, 44 Fla. L. Weekly D701e (4th DCA 3/13/19)

https://www.4dca.org/content/download/430863/4679043/file/173462_1708_03132019_01540229_i.pdf

APPEALS: Appellate court lacks jurisdiction to review order denying motion for postconviction relief filed more than 30 days after rendition of the order. Duggans v. State, 44 Fla. L. Weekly D701d (3rd DCA 3/13/19)

http://3dca.flcourts.org/Opinions/3D18-2512.pdf

BATTERY-PRIORS: A battery may be enhanced to a felony based on a prior even if there was a withhold of adjudication on the prior battery. Garcia v. State, 44 Fla. L. Weekly D701b (3rd DCA 3/13/19)

http://3dca.flcourts.org/Opinions/3D18-0913.pdf

SPEEDY TRIAL-RECAPTURE: State is not required to the recapture period when the State terminates prosecution files new charges based on the same conduct before speedy trial expires, failed to notify the Defendant of the new charges until after the speedy has expired. State v. Griffin, 44 Fla. L. Weekly D701a (3rd DCA 3/13/19)

http://3dca.flcourts.org/Opinions/3D14-2460.pdf

RESENTENCING-SUCCESSOR JUDGE: Upon resentencing-successor Judge must approach sentencing as a clean slate, rather than presuming the propriety of the original judge's sentence. Edward v. State, 44 Fla. L. Weekly D698a (3rd DCA 3/13/19)

3dca.flcourts.org/Opinions/3D17-1486.pdf

DOUBLE JEOPARDY: Convictions for use of computer service to solicit the parent of the child and traveling to meet the child violate double jeopardy where is not clear that the solicitation forming the basis of each charge was a separate and distinct act of solicitation. Baker v. State, 44 Fla. L. Weekly D697a (3rd DCA 3/13/19)

http://3dca.flcourts.org/Opinions/3D17-1881.pdf

APPEALS-JURISDICTION-MISTRIAL: Before granting mistrial based on a hung jury, at Court' request the jury indicated by a poll that they were unanimous to acquit on on murder but were hung on the the lesser charge of attempted manslaughter by act. Defendant's motion to dismiss the greater charges based on the jury being the equivalent of an acquittal was granted. Appellate court has no jurisdiction because State failed to appeal within 15 days. State v. Mackey, 44 Fla. L. Weekly D690a (3rd DCA 3/13/19)

http://3dca.flcourts.org/Opinions/3D18-0757.pdf

IMPEACHMENT-OPENING THE DOOR: By eliciting testimony that the witness did not believe the Defendant wanted to kill her husband, Defendant open the door to evidence that she had told that witness that she had tried to poison her husband by antifreeze before. Dippolito v. State, 44 Fla. L. Weekly D683a (4th DCA 3/13/19)

https://www.4dca.org/content/download/430808/4678393/file/172486_1257_03132019_08451680_i.pdf

ENTRAPMENT: Failure to supervise a CI does not amount to entrapment unless the lack of supervision results in unscrupulous conduct by the informant. Dippolito v. State, 44 Fla. L. Weekly D683a (4th DCA 3/13/19)

https://www.4dca.org/content/download/430808/4678393/file/172486_1257_03132019_08451680_i.pdf

ARGUMENT-SILENCE OF DEFENDANT: State's argument that the Defendant was presenting his story for the 1st time at trial is not an improper comment on silence because the Defense had elicited from the detectives that the defendant had been interviewed after his arrest. There is no improper comment on silence when the Defendant had not been silent. Gooden v. State, 44 Fla. L. Weekly D680a (4th DCA 3/13/19)

https://www.4dca.org/content/download/430814/4678465/file/180323_1709_03132019_08561551_i.pdf

ARGUMENT-SHIFTING BURDEN OF PROOF: State's argument that the Defense had failed to cross-examine police officers on certain issues improperly shifts the burden of proof. Gooden v. State, 44 Fla. L. Weekly D680a (4th DCA 3/13/19)

https://www.4dca.org/content/download/430814/4678465/file/180323_1709_03132019_08561551_i.pdf

ARGUMENT-FACTS NOT IN EVIDENCE: State may not argue in closing, in response to Defense argument about lack of DNA, that the county faces budget restrictions and prioritizes the cases in which they do DNA testing where no such testimony was elicited. Gooden v. State, 44 Fla. L. Weekly D680a (4th DCA 3/13/19)

https://www.4dca.org/content/download/430814/4678465/file/180323_1709_03132019_08561551_i.pdf

STAND YOUR GROUND: Amendment to Stand Your Ground law, changing burden of proof, applies retroactively. Conflict certified. Tillman v. State, 44 Fla. L. Weekly D676a (2nd DCA 3/13/19)

https://www.2dca.org/content/download/430821/4678547/file/165566_39_03132019_08224515_i.pdf

MARCHMAN ACT: "A written accusation by an itinerant houseguest friend followed by a judge's review of that piece of paper is all it would have taken under the Marchman Act to deprive a young woman of five or more days of her liberty. It is difficult for me to reconcile the constitutionality of such a drastic deprivation of freedom with the patina of procedure that precedes it. . . .According to the State, the Marchman Act did not violate T.L.'s due process rights as it 'is not a state law which seeks to unfairly imprison individuals, rather, it authorizes the courts to provide medical treatment to individuals in need of substance abuse treatment.' In other words, so long as her confinement would have been for her own good, we ought not to worry too much about due process for those in T.L.'s circumstances." T.L. v. F.M., 44 Fla. L. Weekly D669a (2nd DCA 3/13/19)

https://www.2dca.org/content/download/430828/4678637/file/181089_118_03132019_08330119_i.pdf

QUOTATION: "[I]t falls to the court system to address, as best it can, the profound psychological and sociological problems of addiction. In meeting this task, though, there is a point where courts cannot bend, or else they will cease to be courts. Seizing and confining people without due process takes us to that point." T.L. v. F.M., 44 Fla. L. Weekly D669a (2nd DCA 3/13/19)

https://www.2dca.org/content/download/430828/4678637/file/181089_118_03132019_08330119_i.pdf

APPEALS-MAILBOX RULE: Notice of appeal by incarcerated appellant is deemed filed when he hands the same to prison officials for mailing. When there is no jail mailing stamp, the presumptive date is that shown in the certificate of service. Greene v. State, 44 Fla. L. Weekly D667b (5th DCA 3/8/19)

https://edca.5dca.org/DCADocs/2018/2484/182484_1260_03082019_09031482_i.pdf

CONDITIONS OF PROBATION: Unless refuted by the record, trial court's imposition of special conditions of probation requiring evaluation and treatment for drug use and mental health are improper if not related to the underlying charge. Sparber v. State, 44 Fla. L. Weekly D667a (5th DCA 3/8/19)

https://edca.5dca.org/DCADocs/2018/3640/183640_1259_03082019_09163163_i.pdf

EVIDENCE-CERTIORARI REVIEW: Order excluding evidence of prior acts of child molestation is not subject to certiorari review where State fails to show a violation of clearly established principles of law resulting in a miscarriage of justice by the trial court's ruling. State v. Knowles, 44 Fla. L. Weekly D664a (5th DCA 3/8/19)

https://edca.5dca.org/DCADocs/2018/3024/183024_1254_03082019_09131528_i.pdf

POST CONVICTION RELIEF-PLEA OFFER: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failing to convey plea offer. Batista-Irizarry v. State, 44 Fla. L. Weekly D661a (5th DCA 3/8/19)

https://edca.5dca.org/DCADocs/2018/2911/182911_1259_03082019_09195039_i.pdf

POST CONVICTION RELIEF: A claim that misinformation supplied by counsel induced a defendant to reject a favorable plea offer can constitute an actionable ineffective assistance of counsel claim, but the movant must allege some specific deficiency on the part of counsel that demonstrates that his counsel's advice or assessment was unreasonable. Batista-Irizarry v. State, 44 Fla. L. Weekly D661a (5th DCA 3/8/19)

https://edca.5dca.org/DCADocs/2018/2911/182911_1259_03082019_09195039_i.pdf

SENTENCING-MINOR-HOMICIDE: A jury is not required to make factual findings of the statutory factors justifying a life sentence for a homicide convicted by a murder. Judge may make the determination. Simmons v. State, 44 Fla. L. Weekly D659b (1st DCA 3/7/19)

https://www.1dca.org/content/download/430611/4676157/file/174095_1284_03072019_10042409_i.pdf

POST CONVICTION RELIEF: Defendant who declined offer of one year in jail, pled open, and was sentenced to 6 years in prison is not entitled to postconviction relief on claim that counsel told her that she would not get jail if she pled open, where Court found based on the evidence that her claim is false. "The record paints a picture of the defendant who rolled the dice and lost." McCray v. State, 44 Fla. L. Weekly D658a (1st DCA 3/7/19)

https://www.1dca.org/content/download/430613/4676181/file/181210_1284_03072019_10060030_i.pdf

SENTENCING-MINOR-HOMICIDE: Thirty-year sentence for a homicide committed by juvenile is not inconsistent with Graham or Miller. The Defendant is not entitled to resentencing under the new juvenile sentencing scheme. "Unless and until the Florida Supreme Court announces that every juvenile defendant is entitled to a sentence under the new laws -- regardless of when the defendant was sentenced or whether the original sentence violated Graham or Miller -- we will follow the rule that resentencing only applies when there was a Graham or Miller violation." McRae v. State, 44 Fla. L. Weekly D657a (1st DCA 3/7/19)

https://www.1dca.org/content/download/430613/4676181/file/181210_1284_03072019_10060030_i.pdf

PROBATION REVOCATION: Court may impose consecutive sentences following probation revocation even though probationary terms were concurrent. Jenkins v. State, 44 Fla. L. Weekly D656a (1st DCA 3/7/19)

https://www.1dca.org/content/download/430616/4676217/file/181843_1284_03072019_10100208_i.pdf

SEARCH AND SEIZURE-RESIDENCE-CURTILAGE: Police may not enter the defendant's fenced backyard. Fact that officers responding to a call about a suspicious chemical smell does not justify entering a backyard without a warrant. Bryant v. State, 44 Fla. L. Weekly D651e (1st DCA 3/7/19)

https://www.1dca.org/content/download/430612/4676169/file/174674_1284_03072019_10051044_i.pdf

SEARCH AND SEIZURE-CONSENT: Defendant validly consented to the search of his shed notwithstanding the illegal entry of the police into his backyard. Where there is illegal conduct on the part of the police, such as here, a consent to search can be found voluntary and valid if there is clear and convincing evidence the consent was not a product of the illegal police action. Bryant v. State, 44 Fla. L. Weekly D651e (1st DCA 3/7/19)

https://www.1dca.org/content/download/430612/4676169/file/174674_1284_03072019_10051044_i.pdf

CRUEL OR UNUSUAL PUNISHMENT-MINOR: Concurrent sentences of 35 years for second degree murder and robbery committed by a juvenile is not cruel or unusual punishment and does not violate Graham or Miller. Echevarria v. State, 44 Fla. L. Weekly D651a (3rd DCA 3/6/19)

http://3dca.flcourts.org/Opinions/3D18-0570.pdf

JUDGE-PARTIALITY: Not every act or comment that might be interpreted as demonstrating less than neutrality on the part of the judge will be deemed fundamental error. Jones v. State, 44 Fla. L. Weekly D650b (3rd DCA 3/6/19)

http://3dca.flcourts.org/Opinions/3D17-1941.pdf

MOTION BY REPRESENTED DEFENDANT: Defendant was represented by counsel may not file a pro se petition for habeas corpus while he is represented by counsel. Defendant has no constitutional right to hybrid representation. Loor v. State, 44 Fla. L. Weekly D649b (3rd DCA 3/6/19)

http://3dca.flcourts.org/Opinions/3D18-2636.pdf

SEARCH AND SEIZURE-EXPECTATION OF PRIVACY: Police may not enter the curtilage of a home to search a parked vehicle located therein. State v. Pettis, 44 Fla. L. Weekly D646a (2nd DCA 3/6/19)

https://www.2dca.org/content/download/430541/4675312/file/172973_39_03062019_08424491_i.pdf

SEARCH AND SEIZURE-STANDING: Defendant whose car is within the curtilage of a home has standing to challenge the search of the car only if he has sufficient ties to the home itself. State v. Pettis, 44 Fla. L. Weekly D646a (2nd DCA 3/6/19)

https://www.2dca.org/content/download/430541/4675312/file/172973_39_03062019_08424491_i.pdf

DOUBLE JEOPARDY-TRAVELING-ATTEMPTED LEWD BATTERY: Convictions for unlawful travel and for attempted lewd battery do not violate prohibition against double jeopardy under Blockburger. Byun v. State, 44 Fla. L. Weekly D644a (2nd DCA 3/6/19)

https://www.2dca.org/content/download/430545/4675360/file/173838_65_03062019_08451075_i.pdf

ATTEMPT: Criminal attempt requires three elements: the intent to commit a crime, an overt act towards its commission, and failure to successfully complete the crime. Byun v. State, 44 Fla. L. Weekly D644a (2nd DCA 3/6/19)

https://www.2dca.org/content/download/430545/4675360/file/173838_65_03062019_08451075_i.pdf

SEARCH AND SEIZURE-VEHICLE-STOP: Officers lacked probable cause to conduct traffic stop based on Defendant's failure to maintain a single lane where there is no evidence that his conduct created a reasonable safety concern. Peterson v. State, 44 Fla. L. Weekly D641a (2nd DCA 3/6/19)

https://www.2dca.org/content/download/430537/4675264/file/171324_39_03062019_08410941_i.pdf

SEARCH AND SEIZURE-REASONABLE SUSPICION: Officer lacks reasonable suspicion that a crime is about to occur based on the video jail clerk's overhearing fishy conversation between the defendant and an inmate suggesting a possible plan to introduce contraband. Peterson v. State, 44 Fla. L. Weekly D641a (2nd DCA 3/6/19)

https://www.2dca.org/content/download/430537/4675264/file/171324_39_03062019_08410941_i.pdf

SEARCH AND SEIZURE: Cop: "We're always looking to get into vehicles, as I work in narcotics and drug and addiction. My main goal is to enter every vehicle I pull over to see what's inside that vehicle. So I was not singling her out by any means." Peterson v. State, 44 Fla. L. Weekly D641a (2nd DCA 3/6/19)

https://www.2dca.org/content/download/430537/4675264/file/171324_39_03062019_08410941_i.pdf

HABEAS CORPUS: When a defendant mistakenly files a habeas corpus petition attempting to challenge a conviction or sentence, the filing should not be treated as a new, separate civil proceeding. Johnson v. State, 44 Fla. L. Weekly D629a (4th DCA 3/6/19)

https://www.4dca.org/content/download/430525/4675130/file/182744_1257_03062019_09153447_i.pdf

NEWLY DISCOVERED EVIDENCE: Generic Brady notice regarding miscalculations of DNA statistical probabilities is not newly discovered evidence warranting a new trial. Rosado v. State, 44 Fla. L. Weekly D627a (4th DCA 3/6/19)

https://www.4dca.org/content/download/430527/4675154/file/182968_1708_03062019_09233498_i.pdf

SPEEDY TRIAL: Where Defendant filed her notice of expiration of speedy trial with the clerk, the Court cannot deny the motion to discharge based on the fact that judge himself did not get a copy of it. An Administrative Order cannot add requirements to the rules for speedy trial discharge beyond those in the rules of criminal procedure. Hawkins v. State, 44 Fla. L. Weekly D626a (4th DCA 3/6/19)

https://www.4dca.org/content/download/430529/4675178/file/190007_1704_03062019_09292752_i.pdf

AGGRAVATED BATTERY-RECLASSIFICATION: When the State charges a defendant with aggravated battery causing great bodily harm based on section 784.045(1)(a)1., Florida Statutes (2017), and not section 784.045(1)(a)2., a deadly weapon is not an essential element of the crime, and the crime can be reclassified upward to first degree felony based on the use of a firearm. Jackson v. State, 44 Fla. L. Weekly D625b (4th DCA 3/6/19)

https://www.4dca.org/content/download/430513/4674986/file/172220_1257_03062019_08545642_i.pdf

SENTENCING-GUIDELINES SCORESHEET: On violation, the misdemeanor for which the Defendant had already completed his sentence should not of been scored as an additional offense. Moreno v. State, 44 Fla. L. Weekly D624a (4th DCA 3/6/19)

https://www.4dca.org/content/download/430520/4675070/file/181100_1257_03062019_09082316_i.pdf

SELF-DEFENSE-JURY INSTRUCTION-FORCIBLE FELONY INSTRUCTION: It is fundamental error to give the forcible felony exception instruction when the Defendant's son, not the Defendant, who arguably committed a forcible felony when the Defendant intervene in the fight. The forcible felony instruction does not apply in a case of defense of others. Although there are no Florida cases analyzing the forcible-felony exception in the context of defense of another, cases analyzing the exception in the context of self-defense make clear that "the plain language of section 776.041 indicates that it is applicable only under circumstances where the person claiming self-defense is engaged in another, independent 'forcible felony' at the time." Grant v. State, 44 Fla. L. Weekly D623a (4th DCA 3/6/19)

https://www.4dca.org/content/download/430512/4674974/file/172167_1709_03062019_08532280_i.pdf

ALTER EGO RULE: "The only way in which the instruction as given in this case could have been correct is if the common law alter ego rule applied. This is because under the alter ego rule, 'a defendant using deadly force to defend a person who was not entitled to use deadly force would be held criminally liable.'. . .Florida, however, like nearly all American jurisdictions, abandoned the common law alter ego rule long ago." Grant v. State, 44 Fla. L. Weekly D623a (4th DCA 3/6/19)

https://www.4dca.org/content/download/430512/4674974/file/172167_1709_03062019_08532280_i.pdf

CONTEMPT: Indirect contempt conviction is improper where the Court failed to inquire as to whether the defendant had any cause to show why he should not be held in contempt nor to allow him to present mitigation or an explanation. Petty v. State, 44 Fla. L. Weekly D621a (1st DCA 3/4/19)

https://www.1dca.org/content/download/430466/4674448/file/183686_1286_03042019_09052909_i.pdf

SEARCH AND SEIZURE-INCIDENT TO ARREST: Search incident to arrest is unlawful where the arrest was for the violation of a noncriminal municipal ordinance which did not authorize arrests. "[T]his court has previously admonished law enforcement officers for continuing to conduct full custodial arrests for bicycle infractions after such action was found unlawful. . .sixteen years prior." Nelson v. State, 44 Fla. L. Weekly D615a (2nd DCA 3/1/19)

https://www.2dca.org/content/download/430382/4673520/file/173650_114_03012019_08214981_i.pdf

WAIVER OF COUNSEL: Court must renew offer of counsel prior to sentencing hearing. Sammons v. State, 44 Fla. L. Weekly D613b (2nd DCA 3/1/19)

https://www.2dca.org/content/download/430373/4673400/file/171953_65_03012019_08170125_i.pdf

WAIVER OF COUNSEL: Court erred in failing to renew offer of counsel prior to sentencing. Murray v. State, 44 Fla. L. Weekly D613a (2nd DCA 3/1/19)

https://www.2dca.org/content/download/430385/4673556/file/174225_114_03012019_08271624_i.pdf

COMPETENCY: Court may not accept Defendant's plea of guilty after it had previously ordered competency evaluation and without having issued a written competency order. Johnson v. State, 44 Fla. L. Weekly D612b (2nd DCA 3/1/19)

https://www.2dca.org/content/download/430383/4673532/file/173707_65_03012019_08250470_i.pdf

SENTENCING-MINOR: Court aired by failing to modify juvenile defendant' ascends to allow for review hearing without also holding a resentencing hearing. Defendant who is a minor at the time of the offense is entitled to a full resentencing hearing. Gilchrest v. State, 44 Fla. L. Weekly D610c (5th DCA 3/1/19)

https://edca.5dca.org/DCADocs/2018/3545/183545_1259_03012019_09274697_i.pdf

COMPETENCY: Court is required to make a written order that the Defendant is competent; an oral finding is insufficient. Q.A. v. State, 44 Fla. L. Weekly D610b (5th DCA 3/1/19)

https://edca.5dca.org/DCADocs/2018/1510/181510_1260_03012019_08574986_i.pdf

JUVENILE-SEXUAL OFFENDER REGISTRATION: The juvenile under the age of 14 of the time of the offense is not subject to sexual offender registration and reporting requirements. Q.A. v. State, 44 Fla. L. Weekly D610b (5th DCA 3/1/19)

https://edca.5dca.org/DCADocs/2018/1510/181510_1260_03012019_08574986_i.pdf

FEBRUARY 2019

DOWNWARD DEPARTURE: Court may not enter a downward departure sentence without providing written reason supported by the evidence. Upon agreement, court may impose a downward departure if evidence so supports. State v. Dougherty, 44 Fla. L. Weekly D607a (1st DCA 2/28/19)

https://www.1dca.org/content/download/430302/4672649/file/181235_1287_02282019_09532200_i.pdf

CONSOLIDATION: Court properly consolidated for trial 2 separate solicitation to commit murder cases where the object in each was to murder witnesses in the Defendant's upcoming lewd and lascivious trial. Barry v. State, 44 Fla. L. Weekly D603a (1st DCA 2/28/19)

https://www.1dca.org/content/download/430297/4672589/file/172276_1284_02282019_09484588_i.pdf

EVIDENCE-COLLATERAL CRIMES: Collateral crime evidence of the Defendant's sexual molestation of his girlfriend's daughter is admissible to show the Defendant's motive in soliciting two fellow jail inmates two murder the witnesses. Barry v. State, 44 Fla. L. Weekly D603a (1st DCA 2/28/19)

https://www.1dca.org/content/download/430297/4672589/file/172276_1284_02282019_09484588_i.pdf

CHILD NEGLECT-CULPABLE NEGLIGENCE: Defendant is probably convicted of child neglect for failing to seek medical treatment for child with bruising, skull fractures, and brain bleeding. Finding of culpable negligence in child neglect cases not require proof that the Defendant knew the specific nature of the child's injury but rather that he knew or should have known the extent of the injuries. Lanier v. State, 44 Fla. L. Weekly D601a (1st DCA 2/28/19)

https://www.1dca.org/content/download/430299/4672613/file/174357_1284_02282019_09502135_i.pdf

JUVENILES-ATTENTION: "Do Not Run" (no running away) orders are lawful for children in nonsecure detention. A.A. v. State, 44 Fla. L. Weekly D592b (3rd DCA 2/27/19)

http://3dca.flcourts.org/Opinions/3D17-2075.pdf

CONTEMPT: Court erred by filing the Child in contempt for violating "Do Not Run" order where one witness testified by phone and another testified to inadmissible hearsay. A.A. v. State, 44 Fla. L. Weekly D592b (3rd DCA 2/27/19)

http://3dca.flcourts.org/Opinions/3D17-2075.pdf

EVIDENCE-DUI: Defendant's Trump rant ("Thank you, Trump, thank you, Trump"; "Hey, I love you, Trump"; . . . "F*** you, man, you is a b****, dog. You all are some b******, dog. You all (indiscernible) -- hey, I love you Trump. Hey I love you, Trump. Yeah, . . ."Hey, you know how much of my Mexican people are making money because of this s*** right here?") is relevant in DUI case to show impairment. Martinez v. State, 44 Fla. L. Weekly D574a (4th DCA 2/27/19)

https://www.4dca.org/content/download/430161/4670915/file/180638_1257_02272019_09093178_i.pdf

SENTENCING-MINOR-NON-HOMICIDE-CONSECUTIVE: Defendant is not entitled to resentencing on 2 consecutive sentences with a combined term of 65 years for unrelated homicide and nonhomicide offenses. Consecutive prison terms for unrelated homicide and non-homicide offenses are not an "aggregate" sentence implicating the Eighth Amendment. Conflict certified. Warthen v. State, 44 Fla. L. Weekly (4th DCA 2/27/19)

https://www.4dca.org/content/download/430158/4670879/file/170961_1257_02272019_09032136_i.pdf

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Defendant who was on probation for child abuse is a habitual felony offender a special concern if he possesses child porn. However, Court is required to make written findings as to whether the defendant was a danger to the community. One's designation as a VFOSC is a matter of law and does not depend on a finding that he posed a danger to the community. Thompson v. State, 44 Fla. L. Weekly D569e (4th DCA 2/27/19)

https://www.4dca.org/content/download/430160/4670903/file/173871_1709_02272019_09080470_i.pdf

POST CONVICTION RELIEF: Information known to the Defendant and his counsel prior to trial is not newly discovered evidence. Martinez v. State, 44 Fla. L. Weekly D563a (1st DCA 2/27/19)

https://www.1dca.org/content/download/430173/4671063/file/181040_1284_02272019_10205950_i.pdf

POST CONVICTION RELIEF: Counsel is not ineffective for failing to: expert on identification when the robbery is caught on video. Grandison v. State, 44 Fla. L. Weekly D562a (1st DCA 2/27/19)

https://www.1dca.org/content/download/430167/4670987/file/174266_1284_02272019_10180758_i.pdf

POST CONVICTION RELIEF: Counsel is not ineffective for failing to seek the phonorecords to establish communication between 2 witnesses. Elliott v. State, 44 Fla. L. Weekly D560a (1st DCA 2/27/19)

https://www.1dca.org/content/download/430174/4671075/file/181877_1284_02272019_10222543_i.pdf

VOP: Affidavit of Violation of Probation is thus fundamentally flawed by alleging that the defendant committed the offense of sexual assault, or sexual assault is not a crime by the specific terms, but the Defendant was on notice of the criminal acts in question notwithstanding the nomenclature. Smith v. State, 44 Fla. L. Weekly D559a (1st DCA 2/27/19)

https://www.1dca.org/content/download/430166/4670975/file/172771_1286_02272019_10151889_i.pdf

SENTENCING-ARGUMENT: Defendant must be given an opportunity to be heard prior to imposition of sentence. Smith v. State, 44 Fla. L. Weekly D559a (1st DCA 2/27/19)

https://www.1dca.org/content/download/430166/4670975/file/172771_1286_02272019_10151889_i.pdf

STATEMENTS OF DEFENDANT: Security guards are required to cooperate with investigations conducted by the Department of Agriculture, which is the licensing board supervising security guards. Security guards are not required to cooperate in general, so that the Defendant's confession to police to murdering a tenant is voluntary. Duxbury v. State, 44 Fla. L. Weekly D555a (5th DCA 2/22/19)

https://edca.5dca.org/DCADocs/2017/3917/173917_1257_02222019_08455969_i.pdf

ATTEMPTED SEXUAL BATTERY: Numerous abrasions on the body of the victim of a homicide is sufficient circumstantial evidence to uphold a conviction for attempted sexual battery. Duxbury v. State, 44 Fla. L. Weekly D555a (5th DCA 2/22/19)

https://edca.5dca.org/DCADocs/2017/3917/173917_1257_02222019_08455969_i.pdf

DEPORTATION: A postconviction claim based upon attorney's misadvice of deportation consequences must be brought within two years of conviction becoming final. Defendant needs to allege and prove that he could not have ascertained the immigration consequences of his plea during the two-year period after his judgment became final with the exercise of due diligence. Wallace v. State, 44 Fla. L. Weekly D552a (5th DCA 2/22/19)

https://edca.5dca.org/DCADocs/2017/4069/174069_1257_02222019_08484000_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for not hiring a private investigator to demonstrate other peoples' ability to access the safe containing the contraband at issue. Rivera v. State, 44 Fla. L. Weekly D549a (5th DCA 2/22/19)

https://edca.5dca.org/DCADocs/2018/2814/182814_1259_02222019_09253969_i.pdf

SELF-DEFENSE-JURY INSTRUCTION: Instruction that "the use or threatened use of deadly force is not justified if you find that Defendant was attempting to commit, committing, or escaping after the commission of an aggravated battery or an aggravated assault" may only be given when a forcible felony independent of the one for which the Defendant claims self-defense is committed. However, when the Defendant's counsel drafted the instruction and did not object to it any error is invited. Phillips v. State, 44 Fla. L. Weekly D547a (2nd DCA 2/22/19)

https://www.2dca.org/content/download/429566/4663946/file/172544_65_02222019_08382466_i.pdf

RESISTING WITHOUT VIOLENCE-LEGAL DUTY: Officer who responded to a complaint about panhandling in trespass did not have a lawful basis for stopping juvenile who first walked and then ran away. The mere act of flight alone does not constitute a criminal offense and generally is insufficient to form the basis of a resisting without violence charge. K.H. v. State, 44 Fla. L. Weekly D546c (2nd DCA 2/22/19)

https://www.2dca.org/content/download/429571/4664006/file/174376_39_02222019_08393975_i.pdf

RESISTING WITHOUT VIOLENCE-FALSE IDENTITY: A person's failure to give a correct name to a law enforcement officer constitutes the crime of obstruction whether the person was lawfully detained or not. Good discussion in dissent. Bass v. State, 44 Fla. L. Weekly D546a (1st DCA 2/22/19)

https://www.1dca.org/content/download/429550/4663748/file/142449_1289_02222019_08330070_i.pdf

QUOTATION: "Confusion and conflict. . .[A] person's failure to give a correct name to a law enforcement officer constitutes the crime of obstruction. . . whether the person was lawfully detained or not. . . .Bass could have been a suspect in lawful custody, a potential witness, or a mere passerby or onlooker at the time of his fib. Doesn't matter: he gave an incorrect name. . .But wait. M.M. says that. . . 'failing to give one's correct identity is not a crime unless the person is legally detained.' . . It's a head scratcher. . .Our supreme court ought to clear up this newly-created muddle." Bass v. State, 44 Fla. L. Weekly D546a (1st DCA 2/22/19)

https://www.1dca.org/content/download/429550/4663748/file/142449_1289_02222019_08330070_i.pdf

OTHER BAD ACTS: Prior incidents of domestic violence by the defendant is the victim or properly admitted to show motive, intent and premeditation and aggravated battery case. Gonzalez v. State, 44 Fla. L. Weekly D537a (3rd DCA 2/20/19)

http://3dca.flcourts.org/Opinions/3D18-0084.pdf

DOUBLE JEOPARDY: Dual convictions for attempted aggravated battery and battery does not violate double jeopardy where both require proof of different element and are based on separate acts. Gonzalez v. State, 44 Fla. L. Weekly D537a (3rd DCA 2/20/19)

http://3dca.flcourts.org/Opinions/3D18-0084.pdf

COMPETENCY: Defendant is entitled to a new trial where Court allowed the case to proceed to trial upon a stipulation of counsel that the defendant was competent without the Court without making an independent determination of competency after the Defendant had previously been held to be incompetent. Auerbach v. State, 44 Fla. L. Weekly D530b (3rd DCA 2/20/19)

http://3dca.flcourts.org/Opinions/3D16-2873.pdf

INEFFECTIVE ASSISTANCE OF COUNSEL-APPEALS: Claim of ineffective assistance of counsel cannot be raised on direct appeal where the ineffectiveness is not apparent on the face of the record. Gomez v. State, 44 Fla. L. Weekly D529b (3rd DCA 2/20/19)

http://3dca.flcourts.org/Opinions/3D17-1147.pdf

POST CONVICTION RELIEF: Defendant raises a cognizable claim of ineffectiveness is of counsel or failure to present Defendant's mental health history in mitigation in VOP hearing. Simeon v. State, 44 Fla. L. Weekly D528a (3rd DCA 2/20/19)

http://3dca.flcourts.org/Opinions/3D17-1875.pdf

MINOR-JUDICIAL REVIEW: Defendant who is a minor at the time of the offense but an adult at the time of the violation of probation is not entitled to a judicial review. Dorsey v. State, 44 Fla. L. Weekly D527a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429394/4661904/file/173617_1257_02202019_09071036_i.pdf

COMPETENCY: Court commits fundamental error by failing to conduct a competency hearing before accepting the Defendant's plea after having appointed experts to determine his competency previously. Simmons v. State, 44 Fla. L. Weekly D526a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429403/4662012/file/182101_1709_02202019_09333011_i.pdf

DWLS: There is no fundamental error in finding the defendant guilty of driving with a suspended license when in fact his license was revoked. "Appellant cannot rely on verbal legerdemain to set aside his plea. The sloppy use of the term 'suspended' instead of 'revoked' at the plea conference does not rise to the level of fundamental error. Funderburk v. State, 44 Fla. L. Weekly D524a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429402/4662000/file/181667_1257_02202019_09294832_i.pdf

PRINCIPAL: Defendant who helped negotiate street-level sale of cocaine and perhaps retrieve the cocaine before the sale is guilty as a principal. State v. Thomas, 44 Fla. L. Weekly D522a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429401/4661988/file/181646_1709_02202019_09284468_i.pdf

RESTITUTION: Receipts and testimony about the original purchase price and guesstimates about replacement value are insufficient to establish fair market value of stolen items. Question Certified: Does Amendment 6 main that the court is no longer bound by fair market value in determining restitution and allow it to use his discretion in determining restitution, including considerations of hearsay? Good discussion. Toole v. State, 44 Fla. L. Weekly D512a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429390/4661856/file/172115_1709_02202019_10091344_i.pdf

SENTENCING-CONSIDERATIONS-MITIGATION: Court must entertain submissions and evidence by the parties that are relevant to sentencing. Failure to allow the Defendant to be heard on the question of whether she should get a withhold of adjudication requires reversal Serna v. State, 44 Fla. L. Weekly D507a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429399/4661964/file/181619_1709_02202019_09244508_i.pdf

DOUBLE JEOPARDY: Convictions for both Grand Theft Auto and carjacking violate double jeopardy. James v. State, 44 Fla. L. Weekly D504a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429404/4662024/file/182152_1708_02202019_09345549_i.pdf

SENTENCING-YOUTHFUL OFFENDER: Court improperly denied motion for youthful offender sanctions in part because Defendant maintained his innocence. James v. State, 44 Fla. L. Weekly D504a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429404/4662024/file/182152_1708_02202019_09345549_i.pdf

QUOTE: "So if there's any bullshit in this courtroom [it] is the bullshit of putting a gun in a woman's face." James v. State, 44 Fla. L. Weekly D504a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429404/4662024/file/182152_1708_02202019_09345549_i.pdf

SENTENCING: Any error in the Court considering a letter from the victim is not fundamental nor preserved by objection. "The trial court must be permitted to consider, and afford the appropriate weight to, any constitutionally and statutorily permissible information that reasonably might bear on the proper sentence for a particular defendant." Taylor v. State, 44 Fla. L. Weekly D503a (4th DCA 2/20/19)

https://www.4dca.org/content/download/429405/4662036/file/182439_1257_02202019_09360610_i.pdf

JOA-ATTEMPTED FIRST DEGREE MURDER: Defendant who tried to shoot the club operator but that hit the bouncer cannot be convicted of attempted first-degree murder on the bouncer. The doctrine of transferred intent does not apply to the crime of attempted murder of the unintended victim. Charge is reduced to attempted second degree murder. King v. State, 44 Fla. L. Weekly D502f (4th DCA 2/20/19)

https://www.4dca.org/content/download/429391/4661868/file/172770_1708_02202019_09014719_i.pdf

SEARCH AND SEIZURE-WARRANT-RESIDENCE: Police exceeded the scope of the search warrant by entering a recreational vehicle which was not identified in the warrant in which clearly was a separate residence. Officers are not authorized to search a separate dwelling unit that exists on the premises but is not separately identified in the warrant. Rodgers v. State, 44 Fla. L. Weekly D496a (2nd DCA 2/20/19)

https://www.2dca.org/content/download/429415/4662168/file/164366_39_02202019_08265936_i.pdf

DOUBLE JEOPARDY: Convictions for scheming to defraud a financial institution in grand theft based on the same underlying conduct violate double jeopardy. Lewis v. State, 44 Fla. L. Weekly D493b (2nd DCA 2/20/19)

https://www.2dca.org/content/download/429419/4662222/file/171247_114_02202019_08303013_i.pdf

DOUBLE JEOPARDY: One who steals saw blade one day and sells them the next cannot be convicted of both dealing and stealing. A single day is not a sufficient break time to justify conviction for both offenses. Bradshaw v. State, 44 Fla. L. Weekly D488b (1st DCA 2/18/19)

https://www.1dca.org/content/download/429346/4661356/file/174992_1287_02182019_10572983_i.pdf

DOUBLE JEOPARDY: Double jeopardy is violated when the court the sentence on one count that adds one year of probation for the separate count for which the Defendant had already finished probation. Armstrong v. State, 44 Fla. L. Weekly D487b (1st DCA 2/18/19)

https://www.1dca.org/content/download/429343/4661326/file/174528_1287_02182019_10472121_i.pdf

POST CONVICTION RELIEF: A sudden event that would have suspended the exercise of judgment in an ordinary reasonable person, who would have lost normal self-control and would have been driven by a blind and unreasoning fury without a reasonable amount of time for a reasonable person to cool off may provide a basis for a heat-of-passion defense, but counsel here was not ineffective for not advising the Defendant of this defense because the facts did not support it. Rodriguez-Lopez v. State, 44 Fla. L. Weekly D487a (1st DCA 2/15/19) https://www.1dca.org/content/download/429297/4660812/file/173988_1284_02152019_10274132_i.pdf

SEXUAL PREDATOR-PROBATION: Plea agreement for incarceration followed by probation is not violated when the Defendant is involuntarily released after the prison sentence since the involuntary commitment is a civil commitment not a punishment. Brown v. State, 44 Fla. L. Weekly D486b (1st DCA 2/15/19)

https://www.1dca.org/content/download/429300/4660848/file/180518_1284_02152019_10353667_i.pdf

DOUBLE JEOPARDY-JIMMY RYCE: Jimmy Ryce does not violate double jeopardy. Because the civil commitment is not a sentence or incarceration, probation starts immediately upon the expiration of the incarcerative sentence and upon the Defendant's transfer to the civil commitment facility. Brown v. State, 44 Fla. L. Weekly D486b (1st DCA 2/15/19)

https://www.1dca.org/content/download/429300/4660848/file/180518_1284_02152019_10353667_i.pdf

DOUBLE JEOPARDY-RESISTING ARREST: Convictions for resisting arrest with violence and resisting arrest without violence violate double jeopardy where there was continuing resistance to an ongoing attempt to effect defendant's arrest. Byram v. State, 44 Fla. L. Weekly D486a (1st DCA 2/15/19)

https://www.1dca.org/content/download/429294/4660776/file/170026_1286_02152019_10251343_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that councils in effect for failing to object to the addition of probation to the term of incarceration which was specified in the plea agreement. When a plea agreement places a cap on the term of incarceration, the Court must apprise the defendant that the period of incarceration specified in the plea agreement will be followed by a period of probation, if such is the court's intent. Mickles v. State, 44 Fla. L. Weekly D485a (1st DCA 2/15/19)

https://www.1dca.org/content/download/429299/4660836/file/180423_1286_02152019_10305034_i.pdf

RESENTENCING-MINOR: Upon resentencing under Graham, the Court may increase a 40 year sentence to life in prison. Jeopardy only attaches to legal sentences not illegal sentences. Dortch v. State, 44 Fla. L. Weekly D483a (1st DCA 2/15/19)

https://www.1dca.org/content/download/429296/4660800/file/173363_1284_02152019_10264340_i.pdf

RESENTENCING-MINOR: Court is not required to make specific findings as to the relevant factors under Fla. Stat. §921.1401(2). Dortch v. State, 44 Fla. L. Weekly D483a (1st DCA 2/15/19)

https://www.1dca.org/content/download/429296/4660800/file/173363_1284_02152019_10264340_i.pdf

POST CONVICTION RELIEF-DNA TESTING: Court may not rule on Defendant's facially sufficient motion for DNA testing without ordering a response from the State. Robles v. State, 44 Fla. L. Weekly D472c (5th DCA 2/14/19)

https://edca.5dca.org/DCADocs/2018/2742/182742_1260_02152019_09150217_i.pdf

POST CONVICTION RELIEF-DEPORTATION: Defendant may not move to withdraw a plea based on counsel's failure to have advised him of deportation consequences when more than 2 years have elapsed since the time of the plea. The fact that the Defendant is from Cuba, and he could have none of the deportation consequences with the exercise of due diligence. State v. Lorenzo, 44 Fla. L. Weekly D464a (3rd DCA 2/13/19)

http://3dca.flcourts.org/Opinions/3D18-0911.pdf

SENTENCING-DEPARTURE-UPWARD: Jury, not court, must make the factual finding that the Defendant engaged an escalating course of criminal conduct in order to justify an upward departure from the sentencing guidelines. The statutory maximum for Apprendi purposes is the maximum sentence the judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the Defendant. However, here the error is harmless because the jury would have found that he engaged in an escalating course of criminal conduct had it had an opportunity to do so. Simmons v. State, 44 Fla. L. Weekly D459a (3rd DCA 2/13/19)

http://3dca.flcourts.org/Opinions/3D17-0832.pdf

LEWD OR LASCIVIOUS MOLESTATION-JOA: Child victim's uncorroborated out-of-court-statements, inconsistent with her trial testimony, is insufficient to sustain a conviction for lewd or lascivious molestation; Defendant's statement that he accidentally touched Victim while picking her up his insufficient corroboration of Victim's out-of-court statements. Mendez v. State, 44 Fla. L. Weekly D456a (3rd DCA 2/13/19)

http://3dca.flcourts.org/Opinions/3D16-0169.pdf

EVIDENCE-LEWD AND LASCIVIOUS MOLESTATION: Evidence of an uncharged incident where the Defendant offered the victim candy in an effort to "groom" her for molestation is not inextricably intertwined and not admissible without proper Williams rule notice. Mendez v. State, 44 Fla. L. Weekly D456a (3rd DCA 2/13/19)

http://3dca.flcourts.org/Opinions/3D16-0169.pdf

EVIDENCE-KNOWN CRIME AREA: Evidence that the place where the juvenile was arrested was known for narcotics sales is inadmissible. Evidence that a criminal defendant was arrested in a high crime area is generally inadmissible. J.R. v. State, 44 Fla. L. Weekly D451d (3rd DCA 2/13/19)

http://3dca.flcourts.org/Opinions/3D18-0494.pdf

WITHHOLD OF ADJUDICATION: Court may not withhold adjudication for a third-degree felony where he had two previous withholds. State v. Ester, 44 Fla. L. Weekly D450b (4th DCA 2/13/19)

https://www.4dca.org/content/download/429165/4659389/file/182648_1709_02132019_09434368_i.pdf

DRIVER'S LICENSE-IMPLIED CONSENT-BLOOD: An officer is not required to advise a suspect of the consequences of refusal to a blood test when the Defendant is in the hospital. The implied consent law does not apply when a suspect voluntarily consents to a blood draw while in a hospital. DHSMV v. Davis, 44 Fla. L. Weekly D450a (4th DCA 2/13/19)

https://www.4dca.org/content/download/429166/4659401/file/182772_1704_02132019_09540955_i.pdf

LESSER INCLUDED-ROBBERY WITH A DEADLY WEAPON: Robbery with a deadly weapon is not a lesser included offense of robbery with a firearm. MacDonald v. State, 44 Fla. L. Weekly D444a (4th DCA 2/13/19)

https://www.4dca.org/content/download/429154/4659257/file/173323_1709_02132019_09234350_i.pdf

MANSLAUGHTER-JUDGMENT OF ACQUITTAL-PRINCIPAL: Defendant, who punched the victim who swung at him while fighting with the pimp/drug dealer who ultimately stabbed the victim, cannot be convicted of manslaughter as a principal. The only evidence was that the Defendant accompanied a drug dealer to tell the victim not to rough up the prostitute and was attacked by the victim. Randall v. State, 44 Fla. L. Weekly D442b (4th DCA 2/13/19)

https://www.4dca.org/content/download/429152/4659233/file/172012_1709_02132019_09152706_i.pdf

COSTS: Court may not impose attorney's fees and costs in excess of statutory minimum without considering evidence establishing a reasonable hour late for the amount of time spent by the public defender and without informing Defendant of his right to contest the amount of the lien. Pierre v. State, 44 Fla. L. Weekly D442a (4th DCA 2/13/19)

https://www.4dca.org/content/download/429161/4659341/file/181198_1709_02132019_09365811_i.pdf

JURISDICTION: Court lacks jurisdiction to amend the judgment and sentence while an appeal is pending. Caruso v. State, 44 Fla. L. Weekly D441a (2nd DCA 2/13/19)

https://www.2dca.org/content/download/429171/4659473/file/165185_65_02132019_08273924_i.pdf

