Criminal Case Law Archive

DECEMBER 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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


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

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

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

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


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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2009,%202016/2D15-3226.pdf
SEARCH AND SEIZURE: Officer may search vehicle when he observed cocaine in plain view inside the vehicle after the defendant’s arrest. State v. Ross, 41 Fla. L. Weekly D2729a (2nd DCA 12/9/16)

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

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

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

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

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

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

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

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

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

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

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

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

QUOTATION: “It would be patently absurd to suggest that abandonment of a traditional key means that warrantless access is allowed to the house it locks; the same must be true of digital keys to electronic information.” State v. K.C., 41 Fla. L. Weekly D2716a (4th DCA 12/7/16)
https://edca.4dca.org/DCADocs/2015/3290/153290_DC05_12072016_085303_i.pdf

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

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/December/December%2007,%202016/2D15-5131.pdf
EVIDENCE-REBUTTAL-IMPEACHMENT: Court erred by allowing the state to rebut Defendant’s not hearsay statements (deputies are “green aliens” and “green parasites” with evidence of his prior convictions. The statement that deputies are green aliens is not hearsay because not admitted for the truth of the matter asserted, and therefore is not subject to impeachment. Gumestad v. State, 41 Fla. L. Weekly D2710a (2nd DCA 12/7/16)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOVEMBER 2016

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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


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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/November/November%2004,%202016/2D15-3384.pdf
RECLASSIFICATION: Armed burglary conviction could not be reclassified under firearm statute because use of a weapon or firearm was an essential element of armed burglary. Postaski v. State, 41 Fla. L. Weekly D2472a (2nd DCA 11/4/16)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.5dca.org/Opinions/Opin2016/103116/5D16-2844.op.pdf
POST CONVICTION RELIEF: Court may not summarily deny claim that counsel was ineffective for incorrectly advising him that he is not subject to sex offender registration requirements/Jimmy Ryce Civil Commitment. Civil commitment is not a collateral consequence of entering a plea. Faiella v. State, 41 Fla. L. Weekly D2464a (5th DCA 11/4/15)

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

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

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

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

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

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

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

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

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

http://www.3dca.flcourts.org/Opinions/3D15-1849.rh.pdf
VERDICT FORM: Courts should provide an interrogatory separate from the verdict form for the core or substantive offenses for the jury to determine the existence of circumstances that can result in mandatory minimum sentences, sentence enhancements, or offense reclassifications. State v. Smith, 41 Fla. L. Weekly D2456c (3rd DCA 11/2/16)

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

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

https://edca.4dca.org/DCADocs/2014/1316/141316_DC08_11022016_085846_i.pdf
PROBATION REVOCATION: Defendant did not violate her probation by failing to successfully complete rehabilitation treatment program where the uncontroverted evidence established that defendant attempted to attend her scheduled sessions but was turned away and discharged from her treatment program due to her childcare issues. Charles v. State, 41 Fla. L. Weekly D2447a (4th DCA 11/2/16)

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

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

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

OCTOBER 2016

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

http://www.floridasupremecourt.org/decisions/2016/sc13-2092.pdf
JURY INSTRUCTIONS: Standard jury instructions tweaked. In Re: Standard Jury Instructions, 41 Fla. L. Weekly S480a (FLA 10/27/16)

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

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

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

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

https://edca.4dca.org/DCADocs/2016/1542/161542_DC05_10262016_090612_i.pdf
JUDGMENT OF ACQUITTAL-LSOA: Defendant is entitled to judgment of acquittal on charge of leading scene of crash where State failed to prove that the vehicle damaged in the crash was attended at the time of the accident. Trainer v. State, 41 Fla. L. Weekly D2403a (4th DCA 10/26/16)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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