Criminal Case Law

January 2020

JOA-BURGLARY-MERE PRESENCE:   Child walking down the street with two others, one on whom was straddling a bicycle just stolen from a carport, cannot be convicted of burglary or theft.   There was evidence that Child’s companion committed a burglary, but not that Child did anything to encourage or aid in the commission of the burglary or the theft of the bike.  Mere presence is insufficient to establish guilt.   S.L.W. v. State, 2D18-3546 (1/17/20)

https://www.2dca.org/content/download/567966/6415124/file/183546_DC08_01172020_085601_i.pdf

 

NEWLY DISCOVERED EVIDENCE–MANIFEST INJUSTICE:    Advances in forensic medicine changing the consensus within the medical community from believing that “short distance” falls cannot cause death to believing that they can is newly discovered evidence which warrants a new trial where the State’s expert had testified at trial that a fall down the stairs could not have caused the fatal injury in a child abuse case.     Manifest injustice excuses the two year time limitation for relief.   “[N]othing could be more manifestly unjust than having a murder conviction rest largely on the testimony of. . . a medical examiner whose work has been called into doubt. .  and when apparent advances in forensic science appear to substantially weaken the opinions reached.”  Vega v. State, 5D19-729  (1/17/20)

https://www.5dca.org/content/download/567959/6415037/file/190729_1259_01172020_08055428_i.pdf

 

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL:    If a legal issue would in all probability have been found to be without merit had counsel raised the issue on direct appeal (here, a suppression of confession issue),, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective.   Moran v. State, 5D19-1833  (1/17/20)

https://www.5dca.org/content/download/567961/6415061/file/191833_1254_01172020_08073696_i.pdf

 

FRAGMENTED SENTENCES:     Defendant who is sentenced to serve  concurrent sentences in prison in separate cases, each of which carry a mandatory minimum, and for whom the mandatory minimums portions of each sentence are to be served consecutively, does not receive an improperly fragmented sentence.  Consecutive minimum mandatory sentences within otherwise concurrent sentences is lawful, so long as the offenses arose from separate and distinct criminal episodes.     Thomas v. State, 5D19-2637  (1/17/20)

https://www.5dca.org/content/download/567962/6415073/file/192637_1257_01172020_08122546_i.pdf

 

SEARCH AND SEIZURE:   Defendant’s van is properly searched when Defendant attempts to deliver narcotics to a dealer who had been arrested earlier in the day and who negotiated a drug deal with the Defendant immediately after the dealer’s arrest.   United States v. Mancilla-Ibarra, (11th Cir.  1/15/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201713663.pdf

 

SAFETY VALVE:    Defendant does not qualify for the two level safety valve reduction when he  gives some information but holds back on other information, thus not satisfying  the “tell-all” provision.   The Defendant carries the burden of proving he qualifies for safety valve.   “And it is blackletter law that where the trier of fact remains uncertain, the party with the burden of proof loses.”    United States v. Mancilla-Ibarra, (11th Cir.  1/15/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201713663.pdf

 

POST CONVICTION RELIEF:    Brevity of consultation with client alone is not grounds for postconviction relief.  Martin v. State, SC18-214  (1/16/20)

https://www.floridasupremecourt.org/content/download/567881/6414164/file/sc18-214.pdf

 

POST CONVICTION RELIEF:   Counsel was not ineffective for failing to try to implicate a 6’3″ tall individual with an alibi in South Florida at the time of the murder in Jacksonville where the shooter is described as a “short fat dude” and the Defendant, whose nickname was “Shorty Fat”, is 5’3″ with a waist circumference of 48 inches.   Martin v. State, SC18-214  (1/16/20)

https://www.floridasupremecourt.org/content/download/567881/6414164/file/sc18-214.pdf

 

ARGUMENT-VISUAL AID:    “The prosecutor’s use of a visual aid which allegedly depicted a cartoon of a man with his head in the sand is clearly a questionable choice in the context of a capital murder trial. . .The State used the visual aid to argue the evidence. . [that] the jury should not ‘bury their heads in the sand.'”   But no fundamental error.   Martin v. State, SC18-214  (1/16/20)

https://www.floridasupremecourt.org/content/download/567881/6414164/file/sc18-214.pdf

 

VOTING RIGHTS:   Article VI, section 4 of the Florida Constitution restores voting rights to certain felons only upon  completion of all terms of sentence, including payment in full of all fines, costs, and restitution.   Re:    Implementation of Amendment 4, the Voting Restoration Amendment, SC19-1341  (1/16/20)

https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf

 

STATUTORY INTERPRETATION:   “[T]his Court has sometimes suggested that the first step in construing a constitutional provision may involve something other than determining the objective meaning of the text. . .(‘In construing the Constitution, we first seek to ascertain the intent of the framers and voters’. . .)   We believe that such statements can be misleading because they may be understood to shift the focus of interpretation from the text and its context to extraneous considerations. And such extraneous considerations can result in the judicial imposition of meaning that the text cannot bear. . . We therefore adhere to the ‘supremacy-of-text principle.'”    Re:    Implementation of Amendment 4, the Voting Restoration Amendment, SC19-1341  (1/16/20)

https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf 

 

DEFINITION-“TERM”:    “But the fact that the word ‘terms’ itself can carry different meanings does not render the phrase ‘all terms of sentence,’ as used in Amendment 4, susceptible to more than one natural reading. . .We conclude that ‘all terms of sentence’ plainly encompasses not only durational terms but also obligations and therefore includes all LFOs imposed in conjunction with an adjudication of guilt.   Re:    Implementation of Amendment 4, the Voting Restoration Amendment, SC19-1341  (1/16/20)

https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf

 

DEFINITION-“SENTENCE”:   “The word ‘sentence” is not defined in the Florida Constitution or seemingly anywhere in the Florida Statutes. . .[T]he word “sentence” cannot be construed in an overly technical fashion here. . .Amendment 4. . .uses the word ‘sentence’ in its plain, common sense. . . [T]here is no basis to conclude that ‘all terms of sentence’ excludes any LFOs ordered by the sentencing judge.    Re:    Implementation of Amendment 4, the Voting Restoration Amendment, SC19-1341  (1/16/20)

https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf

 

DEFINITION-“LFO”:     “Legal Financial Obligations”    Re:    Implementation of Amendment 4, the Voting Restoration Amendment, SC19-1341  (1/16/20)

https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf

 

STATUTORY INTERPRETATION-(concurring, J. Labarga):   Textualism “is a sound theory of interpretation which, in most instances, proves to be determinative. My concern is with its strict disapproval of consideration of extrinsic sources which, in some instances, such as in this case, prove to be not only helpful, but dispositive.”   Re:    Implementation of Amendment 4, the Voting Restoration Amendment, SC19-1341  (1/16/20)

https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf

 

STATUTORY INTERPRETATION-(concurring, J. Labarga):    “Textualist abhorrence of consideration of the intent of the framers of a constitutional or statutory provision has been persistently and stubbornly present throughout the theory’s history. . .I agree with the majority that the lodestar of constitutional and statutory interpretation should be, in the first instance, the application of the words of the governing text read in context. However, the analysis should provide some allowance for consideration of the intent of the framers and voters in instances where it will assist in elucidating the meaning of the text in question.”   Re:    Implementation of Amendment 4, the Voting Restoration Amendment, SC19-1341  (1/16/20)

https://www.floridasupremecourt.org/content/download/567884/6414200/file/sc19-1341.pdf

 

JURY INSTRUCTIONS-AMENDMENT:  Definitions of  “cyberstalk” and “maliciously” are revised.  In Re:  Standard Jury Instructions, SC19-1654  (1/16/20)

https://www.floridasupremecourt.org/content/download/567885/6414212/file/sc19-1654.pdf

 

JURY INSTRUCTIONS-AMENDMENT:   Definitions for Lewd and Lascivious Conduct in Detention Facility revised.   In Re:   Standard Jury Instructions, SC19-1696    (1/16/20)

https://www.floridasupremecourt.org/content/download/567886/6414224/file/sc19-1696.pdf

 

JURY INSTRUCTIONS-AMENDMENT:   The theft instruction is amended based upon the change to the grand theft statute as to amount.   In Re:   Standard Jury Instructions, SC19-1696    (1/16/20)

https://www.floridasupremecourt.org/content/download/567886/6414224/file/sc19-1696.pdf

 

JURY INSTRUCTION-AMENDMENT:   In Fleeing and Eluding instruction, the definition for “operator” is eliminated and  the statutory citations for “street or highway” and “vehicle” are updated.   In Re:   Standard Jury Instructions,  SC19-1760  (1/16/20)

https://www.floridasupremecourt.org/content/download/567887/6414236/file/sc19-1760.pdf

 

APPEAL-COSTS:    Where Court imposed investigative costs without them having been requested, and Defendant successfully appeals their imposition, Court may not impose the investigative costs upon remand.   “A party does not get the proverbial ‘second bite at the apple’ when it fails to satisfy a legal obligation the first time around.   Richards v. State, SC19-24  (1/16/20)

https://www.floridasupremecourt.org/content/download/567882/6414176/file/sc19-24.pdf

 

SILENCE OF DEFENDANT:     Testimony that Defendant, who when approached on his porch about the two people killed in front of his house, initially remained silent, detached, and emotionless, and that he did not claim self-defense, is an impermissible comment on his right to remain silent under Article 1, section 9’s privilege against self-incrimination.  Prearrest, pre-Miranda silence does not prove a consciousness of guilt and is therefore not relevant as substantive evidence.  A defendant’s postarrest, pre-Miranda silence may not be used either as substantive evidence or for impeachment purposes and that (2) a defendant’s prearrest, pre-Miranda silence may not be used as substantive evidence but may be used for impeachment if the silence is inconsistent with the defendant’s testimony at trial.     Howard  v. State,  2D17-4947  (1/15/20)

https://www.2dca.org/content/download/567790/6413137/file/174947_DC13_01152020_090134_i.pdf

 

APPEAL-INEFFECTIVE ASSISTANCE:    Counsel’s failure to provide the court with the authorities on the use of Defendant’s pre-arrest silence  and to object to the State’s introduction of evidence and comment upon his silence was ineffective assistance of counsel   Because there could have been no tactical explanation for counsel’s failure, issue can be raised on direct appeal.  Conviction vacated and remanded. “[I]n view of the extent of the State’s evidence and argument on Mr. Howard’s prearrest, pre-Miranda silence and counsel’s multiple missed opportunities to object, this is one of those rare cases where the deficiency is apparent on the face of the record.”   Howard  v. State,  2D17-4947  (1/15/20)

https://www.2dca.org/content/download/567790/6413137/file/174947_DC13_01152020_090134_i.pdf

 

TOO WEIRD-MOTION-TIMELINESS:   Where Court improperly imposed a $50,000 fine and Defendant moved to correct the order imposing it, which the Court granted but only on the 61st day, the order was untimely, a nullity and the motion deemed denied.    Notwithstanding, the deemed denial of the motion is vacated and the case remanded for the proper granting of the motion.       Hamiter v. State,  2D18-2104  (1/15/20)

https://www.2dca.org/content/download/567792/6413161/file/182104_DC08_01152020_091124_i.pdf

 

APPEAL-ANDERS BRIEF:   Appointed counsel may challenge a trial court’s denial of a rule 3.800(b) motion to correct a minor sentencing error in an Anders “no merit” brief.   “[W]e question whether it is generally appropriate to correct a ‘minor sentencing error’ without subjecting the asserted error to adversarial testing.    But our question here concerns the point at which a ‘minor sentencing error’ becomes a ‘major sentencing error,’ which can be a slippery inquiry.  . .Although the error before us involves costs. . .and errors concerning costs may pale in significance to errors concerning, for example, length of incarceration, we are not so cavalier . . .as to lightly dismiss a $50,000-plus mistake as ‘minor.’”  Question certified.   Hamiter v. State,  2D18-2104  (1/15/20)

https://www.2dca.org/content/download/567792/6413161/file/182104_DC08_01152020_091124_i.pdf

 

EVIDENCE-BATTERED CHILD SYNDROME:   Battered child syndrome testimony is admissible to refute a claim of accidental death or to prove intent.    Cardona v. State, 3D17-2767  (1/15/20)

https://www.3dca.flcourts.org/content/download/567864/6413945/file/172767_DC05_01152020_162302_i.pdf

 

VIOLENT FELONY OFFENDER OF SPECIAL CONCERN:    Court must  make written findings articulating whether or not a VFOSC poses a danger to the community.  The transcript of the oral pronouncement is insufficient.   Saladriga v. State,  3D19-473  (1/15/20)

https://www.3dca.flcourts.org/content/download/567869/6414005/file/190473_DC13_01152020_163201_i.pdf

 

PRESENCE OF CHILD-DISPOSITION:   A juvenile defendant has a constitutional right to be present at his or her disposition hearing, notwithstanding the practical considerations of the Child having been transported to a commitment facility for other cases before.  M.C. v. State,  3D19-470  (1/15/20)

https://www.3dca.flcourts.org/content/download/567868/6413993/file/190470_DC13_01152020_162933_i.pdf