JUROR-CHALLENGE-PEREMPTORY: The preservation of a challenge to a potential juror requires more than one objection. When a trial court denies or grants a peremptory challenge, the objecting party must renew and reserve the objection before the jury is sworn. "Hernandez did not renew the objection before the jury was sworn in. . . Had the issue been preserved, however, we would have reversed and remanded for a new trial." Hernandez v. State, 44 Fla. L. Weekly D440a (2nd DCA 2/13/19)

https://www.2dca.org/content/download/429175/4659521/file/172656_65_02132019_08282551_i.pdf

NEW TRIAL: Court may grant a new trial upon weighing the evidence in considering witness credibility. State v. Bohler, 44 Fla. L. Weekly D424b (1st DCA 2/11/19)

https://www.1dca.org/content/download/429066/4658311/file/175343_1284_02112019_11551755_i.pdf

TRESPASS ON SCHOOL GROUNDS: Juvenile is not delinquent for trespassing on school grounds where there was no evidence showing that juvenile was on school grounds for an illegitimate purpose. E.W. v. State, 44 Fla. L. Weekly D424a (1st DCA 2/11/19)

https://www.1dca.org/content/download/429067/4658323/file/181476_1287_02112019_11563322_i.pdf

MANDATORY MINIMUM-FIREARM: Consecutive mandatory minimum sentences for attempted second degree murder and possession of a firearm by a convicted felon were illegal. Jackson v. State, 44 Fla. L. Weekly D420a (1st DCA 2/11/19)

https://www.1dca.org/content/download/429060/4658239/file/135687_1287_02112019_11410202_i.pdf

ATTORNEYS-CONFLICT OF INTEREST: Defendant's right to conflict-free counsel is not violated where Defendant did not object and made no showing that representation of the victim through separate counsel from the same office in an unrelated dependency case. Wade v. State, 44 Fla. L. Weekly D419c (1st DCA 2/11/19)

https://www.1dca.org/content/download/429061/4658251/file/171233_1284_02112019_11492916_i.pdf

EVIDENCE-WILLIAMS RULE: Testimony of two other women whom Defendant had sexually assaulted in a similar fashion is relevant to refute Defendant's argument that the instant case was consensual. Wade v. State, 44 Fla. L. Weekly D419c (1st DCA 2/11/19)

https://www.1dca.org/content/download/429061/4658251/file/171233_1284_02112019_11492916_i.pdf

MANDATORY MINIMUM-FIREARM: 25 year mandatory minimum for aggravated battery is illegal when the information did not allege that the Defendant discharged a firearm or caused great bodily harm with the firearm. An information's failure to precisely charge elements cannot be cured by the jury's factual findings. Espinoza v. State, 44 Fla. L. Weekly D412a (5th DCA 2/8/19)

https://edca.5dca.org/DCADocs/2018/1190/181190_1260_02082019_08420823_i.pdf

PLEA-WITHDRAWAL: Ore tenus motion to withdraw his guilty plea prior to sentencing is legally sufficient; the motion does not have to be in writing. Gould v. State, 44 Fla. L. Weekly D408a (5th DCA 2/8/19)

https://edca.5dca.org/DCADocs/2017/2595/172595_1260_02082019_08232502_i.pdf

DUI-BREATH TEST: Evidence of refusal to submit to a drug test is inadmissible if the Defendant is not informed about the Implied Consent law. The same principle applies to refusal to perform Field Sobriety exercises. "The unfairness, of course, is that a defendant who is told he may refuse and is told of no consequences which would attach to his refusal may quite plausibly refuse so as to disengage himself from further interaction with the police or simply decide not to volunteer to do anything he is not compelled to do." Howitt v. State, 44 Fla. L. Weekly D406b (5th DCA 2/8/19)

https://edca.5dca.org/DCADocs/2017/2695/172695_1259_02082019_08253304_i.pdf

MANDATORY MINIMUM-FIREARM: In order to seek an enhanced mandatory sentence under the 10-20-Life statute, the state must allege the grounds for enhancement in the charging document. An information's failure to cite to the specific statutory subsection, while simultaneously failing to precisely charge the elements, cannot be cured by a jury's factual findings. Denegal v. State, 44 Fla. L. Weekly D406a (5th DCA 2/8/19)

https://edca.5dca.org/DCADocs/2018/1749/181749_1257_02082019_08473945_i.pdf

VOP: Evidence of a positive drug test does not support finding that defendant violated condition of probation prohibiting defendant from associating with a person known to engage in criminal activity. Sanders v. State, 44 Fla. L. Weekly D405b (5th DCA 2/8/19)

https://edca.5dca.org/DCADocs/2018/1133/181133_1259_02082019_08401933_i.pdf

CAPITAL OFFENSE-NUMBER OF JURORS: 12 person jury is required for capital first-degree murder's regardkess whether the state seeks the death penalty. State v. Wong, 44 Fla. L. Weekly D404c (3rd DCA 2/7/19)

http://3dca.flcourts.org/Opinions/3D19-0169.pdf

POST CONVICTION RELIEF: Counsel was ineffective for failing to call witnesses who directly contradicted claims that the defendant had salaciously kissed the sex abuse victim and for agreeing that one of the witnesses should be child for violating the rule of sequestration. Feliciano v. State, 44 Fla. L. Weekly D398a (4th DCA 2/6/19)

https://www.4dca.org/content/download/428834/4655681/file/173506_1709_02062019_09293473_i.pdf

FALSE VERIFICATION OF OWNERSHIP: Defendant cannot be found to have falsification of ownership and selling items to a pawnbroker there is no testimony that defendant claimed to be the owner of the property, did not testify, and the pawn receipts did not have an ownership verification provision. Rincon v. State, 44 Fla. L. Weekly D397b (4th DCA 2/6/19)

https://www.4dca.org/content/download/428835/4655693/file/173830_1708_02062019_09314694_i.pdf

JURISDICTION-SENTENCE CORRECTION: If a trial court does not rule on a motion to correct a sentencing error filed while an appeal is pending within sixty days, the Court lacks jurisdiction to correct the sentence. Sirmons v. State, 44 Fla. L. Weekly D397a (4th DCA 2/6/19)

https://www.4dca.org/content/download/428837/4655717/file/180668_1708_02062019_09360220_i.pdf

DISQUALIFICATION: Unfavorable legal rulings do not provide grounds for disqualification. Hill v. State, 44 Fla. L. Weekly D379h (1st DCA 2/5/19)

https://www.1dca.org/content/download/428765/4654955/file/174754_1281_02052019_08552302_i.pdf

EVIDENCE-CHARACTER: Court may properly exclude evidence of Victim's intoxication and reputation for being argumentative in homicide case where Defendant did not assert self-defense. Lantz v. State, 44 Fla. L. Weekly D373a (1st DCA 2/5/19)

https://www.1dca.org/content/download/428779/4655123/file/182029_1284_02052019_09061646_i.pdf

GOOFINESS: When a doctor asked Lantz why he was in the emergency room, Lantz responded that "he was dumping his mother's body after he murdered her and was chased by the police and slid down a bank and into some barnacles.". . .[T]hen, while his injuries were being photographed by a crime scene technician, Lantz asked the technician if she was single and if she liked murderers." Lantz v. State, 44 Fla. L. Weekly D373a (1st DCA 2/5/19)

https://www.1dca.org/content/download/428779/4655123/file/182029_1284_02052019_09061646_i.pdf

SENTENCE CORRECTION: Previously awarded credit for time served may not be rescinded upon resentencing even if awarded in error. Barbesco v. State, 44 Fla. L. Weekly (1st DCA 2/5/19)

https://www.1dca.org/content/download/428772/4655039/file/180765_1286_02052019_08571771_i.pdf

EVIDENCE-COLLATERAL CRIMES: State's notice of its intent to introduce collateral crime evidence was not deficient for failing to list propensity as a basis for admitting the evidence where plain language of statute does not require the notice to list the specific purpose for which the evidence is to be admitted. Pitts v. State, 44 Fla. L. Weekly D369b (1st DCA 2/5/19)

https://www.1dca.org/content/download/428757/4654859/file/165547_1284_02052019_08481613_i.pdf

EVIDENCE-CHARACTER: Testimony that defendant had never been sexually aggressive toward his high school girlfriend was effectively specific-act character testimony and properly excluded where defendant's character trait for sexual non-violence was not an element of the charged offense. Proof of a person's character may not be made by specific instances of conduct unless character is an essential element of a charge, claim, or defense. Pitts v. State, 44 Fla. L. Weekly D369b (1st DCA 2/5/19)

https://www.1dca.org/content/download/428757/4654859/file/165547_1284_02052019_08481613_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for not objecting to Defendant wearing shackles in front of jurors. Leonard v. State, 44 Fla. L. Weekly D368b (1st DCA 2/5/19)

https://www.1dca.org/content/download/428762/4654919/file/173861_1286_02052019_08535616_i.pdf

JIMMY RYCE: A sexually violent predator who is in prison on a new offense is not entitled to an annual evaluation. Walker v. State, 44 Fla. L. Weekly D368a (1st DCA 2/5/19)

https://www.1dca.org/content/download/428770/4655015/file/175172_1284_02052019_08573979_i.pdf

APPEALS: Court improperly appeal for failing to file initial brief for Had filed a timely motion for extension of time and gave a reasonable explanation as to why he cannot file brief within the deadline set. Forehand v. State, 44 Fla. L. Weekly D367a (1st DCA 2/5/19)

https://www.1dca.org/content/download/428775/4655075/file/181970_1282_02052019_09024622_i.pdf

PLEA-VOLUNTARINESS: Plea to sex offense is not rendered every by the fact that the Defendant was not out of mandatory electronic monitoring is condition of probation. Casseus v. State, 44 Fla. L. Weekly D362a (1st DCA 2/4/19)

https://www.1dca.org/content/download/428741/4654674/file/171641_1284_02042019_03064828_i.pdf

PROBATION-REVOCATION: Court may not revoke Defendant's probation failing to pay court costs without making a determination of ability to pay. Banks v. State, 44 Fla. L. Weekly D357a (1st DCA 2/4/19)

https://www.1dca.org/content/download/428746/4654732/file/174687_1287_02042019_03173837_i.pdf

QUOTATION: "The dissent agrees that "it is true that 'will' or 'shall' is generally mandatory and 'may' is generally permissive," but believes that we should look to the context and interpret "may" as "shall" with regard to the community service option. We agree that context matters, but the dissent makes too large a leap -- interpreting a word that is "generally permissive" to mean the opposite." Banks v. State, 44 Fla. L. Weekly D357a (1st DCA 2/4/19)

https://www.1dca.org/content/download/428746/4654732/file/174687_1287_02042019_03173837_i.pdf

QUOTATION II: "But there is no logical difference between saying on one hand, that someone "shall" do A but nonetheless "may" do B instead of A -- and on the other hand saying someone "shall" do either A or B. Either way, the person does not have to do A; he may do B instead. It is not that A is mandatory and B is optional." Banks v. State, 44 Fla. L. Weekly D357a (1st DCA 2/4/19)

https://www.1dca.org/content/download/428746/4654732/file/174687_1287_02042019_03173837_i.pdf

THINGS NOT TO SAY TO JUDGE: "Banks testified that she worked forty hours a week at a sandwich shop and was too tired to do community service on top of that. She admitted she had done zero hours but insisted she just couldn't." Banks v. State, 44 Fla. L. Weekly D357a (1st DCA 2/4/19)

https://www.1dca.org/content/download/428746/4654732/file/174687_1287_02042019_03173837_i.pdf

ROBBERY/BURGLARY: Defendant who gets into an unoccupied stranger's car, refuses to leave, orders Victim to drive to different places, and demands money commits robbery. "The element of a threat was supplied not only by Appellant's mere uninvited physical presence in the victim's car, but also by his physical characteristics making it likely that he could overpower the victim, by his sternly-worded demands, and by his prominent display of a backpack that could hold a weapon." Young v. State, 44 Fla. L. Weekly D355a (1st DCA 24/19)

https://www.1dca.org/content/download/428747/4654744/file/180704_1284_02042019_03240867_i.pdf

POST CONVICTION RELIEF: The Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to file a motion to suppress the search. The search of a probationer's person or residence by a probation supervisor without a warrant is reasonable, but granting such general authority to law enforcement officials is not permissible. Hanna v. State, 44 Fla. L. Weekly D347b (2nd DCA 2/1/19)

https://www.2dca.org/content/download/428663/4653966/file/174044_114_02012019_08482663_i.pdf

CORPUS DELICTI-VOP: A probationer's admissions against interest may be sufficient to revoke his probation even where there is no independent evidence of the corpus delicti of the crime. Hanna v. State, 44 Fla. L. Weekly D347b (2nd DCA 2/1/19)

https://www.2dca.org/content/download/428663/4653966/file/174044_114_02012019_08482663_i.pdf

QUOTATION: "The searches turned up bubkes." Hanna v. State, 44 Fla. L. Weekly D347b (2nd DCA 2/1/19)

https://www.2dca.org/content/download/428663/4653966/file/174044_114_02012019_08482663_i.pdf

COURT RECORDS-ACCESS: An indigent defendant is not entitled to free copies of documents and transcripts in the court file for purposes of filing a motion for postconviction relief. Defendant may seek the transcripts from his former public defender. Patterson v. State, 44 Fla. L. Weekly D345a (2nd DCA 2/1/19)

https://www.2dca.org/content/download/428676/4654122/file/181824_65_02012019_09005412_i.pdf

RE-SENTENCING: Court must conduct a resentencing hearing after vacating Defendant's designation as a habitual felony offender upon the Defendant's motion for postconviction relief. Resentencing is not a purely ministerial act when the total points on the scoresheet are changed and the court has discretion as to the term of years and the new sentence. Andrews v. State, 44 Fla. L. Weekly D342a (5th DCA 2/1/19)

https://edca.5dca.org/DCADocs/2018/2759/182759_1260_02012019_09264461_i.pdf

BELATED APPEAL: Defendant is entitled to a belated appeal where appellate counsel failed to follow through by having the record on appeal filed after having filed the initial notice of appeal, resulting in the appeal being dismissed. Mann v. State, 44 Fla. L. Weekly D341b (5th DCA 2/1/19)

https://edca.5dca.org/DCADocs/2018/3444/183444_1255_02012019_09545004_i.pdf

SEARCH AND SEIZURE-INEVITABLE DISCOVERY: "Permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule. The rule cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one, but can only apply if they actually were in pursuit of one." O'Hare v. State, 44 Fla. L. Weekly D335d (5th DCA 2/1/19)

https://edca.5dca.org/DCADocs/2018/0157/180157_1260_02012019_08421709_i.pdf

SEARCH AND SEIZURE-INDEPENDENT SOURCE DOCTRINE: The independent source doctrine means that the exclusionary does not apply when the government can show it has learned of the challenged evidence from an independent source and the illegal search or seizure was not an actual cause of the discovery of the subject evidence. The independent source rule applies when evidence is discovered as a result of unlawful police activity but is also discovered independently through a lawful investigation that occurs either before or after the illegal activity, so long as the independent investigation itself is untainted by the initial activity. O'Hare v. State, 44 Fla. L. Weekly D335d (5th DCA 2/1/19)

https://edca.5dca.org/DCADocs/2018/0157/180157_1260_02012019_08421709_i.pdf

JANUARY 2019

CITIZEN ARREST: Court did not err in finding that Defendant committed aggravated assault with a firearm after lawfully detaining two people whom he believed had committed a crime. "While we agree with Roberts that he initially had probable cause to effect a citizen's arrest, the State presented evidence at trial contradicting Roberts's affirmative defense by showing that he did not act in a reasonable manner when he attempted to detain the two individuals." Roberts v. State, 44 Fla. L. Weekly D335c (1st DCA 1/31/19)

https://www.1dca.org/content/download/428586/4653091/file/180332_1284_01312019_09270755_i.pdf

AFFIRMATIVE DEFENSE: "[A]n affirmative defense does not concern itself with the elements of the offense at all; it concedes them. In effect, an affirmative defense says, 'Yes, I did it, but I had a good reason.'" Roberts v. State, 44 Fla. L. Weekly D335c (1st DCA 1/31/19)

https://www.1dca.org/content/download/428586/4653091/file/180332_1284_01312019_09270755_i.pdf

PLEA WITHDRAWAL: Rule 3.172(c)(10) requires a trial court to inform a defendant about a mandatory license suspension to ensure that the plea is voluntarily entered. Defendant is entitled to withdraw plea when not so informed. Berrocales v. State, 44 Fla. L. Weekly D332a (4th DCA 1/30/19)

https://www.4dca.org/content/download/428470/4651881/file/180476_1709_01302019_09244038_i.pdf

PROBATION-MODIFICATION: Court lacks jurisdiction to modify defendant's probation to allow him to live with his family where motion to modify occurred more than sixty days after probationary sentence was imposed. State v. Walk, 44 Fla. L. Weekly D331a (4th 1/30/19)

https://www.4dca.org/content/download/428471/4651893/file/180921_1704_01302019_10082690_i.pdf

DRUG PARAPHERNALIA: Factors to be considered in determining whether an object is drug paraphernalia include the proximity of the object to controlled substances and "expert testimony concerning its use. Thomas v. State, 44 Fla. L. Weekly D328b (3rd DCA 1/30/19)

http://3dca.flcourts.org/Opinions/3D18-0611.pdf

UNLICENSED MONEY TRANSMITTER: By engaging in business of exchanging the virtual currency bitcoin for cash, defendant was acting as both a money transmitter and a payment instrument seller, and was required to register with the state as a money services business. Extensive discussion of Bitcoins/virtual currency. State v. Espinoza, 44 Fla. L. Weekly D317a (3rd DCA 1/30/19)

http://3dca.flcourts.org/Opinions/3D16-1860.pdf

CONTEMPORANEOUS OBJECTION: Contemporaneous Objection Rule requires that the must be sufficiently specific to apprise the judge of the error and to preserve the issue for intelligent review on appeal. Failure to object to testimony about the contents of the photograph until much later violates the contemporaneous objection rule. S.H. v. State, 44 Fla. L. Weekly D315a (3rd DCA 1/30/19)

http://3dca.flcourts.org/Opinions/3D18-0365.pdf

CORPUS DELICTI-HISTORY: "Early versions of the [Corpus Delicti] rule developed in 17th-century England when a series of suspects confessed to murders, only to have their alleged victims turn up -- alive and well -- long after the suspects were imprisoned (or, worse, executed) for the fictitious crimes." S.H. v. State, 44 Fla. L. Weekly D315a (3rd DCA 1/30/19)

http://3dca.flcourts.org/Opinions/3D18-0365.pdf

CORPUS DELICTI-HISTORY: "In 1660, John Perry was subjected to continuous and repeated questioning as to the disappearance of his master, William Harrison. After initially denying all wrongdoing, Perry finally confessed that he, his mother, and his brother had together robbed and murdered Harrison. Although a body was never found, and Perry's mother and brother denied all wrongdoing, all three suspects were convicted and executed on the strength of Perry's confession. Several years later, however, Harrison returned home, claiming to have been kidnapped and sold into slavery in Turkey. In short, Perry had admitted to a falsehood resulting in the execution of himself, his mother, and his brother." S.H. v. State, 44 Fla. L. Weekly D315a (3rd DCA 1/30/19)

http://3dca.flcourts.org/Opinions/3D18-0365.pdf

HEARSAY-BENCH TRIAL: Anonymous tip is inadmissible hearsay, but when an appellate court is reviewing a bench trial, it should presume that the trial court judge rested its judgment on admissible evidence and disregarded inadmissible evidence, unless the record demonstrates that the presumption is rebutted through a specific finding of admissibility or another statement that demonstrates the trial court relied on the inadmissible evidence. When improper evidence is admitted over objection in this context, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Here, error is harmless. S.H. v. State, 44 Fla. L. Weekly D315a (3rd DCA 1/30/19)

http://3dca.flcourts.org/Opinions/3D18-0365.pdf

MANDAMUS: Inmate may use a petition for writ of mandamus to compel compensation or replacement of his missing legal documents which were impounded while he was in custody. Waters v. Inch, 44 Fla. L. Weekly D307a (1st DCA 1/25/19)

https://www.1dca.org/content/download/428265/4649712/file/180639_1287_01252019_01594386_i.pdf

POST CONVICTION RELIEF-SUCCESSIVE MOTION: Trial court has jurisdiction to rule on a subsequent motion which does not raise the same issues previously ruled upon. Rhow v. State, 44 Fla. L. Weekly D306a (1st DCA 1/25/19)

https://www.1dca.org/content/download/428263/4649692/file/180448_1287_01252019_01564866_i.pdf

APPEALS-PRESERVATION BY STATE: State may not raise on appeal the trial court's granting of the Defendant's motion to dismiss, alleging that the court improperly considered the element of knowledge and the issue of direct versus circumstantial evidence, where it failed to argue these (meritorious) issues before the trial court. State v. Searles, 44 Fla. L. Weekly D303a (1st DCA 1/25/19)

https://www.1dca.org/content/download/428266/4649724/file/181749_1284_01252019_02020390_i.pdf

POST CONVICTION RELIEF: Court must hold an evidentiary hearing on claim that counsel was ineffective for not obtaining a competency evaluation. Andujar-Sanchez v. State, 44 Fla. L. Weekly D302a (1st DCA 1/25/19)

https://www.1dca.org/content/download/428267/4649736/file/173393_1286_01252019_02171627_i.pdf

IMPEACHMENT: Defendant is entitled to confront and cross-examine a 5-year-old alleged victim of sexual molestation with inconsistencies in her prior statements about details of the events. A criminal defendant should be afforded wide latitude to cross-examine the State's witnesses, especially when cross-examining a key prosecution witness. "Cross examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief." Recco v. State, 44 Fla. L. Weekly D299a (5th DCA 1/25/19)

https://edca.5dca.org/DCADocs/2017/2648/172648_1260_01252019_08160729_i.pdf

VOP-SUFFICIENCY OF EVIDENCE: Court erred in finding that the Defendant violated probation where the only evidence presented to prove that the defendant knowingly left the county was that he did not deny it when confronted with GPS tracking record. [Willard Pope, judge; Susan Bailey, attorney]. Archie v. State, 44 Fla. L. Weekly D295e (5th DCA 1/25/19)

https://edca.5dca.org/DCADocs/2018/0665/180665_1259_01252019_08452862_i.pdf

PLEA-WITHDRAWAL: Motions to withdraw plea should be liberally construed because the law favors a trial upon the merits. Under the unique circumstances of this case the Court erred by denying the Defendant's motion to withdraw plea. Walker v. State, 44 Fla. L. Weekly D295b (5th DCA 1/25/19)

https://edca.5dca.org/DCADocs/2017/3456/173456_1260_01252019_08255398_i.pdf

SANITY-JURY INSTRUCTION: When Defendant had previously been adjudicated insane and had not been judicially restored to legal sanity he is entitled to a jury instruction rebuttable he presuming him insane at the time of the offense. "We recognize that this caselaw is more than fifty years old . . Nevertheless, we find no indication that any of these cases have been modified, receded from, or overruled, and as such, they appear to still be good law." King v. State, 44 Fla. L. Weekly D288b (2nd DCA 1/25/19)

https://www.2dca.org/content/download/428236/4649386/file/163004_39_01252019_08393804_i.pdf

CONTEMPT: Court may impose consecutive sentences totaling 100 days for indirect criminal contempt on juvenile who failed to remain at home for 10 successive days. By statute, a juvenile may be sentenced to 5 days incarceration for a 1st offense and 15 days for each subsequent offense. J.A. v. Housel, 44 Fla. L. Weekly D286d (3rd DCA 1/25/19)

http://3dca.flcourts.org/Opinions/3D19-0090.pdf

SENTENCE-CONCURRENT: Concurrent sentences do not necessarily begin at the same time, and unless they are ordered to be coterminous, they will expire on different dates. Eady v. State, 44 Fla. L. Weekly D285c (3rd DCA 1/23/19)

http://3dca.flcourts.org/Opinions/3D18-2013.pdf

RECLASSIFICATION: Use or possession of a firearm is not an essential element of second degree murder, but rather, it may serve to allow for a reclassification of the second degree murder from a first degree felony to a life felony or as an enhancement of the sentence imposed. Smith v. State, 44 Fla. L. Weekly D285b (3rd DCA 1/23/19)

http://3dca.flcourts.org/Opinions/3D18-1327.pdf

JURY INSTRUCTIONS-REASONABLE DOUBT: Court's failure to instruct jury on reasonable doubt is fundamental error. Smith v. State, 44 Fla. L. Weekly D278a (3rd DCA 1/23/19)

http://3dca.flcourts.org/Opinions/3D18-0991.pdf

ALLOCUTION: Court must allow defendant's right of allocution before sentencing. ("I've already made my decision on the sentencing. There's really nothing I wish to hear from this point forward.") Goudreau v. State, 44 Fla. L. Weekly D276a (2nd DCA 1/23/19)

https://www.2dca.org/content/download/426871/4633123/file/174024_114_01232019_08293497_i.pdf

COMPETENCY: Court must conduct a competency hearing after experts have been appointed to evaluate the Defendant. Sutton v. State, 44 Fla. L. Weekly D275 (2nd DCA 1/23/19)

https://www.2dca.org/content/download/426872/4633135/file/174073_173_01232019_08315829_i.pdf

LIFE SENTENCE-MINOR-HOMICIDE: Sentence of life in prison with possibility of parole for a homicide committed by a minor is not unconstitutional. Atwell was wrongly decided. State v. Lawrence, 44 Fla. L. Weekly D274c (2nd DCA 1/23/19)

https://www.2dca.org/content/download/426877/4633195/file/180261_39_01232019_08374443_i.pdf

LIFE SENTENCE-MINOR-HOMICIDE: Minor who was convicted of a homicide may lawfully be sentenced to life in prison with possibility of parole and with a judicial review after 25 years. Nelms v. State, 44 Fla. L. Weekly D272a (4th DCA 1/23/19)

DOUBLE JEOPARDY: Double Jeopardy bar separate convictions for burglary of a dwelling and burglary with a battery where there was only one entry into the victim's home. Shade v. State, 44 Fla. L. Weekly D271b (4th DCA 1/23/19)

https://www.4dca.org/content/download/426857/4632947/file/180133_1708_01232019_09160945_i.pdf

POST CONVICTION RELIEF-NEW EVIDENCE-RECANTATION: Court is required to hold an evidentiary hearing on claim that the witness at trial recanted. Ramos v. State, 44 Fla. L. Weekly D271a (4th DCA 1/23/19)

COSTS OF INCARCERATION: When court did not rule on State's motion to correct sentence challenging the civil lien within 16 days, it lacked jurisdiction to grant the motion. Cammalleri v. State, 44 Fla. L. Weekly D270a (4th DCA 1/23/19)

GRAND THEFT-VALUE: Victim's estimate of what he paid for stolen property does not establish present value without testimony about the property's age, condition, quality, or percentage of depreciation since purchase. "The state argues that, in the aggregate, the value of the stolen items surpasses the $300 threshold. However, speculation cannot be so aggregated." Henry v. State, 44 Fla. L. Weekly D267a (4th DCA 1/23/19)

https://www.4dca.org/content/download/426851/4632875/file/172501_1708_01232019_08583496_i.pdf

HEARSAY: Photo of contact information screen from co-defendant's cell phone showing Defendant's name, phone number and email address is not hearsay when admitted for the limited purpose of linking the defendant and the co-defendant. Henry v. State, 44 Fla. L. Weekly D267a (4th DCA 1/23/19)

https://www.4dca.org/content/download/426851/4632875/file/172501_1708_01232019_08583496_i.pdf

COSTS: Court may not impose impose public defender fee without giving defendant notice of his right to hearing and without making factual findings to support fees. Henry v. State, 44 Fla. L. Weekly D267a (4th DCA 1/23/19)

https://www.4dca.org/content/download/426851/4632875/file/172501_1708_01232019_08583496_i.pdf

CORPUS DELICTI-DUI: Court erred in granting the Defendant's motion to dismiss based on corpus delicti when the Court based its decision on the failure of the officer to identify the Defendant in court during the suppression hearing. State v. Fonseca, 44 Fla. L. Weekly D263b (4th DCA 1/23/19)

https://www.4dca.org/content/download/426856/4632935/file/173726_1709_01232019_09110887_i.pdf

COMPETENCY: Appellate counsel was ineffective for failing to address the Court's failure to hold a hearing or rule on competency after an evaluation had been ordered. Johnson v. State, 44 Fla. L. Weekly D261b (1st DCA 1/22/19)

https://www.1dca.org/content/download/426807/4632349/file/174805_1280_01222019_10024033_i.pdf

MOTION FOR NEW TRIAL: The standard for a new trial is whether a jury's verdict is contrary to the weight of the evidence. Court erred by denying the Defendant's motion based on its assertion that "It was a good clean trial. I didn't see any error in the trial." Fales v. State, 44 Fla. L. Weekly D261a (1st DCA 1/22/19)

https://www.1dca.org/content/download/426808/4632361/file/174857_1287_01222019_10053135_i.pdf

EVIDENCE-HOMICIDE-INTERVENING CAUSE: Defendant is not entitled to cross-examine the medical examiner about other possible intervening cause of death where an intervening cause is not a legally recognized defense. When Defendant inflicts a life-threatening injury, a supervening lack of medical attention or medical malpractice is not an intervening cause of death. Gilliams v. State, 44 Fla. L. Weekly D256b (1st DCA 1/22/19)

https://www.1dca.org/content/download/426802/4632289/file/171594_1284_01222019_09524170_i.pdf

FELONY MURDER: Defendant who tried to shoot the victim with a malfunctioning gun during an attempted robbery can be convicted of attempted felony murder; the active shooting the victim is not an essential element of the underlying attempted robbery. McCray v. State, 44 Fla. L. Weekly D254b (1st DCA 1/22/19)

https://www.1dca.org/content/download/426801/4632277/file/164651_1286_01222019_09494355_i.pdf

COSTS: Court costs for domestic violence, the rape crisis fund the crime stopper trust fund cannot be assessed for attempted felony murder. McCray v. State, 44 Fla. L. Weekly D254b (1st DCA 1/22/19)

https://www.1dca.org/content/download/426801/4632277/file/164651_1286_01222019_09494355_i.pdf

SEARCH AND SEIZURE: Deputy has probable cause to stop Defendant who drove on the wrong side of the road for about 100 feet before correcting course. State v. Boston, 44 Fla. L. Weekly D252a (2nd DCA 1/18/19)

https://www.2dca.org/content/download/426557/4629895/file/174814_39_01182019_08263469_i.pdf

COSTS: Court may not impose investigative costs and costs of prosecution when there is no competent evidence to support the amounts awarded. Speed v. State, 44 Fla. L. Weekly D250b (5th DCA 1/18/19)

https://edca.5dca.org/DCADocs/2018/0621/180621_1259_01182019_08533342_i.pdf

VOP: The affidavit of violation and the court's finding of violation must mirror each other McKinnon v. State, 44 Fla. L. Weekly D250a (5th DCA 1/18/19)

https://edca.5dca.org/DCADocs/2018/0011/180011_1259_01182019_08510892_i.pdf

SEARCH AND SEIZURE-CELL PHONE TRACKING: Law enforcement may not track a cell phone without a warrant. Litz v. State, 44 Fla. L. Weekly D249e (5th DCA 1/18/19)

https://edca.5dca.org/DCADocs/2018/2913/182913_1259_01182019_09084686_i.pdf

COSTS: The statutory authority for all costs imposed must be cited in the written order. Garrett v. State, 44 Fla. L. Weekly D249c (5th DCA 1/18/19)

https://edca.5dca.org/DCADocs/2018/0816/180816_1260_01182019_08565712_i.pdf

APPEALS-UNAVAILABLE TRANSCRIPT: Defendant is not entitled to an appeal in the absence of a transcribed record where he did not seek to obtain a statement of the evidence and proceedings pursuant to Rule of Appellate Procedure 9.200(b)(4). Terry v. State, 44 Fla. L. Weekly D246a (4th DCA 1/16/19)

https://www.4dca.org/content/download/426385/4628035/file/163978_1257_01162019_08531821_i.pdf

SENTENCING-VINDICTIVENESS: There is no presumption of vindictiveness where the resentencing judge, who increased the sentence from 20 years to 30 years after an appeal, was not the judge who imposed the original sentence. Davis v. State, 44 Fla. L. Weekly D243a (4th DCA 1/16/19)

APPEALS-UNAVAILABLE TRANSCRIPT: Defendant is entitled to a new trial where no transcript of the jury trial exists due to malfunctioning memory devices and the Court is unable to reconstruct the record. Robinson v. State, 44 Fla. L. Weekly D242a (4th DCA 1/16/19)

https://www.4dca.org/content/download/426389/4628083/file/181657_1709_01162019_09004477_i.pdf

CONTEMPT-DIRECT CRIMINAL: Failure to attend the deposition cannot be punished as direct criminal contempt; it is in direct criminal contempt because it did not take place in the presence of the Court, and accordingly cannot be summarily punished. Vidana v. State, 44 Fla. L. Weekly D241a (2nd DCA 1/16/19)

https://www.2dca.org/content/download/426404/4628233/file/175061_39_01162019_08373620_i.pdf

JOA-POSSESSION OF CONVEYANCE FOR TRAFFICKING: Defendant is entitled to a Judgment of Acquittal for possession of a conveyance for trafficking when he picked up a delivered package of cocaine, putting in his car and drove away. When the vehicle itself was not a necessary component of trafficking the offense of possession of conveyance for trafficking is not proven. Morris v. State, 44 Fla. L. Weekly D240d (2nd DCA 1/16/19)

https://www.2dca.org/content/download/426401/4628191/file/164084_114_01162019_08345412_i.pdf

PRISON RELEASEE REOFFENDER: Burglary of a Dwelling with an Assault or Battery is a qualifying offense under the PRR statute. Fowler v. State, 44 Fla. L. Weekly D240c (3rd DCA 1/16/19)

http://3dca.flcourts.org/Opinions/3D18-1917.pdf

STALKING: The "substantial emotional distress" element of stalking requires application of an objective, reasonable-person standard. Fernandez v. State, 44 Fla. L. Weekly D240a (3rd DCA 1/16/19)

http://3dca.flcourts.org/Opinions/3D17-1965.pdf

DOUBLE JEOPARDY-RESISTING: Two convictions for resisting an officer without violence violates double jeopardy where both convictions are based on the same continuous criminal episode even if 2 officers are involved. Cason v. State, 44 Fla. L. Weekly D238a (1st DCA 1/14/19)

https://www.1dca.org/content/download/426141/4593291/file/174376_1287_01142019_09210193_i.pdf

NEWLY DISCOVERED EVIDENCE-RECANTATION: Court may properly find that the Victim's recantation is not credible based on the Victim's memory problems, inconsistent testimony, and the Court's assessment of credibility. A recantation will not be considered newly discovered evidence where the recantation offers nothing new or where the recantation is offered by an untrustworthy individual who gave inconsistent statements all along. Gormans v. State, 44 Fla. L. Weekly D235e (1st DCA 1/14/19)

https://www.1dca.org/content/download/426145/4593339/file/175266_1284_01142019_09214621_i.pdf

CONSECUTIVE SENTENCE: Consecutive sentence for possession or use of firearm under §775.087(2)(d) is not available for an act occurring during a single criminal episode with a single victim incurring a single injury. Fleming v. State, 44 Fla. L. Weekly D235d (1st DCA 1/14/18)

https://www.1dca.org/content/download/426140/4593279/file/173493_1287_01142019_09200524_i.pdf

DRIVER'S LICENSE SUSPENSION: Circuit court's decision holding on first-tier review that officers unlawfully detained Defendant when he was found sleeping in a parked car with the engine running, lights on and his pants down to his knees is upheld. Second -tier review by certiorari is only allowed where the circuit court decision did not result in a miscarriage of justice. DHSMV v. Morrical, 44 Fla. L. Weekly D233a (5th DCA 1/11/19)

https://edca.5dca.org/DCADocs/2018/2589/182589_1254_01112019_08310488_i.pdf

DOUBLE JEOPARDY: Double jeopardy is not violated by convictions for burglary with assault and battery on same victim on the same date upon Defendant beating up Victim in his car outside a fried chicken restaurant. Double jeopardy does not bar dual convictions for burglary with assault and simple battery because the offenses include different elements. Barber v. State, 44 Fla. L. Weekly D232a (1st DCA 1/10/19)

https://www.1dca.org/content/download/425905/4590654/file/173782_1284_01102019_09161819_i.pdf

POST CONVICTION RELIEF: Defendant is not entitled to late filing of 3.850 motion when Defendant had alleged that he retained attorney to file the motion, and attorney alleged that he had been retained to explore filing a motion, not to actually file it, and the Court accepted the attorney's view. Denson v. State, 44 Fla. L. Weekly D230b (1st DCA 1/10/19)

https://www.1dca.org/content/download/425906/4590666/file/174071_1284_01102019_09184063_i.pdf

JUDGMENT OF ACQUITTAL-CIRCUMSTANTIAL EVIDENCE: Defendant is not entitled to a JOA for felon in possession of firearm when officer chased the Defendant from a car, heard a metallic item hit the ground, and moments later saw a gun there. The Defendant's DNA was on the magazine. "We now expressly hold that the circumstantial evidence standard of review applies only where all of the evidence of a defendant's guilt. . .is circumstantial, not where any particular element of a crime is demonstrated exclusively by circumstantial evidence." "There is a difference between putting pieces of a puzzle together and stacking inferences and assumptions." Sneezing defense is nonavailing. State v. Sephes, 44 Fla. L. Weekly D225d (4th DCA 1/9/18)

https://www.4dca.org/content/download/425859/4590164/file/180981_1709_01092019_09342003_i.pdf

LIFE SENTENCE-MINOR: Life sentence with possibility of parole for a Defendant who was a minor at the time of the offense is not unconstitutional under Graham. State v. West, 44 Fla. L. Weekly D225c (4th DCA 1/9/18)

https://www.4dca.org/content/download/425840/4589936/file/164252_1709_01092019_08543174_i.pdf

LIFE SENTENCE-MINOR: Life sentence with possiblity of parole for a Defendant who waw a minor at the time of the offense is not unconstitutional under Graham. State v. Wesby, 44 Fla. L. Weekly D225b (4th DCA 1/9/18)

https://www.4dca.org/content/download/425839/4589924/file/164246_1709_01092019_08525405_i.pdf

COMPETENCY: Court must hold a hearing to evaluate Defendant's competency after appointing a competency expert. Machin v. State, 44 Fla. L. Weekly D224e (4th DCA 1/9/19)

https://www.4dca.org/content/download/425849/4590044/file/172787_1709_01092019_09123320_i.pdf

CONDITIONAL RELEASE: Because conditional release does not impose an enhanced penalty, no actual notice of an offender's eligibility for conditional release is required. Jenkins v. State, 44 Fla. L. Weekly D224b (4th DCA 1/9/19)

VOP-VFOSC: Court must file written findings in order to designate an offender as a danger to the community and sentencing him as a violent offender of special concern court. A new sentencing hearing is not required. Stickney v. State, 44 Fla. L. Weekly D223b (4th DCA 1/9/19)

https://www.4dca.org/content/download/425842/4589960/file/171004_1708_01092019_08584344_i.pdf

MINOR-LIFE SENTENCE: Defendant whose original sentence violated Graham, but then was was resentenced before July 1, 2014 to 65 years in prison, is entitled to be resentenced again under §§ 775.082 and 921.1402. Perry v. State, 44 Fla. L. Weekly D223a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425857/4590140/file/180460_1709_01092019_09272157_i.pdf

SELF-REPRESENTATION: "Judge, I want to represent myself," is an unequivocal request for self representation, State's argument to the contrary notwithstanding. A Faretta hearing was required. McKinley v. State, 44 Fla. L. Weekly D221b (4th DCA 1/9/19)

https://www.4dca.org/content/download/425850/4590056/file/172822_1709_01092019_09145358_i.pdf

SCORESHEET-VICTIM INJURY: A jury determination is not necessary for determination of whether, and extent of, victim injury. Alleyne does not apply because there is no mandatory minimum. Bean v. State, 44 Fla. L. Weekly D219a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425847/4590020/file/172419_1708_01092019_09050456_i.pdf

ARGUMENTS DOOMED TO FAIL: "Appellant forced six bank tellers into the bank's vault room at gunpoint, hit each of the tellers over the head with a gun, made them strip their clothes, and sexually assaulted one of the tellers. When appellant attempted to flee the scene, he shot at a law enforcement officer. . . Appellant moved for a downward departure sentence, arguing that his offense was committed in an unsophisticated manner and was an isolated incident for which he had shown remorse." Sixty-nine year sentence upheld. Bean v. State, 44 Fla. L. Weekly D219a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425847/4590020/file/172419_1708_01092019_09050456_i.pdf

SCORESHEET-LEVEL OF OFFENSE: Armed kidnapping is improperly scored as a level X offense where there was no evidence that the Defendant had personal possession of the weapon. Johnson v. State, 44 Fla. L. Weekly D218a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425841/4589948/file/170845_1709_01092019_08570824_i.pdf

SCORESHEET-VICTIM INJURY: Court properly scored slight victim injury points when Victim testified that her hands were bound by a zip tie and she was pepper sprayed, even though she did not describe any physical injuries. Johnson v. State, 44 Fla. L. Weekly D218a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425841/4589948/file/170845_1709_01092019_08570824_i.pdf

DISCOVERY-NEW TRIAL: Defendant is not entitled to a new trial based on the State's failure to disclose that investigating officer was under investigation when that evidence was neither material nor was the officer called as a witness in the trial. State v. Serfrere, 44 Fla. L. Weekly D217a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425845/4589996/file/171374_1709_01092019_09010668_i.pdf

ALLOCUTION: Defendant cannot appeal any error in the State cross-examining the defendant during his allocution when no contemporaneous objection was made. Compere v. State, 44 Fla. L. Weekly D215b (4th DCA 1/9/19)

https://www.4dca.org/content/download/425862/4590200/file/181535_1257_01092019_09402224_i.pdf

SENTENCING-CONSIDERATIONS: Court improperly considered Defendant's reflection in committing the murder when the jury had acquitted the Defendant of premeditated conduct by convicting him of second -degree murder rather than first-degree murder. Ortiz v. State, 44 Fla. L. Weekly D215a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425846/4590008/file/172418_1708_01092019_09034514_i.pdf

EVIDENCE-DEAD WITNESS: Court properly allowed into evidence a latent fingerprint card prepared decades earlier by an officer who had since died. Clark v. State, 44 Fla. L. Weekly D208a (4th DCA 1/9/19)

https://www.4dca.org/content/download/425852/4590080/file/173166_1257_01092019_09184097_i.pdf

PREDISPOSITION REPORT: Court must consider the predisposition report prior to issuing a residential commitment order on a juvenile. Juvenile's acquiescence to placement is not a valid waiver of the PDR. E.G. v. State, 44 Fla. L. Weekly D206b (4th DCA 1/9/19)

https://www.4dca.org/content/download/425854/4590104/file/173957_1708_01092019_09222389_i.pdf

WITHDRAWAL OF PLEA: Defendant who stated during his plea colloquy that he was not under the influence of medication to the extent that it affected his ability to understand the proceedings cannot go beyond those assertions to challenge the voluntariness of his plea. Thomas v. State, 44 Fla. L. Weekly D205c (3rd DCA 1/9/19)

http://3dca.flcourts.org/Opinions/3D17-1386.pdf

SENTENCING-MINOR-LIFE SENTENCE: Juvenile who has a lengthy sentence with possibility of parole is not entitled to relief under Graham and Miller. Atwell is dead. Zamot v. State, 44 Fla. L. Weekly D205b (3rd DCA 1/9/19)

http://3dca.flcourts.org/Opinions/3D16-0945.pdf

JUDGE-NEUTRALITY: Judge did not impermissibly depart from neutrality but telling prosecutor to lay a proper predicate to establish the value of stolen goods. M.W. v. State, 44 Fla. L. Weekly D204a (3rd DCA 1/9/19)

http://3dca.flcourts.org/Opinions/3D18-0400.pdf

CREDIT FOR TIME SERVED: Court did not abuse discretion in denying motion for credit for time served in a jail in Argentina awaiting extradition to Florida. Calafell v. State, 44 Fla. L. Weekly D203b (3rd DCA 1/9/19)

http://3dca.flcourts.org/Opinions/3D18-2350.pdf

MISTRIAL: Court did not abuse discretion by denying a motion for mistrial after members of the victim's family became emotional during the opening statement. Talley v. State, 44 Fla. L. Weekly D198a (3rd DCA 1/9/19)

http://3dca.flcourts.org/Opinions/3D16-1500.pdf

JURY INSTRUCTION: Court did not abuse discretion by denying request for special jury instruction regarding the effect of drugs and alcohol on witnesses' ability to perceive and recall. Talley v. State, 44 Fla. L. Weekly D198a (3rd DCA 1/9/19)

http://3dca.flcourts.org/Opinions/3D16-1500.pdf

ARGUMENT: Prosecutor's improper comment during closing argument stating that state witnesses come from a neighborhood where you don't snitch did not warrant reversal. Other improper comments were not preserved by contemporaneous objection. Talley v. State, 44 Fla. L. Weekly D198a (3rd DCA 1/9/19)

http://3dca.flcourts.org/Opinions/3D16-1500.pdf

DOUBLE JEOPARDY: Separate convictions for scheme to defraud and grand theft based on the same conduct violates double jeopardy. Freeman v. State, 44 Fla. L. Weekly D197a (2nd DCA 1/9/19)

https://www.2dca.org/content/download/425871/4590308/file/175105_65_01092019_09095285_i.pdf