 

SEARCH AND SEIZURE:     Defendant, the subject of a “need to identify” flier based on his suspected involvement in robbery, is properly stopped after he failed to stop at a stop sign and properly searched after officer’s smell marijuana and arrested after police confirm he had no license.   Wright v. State, 3D17-941  (1/15/20)

https://www.3dca.flcourts.org/content/download/567865/6413957/file/170941_DC05_01152020_162222_i.pdf

 

COMMENT ON SILENCE-VOIR DIRE:    During voir dire, State’s comment, “. . . if the defendant were to testify — and if he does not, . . .,” to which the Defense objected and which the State did not pursue, is an isolated comment which did not vitiate the fairness of the trial.  Wright v. State, 3D17-941  (1/15/20)

https://www.3dca.flcourts.org/content/download/567865/6413957/file/170941_DC05_01152020_162222_i.pdf

 

EXPERT TESTIMONTY-DAUBERT:   Toxicologist’s testimony that he could not determine what percentage of the alcohol in the victim’s body was from body decomposition and what was from consumption by the victim was admissible under Daubert.   Larocca v. State,  18-1824  (1/15/20)

https://www.4dca.org/content/download/567777/6412968/file/181824_1257_01152020_08472032_i.pdf

 

VOIR DIRE-TIME LIMITS:   75 minute time limit for voir dire was not an abuse of discretion in sex abuse of a helpless person case. “[T]here is no mathematical formula that determines how much time the trial court should allocate for voir dire and [we] reiterate that this determination is made on a case-by-case basis.”   Efforts to “pre-try” the case militates against allowing further time for voir dire.    Cassaday v. State, 4D18-3066  (1/15/20)

https://www.4dca.org/content/download/567778/6412980/file/183066_1257_01152020_08485268_i.pdf

 

ATTORNEY-WITHDRAWAL:    Court acted within its discretion in denying attorney’s motion to withdraw based on irreconciliable difference on the eve of sentencing.   Permitting withdrawal at such a late juncture would have hindered the functioning of the court as there would not have been time for appellant to procure new counsel.     Schultz v. State,  4D18-3413  (1/15/20)

https://www.4dca.org/content/download/567780/6413004/file/183413_1257_01152020_08525878_i.pdf

 

SENTENCING-DOWNWARD DEPARTURE:    Upon remand, Court may consider a downward departure, but Court did not err in failing to consider a downward departure here because counsel did not file a motion so requesing, and court stated it would not have downwardly departed anyway.   157.5 year sentence stands.   Schultz v. State,  4D18-3413  (1/15/20)

https://www.4dca.org/content/download/567780/6413004/file/183413_1257_01152020_08525878_i.pdf

 

DOUBLE JEOPARDY:    Separate convictions for trafficking in heroin and possession of heroin with intent to sell  for the same quantum of cocaine violate double jeopardy.   Driver v. State, 4D18-3690  (1/15/20)

https://www.4dca.org/content/download/567781/6413016/file/183690_1708_01152020_08561851_i.pdf

 

POSSESSION OF FIREARM DURING OFFENSE:   Firearms found with the drugs in appellant’s bedroom  were in his constructive possession supports his enhancement for possession a firearm during commission of a drug offense.   Actual possession is not required. The possession of the narcotics is ongoing.  Driver v. State, 4D18-3690  (1/15/20)

https://www.4dca.org/content/download/567781/6413016/file/183690_1708_01152020_08561851_i.pdf

 

JURORS-PEREMPTORY CHALLENGE-PRESERVATION-DISSENT:    “This case presents an important issue in Florida law as to whether religion can be considered as a basis for a peremptory strike.  The majority wrongfully insulates it from review by using an overly formalistic interpretation of preservation. I dissent.”    State v. Pacchiani, SC18-655 (1/9/20)

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.floridasupremecourt.org_content_download_546562_6158866_file_sc18-2D655.pdf&d=DwIFaQ&c=4ZIZThykDLcoWk-GVjSLmy8-1Cr1I4FWIvbLFebwKgY&r=F-9agIYCC31hxHQ9P-_5z-4kW4UrQcLOj8_2cAfouOznQn5UDoo8InFE3c97rBN6&m=7crMA6CzQV-LF03M1y6euzRdwOjiRaCSj1pH7rM3Nvc&s=__mnImEoTIpEWQhAEP0oU8sI9_QFvSronpFp4bz4f2g&e=

DEATH PENALTY:    Death Row inmates are not entitled to the identities of the manufacturers of the three drugs used to administer lethal injection as part of challenge as to whether the three drug procedure for administering death penalty provides sufficient anesthetization.   Georgia’s Lethal Injection Secrecy Act,which protects death penalty drug providers from disclosure of their identities, is lawful.   Jordan v. Commissioner, Mississippi Department of Corrections, No.  17-12948  (11th Cir. 1/10/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201712948.reh.pdf

 

SENTENCING-DOWNWARD DEPARTURE:    Because Defendant has one minor criminal offense (DWLS) within ten years of the instant offense, all priors must be scored and Court may not impose a downward departure sentence.    A trial court’s opinions that the lowest permissible sentence is too harsh, or that the severity of the sentence is not commensurate with the seriousness of the crime, are prohibited grounds upon which to depart.   State v. Johnson, 2D18-4436  (1/10/20)

https://www.2dca.org/content/download/546635/6159594/file/184436_DC13_01102020_084024_i.pdf

 

RETURN OF PERSONAL PROPERTY    Court may not refuse return of Defendant’s wallet and license after nolle prosequi without a hearing because State asserts that they might prefer to use them, rather than photos of them,  in a separate criminal proceeding.   Peterson v. State, 5D19-507  (1/10/20)

https://www.5dca.org/content/download/546628/6159496/file/190507_1259_01102020_08200252_i.pdf

 

RESTITUTION-JURISDICTION:    Court lacks jurisdiction to enter an order for restitution while a direct appeal is pending.    Thomas v. State, 5D19-804  (1/10/20)

https://www.5dca.org/content/download/546629/6159508/file/190804_1260_01102020_08233536_i.pdf

 

QUOTATION:   “If the right to a jury trial means anything, it means a right to a verdict based on the evidence.”   United States v. Brown, No.  17-15470 (11th Cir. 01/09/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201715470.pdf

 

JURORS-DIVINE REVELATION:    Court properly dismissed juror during deliberations who told other jurors that “A Higher Being told me Corrine Brown was Not Guilty on all charges” and that he “trusted the Holy Ghost.”  “[R]egardless of whether it works in favor of or against the defendant, a rule that would allow a juror to base his verdict on something other than the evidence would be antithetical to the rule of law.”  United States v. Brown, No.  17-15470 (11th Cir. 01/09/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201715470.pdf

 

JURY DELIBERATIONS:    Court may interview juror during deliberations to investigate whether good cause existed to remove a juror when the Court was advised that the juror was improperly influenced by the Holy Spirit.”  United States v. Brown, No.  17-15470 (11th Cir. 01/09/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201715470.pdf

 

HEARSAY-ADOPTIVE ADMISSION:    Annotations made by examiner to application form for Naturalization during interview on a form signed by the Defendant are adopted statements, nonhearsay under R. 801(d)(2)(b).   United States v. Santos, No. 18-14529  (11th Cir. 01/09/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201814529.pdf

 

HEARSAY:   An annotated Form N-400 naturalization application falls within the public records exception to the hearsay rule, as does an alien’s A-file.   United States v. Santos, No. 18-14529  (11th Cir. 01/09/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201814529.pdf

 

CONFRONTATION CLAUSE:  Immigration Form N-400 Application, created during an interview,  is a nontestimonial public record produced as a matter of administrative routine and for the primary purpose of determining eligibility for naturalization, and thus  are not testimonial, not governed by Crawford, and its admission cannot violate the Confrontation Clause.   United States v. Santos, No. 18-14529  (11th Cir. 01/09/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201814529.pdf

 

RULE OF COMPLETENESS:   The Rule 106 Rule of Completeness-if a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part that in fairness ought to be considered–applies to oral as well as written or recorded statements.  But Defendant’s statement as to why he had failed to mention his criminal history does not explain or modify his inculpatory statement that he had a criminal history, and thus is not admissible under the Rule of Completeness.  United States v. Santos, No. 18-14529  (11th Cir. 01/09/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201814529.pdf

 

COSTS:   Court may not impose the $65 discretionary cost  without giving Defendant  notice and an opportunity to be heard.     Jackson v. State, 1D18-147  (1/8/20)

https://www.1dca.org/content/download/546470/6157761/file/180147_DC08_01082020_092324_i.pdf

 

COSTS-INVESTIGATIVE COST:   Court may not impose  $100 sheriff’s investigative without a request from the agency.  Cost may not be imposed on remand.   Jackson v. State, 1D18-147  (1/8/20)

https://www.1dca.org/content/download/546470/6157761/file/180147_DC08_01082020_092324_i.pdf

 

EVIDENCE:    In possession of firearm by felon case, Court properly admitted photograph of firearm on the car seat when it had actually been underneath the seat when found, where testimony clearly acknowledged that the firearms had been moved before being photographed.    Photograph was not misleading nor confusing.     Franklin v. State, 1D18-4276  (1/8/20)

https://www.1dca.org/content/download/546471/6157773/file/184276_DC05_01082020_092552_i.pdf

 

MOTION FOR NEW TRIAL:   When a trial court evaluates a motion for new trial, it must consider the weight of the evidence rather than the sufficiency of the evidence.   Judge’s statement that “The Court will rely on the rulings previously made in this case, and I will deny the motion for new trial at this time,” does not show that the judge applied the wrong legal standard.    Franklin v. State, 1D18-4276  (1/8/20)

https://www.1dca.org/content/download/546471/6157773/file/184276_DC05_01082020_092552_i.pdf

 

APPEAL-RECORD-SUPPLEMENT:   Documents not before the Court on the motion for post conviction relief may not be added as a supplement to the record on appeal.    Levin v. State, 1D19-3578  (1/8/20)

https://www.1dca.org/content/download/546474/6157809/file/193578_NOND_01082020_093454_i.pdf

 

RESTITUTION:    Defendant who engaged in a fraudulent scheme to pay off Victim’s mortgage before foreclosure, and who instead diverted the funds, is not liable for restitution to the mortgage company for the full value of the home after it foreclosed on it. “[T]he State relies on various citations to the record in support of its assertion that the restitution imposed was supported by the evidence presented at trial. But not one of those citations demonstrates that Chicago Title paid a claim in the amount of $240,938. . . The prosecutor’s assertions regarding the amount of restitution were not competent substantial evidence.”    Lewis v. State, 2D15-4203 (1/8/20)

https://www.2dca.org/content/download/546509/6158264/file/154203_DC08_01082020_084705_i.pdf

 

VOP-HEARSAY:   Court may not revoke probation for changing residence without permission solely on the testimony of the probation officer that the Defendant failed to report for several months and his father said “he was not there and had not been there in a while.”  Failing to report does not corroborate hearsay that the Defendant had moved.   Vann v. State, 2D18-4704 (1/8/20)

https://www.2dca.org/content/download/546510/6158276/file/184704_DC13_01082020_085000_i.pdf

 

VOP:    Only allegations made in the Affidavit can support a violation.   Defendant’s probation cannot be revoked on the basis that he had failed to report for several months when the only allegation in the Affidavit of Violation of Probation was that he had moved without permission.    Vann v. State, 2D18-4704 (1/8/20)

https://www.2dca.org/content/download/546510/6158276/file/184704_DC13_01082020_085000_i.pdf

 

MISTRIAL:   A mistrial should be granted only when an error is so prejudicial as to vitiate the entire trial, such that a mistrial is necessary to ensure that the defendant receives a fair trial, and only in cases of absolute necessity.  In case of Deputy charged with sexually assaulting a citizen,  Court erred by denying Motion for Mistrial following the alleged victim violating the Order in Limine excluding evidence about inconclusive DNA evidence  by saying,  “You see the DNA results on me. And now you guys say the DNA’s not on my butt, but it was on my butt.”     Nebergall v. State, 4D18-2327  (1/8/20)

https://www.4dca.org/content/download/546485/6157969/file/182327_1709_01082020_08435795_i.pdf

 

APPEAL-LOST TRANSCRIPT:    New trial is required when a transcript is lost and the missing transcript would reflect matters which prejudice the defendant.   Campbell v. State,  4D18-2456  (1/8/20)

https://www.4dca.org/content/download/546486/6157981/file/182456_1709_01082020_08472973_i.pdf

 

THEFT-VALUE-JOA:    JOA for Grand Theft is required for theft of two iPads, an iPhone, an Alexa speaker, knick-knacks, a signed baseball, a camera, and jewelry (including an engagement ring which the wife estimated as being worth $3000).   To prove value, the court must  ascertain whether the person testifying is competent to testify to the value of property and if so, whether the evidence adduced at trial is sufficient to prove its fair market value beyond a reasonable doubt.   Where the value of the property is estimated and no other proof is presented, the owner’s evidence is insufficient to prove fair market value.   Good discussion.   Harris v. State, 4D19-913  (1/8/20)

https://www.4dca.org/content/download/546494/6158077/file/190913_1709_01082020_09012634_i.pdf

 

CREDIT FOR TIME SERVED:  Defendants who violate a consecutive term of probation are not entitled to credit for prison time served on a separate offense.   Interlandi v. State,  4D19-2470  (1/8/20)

https://www.4dca.org/content/download/546503/6158185/file/192470_1257_01082020_09181740_i.pdf

 

POST CONVICTION RELIEF:   Defendant is entitled to a hearing on claim that counsel misadvised him that he could have his record expunged.   Affirmative misadvice regarding a collateral consequence may render a plea involuntary.   Jackson v. State, D19-2804  (1/8/20)

https://www.4dca.org/content/download/546504/6158197/file/192804_1709_01082020_09201975_i.pdf

 

POST CONVICTION RELIEF:     Defendant’s is not entitled to an evidentiary hearing on a  bare and conclusory allegation of newly discovered evidence.   If the defendant files a newly discovered evidence claim based on recanted trial testimony or on a newly discovered witness, he must  include an affidavit from that person as an attachment.   Batista v. State, 4D19-3013 (1/8/20)

https://www.4dca.org/content/download/546506/6158221/file/193023_1709_01082020_09243468_i.pdf

 

EIGHTH AMENDMENT-EXCESSIVE FORCE:   To establish an Eighth Amendment excessive force/sexual assault claim, the Plaintiff must establish 1) that the official acted with a sufficiently culpable state of mind i.e., sadistically and maliciously applied for the very purpose of causing harm, and 2)  the conduct must have been objectively harmful enough to establish a constitutional violation.    A guard who sadistically and maliciously forces his finger into an inmate’s  anus  violates the Eighth Amendment.  Courts cannot find excessive force claims not actionable because the prisoner did not suffer more than de minimis injury.  “The lack of serious physical injury, considered in a vacuum, cannot snuff out Eighth Amendment sexual-assault claims.”   Prior precedent receded from.   Sconiers v. Lockhart, No. 16-16954 (11th Cir.  1/7/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201616954.pdf

 

EIGHTH AMENDMENT:    Defendant’s plea to the offense of Resisting Without Violence does collaterally estop  the Defendant from suing the officer for an Eighth Amendment claim based on the same incident.   Sconiers v. Lockhart, No. 16-16954 (11th Cir.  1/7/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201616954.pdf

 

POST CONVICTION RELIEF-TIMELINESS:   District Court may sua sponte dismiss a motion for Post Conviction Relief for being untimely.  Paez v. Secretary, DOC, No. 16-15705 (1/7/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201615705.op2.pdf

 

ARMED CAREER CRIMINAL ACT:      Prior conviction for making terroristic threats is not a predicate violent felony under the elements clause of the Armed Career Criminal Act.  Georgia’s terroristic-threats statute can be violated without the use, attempted use, or threatened use of physical force against the person of another.    “Use” under the ACCA  requires active employment of physical force.    “Physical force” means violent force—that is, force capable of causing physical pain or injury to another person.”    United States v. Oliver, (11th Cir. 1/6/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201715565.pdf

 

SEARCH AND SEIZURE-EXCLUSIONARY RULE-SUPERVISED RELEASE: The exclusionary rule does not apply in supervised release proceedings. United States v. Hill, No. 19-10647  (11th Cir.  1/3/20)

http://media.ca11.uscourts.gov/opinions/pub/files/201910647.pdf

THEFT: Evidence that a person was a passenger in a stolen vehicle is insufficient to prove that the person stole the vehicle, even if the passenger knew the vehicle was stolen. W.J.M. v. State, 2D17-3530  (1/3/20)

https://www.2dca.org/content/download/546230/6155475/file/173530_DC08_01032020_082115_i.pdf

THEFT: Passenger in a stolen golf cart cannot be deemed guilty of stealing tools under the seat in the cart. W.J.M. v. State, 2D17-3530  (1/3/20)

https://www.2dca.org/content/download/546230/6155475/file/173530_DC08_01032020_082115_i.pdf

JUDGMENT OF ACQUITTAL-INEFFECTIVE ASSISTANCE: Counsel was ineffective for not arguing that Defendant found on porch of a damaged trailer cannot be found guilty of criminal mischief, absent evidence that he had committed the damage or, if he had, had done so maliciously. Issue of ineffective assistance apparent from the record may be raised on direct appeal. White v. State, 2D18-2732  (1/3/20)

https://www.2dca.org/content/download/546231/6155487/file/182732_DC13_01032020_082413_i.pdf

CRIMINAL MISCHIEF: Defendant found on porch of a damaged trailer cannot be found guilty of criminal mischief, absent evidence that he had committed the damage or, if he had, had done so maliciously. White v. State, 2D18-2732  (1/3/20) 

https://www.2dca.org/content/download/546231/6155487/file/182732_DC13_01032020_082413_i.pdf

BURGLARY: Defendant found sitting on the porch of a trailer from which a TV had been stolen cannot be convicted of burglary. Sitting on the porch is not evidence of stealthy entry. White v. State, 2D18-2732  (1/3/20)

https://www.2dca.org/content/download/546231/6155487/file/182732_DC13_01032020_082413_i.pdf

DOUBLE JEOPARDY: Double Jeopardy bars dual convictions for both armed burglary and burglary with assault or battery. Bailey v. State, 5D 18-251 (1/3/20)

https://www.5dca.org/content/download/546268/6155791/file/180251_1259_01032020_03015382_i.pdf

DOUBLE JEOPARDY: Defendant cannot be convicted of theft and dealing in stolen property where he stole a television and sold it two hours later. These actions constituted one scheme or course of conduct for the purposes of §812.025. Ramirez v. State, 5D18-3458 (1/3/20)

https://www.5dca.org/content/download/546179/6154732/file/183458_1260_01032020_08132192_i.pdf

RETROACTIVITY-UPWARD DEPARTUREBrown v. State, holding that the jury, and not the court, must make the factual determination of dangerousness to the public as the predicate for the imposition of a state prison sentence, does not apply retroactively. A change in the law is not deemed retroactive unless the change (a) emanates from the Florida or United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance. Brown does not constitute a development of fundamental significance. Adams v. State, 5D 19-2540 (1/3/20)

https://www.5dca.org/content/download/546185/6154804/file/192540_1257_01032020_08271883_i.pdf

MOTION TO DISMISS: “A motion to dismiss an information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) is analogous to a motion for summary judgment in a civil case. . .. Both should be granted sparingly.”If the state’s evidence is all circumstantial, whether it excludes all reasonable hypotheses of innocence may only be decided at trial. State v. Petagine, 1D18-2086 (1/2/20)

https://www.1dca.org/content/download/546116/6153866/file/182086_DC08_01022020_103018_i.pdf

HAZING: Information charging felony hazing based on a claim that a fraternity encouraged, and the (absent) fraternity president allowed, excessive drinking resulting in death is sufficient to withstand a motion to dismiss. State v. Petagine, 1D18-2086 (1/2/20)

https://www.1dca.org/content/download/546116/6153866/file/182086_DC08_01022020_103018_i.pdf

SPEEDY TRIAL: Speedy Trial rule does not preclude the State from adding a misdemeanor count to a felony information more than 90 days after arrest. State v. Petagine, 1D18-2086 (1/2/20)

https://www.1dca.org/content/download/546116/6153866/file/182086_DC08_01022020_103018_i.pdf

DISSENT (J. BILBREY): “The question has been asked since primeval times, ‘Am I my brother’s keeper?’  Andrew Coffey wanted to be a brother of the Pi Kappa Phi fraternity at Florida State University. He went to a party with brothers of the fraternity and fellow pledges, drank to excess, and tragically died. . . But the limited question we are presented with here is not whether any moral, civil, or societal obligation toward Mr. Coffey was violated by the fraternity brothers, but whether . . . the fraternity president. . . committed the crime of hazing.” State v. Petagine, 1D18-2086 (1/2/20)

https://www.1dca.org/content/download/546116/6153866/file/182086_DC08_01022020_103018_i.pdf

JOA-CIRCUMSTANTIAL EVIDENCE: A defendant moving for a judgment of acquittal in a circumstantial evidence case must identify the element or elements of the crime for which he contends evidence is lacking and, if the evidence is purely circumstantial, must outline his theory of the case and explain why it is not inconsistent with the circumstantial evidence. Allen v. State, 1D18-3073  (1/2/20)

https://www.1dca.org/content/download/546135/6154115/file/183073_DC05_01022020_103752_i.pdf

SEXUAL PERFORMANCE BY CHILD: Defendant can be convicted of Sexual Performance by a Child based on him molesting a sleeping child. Allen v. State, 1D18-3073  (1/2/20)

https://www.1dca.org/content/download/546135/6154115/file/183073_DC05_01022020_103752_i.pdf

VIDEO VOYEURISM: Defendant is properly convicted of video voyeurism for sliding his video camera into a dressing room where a girl was changing clothes, notwithstanding that the actual video was never recovered. Allen v. State, 1D18-3073  (1/2/20)

https://www.1dca.org/content/download/546135/6154115/file/183073_DC05_01022020_103752_i.pdf

CARRYING CONCEALED WEAPON-KNIFE: A knife with a 4 and a half inch blade, allegedly used for fishing and found in student’s backpack, is not a weapon absent evidence that the Child used or threatened to use the knife to inflict harm. K.R. v. State, 3D18-2566  (1/2/20)

https://www.3dca.flcourts.org/content/download/546126/6154007/file/182566_811_01022020_10212813_i.pdf

EVIDENCE-COLLATERAL CRIME: Evidence the Defendant had sexually assaulted another woman in a similar manner – knocking on the door then assaulting the woman inside — is admissible and relevant to show that  Defendant  had a common scheme or plan. Jakubowski v. State,  1D18-1074  (12/31/19)

https://www.1dca.org/content/download/546063/6153170/file/181074_DC05_12312019_110857_i.pdf

HEARSAY: Victim’s statements to a nurse describing the sexual assault were not admissible under the exception for medical diagnosis or treatment, but their admission is harmless where, as here, the victim testifies to the same information in the evidence is merely cumulative. Jakubowski v. State,  1D18-1074  (12/31/19)

https://www.1dca.org/content/download/546063/6153170/file/181074_DC05_12312019_110857_i.pdf

December 2019

EVIDENCE-CONSCIOUSNESS OF GUILT: Evidence that Defendant attempted suicide shortly after being confronted by the victim about his sexual abuse of her as a child is admissible to show consciousness of guilt. Mathis v. State,  1D18-2183 (12/31/19)

https://www.1dca.org/content/download/546064/6153182/file/182183_DC05_12312019_112116_i.pdf

COSTS: Court may not impose discretionary cost without orally pronouncing them. Hicks v. State, 1D18-320   (12/31/19)

https://www.1dca.org/content/download/546061/6153146/file/180320_DC08_12312019_105420_i.pdf

MOTION FOR NEW TRIAL: On a Motion for New Trial, the Court must consider (1) a sufficiency of the evidence standard (i.e., was the jury’s verdict supported by sufficient evidence) and (2) a weight of the evidence standard by which the trial judge acts as a seventh juror to independently assess whether the jury verdict was contrary to the weight of the evidence. A new hearing is required where the Court only considered the former (stating only that the evidence was “sufficient”) but not whether the verdict is against the weight of the evidence. Smith v. State, 1D18-3208  (12/31/19)

https://www.1dca.org/content/download/546066/6153206/file/183208_DC08_12312019_112750_i.pdf

EVIDENCE-PSYCHOTHERAPIST-PATIENT PRIVILEGE: Defendant is entitled to use Victim’s psychological assessment records (lawfully obtained when the Defendant was the Victim’s guardian) establishing that the Victim suffered from Reactive Attachment Disorder (RAD).   Although the assessments were covered by the psychotherapist-patient privilege,  “strict adherence to procedural rules may give way to a defendant’s right to present relevant evidence in his defense.” Traffanstead v. State,  1D18-874  (12/31/19)

https://www.1dca.org/content/download/546062/6153158/file/180874_DC13_12312019_110424_i.pdf

APPEALS: Appellate court must summarily affirm, rather than dismiss, frivolous appeals taken after entry of plea. Frias v. State, 1D19-1753 (12/31/19)

https://www.1dca.org/content/download/546067/6153218/file/191753_DC05_12312019_113204_i.pdf