LIFE SENTENCE-MINOR-HOMICIDE: A minor who was sentenced to discretionary life in prison for homicide is entitled to a resentencing hearing in which the Court must consider the offender's youth and attendant characteristics. Foster v. State, 44 Fla. L. Weekly D228b (1st DCA 1/8/19)

https://www.1dca.org/content/download/425811/4589585/file/161830_1287_01082019_03014615_i.pdf

HEARSAY: Officer's testimony recounting witness's statement at the scene of a car accident was unobjected hearsay, and is therefore on appealable, and in any event would have been admitted as an excited utterance. Wall v. State, 44 Fla. L. Weekly D228a (1st DCA 1/8/19)

https://www.1dca.org/content/download/425810/4589573/file/155881_1284_01082019_03004818_i.pdf

DEATH PENALTY: The fact that pre-Hurst jury is advised that it's recommendation is advisory does not alone entitle the defendant from relief from the death penalty. Allen v. State, 44 Fla. L. Weekly S112a (FLA 1/7/19)

https://www.floridasupremecourt.org/content/download/425741/4588934/file/sc17-1623.pdf

DEATH PENALTY: Hurst does not apply retroactively to death sentence that became final in 1993. Thompson v. State, 44 Fla. L. Weekly S111c (FLA 1/7/19)

https://www.floridasupremecourt.org/content/download/425744/4588975/file/sc18-1435.pdf

SEARCH AND SEIZURE: Officers may detain a vehicle's passengers for the reasonable duration of a traffic stop without violating the Fourth Amendment. Ellsworth v. State, 44 Fla. L. Weekly D188d (1st DCA 1/7/19)

https://www.1dca.org/content/download/425758/4589153/file/180187_1284_01072019_03062438_i.pdf

APPEALS: Court is not divested of jurisdiction to rule on motion to withdraw plea while on appeal is pending. The appeal will be held in abeyance until an order is entered by the trial court. Taylor v. State, 44 Fla. L. Weekly D188b (1st DCA 1/7/19)

https://www.1dca.org/content/download/425760/4589177/file/181768_1287_01072019_03102985_i.pdf

SELF-DEFENSE-STAND YOUR GROUND: Amendment to statute which shifted burden of proof in pretrial immunity hearing from defendant to prosecution applies retroactively. Conflict certified. Aviles-Manfredy v. State, 44 Fla. L. Weekly D187a (1st DCA 1/7/19)

https://www.1dca.org/content/download/425756/4589129/file/173005_1287_01072019_03021478_i.pdf

AMENDMENT-JURY INSTRUCTIONS: Aggravated Fleeing and Eluding instruction modified as it relates to causing injury or death. In Re: Standard Jury Instructions, 44 Fla. L. Weekly S108a (FLA 1/4/18)

https://www.floridasupremecourt.org/content/download/425665/4588044/file/sc18-1692.pdf

DEATH PENALTY: Defendant is not entitled to relief under Hurst when sentence became final before Ring. Reese v. State, 44 Fla. L. Weekly S107a (FLA 1/4/19)

https://www.floridasupremecourt.org/content/download/425661/4588002/file/sc18-815.pdf

SELF DEFENSE-JOA: Defendant, who disarmed one assailant and shot the one he disarmed and another is entitled to a JOA for the murder of the first, but not for the attempted murder of the second. The fact that the jury found that Defendant guilty of theft, rather than robbery, means that the State's theory that Defendant committed a robbery and therefore was not entitled to self-defense, fails. Williams v. State, 44 Fla. L. Weekly S98a (FLA 1/4/19)

https://www.floridasupremecourt.org/content/download/425654/4587918/file/sc16-2170.pdf

DISCOVERY: Failure to disclose police and victim's family's payments to non-testifying witness is a discovery violation, but the Defendant is not entitled to a new charge when, as here, the Witness's credibility was adequately challenged and the witness's contribution to the case did not rest on his credibility. State v. Butler, 44 Fla. L. Weekly D186a (5th DCA 4/4/19)

https://edca.5dca.org/DCADocs/2017/1823/171823_1260_01042019_08183906_i.pdf

SENTENCING-CONSIDERATIONS-REMORSE: Defendant denied guilt and blame to his conviction on "corrupt judges, attorneys in policemen." Court may not consider Defendant's failure to show remorse in denying a downward departure from the sentencing guidelines where Defendant never argued his remorse was a basis for mitigating the sentence. Defendant is entitled to resentencing with a different judge. Strong v. State, 44 Fla. L. Weekly D184b (5th DCA 1/4/19)

https://edca.5dca.org/DCADocs/2017/1509/171509_1257_01042019_08060824_i.pdf

MINOR-LIFE SENTENCE: Defendant was sentenced to life in prison with a mandatory minimum first-degree murder committed while a juvenile is not entitled to resentencing where he is eligible for parole after 25 years. Honor v. State, 44 Fla. L. Weekly D184a (5th DCA 1/4/19)

https://edca.5dca.org/DCADocs/2018/3304/183304_1257_01042019_08334087_i.pdf

APPEAL-MOOT: Appeal from revocation of probation is moot for the sentences complete before the appeal is finished. "Wilson also argues that if he is convicted of another offense in the future. . .this revocation of probation may expose him to a harsher penalty. . .We hope that Wilson's pessimistic speculation remains just that. But even if it is instead prescient, we are hard-pressed to conclude that this revocation. . .over his approximately thirty-year criminal history. . .will be the straw that breaks the camel's back." Wilson v. State, 44 Fla. L. Weekly D177b (2nd DCA 1/4/19)

https://edca.2dca.org/DCADocs/2017/1590/171590_109_01042019_08183396_i.pdf

VOP-JUDGMENT: Court may not enter a second judgment upon revocation of probation. Hammond v. State, 44 Fla. L. Weekly D177a (2nd DCA 1/4/18)

https://edca.2dca.org/DCADocs/2017/3705/173705_65_01042019_08225748_i.pdf

POST CONVICTION RELIEF: Defendant who filed falsified judgments as part of his appeal is referred for discipline by the Department of Corrections. Crum v. State, 44 Fla. L. Weekly D175a (2nd DCA 1/4/19)

https://edca.2dca.org/DCADocs/2017/1272/171272_65_01042019_08152905_i.pdf

POST CONVICTION RELIEF-DEPORTATION: The two-year limitations period for filing a motion to withdraw plea for failure of the trial court to advise a defendant that the plea could result in deportation commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation. Rodnez v. State, 44 Fla. L. Weekly D173i (3rd DCA 1/2/19)

http://3dca.flcourts.org/Opinions/3D18-1948.cit.op2.pdf

CREDIT FOR TIME SERVED: Defendant is entitled to credit actually served in prison before beginning a probationary term on a split sentence. Thomas v. State, 44 Fla. L. Weekly D171a (3rd DCA 1/2/19)

http://3dca.flcourts.org/Opinions/3D18-2019.pdf

POST CONVICTION RELIEF-INEFFECTIVE ASSISTANCE OF COUNSEL: Defendant is entitled to hearing on claim that counsel was ineffective for failing to call a witness who fought with Defendant to explain why his blood was on the scene, and for failing to call Defendant's mother is an alibi witness. Kennon v. State, 44 Fla. L. Weekly D182a (2nd DCA 1/4/19)

https://edca.2dca.org/DCADocs/2018/0180/180180_114_01042019_08252596_i.pdf

STATEMENT OF DEFENDANT-VOLUNTARINESS: Investigator's offers to inform prosecutor that defendant cooperated and that things would go easier for defendant if he told the truth did not render confession involuntary. Good discussion. Teachman v. State, 44 Fla. L. Weekly D159b (1st DCA 1/2/19)

https://www.1dca.org/content/download/425530/4586285/file/170759_1284_01022019_09180035_i.pdf

STATEMENT OF DEFENDANT-VOLUNTARINESS: Investigator's implication that he would not charge the Defendant's wife he confessed is insufficient to render his confession involuntary under the circumstances. Teachman v. State, 44 Fla. L. Weekly D159b (1st DCA 1/2/19)

https://www.1dca.org/content/download/425530/4586285/file/170759_1284_01022019_09180035_i.pdf

EVIDENCE: Lewd and lascivious victim's sexual relationship with her boyfriend is inadmissible. Teachman v. State, 44 Fla. L. Weekly D159b (1st DCA 1/2/19)

https://www.1dca.org/content/download/425530/4586285/file/170759_1284_01022019_09180035_i.pdf

DECEMBER 2018

SENTENCING-CONSIDERATIONS: Upon resentencing, the court improperly considered a subsequent charge for which the defendant had been acquitted. Defendant is entitled to a new sentencing hearing before a different judge. Mullaly v. State, 44 Fla. L. Weekly D151a (1st DCA 12/31/18)

https://www.1dca.org/content/download/425515/4586091/file/174815_1287_12312018_09461972_i.pdf

SEARCH AND SEIZURE-PRESERVATION OF ISSUE: The appellate court lacks jurisdiction to review a dispositive motion to suppress when the Defendant failed to preserve the right to appeal. Lewis v. State, 44 Fla. L. Weekly D150b (1st DCA 12/31/18)

https://www.1dca.org/content/download/425516/4586103/file/174965_1279_12312018_09471276_i.pdf

LIFE SENTENCE: Graham does not extend to adult offenders. The argument that sentencing courts should focus on the offender's mental age on a case-by-case basis is rejected. Lockhart v. State, 44 Fla. L. Weekly D150a (1st DCA 12/31/18)

https://www.1dca.org/content/download/425513/4586067/file/172661_1284_12312018_09371202_i.pdf

SELF-REPRESENTATION: Court properly denied Defendant's request to represent himself when he was uncooperative, refused to acknowledge that he even had a lawyer, interrupted and argued with the court, and otherwise thwarted the Court's efforts to conduct the Faretta inquiry. Damas v. State, 44 Fla. L. Weekly S70a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425463/4585496/file/sc17-2062.pdf

DEATH PENALTY-AGGRAVATORS: Finding that victims were under the age of 12 and in the Defendant's familial/custodial authority is not improper doubling of aggravators. Damas v. State, 44 Fla. L. Weekly S70a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425463/4585496/file/sc17-2062.pdf

DEATH PENALTY: "[T]he moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude . . .that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe." Damas v. State, 44 Fla. L. Weekly S70a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425463/4585496/file/sc17-2062.pdf

DEATH PENALTY-PROPORTIONALITY: Death penalty is not disproportionate for slitting throats of mother and five children. Damas v. State, 44 Fla. L. Weekly S70a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425463/4585496/file/sc17-2062.pdf

DEATH PENALTY-INTELLECTUAL DISABILITY: Defendant with an IQ score of 75 is entitled to a hearing to determine whether he is ineligible for the death penalty based on intellectual disability. Foster v. State, 44 Fla. L. Weekly S67a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425464/4585508/file/sc17-2198.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Witness's statement that he may have minimized the extent of the Defendant's intoxication in trial testimony is not newly discovered Brady evidence sufficient to warrant a new trial. Merck v. State, 44 Fla. L. Weekly S61a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425468/4585556/file/sc18-88.pdf

DEATH PENALTY-HURST: Defendant is not entitled to relief based on Hurst when the death penalty became final in 1990. Duckett v. State, 44 Fla. L. Weekly S56a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425470/4585580/file/sc18-1190.pdf

POST CONVICTION RELIEF: Claims that State committed a Brady violation by not disclosing that it had dropped charges against testifying witness are procedurally barred and without merit. Thomas v. State, 44 Fla. L. Weekly S54a (FLA 12/28/18)

https://www.floridasupremecourt.org/content/download/425467/4585544/file/sc18-48.pdf

SELF-REPRESENTATION: A literate 51-year-old with a GED is entitled to represent himself if he is dissatisfied with counsel. Clark v. State, 44 Fla. L. Weekly D146a (5th DCA 12/28/18)

JURORS-POST-VERDICT INTERVIEW: Court did not abuse discretion in denying motion to interview the jury foreperson based on her alleged failure to disclose her own personal experience with sexual assault where she was not asked about it during voir dire. Sonneman v. State, 44 Fla. L. Weekly D145a (5th DCA 12/28/18)

JURORS-POST-VERDICT INTERVIEW: Juror may not be interviewed after the verdict based on the inference that she considered the Defendant's failure to testify; any such considerations inhere in the verdict. Sonneman v. State, 44 Fla. L. Weekly D145a (5th DCA 12/28/18)

10-20-LIFE: Life sentence for for aggravated battery with a firearm is illegal because it exceeds the statutory maximum for that offense. Reclassification is improper where state charges aggravated battery in such a way that use of firearm is essential element. Smith v. State, 44 Fla. L. Weekly D118a (5th DCA 12/28/18)

POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel was ineffective for advising him not to testify, and have counsel told him the state would be able to impeach and by every detail his prior convictions, counsel's performance was deficient. Penton v. State, 44 Fla. L. Weekly D143a (2nd DCA 12/28/18)

https://edca.2dca.org/DCADocs/2017/3765/173765_114_12282018_08315633_i.pdf

EXPERT-DNA: DNA expert who identifies a DNA may not testify about the frequency of the DNA among the population database without demonstrating a sufficient knowledge of the population database ground in this day of authoritative sources although he or she need not be a statistician or mathematician. The witness must identify the method used to calculate the frequency statistics so that the judge may determine whether the method used is generally accepted in the scientific community in accordance with Frye. Testimony that she is "familiar with the type of statistical analysis," that it was "something that is commonly done" in her profession, that she had been "performing statistical analysis . . . since 1996," is insufficient. Counsel was ineffective for failing to object. Cruz v. State, 44 Fla. L. Weekly D139a (2nd DCA 12/28/18)

https://edca.2dca.org/DCADocs/2017/4284/174284_114_12282018_08431756_i.pdf

SELF-DEFENSE-STAND YOUR GROUND: Burden of proof is upon the State. Defendant must only allege a facially sufficient prima facie case of justifiable use of force in his motion. The Defendant is not required to testify or present evidence. Jefferson v. State, 44 Fla. L. Weekly D135a (2nd DCA 12/28/18)

https://edca.2dca.org/DCADocs/2018/3646/183646_167_12282018_08454360_i.pdf

DICTIONARY WARS: "[T]o 'raise' something is '[t]o bring up for discussion or consideration; to introduce or put forward.' . . .That is, in ordinary conversation, it is not sensible to conclude that to 'raise" a prima facie claim, which is deemed true until it is disproved, means that the person raising the claim must also affirmatively prove the claim. The legislature did not say 'prove.' Utilization of 'raised,' coupled with the aforementioned ordinary meaning of 'prima facie claim,' yields clear textual support that the legislature did not intend the person asserting Stand Your Ground immunity to first prove that prima facie claim of self-defense." Jefferson v. State, 44 Fla. L. Weekly D135a (2nd DCA 12/28/18)

https://edca.2dca.org/DCADocs/2018/3646/183646_167_12282018_08454360_i.pdf

COSTS: Court may not impose a $100 fee for court-appointed conflict counsel without giving Defendant notice of his right to a hearing to contest the fees. Conflict certified. Newton v. State, 44 Fla. L. Weekly D126c (2nd DCA 12/28/18)

https://edca.2dca.org/DCADocs/2016/3559/163559_114_12282018_08303482_i.pdf

CREDIT FOR TIME SERVED: On VOP, Defendant must be given credit from the date of the arrest on the new violation which was the basis for the revocation of probation. Colton v. State, 44 Fla. L. Weekly D113b (1st DCA 12/27/18)

https://www.1dca.org/content/download/425433/4585143/file/165654_1286_12272018_12100513_i.pdf

DOUBLE JEOPARDY: Double Jeopardy does not bar separate convictions for child neglect causing great bodily harm and leaving child unattended in motor vehicle. Hicks v. State, 44 Fla. L. Weekly D113a (1st DCA 12/27/18)

https://www.1dca.org/content/download/425435/4585167/file/165876_1286_12272018_12115870_i.pdf

JOA-CHILD ENDANGERMENT: Defendant cannot be convicted of child endangerment based solely on the fact that the child' mother testified that the child was not injured when he left for the defendant, but there was no testimony is as to what happened during the hours in question. Hicks v. State, 44 Fla. L. Weekly D113a (1st DCA 12/27/18)

https://www.1dca.org/content/download/425435/4585167/file/165876_1286_12272018_12115870_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to hire an expert in pharmacology to explain how his prescription medicine interacted with his medical conditions in abuse of drugs. Dupriest v. State, 44 Fla. L. Weekly D108b (1st DCA 12/27/18)

https://www.1dca.org/content/download/425434/4585155/file/165702_1287_12272018_12105684_i.pdf

MOTION FOR NEW TRIAL: Court erred by assessing the Defendant's motion for new trial on the same basis as the motion for Judgment of Acquittal. "Unlike a motion for judgment of acquittal, which tests the sufficiency of the evidence, a motion for new trial 'requires the trial court to weigh the evidence and determine credibility just as a juror would.'. . .In the latter role, the trial court acts as a 'safety valve' where the evidence of guilt is tenuous but technically sufficient to go to the jury. Baker v. State, 44 Fla. L. Weekly D108a (1st DCA 12/27/18)

https://www.1dca.org/content/download/425438/4585203/file/171959_1286_12272018_12151395_i.pdf

COMPETENCY: Court erred by failing to hold competency hearing despite having reasonable grounds to believe the defendant was incompetent. Boren v. State, 44 Fla. L. Weekly D107a (1st DCA 12/27/18)

https://www.1dca.org/content/download/425441/4585239/file/173361_1287_12272018_12190176_i.pdf

VOP-JURISDICTION: Probation is tolled when the defendant absconded. "Absconsion" used again. Hodges v. State, 44 Fla. L. Weekly D106a (1st DCA 12/27/18)

VOP: Evidence that Defendant's mother told the probation officer that the Appellant had moved is hearsay evidence insufficient to support a violation of probation. A probationer's absence from an approved residence for a brief time during which the probationer's location was unknown would not support a finding that the probationer violated a condition of probation by changing his residence without permission. Hodges v. State, 44 Fla. L. Weekly D106a (1st DCA 12/27/18)

https://www.1dca.org/content/download/425442/4585251/file/174672_1286_12272018_12195274_i.pdf

SPEEDY TRIAL: The rule requiring a trial within 90 days of an appeal granting a new trial does not apply where the Defendant had previously waived speedy trial before his 1st trial. Noack v. State, 44 Fla. L. Weekly D101a (1st DCA 12/27/18)

https://www.1dca.org/content/download/425431/4585119/file/155620_1286_12272018_11594519_i.pdf

HEARSAY: Officer's testimony that a third-party had told him that the Defendant had confessed is inadmissible hearsay within hearsay. Noack v. State, 44 Fla. L. Weekly D101a (1st DCA 12/27/18)

https://www.1dca.org/content/download/425431/4585119/file/155620_1286_12272018_11594519_i.pdf

JUDGE-IMPARTIALITY: Judge did not depart from its role of impartiality by preventing defense counsel from questioning witnesses about inadmissible evidence when state failed to object, nor by questioning state's witness who seemed confused by defense counsel's questions. "[A] trial judge need not be 'an iceberg only to be heard at calving.'" Lee v. State, 44 Fla. L. Weekly D98a (1st DCA 12/27/18)

JUDGE-IMPARTIALITY-QUOTATION (DISSENT): "During a timeout in the Big Game, a player coming off the field was berated for performing poorly, scolded for being 'a bump on a log.' Another timeout was called and the player was rebuked for 'sitting on your ass yet again.' The rant continued: 'I don't know what you guys are doing over there. I'm not sure you need to be here, just let [the other team] do whatever [it] wants.' A harangue like this from an irate coach is unremarkable; after all, his job is to win the game. What would be startling is if the haranguer was the game's referee, the person on the field whose job is to ensure a fair and impartial contest for the players and onlookers alike. Yet that is what happened in the trial of William Lee. . .[T]he trial judge unilaterally initiated a series of increasingly antagonistic sidebars, punctuated by the quotes above. . . In effect, the judge performed real-time CLE timeouts for the prosecution's benefit during a live criminal trial." Lee v. State, 44 Fla. L. Weekly D98a (1st DCA 12/27/18)

DISCOVERY-FACIAL RECOGNITION SOFTWARE: Defendant is not entitled to other photographs generated by facial recognition software which were not identified as the defendant. Lynch v. State, 44 Fla. L. Weekly D96a (1st DCA 12/27/18)

COMPETENCY: Court cannot adjudicate defendant competent based solely on the parties' stipulation. Losada v. State, 44 Fla. L. Weekly D69b (3rd DCA 12/26/18)

http://3dca.flcourts.org/Opinions/3D16-1758.pdf

EVIDENCE: Exhibit with an expert's annotations superimposed is inadmissible. State Farm v. Wallace, 44 Fla. L. Weekly D67c (5th DCA 12/21/18)

https://edca.5dca.org/DCADocs/2017/0813/170813_1257_12212018_08353261_i.pdf

NEWLY DISCOVERED EVIDENCE-RECANTATION: Defendant is entitled to a hearing on his motion for post conviction relief when one victim recanted his testimony and says the other admitted falsely identifying the defendant at trial. Smith v. State, 44 Fla. L. Weekly D66c (5th DCA 12/21/18)

https://edca.5dca.org/DCADocs/2018/3095/183095_1260_12212018_09054520_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on his claim that counsel was ineffective for failing to investigate allegations that had been known to the attorney that alleged victims of sexual molestation had admitted they lied in retaliation for harsh discipline. Bozada v. State, 44 Fla. L. Weekly D65a (5th DCA 12/21/18)

https://edca.5dca.org/DCADocs/2018/2504/182504_1260_12212018_09035102_i.pdf

DEATH PENALTY-POST CONVICTION RELIEF: Hurst does not invalidate death recommendation when jury was told that its recommendation was only advisory. Allen v. State, 44 Fla. L. Weekly S40a (12/20/18)

https://www.floridasupremecourt.org/content/download/425245/4583150/file/sc17-1623.pdf

POST CONVICTION RELIEF: Failure to object to Detective's statements of belief in the Defendant's guilt during the course of the interrogation is not ineffective assistance of counsel warranting a new trial. King v. State, 44 Fla. L. Weekly S31a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425243/4583126/file/sc17-1486.pdf

POST CONVICTION DNA TESTING: Court did not err in adopting State's memorandum in its order on postconviction DNA testing where the memo was not facially deficient and its conclusions were supported by the evidence. Gosiminski v. State, 44 Fla. L. Weekly S27a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425247/4583174/file/sc17-1928.pdf

DEATH PENALTY: Defendant who waived penalty-phase jury and his death penalty was final more than 2 years before Ring is not entitled to relief based on Hurst. Robinson v. State, 44 Fla. L. Weekly S25a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425252/4583234/file/sc18-16.pdf

POST CONVICTION RELIEF: In death penalty cases, Defendant is entitled to a Huff hearing (an opportunity for attorneys to argue for an evidentiary hearing) on an initial motions for postconviction relief, not on subsequent motions. Taylor v. State, 44 Fla. L. Weekly S19a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425256/4583282/file/sc18-520.pdf

ATTORNEYS-DISCIPLINE: 3 year suspension is appropriate discipline for attorney who stole money from her employer (Kohl's Department Store). Dissent: "Kinsella's misconduct requires disbarment. . .There should be no place for thieves in The Florida Bar." Dissent: "Attempts to distinguish thefts related or unrelated to the practice of law ignore the common denominator at issue -- theft. A thief is a thief." The Florida Bar v. Kinsella, 44 Fla. L. Weekly S14a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425241/4583102/file/sc17-55.pdf

POST CONVICTION RELIEF-DEATH PENALTY-HURST: Neither failure to hold a case management hearing nor a page limit on successive motions for postconviction relief is unconstitutional. Rivera v. State, 44 Fla. L. Weekly S10b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425248/4583186/file/sc17-1991.pdf

POST CONVICTION RELIEF-DEATH PENALTY: Hurst does not apply retroactively to cases which became final before Ring. Rivera v. State, 44 Fla. L. Weekly S10b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425248/4583186/file/sc17-1991.pdf

AMENDMENT-JURY INSTRUCTIONS: Battery instructions amendment to clarify that the Defendant does not to touch the actual body of the victim for a battery to occur. In Re: Standard Jury Instructions, 44 Fla. L. Weekly S10a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425259/4583318/file/sc18-1295.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: DOJ report criticizing hair and fiber analysis is not newly discovered evidence sufficient to warrant a new trial. State v. Murray, 44 Fla. L. Weekly S3b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425242/4583114/file/sc17-707.pdf

APPEAL-CONFLICT: There is no conflict when appellate counsel and trial counsel are the same; any claims of ineffective assistance of counsel at trial are not properly raised on direct appeal. State v. Murray, 44 Fla. L. Weekly S3b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425242/4583114/file/sc17-707.pdf

AMENDMENT-JURY INSTRUCTIONS-ROBBERY: Great bodily harm does not include bruises. The alleged victim should be referred to by name, and not identified as "victim." In Re: Standard Jury Instructions, 44 Fla. L. Weekly S2a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425259/4583318/file/sc18-1295.pdf

AMENDMENT-JURY INSTRUCTIONS-DELIBERATIONS: "If a juror goes to the restroom, the deliberations should stop until the juror returns." In Re: Standard Jury Instructions, 44 Fla. L. Weekly S1b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425261/4583342/file/sc18-1717.pdf

WITNESS TAMPERING: Witness tampering does not require the state to prove that the witness attempted to contact law enforcement either during or after the commission of the crime. McCloud v. State, 43 Fla. L. Weekly S658a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425250/4583210/file/sc17-2011.pdf

ATTORNEY'S FEES: Statutory qualifications in force at the time of appointment apply to designated attorneys assisting registry attorneys in capital collateral proceedings. Cartenuto v JAC. 43 Fla. L. Weekly S654a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425254/4583258/file/sc18-322.pdf

POST CONVICTION RELIEF: Failure to object to Detective's statements of belief in the Defendant's guilt during the course of the interrogation is not ineffective assistance of counsel warranting a new trial. King v. State, 44 Fla. L. Weekly S31a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425243/4583126/file/sc17-1486.pdf

POST CONVICTION DNA TESTING: Court did not err in adopting State's memorandum in its order on postconviction DNA testing where the memo was not facially deficient and its conclusions were supported by the evidence. Gosiminski v. State,44 Fla. L. Weekly S27a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425247/4583174/file/sc17-1928.pdf

DEATH PENALTY: Defendant who waived penalty-phase jury and his death penalty was final more than 2 years before Ring is not entitled to relief based on Hurst. Robinson v. State, 44 Fla. L. Weekly S25a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425252/4583234/file/sc18-16.pdf

POST CONVICTION RELIEF: In death penalty cases, Defendant is entitled to a Huff hearing (an opportunity for attorneys to argue for an evidentiary hearing) on an initial motions for postconviction relief, not on subsequent motions. Taylor v. State, 44 Fla. L. Weekly S19a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425256/4583282/file/sc18-520.pdf

ATTORNEYS-DISCIPLINE: 3 year suspension is appropriate discipline for attorney who stole money from her employer (Kohl's Department Store). Dissent: "Kinsella's misconduct requires disbarment. . .There should be no place for thieves in The Florida Bar." Dissent: "Attempts to distinguish thefts related or unrelated to the practice of law ignore the common denominator at issue -- theft. A thief is a thief." The Florida Bar v. Kinsella, 44 Fla. L. Weekly S14a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425241/4583102/file/sc17-55.pdf

AMENDMENT-JURY INSTRUCTIONS: Battery instructions amendment to clarify that the Defendant does not to touch the actual body of the victim for a battery to occur. In Re: Standard Jury Instructions, 44 Fla. L. Weekly S10a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425259/4583318/file/sc18-1295.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: DOJ report criticizing hair and fiber analysis is not newly discovered evidence sufficient to warrant a new trial. State v. Murray, 44 Fla. L. Weekly S3b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425242/4583114/file/sc17-707.pdf

APPEAL-CONFLICT: There is no conflict when appellate counsel and trial counsel are the same; any claims of ineffective assistance of counsel at trial are not properly raised on direct appeal. State v. Murray, 44 Fla. L. Weekly S3b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425242/4583114/file/sc17-707.pdf

AMENDMENT-JURY INSTRUCTIONS-ROBBERY: Great bodily harm does not include bruises. The alleged victim should be referred to by name, and not identified as "victim." In Re: Standard Jury Instructions, 44 Fla. L. Weekly S2a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425259/4583318/file/sc18-1295.pdf

AMENDMENT-JURY INSTRUCTIONS-DELIBERATIONS: "If a juror goes to the restroom, the deliberations should stop until the juror returns." In Re: Standard Jury Instructions, 44 Fla. L. Weekly S1b (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425261/4583342/file/sc18-1717.pdf

ATTORNEY'S FEES: Statutory qualifications in force at the time of appointment apply to designated attorneys assisting registry attorneys in capital collateral proceedings. Cartenuto v JAC, 43 Fla. L. Weekly S654a (FLA 12/20/18)

https://www.floridasupremecourt.org/content/download/425254/4583258/file/sc18-322.pdf

WITNESS TAMPERING: Witness tampering statute does not require that the state demonstrate that a witness attempted to contact law enforcement either during or after the commission of a criminal offense. Statute focuses on actus rea and mens rea. Extensive discussion of statutory interpretation rules specific intent. McCloud v. State, 43 Fla. L. Weekly S658a (FLA 12/20/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-2011.pdf

ATTORNEY'S FEES-CAPITAL COLLATERAL PROCEEDINGS: Attorney who met the requirements as a designated conflict attorney as they existed at the time is entitled to payment from J.A.C. Cartenuto v. J.A.C., 43 Fla. L. Weekly S654a (FLA 12/20/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-322.pdf

UPWARD DEPARTURE: Provision of sentencing statute which allows the court, rather than the jury, to make a finding of dangerous to the public and sentence a Defendant with fewer than 22 points to prison violates the Sixth Amendment. Brown v. State, 43 Fla. L. Weekly S653a (FLA 12/20/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-323.pdf

ARGUMENT: Prosecutor's statement that the standard for whether someone is fleeing and eluding is what a reasonable person would do is a misstatement of law; a new trial is required. Owens v. State, 44 Fla. L. Weekly D55b (4th DCA 12/19/18)

https://www.4dca.org/content/download/425096/4581743/file/173504_1709_12192018_09323403_i.pdf

MANDATORY MINIMUM-FIREARM: Mandatory minimum does not apply to conspiracy to commit armed burglary with a firearm. Rosario v. State, 44 Fla. L. Weekly D54b (4th DCA12/19/18)

https://www.4dca.org/content/download/425090/4581671/file/163360_1709_12192018_09094389_i.pdf

APPEAL-STATE: Order granting motion to vacate plea is not appealable by the state. State v. Barnes, 44 Fla. L. Weekly D48a (4th DCA 12/19/18)

https://www.4dca.org/content/download/425097/4581755/file/173607_1703_12192018_09375589_i.pdf

LIMITATION OF ACTIONS-SEXUAL BATTERY: The affidavit of the mentally retarded victim identifying the Defendant as the perpetrator of sexual battery upon her does not establish his identity for the purpose of beginning the four-year statute of limitations; only the DNA evidence tested a decade later establishes his identity. The legislature can extend the limitations period without violating the constitutional prohibition against ex post facto laws if it (a) does so before prosecution is barred by the old statute, and (b) clearly indicates that the new statute is to apply to cases pending when it becomes effective. State v. Estime, 44 Fla. L. Weekly D46a (4th DCA 12/19/18)

https://www.4dca.org/content/download/425100/4581791/file/180101_1709_12192018_09501081_i.pdf

DEFINITION-"ESTABLISH": "'Establish' means to 'to make firm or stable' and 'to put beyond doubt,' i.e. (from Black's Law Dictionary) 'to establish the president's guilt.'" State v. Estime, 44 Fla. L. Weekly D46a (4th DCA 12/19/18)

https://www.4dca.org/content/download/425100/4581791/file/180101_1709_12192018_09501081_i.pdf

HEARSAY: Because records crafted by a separate business lack the hallmarks of reliability inherent in a business's self-generated records, proponents must demonstrate not only that "the other requirements of the business records exception rule are met but also that the successor business relies upon those records and the circumstances indicate the records are trustworthy. Mere recitation of the four elements of the business records exception does not establish reliability. Sacks v. The Bank of New York Mellon, 44 Fla. L. Weekly D44a (4th DCA 12/19/18)

https://www.4dca.org/content/download/425092/4581695/file/172122_1708_12192018_09170022_i.pdf

JURORS-PEREMPTORY CHALLENGE-RACIAL DISCRIMINATION: Court must always consider the genuineness of the reason given for a peremptory challenge which is objected to as being discriminatory. Johnson v. State, 44 Fla. L. Weekly D34a (4th DCA 12/19/18)

CORPUS DELICTI: The corpus delicti cannot rest upon the confession or admission alone. Therefore, the state must introduce substantial independent evidence of corpus delicti that tends to show that the charged crimes were committed. J.J. v. State, 44 Fla. L. Weekly D25a (3rd DCA 12/19/18)

http://3dca.flcourts.org/Opinions/3D17-2492.pdf

SENTENCING-CONSIDERATIONS-REMORSE: Defendant is entitled to resentencing before a different judge when the judge considered his lack of remorse ("And the one thing I haven't heard is any remorse, just excuses.") in imposing sentence. "Although a defendant's expression of remorse and acceptance of responsibility are appropriate factors for the court to consider in mitigation of a sentence, a lack of remorse, the failure to accept responsibility, or the exercise of one's right to remain silent at sentencing may not be considered by the trial court in fashioning the appropriate sentence." Chiong-Cortes v. State, 44 Fla. L. Weekly D23b (3rd DCA 12/19/18)

http://3dca.flcourts.org/Opinions/3D17-1794.pdf

CREDIT FOR TIME SERVED-SPLIT SENTENCE: Upon sentencing the Defendant upon a violation of a probationary split sentence, the Court is required to direct the Department of Corrections to give him credit for time already served in prison. Rey v. State, 44 Fla. L. Weekly D15b (3rd DCA 12/19/18)

http://3dca.flcourts.org/Opinions/3D18-1429.pdf

SENTENCING-CONSIDERATIONS-NEW ARREST: Court may consider the facts underlying the new law violations in assessing whether to revoke community control and to tailor an appropriate sentence upon revocation. Turner v. State, 44 Fla. L. Weekly D11d (2nd DCA 12/19/18)

https://edca.2dca.org/DCADocs/2016/3474/163474_65_12192018_08403831_i.pdf

QUOTATION: "'The young man knows the rules, but the old man knows the exceptions.' Oliver Wendell Holmes, Sr. . . Dr. Holmes' wisdom underscores the fact that, sometimes, bright-line rules do not burn so brightly." Turner v. State, 44 Fla. L. Weekly D11d (2nd DCA 12/19/18)

https://edca.2dca.org/DCADocs/2016/3474/163474_65_12192018_08403831_i.pdf

POSSESSION-KNOWLEDGE: The elimination of the requirement of knowledge of the illicit nature of a controlled substance is not under the position statute unconstitutional. Manning v. State, 44 Fla. L. Weekly D11a (1st DCA 12/18/18)

https://www.1dca.org/content/download/425019/4580830/file/175141_1284_12182018_12170928_i.pdf

MANDATORY MINIMUM: Defendant may be sentenced to 30 years in prison with a 25 year minimum mandatory despite the fact that his second degree felony was not reclassified as a first-degree felony. Sentences in excess of the mandatory minimums under the 10-20-Life statute require any additional statutory authority, but the Supreme Court opinion which said this had not been decided at the time the Defendant here was sentenced, and he failed to raise the issue on appeal. A defendant whose sentence is final before an opinion interpreting a relevant sentencing statute is issued may not receive the benefit of that opinion unless it is proved that the opinion requires retroactive application. King v. State, 44 Fla. L. Weekly D9a (1st DCA 12/18/18)

https://www.1dca.org/content/download/425014/4580774/file/170929_1284_12182018_11403219_i.pdf

COLLATERAL CRIMES-SEXUAL BATTERY: Evidence of a separate sexual battery committed 24 hours earlier is admissible to show propensity. Although collateral-crime evidence of a sexual offense is admissible even if offered to show propensity, the State must still demonstrate that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Here, evidence was admissible. Whisby v. State, 44 Fla. L. Weekly D7a (1st DCA 12/18/18)

https://www.1dca.org/content/download/425012/4580750/file/163949_1284_12182018_11365927_i.pdf

DISCOVERY-EXPERT: Court erred in allowing undisclosed expert to testify when the Defendant knew of the expert, but was never put on notice that the expert had analyzed his cell phone data to determine defendant's location during the commission of the charged offense, or that the expert would offer testimony at trial refuting his alibi defense. Wilson v. State, 44 Fla. L. Weekly D3c (1st DCA 12/18/18)

https://www.1dca.org/content/download/425013/4580762/file/170809_1287_12182018_11384199_i.pdf

PAROLE: Commission is not permitted to aggravate the release date for use of firearm where the use of firearm was already included in the definition of other convictions used as aggravating elements. Williams v. Florida Commission on Offender Review, 44 Fla. L. Weekly D2c (1st DCA 12/18/18)

https://www.1dca.org/content/download/425020/4580842/file/180179_1282_12182018_12181920_i.pdf

SELF-DEFENSE-STAND YOUR GROUND: Amendment to Stand Your Ground law shifting the burden of proof applies retroactively. Mayers v. State, 43 Fla. L. Weekly D2800a (1st DCA 12/17/18)

https://www.1dca.org/content/download/424983/4580446/file/182926_1282_12172018_02585118_i.pdf

CHILD ABUSE-PARENTAL DISCIPLINE: Court did not commit fundamental error by failing to instruct the jury on the affirmative defense of parental discipline where there is no evidence that the child committed any misbehavior justifying discipline. The Child's act of trying to prevent defendant from hitting the Child's mother does not justifying whipping the child with the belt. Hall v. State, 44 Fla. L. Weekly D1b (1st DCA 12/18/18)

https://www.1dca.org/content/download/425026/4580914/file/181446_1284_12182018_12264664_i.pdf

EVIDENCE-CHARACTER: Defendant (who showed the victim into a bonfire setting his head aflame) it to present evidence of his peaceful character that is not entitled to a special instruction on peaceful character. Bass v. State, 43 Fla. L. Weekly D2787a (1st DCA 12/14/18)

https://www.1dca.org/content/download/422253/4561942/file/142449_1284_12142018_10343571_i.pdf

JUROR INTERVIEW: Court did not abuse its discretion in denying defense counsel right to interview a juror, after the verdict upon receipt of a letter indicating that she felt pressure during deliberations. Bass v. State, 43 Fla. L. Weekly D2787a (1st DCA 12/14/18)

https://www.1dca.org/content/download/422253/4561942/file/142449_1284_12142018_10343571_i.pdf

EVIDENCE-PHOTO: Court did not abuse its discretion in admitting a gruesome picture of the injuries sustained by the victim whose head had caught on fire. Bass v. State, 43 Fla. L. Weekly D2787a (1st DCA 12/14/18)

https://www.1dca.org/content/download/422253/4561942/file/142449_1284_12142018_10343571_i.pdf

RESISTING WITHOUT VIOLENCE: Defendant is properly convicted of without violence by giving a false name. There is no requirement that the Defendant be legally detained when he gave the false name. Court declines to follow prior precedent (Sauz v. State). Bass v. State, 43 Fla. L. Weekly D2787a (1st DCA 12/14/18)

https://www.1dca.org/content/download/422253/4561942/file/142449_1284_12142018_10343571_i.pdf

GUIDELINES-SCORESHEET-PRIOR CONVICTIONS: Court may not consider underlying facts in determining the existence of an analogous Florida offense. Instead, only the elements of the out-of-state crime should be considered in determining whether a conviction is analogous to a Florida crime. Appellate court will not consider burglary is analogous to Florida's burglary or was not raised in the trial court. Scott v. State, 43 Fla. L. Weekly D2784c (1st DCA 12/14/18)

https://www.1dca.org/content/download/422254/4561954/file/153134_1284_12142018_10353762_i.pdf

GAIN TIME: Statute for forfeiture of Basic Get Time does not Violate Ex Post Facto. Heard v. DOC, 43 Fla. L. Weekly D2783a (1st DCA 12/14/18)

https://www.1dca.org/content/download/422257/4561990/file/173759_1281_12142018_10430539_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to call the co-defendant as a witness. Smith v. State, 43 Fla. L. Weekly D2782a (5th DCA 12/14/18)

https://edca.5dca.org/DCADocs/2018/1153/181153_1259_12142018_08363267_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing on the claim that counsel was ineffective for discover scoresheet error prior to the entry of his plea. Edwards v. State, 43 Fla. L. Weekly D2781b (5th DCA 12/14/18)

https://edca.5dca.org/DCADocs/2018/2539/182539_1260_12142018_08510172_i.pdf

SEARCH AND SEIZURE-EXIGENT CIRCUMSTANCES: Exigent circumstances exist intervene on behalf of which is yelping and sounds as though it is being beaten. The medical emergency exception applies to animals in distress. State v Archer, 43 Fla. L. Weekly D2777a (5th DCA 12/14/18)

https://edca.5dca.org/DCADocs/2017/2423/172423_1259_12142018_08313405_i.pdf

EVIDENCE-RECORDED PHONE CALL: A secretly recorded telephone conversation between the Defendant and the Victim's mother is inadmissible. Smith v. State, 43 Fla. L. Weekly D2774a (5th DCA 12/14/18)

https://edca.5dca.org/DCADocs/2017/1228/171228_1257_12142018_08113636_i.pdf

STAND YOUR GROUND: Amendment to Stand Your Ground law which shifts burden of proof to the state applies retroactively to cases where the change in the statute occurred while the Defendant's appeal was pending. Conflict certified. Drossos v. State, 43 Fla. L. Weekly D2764b (2nd DCA 12/14/18)

https://edca.2dca.org/DCADocs/2017/0280/170280_39_12142018_08181961_i.pdf

STATEMENT OF DEFENDANT: If an accused invokes his Miranda rights but later reinitiates communication, an accused must be reminded of his or her Miranda rights. Any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. "When, as in this case, a detective persists in attempting to coax a suspect to continue the interrogation after the suspect has unequivocally invoked his right to silence, the detective is not asking harmless clarifying questions; he is violating the suspect's Miranda rights." Shelly v. State, 43. Fla L. Weekly S625a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-1195.pdf

HAZING: Felony hazing statute is not overly broad nor void for vagueness. Martin v. State, 43 Fla. L. Weekly S621b (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-200.pdf

DEATH PENALTY: Defendant is not entitled to Hurst relief where his sentence of death became final in 1993. Jones v. State, 43 Fla. L. Weekly S621a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-1098.pdf

DEATH PENALTY: Defendant is not entitled to Hurst relief when his sentence of death was unanimous. Rodriguez v. State, 43 Fla. L. Weekly S620a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-1042.pdf

STAND YOUR GROUND: Law enforcement officer is are eligible to assert Stand Your Ground immunity. State v. Peraza, 43 Fla. L. Weekly S618a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1978.pdf

STATUTORY CONSTRUCTION: "Because even a clearly discernible Legislative intent cannot change the meaning of a plainly worded statute, it would only confuse matters to focus on what the Legislature might have intended rather than what the statute actually says." State v. Peraza, 43 Fla. L. Weekly S618a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1978.pdf