CERTIORARI: Where the threshold requirement of irreparable harm is not established, the petition for writ of certiorari must be dismissed.   Before conducting certiorari review of a non-final order, the appellate court must focus on the jurisdictional question of whether there is irreparable harm. Ford v. State, 1D19-4365  (12/31/19)

https://www.1dca.org/content/download/546075/6153321/file/194365_DA08_12312019_115431_i.pdf

JUVENILE-SECURE DETENTION: Juvenile who does not score secure detention may not be remanded to secure detention based on an allegation that he had cut off his ankle monitor, absent a hearing to determine whether he was in contempt of court. S.B. v. El Fance,  3D 19-2508 (12/31/19)

https://www.3dca.flcourts.org/content/download/546069/6153249/file/192508_807_12312019_10310097_i.pdf

HOBBS ACT: To sustain a conviction for Hobbs Act robbery, the government need only show that the offense had at least a minimal effect on interstate commerce. Examples of a minimal effect sufficient to meet the jurisdictional requirement include that a robbery deprived a business of cash or a depletion of assets. United States v. Herrera, No.  17-13440  (11th Cir.  12/31/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201713440.pdf

CONSPIRACY: Where a single conspiracy is charged in the indictment while multiple conspiracies may have been revealed at trial, the conviction stands unless the variance is (1) material and (2) substantially prejudiced the defendant.   The existence of different sub-groups does not undermine the jury’s finding of a single conspiracy so long as each group acted in furtherance of one overarching plan. United States v. Browdy, No. 17-15664 (12/30/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201715664.pdf

HEARSAY-STATEMENTS AGAINST PENAL INTEREST: Testimony regarding an out-of-court statement by a cooperating witness’s wife that he wanted to frame the Defendant is properly excluded.   The statement was not against the Wife’s penal interest. United States v. Browdy, No. 17-15664 (12/30/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201715664.pdf

MISTRIAL: A brief, unelicited, and unresponsive mention that the Defendant had previously been incarcerated does not warrant a mistrial. United States v. Browdy, No. 17-15664 (12/30/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201715664.pdf

SCORESHEET-FIREARM ENHANCEMENT: Defendant is subject to a two level firearm enhancement based on a co-conspirator’s active threatening another putting a gun in his mouth where the use of the firearm was reasonably foreseeable, occurred while the Defendant was never the conspiracy, and was in furtherance of the conspiracy. United States v. Browdy, No. 17-15664 (12/30/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201715664.pdf

COMPETENCY: Court  must delineate its findings regarding the competency of the defendant in a written order. White v. State, No. 1D18-3868 (12/27/19)

https://www.1dca.org/content/download/545985/6152280/file/183868_DC06_12272019_110402_i.pdf

POSSESSION OF FIREARM DURING A FELONY: Jury instruction and caption of the information referring to “Possession of a Firearm during Commission of a Felony” is not fundamental error, notwithstanding that the statute criminalizes carrying, not possessing, a firearm. Defendant properly convicted of carrying a firearm found under the seat he was driving. “Appellant’s argument is semantic only, and he has failed to demonstrate fundamental error.” Ruffins v. State, No. 1D18-706 (12/27/19)

https://www.1dca.org/content/download/545986/6152292/file/180706_DC05_12272019_110133_i.pdf

CREDIT FOR TIME SERVED-JURISDICTION: Court lacks jurisdiction to grant motion to correct credit for time served filed more than 1 year after the sentence becomes final. Berg v. State, No. 1D19-1031 (12/27/19)

https://www.1dca.org/content/download/545989/6152328/file/191031_DC05_12272019_112215_i.pdf

SEARCH AND SEIZURE-CONSENT: The act of Defendant pointing to the car thief sought by the police and sitting on the motel bed is nonverbal consent for police to enter the hotel room. Defendant can be detained and questioned about the narcotics seen in plain view in the room. Smith v. State, 2D18-2493 (12/27/19)

https://www.2dca.org/content/download/545912/6151392/file/182493_DC13_12272019_090833_i.pdf

SEARCH AND SEIZURE-BLOOD DRAW: In DUI manslaughter case, blood draw procured in violation of the implied consent statute is nevertheless admissible based on inevitable discovery, notwithstanding that the process for obtaining a search warrant had not been initiated. “[W]e conclude that the inevitable discovery exception to the exclusionary rule applies in the instant case. Campbell’s blood sample would have been obtained because there was probable cause for a blood draw, and a warrant would have been issued.” Campbell v. State, 5D18-2091 (12/27/19)

https://www.5dca.org/content/download/545895/6151174/file/182091_1257_12272019_07412606_i.pdf

SEARCH AND SEIZURE-GOOD FAITH: The good faith exception cannot be applied where the police officer’s acts occur subsequent to a binding appellate court decision (Birchfield) which determines that such acts are violative of the Fourth Amendment, even if the decision was released only the day before. Campbell v. State, 5D18-2091 (12/27/19)

https://www.5dca.org/content/download/545895/6151174/file/182091_1257_12272019_07412606_i.pdf

BINDING PRECEDENT: The effective date of an appellate decision is the date appearing on the face of the decision even though it may not become final until after the time has expired for filing a motion for rehearing. Campbell v. State, 5D18-2091 (12/27/19)

https://www.5dca.org/content/download/545895/6151174/file/182091_1257_12272019_07412606_i.pdf

DOUBLE JEOPARDY: Double Jeopardy prohibits dual convictions and sentences for Aggravated Battery and Battery committed against one victim within the same criminal transaction or episode (here, stock car racers on the track). Rivera v. State, 5D18-3385 (12/27/19)

https://www.5dca.org/content/download/545896/6151186/file/183385_12612272019_07424305_i.pdf

SEARCH AND SEIZURE-CURTILAGE-AUTOMOBILE: Unpaved parking area shared by several dwellings is not within the curtilage of the Defendant’s home. State v. Thornton, 5D18-3726 (12/27/19)

https://www.5dca.org/content/download/545897/6151198/file/183726_1260_12272019_07441122_i.pdf

SEARCH AND SEIZURE-PLAIN VIEW: Officer may shine a flashlight into a parked car and if he sees contraband, enter it. State v. Thornton, 5D18-3726 (12/27/19)

https://www.5dca.org/content/download/545897/6151198/file/183726_1260_12272019_07441122_i.pdf

STAND YOUR GROUND-RETROACTIVITY: Change in SYG statute applies retroactively, but given the Court’s finding that under either standard SYG would not apply, conviction stands. Maddox v. State, 5D19-352 (12/27/19)

https://www.5dca.org/content/download/545900/6151234/file/190352_1257_12272019_07465718_i.pdf

RESENTENCING: Court may not rescind order granting resentencing when neither party moved for rehearing or appealed the order. Price v. State, 5D19-993 (12/27/19)

https://www.5dca.org/content/download/545901/6151246/file/190993_1260_12272019_07481212_i.pdf

JUDGE-DISQUALIFICATION: Judge’s comments that indicated that he had predetermined that Defendant would receive lengthy prison sentences provides Defendant  with a well-grounded fear that he would not receive a fair sentencing hearing before the judge. Judge’s subsequent denial of motion to mitigate is vacated. Hauter v. State, 5D19-2921 (12/27/19)

https://www.5dca.org/content/download/545904/6151282/file/192921_1255_12272019_07583130_i.pdf

COMPETENCY: Once a trial court appoints doctors to undertake competency evaluations of a defendant, the trial court is obligated to make its own independent competency determination.  Judge’s statement that a defendant presents as “very lucid in court” is not a finding of  competency.   Where reports, prepared well before the inadequate hearing, indicate that the Defendant is bipolar with a likelihood of decomposition, the Court may not make a retroactive finding of competency.  New trial required. Alexander v. State, 3D18-1747 (12/26/19)

https://www.3dca.flcourts.org/content/download/545848/6150594/file/181747_812_12262019_10131310_i.pdf

EVIDENCE-VOIR DIRE: Where Defendant successfully moved to exclude evidence of prior thefts known to have been committed by Defendant, he may not present evidence, nor discuss during voir dire, his homelessness in support of defense that he was seeking shelter in the car, not that he intended to steal from it. An order in limine should only be used as a shield and never to gag the truth or mislead the jury. “[I]n order for homelessness to be relevant, jurors would be forced to embrace the assumption that members of the homeless population are more likely to enter a vehicle in search of refuge than for the purpose of committing a crime.” Sims v. State, 3D18-1431 (12/26/19)

https://www.3dca.flcourts.org/content/download/545847/6150582/file/181431_809_12262019_03562927_i.pdf

ENHANCEMENT-BODY ARMOR: Selling body armor does not subject one to the two level enhancement for use of body armor during the offense.   “[T]here are only two ways to “use” body armor under the guideline, and neither of them involves selling it.” United States v. Bankston, No. 18-14812  (11th Cir. 12/23/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201814812.pdf

STATUTORY INTERPRETATION-PLAIN MEANING-LEGISLATIVE HISTORY: “[T]he government offers legislative history. That legislative history, we are told. . ., reveals the guideline’s true purpose: ‘to take body armor out of the hands of violent criminals. . .’ No matter. . .’When the import of the words Congress has used is clear. . ., we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.’” United States v. Bankston, No. 18-14812  (11th Cir. 12/23/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201814812.pdf

HEARSAY: Error, if any, in admitting statements, “Do it, Josh” (Defendant’s girlfriend telling him to shoot at victim) and “I can’t believe he done that.” (Victim’s boyfriend alluding to Defendant having shot her) is harmless. Wright v. State, 1D18-1609 (12/23/19)

https://www.1dca.org/content/download/545536/6146922/file/181609_DC05_12232019_100848_i.pdf

CELL PHONE PASS CODE: QUESTION CERTIFIED: What is the proper legal inquiry when the state seeks to compel a suspect to provide a password to the suspect’s cell phone if the suspect has not previously given up his Fifth Amendment privilege in the password? What legal standard applies in determining whether the foregone conclusion applies to compelled production of passwords in these situations? Pollard v. State, 1D18-4572 (12/23/19)

https://www.1dca.org/content/download/545537/6146934/file/184572_NOND_12232019_101726_i.pdf

QUOTATION: “The expansion of governmental powers to compel disclosures of personally-held information to search person’s homes and personal effects. . ., is the antipode of the original understanding of the Fifth Amendment, which protected individual freedom by prohibiting compelled disclosures used to incriminate an accused. . . At its core, the debate . . is about which vision of the right against compelled testimony prevails: those of the Founders who erred on the side of personal liberty or those who defend state powers to extract testimony and see no problem in ‘merely compel[ling a defendant] to unlock [a] phone by entering the passcode himself.’” Pollard v. State, 1D18-4572 (12/23/19)

https://www.1dca.org/content/download/545537/6146934/file/184572_NOND_12232019_101726_i.pdf

SENTENCE-MINOR: Resentencing is not required where a minor homicide defendant’s sentence is (30 years) not a life sentence, a mandatory life sentence or a de facto life sentence. Wagner v. State, 1D18-4783 (12/23/19)

https://www.1dca.org/content/download/545538/6146946/file/184783_DC05_12232019_102121_i.pdf

MOTION FOR POST CONVICTION RELIEF-BURGLARY: Defendant is not entitled to relief on claim that he could not be  found guilty for remaining in a structure open to the public (a public parking garage) with the intent to commit a crime.  A person who remains in premises with the intent to commit a forcible felony commits burglary. It is true that this formulation is not always consistent with the historical understanding of the crime of burglary. Wilson v. State, 1D18-535 (12/23/19)

https://www.1dca.org/content/download/545535/6146910/file/180535_1284_12242019_094701_i.pdf

COMPETENCY: Court may order involuntary treatment of a forensic client committed to a state facility if necessary for his own or other’s safety, regardless of Due Process analysis, which limits forced medication to restore competency. Hicks v. North Florida Evaluation and Treatment Center, 1D19-896 (12/23/19)

https://www.1dca.org/content/download/545542/6146994/file/190896_DC05_12232019_102804_i.pdf

FAILURE TO REGISTER: Sexual Offender Registration and Notification Act (SORNA) defines a “sex offense” to include a criminal offense with an element of sexual contact. The categorical approach applies to determine whether a state conviction qualifies under SORNA. The sentencing court must look only to the fact that the defendant has been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions. Defendant who was convicted of violating a Tennessee law prohibiting sexual contact to one of five body areas (the primary genital area, groin, inner thigh, buttock, or breast) is subject to SORNA. United States v. Vineyard, No. 18-11690 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811690.pdf

DEFINITION-CONTACT: “Contact” is the “union or junction of body surfaces: a touching or meeting.” United States v. Vineyard, No. 18-11690 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811690.pdf

DEFINITION-SEXUAL: “Sexual” means “of or relating to the sphere of behavior associated with libidinal gratification.” United States v. Vineyard, No. 18-11690 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811690.pdf

DEFINITION-PRIMARY GENITAL AREA: “The plain meaning of the term ‘primary’ suggests that the ‘primary genital area’ covers essentially the same area of the body as the genitals. United States v. Vineyard, No. 18-11690 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811690.pdf

FIREARM IN FURTHERANCE: Hobbs Act robbery is a crime of violence under the elements clause of §924(c), which requires a mandatory consecutive sentence for any defendant who uses or carries a firearm during a crime of violence or a drug-trafficking crime. Rodriguez v. United States, No. 18-11438 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201811438.pdf

SENTENCING-DRUG QUANTITY: Sentencing courts are permitted to make factual findings, including drug quantities, based on undisputed statements in the PSI. United States v. Thomas, No. 19-11388 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201911388.pdf

SENTENCING-ENHANCEMENT-RISK OF DEATH/SERIOUS BODILY INJURY: Flight alone is insufficient to warrant an enhancement under for creating a serious risk of death or serious bodily injury, but high-speed flight in a residential area may warrant the enhancement, particularly where no objection is made to the PSR. United States v. Thomas, No. 19-11388 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201911388.pdf

JUROR: A Court may replace a seated juror, prior to deliberations, when facts arise that cast doubt on the juror’s ability to perform his dues. Court did not abuse its discretion in declining to remove the juror who expressed concerns for his safety because he worked at a jail but whose concerns were assuaged when he learned the Defendant would not go to his jail if convicted.

CAREER OFFENDER-RELEVANT CONDUCT: A defendant is a career offender under the Sentencing Guidelines if he has at least two prior felony convictions for either a crime of violence or a controlled substance offense within ten years of the commencement of the instant offense, including any relevant conduct. Defendant who is convicted of a crime committed in 2017 but who has relevant conduct (drug dealing) beginning in 2014, is subject to Career Offender sentencing because on priors extending back to 2004 (ten years from the earliest relevant conduct. Defendant qualifies for Career Offender status. In evaluating relevant conduct, the Court considers the similarity, regularity, and temporal proximity between the instant offense and the uncharged conduct. United States v. Rothwell, No. 18-13284 (11th Cir. 12/20/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201813284.pdf

SEARCH AND SEIZURE-WELFARE CHECK: Officers acted lawfully under the community caretaker exception to the Fourth Amendment by rousing the Defendant and his unconscious passenger from the running car. The community caretaker exception to the warrant requirement focuses on concern for the safety of the general public. Searches and seizures conducted under the community caretaker doctrine are solely for safety reasons and must be totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. State v. Brumelow, 1D18-3631 (12/20/19)

https://www.1dca.org/content/download/545476/6146261/file/183631_DC13_12202019_101805_i.pdf

HEARSAY: Statements by a non-testifying 911 caller repeated by the officer and inculpating the Defendant in the shooting are inadmissible hearsay. Officer’s testimony, purporting to explain the police investigation but containing prejudicial third party statements of non-testifying witnesses, is improper hearsay even though the proponent of such evidence seeks to clothe such hearsay under a nonhearsay label. Error here is harmless. Knots v. State, 1D18-476 (12/20/19)

https://www.1dca.org/content/download/545475/6146249/file/180476_DC05_12202019_101449_i.pdf

APPEAL-POST CONVICTION RELIEF-SUPPLEMENTAL RECORDS: Appellant may not supplement the record on appeal with documents which were not provided to the trial court in his hearing on his Motion for Post Conviction Relief. Partlow v. State, 1D19-1272 (12/20/19)

https://www.1dca.org/content/download/545482/6146333/file/191272_NOND_12202019_104128_i.pdf

COMPETENCY: Court may require incompetent Defendant committed to a state facility to receive involuntary treatment, including forced psychotropic medication. When the State seeks to involuntarily medicate a forensic client solely for restoration of competency to stand trial, forced administration of psychotropic medication is permissible only when (1) an important governmental interest is at stake, (2) the administration of antipsychotic medication is substantially likely to render the defendant competent to stand trial without causing side effects that would significantly interfere with the defendant’s ability to help counsel prepare a defense, (3) less intrusive treatments are unlikely to achieve the same results, and (4) the administration of the medication is in the forensic client’s best medical interest. However, Courts may order involuntary treatment when a defendant is dangerous to himself or others or to protect the defendant’s own interests where the refusal to take medication puts the defendant’s own health at risk. Miller v. State, 1D19-43 (12/20/19)

https://www.1dca.org/content/download/545477/6146273/file/190043_DC05_12202019_102120_i.pdf

SEARCH AND SEIZURE-GOOD FAITH EXCEPTION-COMPUTER ERROR: Officers mistakenly thought the Child (who had an identical twin brother with a similar name) had an arrest warrant. Where computer and/or human error lead an officer to erroneously believe that a warrant for the Defendant’s arrest existed, any evidence found in the course of the arrest must be suppressed. The good faith exception does not apply to mistakes or errors caused by law enforcement personnel. If the error is attributable to law enforcement personnel, the seized evidence must be suppressed under the exclusionary rule. “No exceptions to that rule apply.” State v. J.R.D., 2D18-2034 (12/20/19)

https://www.2dca.org/content/download/545434/6145749/file/182034_DC05_12202019_090534_i.pdf

DISCOVERY: State may not be compelled to disclose the operational plan for a controlled drug buy without a showing of materiality by the Defendant. State v. Stephens, 2D18-4657 (12/20/19)

https://www.2dca.org/content/download/545442/6145859/file/184647_DC03_12202019_090937_i.pdf

STAND YOUR GROUND: The change in the burden of proof in the Stand Your Ground statute applies retroactively. Roberts v. State, 5D17-3638 (12/20/19)

https://www.5dca.org/content/download/545493/6146458/file/173638_1260_12202019_09001870_i.pdf

MOTION TO DISMISS: Court may deny State’s ore tenus motion for leave to file a traverse after it had filed a motion to strike but not a traverse before the hearing. Nonrtheless, the Motion should have been denied for being self contradictory on the issue of whether the Defendant ever had a driver’s license in the first place. State v. Randolph, 5D18-2979 (12/20/19)

https://www.5dca.org/content/download/545495/6146482/file/182979_1260_12202019_09105970_i.pdf

MANDATORY MINIMUM-HABITUAL OFFENDER-CONSECUTIVE SENTENCE: Sentences for attempted murder and burglary must be imposed concurrently. Once a defendant’s sentences for multiple crimes committed during a single criminal episode are enhanced through habitual felony offender statutes, the total penalty cannot be further increased by ordering that the sentences run consecutively. Shooting one victim both in the house and several blocks away after the victim fled is one criminal episode where the State did not charge separate attempted murders. Mason v. State, 5D18-3691 (12/20/19)

https://www.5dca.org/content/download/545497/6146506/file/183691_1257_12202019_09200893_i.pdf

PLEA-WITHDRAWAL: Court must hold hearing on motion to withdraw plea. Cash v. State, 5D19-788 (12/20/19)

https://www.5dca.org/content/download/545498/6146518/file/190788_1260_12202019_09214814_i.pdf

RESENTENCING: Defendant cannot be resentenced on offenses for which the defendant’s prison term has expired. Andrews v. State, 5D19-1344 (12/29/19)

https://www.5dca.org/content/download/545500/6146542/file/191344_1259_12202019_09284839_i.pdf

RESENTENCING: Court cannot rescind its prior order for resentencing and must proceed with a resentencing hearing when neither party moved to vacate the order in question. The fact that the rescission of the order for resentencing was due to a change in the law does not matter. Magill v. State, 5D19-1478 (12/20/19)

https://www.5dca.org/content/download/545502/6146566/file/191478_1260_12202019_09582108_i.pdf

COLLATERAL ESTOPPEL: Defendant’s argument that statute allowing sentence reviews for juveniles convicted of crimes punishable by up to life in prison but not for lower-level offenses violates Equal Protection is not barred by collateral estoppel when she had raised different arguments before. The doctrine of collateral estoppel only precludes a defendant from relitigating the same issues between the same parties in connection with a different cause of action. Ortiz v. State, 5D19-1923 (12/20/19)

https://www.5dca.org/content/download/545506/6146614/file/191923_1260_12202019_10040026_i.pdf

COLLATERAL ESTOPPEL: For the doctrine of collateral estoppel to apply to bar relitigation of an issue, five elements must be present: (1) an identical issue must have been presented in the prior proceedings; (2) the issue must have been a critical and necessary part of the prior determination; (3) there must have been a full and fair opportunity to litigate that issue; (4) the parties in the two proceedings must be identical; and (5) the issues must have been actually litigated. Ortiz v. State, 5D19-1923 (12/20/19)

https://www.5dca.org/content/download/545506/6146614/file/191923_1260_12202019_10040026_i.pdf

POST CONVICTION RELIEF: Defendant may not raise a claim of entitlement to postconviction relief based on newly discovered evidence – FBI report on unreliability of hair analysis – which could have been raised in an earlier motion for postconviction relief. Bogle v. State, SC17-2151 (12/19/19)

https://www.floridasupremecourt.org/content/download/545393/6145252/file/sc17-2151.pdf

SELF-REPRESENTATION: A Faretta colloquy is not rendered inadequate by the trial court’s failure to inquire as to the defendant’s age, experience, and understanding of the rules of criminal procedure. Thorough discussion of right of self-representation. Hooks v. State, SC18-1106 (12/19/19)

https://www.floridasupremecourt.org/content/download/545414/6145499/file/sc18-1106.pdf

COMPETENCY: The fact that the Defendant had stopped taking his psychotropic medication does not establish that the Defendant was incompetent at the time of his trial. Sparre v. State, SC18-1192 (12/19/19)

https://www.floridasupremecourt.org/content/download/545400/6145336/file/sc18-1192.pdf

POST CONVICTION RELIEF-APPEAL: Where Defendant’s motion for postconviction relief made a general claim that trial counsel was ineffective for failing to impeach a witness, but in the hearing he failed to specifically show what he ws referring to, on appeal he may not point to specific areas of the deposition testimony which he claims should have been used to impeach at trial. Sparre v. State, SC18-1192 (12/19/19)

https://www.floridasupremecourt.org/content/download/545400/6145336/file/sc18-1192.pdf

POST CONVICTION RELIEF-DEFENSE ARGUMENT: Counsel delivered a deficient closing argument by attacking the character of the victim of the homicide without tying any of his statements into a defense theory, but there was no prejudice given the overwhelming evidence of guilt. “Even if trial counsel had made a more coherent closing argument connecting information about the victim to the defense theory that Sparre killed her in a frenzy, there is no reasonable probability that the jury would have acquitted Sparre of first-degree murder.– under either the premeditated or felony-murder theory — and convicted him of second-degree murder instead.” Sparre v. State, SC18-1192 (12/19/19)

https://www.floridasupremecourt.org/content/download/545400/6145336/file/sc18-1192.pdf

POST CONVICTION RELIEF-ARGUMENT: Counsel was ineffective for failing to object to State’s penalty phase arguments mockig his defense that the killing was frenzied rather than premeditated (i.e, a “thrill kill and then he just kind of got a little carried away” and “the knife just kept slipping.”), but there is no reasonable probability that the first-degree murder verdict or the sentence of death were affected. Sparre v. State, SC18-1192 (12/19/19)

https://www.floridasupremecourt.org/content/download/545400/6145336/file/sc18-1192.pdf

APPEAL-INEFFECTIVE APPELLATE COUNSEL: Appellate counsel was deficient for failing to supplement the record on appeal with the defense sentencing memorandum, which trial counsel filed with the trial court but which (apparently) was not filed with the clerk of court and therefore not included in the record on appeal. This deficiency does not warrant relief because appellate court had the substance of what was missing. Sparre v. State, SC18-1192 (12/19/19)

https://www.floridasupremecourt.org/content/download/545400/6145336/file/sc18-1192.pdf

RULES-PARENTAL LEAVE: New rule 2.570 requires, with exceptions, a court must grant a timely motion for continuance based on the parental leave of the movant’s lead attorney, due to the birth or adoption of a child for a presumptive three-month maximum length. In Re: Amendments to Rules-Parental Leave, SC18-1554 (12/19/19)

https://www.floridasupremecourt.org/content/download/545415/6145511/file/sc18-1554.pdf

SPEEDY TRIAL-ARREST: “Arrest” in the speedy trial context should mean formal arrest, which is the only type of detention by law enforcement that implicates the Sixth Amendment speedy trial right. Rules of Criminal Procedure should be amended consistently with this ruling. Investigative detention including handcuffing, transportation, and interrogation at the Sheriff’s Department is not a formal arrest triggering speedy trial. Davis v. State, SC18-1627 (12/19/19)

https://www.floridasupremecourt.org/content/download/545416/6145523/file/sc18-1627.pdf

JURY PARDON: There is no fundamental right to instructions that facilitate partial jury nullification. “We hereby recede from this Court’s precedent where a finding of fundamental error was predicated on Florida’s jury pardon doctrine.” “[W]e erred by transforming the unreviewable pardon power of the jury into a fundamental right of the defendant. And we further erred by treating the deprivation of the defendant’s nonexistent right to the availability of a jury pardon as a structural defect that vitiates the fairness of the trial.” Knight v. State, SC-309 (12/19/19)

https://www.floridasupremecourt.org/content/download/545395/6145276/file/sc18-309.pdf