DOUBLE JEOPARDY: To determine whether multiple convictions of solicitation of a minor, unlawful use of a two-way communications device, and traveling after solicitation of a minor are based upon the same conduct for purposes of double jeopardy, the reviewing court should consider only the charging document, not the evidence presented. Lee v. State, 43 Fla. L. Weekly S615a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1555.pdf

PRISON RELEASEE REOFFENDER: A Defendant who was sentenced to prison but released from jail after accruing more than one year of credit time served is not eligible for PRR sentencing. State v. Lewars, 43 Fla. L. Weekly S612a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1002.pdf

STATUTORY CONSTRUCTION: "Even where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity. State v. Lewars, 43 Fla. L. Weekly S612a (FLA 12/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1002.pdf

BURGLARY-SENTENCE ENHANCEMENT: "Burglary" includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation for purposes of enhancement/mandatory minimum under the Armed Career Criminal Act. The word "burglary," like the word "crime" itself, is ambiguous. Generic burglaries support enhancement under the ACCA. Generic burglary is an unlawful or unprivileged entry into, or remaining in, a building or other structure with intent to commit a crime. A prior state conviction does not qualify as generic burglary under the Act where the elements of the relevant state statute are broader than those of generic burglary. Categorical interpretation is used. Car burglary is not generic burglary. United States v. Stitt, No. 17-765 (US S.Ct. 12/10/18)

https://www.supremecourt.gov/opinions/18pdf/17-765_2co3.pdf

EVIDENCE: Court did not abuse discretion in allowing officer to testify that the Defendant's roommate's car was under surveillance. Sims v. State, 43 Fla. L. Weekly D2727a (1st DCA 12/10/18)

https://www.1dca.org/content/download/421831/4557497/file/171350_1284_12102018_09430135_i.pdf

DOUBLE JEOPARDY: Double Jeopardy does not preclude separate convictions for armed robbery and first degree misdemeanor petit theft. Blockburger. Petit theft requires an element - value - which robbery does not. Sims v. State, 43 Fla. L. Weekly D2727a (1st DCA 12/10/18)

https://www.1dca.org/content/download/421831/4557497/file/171350_1284_12102018_09430135_i.pdf

SELF-REPRESENTATION: Court is not required to conduct a full Faretta hearing at the start the trial or he had engaged in a full Faretta inquiry 3 months before. Elswick v. State, 43 Fla. L. Weekly D2726a (1st DCA 12/10/18)

https://www.1dca.org/content/download/421834/4557533/file/172591_1284_12102018_09574479_i.pdf

COMPETENCY: A 3 months old competency evaluation is not stale. Elswick v. State, 43 Fla. L. Weekly D2726a (1st DCA 12/10/18)

https://www.1dca.org/content/download/421834/4557533/file/172591_1284_12102018_09574479_i.pdf

APPEAL: Defendant is entitled to belated appeal the inmate mail log since he never received legal mail from the court. Mathis v. State, 43 Fla. L. Weekly D2725b (1st DCA 12/10/18)

https://www.1dca.org/content/download/421841/4557617/file/181726_1282_12102018_10153199_i.pdf

POST CONVICTION RELIEF: Guilty plea does not preclude the Defendant from asserting that his counsel was ineffective for failing to advise him that the evidence was legally insufficient to convict. Hill v. State, 43 Fla. L. Weekly D2725a (1st DCA 12/10/18)

https://www.1dca.org/content/download/421836/4557557/file/173441_1286_12102018_10020121_i.pdf

UPWARD DEPARTURE: Defendant may not be deemed a danger to the community based on his failure to cooperate in the preparation of the PSI. Johnson v. State, 43 Fla. L. Weekly D2715a (1st DCA 12/10/18)

https://www.1dca.org/content/download/421838/4557581/file/174743_1287_12102018_10042047_i.pdf

EVIDENCE-DOG TRACKING: Evidence of dog tracking is admissible. Gear v. State, 43 Fla. L. Weekly D2713c (1st DCA 12/10/18)

https://www.1dca.org/content/download/421833/4557521/file/172425_1284_12102018_09451084_i.pdf

NOVEMBER 2018

COSTS: Court may not impose costs of investigation absent a request from the State. Richards v. State, 43 Fla. L. Weekly D2709b (5th DCA 11/7/18)

https://edca.5dca.org/DCADocs/2017/2704/172704_1260_12072018_08263423_i.pdf

AMENDMENT-RULES OF JUVENILE PROCEDURE: Various amendments to the rules, including new rules on restraints on juveniles. In Re: Rules of Juvenile Procedure, Fla. L. Weekly S606a (FLA 12/6/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-174.pdf

DEATH PENALTY: Hurst penalty phase findings are not elements of capital murder, but are findings required of the jury before the court can impose a death penalty. Foster v. State, 43 Fla. L. Weekly S603a (FLA 12/6/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-860.pdf

DEATH PENALTY: 18-year-old is subject to the death penalty. Foster v. State, 43 Fla. L. Weekly S603a (FLA 12/6/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-860.pdf

OPINION: Officer may give his opinion that the substance in question is marijuana based on his experience, personal knowledge, sensory perceptions and everyday reasoning. M.G. v. State, 43 Fla. L. Weekly D2698c (3rd DCA 12/5/18)

http://www.3dca.flcourts.org/Opinions/3D18-1531.pdf

APPEAL-BOLSTERING: Claim of improper bolstering is not preserved absent objection. Graham v. State, 43 Fla. L. Weekly D2690a (2nd DCA 12/5/18)

https://edca.2dca.org/DCADocs/2017/1955/171955_65_12052018_09005432_i.pdf

APPEAL-VOP-JURISDICTION-EXPIRATION: State may not argue on appeal that Court erred in dismissing VOP for lack of jurisdiction where the error was not preserved by specific objection. Argument that Court failed to exercise jurisdiction it had is not a valid basis for an appeal. State v. Williams, 43 Fla. L. Weekly D2688d (1st DCA 12/5/18)

https://www.1dca.org/content/download/413638/4113023/file/171581_1284_12052018_08472135_i.pdf

LIFE SENTENCE-MINOR: Atwell is no longer good law. Minor who is sentenced to a lengthy term of imprisonment with possibility of parole is not entitled to a sentence review after 25 years. Stafford v. State, 43 Fla. L. Weekly D2688a (4th DCA 12/5/18)

https://www.4dca.org/content/download/413646/4113123/file/131532_1257_12052018_09041892_i.pdf

MINOR-25 YEAR MANDATORY MINIMUM: Minor who discharges a firearm is subject to a 25 year minimum mandatory, that is entitled to a sentence review after 20 years. State v. Wright, 43 Fla. L. Weekly D2685b (4th DCA 12/5/18)

LESSER INCLUDED: It is fundamental error to fail to instruct the jury on attempted manslaughter by act as a necessary lesser included offense of first-degree murder with the defendant is convicted of attempted second-degree murder. Roberts v. State, 43 Fla. L. Weekly D2685a (4th DCA 12/5/18)

HEARSAY-EXCITED UTTERANCE: Defendant's statement "I've just been attacked, call the police," is admissible as an excited utterance through the Defendant and an independent witness. Mere fact that a statement is self-serving is not, in and of itself, sufficient basis for excluding such statements from evidence. "Spontaneous statement" and "excited utterance" distinguished. Hinck v. State, 43 Fla. L. Weekly D2681c (4th DCA 12/5/18)

HEARSAY: Hearsay statements to establish the state of mind of the nontestifying witness (a third-party who supposedly talked about getting someone to "put a cap" in one of the neighbor's backsides and that she was going to send someone to "whoop his a**" or "f*** him up.") is not admissible to establish the state of mind of the Defendant. Rodriguez v. State, 43 Fla. L. Weekly D2697a (3rd DCA 12/4/18)

http://www.3dca.flcourts.org/Opinions/3D15-2339.op2.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to call witnesses. Brumfield v. State, 43 Fla. L. Weekly D2679d (5th DCA 11/30/18)

https://edca.5dca.org/DCADocs/2018/1609/181609_1259_11302018_09382971_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for advising him not to testify. The fact that the defendant had a prior conviction and that he freely and voluntarily decided not testify is not dispositive. Hodges v. State, 43 Fla. L. Weekly D2678a (5th DCA 11/30/18)

https://edca.5dca.org/DCADocs/2018/1671/181671_1259_11302018_09402990_i.pdf

NEWLY DISCOVERED EVIDENCE: Court erred in finding that a witnesses affidavit containing exculpatory evidence recanted testimony is inherently not credible without taking evidence. Mitchell v. State, 43 Fla. L. Weekly D2674b (5th DCA 11/30/18)

https://edca.5dca.org/DCADocs/2017/2370/172370_1259_11302018_09161873_i.pdf

PTI: Defendant is not entitled to drug PRI over State's objection when he is neither diagnosed with a drug problem nor entered into a program for at least one. State v. Frank, 43 Fla. L. Weekly D2673a (5th DCA 11/30/18)

https://edca.5dca.org/DCADocs/2018/1374/181374_1255_11302018_09270894_i.pdf

SELF-DEFENSE-STAND YOUR GROUND: Change to Stand Your Ground law switching the burden of proof to the state to prove no entitlement to evidence applies retroactively. Boston v. State, 43 Fla. L. Weekly D2670b (1st DCA 11/30/18)

https://www.1dca.org/content/download/413269/4109957/file/175190_1286_11302018_09453812_i.pdf

SENTENCING-MINOR: Life sentence for a minor convicted of attempted murder with a firearm is lawful, but Defendant is entitled to review hearing after 20 years. Williams v. State, 43 Fla. L. Weekly D2670a (1st DCA 11/30/18)

https://www.1dca.org/content/download/413268/4109945/file/174978_1286_11302018_09445142_i.pdf

SEARCH AND SEIZURE-REASONABLE SUSPICION: Flight may justify an investigatory stop based on reasonable suspicion of criminal activity when combined with some additional factors, such as presence in a high crime area. Channell v. State, 43 Fla. L. Weekly D2665a (1st DCA 11/30/18)

https://www.1dca.org/content/download/413267/4109933/file/174966_1284_11302018_09435949_i.pdf

SEARCH AND SEIZURE-PROTECTIVE SWEEP: Protective sweep of the inside of a hotel room after the Defendant ran away is justified where the officers had previously received information that there were large quantities of drugs and firearms and people in the room, including one who had a warrant, and where the door was left open. Channell v. State, 43 Fla. L. Weekly D2665a (1st DCA 11/30/18)

https://www.1dca.org/content/download/413267/4109933/file/174966_1284_11302018_09435949_i.pdf

SENTENCING-CONSECUTIVE: Once multiple sentences from a single criminal episode are enhanced through the habitual offender statute, the total penalty cannot be further increased by consecutive sentencing absent specific legislative authorization, but where sentences do not do not exceed the normal statutory maximum, they may be imposed consecutively. Bennett v. State, 43 Fla. L. Weekly D2661a (1st DCA 11/30/18)

https://www.1dca.org/content/download/413258/4109825/file/164184_1284_11302018_09125796_i.pdf

INVITED ERROR: Court did not err in giving a standard principal instruction without limiting it to the crime charged where the defendant did not ask for limiting instruction and agreed to the instruction. Error, if any, is invited. Bennett v. State, 43 Fla. L. Weekly D2661a (1st DCA 11/30/18)

https://www.1dca.org/content/download/413258/4109825/file/164184_1284_11302018_09125796_i.pdf

MOTION FOR NEW TRIAL: Motions for judgment of acquittal and motions for new trial are decided under different standards, the former test reviewing the sufficiency of the evidence and the latter requiring the court to weigh the evidence and determine credibility just as a juror would. Jenkins v. State, 43 Fla. L. Weekly D2660b (1st DCA 11/30/18)

https://www.1dca.org/content/download/413259/4109837/file/164324_1284_11302018_09134263_i.pdf

INDEPENDENT ACT: Defendant is not entitled to an instruction on independent act in murder case where the common plan was to rob and kidnap the victim for ransom and it was recently foreseeable that someone could be shot or killed during the events. Kitt v. State, 43 Fla. L. Weekly D2660a (1st DCA 11/30/18)

https://www.1dca.org/content/download/413257/4109813/file/145700_1284_11302018_09121501_i.pdf

MANDATORY MINIMUM-CONSECUTIVE: Crimes stemming from a single criminal episode involving a single victim or a single injury may not be sentenced consecutively Nieves v. State, 43 Fla. L. Weekly D2659b (1st DCA 11/30/18)

https://www.1dca.org/content/download/413263/4109885/file/172450_1286_11302018_09180682_i.pdf

EVIDENCE-STATEMENT OF DEFENDANT-OPENING DOOR: Defendant opened the door to his refusal to submit to DNA sample at a prearrest interview when defense counsel asked investigator whether there was any evidence, including DNA, other than the victim's allegation, knowing that there had been in motion in limine about the DNA test. Madison v. State, 43 Fla. L. Weekly D2658a (1st DCA 11/30/18)

https://www.1dca.org/content/download/413260/4109849/file/170741_1284_11302018_09141827_i.pdf

POST CONVICTION RELIEF: Trial counsel is not ineffective where a strategic decision is made to introduce a defendant's statements with the goal of negating or reducing the defendant's culpability. Campbell v. State, 43 Fla. L. Weekly S593a (FLA 11/29/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1725.pdf

POST CONVICTION RELIEF: Public Defender does not have an obligation to contact defendant charged with murder to prevent him from making statements before he is appointed to the case. Campbell v. State, 43 Fla. L. Weekly S593a (FLA 11/29/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1725.pdf

POST CONVICTION RELIEF: Defendant is not entitled to new trial where prosecutor whispered about the defendant, "What a manipulative ass," when there is no evidence that any juror heard the comment. "We remind all attorneys to be cognizant of any spoken comments and to always maintain decorum in the courtroom. The statement by the prosecutor here was completely inappropriate." Campbell v. State, 43 Fla. L. Weekly S593a (FLA 11/29/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1725.pdf

SEARCH WARRANT: Due process requires that the Defendant be given an unredacted search warrant and the application for it. The press is also entitled to copies of the search warrant application. State v. Wooten, 43 Fla. L. Weekly D2648a (4th DCA 11/28/18)

https://www.4dca.org/content/download/413058/4107889/file/182636_1703_11282018_10134250_i.pdf

DUI-BLOOD TEST: The provisions of the implied consent law do not apply to the Defendant voluntarily consents to blood test. State v. Meyers, 43 Fla. L. Weekly D2647b (4th DCA 11/28/18)

https://www.4dca.org/content/download/413051/4107805/file/180010_1709_11282018_09474456_i.pdf

SENTENCING-SCORESHEET: Court erred in including on scoresheet offenses committed more than 10 years before the commission of the primary offense. Any uncertainty the scoring of an offender's prior record must be resolved in favor of the offender. Powers v. State, 43 Fla. L. Weekly D2641a (4th DCA 11/28/18)

https://www.4dca.org/content/download/413046/4107745/file/171652_1709_11282018_09171912_i.pdf

VOCABULARY: The word "absconsion" is used in this opinion (second time this year). "Allowing the State another opportunity to determine whether any other unknown evidence of absconsion exists and to introduce it at another hearing would give it a second bite at the apple." Powers v. State, 43 Fla. L. Weekly D2641a (4th DCA 11/28/18)

https://www.4dca.org/content/download/413046/4107745/file/171652_1709_11282018_09171912_i.pdf

FYI: "The amphibian Rana sevosa is popularly known as the 'dusky gopher frog'-'dusky' because of its dark coloring and 'gopher' because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body." Weyerheauser v. US Fish and Wildlife, Case No. 17-71 (US S. Ct. 11/27/18)

https://www.supremecourt.gov/opinions/18pdf/17-71_omjp.pdf

GRAMMAR: "Adjectives modify nouns-they pick out a subset of a category that possesses a certain quality." Weyerheauser v. US Fish and Wildlife, Case No. 17-71 (US S. Ct. 11/27/18)

https://www.supremecourt.gov/opinions/18pdf/17-71_omjp.pdf

CONDITIONAL RELEASE-- INTERNET ACCESS: Parole Commission has authority to impose special conditions of conditional release not limited to those provided by statute. Burnsed v. Florida Commission of Offender Review, 43 Fla. L. Weekly D2601c (1st DCA 11/27/18)

AMENDMENT-JURY INSTRUCTIONS: New definition for curtilage. In Re: Standard Jury Instructions, 43 Fla. L. Weekly S581a (FLA 11/21/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-1131.pdf

AMENDMENT-JURY INSTRUCTIONS: New instruction that "great bodily harm" does not include mere bruises. In Re: Standard Jury Instructions, 43 Fla. L. Weekly S581a (FLA 11/21/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-1131.pdf

AMENDMENT-JURY INSTRUCTIONS-SELF-DEFENSE: Self-defense instruction is clarified. New instructions are added pertaining to prior acts of violence by victim known by the Defendant. In Re: Standard Jury Instructions, 43 Fla. L. Weekly S580a (FLA 11/21/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1822.pdf

CREDIT FOR TIME SERVED: Absent execution of an arrest warrant, a defendant who is in jail in another county need not be given credit for time served and that county when the 2nd county has only lodged the detainer against him. Naeser v. State, 43 Fla. L. Weekly D2600e (4th DCA 11/21/18)

https://www.4dca.org/content/download/412816/4105334/file/180803_1257_11212018_08571323_i.pdf

ADMINISTRATIVE PROBATION: Only the Department of Corrections can transfer a probationer to administrative probation and only upon the satisfactory completion of half the term of probation. Court cannot do so. State v. Thomas, 43 Fla. L. Weekly D2600b (4th DCA 11/21/18)

https://www.4dca.org/content/download/412824/4105430/file/181369_1709_11212018_09012676_i.pdf

SEARCH AND SEIZURE-CELL PHONE: Accessing historical cell phone location information constitutes a search under the Fourth Amendment requiring a warrant and probable cause. Ferrari v. State, 43 Fla. L. Weekly D2593b (4th DCA 11/21/18)

https://www.4dca.org/content/download/412798/4105113/file/140464_1709_11212018_08434174_i.pdf

DISCOVERY VIOLATION: Neglecting to disclose the substance of a codefendant's statements as well as the existence of exculpatory statements by another witness until mid trial constituted a discovery violation. The ability the Defendant to depose witnesses does not absolve the State of its obligation to disclose witness statements. Ferrari v. State, 43 Fla. L. Weekly D2593b (4th DCA 11/21/18)

https://www.4dca.org/content/download/412798/4105113/file/140464_1709_11212018_08434174_i.pdf

APPEAL: Claim that counsel was ineffective for failure to call an expert witness about his susceptibility to police coercion resulting in his confession is not plain on the face of the record warranting relief on direct appeal. Telisme v. State, 43 Fla. L. Weekly D2593a (4th DCA 11/21/18)

https://www.4dca.org/content/download/412801/4105154/file/172320_1257_11212018_08445970_i.pdf

EVIDENCE-COLLATERAL CRIMES: Court erred in allowing evidence of a prior burglary of the same residence allegedly committed by the child 2 weeks before. A new hearing is required. M.P. v. State, 43 Fla. L. Weekly D2574a (3rd DCA 11/21/18)

http://3dca.flcourts.org/Opinions/3D18-0344.pdf

VOP: Court cannot find that the Defendant violated probation by being in constructive possession of marijuana and a firearm based on him being in the car with other people, but hr Court may find him in violation by associating with persons engaged in criminal activity. Towns v. State, 43 Fla. L. Weekly D2572a (3rd DCA 11/21/18)

http://3dca.flcourts.org/Opinions/3D17-0686.pdf

COUNSEL-WAIVER: Where trial court went out of its way to make multiple inquiries into defendant's decision to proceed pro se and each time, defendant declined, the Defendant made a knowing and intelligent waiver of his Sixth Amendment right to counsel. Wilson v. State, 43 Fla. L. Weekly D2571a (3rd DCA 11/21/18)

http://3dca.flcourts.org/Opinions/3D15-2653.pdf

SEXUAL BATTERY BY MULTIPLE PERPETRATORS-JURY INSTRUCTION: Defendant waived any claim that court erred by not giving a jury instruction on unnatural and lascivious act as permissive lesser included for the specific claim was not asserted until after the trial. Calhoun v. State, 43 Fla. L. Weekly D2569a (1st DCA 11/20/18)

https://www.1dca.org/content/download/412748/4104723/file/164812_1286_11202018_09381918_i.pdf

INFORMATION-DEFECT: Information was erroneous where information charged defendant with killing an "unborn child" rather than "viable fetus," but any such technical deficiency is waived if not objected to before the State rested's case. Huckaba v. State, 43 Fla. L. Weekly D2566a (1st DCA 11/20/18)

https://www.1dca.org/content/download/412751/4104752/file/170502_1284_11202018_09404426_i.pdf

EVIDENCE: Court may allow the admission of the Defendant's Facebook post ("Tomorrow I will be taking a very long, forced hiatus. To be specific, very likely ten years.") but may exclude his explanation for the post on the grounds that the explanation references plea negotiations, or any error would be harmless. Cooper v. State, 43 Fla. L. Weekly D2565b (1st DCA 11/20/18)

https://www.1dca.org/content/download/412757/4104804/file/171622_1284_11202018_09563685_i.pdf

DWLS: "Learner's permit" is a license for the purpose of DWLS as opposed to NVDL. Floyd V. State, 43 Fla. L. Weekly D2565a (1st DCA 11/20/18)

https://www.1dca.org/content/download/412758/4104816/file/181157_1284_11202018_09571914_i.pdf

SENTENCING-MINOR: Minor Defendant serving a fifty-four year sentence for shooting LEO is entitled to resentencing under the juvenile sentencing provisions. Baker, IV v. State, 43 Fla. L. Weekly D2557b (5th DCA 11/16/18)

https://edca.5dca.org/DCADocs/2013/1249/131249_1260_11162018_08270528_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that the plea was involuntary due to counsel's failure to investigate a prescription defense. An attorney's failure to investigate a factual defense resulting in a plea is facially sufficient ground to vacate the plea. Minix v. State, 43 Fla. L. Weekly D2556b (5th DCA 11/16/18)

https://edca.5dca.org/DCADocs/2018/1432/181432_1259_11162018_09003974_i.pdf

POST CONVICTION RELIEF: When defendant files a motion for relief from judgment under Rule 1.540, the court should treat the motion as if it were filed under Rule 3.850. Duncan v. State, 43 Fla. L. Weekly D2555a (5th DCA 11/16/18)

https://edca.5dca.org/DCADocs/2018/2486/182486_1260_11162018_09050092_i.pdf

ATTEMPTED SEXUAL BATTERY-OVERT ACT: Defendant who travels to meet a juvenile with the intent of having sex with her commits an overt act sufficient to support the crime of attempted sexual battery. Prior precedent receded from. Berger v. State, 43 Fla. L. Weekly D2554b (5th DCA 11/16/18)

https://edca.5dca.org/DCADocs/2017/1313/171313_1257_11162018_08344644_i.pdf

POST CONVICTION RELIEF-INTELLECTUAL DISABILITY: Claim of intellectual disability must be raised within 2 years of conviction becoming final. Harvey v. State, 43 Fla. L. Weekly S575a (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-790.pdf

JUDGE-DISQUALIFICATION: Disqualification is required where judge was an assistant state attorney during the time of Defendant's prosecution and handled capital prosecutions for the State at the time. Reed v. State, 43 Fla. L. Weekly S574a (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-896.pdf

AMENDMENT-JURY INSTRUCTIONS: Unnatural and Lascivious Act is added to the table of lesser-included offenses as a Category Two lesser offense if the sexual activity involved something other than penile-vaginal sexual intercourse (or contact). In re: Standard Jury Instructions in Criminal Cases, 43 Fla. L. Weekly S573a (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-1113.pdf

DEATH PENALTY: Defendant is not entitled to relief from death penalty where sentence of death became final in 1997. Mungin v. State, 43 Fla. L. Weekly S572a (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-815.pdf

JUDGE-DISCIPLINE: Judges discipline for submitting a character reference letter on official stationery for a defendant for use in a sentencing hearing in federal court. Inquiry Concerning a Judge (Deborah White-Labora), 43 Fla. L. Weekly S571a (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-950.pdf

JUDGE DISQUALIFICATION: Facebook "friendship," standing alone, is insufficient to warrant disqualification. Law Offices of Herssein and Herssein v. United Services Automobile Association, 43 Fla. L. Weekly S565b (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1848.pdf

QUOTATION: "Judges do not have the unfettered social freedom of teenagers." Law Offices of Herssein and Herssein v. United Services Automobile Association, 43 Fla. L. Weekly S565b (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1848.pdf

DEFINITION-FRIEND: "Friend" defined and discussed. Law Offices of Herssein and Herssein v. United Services Automobile Association, 43 Fla. L. Weekly S565b (FLA 11/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1848.pdf

SEARCH AND SEIZURE-RESIDENCE: Officers may conduct a protective sweep of a house after reports of the firing, the smell of gunpowder in the house, in fear that someone inside may be injured, but the further enter into the home to secure the crime scene is unlawful. Defendant consented to search of the home, but the consent was limited to certain rooms. Any further suearch was unlawful. Aguilar v. State, 43 Fla. L. Weekly D2545c (2nd DCA 11/14/18)

https://edca.2dca.org/DCADocs/2017/4086/174086_39_11142018_08204901_i.pdf

RESENTENCING: When defendant successfully challenged imposition of fine on the ground that it was not orally pronounced, Court may not reimpose the fine without the defendant being present. Darwin v. State, 43 Fla. L. Weekly D2542a (2nd DCA 11/14/18)

https://edca.2dca.org/DCADocs/2017/0618/170618_39_11142018_08164478_i.pdf

PLEA WITHDRAWAL-DEPORTATION: Two-year limitations period for filing a motion to withdraw plea for failure of the trial court to advise a defendant that the plea could result in deportation commences when the judgment and sentence become final unless the defendant could not, with the exercise of due diligence, have ascertained within the two-year period that he or she was subject to deportation. Rodnez v. State, 43 Fla. L. Weekly D2541a (3rd DCA 11/14/18)

http://3dca.flcourts.org/Opinions/3D18-1948.pdf

SELF-DEFENSE-JURY INSTRUCTION: Erroneous instruction placed burden upon the defendant to prove self-defense is fundamental error and not waived by defense counsel's affirmative acceptance of the erroneous instruction. Silva v. State, 43 Fla. L. Weekly D2538a (3rd DCA 11/14/18)

http://3dca.flcourts.org/Opinions/3D17-1054.rh.pdf

HABEAS CORPUS-JURISDICTION: Petition for Habeas Corpus must be filed and the court where the sentencing error occurred, not in the place where the Defendant is imprisoned. Peoples v. State, 43 Fla. L. Weekly D2533b (3rd DCA 11/14/18)

http://3dca.flcourts.org/Opinions/3D18-0693.pdf

COMPETENCY: Court must hold competency hearing where issue was raised previously. Ramsey v. State, 43 Fla. L. Weekly D2530a (4th DCA 11/14/18)

https://www.4dca.org/content/download/411891/3703149/file/180034_1705_11142018_09325649_i.pdf

STATEMENTS OF DEFENDANT: Defendant does not invoke his right to attorney by thinking out loud about the possibility of retaining an attorney. Joseph v. State, 43 Fla. L. Weekly D2528a (4th DCA 11/14/18)

https://www.4dca.org/content/download/411890/3703140/file/171651_1257_11142018_09300998_i.pdf

SENTENCING-CONSIDERATIONS: Re-sentencing required where the court considered the Defendant's lack of remorse in imposing sentence. ("I believe that this was a cold-blooded killing, resulted in the death of Berno Charlemond on Christmas Eve in the Boynton Beach Mall in 2006, a crime for which the jury found you guilty and of which you've shown no remorse for."). Pierre v. State, 43 Fla. L. Weekly D2526a (4th DCA 11/14/18)

https://www.4dca.org/content/download/411888/3703122/file/163863_1708_11142018_09230168_i.pdf

TRESPASS IN CONVEYANCE: Child is guilty of trespassing in a conveyance based on him found hiding in a stolen vehicle only when he knew or should have known that the vehicle was stolen. "Of course, just as there are many reasons why a juvenile might flee from law enforcement, those reasons would apply to hiding as well. If fleeing is insufficient to establish the knowledge element, then so too is hiding." T.A.K. v. State, 43 Fla. L. Weekly D2516a (2nd DCA 11/9/18)

https://edca.2dca.org/DCADocs/2017/3378/173378_39_11092018_08123281_i.pdf

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL: Appellate counsel is ineffective for not arguing on appeal that the Court should have discharged trial counsel when he took a position adverse to the Defendant's desire to withdraw his plea. Hernandez v. State, 43 Fla. L. Weekly (2nd DCA 11/9/18)

https://edca.2dca.org/DCADocs/2018/1875/181875_405_11092018_08205408_i.pdf

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN: Defendant cannot be sentenced as a VFOSC on the basis of a plea agreement where he is not on probation at the time of the offense and otherwise lacks a qualifying offense. Hernandez v. State, 43 Fla. L. Weekly (2nd DCA 11/9/18)

https://edca.2dca.org/DCADocs/2018/1875/181875_405_11092018_08205408_i.pdf

JUDGE-DISQUALIFICATION: Judge is disqualified from hearing traffic cases after instructing hearing officer to be less lenient and that he believed drivers in his county were aggressive, and after the Judge reassign several cases to his docket after the attorney in those cases had requested copy of the email communications between the hearing officer, Judge, and Deputy clerk. Pena v. State, 43 Fla. L. Weekly D2508a (2nd DCA 11/9/18)

https://edca.2dca.org/DCADocs/2017/4465/174465_167_11092018_08135919_i.pdf

DEATH PENALTY: Death penalty is unconstitutional where recommendation of death is not unanimous. Tisdale v. State, 43 Fla. L. Weekly S560a (FLA 11/8/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-1032.pdf

DOUBLE JEOPARDY-DEATH PENALTY: Double Jeopardy does not bar a new penalty phase trial upon a Hurst remand wearing nonunanimous recommendation of death was permitted at the time of the 1st trial. Tisdale v. State, 43 Fla. L. Weekly S560a (FLA 11/8/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-1032.pdf

DEATH PENALTY: Defendant's sentence became final prior to Ring is not entitled to Hurst relief. Spencer v. State, 43 Fla. L. Weekly S558a (FLA 11/8/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1269.pdf

MINOR-SENTENCING: 1000 year sentence for a nonhomicide committed by a juvenile does not violate the 8th Amendment, which requires that the juvenile have some meaningful opportunity to obtain release during his natural life where the defendant is eligible for parole (Pariente, dissenting, "The earliest Franklin could be released from prison based on existing parole guidelines is 2352 -- 369 years after his crimes."). Atwell was incorrectly reasoned. Franklin v. State, 43 Fla. L. Weekly S556b (FLA 11/8/18)

http://www.floridasupremecourt.org/decisions/2018/sc14-1442.pdf

HARASSING A POLICE DOG: "Is the statute directed to a person who maliciously harasses or teases a police dog? Or is it directed to a person who maliciously harasses or maliciously teases a police dog?" Teasing a police dog is OK if you do not do it maliciously. "[W]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all." The word "maliciously" modifies each of the words in the series that follows it. R.N. v. State, 43 Fla. L. Weekly D2503a (4th DCA 11/8/18)

ADVERB-APPLICABILITY-MALICIOUSLY: "Maliciously" means "ill will, hatred, spite, [or] an evil intent." R.N. v. State, 43 Fla. L. Weekly D2503a (4th DCA 11/8/18)

STATUTORY INTERPRETATION: "If the law was defined by the intent of the legislature, the law may be known only in the mind of the legislators. Which, of course, leads to another question: which legislator's mind would we use to determine the intent of the legislative body?" R.N. v. State, 43 Fla. L. Weekly D2503a (4th DCA 11/8/18)

COSTS-PUBLIC DEFENDER FEE: Court may not order public defender fee in excess of $100.00 absent evidence. Coffee v. State, 43 Fla. L. Weekly D2502c (4th DCA 11/7/18)

POST CONVICTION RELIEF: When Defendant files a motion for postconviction relief within 2 years, and court fails to take action on the motion, the Defendant is free to amend the motion where he does not allege claims. Depasquale v. State, 43 Fla. L. Weekly D2502b (4th DCA 11/7/18)

SENTENCING-SCORESHEET-PENETRATION: Scoresheet improperly includes victim injury points for sexual penetration for the offense to which the defendant pled did not require proof penetration as charged in defendant did not stipulate that penetration occurred. Alexis v. State, 43 Fla. L. Weekly D2501 (4th DCA 11/7/18)

MINOR-RESENTENCING: Sentencing order must include language that the Defendant is eligible for periodic review of his sentence for capital murder after 25 years. James v. State, 43 Fla. L. Weekly D2501 (4th DCA 11/11/18)

JUVENILE-FIREARM-MANDATORY MINIMUM 15 DAYS: Juvenile who was involved in a crime which involve the use of a weapon is subject to the 15 day minimum mandatory regardless of whether he handled the weapon, even if his involvement was only that of a lookout. Juvenile is also subject to a minimum of 100 hours of community service. State v. I.J., 43 Fla. L. Weekly D2495c (4th DCA 11/7/18)

LIFE SENTENCE: Defendant who was an adult at the time of the offense but who claims to have the mentality of the juvenile is not immune from a life sentence. Hegstrom v. State, 43 Fla. L. Weekly D2495b (3rd DCA 11/7/18)

http://3dca.flcourts.org/Opinions/3D17-2669.pdf

ROBBERY: Robbery can be established by proof that force was used to retain the victim's property once it has been taken. Jimenez v. State, 43 Fla. L. Weekly D2495a (3rd DCA 11/7/18)

http://3dca.flcourts.org/Opinions/3D16-2705.pdf

MISTRIAL-APPEAL: Defendant cannot raise on appeal the issue of improper questioning of the Defendant by the state ("And you're trying to hustle this jury. . . You're trying to hustle them. . .like you tried to hustle Martin Sprung.; isn't that right?. . .[B]ecause I'm not going to let you hustle this jury.") where he raised different grounds for his motion for mistrial. Charles v. State, 43 Fla. L. Weekly D2493a (3rd DCA 11/7/18)

http://3dca.flcourts.org/Opinions/3D17-0361.pdf

APPEAL: Circuit Court acting appellate capacity should have included in its review viewing the videotape which the County Court used to base its factual finding that it contradicted the defendant's testimony. Circuit Court was incorrect in finding that it was legally barred tape. Fleming v. State, 43 Fla. L. Weekly D2492b (3rd DCA 11/7/18)

http://3dca.flcourts.org/Opinions/3D18-1647.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing on the claim that counsel was ineffective for failing to relay the State's plea offer to him. Bush v. State, 43 Fla. L. Weekly D2490a (1st DCA 11/7/18)

https://edca.1dca.org/DCADocs/2017/2476/172476_1286_11072018_08151998_i.pdf

INFORMATION-AMENDMENT: Defendant is not prejudiced by amendment to the information the day before trial upgrading the charge from attempted burglary to burglary with the body of the information didn't change the defendant was on notice that he was being tried for a completed burglary. Williams v. State, 43 Fla. L. Weekly D2489a (1st DCA 11/7/18)

https://edca.1dca.org/DCADocs/2017/1519/171519_1284_11072018_08142777_i.pdf

DICTIONARY: "'[A]lso' is a term of enhancement; it means 'in addition; besides' and 'likewise; too.'" Mount Lemmon Fire District v. Guido, Case No 17-587 (US S. Ct. 11/6/18)

https://www.supremecourt.gov/opinions/18pdf/17-587_n7ip.pdf

JURORS-PEREMPTORY CHALLENGE-RACE: The potential juror's criminal record and failure to answer certain questions is a valid race neutral reason to exercise a peremptory challenge. Williams v. State, 43 Fla. L. Weekly D2477a (1st DCA 11/6/18)

MINOR-LIFE SENTENCE: Defendant who is charged with attempted murder for crime committed as a juvenile and sentenced to life in prison with a 25 year minimum mandatory is entitled to a sentence review after serving 25 years. Hurst v. State, 43 Fla. L. Weekly D2476b (1st DCA 11/6/18)

https://edca.1dca.org/DCADocs/2017/2935/172935_1284_11062018_11074158_i.pdf

SENTENCING-SEXUAL BATTERY ON CHILD: When Defendant's age is not in dispute there is no error in failing to instruct the jury on that element). Scott v. State, 43 Fla. L. Weekly D2475a (1st DCA 11/6/18)

https://edca.1dca.org/DCADocs/2017/2992/172992_1284_11062018_11090104_i.pdf

NAME: Court must hold a hearing on Defendant's motion to correct record relating to his correct name (Orlando Rodriguez, not Roberto Rodriguez). Rodriguez v. State, 43 Fla. L. Weekly D2468a (3rd DCA 11/6/18)

http://3dca.flcourts.org/Opinions/3D18-1582.pdf

FAILURE TO APPEAR: Court must afford Defendant at hearing on his motion to set bond determine whether his FTA was willful. Haggan v. State, 43 Fla. L. Weekly D2467d (5th DCA 11/5/18)

https://edca.5dca.org/DCADocs/2018/3267/183267_1255_11052018_02095147_i.pdf

COMPETENCY : Court must conduct a hearing and enter a written order after ordering a competency evaluation. Parcilla v. State, 43 Fla. L. Weekly D2465a (5th DCA 11/2/18)

https://edca.5dca.org/DCADocs/2017/2980/172980_1260_11022018_08222299_i.pdf

POST CONVICTION RELIEF : A restitution order is not a sentencing error cognizable in a rule 3.800(b) motion. Davis v. State, 43 Fla. L. Weekly D2464a (5th DCA 11/2/18)

https://edca.5dca.org/DCADocs/2018/0103/180103_1260_11022018_08283849_i.pdf

CONFRONTATION : Statements made by victim during a 911 call do not violate Defendant's right of confrontation, as the statements are made during an ongoing emergency and are thus nontestimonial. Statements made by the victim to responding officers, when there was no ongoing emergency, which described past events and were part of an investigation into crime are testimonial and subject to the requirements of the Confrontation Clause. Raymond v. State, 43 Fla. L. Weekly D2460e (5th DCA 11/2/18)

https://edca.5dca.org/DCADocs/2017/2759/172759_1260_11022018_08183888_i.pdf

HEARSAY : Statements made by victim to police officers upon the arrival of the scene are hearsay. Raymond v. State, 43 Fla. L. Weekly D2460e (5th DCA 11/2/18)

https://edca.5dca.org/DCADocs/2017/2759/172759_1260_11022018_08183888_i.pdf

MINOR-LIFE SENTENCE : Life sentence with possibility of parole after 25 years does not violate Graham. State v. Michel, 43 Fla. L. Weekly S551b (FLA 11/12/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-2187-Corrected.pdf

MANSLAUGHTER-RECLASSIFICATION : An automobile may be a weapon, manslaughter with an automobile may be reclassified to a first degree felony. Any object intended to inflict harm can be a weapon. Houck receded from. Shepard v. State, 43 Fla. L. Weekly S546a (FLA 11/1/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1952.pdf

EVIDENCE-RULE OF COMPLETENESS : Statutory rule of completeness does not apply unless a written or recorded statement is introduced into evidence. Defendant cannot require the recording to be admitted at the time the officer testifies to the inculpatory part of the Defendant's statement without introducing the recording. Nock v. State, 43 Fla. L. Weekly S540a (FLA 11/1/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-472.pdf

IMPEACHMENT : Where defendant invoked statutory rule of completeness to introduce exculpatory portions of his out-of-court statement, He was subject to impeachment with his prior convictions pursuant to section 90.806(1), which authorizes the impeachment of hearsay declarants. Fact that state "opened the door" to the introduction of exculpatory hearsay statements does not suspend operation of rule. Nock v. State, 43 Fla. L. Weekly S540a (FLA 11/1/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-472.pdf

RULE OF COMPLETENESS-IMPEACHMENT (DISSENT, J. Pariente ): "At the heart of this case is the concept of fairness, which is the basis for the principle of opening the door. Nock should not be forced to correct the State's misimpression of his interrogation at the cost of being impeached by highly prejudicial evidence of prior felony convictions." Nock v. State, 43 Fla. L. Weekly S540a (FLA 11/1/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-472.pdf

OCTOBER 2018

DISQUALIFICATION : Judge's attempt to refute charges of partiality in denying state's motion to disqualify created independent basis for disqualification. State v. Scharlepp, 43 Fla. L. Weekly D2459e (1st DCA 10/31/18)

https://edca.1dca.org/DCADocs/2018/1511/181511_1282_10312018_09171768_i.pdf

FARETTA : Order revoking probation is reversed where trial court failed to hold Faretta inquiry after defendant requested to represent himself. Tucker v. State, 43 Fla. L. Weekly D2459a (1st DCA 10/31/18)

https://edca.1dca.org/DCADocs/2017/0752/170752_1287_10312018_08392709_i.pdf

SENTENCING-DANGER TO COMMUNITY : Apprendi prohibits court from making the factual findings which increase possible sentence to prison where Defendant has fewer than 44 points. Coffell v. State, 43 Fla. L. Weekly D2458a (1st DCA 10/31/18)

https://edca.1dca.org/DCADocs/2017/1611/171611_1287_10312018_08463108_i.pdf

SEARCH AND SEIZURE-TRAFFIC STOP-CURTILAGE OF RESIDENCE : Warrantless canine sniff search of a vehicle in parking lot in from of mobile home is lawful. Parking area was not curtilage of defendant's mobile home. Davis v. State, 43 Fla. L. Weekly D2457a (1st DCA 10/31/18)

https://edca.1dca.org/DCADocs/2017/0941/170941_1284_10312018_08423670_i.pdf

POST CONVICTION RELIEF : A court cannot enforce a filing deadline which must be inferred by a party. Ford v. State, 43 Fla. L. Weekly D2456a (1st DCA 10/31/18)

https://edca.1dca.org/DCADocs/2017/2091/172091_1286_10312018_08501196_i.pdf

BELATED APPEAL : Defendant is not entitled to belated appeal based on the Court having failed to orally announce his right to appeal where Defendant had absconded from sentencing hearing. Shaw v. State, 43 Fla. L. Weekly D2454a (1st DCA 10/31/18)

https://edca.1dca.org/DCADocs/2018/1804/181804_1281_10312018_09245149_i.pdf

POST CONVICTION RELIEF : Claims that Court erred in failing to permit defendant to review deposition transcripts before representing himself at trial and ruling that defendant could not impeach his own witness are not cognizable pursuant to rule 3.850. Floyd v. State, 43 Fla. L. Weekly D2450a (1st DCA 10/31/18)

https://edca.1dca.org/DCADocs/2017/5007/175007_1284_10312018_09015499_i.pdf

WITNESS-CONSULTATION WITH COUNSEL : A defendant has the right to consult with his attorney during a recess even if he is on the stand. Cadivid v. State, 43 Fla. L. Weekly D2445a (4th DCA 10/31/18)

SEARCH AND SEIZURE-INVESTIGATORY STOP : Officer lacked reasonable suspicion to stop juvenile after 911 caller from a restaurant reported that drug dealers were standing on corner near her restaurant, where citizen informant did not state how she knew they were drug dealers or that she saw them selling drugs and the only other activity that she witnessed were those individuals disappearing when a police vehicle passed. J.H. v. State, 43 Fla. L. Weekly D2441a (4th DCA 10/31/18)

COSTS : Court erred in imposing public defender fee in excess of $100 statutory minimum without making factual findings as to fee amount and providing defendant with notice or opportunity to contest amount. The imposition of a public defender fee that exceeds the statutory minimum can only occur upon a showing of sufficient proof of higher fees or costs incurred. Davis v. State, 43 Fla. L. Weekly D2440a (4th DCA 10/31/18)

MOTION TO VACATE PLEA : Rule 3.850 motion seeking to vacate a plea to felony driving while license revoked as habitual traffic offender that was filed after conviction had become final and sentence was completed was untimely. Curry v. State, 43 Fla. L. Weekly D2438a (4th DCA 10/31/18)