JURY PARDON: “Contrary to the logic of the jury pardon doctrine, interference with an opportunity for the jury to carry out a partial jury nullification does not undermine the validity of the trial. No defendant has the right to a trial in which the judge facilitates the jury’s acting in disregard of the law.” Knight v. State, SC-309 (12/19/19)

https://www.floridasupremecourt.org/content/download/545395/6145276/file/sc18-309.pdf

JURY PARDON-STARE DECISIS: “[W]e recede from this Court’s precedents relying on a right of access to a partial jury nullification as a basis for finding fundamental error in jury instructions. . . .We make this decision mindful of the importance of stare decisis in most cases. While the doctrine of stare decisis is ‘strong,’ it is ‘not unwavering.’” Knight v. State, SC-309 (12/19/19)

https://www.floridasupremecourt.org/content/download/545395/6145276/file/sc18-309.pdf

STAND YOUR GROUND-RETROACTIVITY: Amendment to the SYG law (Fla.Stat. 776.032(4)) altering the burden of proof at pretrial immunity hearings applies to pending cases involving criminal conduct alleged to have been committed prior to the effective date of the statute. The change in law is procedural and applies retroactively. The date of effectiveness of the shift in the Burden of Proof is the date of the SYG hearing. Pre-effective-date immunity hearings are not undone. Love v. State, SC18-747 (12/19/19)

https://www.floridasupremecourt.org/content/download/545398/6145312/file/sc18-747.pdf

AMENDMENT-JURY INSTRUCTIONS-SELF-DEFENSE: Whether Castle Doctrine applies to a place of business is an issue which needs to be resolved through case law, not through proposed amendments to the jury instructions. “[A] standard jury instruction case is not the proper means in which to resolve a substantive issue of law. Rather, absent clarification by the legislature, that matter must await this Court’s resolution in an actual case and controversy.” In re: Standard Jury Instructions, SC19-419 (12/19/19)

https://www.floridasupremecourt.org/content/download/545402/6145360/file/sc19-419.pdf

AMENDMENT-JURY INSTRUCTIONS-LOTTERY: Jury instructions on lottery offenses modified. In Re: Standard Jury Instructions, SC19-1063 (12/19/19)

https://www.floridasupremecourt.org/content/download/545406/6145408/file/sc19-1063.pdf

AMENDMENT-JURY INSTRUCTIONS-FELONY MURDER: Felony murder instruction modified. In Re: Standard Jury Instructions, SC-424 (12/19/19)

https://www.floridasupremecourt.org/content/download/545403/6145372/file/sc19-424.pdf

AMENDMENT-JURY INSTRUCTIONS-SHOOTING OR THROWING: Jury instructions on shooting or throwing into places modified. In Re: Standard Jury Instructions, SC19-549 (12/19/19)

https://www.floridasupremecourt.org/content/download/545405/6145396/file/sc19-549.pdf

APPEAL-PRESERVATION-CIRCUMSTANTIAL EVIDENCE: There are two legally distinct issues that can be raised by a defendant in a motion for judgment of acquittal: (1) whether the State presented legally sufficient evidence to establish each element of the charged offense; and (2) whether in a case where the only proof of guilt is circumstantial, the State’s evidence is inconsistent with any reasonable hypothesis of innocence, including the defendant’s own version of the evidence. Because Defendant did not raise a circumstantial evidence/reasonable hypothesis argument in his motion for judgment of acquittal, issue is not preserved for appeal. Johnson v. State, 1D18-4554 (12/19/19)

https://www.1dca.org/content/download/545421/6145585/file/184554_DC08_12192019_124830_i.pdf

CONSTRUCTIVE POSSESSION-CIRCUMSTANTIAL EVIDENCE: Cathinones found in a bedroom and a photograph on the Defendant’s phone showing cathinones is insufficient circumstantial evidence to establish that the Defendant had constructive possession of the narcotics. Johnson v. State, 1D18-4554 (12/19/19)

https://www.1dca.org/content/download/545421/6145585/file/184554_DC08_12192019_124830_i.pdf

CREDIT FOR TIME SERVED: When a trial court has awarded a defendant jail credit, the Department of Corrections has primary responsibility for calculating the credit. If the Department of Corrections fails in its responsibility, the prisoner must first seek relief from the Department. Baxter v. State, 1D18-4870 (12/19/19)

https://www.1dca.org/content/download/545422/6145597/file/184870_DC05_12192019_125040_i.pdf

EVIDENCE-IDENTIFICATION: When the evidence is such that the witness is in no better position than the jurors to make an identification, officer’s opinion that the person in the video is the defendant is inadmissible because it invades the province of the jury. The fact that the officer had known the Defendant and had a special familiarity with him does not justify the officer giving his opinion as to identity.

EVIDENCE-PREJUDICE: Evidence that officer knew the Defendant previously is inadmissible and unduly prejudicial. Bentley v. State, 2D18-2256 (12/18/19)

https://www.2dca.org/content/download/545239/6143487/file/182256_DC13_12182019_083806_i.pdf

SEARCH AND SEIZURE-VEHICLE STOP: It is unlawful to turn left from a non-turn lane or a middle lane, regardless of whether other traffic is affected. State v. Amaya, 3D18-754 (12/18/19)

https://www.3dca.flcourts.org/content/download/545276/6143938/file/180754_812_12182019_09505992_i.pdf

THEFT-VALUE-JOA: Where the value of the property is based on mere speculation or guess, the owner’s evidence is insufficient to prove fair market value. Freixa v. State, 3D18-1195 (12/18/19)

https://www.3dca.flcourts.org/content/download/545277/6143950/file/181195_812_12182019_09521056_i.pdf

COMPETENCY: Where a court grants a defendant’s motion for appointment of an expert for a competency examination, but fails to hold a hearing or enter a written finding on the movant’s competency to proceed, the case must be temporarily remanded to the circuit court with specific instructions to vacate the conviction or make a nunc pro tunc deterimination of competency, if possible. Hines v. State, 4D18-1522 (12/18/19)

https://www.4dca.org/content/download/545227/6143329/file/181522_1711_12182019_09073748_i.pdf

VOIR DIRE-TIME LIMIT: Defendant is not entitled to a new trial when Court limited voir dire to 90 minutes, with a 10 minute extension, and counsel for the the Defendant exhausted his time inefficiently. “Although the trial court’s limiting the defense’s questioning of prospective jurors during voir dire is cause for concern, we conclude that. . . there was no abuse of discretion.” Guy v. State, 4D18-2054 (12/18/19)

https://www.4dca.org/content/download/545228/6143341/file/182054_1257_12182019_09094742_i.pdf

DISCOVERY VIOLATION: Last-minute disclosure of the jail call procured the night before in which the Defendant said fishy things about his anticipated testimony, including a suggestion that his counsel had told him what to say, is not a discovery violation. Guy v. State, 4D18-2054 (12/18/19)

https://www.4dca.org/content/download/545228/6143341/file/182054_1257_12182019_09094742_i.pdf

SENTENCING-LIFE-MINOR-HOMICIDE: Life sentence with a review after 25 years is lawful for a 14-year-old who brutally murdered murdered his eight-year-old neighbor girl and hid her body under the waterbed. Phillips v. State, 1D17-5383 (1st DCA 12/17/19)

https://www.1dca.org/content/download/545188/6142814/file/175383_DC05_12172019_135542_i.pdf

WITNESS-EXCLUSION: Court did not abuse its discretion in excluding an alibi witness who was not disclosed in response to State’s demand for notice of alibi. Porter v. State, 1D18-2360 (1st DCA 12/17/19)

https://www.1dca.org/content/download/545189/6142826/file/182360_DC06_12172019_135923_i.pdf

PRETRIAL DETENTION-FTA: Court improperly ordered the defendant be held without bond after failing to appear at arraignment where he made no finding that his nonappearance was willful and that no conditions of release could protect the community or assure his presence at trial. Smith v. Junior, 3D19-2443 (12/17/19)

https://www.3dca.flcourts.org/content/download/545209/6143095/file/192443_807_12182019_08385877_i.pdf

PRETRIAL DETENTION-FTA: Court improperly ordered the defendant be held without bond after failing to appear at arraignment where it made no finding that his nonappearance was willful and that no conditions of release could protect the community or assure his presence at trial. Chacon v. Junior, 3D19-2442 (12/17/19)

https://www.3dca.flcourts.org/content/download/545210/6143107/file/192442_807_12182019_08384555_i.pdf

EVIDENCE-SENTENCING HEARING: The standard for admissibility of evidence in a sentencing hearing is not the evidence code, but rather whether the evidence has sufficient indicia of reliability. United States v. Pitts, No. 18-14873 (11th Cir. 11/27/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201814873.pdf

PLEA-WITHDRAWAL: A defendant who seeks to withdraw a guilty plea after the court has accepted the plea but before sentencing must demonstrate a fair and just reason for doing so, considering the totality of the circumstances surrounding the plea. Trial court acted within its discretion in denying motion to withdraw plea by Defendant, an attorney who had pled guilty to mishandling escrow accounts, on the ground that new evidence (a poorly qualified expert hired to contest the amount of restitution) would establish lack of criminal intent. United States v. Pitts, No. 18-14873 (11th Cir. 11/27/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201814873.pdf

APPEAL: Defendant’s pleading entitled “Objections to Government’s Response to Defendant’s Motion for Relief from Judgment. . .and/or Notice of Appeal” is not a legally sufficient notice of appeal because it does not designate the court to which the appeal is being taken, nor does it evince a clear intent to appeal, nor does it identify the order being appealed. United States v. Baxter, No. 19-10327 (11th Cir. 11/27/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201910327.pdf

STAND YOUR GROUND-APPEAL: Prohibition is the appropriate remedy when the Court errs in denying SYG immunity on the merits. Certiorari is the appropriate remedy when the Stand Your Ground proceeding or the trial court’s ruling is flawed by legal error. Garcia v. State, 2D18-4541 (11/27/19)

https://www.2dca.org/content/download/544007/6130104/file/184541_167_11272019_10255126_i.pdf

STAND YOUR GROUND-SELF-DEFENSE-TRESPASS: One is entitled to defend oneself and is protected by SYG when attacked for dithering about leaving the house party. A defendant is not foreclosed from defending himself simply because he is in a place where he does not have the right to be, but he must first attempt to retreat from the situation if he can do so safely. Court errs by ruling that as a matter of law any use of force by the party host is lawful. Garcia v. State, 2D18-4541 (11/27/19)

https://www.2dca.org/content/download/544007/6130104/file/184541_167_11272019_10255126_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that Court improperly allowed expert testimony on DNA evidence in which “low count number” testing had been utilized, that possible contamination of the DNA samples had occurred, and that the population frequency statistics were unreliable. Miller v. State, 2D19-17 (11/27/19)

https://www.2dca.org/content/download/544010/6130140/file/190017_114_11272019_10272812_i.pdf

INFORMATION: Defendant is estopped from vacating conviction where State filed an amended information as part of a reduced charge plea negotiation, in which it wrote “possession with intent to sell cannabis” on the face of the information but neglected to state all the elements of the offense in the body. Even where the body of a charging instrument omits an essential element, such an error is a waivable technical defect, if the charging instrument references the correct statute, and the statute sets forth the required elements. de Quesada v. State, 3D19-2018 (11/27/19)

https://www.3dca.flcourts.org/content/download/543893/6128701/file/192018_809_11272019_09522561_i.pdf

IMMIGRATION CONSEQUENCES: Defendant cannot raise claim that his plea was involuntary for failure to warn of likely immigration consequences more than two years after the plea, absent allegation that . As he filed his motion well beyond the two-year limitation, entirely failed to articulate any prejudice, and did not allege that he could not have ascertained the immigration consequences of his plea during two-year period after his judgment became final with the exercise of due diligence. de Quesada v. State, 3D19-2018 (11/27/19)

https://www.3dca.flcourts.org/content/download/543893/6128701/file/192018_809_11272019_09522561_i.pdf

EVIDENCE-OPINION ON CREDIBILITY: State may not ask whether Defendant believes police offer lied (“Therefore, you are saying that what the officer said on the stand is not the truth, is that correct?”). A witness may not be asked to give an opinion about the credibility of another witness. Y.N. v. State, 3D18-45 (11/27/19)

https://www.3dca.flcourts.org/content/download/543883/6128581/file/180045_812_11272019_09350896_i.pdf

EVIDENCE-BENCH TRIAL: When improper evidence is admitted over objection in a bench trial, the court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination or it will be regarded as having been considered. New trial required. Y.N. v. State, 3D18-45 (11/27/19)

https://www.3dca.flcourts.org/content/download/543883/6128581/file/180045_812_11272019_09350896_i.pdf