JOA-RESISTING WITHOUT VIOLENCE : Judgment of dismissal is required because officers were not in lawful performance of duty when they received dispatch directing them to take juvenile into custody for violation of probation but state adduced no proof that juvenile was on probation or, if he was, how he had violated any of its terms. I.K. v. State, 43 Fla. L. Weekly D2433b (2nd DCA 10/31/18)

https://edca.2dca.org/DCADocs/2016/2186/162186_114_10312018_08554224_i.pdf

COMPETENCY : Court may not involuntarily commit an incompetent defendant where there is no evidence that the mental illness caused Defendant to be a danger to himself. DCF v. Tanner, 43 Fla. L. Weekly D2407a (5th DCA 10/26/18)

http://5dca.org/Opinions/Opin2018/102218/5D18-2898.op.pdf

SEARCH AND SEIZURE-INEVITABLE DISCOVERY-COMPUTER : Warrantless search of hard drive of defendant's computer was not justified under inevitable discovery when detective had probable cause but was not actively seeking a warrant. Detective calling the state attorney is not active pursuit of a warrant. "The Fourth Amendment's warrant requirement would be wholly undercut if a law enforcement officer can sidestep the requirement by making a single telephone call to a prosecutor to ask if he needs to start the process of obtaining a search warrant. The would-be audience of a search warrant affidavit is a neutral and detached magistrate, not a prosecutor." Perez v. State, 43 Fla. L. Weekly D2404f (2nd DCA 10/26/18)

https://edca.2dca.org/DCADocs/2017/2331/172331_39_10262018_08211293_i.pdf

SEARCH AND SEIZURE-CONSENT : Wife does not have authority to consent to the search of the Husband's computer. Perez v. State, 43 Fla. L. Weekly D2404f (2nd DCA 10/26/18)

https://edca.2dca.org/DCADocs/2017/2331/172331_39_10262018_08211293_i.pdf

VICTIM RIGHTS AMENDMENT : Victim Rights Amendment to the Florida Constitution may be placed on the ballot. Department of State v. Hollander, 43 Fla. L. Weekly S525a (FLA 10/25/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-1366.pdf

VICTIM RIGHTS AMENDMENT-(PARIENTE, J., dissenting.) : "[T]he ballot language for Amendment 6 fails to tell voters the full story. . .The ballot summary for Amendment 6 is misleading in numerous ways, the most concerning of which is that the proposal 'hide[s] the ball' as to its chief purposes. Amendment 6 seeks to underhandedly uproot the long-standing balance between the constitutional rights of the accused and victims. Department of State v. Hollander, 43Fla. L. Weekly S525a (FLA 10/25/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-1366.pdf

POST CONVICTION RELIEF-PARTIAL WAIVER : Defendant may make a partial waiver of postconvictionclaims while retaining the rights to assert other post conviction claims. Davisv. State, 43 Fla. L. Weekly S521a (FLA 10/25/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-7.pdf

AMENDMENTS-RULES OF PROCEDURE : 5 day mailing rule is abolished given the existence of electronic service. In Re : Amendments to the Florida Rules of CivilProcedure, 43 Fla. L. Weekly S515a (FLA 10/25/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-882.pdf

AMENDMENT-JURY INSTRUCTIONS : Miscellaneous changes to standard jury instructions. In re-Standard Jury Instructions in Criminal Cases, 43 Fla. L. Weekly S514a (FLA 10/25/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-513.pdf

AMENDMENT-RULES OF APPELLATE PROCEDURE : Uniform Citation Format system is substantially revised for all legal documents including court opinions. For recent opinion is not yet published in the Southern Reporter you must cite to the Florida Law weekly. Court and date must be cited as follows : ("Fla. 2d DCA 1988," or "Fla. Dec. 30, 2014.") In Re : Amendments to Florida Rule of Appellate Procedure 9.800, 43 Fla. L. Weekly S512a (FLA 10/25/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-999.pdf

AMENDMENT-RULES OF APPELLATE PROCEDURE : Proposal that all appeals to Circuit Court must be decided by a panel of at least three judges is deferred. When an attorney is representing more than one party in an appeal, the attorney may only file one initial or answer brief and one reply brief, that includes arguments as to all of the parties the attorney represents. In Re : Amendments to Florida Rules of Appellate Procedure, 43 Fla. L. Weekly S508c (FLA 10/25/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-152.pdf

CREDIT FOR TIME SERVED : Court erred in denying Defendant's claim that he was entitled to time spent in prison between his original sentencing date of the resentencing date because he had failed to exhaust administrative remedies. Defendant is not under any obligation to exhaust administrative remedies to get appropriate credit for time served. Rivera v. State, 43 Fla. L. Weekly D2402a (3rd DCA 10/24/18)

http://3dca.flcourts.org/Opinions/3D18-1336.pdf

JUVENILE-SENTENCE AS ADULT : When juvenile, prosecuted as an adult, was sentenced under a plea agreement to a juvenile commitment program with the agreement that if you violated the conditions of commitment he could be sentenced to prison, and thereafter incurred more charges in and after the commitment program, the Court erred in considering any matters other than those alleged in the motion to impose adult sanctions. The "Face Sheet" is inadmissible hearsay. Brown v. State, 43 Fla. L. Weekly D2398a (3rd DCA 10/24/18)

http://3dca.flcourts.org/Opinions/3D16-1787.pdf

EXPUNCTION-HUMAN TRAFFICKING : Defendant, who had been the victim of human trafficking and in the course thereof committed the offense of kidnapping, is statutorily precluded from getting and expunction of the kidnapping offense. M.G. v. State, 43 Fla. L. Weekly D2393c (3rd DCA 10/24/18)

http://3dca.flcourts.org/Opinions/3D17-1556.pdf

APPEAL-MOTION TO MODIFY : An order denying a motion to modify probation is not appealable. Jackson v. State, 43 Fla. L. Weekly D2393b (2nd DCA 10/24/18)

https://edca.2dca.org/DCADocs/2017/5039/175039_109_10242018_08250363_i.pdf

GRAND THEFT-VALUE-JOA : Testimony of grounds superintendent about missing equipment from golf resort did not satisfy criteria for proving value where he did not provide testimony about purchase price, depreciation, or replacement costs for all the items. "The application of a 'life experience' exception to any criminal statute, including the criminal theft statute, is inconsistent with the uniform system of justice that both the Florida and Federal Constitutions require and should not be left to the whim of individual jury members." Teltschik v. State, 43 Fla. L. Weekly D2393a (2nd DCA 10/24/18)

https://edca.2dca.org/DCADocs/2017/1810/171810_39_10242018_08240203_i.pdf

VIOLENT CAREER CRIMINAL : Argument that 30-year sentence for grand theft is illegal because grand theft is not an offense eligible for Violent Career Criminal sentencing is not preserved for review by objection or motion to correct in the trial court. Crews v. State, 43 Fla. L. Weekly D2392b (2nd DCA 10/24/18)

https://edca.2dca.org/DCADocs/2016/0484/160484_65_10242018_08203689_i.pdf

DOUBLE JEOPARDY : Double Jeopardy precludes convictions for theft of firearm and theft of other property any stolen vehicle because the theft of the vehicle in the contents is one act of taking. D.T. v. State, 43 Fla. L. Weekly D2392a (2nd DCA 10/24/18)

https://edca.2dca.org/DCADocs/2017/1549/171549_114_10242018_08224680_i.pdf

SEARCH AND SEIZURE-CELL PHONE PASSCODE : Compelled production of juvenile's cell phone passcodes is testimonial and prohibited by the Fifth Amendment where revealing the passcodes would require juvenile to engage in the testimonial act of utilizing the contents of his mind and demonstrating as a factual matter that he knows how to access the cell phone. G.A.Q.L. v. State, 43 Fla. L. Weekly D2389a (4th DCA 10/24/18)

APPEALS-SENTENCING-MINOR-CONSIDERATIONS : Argument that Court failed to consider 91.1402 factors in its sentence is not preserved for appeal where Defendant neither objected nor filed a motion for clarification. Dixon v. State, 43 Fla. L. Weekly D2381b (4th DCA 10/20/18)

YOUTHFUL OFFENDER : 25-year mandatory minimum sentence, rather than youthful offender sentence is proper where record does not show that the rejection of a youthful offender sentence was not part of the Court's blanket refusal to consider youthful offender status. Wallacev. State, 43 Fla. L. Weekly D2378a (4th DCA 10/24/18)

JUVENILE-ADULT SANCTIONS : Court may impose adult sanctions on juvenile prosecuted as an adult notwithstanding that DJJ only found that juvenile probation was not warranted. Dorcely v. Florida, 43 Fla. L. Weekly D2377a (4th DCA 10/24/18)

RESTITUTION : Receipts and testimony provided by victim regarding original purchase price of stolen items, unaccompanied by evidence, other than victim's replacement cost guesstimates, establishing items' fair market values, was sufficient to support amount of restitution. Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole. Toole v. State, 43 Fla. L. Weekly D2376a (4th DCA 10/24/18)

SEARCH AND SEIZURE : Officer may handcuff defendant on suspicion of shoplifting although shoplifting did not occur in officer's presence where officer had probable cause based on dispatch call and information provided by store employees. Bent v. State, 43 Fla. L. Weekly D2374a (4th DCA 10/24/18)

JUDGES-DISCIPLINE : Judge is removed from office for disparaging opposing candidate for election as someone who represents criminals (Gregg Lerman). Inquiry Concerning A Judge Re : Dana Santino, 43 Fla. L. Weekly S477a (FLA 10/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-362.pdf

DEATH PENALTY : Any Hurst error is harmless when jury unanimously recommends death. Conahan v. State, 43 Fla. L. Weekly S476a (FLA 10/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-303.pdf

ATTORNEY-DISCIPLINE : Lawyer suspended for one year for intemperate filings and other faults, e.g., "Patterson sent Judge Jose E. Martinez. . .a letter. . . comparing the alleged injustice suffered by Faddis to the biblical story of Susanna. . . .He likens 'the story' of the case he filed on behalf of Faddis to 'the story of Fidel Castro's suffocating grip of Cuba, the Holocaust, Jim Crow laws, and Hillary Clinton.'" The Florida Bar v. Patterson, 43 Fla. L. Weekly S471a (FLA 10/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-1438.pdf

INFORMATION : Defective information is not per se reversible error where Defendant was not misled or embarrassed in preparation of his defense. Cowart v. State, 43 Fla. L. Weekly D2370a (2nd DCA 10/19/18)

https://edca.2dca.org/DCADocs/2017/2820/172820_65_10192018_09231291_i.pdf

QUOTATION : "Notwithstanding the State's indefensible linguistic buckshot, we affirm." Cowart v. State, 43 Fla. L. Weekly D2370a (2nd DCA 10/19/18)

https://edca.2dca.org/DCADocs/2017/2820/172820_65_10192018_09231291_i.pdf

SENTENCING-MANDATORY MINIMUM : Court may not require "day-for-day" minimum mandatory for sale of cocaine within 1000 feet of a Public Park. The minimum mandatory does not provide for no gain time. Mobley v. State, 43 Fla. L. Weekly D2366a (5th DCA 10/19/18)

http://5dca.org/Opinions/Opin2018/101518/5D16-4340.op.pdf

PROBATION VIOLATION : Court must specify conditions violated. T.M.F. v. State, 43 Fla. L. Weekly D2365a (5th DCA 10/19/18)

http://5dca.org/Opinions/Opin2018/101518/5D17-2299.op.pdf

INCONSISTENT VERDICTS : When jury acquitted defendant of possessing a firearm during the commission of his robbery (built the lesser of defense of robbery, it is legally inconsistent for the jury to fight him guilty of aggravated battery with a deadly weapon. Error is fundamental. Aggravated Battery conviction is reduced to simple battery. Zelaya v. State, 43 Fla. L. Weekly D2353a (4th DCA 10/17/18)

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL : Counsel was ineffective for failing to seek discretionary review of consecutive mandatory minimum sentences which the trial court erroneously believed to be required. Lopez v. Junior, 43 Fla. L. Weekly D2347b (3rd DCA 10/17/18)

http://3dca.flcourts.org/Opinions/3D18-0748.pdf

SENTENCING-ABSENCE OF DEFENDANT : Court erred in resentencing Defendant in absentia and without presence of counsel with the court had discretion in determining the new sentence. Lee v. State, 43 Fla. L. Weekly D2346c (3rd DCA 10/17/18)

http://3dca.flcourts.org/Opinions/3D18-0698.pdf

COSTS : Court may not impose $100 in investigative costs of absence of request for such costs. Costs may not be reimposed on remand. Mercado v. State, 43 Fla. L. Weekly D2340a (2nd DCA 10/17/18)

https://edca.2dca.org/DCADocs/2016/5576/165576_65_10172018_09064157_i.pdf

SEARCH AND SEIZURE-EXIGENT CIRCUMSTANCES : Deputies were dispatched to investigate anonymous 911 call lacked reasonable belief that exigent circumstances existed to justify entry of a residence upon a uncivil possible domestic abuse. Minor injuries to the woman who answered the knock on the door, for which she had an explanation, is not sufficient to justify the entry. LaPace v. State, 43 Fla. L. Weekly D2338a (2nd DCA 10/17/18)

https://edca.2dca.org/DCADocs/2017/1493/171493_39_10172018_09091193_i.pdf

CLEAR AND CONVINCING EVIDENCE : Clear and convincing evidence is defined as an intermediate level of proof that entails both a qualitative and quantitative standard. The evidence must be credible; the memories of witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy. Edwards v. State, 43 Fla. L. Weekly D2345a (1st DCA 10/16/17)

https://edca.1dca.org/DCADocs/2017/3083/173083_1284_10162018_12052136_i.pdf

CONSTRUCTIVE POSSESSION : Driver does not have constructive possession cocaine found in the center console a rental car when the passenger could have placed it there while the driver was being interrogated outside the court. Jones v. State, 43 Fla. L. Weekly D2343b (1st DCA 10/16/18)

https://edca.1dca.org/DCADocs/2017/2808/172808_1287_10162018_12042248_i.pdf

DEATH PENALTY-NOTICE OF INTENT TO SEEK DEATH PENALTY : Statute requiring that state provide notice of aggravating factors within 45 days of arraignment, in addition to its notice of intent to seek death penalty, does not apply retroactively to an arraignment that occurred in 2007. Jackson v. State, 43 Fla. L. Weekly D2343a (1st DCA 10/16/18)

https://edca.1dca.org/DCADocs/2018/4109/184109_1281_10162018_12182470_i.pdf

DEATH PENALTY : Hurst does not apply to pre-Ring cases. Jones v. State, 43 Fla. L. Weekly S466a (FLA 10/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1385.pdf

EXPERT TESTIMONY-FRYE : Frye, not Daubert, is the appropriate test in Florida for determining reliability of expert testimony based upon new or novel scientific techniques. Statute providing for Daubert to be used infringes upon the Supreme Court's rulemaking powers. Delisle v. Crane Co, 43 Fla. L. Weekly S459a (FLA 10/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-2182.pdf

QUOTATION : "Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges." Delisle v. Crane Co, 43 Fla. L. Weekly S459a (FLA 10/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-2182.pdf

SPEEDY TRIAL-RECAPTURE : The State is not entitled to the recapture period where the State informed the defendant it had terminated its prosecutorial efforts (battery) but failed to notify the defendant of new and different charges (tampering with a witness and battery) based on the same conduct or criminal episode that were filed before the speedy trial period expired. Born-Suniaga v. State, 43 Fla. L. Weekly S451a (FLA 10/15/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1014.pdf

APPEALS : Appeal must be dismissed if not filed within 30 days of rendition of the order on appeal. Mere mailing of notice is not enough- the notice of appeal must be received within the 30 day time limit. Murphy v. State, 43 Fla. L. Weekly D2335a (1st DCA 10//15/18)

https://edca.1dca.org/DCADocs/2018/3526/183526_1279_10152018_03363314_i.pdf

DOUBLE JEOPARDY : Court violated double jeopardy when it modify the Defendant's sentence on a single count notwithstanding that the modification did not impact the Defendant's total sentence. Klinglerv. State, 43 Fla. L. Weekly D2334b (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2017/3173/173173_1286_10152018_03275616_i.pdf

POST CONVICTION RELIEF : Defendant is entitled to a hearing on claim that counsel was ineffective for failing to present Defendant's mother is a witness to the fact that the police told the mother that her visit with the Defendant be private. Cuomo v. State, 43 Fla. L. Weekly D2333a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2016/5091/165091_1286_10152018_03163966_i.pdf

APPEALS : State's refusal to file an answer brief unless directed to do so by appellate court constituted a forfeiture of state's right to respond to appellant's brief. Cuomo v. State, 43 Fla. L. Weekly D2333a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2016/5091/165091_1286_10152018_03163966_i.pdf

PROBATION-EXPIRATION : State's argument that trial court erred in dismissing probation violation affidavit because probationary period was tolled under statute in effect at time of defendant's original probation violation was not preserved for appellate review by specific objection. It is not fundamental error for Court to decline to exercise jurisdiction it has. State v. Flem, 43 Fla. L. Weekly D2330a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2017/1581/171581_1284_10152018_03182437_i.pdf

EVIDENCE-OPINION : It is impermissible for an investigator to testify that a case does not involve self-defense. Investigator's testimony that in his opinion the case was not self-defense is improper, but harmless in this case in which the altercation is captured on video. Thompson v. State, 43 Fla. L. Weekly D2328a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2017/2012/172012_1284_10152018_03191448_i.pdf

GUMBO : "In the summer of 2015, tempers started to simmer when Caleb Halley, a long-time employee of Buddy's Seafood Market, learned that Orando Thompson, a newer employee, added hot sauce and other seasonings to the gumbo Halley prepared earlier that day. Halley confronted Thompson about adding seasoning to the gumbo, and the argument escalated to a physical altercation outside of the market. At one point, Thompson left the fight, reentered the market, retrieved a sword on display in a backroom of the market, and returned outside to stab Halley three times in the abdomen." Thompsonv. State, 43 Fla. L. Weekly D2328a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2017/2012/172012_1284_10152018_03191448_i.pdf

SECOND DEGREE MURDER : Stabbing co-chef over gumbo evinces a depraved mind justifying second degree murder where Defendant retrieved the sword from a back room before stabbing the victim three time. Thompson v. State, 43 Fla. L. Weekly D2328a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2017/2012/172012_1284_10152018_03191448_i.pdf

LESSER INCLUDED : Court properly denied giving a jury instruction on nondeadly force when Defendant stabbed the victim in the abdomen 3 times with the sword him. Use of a sword with a fifteen-inch blade was deadly force as a matter of law because death is a natural and foreseeable consequence of slashing and stabbing another person with a sword. Thompsonv. State, 43 Fla. L. Weekly D2328a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2017/2012/172012_1284_10152018_03191448_i.pdf

HEARSAY : In pretrial hearings, hearsay evidence is generally admissible. Simmonsv. State, 43 Fla. L. Weekly D2325a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2016/5213/165213_1284_10152018_03172532_i.pdf

EVIDENCE-WILLIAMS RULE HEARING : Court did not err in allowing state to use deposition testimony of collateral-crime witnesses at pre-trial similar fact hearing. Simmons v. State, 43 Fla. L. Weekly D2325a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2016/5213/165213_1284_10152018_03172532_i.pdf

WILLIAMS RULE : Evidence of a similar robbery admissible as Williams Rule where crimes happened the same street, outside chain restaurants, in the early morning hours, within 2 days of each other, against strangers and by a person dressed the same way, and by a perpetrator who started the robbery engaging in a friendly conversation. Simmonsv. State, 43 Fla. L. Weekly D2325a (1st DCA 10/15/18)

https://edca.1dca.org/DCADocs/2016/5213/165213_1284_10152018_03172532_i.pdf

SENTENCING : Court's failure to re-designate the Defendant as a Habitual Offender renders the sentence illegal, but upon re-sentencing, Court may designate the Defendant and re-sentence him to the original sentence. "The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner." Stauderman v. State, 2D17-2982 (2nd DCA 10/12/18)

https://edca.2dca.org/DCADocs/2017/2982/172982_65_10122018_08171660_i.pdf

LEAVING SCENE OF ACCIDENT : Leaving Scene of Accident requires a collision with another vehicle, person, or object. Purdy v. State, 5D16-370 (5th DCA 10/12/18)

http://5dca.org/Opinions/Opin2018/100818/5D16-370.op.pdf

WILLIAMS RULE-CHILD SEX ABUSE : Evidence of similar molestation of a different step-child from a different relationship twenty years before is admissible in child sex battery case. In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate : (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. Aguila v. State, 3D16-1975 (3rd DCA 10/10/18)

http://3dca.flcourts.org/Opinions/3D16-1975.pdf

CALLING WITNESS TO IMPEACH HIM : A party may not call a witness primarily for the purpose of getting an inadmissible statement before the jury as impeachment, but where witness provides other admissible evidence, there is no error. Mathieu v. State, 3D17-423 (3rd DCA 10/10/18)

http://3dca.flcourts.org/Opinions/3D17-0423.pdf

POST CONVICTION RELIEF : Counsel's failure to object to standard jury instructions that have not been invalidated by this Court does not render counsel's performance deficient. Cherry v. State, 3D17-894 (3rd DCA 10/10/18)

http://3dca.flcourts.org/Opinions/3D17-0894.pdf

SEARCH-WARRANT : Search warrant is not necessary for officers' second entry into aproperty where exigent circumstances made the officers' first entry lawful and the second entry was clearly part of one continuous episode. Viart-Sotolongo v. State, 3D17-1411 (3rd DCA 10/10/18)

http://3dca.flcourts.org/Opinions/3D17-1411.pdf

ROBBERY BY SNATCHING : Robbery by sudden snatching does not require that theoffender use or threaten to use any force or violence. C.A. v. State, D18-0267.pdf (3rd DCA 10/10/18)

http://3dca.flcourts.org/Opinions/3D18-0267.pdf

APPEALS-DL HEARING : When a circuit court applies an improper standard of review when it reweighs the evidence on first-tier certiorari review. DHSMV v. Sperberg, 3D18-0551 (3rd DCA 10/10/18)

http://3dca.flcourts.org/Opinions/3D18-0551.pdf

CONTINUANCE-DEPOSITION : A trial court's denial of a party's right to depose a material witness is irreparable harm subject to certiorari review. Where counsel had a prepaid round-the-world vacation scheduled, Court cannot require him go to trial during his absence nor to take the necessary depositions before trial. "Although the trial court has not prohibited Nadezda from deposing these three alleged material witnesses, because her trial counsel has no ability to depose them prior to trial because he is out of the country, the trial court has in effect precluded them." Solonina v. Artglass International, LLC 3D18-1893 (3rd DCA 10/10/18)

http://3dca.flcourts.org/Opinions/3D18-1893.pdf

CREDIT FOR TIME SERVED : Court may designate to DOC calculation of prison credit that is due but must specify the amount of jail credit to which a defendant is entitled. Black v. State, 2D15-4556 (2nd DCA 10/10/18)

https://edca.2dca.org/DCADocs/2015/4556/154556_114_10102018_08591967_i.pdf

HEARSAY-SENTENCING HEARING : Good discussion of admissibility of hearsay in non-capital sentencing hearings. Booking reports are admissible at sentencing hearing as part of the presentence investigation report. Gorzynski v. State, 2D16-4793 (2nd DCA 10/10/18)

https://edca.2dca.org/DCADocs/2016/4793/164793_65_10102018_09003875_i.pdf

SENTENCING LAW IS TOO DARN COMPLICATED : "The lowest permissible sentence calculated under the scoresheet in case number 15-16358 was both above the statutory maximum for the offense while potentially below the lowest permissible sentence as scored on the scoresheet used at the combined sentencing hearing and a different scoresheet used during the first plea hearing." Williams v. State, 2D17-601 (2nd DCA 10/10/18)

https://edca.2dca.org/DCADocs/2017/0601/170601_65_10102018_09024108_i.pdf

MINORS-LIFE SENTENCE : A sentence with a non-life minimum mandatory imposed against a juvenile offender facing a potential life sentence does not violate Graham or Miller so long as the juvenile is afforded an individualized sentencing hearing pursuant to §921.1401 and §921.1402. Martinez v. State, 4D17-2321 (4th DCA 10/10/18)

PRETRIAL DETENTION : First Appearance judge may not set no bond without making a finding that proof of guilt is evident or the presumption great. Gray v. State, 4D18-2374 (4th DCA 10/10/18)

POSSESSION OF CONVEYANCE-TRAFFICKING : Defendant placing the backpack containing a trafficking quantity of methamphetamine on the passenger seat in the car is not sufficient evidence to establish that he intended to use the car for trafficking the drugs. Focus must be on whether the car is used to facility the sale. Hunt v. State, 43 Fla. L. Weekly D2271a (2nd DCA 10/5/18)

https://edca.2dca.org/DCADocs/2017/2932/172932_114_10052018_08324008_i.pdf

ARGUMENT-BOLSTERING : State may not suggest victim's lack of a criminal record made the victim more credible than defendant. Lazzaro v. State, 43 Fla. L. Weekly D2265h (5th DCA 10/5/18)

http://5dca.org/Opinions/Opin2018/100118/5D17-3300.op.pdf

RULES-AMENDMENTS : At First Appearance, judge must confirm with each defendant that they had seen and understood the rights explained in the video recording. In Re : Amendments to the Florida Rules of Criminal Procedure, 43 Fla. L. Weekly S430a (FLA 10/4/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-118_REVISED_OPINION.pdf

RULES-AMENDMENTS : Summons must state the type of proceeding to defendant is summoned. In Re : Amendments to the Florida Rules of Criminal Procedure, 43 Fla. L. Weekly S430a (FLA 10/4/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-118_REVISED_OPINION.pdf

RULES-AMENDMENTS : Rule 3.213 on competency is substantially revised to increase clarity. In Re : Amendments to the Florida Rules of Criminal Procedure, 43Fla. L. Weekly S430a (FLA 10/4/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-118_REVISED_OPINION.pdf

POST CONVICTION RELIEF : Defendant is entitled to no relief on claims raised in successive motionfor post conviction relief where court has previously addressed and rejected each of claims presented. Zack v. State, 43 Fla. L. Weekly S429a (FLA 10/4/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-243.pdf

DEATH PENALTY : Any claim of error under Hurst is harmless where the jury unanimously recommendeddeath. The fact that the jury is advised that its unanimous recommendation was advisory does not entitled thedefendant to relief under Hurst. Anderson v. State, 43 Fla. L.Weekly S428b (FLA 10/4/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-175.pdf

POST CONVICTION RELIEF : Reassignment of the case between the denial of the Defendant's motion forpostconviction relief in his motion for rehearing does not deprive the Defendant of due process. Jenningsv. State, 43 Fla. L. Weekly S427a (FLA 10/4/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-500.pdf

CONSECUTIVE SENTENCES : Crimes stemming from a single criminal episode involving a single victim or a single injury may not be sentenced consecutively. Consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode. Consecutive sentences are permissible when a single criminal episode involves either multiple victims or multiple injuries to one victim. Firearm statute neither mandates nor permits consecutive sentences for crimes committed in a single criminal episode with a single victim or injury in which a firearm is not discharged. Millerv. State, 43 Fla. L. Weekly S426a (FLA 10/4/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1598.pdf

SPEEDY TRIAL : The period for speedy trial without demand runs from the date of arrest, and the period for speedy trial upon demand runs from the date of the indictment or information. Christy v. State, 43 Fla. L. Weekly D2265c (1st DCA 10/3/18)

https://edca.1dca.org/DCADocs/2018/3233/183233_1281_10032018_11032319_i.pdf

COMPETENCY : Court must hold a competency hearing if there is a preliminary determination that reasonable grounds exist that the defendant was not competent. Oats v.State, 43 Fla. L. Weekly D2265a (1st DCA 10/3/18)

https://edca.1dca.org/DCADocs/2015/5169/155169_1286_10032018_09340992_i.pdf

SEARCH AND SEIZURE-WARRANT-CHILD PORNOGRAPHY : Fellow Officer Rule allows a warrant where the detective did not personally view the alleged pornography, but rather got a description of it from the law enforcement database maintained by the National Center for Missing And Exploited Children. Mardosasv. State, 43 Fla. L. Weekly D2264b (1st DCA 10/3/18)

https://edca.1dca.org/DCADocs/2017/2537/172537_1284_10032018_09351535_i.pdf

DRIVER'S LICENSE-SUSPENSION : Circuit court in a first-tier certiorari proceeding is not permitted to reweigh evidence presented to hearing officer. DHSMV v. Kamau, 43 Fla. L. Weekly D2264a (1st DCA 10/3/18)

https://edca.1dca.org/DCADocs/2015/0497/150497_1281_10032018_09295060_i.pdf

SEARCH AND SEIZURE : Officer had reasonable suspicion to stop Child given the BOLO, the juveniles' geographic and temporal proximity to the armed robbery, the match between the Child's' reported description and his appearance, and his behavior when approached. W.T. v. State, 43 Fla. L. Weekly D2260c (3rd DCA 10/3/18)

http://3dca.flcourts.org/Opinions/3D17-0904.pdf

COMPETENCY-JUVENILE JURISDICTION : Court lost jurisdiction over juvenile when two years had passed since you was found incompetent and there was no evidence that he would and 18 competency within the next year. K.N. v. State, 43 Fla. L. Weekly D2259b (3rd DCA 10/3/18)

http://3dca.flcourts.org/Opinions/3D17-1467.pdf

YOUTHFUL OFFENDER : Upon revocation of a youthful offender's probation for a substantive violation, the trial court is authorized to either impose another youthful offender sentence, with no minimum mandatory, or to impose an adult Criminal Punishment Code sentence, which would require imposition of any minimum mandatory term of incarceration associated with the offense of conviction. Parksv. State, 43 Fla. L. Weekly D2257a (3rd DCA 10/3/18)

http://3dca.flcourts.org/Opinions/3D16-2041.pdf

JUVENILE-CONTEMPT : Court may order juvenile in indirect contempt of court for repeated violations of home detention orders. U.T. v. State, 43 Fla. L. Weekly D2255a (3rd DCA 10/3/18)

http://3dca.flcourts.org/Opinions/3D17-0633.pdf

JUVENILE-DETENTION : Court may order Child held in detention when the Child has been ordered committed to a facility but violated home detention pending placement. U.T.v. State, 43 Fla. L. Weekly D2255a (3rd DCA 10/3/18)

http://3dca.flcourts.org/Opinions/3D17-0633.pdf

SENTENCING-DOWNWARD DEPARTURE-MENTAL ILLNESS : Court may enter a downward departure sentence based on the mental illness of the Defendant. Green v. State, 43 Fla. L. Weekly D2250a (4th DCA 10/3/18)

COMPETENCY : Court's findings that there was substantial probability that the Defendant, who had been declared incompetent based on intellectual developmental disorder, would regained competency must be vacated when not supported by competent, substantial evidence. Williams v.State, 43 Fla. L. Weekly D2247a (1st DCA 10/2/18)

https://edca.1dca.org/DCADocs/2017/1927/171927_1282_10022018_08543511_i.pdf

ABATEMENT : Where defendant died prior to conviction, case was abated and trial court's jurisdiction was terminated, but Court may considering a petition filed by state attorney under section 914.24 to enter order protecting crime victim from harassment by the Defendant's mother. Statev. Green, 43 Fla. L. Weekly D2246a (1st DCA 10/2/18)

https://edca.1dca.org/DCADocs/2017/0877/170877_1284_10022018_08493728_i.pdf

SEVERANCE : Severance is not required where the co-Defendant's jailhouse confession to friends are admissible against the Defendant as statements against penal interest and do not violate the Confrontation Clause. Howard v. State, 43 Fla. L. Weekly D2245a (1st DCA 10/2/18)

https://edca.1dca.org/DCADocs/2017/0575/170575_1284_10022018_08465775_i.pdf

HEARSAY : Testimony from third parties describing jailhouse statements made by non-testifying codefendant in private conversations with friends from his neighborhood who were also in jail was not prohibited by Sixth Amendment because the codefendant's statements were not testimonial in nature, and were admissible as statements against penal interest. Howard v. State, 43 Fla. L. Weekly D2245a (1st DCA 10/2/18)

https://edca.1dca.org/DCADocs/2017/0575/170575_1284_10022018_08465775_i.pdf

SEPTEMBER 2018

STAND YOUR GROUND: Revision to Stand Your Ground law shifting burden of proof from defendant to state and increasing quantum or standard of proof from preponderance of evidence to proof by clear and convincing evidence was procedural in nature and applies retroactively to pending cases. Conflict certified. Fuller v. State, 43 Fla. L. Weekly D2237a (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D16-2646.op.pdf

EVIDENCE-UNDULY PREJUDICIAL: Evidence of the Defendant's digital penetration of the victim is admissible at a homicide case to explain why the Victim's DNA was found on the gun, but evidence that the sexual penetration was nonconsensual is unduly prejudicial. Fuller v. State, 43 Fla. L. Weekly D2237a (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D16-2646.op.pdf

EVIDENCE: Testimony about the Defendant's refusal to submit to a blood draw in a homicide case is not relevant and admissible to show consciousness of guilt where the Defendant is not advised of any possible adverse consequences flowing from the refusal and is given the impression that the test is optional. A defendant's behavior is circumstantial evidence probative of his consciousness of his guilt only when it can be said that the behavior is susceptible of no prima facie explanation except consciousness of guilt. Fuller v. State, 43 Fla. L. Weekly D2237a (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D16-2646.op.pdf

EVIDENCE: Evidence of the Defendant's jail calls criticizing the prosecutor and characterizing his arguments as "a bunch of bullshit" is inadmissible. Fuller v. State, 43 Fla. L. Weekly D2235g (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D16-2646.op.pdf

COLLATERAL CRIMES-LEWD OR LASCIVIOUS MOLESTATION: Evidence that Defendant had previously committed sexual battery upon the Victim's 12-year-old sister is inadmissible, as such evidence was more severe than a charged offense and was not sufficiently similar and was therefore unduly prejudicial. Taylor v. State, 43 Fla. L. Weekly D2231c (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D17-1912.op.pdf

CREDIT FOR TIME SERVED: Defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently. Del La Cruz v. State, 43 Fla. L. Weekly D2235a (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D18-1897.op.pdf

NEWLY DISCOVERED EVIDENCE: Court errs in determining that affidavit from victim recanting his trial testimony was not credible or material without conducting evidentiary hearing where the affidavit was not inherently incredible or obviously immaterial. Barros v. State, 43 Fla. L. Weekly D2233a (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D18-1181.op.pdf

COLLATERAL CRIMES-LEWD OR LASCIVIOUS MOLESTATION: Court erred by admitting evidence that defendant had previously committed sexual battery upon victim's twelve year old sister, as such evidence of an offense more severe than the charged offense was not sufficiently similar to the charged offense and was unduly prejudicial. The less similar the prior acts, the more likely that the probative value of this evidence will be "substantially outweighed by the danger of unfair prejudice. The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. Taylor v. State, 43 Fla. L. Weekly D2231c (5th DCA 9/28/18)

http://5dca.org/Opinions/Opin2018/092418/5D17-1912.op.pdf

ATTORNEYS-DISCIPLINE: Attorney disbarred for continuing to practice law during suspension. The Florida Bar v. Bosecker, 43 Fla. L. Weekly S410a (FLA 9/27/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-1387.pdf

DEATH PENALTY-INTELLECTUAL DISABILITY: Standard of review of trial court's determination that the Defendant is not intellectually disable is whether the record contains competent, substantial evidence that supports the determination of the trial court. Wright v. State, 43 Fla. L. Weekly S404a (FLA 9/27/18)

http://www.floridasupremecourt.org/decisions/2018/sc13-1213.pdf

APPEALS: A "GVR" (granted, vacated, and remanded) from the US Supreme Court is neither a merits determination nor precedential case law. It is neither an outright reversal nor an invitation to reverse; it is merely a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it. Wright v. State, 43 Fla. L. Weekly S404a (FLA 9/27/18)

http://www.floridasupremecourt.org/decisions/2018/sc13-1213.pdf

AMENDMENT-JURY INSTRUCTIONS: Amendments to standard instructions on various fraud offenses. In Re : Standard Jury Instructions, 43 Fla. L. Weekly S401b (FLA 9/27/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-566.pdf

AMENDMENT-JURY INSTRUCTIONS: Carrying a Concealed Weapon instruction is amended to include a third element that requires the State to prove that the defendant did not have a license to carry. In re-Standard Jury Instructions, 43 Fla. L. Weekly S400a (FLA 9/27/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-2263.pdf

R.I.P.: The term "slungshot" is deleted from the definition of "concealed weapon." In re : Standard Jury Instructions, 43 Fla. L. Weekly S400a (FLA 9/27/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-2263.pdf

AMENDMENT-JURY INSTRUCTIONS: For improper exhibition of a weapon, "closed" is added to instruction on a pocketknife. In Standard Jury Instructions, 43 Fla. L. Weekly S400a (FLA 9/27/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-2263.pdf

ATTORNEYS-CONTEMPT: Attorney Bruce Jacobs is subject to contempt for failing to address binding precedent in his appellate brief, and for his "desultory diatribe" against the appellate court, i.e. "Any court that protects the monopoly over the rule of law is a traitor to the constitution and should be tried for treason." Aquasol v. HSBC Bank USC, 43 Fla. L. Weekly D2226a (3rd DCA 9/26/18)

http://3dca.flcourts.org/Opinions/3D17-0352.pdf

SHIFTING BOP: State improperly shifted burden of proof by asking Defendant if he had other witnesses to corroborate his alibi. Error reversible notwithstanding that trial was without a jury. S.B. v. State, 43 Fla. L. Weekly D2224a (3rd DCA 9/26/18)

http://3dca.flcourts.org/Opinions/3D17-1206.pdf

FINGERPRINT: When fingerprint evidence is the sole evidence relied upon to establish that the defendant was the perpetrator of the crime the circumstances must be such that the print could have been made only at the time the crime was committed. D.O. v. State, 43 Fla. L. Weekly D2214c (3rd DCA 9/26/18)

http://3dca.flcourts.org/Opinions/3D18-0381.pdf

SEARCH AND SEIZURE-PASSENGER: A traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. M.P. v. State, 43 Fla. L. Weekly D2214b (3rd DCA 9/26/18)

http://3dca.flcourts.org/Opinions/3D17-1697.pdf

JUDGE-DISQUALIFICATION: Allegation of ex parte communication forms a prima facie basis for disqualification, we ordered a response. Haas v. Yousef, 43 Fla. L. Weekly D2214a (3rd DCA 9/26/18)

http://3dca.flcourts.org/Opinions/3D18-1779.pdf

LIFE SENTENCE-MINOR: Alleyne requires that jury, rather than judge, must make factual findings as to whether juvenile actually killed, intended to kill attempted to kill the victim. Washington v. State, 43 Fla. L. Weekly D2213a (2nd DCA 9/26/18)

https://edca.2dca.org/DCADocs/2015/3206/153206_39_09262018_09180838_i.pdf

CONFESSION: Court erred in denying defendant's motion to suppress confession where defendant was not competent to knowingly and intelligently waive Miranda rights at the time, considering that he was 18 years old at time of interrogation, had no prior criminal experience, was crying and asking for his "mommy," was a special education student with low IQ that placed him in the "mild mental retardation" range, and read at a third or fourth-grade level at the time Miranda warnings were administered at a 7th-grade reading level in the police station. Waterman v. State, 43 Fla. L. Weekly D2211b (2nd DCA 9/26/18)

https://edca.2dca.org/DCADocs/2016/4423/164423_39_09262018_09205227_i.pdf

EVIDENCE: Court erred in giving standard instruction on abnormal mental condition where instruction was unsupported by evidence. Perry v. State, 43 Fla. L. Weekly D2203a (4th DCA 9/26/18)

SPEEDY TRIAL: Defendant not entitled to speedy trial discharge where he was unavailable for trial on the scheduled trial date because he did not obtain properly fitting civilian clothes. Once the defendant has requested to appear in court in other than prison clothes, the state must make appropriate provisions to this end. Rodriguez v. State, 43 Fla. L. Weekly D2201d (4th DCA 9/26/18)

COMPETENCY: Court must conduct a competency hearing after appointing expert to evaluate for competency. B.E. v. State, 43 Fla. L. Weekly D2200a (1st DCA 9/25/18)

https://edca.1dca.org/DCADocs/2018/0043/180043_1287_09252018_08464204_i.pdf

ARGUMENT: Court abused its discretion by allowing the prosecutor to repeatedly and improperly suggest to the jury that defense counsel had influenced the victim to change his story between the robbery and trial. Taylor v. State, 43 Fla. L. Weekly D2195a (2nd DCA 2018)

https://edca.2dca.org/DCADocs/2016/5268/165268_39_09212018_08301930_i.pdf

BUFFY: "At trial, Bader [the clerk] testified on direct examination that Taylor had pulled 'a -- I don't want to say [a] knife, I would say it's a long spatula, as far as I know.'" See Buffy, the Vampire Slayer, "Homecoming," Season 3, Episode 5 ("Cordy, the gun!" [Cordelia shoots wildly] Cordelia, the spatula!" Taylor v. State, 43 Fla. L. Weekly D2195a (2nd DCA 2018)

https://edca.2dca.org/DCADocs/2016/5268/165268_39_09212018_08301930_i.pdf

ARGUMENT: Argument is improper when the obvious implication of the State's argument t was that witness's prior inconsistent statements were the truth. Impeachment is not substantive evidence. Taylor v. State, 43 Fla. L. Weekly D2195a (2nd DCA 2018)

https://edca.2dca.org/DCADocs/2016/5268/165268_39_09212018_08301930_i.pdf

RESTITUTION: Court may not order restitution for items missing stolen car where evidence was insufficient to establish the fair market value of the items. M.P. v. State, 43 Fla. L. Weekly D2193a (2nd DCA 9/21/18)

https://edca.2dca.org/DCADocs/2017/0871/170871_39_09212018_08321294_i.pdf

RESTITUTION: Court may not order juvenile pay restitution without findings regarding how much the juvenile or his parents could reasonably be expected. M.P. v. State, 43 Fla. L. Weekly D2193a (2nd DCA 9/21/18)

https://edca.2dca.org/DCADocs/2017/0871/170871_39_09212018_08321294_i.pdf

POST CONVICTION RELIEF: Failing to raise a defendant's competency is cognizable in a rule 3.850 motion. Allegations that Defendant has a history of mental illness, that the jail prescribed medicine to treat his mental illness, and that the combination of the mental illness and medication affected his ability to assist in his defense and rendered him incompetent when he entered his pleas are sufficient to state a claim of ineffective assistance of counsel. "Yes" and "no" answers during a plea colloquy are insufficient to conclusively refute an appellant's claim that he did not understand the nature and consequences of a plea due to medication and mental illness. Perez v. State, 43 Fla. L. Weekly D2192a (2nd DCA 9/21/18)

https://edca.2dca.org/DCADocs/2017/4670/174670_114_09212018_08333489_i.pdf

DEATH PENALTY: When a defendant knowingly and voluntarily waives the right to a penalty phase jury, he is not later entitled to relief under Hurst. Lynch v. State, 43 Fla. L. Weekly S384a (FLA 9/20/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-2235.pdf

POST CONVICTION RELIEF: Hurst does not apply retroactively before Ring to preclude override of jury recommendation of life. Zakrewski, II v. State, 43 Fla. L. Weekly S374a (FLA 9/20/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-646.pdf

TRESPASS ON SCHOOL GROUNDS: Juvenile is not entitled to a judgment of dismissal where he had been suspended and his administrative appeal on the suspension had not yet been resolved. L. M., v. State, 43 Fla. L. Weekly D2177a (3rd DCA 9/20/18)

http://3dca.flcourts.org/Opinions/3D15-0893.pdf

SELF-DEFENSE-JURY INSTRUCTION: Final responsibility for correctly instructing the jury remains with the trial court. Giving of erroneous self-defense instruction is reversible fundamental error. Conflict certified. Silva v. State, 43 Fla. L. Weekly D2173a (3rd DCA 9/20/18)

http://3dca.flcourts.org/Opinions/3D17-1054.pdf

SELF-DEFENSE: Defendant is not entitled to self-defense for shooting someone who threw a microwave at him. Silva v. State, 43 Fla. L. Weekly D2173a (3rd DCA 9/20/18)

http://3dca.flcourts.org/Opinions/3D17-1054.pdf

BRINGING A MICROWAVE TO A GUNFIGHT: "Silva claimed Daoud attempted to lunge and throw a microwave at him. Silva reacted to these actions by shooting Daoud." Silva v. State, 43 Fla. L. Weekly D2173a (3rd DCA 9/20/18) But see, Grosse Pointe Blank (Ackroyd and Cusack final scene)

https://www.youtube.com/watch?v=p9YjOweDcU

SATELLITE TESTIMONY: Live streaming testimony from Australia does not deprive Defendant of right of confrontation. Factors support use of satellite live-streaming video testimony where witness lives beyond subpoena power of court and is unwilling to travel to testify, there is a state interest in prosecuting child sex offenders, and victim is essential to case. Remote testimony is permitted only when the following assurances of reliability exist : (1) that the witness will give the testimony under oath, impressing upon the witness the seriousness of the matter and protecting against a lie by the possibility of penalty of perjury, (2) that the witness will be subject to cross-examination, and (3) that the jury will have the chance to observe the demeanor of the witness. To ensure that the possibility of perjury is not an empty threat for those witnesses that testify via satellite from outside the United States, it must be established that there exists an extradition treaty between the witness's country and the United States, and that such a treaty permits extradition for the crime of perjury. Butler v. State, 43 Fla. L. Weekly D2169a (4th DCA 9/20/18)

http://3dca.flcourts.org/Opinions/3D17-1054.pdf

SENTENCING CONSIDERATIONS: Statistical evidence showing a disparity between average sentences for white defendants and minority defendants with similar CPC scores does not show that racial bias motivated sentencing decision. A defendant cannot challenge his sentence based on statistical evidence of racial disparity in sentencing. Delancey v. State, 43 Fla. L. Weekly D2166a (4th DCA 9/20/18)

COLLATERAL CRIMES: No error in allowing jury to hear evidence that, within two hours after shooting death at grocery store, a shooting occurred at defendant's home because details of what happened at home were relevant to provide a logical sequence of events that led police to identify defendant as suspect in grocery store shooting, particularly where defense counsel opened the door for testimony by presenting a misleading and incomplete picture that portrayed police as not having conducted a thorough investigation and implying that police just showed up at defendant's home to disrupt a sleeping family. Sanders v. State, 43 Fla. L. Weekly D2165a (4th DCA 9/20/18)

COMPETENCY: Court may not make a finding that the defendant is competent based on Defendant's stipulation and the Court's review of expert's court where the parties did not agree to allow the judge to decide each of competency on that basis. Pittman v. State, 43 Fla. L. Weekly D2164a (4th DCA 9/20/18)

COMPETENCY: Court must hold a competency hearing after ordering a competency evaluation and must make an independent determination of competency prior to trial. Johnson v. State, 43 Fla. L. Weekly D2162a (4th DCA 9/20/18)

https://edca.1dca.org/DCADocs/2015/5169/155169_1286_10032018_09340992_i.pdf

PRETRIAL RELEASE: Court may properly denied motion to set bond when Defendant was charged with capital offense and offenses punishable by life imprisonment and state met its burden of showing that proof was evident or presumption great that defendant was guilty of charged offenses. Co-conspirator's statement, which was internally consistent and uncontradicted, met required evidentiary standard of the proof of guilt is evident or the presumption is great. Williams v. State, 43 Fla. L. Weekly D2154a (1st DCA 9/20/18)

https://edca.1dca.org/DCADocs/2018/2782/182782_1281_09202018_10593188_i.pdf

PLEA-SENTENCING: Court erred by adjudicating defendant guilty when defendant had not entered plea and without first conducting a full plea colloquy. Boyd v. State, 43 Fla. L. Weekly D2153c (1st DCA 9/20/18)

https://edca.1dca.org/DCADocs/2018/0183/180183_1287_09202018_10571930_i.pdf

CREDIT FOR TIME SERVED: When defendant seeks credit for prison time he must proceed under 3.800, not 3.801. Johnson v. State, 43 Fla. L. Weekly D2153b (1st DCA 9/20/18)

https://edca.1dca.org/DCADocs/2018/1488/181488_1287_09202018_10582050_i.pdf

SEARCH AND SEIZURE: There is no illegality where officer looked at the contents of a USB which was given to them by a man they were arresting and who claimed that he got it in exchange for drugs, and that it contained "some sick shit." The Fourth Amendment does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government. Where a warrantless search by law enforcement is prompted by a prior search by a private party, the warrantless search does not violate the Fourth Amendment so long as it does not exceed the scope of the private party's search. Even if the officers' initial viewing of the video was a Fourth Amendment search of the USB drive, it was lawful because the possessor had apparent authority to consent to the search. Duke v. State, 43 Fla. L. Weekly D2148d (1st DCA 2/14/18)

https://edca.1dca.org/DCADocs/2017/5118/175118_1284_09142018_11050151_i.pdf

POST CONVICTION RELIEF: Defendant must raise issue of the defective information (unsigned information) before trial and cannot raise the issue post trial as ineffective assistance of counsel. Bessellieu v. State, 43 Fla. L. Weekly D2146b (1st DCA 9/14/18)

https://edca.1dca.org/DCADocs/2017/4699/174699_1284_09142018_11041290_i.pdf

WITHHOLD OF ADJUDICATION: Court may not withhold adjudication on a felony offense where defendant had 2 previous withholds on 2 prior felonies, even though the priors arose from the same case. Braine v. State, 43 Fla. L. Weekly D2143a (2nd DCA 9/14/18)

https://edca.2dca.org/DCADocs/2017/0807/170807_65_09142018_08511975_i.pdf

CREDIT FOR TIME SERVED: Defendant's motion for credit for time served under Rule 3.801 is premature while a direct appeal is pending. Fernandez v. State, 43 Fla. L. Weekly D2138a (2nd DCA 9/14/18)

https://edca.2dca.org/DCADocs/2017/5100/175100_39_09142018_08555454_i.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to object to State's paraphrase of Defendant's statement as he shot his victim at Wendy's. State paraphrased Defendant saying "I told you I'd kill you, I had it in my mind to kill you, I've wanted to kill you for several days. I wanted to kill someone to take out my frustration." In fact, Defendant said, "I told you I would kill you, you f*cking b*tch." Brown v. State, 43 Fla. L. Weekly S365a (FLA 9/13/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1538.pdf

ARGUMENT: Improper comments/questions by the State--"Members of the jury, as Cesar [sic] laid dying, killed by people that he trusted, people that he thought were his friends, [he] cried out Et tu, Brute? Betrayal and greed, that's what killed Cesar [sic]. And it's the same betrayal and greed that you, Donovan Henry. . .had" and "Do you just have a complete indifference to human life?-are not fundamental error and must be objected to for the issue to be preserved. Henry v. State, 43 Fla. L. Weekly D2132a (4th DCA 9/12/18)

QUOTATION: "This is not necessarily a Shakespearian tragedy, as the State suggested in closing, but it certainly can be characterized as An American Tragedy." Henry v. State, 43 Fla. L. Weekly D2132a (4th DCA 9/12/18)

ADULT SANCTIONS-JUVENILE: Where a child has been charged as an adult and court imposed juvenile sanctions upon a violation of juvenile supervision the child may be then sentenced as an adult. Dorcely v. State, 43 Fla. L. Weekly D2131a (4th DCA 9/12/18)

ATTORNEY'S FEES: Court may award temporary attorney's fees and costs to defend against Husband's civil theft claim where that claim is so intertwined with the dissolution litigation that is part and parcel of the domestic strife. The court has jurisdiction to award the Wife attorney's fees for the representation of a party in a "companion lawsuit" outside Chapter 61, which has been consolidated with this dissolution proceeding. Stein v. Stein,43 Fla. L. Weekly D2130a (4th DCA 9/12/18)

DISCOVERY VIOLATION: State committed a discovery violation by failing to reveal fingerprint testing before trial and by doing further DNA testing during the trial, but the error was harmless where the Defendant was not prejudiced. Chamberlain v. State, 43 Fla. L. Weekly D2128a (4th DCA 9/12/18)

SAY WHAT?!: "When confronted by his fiancée as to his involvement in the murder, he told her he did not remember whether he had killed someone." Chamberlain v. State, 43 Fla. L. Weekly D2128a (4th DCA 9/12/18)

FLEEING AND ELUDING-FINE: $1,000 fine is vacated where Court was under the false impression that the fine was mandatory rather than discretionary. Williams v. State, 43 Fla. L. Weekly D2127a (4th DCA 9/12/18)

APPEAL-INEFFECTIVE ASSISTANCE: Appellate counsel was ineffective for failing to argue limitations on Defendant' his closing argument and admission of DNA evidence on a gun which was not used in the charged crime. Jeanbart v. State, 43 Fla. L. Weekly D2120b (4th DCA9/12/18)

NEWLY DISCOVERED EVIDENCE: State's summary argument that the affidavit constituting newly discovered evidence was inherently incredible is not supported by any evidence nor asserted at the trial level. A hearing is required. Williams v. State, 43 Fla. L. Weekly D2110a (3rd DCA 9/12/18)

http://3dca.flcourts.org/Opinions/3D18-0176.pdf

APPEALS-INEFFECTIVENESS OF APPELLATE COUNSEL: Appellate counsel was ineffective for failing to raise the issue of trial court's imposition of mandatory consecutive sentences after Florida Supreme Court had held the 10-20-Life statute does not require consecutive sentences for multiple firearm offenses arising from the same criminal episode. Rua-Torbizco v. State, 43 Fla. L. Weekly D2109d (3rd DCA 9/12/18)

http://3dca.flcourts.org/Opinions/3D17-2675.pdf

APPEALS-JURISDICTION: Appellate court lacks jurisdiction to review portion of supplemental final judgment in which trial court reserves jurisdiction to determine the amount, retroactive period, and life insurance to secure support. Vartumyan v. Bean, 43 Fla. L. Weekly D2109b (3rd DCA 9/12/18)

http://3dca.flcourts.org/Opinions/3D17-2675.pdf

EVIDENCE-COLLATERAL CRIME: Evidence of armed robbery of victim five hours prior to shooting which gave rise to charge of attempted second degree murder was properly admitted, as the evidence was relevant and necessary because it helped explain the entire context out of which the charged offenses occurred. Pickett v. State, 43 Fla. L. Weekly D2105a (3rd DCA 9/12/18)

http://3dca.flcourts.org/Opinions/3D16-2871.pdf

FALSE EVIDENCE: Defendant is not entitled to a new trial based on false testimony presented that a cell phone found in the scene and dropped by the Defendant belonged to the victim where there was no showing that the false testimony was knowingly presented, and the testimony was minimally relevant. Pickett v. State, 43 Fla. L. Weekly D2105a (3rd DCA 9/12/18)

http://3dca.flcourts.org/Opinions/3D16-2871.pdf

WITNESS TAMPERING: Evidence that defendant made numerous phone calls to victim in attempt to convince her to drop charges and that the calls caused victim to feel intimidated and scared was sufficient to support conviction for witness tampering. Pickett v. State, 43 Fla. L. Weekly D2105a (3rd DCA 9/12/18)

http://3dca.flcourts.org/Opinions/3D16-2871.pdf

SENTENCING-CONSIDERATIONS: Re-sentencing is required where the State argued that the Defendant had "a predisposition for dealing drugs multiple times to multiple people, not just this one drug sale," and the Court may have considered the State's argument argument (Judge : "taking into account everything, including the evidence here, both aggravating and mitigating") in imposing sentence, re-sentencing is required. State's argument that it is "absolutely allowed to comment on uncharged criminal acts and the case law is clear on that." is absolutely wrong. Lundquist v. State, 43 Fla. L. Weekly D2096a (2nd DCA 9/7/18)

https://edca.2dca.org/DCADocs/2017/0413/170413_114_09072018_08432369_i.pdf

PROBATION-EXPIRATION OF TERM: Defendant's probationary sentence was tolled once Canchola absconded prior to the expiration of the probationary term, notwithstanding that the amended affidavit of violation of probation was filed after probation would have expired. A probationary term is automatically tolled when a probationer absconds from his supervision. Canchola v. State, 43 Fla. L. Weekly D2092b (2nd DCA 9/7/18)

https://edca.2dca.org/DCADocs/2016/5109/165109_65_09072018_08404642_i.pdf

NEOLOGISM-ABSCONSION: "But the absconsion tolling doesn't ride under section 948.06." Canchola v. State, 43 Fla. L. Weekly D2092b (2nd DCA 9/7/18)

https://edca.2dca.org/DCADocs/2016/5109/165109_65_09072018_08404642_i.pdf

COMPETENCY: After committing motion for competency evaluation in appointing expert to examine Defendant, Court may not proceed without holding a competency hearing and making a competency determination. If the court can make a nunc pro tunc finding as to appellant's competency based upon the existence of evaluations performed contemporaneous with trial and without relying solely on a cold record, and can do so in a manner which abides by due process guarantees, then it should do so. Alexander v. State, 43 Fla. L. Weekly D2091a (5th DCA9/7/18)

http://5dca.org/Opinions/Opin2018/090318/5D17-1977.op.pdf

DUE PROCESS: Court's error in reading the severed count of possession of firearm by a felon is harmless where the Defendant testified at trial, thus revealing that he was a felon. Watson v. State, 43 Fla. L. Weekly D2090b (5th DCA 9/7/18)

http://5dca.org/Opinions/Opin2018/090318/5D17-4099.op.pdf

CONFRONTATION: Court's error in failing to make case specific findings for allowing child victim to testify through closed-circuit TV, nor in providing a means for the Defendant to communicate with his attorney during the child's testimony, is not fundamental error and was not preserved for appeal. Knight v. State, 43 Fla. L. Weekly D2086a (1st DCA 9/7/18)

https://edca.1dca.org/DCADocs/2016/3027/163027_1284_09072018_08361378_i.pdf

JUDGE-DISCIPLINE: Judge is removed from office or false claims during campaign, searching a party during a hearing, stating that he will never hold a statute unconstitutional, and moving hearings to early times without SAO or PD present. "[W]e will not allow judges who have committed egregious misconduct during a judicial campaign in order to attain office to serve the term of their judgeship." In Re : Inquiry Concerning a Judge (Scott Dupont), 43 Fla. L. Weekly S337a (FLA 9/6/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-2103.pdf

EVIDENCE-LAY OPINION-VOICE IDENTIFICATION: Officer who acquires a special familiarity with the defendant's voice during the course the investigation may render his opinion as to whether a voice in a recording is that of the defendant. Prior case law receded from. Johnson v. State, 43 Fla. L. Weekly S331a (FLA 9/6/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-845.pdf

HABITUAL VIOLENT FELONY OFFENDER: Defendant is entitled to resentencing where it is clear that the Court erroneously believed it was required to impose a life sentence under the HVFO statute. "Manifest injustice" defined and discussed. McMillan v. State, 43 Fla. L. Weekly D2084a (4th DCA 9/5/18)

POST CONVICTION RELIEF: A defendant is entitled to have the trial court instruct the jury that it could convict him of both petit theft and resisting a merchant, as lesser offenses of robbery. Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to request a jury instruction and verdict form that permitted the jury to render a dual verdict theft and resisting a merchant as lesser includeds for the underlying crime of robbery. The issue is not jury part, but rather the right to have lesser includeds considered. Conflict certified. Hargrett v. State, 43 Fla. L. Weekly D2083a (4th DCA 9/5/18)

CONSTRUCTIVE POSSESSION: Defendant cannot be found guilty of possession of heroin found in a public area through which the Defendant fled. McCray v. State, 43 Fla. L. Weekly D2082a (4th DCA 9/5/18)

STAND YOUR GROUND-SELF-DEFENSE: Defendant who tried to run down the victim with his car, then got out of the car and shot the victim who had thrown a metal bar at the Defendant's windshield, is properly convicted of murder. Self-defense is properly rejected. Medina v. State, 43 Fla. L. Weekly D2080a (4th DCA 9/5/18)

STATEMENTS OF DEFENDANT: Defendant's different and inconsistent statements about events are properly admitted to show consciousness of guilt. Evidence of a defendant's acts or statements calculated to defeat or avoid his prosecution is admissible against him as showing consciousness of guilt. Medina v. State, 43 Fla. L. Weekly D2080a (4th DCA 9/5/18)

RACKETEERING: Two predicate acts committed on same day are not two separate incidents of racketeering conduct within a five-year period for purposes of sustaining a conviction of racketeering. JOA required. Castillo v. State, 43 Fla. L. Weekly D2079a (4th DCA 9/4/18)

COMPETENCY: A new trial is not necessarily required after the Court failed to conduct a competency hearing and enter an order before trial, where there is are some indications that a competency evaluation was performed and the Defendant was deemed competent to succeed, and when the court can enter a nunc pro tunc finding of competency. Pollard v. State, 43 Fla. L. Weekly D2074a (4th DCA 9/5/18)

APPEALS-INEFFECTIVENESS OF APPELLATE COUNSEL: where life felonies were not subject to enhanced punishment as a habitual offender at the time of Defendant's offenses, appellate counsel was ineffective for failing to challenge habitual offender designation. Key v. State, 43 Fla. L. Weekly D2073a (4th DCA 9/5/18)

RETROACTIVITY: When the Defendant committed aggravated assault with a firearm when the offense carries a mandatory minimum, but was convicted after the statute was amended to eliminate the mandatory minimum, the defendant is subject to the mandatory minimum. The change in the statute does not apply retroactively. Retroactive application of the statute violates the "Savings Clause" of the Florida Constitution. State v. Reininger, 43 Fla. L. Weekly D2072a (4th DCA 9/5/18)

SEARCH AND SEIZURE-CELL PHONE-LOCATION INFORMATION: Accessing historical cell phone location information constitutes a search under the Fourth Amendment requiring a warrant and probable cause. The "good faith" exception does not apply where no case law existed saying that cell phone location information from towers was not protected by the Fourth Amendment. Ferrari v. State, 43 Fla. L. Weekly D2066a (4th DCA 9/5/18)

DISCOVERY-RICHARDSON: A new trial is required where there is a discovery violation when State disclosed only in the middle of the trial the existence of several tapes (75-80) by testifying witnesses which constituted a "bombshell" and which could have resulted in a change of trial strategy if disclosed before trial. seventy-five to eighty tapes to court. "[I]t was not the defendant's obligation to depose Torrens to discover Fiorillo's confession to the murder. It is the State's affirmative obligation to inform the defense of the substance of those statements." Ferrari v. State, 43 Fla. L. Weekly D2066a (4th DCA 9/5/18)

SILENCE OF DEFENDANT: It is not an impermissible comment on the Defendant's right to remain silent to question him about his failure to report pre-arrest, pre-Miranda failure to report that other people whom he blamed for the murder confessed to him. Prearrest, pre-Miranda silence can be used to impeach a defendant. Ferrari v. State, 43 Fla. L. Weekly D2066a (4th DCA 9/5/18)

ENTRAPMENT: Objective entrapment exists law enforcement engages in "outrageous" conduct to offend "decency or a sense of justice." CI telling Defendant, a known criminal,, about hotel rooms where drug dealers have significant drugs and cash and taking the Defendant there is not objective entrapment. Discussion of objective and subjective entrapment. State v. Harper, 43 Fla. L. Weekly D2060a (4th DCA 9/5/18)

RETROACTIVITY-STAND YOUR GROUND: Because the 2017 amendment to the "Stand Your Ground" self-defense law is at least partially substantive, it cannot be applied retroactively. "[W]e are aware of no Florida Supreme Court case holding that a change to the legal standard applicable to an affirmative defense in a criminal matter. . . is purely procedural." The Defendant whose offense occurred before either version of the Stand Your Ground Law is not entitled to its benefit. Langel v. State, 43 Fla. L. Weekly D2058a (4th DCA 9/5/18)

STAND YOUR GROUND-BURDEN OF PROOF: To raise a "prima facie claim of self-defense immunity from criminal prosecution" under section 776.032(4), a defendant must show that the elements for the justifiable use of force are met. Ordinarily, this will require the defendant to testify or to otherwise present or point to evidence from which the elements for justifiable use of force can be inferred. Only then would the burden shift to the state to "overcome the immunity" by clear and convincing evidence. Langel v. State, 43 Fla. L. Weekly D2058a (4th DCA 9/5/18)

STAND YOUR GROUND: Defendant is not entitled to SYG immunity when he shot the Victim who left a closed pocketknife with a six inch blade next to his body. Langel v. State, 43 Fla. L. Weekly D2058a (4th DCA 9/5/18)

NEOLOGISM: "Just before leaving, the victim shook petitioner's hand and gave him a 'bro-hug.'" Langel v. State, 43 Fla. L. Weekly D2058a (4th DCA 9/5/18)

DEFINITION-PRIMA FACIE: "The term 'prima facie' is a Latin expression meaning 'at first face' or 'at first appearance.' The term 'prima facie case' has two distinct meanings in law : (1) 'The establishment of a legally required rebuttable presumption'; and (2) 'A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.'" Langel v. State, 43 Fla. L. Weekly D2058a (4th DCA 9/5/18)

SEARCH AND SEIZURE-CELL PHONE LOCATION: Absent a valid exception to the warrant requirement, the government must establish probable cause and receive court authorization before using a cell-site simulator. With a cell-site simulator, the government surreptitiously intercepts a signal that the user intended to send to a carrier's cell-site tower or independently pings a cell phone to determine its location. State can not use a cell-site simulator (Stingray) absent a warrant specifically so providing. State v. Sylvestre, 43 Fla. L. Weekly D2054b (4th DCA 9/5/18)

DOWNWARD DEPARTURE: Court properly imposed downward departure on the grounds that she acted under the domination of another person by allowing her boyfriend to burglarize the home which she had been hired to take care of. State v. Sisco, 43 Fla. L. Weekly D2047b (3rd DCA 9/5/18)

http://3dca.flcourts.org/Opinions/3D16-2474.rh.pdf

DOUBLE JEOPARDY: Separate convictions for attempted felony murder and armed robbery do not violate double jeopardy. Blockburger. No merit to argument that double jeopardy bars dual convictions because shooting the victim is the same intentional act where, as here, the State also relied on other acts to support the armed robbery count. Sullivan v. State, 43 Fla. L. Weekly D2045a (3rd DCA 9/5/18)

http://3dca.flcourts.org/Opinions/3D16-2019.pdf

COMPETENCY: Hearing to determine restoration of competency is inadequate when it consists only of asking Defendant whether he felt well and whether he was taking psychotropic drugs. "The public defender. . . said the hearing would take only 'thirty seconds' and the trial judge thought even less ('How long is it going to take, two seconds?'). Parties cannot stipulate to competency. Rosier v. State, 43 Fla. L. Weekly D2042b (1st DCA 9/5/18)

https://edca.1dca.org/DCADocs/2016/2327/162327_1287_09052018_09170851_i.pdf

UPWARD DEPARTURE: Statute permitting increase in punishment beyond statutory maximum of nonstate prison sanction based on findings by trial court, rather than by jury, that defendant could present danger to public is unconstitutional. Jackson v. State, 43 Fla. L. Weekly D2039a (1st DCA 9/5/18)

https://edca.1dca.org/DCADocs/2017/3470/173470_1287_09052018_09240333_i.pdf

NEW TRIAL: Summary denial of motion for new trial ("The Court will rely on the rulings previously made in this case, and I will deny the motion for new trial") does not mean that the court applied the wrong legal standard. Moreland v. State, 43 Fla. L. Weekly D2037b (1st DCA 9/5/18)

https://edca.1dca.org/DCADocs/2017/4436/174436_1284_09072018_04083164_i.pdf

APPEAL-JURISDICTION: Where court fails to rule on all claims in a motion for post conviction relief, the appellate court has no jurisdiction. The lack of a ruling on a claim deprives the appellate court of jurisdiction. Bachman v. State, 43 Fla. L. Weekly D2037a (1st DCA 9/5/18)

https://edca.1dca.org/DCADocs/2017/1723/171723_1279_09052018_09204936_i.pdf

VOP-HEARSAY: Witness who testified that Defendant did not always stay at his approved residence is sufficient to show absconding. Johnson v. State, 43 Fla. L. Weekly D2036a (1st DCA 9/5/18)

https://edca.1dca.org/DCADocs/2017/0933/170933_1284_09052018_09181045_i.pdf

AUGUST 2018

SPEEDY TRIAL: Following a robbery, the Defendant's 6 hour detention and questioning is notan arrest for the purpose of beginning the speedy trial period. For the purposes speedy trial, an arrestinvolves the following elements : (1) A purpose or intention to effect an arrest under a real or pretendedauthority; (2) An actual or constructive seizure or detention of the person to be arrested by a person havingpresent power to control the person arrested; (3) A communication by the arresting officer to the person whosearrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding bythe person whose arrest is sought that it is the intention of the arresting officer then and there to arrestand detain him. Davis v. State, 43 Fla. L. Weekly D2029b (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D17-745.op.pdf

ARREST (Concurring Opinion): "The majority holds the Appellant was not under arrest. But if not under arrest, what was his status? Is there something between a Terry stop and an arrest? I think not. To effectuate a Terry stop, the detention must be temporary, based on reasonable suspicion, and at the location of the stop. . .To view the detention here as authorized creates a new level of citizen encounter not countenanced by Terry." Davis v. State, 43 Fla. L. Weekly D2029b (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D17-745.op.pdf

DUE PROCESS: It is "troubling" but not reversible that Court denied continuance to enable Defendant to get transcripts of depositions taken two days before and then disallowed impeachment because Defendant had no transcripts. Taylor v. State, 43 Fla. L. Weekly D2028a (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D17-2236.pca.op.pdf

APPEAL-PRESERVATION: "The State's refusal to concede the obvious [that motion to suppress was dispositive] was disingenuous at best," but when Defendant pled nolo contendere to the new charges without reserving his right to appeal the denied motion to suppress, the appellate court does not have jurisdiction to review the issue. Taylor v. State, 43 Fla. L. Weekly D2028a (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D17-2236.pca.op.pdf

10-20-LIFE: 25-year mandatory minimum provision in life sentence for robbery with firearm wasillegal where indictment did not allege, and jury did not find, that defendant discharged a firearm. Statecannot rely on grounds alleged in a separate count to support enhanced mandatory sentence. Solomon v. State, 43Fla. L. Weekly D2024b (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D18-1228.op.pdf

COMPETENCY: Court erred in continuing trial without a competency hearing where there were reasonable grounds to believe that incompetent to proceed. Mann v. State, 43 Fla. L. Weekly D2021b (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D18-245.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for misadvising him that he could not be sentenced to a prison term longer than that received by codefendants. Santiago v. State, 43 Fla. L. Weekly D2020a (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D18-1479.op.pdf

INSANITY: Court erred when it denied Defendant's pro se motion to appoint an expert toevaluate insanity defense after he was prescribed medications at the hospital the night of the offense [TonyTatti]. Beshears v. State, 43 Fla. L. Weekly D2019c (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D16-4360.op.pdf

MINOR-LENGTHY SENTENCE: Where court amends the sentencing documents to provide for judicial review hearing of a lengthy (35 year) sentence, it also must conduct a full resentencing hearing. Conflict certified. Santiago v. State, 43 Fla. L. Weekly D2019a (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D17-3394.op.pdf

VOP: Court failed to prove a willful violation of probation by driving with a suspended license where it failed to present evidence that the Defendant had knowledge that his license had been suspended. Stringfield v. State, 43 Fla. L. Weekly D2018c (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D17-2798.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel was ineffective for failing to object to jury instructions was permitted jury to convict him of felony battery by great bodily harm probation charged aggravated battery with a deadly weapon. Snead v. State, 43 Fla. L. Weekly D2017a (5th DCA 8/31/18)

http://5dca.org/Opinions/Opin2018/082718/5D18-1247.op.pdf

MINOR-LIFE IMPRISONMENT: Where defendant establishes rehabilitation at sentence review hearing, trial court is not required to review aggregate sentence defendant is serving. "The new juvenile sentencing provisions seem complex because the sentencing rules for life felonies and F1-PBLs are complex." State v. Purdy, 43 Fla. L. Weekly S321b (FLA 8/30/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-843.pdf

DEATH PENALTY-POST CONVICTION RELIEF: Prior denial of defendant's appeal from circuit court'sdenial of his successive motion for post conviction relief raising similar claims is procedural bar to claimsat issue in instant appeal. Lightbourne v. State, 43 Fla. L. Weekly S321a (FLA 8/30/18)

http://www.floridasupremecourt.org/decisions/2018/Lightbourne,%20SC18-677%20(3.851).pdf

DEATH PENALTY: Defendant who was sentenced to death following jury's unanimous recommendation of death and whose death sentence became final in 2001 not entitled to Hurst relief. Kearse v. State, 43 Fla. L. Weekly S320b (FLA 8/30/18)

http://www.floridasupremecourt.org/decisions/2018/Kearse,%20SC18-458%20(3.851).pdf

SEARCH AND SEIZURE-TRAFFIC STOP: Stop of defendant's vehicle which matched description in BOLOwas legal where stop occurred at 4 : 15 a.m. when no other vehicles were on the road and stop occurred nearreported shooting. Coby v. State, 43 Fla. L. Weekly D2011b (1st DCA 8/30/18)

https://edca.1dca.org/DCADocs/2018/0306/180306_1284_08302018_10400886_i.pdf

SEARCH AND SEIZURE: Second officer had probable cause to arrest and search defendant where off-duty officersmelled marijuana confined to defendant's location and observed defendant smoking what appeared to be marijuanacigarette; and second officer noted the smell of burnt marijuana coming from area occupied by defendant andwitnessed defendant smoking what appeared to be a marijuana blunt. Dawson v. State, 43 Fla. L. Weekly D2009b(1st DCA 8/30/18)

https://edca.1dca.org/DCADocs/2017/4068/174068_1284_08302018_10380817_i.pdf

CREDIT FOR TIME SERVED: Defendant is not entitled to credit for time served in jail in another county were evidence does not support that he was actually arrested on the date claimed. Campbell v. State, 43 Fla. L. Weekly D2009a (1st DCA 8/30/18)

https://edca.1dca.org/DCADocs/2016/5039/165039_1284_08302018_09512928_i.pdf

EVIDENCE: Court properly admitted evidence of jailhouse phone call from Defendant to his girlfriend where he identified himself as the speaker. Veach v. State, 43 Fla. L. Weekly D2008a (1st DCA 8/30/18)

https://edca.1dca.org/DCADocs/2017/0711/170711_1284_08302018_10254300_i.pdf

EVIDENCE: Court abused its discretion by redacting child's statement that defendant also sexually abused his own daughter and by excluding daughter's denial that such abuse occurred. Macomber v. State, 43 Fla. L. Weekly D2004b (1st DCA 8/30/18)

https://edca.1dca.org/DCADocs/2016/1828/161828_1287_08302018_09503063_i.pdf

SEARCH AND SEIZURE: The plain touch exception to the Fourth Amendment does not permit an officer to seize objects felt during a weapons search, when the objects are not weapons and there is insufficient evidence of contraband. Defendant fiddling with his waist band does not justify officer patting down his scrotal area. T.T. v. State, 43 Fla. L. Weekly D2002a (4th DCA 8/29/18)

QUOTATION: "In making probable cause determinations, courts must conscientiously evaluate the sufficiency of evidence and decline to ratify naked conclusions or the use of 'buzz words' that imply certainty." T.T. v. State, 43 Fla. L. Weekly D2002a (4th DCA 8/29/18)

NEW EVIDENCE: To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Harvey v. State, 43 Fla. L. Weekly D2000b (3rd DCA 8/29/18)

http://3dca.flcourts.org/Opinions/3D18-1590.pdf

POST CONVICTION RELIEF: Court may rely on the sworn testimony in the plea colloquy to conclusively refute an allegation made in a motion for postconviction relief. DeJesus v. State, 43 Fla. L. Weekly D2000a (3rd DCA 8/29/18)

http://3dca.flcourts.org/Opinions/3D18-1180.pdf

STAND YOUR GROUND: Amendment shifting burden of proof from defendant to state and immunityhearing is apply retroactively. Sexton v. State, 43 Fla. L. Weekly D1999a (3rd DCA 8/29/18)

http://3dca.flcourts.org/Opinions/3D18-1500.pdf

FUGITIVE WARRANT: Where 90 days have not passed from date case was filed on fugitive warrant, detention in county jail is legal and is pending resolution of fugitive warrant process. Vargas v. Junior, 43 Fla. L. Weekly D1995a (3rd DCA 8/29/18)

JUDGE-IMPARTIALITY: Court does not depart from impartiality by continuing sentencinghearing to hear from the victim. Baugh v. State, 43 Fla. L. Weekly D1985d (1st DCA 8/24/18)

https://edca.1dca.org/DCADocs/2016/5652/165652_1284_08242018_01172258_i.pdf

SENTENCING: Court may not consider unsworn statement from victim in sentencing hearing, but error is not fundamental. Baugh v. State, 43 Fla. L. Weekly D1985d (1st DCA 8/24/18)

https://edca.1dca.org/DCADocs/2016/5652/165652_1284_08242018_01172258_i.pdf

CONSTRUCTIVE POSSESSION: Video showing that the Defendant ran and drop something near the gas station pumps during a shootout is insufficient to establish possession of marijuana found in the area. When the contraband is found in a public place, more than mere proximity to the defendant must be shown to sustain a conviction. McKire v. State, 43 Fla. L. Weekly D1984a (1st DCA 8/24/18)

https://edca.1dca.org/DCADocs/2016/5158/165158_1286_08242018_01124496_i.pdf

FALSELY ACTING AS PUBLIC OFFICER: Grand jury foreman who created his own "People's Grand Jury Under Common Law in Dixie County, Florida" and approved to "True Bills" to arrest public officials is properly convicted of falsely acting as a public officer. Trussell v. State, 43 Fla. L. Weekly D1978a (1st DCA 8/24/18)

https://edca.1dca.org/DCADocs/2016/3763/163763_1284_08242018_12380276_i.pdf

EXPERT: Police officer does not need to qualify as an expert to testify that dog can detect odors from someone in an anxious mental or physical state. Johnson v. State, 43 Fla. L. Weekly D1976a (1st DCA 8/24/18)

https://edca.1dca.org/DCADocs/2016/3986/163986_1284_08242018_12494109_i.pdf

CIRCUMSTANTIAL EVIDENCE: Claim that evidence was wholly circumstantial is waived if not preserved at trial. Regardless, evidence that Defendant was 1 of 2 people who broke into her apartment and he was shot in the shoulder while fleeing is sufficient circumstantial evidence to sustain conviction. Charles v. State, 43 Fla. L. Weekly D1972a (1st DCA 8/24/18)

https://edca.1dca.org/DCADocs/2016/3860/163860_1284_08242018_12410514_i.pdf

MINOR-LIFE SENTENCE: Apprendi does not require that jury rather than the judge must pass on the factors set forth in Fla.Stat. § 921.1401(2). Gonzalez v. State, 43 Fla. L. Weekly D1971a (1st DCA 8/24/18)

https://edca.1dca.org/DCADocs/2017/1254/171254_1284_08242018_01331303_i.pdf

MODIFICATION-SENTENCE-JURISDICTION: Court lacks jurisdiction to rule on State's motion to clarify Defendant's sex offender probation 3 years after the original sentencing. Martinez v. State, 43 Fla. L. Weekly D1967b (2nd DCA 8/20/18)

https://edca.2dca.org/DCADocs/2017/0560/170560_39_08242018_08222921_i.pdf

INEFFECTIVENESS OF APPELLATE COUNSEL: Appellate counsel was ineffective for failing to argue the jury instruction for attempted manslaughter is a lesser included offense of attempted murder was fundamental error were the instruction included an element of intent to kill. Franklin v. State, 43 Fla. L. Weekly D1964a (2nd DCA 8/24/18)

https://edca.2dca.org/DCADocs/2017/2958/172958_167_08242018_08302097_i.pdf

APPEALS-JURISDICTION: Notice of appeal is untimely when sent by a prisoner to the State Attorney and/or Attorney General, but did not mail it to the Clerk of the lower court. Linville v. State, 43 Fla. L. Weekly D1962c (5th DCA 8/24/18)

http://5dca.org/Opinions/Opin2018/082018/5D18-1975.op.pdf

POST CONVICTION RELIEF: Counsel was ineffective for failing to proffer the testimony of his probation officer that she received a call from the maternal grandmother days before the allegations of sexual abuse emerged wherein the maternal grandmother reported that Appellant had physically abused the victim's brother, to support claim that the victim's mother and grandmother tried to frame the Defendant. Roe v. State, 43 Fla. L. Weekly D1959a (5th DCA 8/24/18)

http://5dca.org/Opinions/Opin2018/082018/5D17-2468.op.pdf

VOP: Finding that Defendant violated probation by failing to pay restitution and court costs stricken whether record does not demonstrate that he had the ability to pay. Coleman v. State, 43 Fla. L. Weekly D1955b (4th DCA 8/22/18)

YOUTHFUL OFFENDER: Where Defendant, a youthful offender, violated probation and is sentenced to in excess of the 6-year youthful offender, the sentence becomes an adult sentence and the Court is not required to maintain his youthful offender status. Based on recent Florida Supreme Court Court opinion changing the law. Granger v. State, 43 Fla. L. Weekly D1954a (4th DCA 8/22/18)

MURDER-CAUSATION-INTERVENING CAUSE: Where elderly victim was beaten and later died at home after hospital mistakenly determined that brain hemorrhage had been resolved, Defendant is still properly convicted of murder. To constitute an intervening cause, the hospital process negligence must be the sole cause of death. Williams v. State, 43 Fla. L. Weekly D1950a (4th DCA 8/22/18)

JURORS-PEREMPTORY CHALLENGE-RACIAL DISCRIMINATION: Court is always required to follow three-step procedure set out in Melbourne when party objects to exercise of a peremptory challenge on the ground that it was made on a discriminatory basis. Melbourne imposes duty on trial courts at "genuineness" step to request a response to proffered explanation him from the opponent of the peremptory challenge , regardless whether counsel so requests. Johnson v. State, 43 Fla. L. Weekly D1942a ( 4th DCA 8/22/18)

EYE ROLLING MOMENT: State justified striking black jurors because "[T]he Defense has stricken two black females in their first round of strikes. They've also stricken black individuals for cause." Johnson v. State, 43 Fla. L. Weekly D1942a ( 4th DCA 8/22/18)

QUOTATION (DISSENT): "[T]he goal has become the process; the sideshow becoming part of the main event." Johnson v. State, 43 Fla. L. Weekly D1942a (4th DCA 8/22/18)

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for misadvising that because State failed to file a PRR notice for his second trial, Court has discretion to impose a sentence less than life imprisonment. Stoddard v. State, 43 Fla. L. Weekly D1938d (2nd DCA 8/22/18)

https://edca.2dca.org/DCADocs/2017/5103/175103_114_08222018_08424777_i.pdf

HEARSAY-PRICE TAG: Price tag is not hearsay. A business records foundation need not be laid before a witness is permitted to testify to what the price tag said. L.A. v. State, 43 Fla. L. Weekly D1938b (3rd DCA 8/22/18)

http://3dca.flcourts.org/Opinions/3D17-0436.pdf

VOP-JURISDICTION: Affidavit alleging only technical violations does not hold the probationary period. Bethel v. State, 43 Fla. L. Weekly D1918e (4th DCA 8/17/18)

MANDAMUS: Record documents that were prepared at public expense on behalf of an indigent defendant must be provided to him or her without charge for copying. Kimbrough v. State, 43 Fla. L. Weekly D1915a (5th DCA 8/17/18)

http://5dca.org/Opinions/Opin2018/081318/5D18-608.op.pdf

DOWNWARD DEPARTURE: Downward departure based on the incident being isolated in the unsophisticated is not warranted in which Defendant used her position as office manager to write checks to herself from her boss's business. A crime cannot be considered isolated where there were multiple incidents over several months. State v. Hollinger, 43 Fla. L. Weekly D1913c (5th DCA 8/17/18)

http://5dca.org/Opinions/Opin2018/081318/5D17-1996.reh.op.pdf

FTA: Court was not justified in issuing a capias for failing to appear at a rescheduled disposition hearing where defendant was not given adequate notice that he had to appear despite his waiver appearance. Cannon v. State, 43 Fla. L. Weekly D1912b (2nd DCA 8/17/18)

https://edca.2dca.org/DCADocs/2018/0229/180229_167_08172018_09004801_i.pdf

SENTENCING: Court erred in failing to impose a sentence on all counts. State v. Rogers, 43 Fla. L. Weekly D1912a (2nd DCA 8/17/18)

https://edca.2dca.org/DCADocs/2016/3470/163470_114_08172018_08545933_i.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to hire an accident reconstruction expert to show that road conditions contributed to the crash where evidence of Defendant's intoxication was overwhelming and threshold for causation is low. Where a defendant's decision about going to trial turns on his prospects of success, and the attorney's alleged error affected those prospects of success, the defendant must also show that he would have been better off going to trial. "Even if inadequate signage and poor road conditions led Koroly the wrong way, had Koroly not been intoxicated he likely would have noticed the interstate median on his right and the headlights of any oncoming vehicles and corrected his actions before traveling the length of over five football fields and colliding head-on with Johnny Robinson." Koroly v. State, 43 Fla. L. Weekly D1908a (1st DCA 8/16/18)

https://edca.1dca.org/DCADocs/2017/1381/171381_1284_08162018_11091509_i.pdf

ROBBERY WITH A FIREARM: Court did not fundamentally err by not instructing the jury that a BB gun is not a firearm, but rather referring the jury to the jury instructions, particularly whether there was some dispute as to whether the weapon which had not been recovered was a BB gun or a firearm. Miller v. State, 43 Fla. L. Weekly D1906a (1st DCA 8/16/18)

https://edca.1dca.org/DCADocs/2017/4094/174094_1284_08162018_11125293_i.pdf

JURORS-CHALLENGE FOR CAUSE: Court did not abuse its discretion by refusing to excuse for cause a juror who worked as a prosecutor for state attorney's office 27 years earlier and whose husband was an investigator for that office where juror stated unequivocally that nothing about her experience as prosecutor or her husband's employment would affect her ability to be fair and impartial. Williams v. State, 43 Fla. L. Weekly D1904a (1st DCA 8/16/18)

https://edca.1dca.org/DCADocs/2017/0731/170731_1284_08162018_11060724_i.pdf

FIREARM-POSSESSION: The crime of "possessing a concealed weapon by a felon" is a nonexistent offense. "Carrying a concealed weapon by a felon" is a crime. Mislabeling of the offense as "possession of a concealed weapon by a convicted felon" is confusing and requires a new trial. Wiggins v. State, 43 Fla. L. Weekly D1903a (1st DCA 8/16/18)

https://edca.1dca.org/DCADocs/2017/0739/170739_1286_08162018_11073841_i.pdf

JOA-PRINCIPAL: Defendant's post-arrest admission that he and others should not completed the drug transaction is insufficient to show that he actually did something to help commit the offense; JOA is required. Ammons v. State, 43 Fla. L. Weekly D1902a (1st DCA 8/16/18)

https://edca.1dca.org/DCADocs/2016/2084/162084_1287_08162018_10551946_i.pdf

COMMENT ON SILENCE: Court's admonition on right to remain silent from standard jury instruction during voir dire and State's comment that the pro se Defendant would be held to the standards of a represented defendant is not an an improper comment on the right to remain silent rising to the level of fundamental error. Kendle v. State, 43 Fla. L. Weekly D1885a (3rd DCA8/15/18)

http://3dca.flcourts.org/Opinions/3D16-0243.pdf

SEALING CRIMINAL RECORD: Order compelling FDLE to issue a certificate of eligibility for sealing is a departure from the essential requirements of law because Defendant had previously secured expunction in a previous case in a different county. The fact that the previous sealing had been unsealed does not change the prohibition on a second sealing. FDLE v. Elmufdi, 43 Fla. L. Weekly D1876a (3rd DA 8/15/18)

http://3dca.flcourts.org/Opinions/3D17-1651.pdf

CONTEMPT-INDIRECT: Attorneys cannot be held in indirect criminal contempt for violation of discovery order directed to their client where there was no evidence that attorneys advised client to violate discovery order. Hudson v. Marin, 43 Fla. L. Weekly D1870c (3rd DCA 8/15/18)

http://3dca.flcourts.org/Opinions/3D17-2754.pdf

VOP: Where the record does not contain the affidavit upon which the revocation was based, but the possibility exists that an affidavit of violation of community control, charging defendant with substantive violations of the conditions of supervision, was in fact filed, the case is remanded to the trial court for location and consideration of the relevant affidavit. Raimondi v. State, 43 Fla. L. Weekly D1868b (3rd DCA 8/15/18)

http://3dca.flcourts.org/Opinions/3D17-0583.pdf

SENTENCING: Court is not required to articulate reasons for sentencing defendant to a specific sentence within legislative limits. Taylor v. State, 43 Fla. L. Weekly D1863a (4th DCA 8/15/18)