COMPETENCY: Upon remand, successor judge who acquainted himself with the record may make a nunc pro tunc finding of competency after hearing. Little v. State, 4D17-2611 (11/27/19)

https://www.4dca.org/content/download/543930/6129166/file/172611_1257_11272019_08510627_i.pdf

SENTENCING-DOWNWARD DEPARTURE: Court may not sentence Defendant who has under 22 points on his scoresheet to prison for VOP. Upon remand, if it seeks an enhanced penalty, the State must convene a jury to consider danger to the public. Issue of whether chronic thievery constitutes “danger to the public” is not addressed. Lewis v. State, 4D18-2548 (11/27/19)

https://www.4dca.org/content/download/543933/6129202/file/182548_1709_11272019_08531060_i.pdf

SEARCH AND SEIZURE-STANDING: A defendant who is tracked using Cell-Site Location Information (CSLI) data has standing to challenge the search of his or her physical location, notwithstanding that the location in which he is found is in his murdered mother’s car. State v. Martin, 4D18-3417 (11/27/19)

https://www.4dca.org/content/download/543936/6129238/file/183417_1257_11272019_08570593_i.pdf

SEARCH AND SEIZURE-GOOD FAITH: The good faith exception to the exclusionary rule for unlawful searches does not apply to areas of law that are undecided or unsettled. Officers acted in good faith reliance on then-existing practices and orders authorizing Cell-Site Location Information (CSLI) data, but not in using Cell-Site Simulator data to pinpoint the Defendant’s location in his murdered mother’s car. State v. Martin, 4D18-3417 (11/27/19)

https://www.4dca.org/content/download/543936/6129238/file/183417_1257_11272019_08570593_i.pdf

SEARCH AND SEIZURE-CELL PHONE-SITE LOCATION: A cell-site simulator is a device that transforms a cell phone into a real-time tracking device, tricking nearby cell phones into thinking the device is a cell tower. Police may not track Defendant’s location with a cell-site without obtaining a warrant. Officers did not act in good faith reliance based on their claimed belief that a the court order authorizing the disclosure of “real-time/live cell site locations” and a “mobile tracking device” extends to a cell site simulator. “The Fourth Amendment violation here is precisely the kind of violation the exclusionary rule seeks to deter.” Evidence properly suppressed. State v. Martin, 4D18-3417 (11/27/19)

https://www.4dca.org/content/download/543936/6129238/file/183417_1257_11272019_08570593_i.pdf

RETROACTIVITY-PRISON RELEASEE REOFFENDER: Lewars (Defendant who was committed to prison but released from jail with credit time served before getting there is not subject to PRR) does not apply retroactively. Life sentence as PRR affirmed. A change of law will not be applied retroactively unless the change: (a) emanates from the Supreme Court of Florida or the United States, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance. Lewars is an evolutionary refinement and not a development of fundamental significance, a major constitutional change, or jurisprudential upheaval that requires retroactive application. Sims v. State, 4D19-1506 (11/27/19)

https://www.4dca.org/content/download/543959/6129514/file/191506_1257_11272019_09062188_i.pdf

QUOTATION 1: “Of course, there’s no such thing as a good bank robbery. But. . .there are certainly less bad ones.” United States v. Perez, No. 17-14136 (11th Cir. 11/26/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201714136.pdf

QUOTATION 2: “If this were an Encyclopedia Brown mystery, it might be called The Case of the Polite Bank Robber.” United States v. Perez, No. 17-14136 (11th Cir. 11/26/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201714136.pdf

SENTENCING-GUIDELINES: Unarmed bank robber who said “please” and “thank you,” bargained pleasantly with one teller (“Perez asked. . . if [$1000.00] was the most cash the teller could dispense.”), and allowed another to report the robbery while it was ongoing is not subject to the Guidelines’ threat-of-death offense level enhancement. “Put $5[,]000 in an envelope . . . and no one will get hurt.” is a threat of harm, but not in itself enough to justify the enhancement. United States v. Perez, No. 17-14136 (11th Cir. 11/26/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201714136.pdf

EVIDENCE-OTHER CRIMES, WRONGS OR MISDEEDS: In theft and burglary case, evidence of a stolen checkbook, unrelated to the case at issue, found in the stolen backpack is inadmissible. “Although. . . the prosecutor and State witness carefully avoided making the overt assertion that Appellant had stolen the checkbook, they might just as well have. . . When the jury was told that. . .the Appellant. . .was found to be in possession of a checkbook belonging to somebody else, the inescapable implication was that he stole it, and was a person prone to theft.” Trahan v. State, 1D18-1174 (11/22/19)

https://www.1dca.org/content/download/543750/6126960/file/181174_DC13_11222019_105507_i.pdf

STAND YOUR GROUND: Defendant is not entitled to SYG immunity when he came up behind the victim, grabbed her, threw her to the ground, laid on top of her, hit her repeatedly in the face and said, “You f—ing b—-, you’ll never hit my wife again,” after his wife had started the fight by repeatedly stabbing the victim with a broken bottle. Craven v. State, 1D18-5270 (11/22/19)

https://www.1dca.org/content/download/543760/6127082/file/185270_DC02_11222019_114153_i.pdf

STAND YOUR GROUND: Defendant who shattered a beer bottle, grabbed the victim by the throat with her free hand, stabbed the victim with the bottle, and said, “You want some of this? You want to try me? You want some of this b—-?” and who cut the victim’s facial nerves and vocal cords is not entitled to SYG immunity. Craven v. State, 1D18-5272 (11/22/19)

https://www.1dca.org/content/download/543761/6127094/file/185272_DC02_11222019_114608_i.pdf

OPENING THE DOOR: Defendant charged with a violent crime with a firearm opens the door to evidence that he had been previously convicted of possession of a firearm by a felon when he said that he did not have a gun during the crime charged because he could not legally possess one. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

HEARSAY: Statements of the bleeding, upset victim at the scene of the crime while the fire department was still trying to put out the fire are admissible as excited utterances and statements of identification. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

POST CONVICTION RELIEF-SEVERANCE: Counsel is not ineffective for failing to sever Defendant’s case from that of his co-Defendant where each testified only to their own innocence and neither of them attempted to implicate the other with their testimony. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

POST CONVICTION RELIEF-EDITED RECORDING: Claim that counsel was ineffective for allowing a too heavily redacted interview to be admitted where he fails to show that the redactions fundamentally changed the nature of the video. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

JURY INSTRUCTION-EXCUSABLE HOMICIDE: In case of Defendant shooting his wife through a door in what he claims was a botched suicide attempt, failure to give an excusable homicide instruction is reversible error. But where the trial court specifically directed the parties to the missing definitions of justifiable and excusable homicide and defense counsel acknowledged the omission, the Defendant affirmatively waived any claim to assert fundamental error. Question certified whether waiver further requires the record to reflect that counsel knew the omission itself was erroneous. Brady v. State, 2D18-117 (11/22/19)

https://www.2dca.org/content/download/543718/6126569/file/180117_65_11222019_08401793_i.pdf

RESENTENCING-CONSIDERATIONS: Defendant is entitled to a 3rd sentencing hearing before a 3rd judge when the first two judges, before and after the first appeal, considered the Defendant’s use of a firearm during the robbery when the jury had found him guilty of the lesser included of robbery without a firearm. Love v. State, 2D18-4461 (11/22/19)

https://www.2dca.org/content/download/543730/6126713/file/184461_39_11222019_08434386_i.pdf

APPEAL-CERTIORARI-MODIFICATION OF PROBATION: Defendant may move to modify the conditions of probation at any time, including before it begins. Court’s ruling that it is without jurisdiction to modify conditions of probation can be challenged by petition for writ of certiorari. Wilson v. State, 2D18-4662 (11/22/19)

https://www.2dca.org/content/download/543731/6126725/file/184662_167_11222019_08513434_i.pdf

CORPUS DELICTI: Cocaine found on the ground where the Defendant had run is sufficient evidence that someone had committed the crime of possession of cocaine, so that Defendant’s admission that he had discarded the cocaine is admissible. “Whether a corpus delicti has been established is a different inquiry from whether the evidence adduced would legally withstand a motion for judgment of acquittal. The former is a rule of evidentiary admission; the latter is one of evidentiary consideration.” With limited exceptions, to establish a corpus delicti the State need only show that a crime has been committed, not that the defendant committed that particular crime. K.T.B. v. State, 2D19-59 (11/22/19)

https://www.2dca.org/content/download/543736/6126785/file/190059_65_11222019_08542780_i.pdf

CONTINUANCE: Defendant is entitled to a continuance in murder case when, 12 days before trial, State discloses an FDLE report showing the victim’s blood on Defendant’s headboard, undermining the Defendant’s defense that the blood came from murdered kittens. Defense counsel must be afforded a reasonable opportunity to investigate and prepare any applicable defenses. Court must consider (1) the time actually available for preparation; (2) the likelihood of prejudice from the denial; (3) the defendant’s role in shortening preparation time; (4) the complexity of the case; (5) the availability of discovery; (6) the adequacy of counsel actually provided; and (7) the skill and experience of chosen counsel. Singer v. State, 5D18-1783 (11/22/19)

https://www.5dca.org/content/download/543753/6127003/file/181783_1260_11222019_09315060_i.pdf

VEHICULAR HOMICIDE-JOA: Drag race ending in a fatal crash at 99 m.p.h. is sufficient to establish vehicular homicide. Ruiz v. State, 5D18-3402 (11/22/19)

https://www.5dca.org/content/download/543756/6127039/file/183402_1257_11222019_09440476_i.pdf

POST CONVICTION RELIEF-SCORESHEET ERROR: Defendant is entitled to a hearing on claim that there was an apparent scoresheet error, unless the Court attaches records showing that the same sentence would have been imposed regardless. The fact that the trial court did not impose the lowest permissible sentence does not compel the conclusion that the court would have imposed the same sentence even if the extra points had not been listed on the scoresheet. Sanders v. State, 5D19-1194 (11/22/19)

https://www.5dca.org/content/download/543757/6127051/file/191194_1259_11222019_11091768_i.pdf

PROBATION-TERM: For life felony, Defendant cannot be sentenced to 40 years in prison followed by 15 years of probation. The maximum sentence for a life felony is 40 years or life. Because the Defendant was sentenced to 40 years imprisonment, no probation could follow. VOP dismissed. Owens v. Flowers, 5D19-3366 (11/22/19)

https://www.5dca.org/content/download/543772/6127218/file/193366_1262_11222019_01563276_i.pdf

CONSPIRACY: Government is not required to prove that the Defendant conspired to distribute a specific controlled substance. Government is only required to prove that the Defendant conspired to distribute a generic controlled substance. Proof of the type of drug involved in the conspiracy is separate and distinct from proof of mens rea as to the type of drug. Because the type of drug is not an element of the statutory offense, a finding of mens rea with respect to the specific type of drug is ordinarily not required. But where the indictment charged a specific substance instead of the generic substance as an element, the government is required to prove mens rea as to the specific substance. United States v. Achey, (11th Cir 11/22/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811900.pdf

DEFINITION-“A”: When used as an indefinite article, “a” means some undetermined or unspecified particular. United States v. Achey, (11th Cir 11/22/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811900.pdf

CONSPIRACY: A simple buyer-seller controlled substance transaction does not, by itself, form a conspiracy, but if the evidence allows an inference that the buyer and seller knew the drugs were for distribution rather than to support the buyer’s personal drug habit, the transaction may amount to a conspiracy. United States v. Achey, (11th Cir 11/22/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811900.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Newly discovered evidence of dubious admissibility and credibility, including that a third party had implied that he might be the killer and that that person had been seen running with a gas can and blood on his shirt, is not sufficient to warrant post conviction relief in an otherwise strong case of guilt. Calhoun v. State, SC18-340 (11/21/19)

https://www.floridasupremecourt.org/content/download/543646/6125944/file/sc18-340.pdf

NEWLY DISCOVERED EVIDENCE-GENDER DYSPHORIA: Defendant’s symptoms of severe depression, self-mutilation, and suicidality, now attributed to gender dysphoria are not newly discovered evidence warranting the vacation of his guilty plea and previous waivers of post conviction relief. Rodgers v. State, SC19-241 (11/21/19)

https://www.floridasupremecourt.org/content/download/543647/6125956/file/sc19-241.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to call to alibi witnesses where their testimony would have been cumulative and their credibility suspect. Thomas v. State, 1D18-2024 (11/20/19)

https://www.1dca.org/content/download/543469/6123890/file/182024_DC05_11202019_093628_i.pdf

POST CONVICTION RELIEF-RULE OF SEQUESTRATION: Defendant is not entitled to a new trial on claim that counsel was ineffective for failing to invoke rule of sequestration where the active two witnesses talking to each other is not shown to be prejudicial. Faulk v. State, 1D18-2173 (11/20/19)

https://www.1dca.org/content/download/543471/6123909/file/182173_DC05_11202019_094024_i.pdf