SEXUAL BATTERY-VICTIM'S MENTAL CAPACITY: State is not entitled to mental incapacity of victim instruction ("Evidence of (victim's) mental incapacity or defect, if any, may be considered in determining whether there was an intelligent, knowing, and voluntary consent.") when there is no evidence of involuntary intoxication. Here, the victim's intoxication was voluntary. Amelio v. State, 43 Fla. L. Weekly D1855a (4th DCA 8/15/18)

JURY INSTRUCTION-MANSLAUGHTER: It is manifestly unjust to deny relief on claim that trial court committed fundamental error in giving erroneous instruction on manslaughter when defendant was convicted of second-degree murder, a crime one step removed from manslaughter. Crenshaw v. State, 43 Fla. L. Weekly D1854b (2nd DCA 8/15/18)

https://edca.2dca.org/DCADocs/2017/4187/174187_167_08152018_09104409_i.pdf

MINOR-RESENTENCING: Manifest injustice warrants reconsideration of prior decision in which appellate court erroneously rejected defendant's claims that sentence (45 years) was illegal under Graham. Gorman v. State, 43 Fla. L. Weekly D1854a (2nd DCA 8/15/18)

https://edca.2dca.org/DCADocs/2017/4268/174268_39_08152018_08501857_i.pdf

POST CONVICTION RELIEF: Counsel was ineffective for not moving for a JOA where state presented no evidence that the defendant was in 1000 feet of a place of worship; nevertheless the issue is not cognizable on direct appeal. Sorey v. State, 43 Fla. L. Weekly D1847b (1st DCA 8/10/18)

https://edca.1dca.org/DCADocs/2017/0901/170901_1284_08102018_11161875_i.pdf

SELF DEFENSE: Defendant is entitled to a jury instruction on self-defense where he claims he shot the victim to end the victim beating him up. Jackson v. State, 43 Fla. L. Weekly D1845a (1st DCA 8/10/18)

https://edca.1dca.org/DCADocs/2017/0316/170316_1287_08102018_10400777_i.pdf

PROBATION-SUSPENDED SENTENCE: Court erred in finding a willful and substantial violation of probation based on condition that had not clearly been imposed (getting a job at Home Depot). Scott v. State, 43 Fla. L. Weekly D1840d (1st DCA 8/10/18)

https://edca.1dca.org/DCADocs/2017/4089/174089_1287_08102018_11304861_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to call an expert witness to challenge State's fingerprint expert. Cowan v. State, 43 Fla. L. Weekly D1839a (5th DCA 8/10/18)

http://5dca.org/Opinions/Opin2018/080618/5D17-3728.op.pdf

POST CONVICTION RELIEF: Defendant is not entitled to relief from plea to sale of narcotics where he is told that there may be immigration consequences and he had talked to an immigration attorney about it. Pluck v. State, 43 Fla. L. Weekly D1838a (5th DCA 8/10/18)

http://5dca.org/Opinions/Opin2018/080618/5D18-1742.op.pdf

GRAND THEFT-VALUE: Victim testifying that his mother checked online and the used value for the iPhone 6 was $340 is insufficient evidence of value. A witness's mere ownership of property unaccompanied by sufficient personal knowledge of its value is insufficient. D.D. v. State, 43 Fla. L. Weekly D1832a (2nd DCA 8/10/18)

https://edca.2dca.org/DCADocs/2017/0769/170769_39_08102018_08373441_i.pdf

WITHHOLD OF ADJUDICATION: Court may not withhold adjudication without imposing probation. State v. Jene-Charles, 43 Fla. L. Weekly D1820a (3rd DCA 8/8/18)

http://3dca.flcourts.org/Opinions/3D16-0332.pdf

DOUBLE JEOPARDY: Separate convictions for Conspiracy to sell Narcotics and Constructive Possession of location with knowledge to be used for Sale of narcotics may violate Double Jeopardy if it is for a single conspiracy. State v. Jene-Charles, 43 Fla. L. Weekly D1820a (3rd DCA 8/8/18)

http://3dca.flcourts.org/Opinions/3D16-0332.pdf

STAND YOUR GROUND: Change in the burden of proof is a substantive change to the law and therefore applies only prospectively. Conflict certified. Hight v. State, 43 Fla. L. Weekly D1800a (4th DCA/8/18)

PUBLIC RECORDS: CNN is not entitled to attorney's fees for suit to get school shooting video. State Attorney's Office v. CNN, 43 Fla. L. Weekly D1799a (4th DCA 8/8/18)

HABEAS CORPUS: Where petition challenging conviction was filed in wrong circuit, Court should have transferred petition to correct circuit rather than dismissing petition as unauthorized. Hutchinson v. State, 43 Fla. L. Weekly D1790b (1st DCA 8/7/18)

https://edca.1dca.org/DCADocs/2017/4787/174787_1283_08072018_10043488_i.pdf

POST CONVICTION RELIEF: In sexual battery on child case, Counsel was ineffective for failing to investigate and introduce victim's school attendance records which would have discredited victim's trial testimony. McBride v. State, 43 Fla. L. Weekly D1789a (1st DCA 8/7/18)

https://edca.1dca.org/DCADocs/2017/2825/172825_1286_08072018_09595381_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on thequestionof whether counsel was ineffective for failing to call witnesses to rebut Williams rule evidence. Tualla v.State, 43 Fla. L. Weekly D1788b (2nd DCA 8/3/18)

https://edca.2dca.org/DCADocs/2017/4429/174429_114_08032018_09050318_i.pdf

SENTENCING-FINANCIAL CONSIDERATIONS: Sentence is illegal where plea agreement called for the Defendant to spend 6 months in jail if she could come up with the restitution or if not be subject to up to 20 years in prison. "Simply put, Ms. Vasseur's sentences are illegal." To impose a longer sentence because a defendant cannot pay restitution violates an indigent defendant's due process rights. Vasseur v. State, 43 Fla. L. Weekly D1787a (2nd DCA 8/3/18)

https://edca.2dca.org/DCADocs/2017/1778/171778_39_08032018_08585702_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for not letting him testify and failing to investigate Williams rule witness's motive to fabricate allegations. Roberts v. State, 43 Fla. L. Weekly D1785a (2nd DCA 8/3/18)

https://edca.2dca.org/DCADocs/2017/3015/173015_114_08032018_09021507_i.pdf

CONSPIRACY: Defendant cannot be convicted of conspiracy to traffick cocaine based on her driver her boyfriend to a drug deal and serving as a lookout. Cites Gray v. State, my case from 1988. Gould v. State, 43 Fla. L. Weekly D1778a (5th DCA 8/3/18)

http://5dca.org/Opinions/Opin2018/073018/5D17-684.op.pdf

COMPETENCY: Court did not err by not ordering a competency hearing after Defendant refused to cooperate with mental health professionals. Mars v. State, 43 Fla. L. Weekly D1771c(1st DCA 8/3/18)

https://edca.1dca.org/DCADocs/2016/2811/162811_1284_08032018_08475358_i.pdf

10/20/LIFE: Court may not impose 20-year mandatory minimum for aggravated assault or evidence does not support a finding that Defendant discharged a firearm during the offense of aggravated assault. The Defendant's discharge of a firearm was during the act of attempted murder, not during the aggravated assault. Jones v. State, 43 Fla. L. Weekly D1771a (1st DCA 8/3/18)

https://edca.1dca.org/DCADocs/2017/1111/171111_1286_08032018_08573697_i.pdf

SENTENCING CONSIDERATIONS: Court may not consider uncharged criminal activity in imposing sentence. Court may not rely in part on charge for which he was acquitted of that charge. Randall v. State, 43 Fla. L. Weekly D1770b (1st DCA 8/3/18)

https://edca.1dca.org/DCADocs/2016/3735/163735_1287_08032018_08545981_i.pdf

EVIDENCE-AUTHENTICATION: Blood-stained wallet and shoes obtained from defendant when he wasbooked into county jail were sufficiently authenticated through testimony of sheriff's office evidencecustodian and testimony indicating that shoes removed from defendant could not have been mixed up with thoseremoved from codefendant because codefendant's shoes had laces and defendant's did not. Thompson v. State, 43Fla. L. Weekly D1768a (1st DCA 8/3/18)

https://edca.1dca.org/DCADocs/2016/1916/161916_1284_08032018_08464664_i.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to present evidence that the Defendant was a good poker player to rebut the motive of financial gain for murdering someone to steal his magic : the Gathering cards and burying the body in his backyard. Cormier v. State, 43 Fla. L. Weekly D1765a (1st DCA 8/3/18)

https://edca.1dca.org/DCADocs/2017/0691/170691_1284_08032018_08562866_i.pdf

BOLSTERING: "[Y]ou might see that cops and the government and the State Attorneys wereally don't lie," is improper bolstering, but in context does not warrant a new trial. Lai v. State, 43Fla. L. Weekly D1760a (1st DCA 8/1/18)

https://edca.1dca.org/DCADocs/2016/1882/161882_1285_08012018_10334621_i.pdf

SEARCH AND SEIZURE-RESIDENCE-INEVITABLE DISCOVERY: Inevitable discovery doctrine does notpermit admission of illegally-seized evidence just because officers were conducting an "activeinvestigation" at the time of the illegality, even when police have already developed probable cause for asearch warrant at the time of the improper conduct, but had not started to obtain a search warrant. Clayton v.State, 43 Fla. L. Weekly D1756a (1st DCA 8/1/18)

https://edca.1dca.org/DCADocs/2017/0263/170263_1287_08012018_11041377_i.pdf

STATEMENTS OF DEFENDANT: Neither "Do I need that?", "Do I need him?", "Do I need to call my lawyer?", nor "Can I call my lawyer?" was an unequivocal request for counsel, but rather a prefatory question about his rights. Washington v. State, 43 Fla. L. Weekly D1753b (1st DCA 8/1/18)

https://edca.1dca.org/DCADocs/2016/5447/165447_1284_08012018_10564864_i.pdf

POST CONVICTION RELIEF: Impact of plea on future employment is a collateral consequence andtherefore not a grounds for postconviction relief based on misadvice. Ayesh v. State, 43 Fla. L. Weekly D1749a(3rd DCA 8/1/18)

http://3dca.flcourts.org/Opinions/3D17-2597.pdf

READ-BACK: Court did not abuse discretion in reading back to jury a specific portion of victim's testimony in response to a question as to how the victim responded when asked to had stabbed her. Procedures for read-back explained. "Simply put, a jury cannot properly fulfill its constitutionally mandated role if it cannot recall or is confused about the testimony presented in a case. Thus. . .trial courts should apply a liberal construction to a jury's request for transcripts." Mendez v. State, 43 Fla. L. Weekly D1738a (3rd DCA 8/1/18)

http://3dca.flcourts.org/Opinions/3D17-2746.pdf

POSSESSION OF FIREARM-DOUBLE JEOPARDY-COLLATERAL ESTOPPEL: Collateral estoppel/Double Jeopardy does not bar a second trial on a severed count of possession of a firearm by a felon based on you United States Supreme Court opinion of Currier v. Virginia, 138 S. Ct. 2144 (2018). Morris v. State, 43 Fla. L. Weekly D1727a (3rd DCA 8/1/18)

http://3dca.flcourts.org/Opinions/3D18-0073.pdf

BATTERY-EMERGENCY CARE PROVIDER: LPN is neither a "registered nurse" nor a "person authorized by emergency medical service," and therefore is not an "emergency medical care provider." Failure to move for a judgment of acquittal is ineffective assistance of counsel on the face of the record. Conviction vacated.Twigg v. State, 43 Fla. L. Weekly D1721a (4th DCA 8/1/18)

INCONSISTENT DEFENSES: Defendant is entitled to assert self-defense as an alternate theory of defense regardless of whether the defenses may have been inconsistent. Twigg v. State, 43 Fla. L. Weekly D1721a (4th DCA 8/1/18)

SENTENCING-CONSIDERATIONS: Court erred in considering Defendant's jailhouse behavior atsentencing. Walker v. State, 43 Fla. L. Weekly D1718a (4th DCA 8/1/18)

SEARCH AND SEIZURE-REASONABLE SUSPICION-PLAIN VIEW: Defendant's act of hiding apparent cocaine in his grits does not justify the search of the grits. Peynado v. State, 43 Fla. L. Weekly D1715b (4th DCA 8/1/18)

OPENING THE DOOR: Opening-the-door doctrine does not apply to testimony elicited by co-defendants. "The prosecution may not gain, through the device of a joint trial, admission against one defendant of otherwise inadmissible evidence on the happenstance that the door to admitting the evidence has been opened by a co-defendant." Jackson v. State, 43 Fla. L. Weekly D1715a (4th DCA/1/18)

STAND YOUR GROUND: 2017 amendment to statute was procedural in nature and should beapplied retroactively. Conflict certified. Sullivan v. State, 43 Fla. L. Weekly D1712b (2nd DCA 8/1/18)

https://edca.2dca.org/DCADocs/2016/5065/165065_39_08012018_08424340_i.pdf

JULY 2018

SEARCH AND SEIZURE-WARRANT: Search of vehicles in parking space within three feet of motel room subject to a search warrant is unlawful; parking spaces are not curtilage. Curtilage defined. Shannon v. State, 43 Fla. L. Weekly D1704a (2nd DCA 7/27/18)

EVIDENCE: Detective's testimony that after working for 12 or 13 years in area where defendant resided and was arrested on various drug charges, he was familiar with the area and knew defendant and "a lot of residents" in that area is not an improper, or if error, was harmless. Spike v. State, 43 Fla. L. Weekly D1699a (2nd DCA 7/27/18)

https://edca.2dca.org/DCADocs/2015/4825/154825_65_07272018_08521081_i.pdf

COSTS: Court may not impose a $65 assessment without indicating the county ordinance authorizing it. McCann v. State, 43 Fla. L. Weekly D1698b (2nd DCA 7/27/18)

https://edca.2dca.org/DCADocs/2016/0812/160812_65_07272018_08542921_i.pdf

DWLS-HABITUAL TRAFFIC OFFENDER: Public Defender may not intervene in earlier civil traffic infraction cases to remove a predicate conviction. Public Defender may represent someone only in circumstances entailing prosecution threatening a indigent person's liberty interest. State v. Grate and Morton, 43 Fla. L. Weekly D1696a (5th DCA 7/27/18)

http://5dca.org/Opinions/Opin2018/072318/5D18-683.op.pdf

SENTENCING-CONSECUTIVE MANDATORY MINIMUM: Resentencing is not required where the court imposed consecutive mandatory minimum sentences, realizing that doing so was in his discretion, rather than as a mistaken belief that it was required. Edwards v. State, 43 Fla. L. Weekly D1695a (5th DCA 7/27/18)

http://5dca.org/Opinions/Opin2018/072318/5D17-1846.op.pdf

APPEAL: Court lacks jurisdiction to rule on motion to correct sentence while an appeal is pending. Wallace v. State, 43 Fla. L. Weekly D1693b (5th DCA 7/27/18)

http://5dca.org/Opinions/Opin2018/072318/5D18-279.op.pdf

SENTENCING-MINOR: Concurrent 22 year sentences for minor is lawful, but Defendant is entitled to judicial review after 20 years. Robinson v. State, 43 Fla. L. Weekly D1693a (5th DCA 7/27/18)

http://5dca.org/Opinions/Opin2018/072318/5D17-1801.op.pdf

PRETRIAL DETENTION-HABEAS CORPUS: Court may impose a pretrial release condition requiring Defendant to show the source of funds used to post bond (Nebbia hold). Conflict certified. Fleury v. State, 43 Fla. L. Weekly D1689a (4th DCA 7/25/18)

COUNSEL-DISCHARGE: Court may deny Defendant's request to discharge appointed counsel and retain private counsel just before jury selection. Bentz v. State, 43 Fla. L. Weekly D1683b (4th DCA 7/25/18)

PUBLIC RECORDS: Court did not err in ordering disclosure to the press of footage of the Marjorie Stoneman Douglas school shooting. Such video footage is not "criminal investigative information." State Attorney's Office v. CNN, 43 Fla. L. Weekly D1685a (4th DCA 7/25/18)

VOP-HEARSAY: VOP cannot be based on the hearsay testimony from the probation officer that she spoke to a person who said Defendant no longer lived in the apartment. Delopa v. State, 43 Fla. L. Weekly D1680a (4th DCA 7/25/18)

SEARCH AND SEIZURE: Officer's personal observations of defendant holding what appeared to be spice joints and extensive experience and training with narcotics, coupled with defendant's evasive behavior in a high-crime area, created a reasonable suspicion justifying an investigatory stop. State v. Zachery, 43 Fla. L. Weekly D1666a (2nd DCA 7/25/18)

https://edca.2dca.org/DCADocs/2016/5036/165036_39_07252018_09055578_i.pdf

SEARCH AND SEIZURE-CONSENT-VOLUNTARINESS: Stop made on the basis of anonymous tip that a black male and a red, yellow and black jacket was carrying a gun and standing outside a convenience store was unlawful. Acquiescence to a search based on that initial unlawful stop is not voluntary consent. Consent obtained after illegal police activity is presumptively involuntary absent clear and convincing proof of an unequivocal break in the chain of illegality. Moody v. State, 43 Fla. L. Weekly D1665a (2nd DCA 7/25/18)

https://edca.2dca.org/DCADocs/2016/5533/165533_114_07252018_09101185_i.pdf

RESISTING WITHOUT VIOLENCE: Where officer told Juvenile that she could go to a particular shelter or go to the Juvenile Assessment Center, and juvenile said she'd rather go to the JAC, the Juvenile has not resisted. S.G. v. State, 43 Fla. L. Weekly D1656c (1st DCA 7/25/18)

https://edca.1dca.org/DCADocs/2017/4170/174170_1287_07252018_09042161_i.pdf

SENTENCING: Where Defendant failed to appear for sentencing, and Court had warned him that he would not abide by the plea agreement if he FTAed, Court may sentence defendant in excess of the plea agreement. Cooper v. State, 43 Fla. L. Weekly D1656a (1st DCA 7/25/18)

https://edca.1dca.org/DCADocs/2017/1586/171586_1284_07252018_08361557_i.pdf

DOUBLE JEOPARDY: Where case is remanded for re-sentencing based on trial court's mistaken belief that mandatory minimum score required, Court may restructure the sentences to match his original intent. Gartman v. State, 43 Fla. L. Weekly D1653a (1st DCA 7/25/18)

https://edca.1dca.org/DCADocs/2016/5552/165552_1284_07252018_08322006_i.pdf

EVIDENCE: Court properly excluded evidence of mother's prior acts of abuse toward the victim and others (violent spanking) where the abuse was not similar to the acts the cause the victim's death (violent blows to the head). When a defendant seeks to introduce another person's prior bad acts to shift suspicion from himself to another person, evidence of past criminal conduct of that other person should be of such nature that it would be admissible if that person were on trial for the present offense. Rivet v. State, 43 Fla. L. Weekly D1651c (1st DCA 7/25/18)

https://edca.1dca.org/DCADocs/2015/4430/154430_1284_07252018_08310779_i.pdf

JIMMY RYCE: Court has authority to enter a directed verdict in favor of the State. Civil rules of procedure apply to Jimmy Ryce proceedings. Gering v. State, 43 Fla. L. Weekly D1642a (3rd DCA 7/25/18)

http://3dca.flcourts.org/Opinions/3D16-0558.pdf

POST CONVICTION RELIEF-MANDAMUS: Defendant cannot file a petition for writ of mandamus seeking to compel the trial court to conduct an evidentiary hearing on a post-conviction motion under 3.850. Watts v. State, 43 Fla. L. Weekly D1641a (3rd DCA 7/25/18)

http://3dca.flcourts.org/Opinions/3D18-1377.pdf

SUPPRESSION: Court may not suppress recordings made by an animal rights group showing pigs being slaughtered in an animal cruelty case by making factual findings without taking evidence at a hearing. State v. Garcia, 43 Fla. L. Weekly D1639a (3rd DCA 7/25/18)

http://3dca.flcourts.org/Opinions/3D16-1807.pdf

LIFE SENTENCE-MINOR: Minor who was sentenced to life in prison, paroled, and committed new offense, is not entitled to a further sentence review. Jay v. State, 43 Fla. L. Weekly D1638a (3rd DCA 7/25/18)

http://3dca.flcourts.org/Opinions/3D17-1440.pdf

VOP-JUDGMENT: Court must not enter a duplicate to judgment of guilt when sentencing Defendant for VOP. Fountain v. State, 43 Fla. L. Weekly D1635b (2nd DCA 7/20/18)

https://edca.2dca.org/DCADocs/2017/3933/173933_65_07202018_09042784_i.pdf

COSTS OF PROSECUTION: Costs of prosecution (witness travel fees) should be included in final judgment not as a separate order restitution. Robinson v. State, 43 Fla. L. Weekly D1633b (5th DCA 7/20/18)

http://5dca.org/Opinions/Opin2018/071618/5D16-4227.op.pdf

COSTS: Court may not impose Public Defender fees and $50 application fee in greater amounts than statutorily required absent documentation supporting the greater amount. Robinson v. State, 43 Fla. L. Weekly D1633b (5th DCA 7/20/18)

http://5dca.org/Opinions/Opin2018/071618/5D16-4227.op.pdf

SEARCH AND SEIZURE-PAT DOWN-INEVITABLE DISCOVERY: Where police see drugs on the car seat in a jointly occupied vehicle, they have probable cause to arrest the defendant for constructive possession; the evidence would have been inevitably discovered, so that reaching into the Defendant's pocket and finding more drugs is not an unlawful search. State v. Upshaw, 43 Fla. L. Weekly D1633a (5th DCA 7/20/18)

http://5dca.org/Opinions/Opin2018/071618/5D17-3611.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to an evidentiary hearing on claim that counsel was ineffective for failing to depose the victim and other witnesses. Alvarez v. State, 43 Fla. L. Weekly D1632c (5th DCA 7/20/18)

http://5dca.org/Opinions/Opin2018/071618/5D18-1135.op.pdf

CREDIT FOR TIME SERVED: Court must not deny motion to correct credit for time served without attaching portions of the record supporting the denial. Devane v. State, 43 Fla. L. Weekly D1632b (5th DCA 7/20/18)

http://5dca.org/Opinions/Opin2018/071618/5D18-705.op.pdf

SENTENCING-MINOR-HOMICIDE: Resentencing is required for second-degree murder where jury did not make a finding that the Defendant "actually killed, intended to kill, or attempted to kill" victim, and the verdict is consistent with the codefendant having actually killed the victim. Defendant must be resentenced as though there had been a jury finding that he did not kill or intend to kill the Victim. Wall v. State, 43 Fla. L. Weekly D1629a (5th DCA 7/20/18)

http://5dca.org/Opinions/Opin2018/071618/5D16-3731.op.pdf

VOP : Evidence was insufficient to prove that defendant violated condition prohibiting defendant from changing her residence without consent of PO where she told PO that she lacked the finances to continue staying there and PO told her simply that she needed to apprise him of her new residence. Hernandez v. State, 43 Fla. L. Weekly D1628b (5th DCA 7/20/18)

http://5dca.org/Opinions/Opin2018/071618/5D17-2687.op.pdf

AMENDMENT-RULES RELATING ADMISSION TO THE BAR: The Supreme Court of Florida may certify a lawyer who is the spouse of a full-time active duty member of the United States armed forces to engage in the practice of law in Florida while the lawyer's spouse is stationed within this jurisdiction, due to the unique mobility requirements of military families who support the defense of the United States. A lawyer certified under this chapter is considered a member of the Florida Bar during the period of certification. In Re : Amendments, 43 Fla. L. Weekly S312a (FLA 7/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-158.pdf

POST CONVICTION RELIEF-DEATH PENALTY-INTELLECTUAL DISABILITY: Claim that Defendant is not eligible for death penalty based on intellectual disability is time barred. Blanco v. State, 43 Fla. L. Weekly S310a (FLA 7/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-330.pdf

POST CONVICTION RELIEF-SELF-REPRESENTATION: Defendant can waive assistance of counsel in motion for postconviction relief in death penalty cases. Rose v. State, 43 Fla. L. Weekly S307a (FLA 7/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-878.pdf

AMENDMENT-RULES-CRIMINAL PROCEDURE: Several minor changes to criminal rules of procedure. In Re : Amendments to Criminal Rules, 43 Fla. L. Weekly S305c (FLA 7/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-118.pdf

APPEALS: Guilt phase issues which were not briefed are waived. Phillips v. State, 43 Fla. L. Weekly S305b (FLA 7/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1150.pdf

DEATH PENALTY: Hurst does not apply retroactively to defendant's sentence of death, which became final in 1986. Peede v. State, 43 Fla. L. Weekly S305a (FLA 7/19/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1674.pdf

STAND YOUR GROUND: Statutory amendment changing burden of proof in "Stand Your Ground" hearing applies retroactively to cases that were pending when amendment was enacted. Conflict certified. Catalano v. State, 43 Fla. L. Weekly D1622d (2nd DCA 7/18/18)

https://edca.2dca.org/DCADocs/2016/3307/163307_39_07182018_09102899_i.pdf

VOIR DIRE-LIMITATION: Time limits in jury selection were not unreasonable here, particularly were counsel spent much of his time trying to pre-try the case. "[N]o mathematical formula exists, nor should a mathematical formula exist, for the amount of time provided for voir dire." Flexibility is encouraged. "A brief extension of time would have been far less than the many hours which both sides' appellate counsel spent on this appeal, and many days less than the amount of time which would have been necessary to try this case again if we decided to reverse." Thomany v. State, 43 Fla. L. Weekly D1619a (4th DCA 7/18/18)

VOIR DIRE-PURPOSE: Appellate court disagrees with trial court's conclusion that Defendant's attorney conducted his voir dire in a manner to attempt to preserve the issue of insufficient time for voir dire, but criticized counsel's attempt to "pre-try" the case. "Pre-trying" of the case is not a proper purpose of voir dire. Thomany v. State, 43 Fla. L. Weekly D1619a (4th DCA 7/18/18)

NEW EVIDENCE: Court properly summarily denied Defendant's motion to withdraw his plea based on alleged new evidence that cast doubt on the validity that pubic hair found on the scene was his. Tibbetts v. State, 43 Fla. L. Weekly D1617b (4th DCA 7/18/18)

EN BANC REVIEW: "Due to a large caseload, our fifteen-member appellate court. . .assigns each case randomly to a three-judge panel for disposition, raising the trivia question : How many different three-judge panels are possible? If you said 455, you're correct. Most people guess a far smaller number. What isn't trivial is the jurisprudential impact that so many different panels have on similar or related cases, making the need for intra-court decisional uniformity important. Without en banc review for uniformity, we'd not be one court attempting to dispense uniform justice, but an assemblage of 455 randomly-assigned and autonomous three-judge panels each doing as it sees fit." Mitchell v. Brogdon, 43 Fla. L. Weekly D1613a (1st DCA 7/16/18)

https://edca.1dca.org/DCADocs/2016/5849/165849_1287_07162018_08150923_i.pdf

DOUBLE JEOPARDY: Special conditions of sex offender probation imposed for an offense which does not require sex offender probation need not be orally pronounced, but where the plea agreement provided that sex offender probation did not apply, the later addition of sex offender conditions violates double jeopardy. Jones v. State, 43 Fla. L. Weekly D1611a (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2017/0267/170267_39_07132018_08183544_i.pdf

BURGLARY-JOA: JOA is required where girl and her friends entered a vacant house and State failed to present any evidence as to what the Child's intent was in entering it. Charge is reduced to trespassing. E.M. v. State, 43 Fla. L. Weekly D1610a (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2017/2521/172521_39_07132018_08224833_i.pdf

NELSON HEARING: Court may not remove the possibility of discharging court-appointed counsel for incompetence without giving the defendant a chance to be heard on the issue. Daniels v. State, 43 Fla. L. Weekly D1609a (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2016/4840/164840_39_07132018_08160233_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to inform him in advance about probationary terms and mandatory minimum sentences of plea agreement. Cendejas v. State, 43 Fla. L. Weekly D1608b (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2017/3957/173957_114_07132018_08331977_i.pdf

DOUBLE JEOPARDY: Defendant cannot be convicted of both DWLS causing death in failing to remain at scene of crash involving death based on a single death. Florida has a "single homicide rule." Martinez v. State, 43 Fla. L. Weekly D1608a (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2017/2888/172888_114_07132018_08261486_i.pdf

APPEAL-JURISDICTION: Trial court lacks jurisdiction to enter an amendment to a temporary time-cheering order after a notice of appeal has been filed. Duryea v. State, 43 Fla. L. Weekly D1607c (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2017/4314/174314_65_07132018_08374643_i.pdf

CREDIT FOR TIME SERVED: A defendant is entitled to receive jail credit for an offense after a warrant has been executed while he is being held in jail in another county; he is not entitled to jail credit on the basis of a detainer unless he is subject to release and is being held solely on the detainer. Bolduc v. State, 43 Fla. L. Weekly D1598b (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2017/2767/172767_39_07132018_08251467_i.pdf

STAND YOUR GROUND: Rules should be created creating a time period in which a petition for writ of prohibition should be filed following the denial of a motion to dismiss under the Stand Your Ground law. Lewis v. State, 43 Fla. L. Weekly D1597a (2nd DCA 7/13/18)

https://edca.2dca.org/DCADocs/2018/1126/181126_118_07132018_08353118_i.pdf

SENTENCING-MINOR-HOMICIDE: Jury, not the trial court, must make factual finding as to whether juvenile offender actually killed, intended to kill, or attempted to kill victim. Where jury was instructed on both premeditated and felony murder, it was error to fail to require jury to specify under which theory it found defendant guilty. Leppert v. State, 43 Fla. L. Weekly D1589b (5th DCA 7/13/18) v http://5dca.org/Opinions/Opin2018/070918/5D16-2238.remand.op.pdf

ATTORNEY' S FEES: Court may not award of attorney's fees where both parties were in similar financial position. Holloway v. Holloway, 43 Fla. L. Weekly D1589a (5th DCA 7/13/18)

http://5dca.org/Opinions/Opin2018/070918/5D17-1709.op.pdf

SENTENCING-MINOR-HOMICIDE: Sentence of life imprisonment with possibility of parole after 25 years for offense committed by juvenile does not violate Eighth Amendment. Atwell receded from. State v. Michel, 43 Fla. L. Weekly S298a (FLA 7/12/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-2187.pdf

DOUBLE JEOPARDY: Separate convictions for Aggravated Assault, Attempted Sexual Battery, and Burglary with an Assault or Battery do not violate prohibition against double jeopardy. Neither Aggravated Assault nor Attempted Sexual Battery is subsumed within the offense of Burglary with an Assault. Tambriz-Ramirez v. State, 43 Fla. L. Weekly S294a (FLA 7/12/18 )

http://www.floridasupremecourt.org/decisions/2018/sc17-713.pdf

YOUTHFUL OFFENDER: Upon revocation of probation for a substantive offense, Court has discretion to continue the Youthful Offender sentence without the minimum mandatory, or impose an adult Criminal Punishment Code sentence with the minimum mandatory and without continued Youthful Offender status. Eustache v. State, 43 Fla. L. Weekly S291a (FLA 7/12/18)

http://www.floridasupremecourt.org/decisions/2018/sc16-1712.pdf

JURY INSTRUCTIONS-FAILURE TO REGISTER: Jury instructions modified. In Re : Standard Jury Instructions, 43 Fla. Weekly S290a (FLA 7/12/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-2266.pdf

HARMLESS ERROR-TEST: The test for harmless error "is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. . .The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful." Rodriguez v. State, 43 Fla. L. Weekly S289b (FLA 7/12/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-805.pdf

PRETRIAL DETENTION-HABEAS CORPUS: Defendant who FTA'ed and committed new offenses may be held without bond. Sardinas v. Junior, 43 Fla. L. Weekly D1612d (3rd DCA 7/12/18)

http://3dca.flcourts.org/Opinions/3D18-1320.pdf

ARGUMENT-GOLDEN RULE: "Think about the state of mind she's in at that point in time that all these questions were asked to her. What happened? What happened?" Is not an improper Golden rule argument. The mere fact that the State asked the jury to consider the victim's mental and physical condition shortly after the crime was committed did not transform this argument into a golden rule violation. Jackson v. State, 43 Fla. L. Weekly D1584a (3rd DCA 7/11/18)

http://3dca.flcourts.org/Opinions/3D16-2371.rh.pdf

ARGUMENT: The prosecutor's comparison of Defendant's conduct to lions' predatory attack on its prey at night is not fundamental error. Slaughter v. State, 43 Fla. L. Weekly D1581a (4th DCA 7/11/18)

PROBATION REVOCATION-LOITERING AND PROWLING: Child who fled from police cannot be found to have violated probation by committing the crime of Loitering and Prowling because the actions do not amount to that crime. D.M.B. v. State, 43 Fla. L. Weekly D1579b (4th DCA 7/11/18)

LEAVING SCENE OF ACCIDENT: Child cannot be found guilty of leanness even acts involving damage to unattended property where that property was an undamaged tree. C.T.T. v. State, 43 Fla. L. Weekly D1564a (1st DCA 7/9/18)

https://edca.1dca.org/DCADocs/2017/5163/175163_1286_07092018_01384567_i.pdf

COMPETENCY: Court is not required to conduct additional comps the proceedings where Defendant has a history malingering, evidence suggests he was current on his medications, and counsel represented that he was competent. Peoples v. State, 43 Fla. L. Weekly D1557c (1st DCA 7/9/18)

https://edca.1dca.org/DCADocs/2016/5875/165875_1284_07092018_12441406_i.pdf

STAND YOUR GROUND: Change in the burden of proof in Stand Your Ground cases is retroactive. Commander v. State, 43 Fla. L. Weekly D1554a (1st DCA 7/9/18)

https://edca.1dca.org/DCADocs/2018/0036/180036_1282_07092018_01442225_i.pdf

USE OF FIREARM IN COMMISSION OF FELONY: Court is required to dismiss charge of Use of Firearm In Commission of Felony where the defendant was acquitted of the related robbery charge. Brown v. State, 43 Fla. L. Weekly D1553a (1st DCA 7/9/18)

https://edca.1dca.org/DCADocs/2017/0555/170555_1287_07092018_01033015_i.pdf

WITNESS TAMPERING-EVIDENCE: Court did not abuse discretion in allowing evidence of jailhouse phone calls in which the Defendant identified himself and asked someone to get in touch with the victim for him. Veach v. State, 43 Fla. L. Weekly D1549b (1st DCA 7/9/18)

https://edca.1dca.org/DCADocs/2017/0711/170711_1284_07092018_01045640_i.pdf

AMENDMENT-EXPRESSION OF POLICY POSITION: No judge or supreme court created body, or any conference of judges may recommend to any legislative or executive branch entity any policy inconsistent with a policy position adopted by the Supreme Court. No resources of any judicial branch entity may be used to facilitate or support the expression of a judge's personal views. In Re : Amendments, Rules of Judicial Admin., Fla. L. Weekly S289a (FLA 7/6/18)

http://www.floridasupremecourt.org/decisions/2018/sc18-992.pdf

MINOR-SENTENCE REVIEW: Court erred in ruling that Minor-Defendant who had served 15 years of a 25-year-sentence was not entitled to a sentence review on the ground that his crime had taken place before the statute providing for such review had been promulgated. Elkin v. State, 43 Fla. L. Weekly D1545a (2nd DCA 7/6/18)

https://edca.2dca.org/DCADocs/2017/1750/171750_39_07062018_08214775_i.pdf

POST CONVICTION RELIEF: Court erred by summarily denying the claim that counsel was ineffective in advising Defendant to withdraw motion to sever murder from possession of firearm charges on the grounds that this was obvious trial strategy. A hearing is required. Thomas v. State, 43 Fla. L. Weekly D1538a (5th DCA 7/6/18)

http://5dca.org/Opinions/Opin2018/070218/5D18-185.op.pdf

APPEAL-STATE: State may not appeal court's ruling withholding adjudication of guilt where State did not preserve the issue by raising a contemporaneous objection. State v. Rivera, 43 Fla. L. Weekly D1537c (5th DCA 7/6/18)

http://5dca.org/Opinions/Opin2018/070218/5D17-4016.op.pdf

DEATH PENALTY: Defendant who was sentenced to death following a unanimous recommendation of death and $0.02 became final in 2001 is not entitled to relief under Hurst. Mansfield v. State, 43 Fla. L. Weekly S278a (FLA 7/5/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-690.pdf

PRETRIAL DETENTION-NEBBIA HOLD: Florida courts lack authority to detain accuseds for the purpose of inquiring into the source of funds used to post bail, but they may set a bond conditioned upon an inquiry into the source of the funds to be used to post bond. The burden of establishing the noninvolvement in or nonderivation from criminal or other illicit activity of such proffered funds, real property, property, or any proposed collateral or bond premium falls upon the defendant. Snell v. Junior, 43 Fla. L. Weekly D1539g (3rd DCA 7/5/18)

http://3dca.flcourts.org/Opinions/3D18-1316.pdf

VOIR DIRE: It is improper for prosecutor to ask jurors on voir dire if they could come back with a conviction although state had not recovered the firearm used by defendant. The State is prohibited from questioning prospective jurors as to the kind of verdict they would render under any given state of facts or circumstances. George v. State, 43 Fla. L. Weekly D1526b (3rd DCA 7/5/18)

EVIDENCE: Court erred by precluding defense from cross-examining Lee Detective about pending criminal charges against him. George v. State, 43 Fla. L. Weekly D1526b (3rd DCA 7/5/18)

http://3dca.flcourts.org/Opinions/3D16-0423.pdf

SILENCE OF DEFENDANT: Prosecutor's comments on Defendant's failure to explain his presence in the parking lot at night was an improper comment on his right to remain silent. Manor v. State, 43 Fla. L. Weekly D1522a (4th DCA 7/5/18)

JUNE 2018

CORPUS DELICTI: Firearm on the floorboard of passenger side of vehicle which juvenile was driving with 2 passengers was insufficient to prove that the juvenile was in constructive possession of the firearm. To prove corpus delicti, the state must prove that the Defendant committed the crime charged, not that some person in the car committed the crime. Because corpus delicti was not proven, the Juvenile's confession was inadmissible. A.P. v. State, 43 Fla. L. Weekly D1508a (2nd DCA 6/29/18)

https://edca.2dca.org/DCADocs/2016/0979/160979_39_06292018_09273258_i.pdf

CREDIT FOR TIME SERVED-CORRECTION: Defendant is not required to wait until his sentence becomes final to move for correction of credit for time served under Rule 3.801. Brady v. State, 43 Fla. L. Weekly D1507a (2nd DCA 6/29/18)

https://edca.2dca.org/DCADocs/2016/4972/164972_114_06292018_09295814_i.pdf

PLEA AGREEMENT-ENFORCEMENT: Court may not disregard deferred sentencing agreement on the basis that the Defendant failed to timely appear for sentencing after a furlough where his violation was not willful (Defendant cannot get a ride). Howell v. State, 43 Fla. L. Weekly D1506d (2nd DCA 6/29/18)

https://edca.2dca.org/DCADocs/2017/1319/171319_39_06292018_09365958_i.pdf

SENTENCING-DOWNWARD DEPARTURE-ISOLATED INCIDENT: Court erred in imposing a downward departure on the basis that the crime was an isolated incident for which she showed remorse, where there was no showing that the offense was committed in an unsophisticated manner. State v. Rogers, 43 Fla. L. Weekly D1502a (5th DCA 6/29/18)

http://5dca.org/Opinions/Opin2018/062518/5D17-3117.op.pdf

SENTENCING-DOWNWARD DEPARTURE-NEED FOR RESTITUTION: Court may not impose a downward departure from the basis that the need for restitution outweighed for a prison sentence where the defendant presented no evidence of the victim's need. State v. Rogers, 43 Fla. L. Weekly D1502a (5th DCA 6/29/18)

http://5dca.org/Opinions/Opin2018/062518/5D17-3117.op.pdf

SENTENCING-DOWNWARD DEPARTURE-NON-STATUTORY FACTORS: To be permissible, the non-statutory mitigator justifying a downward departure must be consistent with legislative sentencing policies, the primary one of which is punishment, not rehabilitation. State v. Rogers, 43 Fla. L. Weekly D1502a (5th DCA 6/29/18)

http://5dca.org/Opinions/Opin2018/062518/5D17-3117.op.pdf

DOUBLE JEOPARDY: Dual convictions for possession of cannabis with intent to sell and manufacturing cannabis for the same marijuana does not violate Double Jeopardy. Armas v. State, 43 Fla. L. Weekly D1499 (5th DCA 6/29/18)

DEATH PENALTY: Hurst does not apply retroactively to a sentence which became final in 1998, nor in a case where there was a unanimous recommendation for death. Jimenez v. State, 43 Fla. L. Weekly S276a (FLA 6/28/18)

http://www.floridasupremecourt.org/decisions/2018/Jimenez,%20SC17-2272%20(3.851).pdf

LIFE SENTENCE-MINOR: Jury is not required to make the factual findings for the sentencing factors set out in § 921.1401. Roberson v. State, 43 Fla. L. Weekly D1497a (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2017/1795/171795_1284_06282018_09364643_i.pdf

COMPETENCY: Successor judge did not commit fundamental error by beginning trial without determining Defendant's competency where he promptly determined that the Defendant was competent once he realized that the previous judge never made a finding. Thurston v. State, Fla. L. Weekly D1495b (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2017/2548/172548_1284_06282018_09590993_i.pdf

AGGRAVATED BATTERY: A shard of broken mirror glass may qualify as a deadly weapon. S.G. v. State, 43 Fla. L. Weekly D1495a (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2017/3596/173596_1284_06282018_10065096_i.pdf

DOUBLE JEOPARDY: Separate convictions for use of computer online service to solicit person believed to be a child to engage in a loss as conduct and traveling violate Double Jeopardy. Hernandez v. State, 43 Fla. L. Weekly D1492a (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2012/5952/125952_1289_06282018_09200454_i.pdf

SENTENCING-CONSIDERATIONS-LACK OF REMORSE: Court did not impermissibly base Defendant's sentence on lack of remorse where Defendant injected the issue of remorse into the proceedings by seeking to mitigate his sentence. Court may not rely on Defendant process lack of remorse in fashioning a sentence but may rely on it in the context of mitigation of the sentence. Catledge v. State, 43 Fla. L. Weekly D1490a (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2016/2306/162306_1284_06282018_09265779_i.pdf

COMPETENCY: Court erred by failing to hold competency hearing or entering a written order of competency wants and had reasonable grounds to believe the defendant was incompetent. Pearce v. State, 43 Fla. L. Weekly D1489a (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2016/3750/163750_1287_06282018_09303707_i.pdf

SCHEME TO DEFRAUD-JOA: Defendant cannot be convicted of scheming to defraud for a series of shoplifting incidents. Cooks v. State, 43 Fla. L. Weekly D1488a (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2017/0702/170702_1287_06282018_09342727_i.pdf

COMPETENCY: Court must memorialize in writing its determination that Defendant was competent to proceed. Robinson v. State, 43 Fla. L. Weekly D1485b (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2016/3758/163758_1287_06282018_09314415_i.pdf

POST CONVICTION RELIEF: Counsel was ineffective for allowing Defendant to proceed despite fact that a court ordered competency evaluation had not been completed. Counsel process personal interactions with Defendant are not substitutes for a court ordered competency report. Brown v. State, 43 Fla. L. Weekly D1485a (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2017/0905/170905_1287_06282018_09352438_i.pdf

TAMPERING WITH VICTIM: Telling the victim of a sexual veteran child not to tell anybody and that he would come back in her chair is sufficient evidence of tampering with the victim. Frazier v. State, 43 Fla. L. Weekly D1480b (1st DCA 6/28/18)

https://edca.1dca.org/DCADocs/2016/4248/164248_1284_06282018_09325120_i.pdf

PRETRIAL RELIEF-EXCESSIVE BAIL: $700,000 bond for the crime of sending a threatening letter violates his right to pretrial release on reasonable conditions as guaranteed under Article I, section 14 of the Florida Constitution. Aglio v. State, 43 Fla. L. Weekly D1488b (3rd DCA 6/27/18)

http://3dca.flcourts.org/Opinions/3D18-1219.pdf

ARGUMENT: Court erred in denying defense counsel's request for special instruction on "mere presence" after prosecutor, who argued that the legal principle (that mere presence at the crime scene is not enough) was not included in the jury instructions, but that a principal could be convicted even if he was not present, thus improperly maligning defense counsel's argument and misleading the jury on the law. Gabriel v. State, 43 Fla. L. Weekly D1477a (4th DCA 6/27/18)

ARGUMENT: Prosecutor must confine his closing argument to record evidence and must not make comments which could not be reasonably inferred from the evidence. Prosecutor improperly argument that the co-defendants's testimony was consistent with earlier statements to police where no such evidence was adduced. Gabriel v. State, 43 Fla. L. Weekly D1477a (4th DCA 6/27/18)012)

ARGUMENT: Prosecutor commits improper argument where he suggests that Defendant refused to take responsibility for his actions. "Such comments denigrate the fundamental principles of the right to jury trial and presumption of innocence." Gabriel v. State, 43 Fla. L. Weekly D1477a (4th DCA 6/27/18)

STAND YOUR GROUND: Stand Your Ground immunity from prosecution is properly denied for Defendant who shot the victim in the back of the head, put the body in a rental car, drove it to a rural area, and set the car on fire. Morales v. State, 43 Fla. L. Weekly D1474a (4th DCA 6/27/18)

STATEMENTS OF DEFENDANT: Where police conducted three interviews with defendant, only the last of which was a custodial interrogation, trial court's failure to suppress third interview, during which police were informed that attorney was attempting to invoke defendant's right to remain silent, was harmless beyond reasonable doubt, in light of second confession. Santos v. State, 43 Fla. L. Weekly D1472a (4th DCA 6/27/18)

SENTENCING-10/20/LIFE-CONSECUTIVE: Where appellate court reversed consecutive mandatory minimum sentences under 10/20/Life and remanded for imposition of concurrent mandatory minimum sentences, Court properly resentenced defendant to concurrent mandatory minimum terms, but was not required to run non-mandatory minimum portions of the sentences concurrently as well. Billups v. State, 43 Fla. L. Weekly D1467a (4th DCA 6/27/18)

QUOTATION: "This case is the story of what can happen when words in a case become detached from a legal principle, to float freely in the ether of Westlaw or Lexis like free radicals ready to trigger mutations in the law." Billups v. State, 43 Fla. L. Weekly D1467a (4th DCA 6/27/18)

QUOTATION (DISSENT): "[T]he majority is solving an alleged impropriety (detaching words from the moorings of a legal principle) with another impropriety (stretching words beyond their meaning to embrace a new legal rule)." Billups v. State, 43 Fla. L. Weekly D1467a (4th DCA 6/27/18)

SEARCH AND SEIZURE-ABANDONMENT: Contraband abandoned by juvenile is he ran from police may be lawfully seized, regardless whether the police had reasonable suspicion to chase the juvenile or command him to stop. State v. T.M., 43 Fla. L. Weekly D1464b (4th DCA6/27/18)

PUBLIC DEFENDER FEE: Court erred in imposing Public Defender's fees amount greater than statutory minimum without evidence of higher fees and without notifying Defendant of right to contest the fees. Baker v. State, 43 Fla. L. Weekly D1464a (4th DCA 6/27/18)

HEARSAY-FORFEITURE BY WRONGDOING: Court erred by allowing recorded statement of victim on ground that the victim's unavailability was a result of wrongdoing by the Defendant. For the forfeiture by wrongdoing exception to the hearsay rule to apply, the Defendant must have engaged in conduct designed to prevent the witness from testifying. Joseph v. State, 43 Fla. L. Weekly D1457a (4th DCA 6/27/18)

STATEMENTS OF DEFENDANT: A Defendant is entitled to a hearing on the voluntariness of the confession outside the presence of the jury even if he failed to raise the issue of pretrial, but any error in refusing to allow such a hearing is not reversible where the evidence is duplicative of the evidence already presented without objection. Abel v. State, 43 Fla. L. Weekly D1455d (4th DCA 6/27/18) COUNSEL-WAIVER : Court erred by failing to offer counsel to Defendant in failing to conduct a Faretta inquiry before permitting Defendant to represent himself during plea negotiations. Johnson v. State, 43 Fla. L. Weekly D1446a (2nd DCA 6/27/18)

https://edca.2dca.org/DCADocs/2016/1316/161316_39_06272018_08203821_i.pdf

DEATH PENALTY: Hurst does not apply retroactively to sentence of death which became final in 1985. Doyle v. State, 43 Fla. L. Weekly S272b (FLA 6/26/18)

http://www.floridasupremecourt.org/decisions/2018/Doyle,%20SC17-2054%20(3.851).pdf

DEATH PENALTY: Hurst does not apply retroactively to sentence of death which became final in 1985. Dailey v. State, 43 Fla. L. Weekly S272a (FLA 6/26/18)

http://www.floridasupremecourt.org/decisions/2018/Dailey,%20SC17-1073%20(3.851).pdf

DEATH PENALTY: Hurst does not apply retroactively to sentence of death which became final in 1985. Owen v. State, 43 Fla. L. Weekly S271b (FLA 6/26/18)

http://www.floridasupremecourt.org/decisions/2018/Dailey,%20SC17-1073%20(3.851).pdf

PLEA WITHDRAWAL: Defendant is not entitled to evidentiary hearing on motion to withdraw plea where record conclusively refutes his claim that he was misadvised about the sentence. Smith v. State, 43 Fla. L. Weekly D1439g (1st DCA 6/22/18)

https://edca.1dca.org/DCADocs/2017/0717/170717_1284_06222018_11411254_i.pdf

POST CONVICTION RELIEF: Court properly found that counsel was not ineffective for failing to move to suppress evidence of search warrant, failing to have DNA evidence retested, and failing to show that Defendant's girlfriend could have been the source of the DNA on his underwear. Where evidence of guilt is overwhelming and where there is no reasonable probability that absent any deficient performance by defense counsel a defendant would have been acquitted, a claim of ineffective assistance of counsel must be denied. Gonzalez v. State, 43 L. Weekly D1432a (1st DCA 6/22/18)

https://edca.1dca.org/DCADocs/2016/4926/164926_1284_06222018_11220732_i.pdf

RETURN OF PROPERTY: Motion identifying cash, wallet and driver's license as his property and alleging they were not the product of criminal activity is legally sufficient to compel the property returned to the Claimant. Peterson v. State, 43 Fla. L. Weekly D1420c (5th DCA 6/22/18)

BURGLARY TOOLS: Defendant cannot be convicted of possession of burglary tools State failed to prove that the Defendant intended to commit a burglary or did some overt act towards the commission of a burglary. Sloan v. State, 43 Fla. L. Weekly D1420a (5th DCA 6/22/18)

COLLATERAL ESTOPPEL: Defendant is not entitled to a rehearing on question T of whether his designation as a habitual offender is illegal. The mere existence of an illegal sentence is not equivalent to a manifest injustice. Whether his HVFO sentence does or does not include a ten-year minimum mandatory provision has no effect on Turner's longer PRR sentence or the amount of time Turner will serve in prison. Turner v. State, 43 Fla. L. Weekly D1419a (5th DCA 6/22/18)

SENTENCING-MINOR-JUDICIAL REVIEW: Where Defendant who committed this offense was a minor, Court is required to conduct a resentencing hearing. Court cannot modify the sentence without holding a resentencing hearing. Ostane v. State, 43 Fla. L. Weekly D1418a (5th DCA 6/22/18)

SENTENCING-CONSIDERATIONS: Court may not rely on Defendant's lack of remorse in imposing sentence. Stone v. State, 43 Fla. L. Weekly D1413a (3rd DCA 6/20/18)

SENTENCING-MINOR-NONHOMICIDE: Defendant is not entitled to relief from sentence of life imprisonment where he had been released on parole. Bruce v. State, 43 Fla. L. Weekly D1412a (3rd DCA 6/20/18)

POST CONVICTION RELIEF-VACATING PLEA: Defendant counsel failed to tell them that he would be waiving right to seek postconviction DNA testing of the blood used to test for level of alcohol in DUI manslaughter case absent reasonable possibility that, but for the claimed error, he would not have pled guilty. Bertonatti v. State, 43 Fla. L. Weekly D1410a (3rd DCA 6/20/18)

COMPETENCY: Court may not find Defendant competent based on stipulation of parties without making an independent assessment. Hernandez v. State, 43 Fla. L. Weekly D1408a (3rd DCA 6/20/18)

SENTENCING-CONSIDERATIONS: Court may not consider unproven criminal activity in imposing sentence. A new sentencing hearing is required. Strong v. State, 43 Fla. L. Weekly D1393a (4th DCA 6/20/18)

SEARCH AND SEIZURE: Officers may use a Yagi intended to locate and identify signals coming from the Defendant's computer in his home, where Defendant was stealing the neighbors Wi-Fi signal to download child born. Defendant cannot assert a subjective expectation of privacy when he uses antenna similar to that used by law enforcement to capture his neighbor's Wi-Fi. McClelland v. State, 43 Fla. L. Weekly D1391c (2nd DCA 6/20/18)

https://edca.2dca.org/DCADocs/2015/3762/153762_65_06202018_08012663_i.pdf

PROBATION REVOCATION-JUDGMENT: Court may not enter a 2nd written judgment adjudicating Defendant guilty upon the defendant's probation being revoked. Duplicative adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings. Schaulfler v. State, 43 Fla. L. Weekly D1391a (2nd DCA 6/20/18)

https://edca.2dca.org/DCADocs/2017/1444/171444_65_06202018_08041282_i.pdf

CERTIORARI: Office of the Public Defender cannot be removed as penalty phase counsel where defendant is represented by a private attorney in the guilt phase by petition for writ of certiorari without making a sufficient finding of entitlement to relief. "Having determined what order is properly before us, we must next determine what arguments are properly before us. And the answer to that is none of them." Holt v. Keetly, 43 Fla. L. Weekly D1389a (2nd DCA 6/20/18)

https://edca.2dca.org/DCADocs/2017/2157/172157_109_06202018_08050698_i.pdf

PERJURY: Perjury in an official proceeding related to prosecution of the capital felony refers to any offense designated by the latest her as a "capital felony," regardless whether the death penalty may be imposed. State v.Kwitowski, 43 Fla. L. Weekly D1385g (2nd DCA 6/20/18)

https://edca.2dca.org/DCADocs/2017/0757/170757_39_06202018_08024825_i.pdf

COSTS: Court may not award domestic violence-related surcharge amount barred by statute. West v. State, 43 Fla. L. Weekly D1383a (1st DCA 6/20/18)

https://edca.1dca.org/DCADocs/2016/5379/165379_1286_06202018_09322549_i.pdf

FINE: Before imposing a fine under § 775.0835(1), a court must find that the defendant has the present ability to pay the fine and finds that the impact of the fine will not cause the defendant's dependents to be dependent on public welfare. West v. State, 43 Fla. L. Weekly D1383a (1st DCA 6/20/18)

https://edca.1dca.org/DCADocs/2016/5379/165379_1286_06202018_09322549_i.pdf

OPINION TESTIMONY: Officer may testify that a tracking dog is able to detect odors from someone in an anxious mental state; said testimony any special knowledge, skill, experience, or training. Johnson v. State, 43 Fla. L. Weekly D1374a (1st DCA 6/18/18)

https://edca.1dca.org/DCADocs/2017/2945/172945_1284_06202018_09345926_i.pdf

EVIDENCE: Testimony that the Defendant later drove by the victim's condo is admissible in trial for lewd or lascivious exhibition (exposing himself from his condo to a child on the beach). Hogle v. State, 43 Fla. L. Weekly D1372a (1st DCA 6/18/18)

https://edca.1dca.org/DCADocs/2017/2945/172945_1284_06202018_09345926_i.pdf

COSTS: Court may not impose costs of prosecution in excess of $100 without a showing of sufficient proof of higher costs incurred. Hogle v. State, 43 Fla. L. Weekly D1372a (1st DCA 6/18/18)

https://edca.1dca.org/DCADocs/2017/2945/172945_1284_06202018_09345926_i.pdf

DOWNWARD DEPARTURE-UNSOPHISTICATED: Defendant who had her boss sign several checks to petty cash, and then deposited the money into her own account does not commit the crime in an unsophisticated manner justifying a downward departure from the sentencing guidelines. The crime is not "unsophisticated" where it requires several distinctive and deliberate steps to accomplish. Hollinger v. State, 43 Fla. L. Weekly D1367a (5th DCA 6/15/18)

http://5dca.org/Opinions/Opin2018/061118/5D17-1996.op.pdf

DOWNWARD DEPARTURE-ISOLATED INCIDENT: UNSOPHISTICATED : The Defendant's crime is not an isolated incident where she had her boss sign several checks to petty cash, and then deposited the money into her own account. An offense is not isolated where it involves multiple incidents with one victim over several months. Hollinger v. State, 43 Fla. L. Weekly D1367a (5th DCA 6/15/18)

http://5dca.org/Opinions/Opin2018/061118/5D17-1996.op.pdf

HEARSAY-CHILD VICTIM-RELIGIOUS CONFESSION: A priest cannot be compelled to testify about allegations of sexual abuse made by the victim during conviction, based on Florida's Religious Freedom Restoration Act. It is a substantial burden on the size religion to compel a religious adherent to engage in conduct that his religion forbids, in this case revealing statements made during confession. Ronchi v. State, 43 Fla. L. Weekly D1364d (5th DCA 6/15/18)

http://5dca.org/Opinions/Opin2018/061118/5D18-194.op.pdf

JUROR-CHALLENGE FOR CAUSE: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to challenge juror who expressed bias against homosexuality. Patrick v. State, 43 Fla. L. Weekly S263a (FLA 6/14/18)

EXPERT: Pharmacology expert (Dr. Goldberger) may testify about the effects of amphetamines and methamphetamine on the human body was standing actual experimentation. Hawthorne v. State, 43 Fla. L. Weekly D1362c (1st DCA 6/13/18)

https://edca.1dca.org/DCADocs/2016/3793/163793_1284_06132018_10003695_i.pdf

EVIDENCE: Evidence of Defendant's release from jail twelve hours before the accident was relevant to prove a material fact -- that he recently ingested methamphetamine when he ran into the victim's car. Hawthorne v. State, 43 Fla. L. Weekly D1362c (1st DCA 6/13/18)

https://edca.1dca.org/DCADocs/2016/3793/163793_1284_06132018_10003695_i.pdf

EVIDENCE-DRIVING RECORD: A driving record showing a license suspension is sufficient to prove that a defendant had notice that his or her license was suspended. Hawthorne v. State, 43 Fla. L. Weekly D1362c (1st DCA 6/13/18)

https://edca.1dca.org/DCADocs/2016/3793/163793_1284_06132018_10003695_i.pdf

SEARCH AND SEIZURE: Any error in allowing into evidence photos found on an iPod was harmless because the result would have been the same with or without the photos. Brutus v. State, 43 Fla. L. Weekly D1362b (1st DCA 6/13/18)

https://edca.1dca.org/DCADocs/2016/4144/164144_1284_06132018_10065233_i.pdf

SEARCH AND SEIZURE-ARREST WARRANT: Officers who reasonably believed that subjects of arrest warrants were present in Defendant's residence were allowed to enter the residence. Foster v. State, 43 Fla. L. Weekly D1362a (1st DCA 6/13/18)

https://edca.1dca.org/DCADocs/2017/3819/173819_1284_06132018_10232908_i.pdf

COMPETENCY: Where defendant had been found incompetent to proceed court must hold a hearing and make an independent finding that the defendant had been restored to competency. Graham v. State, 43 Fla. L. Weekly D1361a (1st DCA 6/13/18)

https://edca.1dca.org/DCADocs/2017/0938/170938_1287_06132018_10175711_i.pdf

GOLDEN RULE: "Think about the state of mind she's in at that point in time that all these questions were asked to her. What happened? What happened?" is not an improper Golden Rule argument. The State did not ask or invite the jurors to place themselves in the shoes of the victim to imagine her pain and suffering. "The mere fact that a prosecutor in closing argument addresses a victim's mental state, physical state, or injuries suffered does not, standing alone, render the argument a golden rule violation. Such an ipso facto analysis ignores the need to consider the surrounding circumstances of the comment." Jackson v. State, 43 Fla. L. Weekly D1349a (3rd DCA 6/13/18)

http://www.3dca.flcourts.org/Opinions/3D16-2371.pdf

YOUTHFUL OFFENDER: Court may not revoke youthful offender designation upon revocation of probation. Error is not preserved for appeal, be raised motion for postconviction relief. Thomas v. State, 43 Fla. L. Weekly D1343a (4th DCA 6/13/18)

YOUTHFUL OFFENDER: Court may not revoke youthful offender designation upon revocation of probation. Exantus v. State,43 Fla. L. Weekly D1342b (4th DCA 6/13/18)

DOUBLE JEOPARDY: Argument that circuit court violated defendant's double jeopardy rights by entering second order increasing sentence imposed in first order was not preserved for appeal by objection or motion to correct sentence. Carter v. State, 43 Fla. L. Weekly D1338b (4th DCA 6/13/18)

DOUBLE JEOPARDY: Separate convictions for grand theft auto and armed carjacking with firearm violate Double Jeopardy. The fact that the police and the defendant with vehicle 2 days after the carjacking does not change the result. Palmer v. State, 43 Fla. L. Weekly D1338a (4th DCA 6/13/18)

COMPETENCY: Once court orders mental health evaluations, the Court must hold a competency hearing. Augustin v. State, 43 Fla. L. Weekly D1337a (4th DCA 6/13/18)

WRONGFUL INCARCERATION COMPENSATION: Victim of wrongful incarceration must move for compensation within 90 days of dismissal of the conviction. Brewster v. State, 43 Fla. L. Weekly D1336a (4th DCA 6/13/18)

EVIDENCE-OPINION-BODY LANGUAGE: Detective may not testify about Defendant's body language and mannerisms, suggesting that they were indicative of deception. Edwards v. State, 43 Fla. L. Weekly D1334a (4th DCA 6/13/18)

/p>

ATTEMPTED SECOND DEGREE MURDER: Where Defendant shot the Victim over a disagreement on the price of the gun which the Victim had bought for the defendant, the evidence is sufficient to prove second-degree murder. Second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim. Williams v. State, 43 Fla. L. Weekly D1327a (1st DCA 6/8/18)

https://edca.1dca.org/DCADocs/2017/1347/171347_1284_06082018_10382588_i.pdf

POSSESSIONS OF DRUGS-IMMUNITY-GOOD SAMARITAN: Defendant who called 911 to obtain medical assistance for person who was experiencing drug overdose in defendant's home was entitled to immunity from prosecution for drugs found in his home. The fact that the Defendant tried to hide the evidence and could have done more to help the person who had overdosed does not remove Defendant from the protection of the Good Samaritan law. "Regardless of whether Pope should have behaved better, his purpose in contacting 911 was to save his friend. That was a good-faith purpose." Pope v. State, 43 Fla. L. Weekly D1326a (1st DCA 6/8/18)

https://edca.1dca.org/DCADocs/2017/2487/172487_1287_06082018_10475208_i.pdf

VOP: Court may find the defendant violated probation where the affidavit charged him with violating by committing attempted murder and facts only supported attempted manslaughter; attempted manslaughter is a lesser included of attempted murder. Revocation based on a necessarily lesser-included offense of the one alleged in the violation of probation affidavit does not violate a probationer's due process rights. McCloud v. State, 43 Fla. L. Weekly D1325a (1st DCA 6/8/18)

https://edca.1dca.org/DCADocs/2017/4167/174167_1284_06082018_11012064_i.pdf

DOUBLE JEOPARDY: Double jeopardy prevents the court from increasing sentences where from 10 years to 15 years where the plea agreement called for the sentences to be run concurrently with each other after Defendant moved to withdraw his plea on the ground that one of the counts was for 5 years consecutive to the 10 years. A defendant has a reasonable expectation of finality in a sentence unless there is the Defendant withheld information from the trial court. Mock v. State, 43 Fla. L. Weekly D1324a (1st DCA 6/8/18)

https://edca.1dca.org/DCADocs/2016/2038/162038_1287_06082018_10251053_i.pdf

SECOND DEGREE MURDER: There is sufficient evidence of ill will, hatred, spite, or evil intent to sustain a conviction for second-degree murder where defendant shot victim with a sawed-off shotgun which the victim would not accept in payment for marijuana. Jacobson v. State, 43 Fla. L. Weekly D1323a (1st DCA 6/8/18)

https://edca.1dca.org/DCADocs/2017/0774/170774_1284_06082018_10370786_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel was ineffective for failing to advise him of the elements and defenses for the crime of tampering with a witness. Stewart v. State, 43 Fla. L. Weekly D1322a (2nd DCA 6/8/18)

https://edca.2dca.org/DCADocs/2017/2788/172788_39_06082018_08442907_i.pdf

POST CONVICTION RELIEF-PLEA VOLUNTARINESS: Defendant is entitled to a hearing on the claim that counsel failed to advise him of the terms of the plea including the possibility of being sentenced to 105 years in prison if the counts were ordered to be served consecutively. Filipkowski v. State, 43 Fla. L. Weekly D1319a (2nd DCA 6/8/18)

https://edca.2dca.org/DCADocs/2017/3869/173869_114_06082018_08481573_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim of ineffective assistance of counsel that counsel failed to advise him on the evidence against him, the maximum penalty, and where he alleged that he would have accepted a favorable plea offer if he had been so advised. Rollins v. State, 43 Fla. L. Weekly D1318a (2nd DCA 6/8/18)

https://edca.2dca.org/DCADocs/2017/0209/170209_114_06082018_08395433_i.pdf

POST CONVICTION RELIEF: Counsel was ineffective for failing to call witnesses that other people had been in the vehicle on the day of his arrest where he had been convicted of possession of drugs found in the vehicle. Campbell v. State, 43 Fla. L. Weekly D1315b (2nd DCA 6/8/18)

https://edca.2dca.org/DCADocs/2016/4698/164698_114_06082018_08253061_i.pdf

CREDIBILITY OF DEFENDANT: In postconviction relief hearing, if a defendant's testimony is unrefuted and the postconviction court has not articulated a reason to disbelieve the defendant, the court cannot choose to disregard the defendant's testimony. Campbell v. State, 43 Fla. L. Weekly D1315b (2nd DCA 6/8/18)

https://edca.2dca.org/DCADocs/2016/4698/164698_114_06082018_08253061_i.pdf

POST CONVICTION RELIEF: To adequately plead ineffective assistance of counsel for failing to convey a favorable plea offer, a defendant must allege "that (1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed. Taylor v. State, 43 Fla. L. Weekly D1310b (5th DCA 6/8/18)

http://5dca.org/Opinions/Opin2018/060418/5D18-295.op.pdf

SENTENCING-VIOLENT CAREER CRIMINAL: Court is required to sentence defendant is a violent career criminal only if such sentence is necessary for the protection of the public; the existence of the requisite qualifying convictions is not dispositive. Williams v. State, 43 Fla. L. Weekly D1309a (5th DCA 6/8/18)

http://5dca.org/Opinions/Opin2018/060418/5D17-742.op.pdf

SEX OFFENDER PROBATION-CONDITIONS: Court is not required to orally pronounce each condition of sex offender probation contained in section 948.30. Levandoski v. State, 43 Fla. L. Weekly S258b (FLA 6/7/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-962.pdf

HABITUAL FELONY OFFENDER-ATTEMPTED 2ND DEGREE MURDER OF LEO: Life imprisonment for Attempted second-degree murder of a law enforcement officer is not lawful. §775.0823(5) does not authorize the trial court to "reclassify" the crime of attempted second-degree murder from a second-degree felony to a first-degree felony punishable by life by treating attempted second-degree murder as if it was a completed crime of second-degree murder. "In this particular case, we harmonize, to the extent we can, the apparent inconsistency between sections 775.0823(5) and 777.04(4)(c)." Graves v. State, 43 Fla. L. Weekly D1273a (3rd DCA 6/6/18)

http://3dca.flcourts.org/Opinions/3D17-2146.pdf

WITHDRAWAL OF PLEA-COMPETENCY: Court erred by denying motion to withdraw plea where there had been a request for competency evaluation before the plea but no competency order entered. Rose v. State, 43 Fla. L. Weekly D1266b (4th DCA 5/6/18)

DEATH PENALTY-NOTICE: Court may prohibit the State from seeking the death penalty where it fails to file notice of intent to seek death penalty within 45 days after the arraignment. State v. Chantiloupe, 43 Fla. L. Weekly D1262a (4th DCA 6/6/18)

HEARSAY: It is improper to admit statement of witness, now deceased, from a bond hearing that someone had confessed to being the shooter in the murder and that he "got the work from [the Defendant]." Where the State is seeking to admit the out of court statements of will co-defendants or accomplices under 90.804(2)(c), and some of the statements also implicate the defendant, they should not be admitted where they sensibly and fairly can be redacted to include only those statements which are solely self-inculpatory. Moscatiello v. State, 43 Fla. L. Weekly D1257a (4th DCA 6/6/18)

SCORESHEET-ERROR: Addition error on scoresheet was not harmless because record does not conclusively show that judge would have imposed same sentence, having said that he was not inclined to "go against" scoresheet. Ward v. State, 43 Fla. L. Weekly D1256b (4th DCA 6/6/18)

DOUBLE JEOPARDY: Convictions of both organized scheme to defraud and grand theft based on same conduct violates double jeopardy. Santeramo v. State, 43 Fla. L. Weekly D1256a (4th DCA 6/6/18)

POST CONVICTION RELIEF-PLEA-VOLUNTARINESS: Defendant is entitled to a hearing on claim that counsel was ineffective for affirmatively misadvised him that he would not be deported for pleading no contest to the offense of trafficking in hydrocodone. Equivocal warnings (his plea "could" result in deportation) is insufficient in cases like this where deportation is mandatory. Saavedra v. State, 43 Fla. L. Weekly D1254a (4th DCA 6/6/18)

HEARSAY-EXCITED UTTERANCE-911 CALL: Under the facts of this case, the victim's statement in her 911 call made 20 minutes after the rape are admissible as an excited utterance. Evans v. State, 43 Fla. L. Weekly D1252a (4th DCA 6/6/18)

MISTRIAL: The 77 year old rape victim's emotional expression of indignation at being accused of lying ("Oh no. I swear on my son's soul that everything you are saying is a lie. . . . Unbelievable. Oh, my God," does not warrant a mistrial. "While the defense should be entitled to question the victim's credibility, it is not surprising that she reacted with an emotional outburst." Evans v. State, 43 Fla. L. Weekly D1252a (4th DCA 6/6/18)

POST CONVICTION RELIEF: Counsel was ineffective for wrongly advising defendant that the only lesser included charges carjacking is grand theft; robbery is also a lesser included for carjacking. Louima v. State, 43 Fla. L. Weekly D1247a (4th DCA 6/6/18)

POSSESSION OF FIREARM BY FELON: Court did not abuse discretion allowing state introduced multiple certified judgments of prior felony convictions where defendant did not stipulate that he was a felon. Grimes v. State, 43 Fla. L. Weekly D1246a (4th DCA 6/6/18)

LIFE SENTENCE-MINOR: Court may not impose a sentence of life in prison with 25 years as a minimum mandatory for a defendant who was 17 years old at the time of the offense without providing for sentence review after 25 years. White v. State, 43 Fla. L. Weekly D1245a (4th DCA 6/6/18)

SENTENCING-MINOR: Criminal Punishment Code is not unconstitutional as it relates to juveniles who commit felonies and are sentenced as adults. Hall v. State, 43 Fla. L. Weekly D1239a (1st DCA 6/4/18)

https://edca.1dca.org/DCADocs/2016/1168/161168_1284_06042018_10334375_i.pdf

APPEALS-TIMELINESS: 30 day time to file appeal is not extended by Defendant's motion for reduction of sentence. Jackson v. State, 43 Fla. L. Weekly D1238a (1st DCA 4/4/18)

https://edca.1dca.org/DCADocs/2017/5394/175394_1279_06042018_10582823_i.pdf

LIFE SENTENCES-MINOR: 50 year sentence that judicial review for nonhomicide committed by a juvenile is lawful. Only those juveniles who were sentenced to life and then had the sentence vacated under Graham are entitled to judicial review, not juveniles like that Defendant here who were originally sentenced to a lengthy term of imprisonment. Hart v. State, 43 Fla. L. Weekly D1232a (1st DCA 6/4/18)

https://edca.1dca.org/DCADocs/2013/1754/131754_1284_06042018_09422810_i.pdf

JIMMY RYCE: State is not required to prove the value of mental health treatment in the recidivism equation. Campbell v. State, 43 Fla. L. Weekly D1228a (1st DCA 6/6/18)

https://edca.1dca.org/DCADocs/2017/2560/172560_1284_06042018_10471079_i.pdf

REVOCATION-CONDITION RELEASE: There is no requirement that failure to contact revocation hearing within 45 days must result in defendant being released from prison. In granting writs of certiorari, the DCAs should not be as concerned with the existence of legal error as with the seriousness of the error. Smith v. DOC, 43 Fla. L. Weekly D1225a (2nd DCA 6/1/18)

https://edca.2dca.org/DCADocs/2017/3409/173409_118_06012018_08543311_i.pdf

DOWNWARD DEPARTURE: Court may not impose a downward departure sentence on the ground the need for payment of restitution outweighs the need for a prison sentence where there is no evidence of any pressing need for restitution. A downward departure is only justified if the harm suffered by the victim as a result of the theft was greater than normally expected, and restitution could mitigate that increased harm. State v. Lackey, 43 Fla. L. Weekly D1224f (2nd DCA 6/1/18)

https://edca.2dca.org/DCADocs/2016/3026/163026_39_06012018_08532345_i.pdf

POST CONVICTION RELIEF: Defendant who is been found not guilty was insanity has no claim for relief under Rule 3.850. Dorton v. State, 43 Fla. L. Weekly D1223c (5th DCA 6/1/18)

http://5dca.org/Opinions/Opin2018/052818/5D18-649.op.pdf

FTA-WILLFULNESS: Defendant who was given a prison sentence for failing to comply with agreement to appear (Quarterman agreement) is entitled to an evidentiary hearing as to his willfulness in failing to appear. Spear v. State, 43 Fla. L. Weekly D1223b (5th DCA 6/1/18)

http://5dca.org/Opinions/Opin2018/052818/5D17-1714.op.pdf

MINOR-RESENTENCING: Is heir to modify a minor's sentence to allow for a review hearing that also holding a resentencing hearing. Jackson v. State, 43 Fla. L. Weekly D1222a (5th DCA 6/1/18)

http://5dca.org/Opinions/Opin2018/052818/5D17-3990.op.pdf

ATTEMPTED MURDER LEO-JURY INSTRUCTION: The court must instruct on the essential element that the Defendant knew that the victim was a law enforcement officer. Error is fundamental will there was a dispute at trial as to whether Defendant knew the victim was a law enforcement officer. By asserting the mistaken identity defense and denying any knowledge about the shooting, Defendant did not waive the defense that he did not know that the victim was a law enforcement officer. Gabriel v. State, 43 Fla. L. Weekly D1219a (5th DCA 6/1/18)

http://5dca.org/Opinions/Opin2018/052818/5D15-2528.op.pdf

MAY 2018

AMENDMENTS-INTERPRETERS: Rules for interpreters extended to victims and parents of juveniles. When an attorney or self-represented litigant retains an interpreter, whenever possible, the attorney orlitigant must retain a certified, language skilled, or provisionally approved interpreter. In re-Amendments to Rules of Judicial Administration, 43 Fla. L. Weekly S253b (FLA 5/31/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1137.pdf

COMPETENCY: Defendant who may be incompetent cannot waive the right to a competency hearing. "The nature of competency goes to the heart of whether a defendant has the capacity to make a cogent, legally binding decision. To find, as the trial court did here, there were reasonable grounds to believe Appellant may be incompetent, and then allow that same potentially incompetent individual to waive his right to determine competency, does not comport with due process." Francis v. State, 43 Fla. L. Weekly D1217a (1st DCA 5/31/18)

https://edca.1dca.org/DCADocs/2016/5244/165244_1287_05312018_09340196_i.pdf

BLOOD TEST: Blood test is admissible where police substantially complied with administrative regulations. Strict complieance with rules is not required. Failure to invert blood sample to ensure mixing of blood with preservatives and anti-coagulents is still substantial compliance. Bedell v. State, 43 Fla. L. Weekly D1216a (1st DCA 5/31/18)

https://edca.1dca.org/DCADocs/2017/1252/171252_1284_05312018_09413212_i.pdf

CRIMINAL MISCHIEF: Victim's testimony as to the cost of repair is competent evidence of the value. FMV of the windshield or truck is inapplicable. The rule theft cases that the damages cannot exceed the value of the property does not apply to the crime of criminal mischief. J.A. v. State, 43 Fla. L. Weekly D1210b (3rd DCA 5/30/18)

http://www.3dca.flcourts.org/Opinions/3D16-2381.pdf

DOWNWARD DEPARTURE: Court may enter a downward departure sentence based on the fact that the Defendant acted open quotation under the domination of another person" when she helped commit the burglary under the domination of another. State v. Sisco, 43 Fla. L. Weekly D1208a (3rd DCA 5/30/18)

http://www.3dca.flcourts.org/Opinions/3D16-2474.pdf

HEARSAY-911 CALL: 911 call was admissible as spontaneous statement where call was placed immediately after robbery and describes or explains the event and circumstances do not indicate a lack of trustworthiness. Thompson v. State, 43 Fla. L. Weekly D1206a (3rd DCA 5/30/18)

http://www.3dca.flcourts.org/Opinions/3D17-0348.pdf

RESTITUTION: Court may not order restitution without holding a hearing. Sainvil v. State, 43 Fla. L. Weekly D1203a (4th DCA 5/30/18)

POST CONVICTION RELIEF: On the face of the record, counsel was not ineffective for not filing a motion to vacate plea where the plea agreement called for a 4 years and the ultimate sentence was 3 years plus probation. Quinlin v. State, 43 Fla. L. Weekly D1202b (4th DCA 5/30/18)

MINOR-SENTENCE: 31-year sentence for offense committed by a juvenile is not unconstitutional. Conflict certified. Tillman v. State, 43 Fla. L. Weekly D1201c (4th DCA 5/30/18)

MINOR-SENTENCE: 40-year sentence for second-degree murder committed by a juvenile does not violate the 8th amendment. Conflict certified. Pedroza v. State, 43 Fla. L. Weekly D1201b (4th DCA 5/30/18)

POST CONVICTION RELIEF: Court properly denied claims that were untimely, that remained facially insufficient after opportunity to amend, or that were not raised in amended motion within prescribed time period. Watson v. State, 43 Fla. L. Weekly D1199b (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2018/0167/180167_1284_05252018_12255300_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing on the claim that counsel was ineffective for failing call expert to testify that defendant did not write incriminating notes to lewd and lascivious battery victim. Privett v. State, 43 Fla. L. Weekly D1199a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2017/2610/172610_1286_05252018_12005596_i.pdf

POST CONVICTION RELIEF: Court properly denied claim that counsel was ineffective for failure depose state's witnesses to prepare for cross-examination where there was no demonstration of prejudice. Johnson v. State, 43 Fla. L. Weekly D1196a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2017/5105/175105_1284_05252018_12182033_i.pdf

SEARCH AND SEIZURE-BLOOD DRAW: Defendant's consent to blood draw after officer had explained that his refusal to consent would require them to drive to a judge during the night to get a warrant signed was voluntary. Miller v. State, 43 Fla. L. Weekly D1195a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2016/2020/162020_1284_05252018_11372158_i.pdf

EVIDENCE: Court properly precluded defendant from presenting evidence that victim was driving a motorcycle without an endorsement when he was hit from behind by defendant where there was no reasonable basis to conclude that victim's conduct was sole proximate cause of accident. Miller v. State, 43 Fla. L. Weekly D1195a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2016/2020/162020_1284_05252018_11372158_i.pdf

10-20-LIFE: To invoke 10-20-Life, information must say that the Defendant "actually possessed a 'firearm' or 'destructive device.'" Birch v. State, 43 Fla. L. Weekly D1191a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2016/1668/161668_1284_05252018_11345907_i.pdf

INFORMATION-DEFECT: Information is not fatally defective for failing to use the term "constructive possession." It is advisable to present special interrogatories separately from verdicts for underlying crimes. Birch v. State, 43 Fla. L. Weekly D1191a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2016/1668/161668_1284_05252018_11345907_i.pdf

LESSER INCLUDED: Court is not required to give a lesser included instruction on Reckless Driving for the underlying offense of Aggravated Assault with a Deadly Weapon. Requirement that elements of lesser offense be "specifically alleged in the information" means it is not enough that element of driving could be inferred from charging document because driving might be the most common manner in which an assault with a motor vehicle occurs. Conflict certified. Anderson v. State, 43 Fla. L. Weekly D1188c (1st DCA 5/15/18)

https://edca.1dca.org/DCADocs/2015/5433/155433_1284_05252018_11305376_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to hearing on claim that counsel was ineffective for failing to investigate sanity and competency where his attorney had serious concerns yet failed to follow through with mental health evaluation authorized by court. Akins v. State, 43 Fla. L. Weekly D1187b (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2017/4038/174038_1286_05252018_12141272_i.pdf

CIRCUMSTANTIAL EVIDENCE: The special standard of review for circumstantial evidence continues to apply, notwithstanding that Florida is only one of three states to take the "somewhat discordant" view that a special appellate standard of review applies to circumstantial criminal convictions, but a jury cannot be instructed to apply a different evaluation of circumstantial evidence. Meeks v. State, 43 Fla. L. Weekly D1185a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2016/4629/164629_1284_05252018_11481396_i.pdf

FIREARMS: FSU may prohibit firearms on campus. Florida Carry, Inc. v. Thrasher, 43 Fla. L. Weekly D1180b (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2016/3423/163423_1286_05252018_11454252_i.pdf

POST CONVICTION RELIEF: Court acted within his discretion by denying motion to amend motion for post conviction relief (Defendant did not understand Miranda because he was intoxicated), which would be otherwise time barred, where the amended motion raises new claims that do not relate back to the original timely filed motion (Defendant was never read Miranda)and are otherwise time-barred. Johnson v. State, 43 Fla. L. Weekly D1180a (1st DCA 5/25/18)

https://edca.1dca.org/DCADocs/2016/4862/164862_1284_05252018_11503400_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to investigate and call exculpatory witnesses at trial, and failing to advise defendant that court could run his sentences in one case consecutively to sentences in another. Leclaire v. State, 43 Fla. L. Weekly D1175d (2nd DCA 5/25/18)

https://edca.2dca.org/DCADocs/2017/0934/170934_114_05252018_08261547_i.pdf

COUNSEL: Fact that Defendant's attorney was suspended from practice at time of trial for failure to comply with CLE requirements where counsel had no knowledge of licensing deficiencies at time of trial does not deprive Defendant of effective assistance of counsel. Johnson v. State, 43 Fla. L. Weekly D1172b (5th DCA 5/25/18)

http://5dca.org/Opinions/Opin2018/052118/5D17-177.op.pdf

IMPEACHMENT-PRIORS: It is improper to ask Defendant if he had been convicted of felonies (two) and separately if he had been convicted of crimes of dishonesty (the same two offenses) because it gives the false impression of four, rather than two, convictions. Error is not fundamental. Johnson v. State, 43 Fla. L. Weekly D1172b (5th DCA 5/25/18)

http://5dca.org/Opinions/Opin2018/052118/5D17-177.op.pdf

DISMISSAL: Court may not dismiss information charging defendant with DWLS on basis that defendant had his license back and no longer deserved to be prosecuted. State v. Snook, 43 Fla. L. Weekly D1170b (5th DCA 5/25/18)

http://5dca.org/Opinions/Opin2018/052118/5D17-2362.op.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that that counsel was ineffective for failure to investigate and call exculpatory witnesses at trial. Tolliver v. State, 43 Fla. L. Weekly D1170a (5th DCA 5/25/18)

http://5dca.org/Opinions/Opin2018/052118/5D17-4107.op.pdf

DEATH PENALTY: Defendant is not entitled to Hurst relief where jury unanimously recommended death. Everett v. State, 43 Fla. L. Weekly S250a (FLA 5/24/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1863.pdf

ATTORNEY-DISCIPLINE: Attorney disbarred for having sex with two inmates, one for money and the other for a reduced legal fee. The Florida Bar v. Blackburn, 43 Fla. L. Weekly S248a (FLA 5/24/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1514.pdf

JURY INSTRUCTIONS-CAPITAL CASES: In re : Standard Criminal Jury Instructions in Capital Cases, 43 Fla. L. Weekly S246a (May 24, 2018).

http://www.floridasupremecourt.org/decisions/2018/sc17-583.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Recantation of testimony is insufficient to warrant a new trial where the witness is deemed incredible. Sweet v. State, 43 Fla. L. Weekly S243a (FLA 5/24/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1987.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements : First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Sweet v. State, 43 Fla. L. Weekly S243a (FLA 5/24/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1987.pdf

AMENDMENT-JURY INSTRUCTIONS-PREMEDITATED AND FELONY MURDER: "If you return a verdict of guilty to the charge of First Degree Murder, it is not necessary that all of you agree the State proved First Degree Premeditated Murder and it is not necessary that all of you agree the State proved First Degree Felony Murder. Instead, what is required is that all of you agree the State proved either First Degree Premeditated Murder or First Degree Felony Murder." In re-Standard Jury Instructions, 43 Fla. L. Weekly S242a (FLA 5/24/18)

http://www.floridasupremecourt.org/decisions/2018/sc17-1870.pdf

PRO SE FILINGS-PROHIBITION: Court may not prohibit pro se filings without notice and opportunity to respond. Massaro v. State, 43 Fla. L. Weekly D1169a (4th DCA 5/23/18)

VIOLENT OFFENDER OF SPECIAL CONCER: Upon revocation of probation, there is no requirement that court hold separate evidentiary hearing before finding that defendant posed a danger to community and was a VFOSC. Smith v. State, 43 Fla. L. Weekly D1168a (4th DCA 5/23/18)

RECONSIDERATION OF MOTION TO SUPPRESS: The standard for reconsidering a motion to suppress based on new evidence is a balancing test, not the standard for newly discovered evidence for post conviction relief (whether evidence was ascertainable before). The rights of a defendant to due process and effective assistance of counsel should outweigh any need for finality with respect to an interlocutory suppression ruling. Cledenord v. State, 43 Fla. L. Weekly D1163a (4th DCA 5/23/18)

JUDGE-NEUTRALITY: A court commits fundamental error by abandoning its neutral role and assuming the role of the prosecutor in a VOP hearing. A judge may ask questions designed to make previously received ambiguous testimony clear, but the capacity to clear up ambiguous or confusing testimony is not an invitation to trial judges to supply essential elements in the state's case. Parr v. State, 43 Fla. L. Weekly D1161a (4th DCA 5/23/18)

QUOTATION: "This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice." Parr v. State, 43 Fla. L. Weekly D1161a (4th DCA 5/23/18)

SEARCH WARRANT: Detective has authority to be affiant on search warrants and their accompanying affidavits in counties outside his jurisdiction where detective was investigating a case that originated in his own jurisdiction. State v. Stouffer, 43 Fla. L. Weekly D1157b (4th DCA 5/23/18)

POST CONVICTION RELIEF: Court erred in summarily denying claim that counsel was ineffective for failure to raise double jeopardy claims upon determining that such claim failed as matter of law because defendant entered into negotiated plea. Graham v. State, 43 Fla. L. Weekly D1157a (4th DCA 5/23/18)

VAGUENESS: Court erred in dismissing charge of operating an unlicensed pain management clinic on grounds of vagueness because the terms "primarily" and "pain" are undefined. The Court improperly conflated the as-applied and facial vagueness challenges, addressing them as one and the same. An "as-applied" challenge requires an evidentiary hearing and findings of fact. State v. Crumbley, 43 Fla. L. Weekly D1155c (2nd DCA 5/23/18)

https://edca.2dca.org/DCADocs/2016/3872/163872_39_05232018_08330355_i.pdf

STAND YOUR GROUND: Amendment of SYG statute which shifted burden of proof from defendant to state does not apply retroactively. Bailey v. State, 43 Fla. L. Weekly D1153b (3rd DCA 5/23/18)

http://3dca.flcourts.org/Opinions/3D17-0357.pdf

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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) v 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 CONVICTION 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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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 denied 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. The 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 RELEASE 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)

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)

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)

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)

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)

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)

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)

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)

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)

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 representations 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)

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)

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)

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)

D

OUBLE 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)

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)

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)

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 recommendation 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)

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)

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)

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)

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

vTORT-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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)