POST CONVICTION RELIEF-PHOTO LINEUP: Defendant’s speculation that the victims may have chosen him out of the lineup because they believe that all people of color look alike is not a basis for postconviction relief. Faulk v. State, 1D18-2173 (11/20/19)

https://www.1dca.org/content/download/543471/6123909/file/182173_DC05_11202019_094024_i.pdf

POST CONVICTION RELIEF-MENTAL HEALTH EVALUATION: Counsel was not ineffective for not seeking a mental health evaluation where the record reflects that the Defendant participated meaningfully throughout the trial in his claims of mental illness are otherwise undermined by the facts. Any mental health mitigation would have been meaningless because the Defendant was a Prison Releasee Re-offender who was required by law to serve the statutory maximum sentence. Faulk v. State, 1D18-2173 (11/20/19)

https://www.1dca.org/content/download/543471/6123909/file/182173_DC05_11202019_094024_i.pdf

JURY INSTRUCTION-SEXUAL BATTERY-PENETRATION: It is fundamental error in a sexual battery case for the state to argue, and for the court to instruct the jury on, union with the vagina when the information only alleges actual penetration. Goodman v. State, 1D18-2264 (11/20/19)

https://www.1dca.org/content/download/543472/6123921/file/182264_DC08_11202019_095259_i.pdf

EVIDENCE-VOUCHING: CPT officer’s testimony that in her medical opinion there was sexual assault or abuse according to patient history and physical findings that were consistent with the history is improper vouching. Counsel provided deficient performance in failing to object to the CPT officer’s testimony, but no prejudice was shown given the overwhelming evidence of guilt. (“Appellant could not recall if he had raped his daughter as he had seven drinks that night and did not know how much alcohol the victim drank.”).  Roderick v. State, 1D18-4020 (11/20/19)

https://www.1dca.org/content/download/543475/6123957/file/184020_DC05_11202019_100453_i.pdf

ARGUMENT: Prosecutor did not improperly evoke religion when telling the story about King Solomon’s maternity case and suggesting that jurors should use their God-given common sense. Roderick v. State, 1D18-4020 (11/20/19)

https://www.1dca.org/content/download/543475/6123957/file/184020_DC05_11202019_100453_i.pdf

PLEA-WITHDRAWAL: Motion to withdraw plea filed by the Defendant who is represented by counsel is a nullity absent a claim in the motion that an adversarial relationship with his counsel existed. Trial counsel’s obligation of representation to his or her client does not end upon the rendition of a judgment of conviction and sentence, but continues thereafter until either a notice of appeal is filed and related tasks completed, the time for filing the notice has passed, or good cause is shown upon written motion. Rodriguez v. State, 3D19-1006 (11/20/19)

https://www.3dca.flcourts.org/content/download/543485/6124084/file/191006_812_11202019_10052911_i.pdf

CREDIT FOR TIME SERVED-SPLIT SENTENCE: A defendant who is sentenced to incarceration because he violated the probationary portion of a split sentence is entitled to receive credit for time served in prison before being placed on probation. The trial court shall direct the Department of Corrections to compute and apply credit for all other time served previously on the prior sentence for the offense for which the offender is being recommitted. The failure to award a defendant proper credit for prior prison time served is cognizable on a motion to correct illegal sentence under Rule 3.800(a). Villalona v. State, 3D19-1080 (11/20/19)

https://www.3dca.flcourts.org/content/download/543487/6124108/file/191080_812_11202019_10105007_i.pdf

EVIDENCE-OPINION: Detective may not testify that, based on his training and experience, there was no self defense legitimately available for Defendant. Such an opinion improperly invades the exclusive province of the jury. Hunt v. State, 4D18-1577 (11/20/19)

https://www.4dca.org/content/download/543490/6124151/file/181577_1709_11202019_08473986_i.pdf

CONTEMPORANEOUS OBJECTION: A contemporaneous objection may be made a few questions after the objectionable comment. Hunt v. State, 4D18-1577 (11/20/19)

https://www.4dca.org/content/download/543490/6124151/file/181577_1709_11202019_08473986_i.pdf

SEARCH AND SEIZURE-FACTUAL FINDINGS: “While not an independent ground for reversal, unexplained rulings are generally anathema to a sound appellate opinion. While we decline to enunciate a ruling that would require factual findings following hearings on motions to suppress, we implore trial judges to consider such a routine procedure, whether they be written or orally pronounced.” Case remanded for the court to make factual findings. Searcy v. State, 4D18-2201 (11/20/19)

https://www.4dca.org/content/download/543492/6124175/file/182201_1709_11202019_08520463_i.pdf

COMMENT ON SILENCE: State’s question of Defendant during cross-examination “And today in 2018 is the first time we’re hearing about this guy name[d] Rico?” is an improper comment on Defendant’s right to remain silent. The State is not permitted to comment on a defendant’s postarrest silence. This prohibition applies to all evidence and argument, including impeachment evidence and argument, that is fairly susceptible of being interpreted by the jury as a comment on silence. A defendant does not waive this prohibition by electing to take the stand and testify at trial. Hopkins v. State, 4D18-2204 (11/20/19)

https://www.4dca.org/content/download/543493/6124187/file/182204_1709_11202019_08542951_i.pdf

SHIFTING BURDEN OF PROOF: State may not imply that Defendant has the burden of offering an exculpatory statement prior to trial. Asking the Defendant “And today in 2018 is the first time we’re hearing about this guy name[d] Rico?” improperly shifts the burden of proof. Hopkins v. State, 4D18-2204 (11/20/19)

https://www.4dca.org/content/download/543493/6124187/file/182204_1709_11202019_08542951_i.pdf

RESTITUTION: Court may not summarily order the defendant to pay $57,148.25 in restitution without first providing the defendant with notice and an opportunity to be heard at a restitution hearing. Whittaker v. State, 4D18-2336 (11/20/19)

https://www.4dca.org/content/download/543494/6124199/file/182336_1708_11202019_08564727_i.pdf

RESENTENCING-MINOR: After Court grants motion for resentencing under Graham and State does not seek rehearing or appeal of the order, and where the law is changed before resentencing occurred, the circuit court lacked jurisdiction to reconsider the earlier order granting resentencing. Scott v. State, 4D18-3682 (11/20/19)

https://www.4dca.org/content/download/543496/6124223/file/183682_1709_11202019_09103867_i.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Acquitted co-Defendant who submits an affidavit that he, without the Defendant’s participation, committed the crime is newly discovered evidence. Post-trial confessions from codefendants can amount to newly discovered evidence that provides an exception to the two-year time limitation of Rule 3.850(b). Franklin v. State, 4D19-390 (11/20/19)

https://www.4dca.org/content/download/543501/6124283/file/190390_1709_11202019_09483894_i.pdf

COMPETENCY: Court may order video-recording of competency evaluation. Video-recording the evaluation ensures a complete and accurate record of the evaluation is available. Sylvestre v. State, 4D19-2753 (11/20/19)

https://www.4dca.org/content/download/543504/6124319/file/192753_1703_11202019_09533027_i.pdf

CONFIDENTIAL INFORMANTS-DISCLOSURE: In attempted murder case, the State may withhold the identities of confidential informants who it does not intend to call when Defendant fails to raise a legally cognizable defense or otherwise show that disclosure of the witnesses’ identities is relevant or helpful to his defense or essential to a fair determination of the cause. State v. Henry, 5D19-2288 (11/18/19)

https://www.5dca.org/content/download/543366/6122803/file/192288_1255_11182019_09080854_i.pdf

APPEAL-SEARCH AND SEIZURE: As part of its discovery obligation, the State must disclose the application for the search warrant, but the Court’s failure to order the disclosure of the underlying affidavit is not a dispositive issue, and thus not appealable after a plea. House v. State, 1D18-4138 (11/15/19)

https://www.1dca.org/content/download/543338/6122457/file/184138_

DC05_11152019_100319_i.pdf

COSTS: $3 assessment for teen court imposed pursuant to §938.19(2) cannot be assessed when adjudication has been withheld. H.R. v. State, 2D18-4028 (11/15/19)

https://www.2dca.org/content/download/543346/6122560/file/184028_

114_11152019_08243258_i.pdf

COSTS: $100 assessment for costs of representation cannot be assessed when Child did not receive notice of her right to contest these costs. H.R. v. State, 2D18-4028 (11/15/19)

https://www.2dca.org/content/download/543346/6122560/file/184028_

114_11152019_08243258_i.pdf

DOUBLE JEOPARDY: Double Jeopardy bars dual convictions for battery and lewd and lascivious molestation of a child. Dosal v. State, 5D18-2245 (11/15/19)

https://www.5dca.org/content/download/543323/6122270/file/182245_

1257_11152019_08213496_i.pdf

YOUTHFUL OFFENDER: Court may decline to impose a Youthful Offender where it is clear that he understood that he had the option to do so if he so chose. Reynosopena v. State, 5D18-3856 (11/15/19)

https://www.5dca.org/content/download/543328/6122330/file/183856_

1257_11152019_09173835_i.pdf

POST CONVICTION RELIEF-JUROR MISCONDUCT: Defendant is entitled to a hearing 15 years after his conviction on claim that juror concealed the fact that she had been the victim of sexual crimes as a child. Smith v. State, 5D19-101 (11/15/19)

https://www.5dca.org/content/download/543329/6122342/file/190101_

1260_11152019_09203467_i.pdf

VOP: Defendant cannot be found in violation of probation for failing to register when he was arrested 24 hours after moving and the statute allows 48 hours to register upon changing one’s address. Niemi v. State, 5D19-325 (11/15/19)

https://www.5dca.org/content/download/543330/6122354/file/190325_

1259_11152019_09222477_i.pdf

POST CONVICTION RELIEF: Arguing self-defense at trial but not requesting a self-defense instruction on the theory that self-defense was weak and a diminished capacity defense was preferable is not a reasonable defense strategy. ” We can fathom no sensible, strategic reason for counsel to argue self-defense during Washer’s closing argument but opt not to request a self-defense jury instruction. . .Counsel’s assessment that the instruction is ‘awful’ is insufficient.” Washer v. State, 5D19-663 (11/15/19)

https://www.5dca.org/content/download/543331/6122366/file/190663_

1260_11152019_09242854_i.pdf

POST CONVICTION RELIEF: Counsel was ineffective for failing to investigate GPS data which would have undermined the credibility of State’s witnesses, despite being requested to do so. New trial is required. Washer v. State, 5D19-663 (11/15/19)

https://www.5dca.org/content/download/543331/6122366/file/190663_

1260_11152019_09242854_i.pdf

JOA-MANSLAUGHTER: Defendant properly convicted of manslaughter based on marooning drunk victim in the swamp after their boat sank and she punched him in the nose and stabbed him in the forearm with a flounder gig (her co-defendant stabbed him, too) notwithstanding that the stabbings did not cause the death. King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_

DC05_11132019_084518_i.pdf

DEADLY WEAPON: A three pronged flounder gig can be a deadly weapon. King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_

DC05_11132019_084518_i.pdf

AGGRAVATED BATTERY: “A trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent.” King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_

DC05_11132019_084518_i.pdf

MANSLAUGHTER-JURY INSTRUCTION: Where Defendant is a principal to manslaughter, she is not entitled to an instruction that she was the cause in fact of the death or the proximate cause. Such an instruction is confusing or misleading. King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_

DC05_11132019_084518_i.pdf

ACCESSORY AFTER THE FACT: In prosecution for accessory after the fact to murder, circumstantial evidence may be used to prove the defendant’s intent to aid another in avoiding punishment. Rice v. State, 1D18-4451 (11/13/19)

https://www.1dca.org/content/download/542132/6113579/file/184451_

DC05_11132019_090756_i.pdf

SEARCH AND SEIZURE-INVESTIGATORY STOP: Officer may not stop vehicle for driving around at night for a long time in a neighborhood after receiving complaints about a loud muffler where State did not argue that the muffler violated the anti-loud muffler statute. Good string of cases on bad reasonable suspicion car cases. Allenbrand v. State, 2D17-4787 (11/13/19)

https://www.2dca.org/content/download/542171/6114070/file/174787_

39_11132019_08272358_i.pdf

ARGUMENT: State’s argument that defense counsel’s arguments were spaghetti thrown against the wall, deflection tactics, and smoke and mirrors is improper, but not reversible in absence of a contemporary objection. Good string of cases on improper argument. Berouty v. State, 2D17-4787 (11/13/19)

https://www.2dca.org/content/download/542176/6114137/file/182251_

65_11132019_08281259_i.pdf

JURY INSTRUCTIONS: Omission of reasonable doubt instruction is fundamental error. Usry v. State, 2D18-4435 (11/13/9)

https://www.2dca.org/content/download/542177/6114149/file/184435_

39_11132019_08291951_i.pdf

SENTENCING-JUVENILE: When a defendant has reached the age of majority at the time he or she violates community control, the defendant is not entitled to be sentenced after the violation under the juvenile sentencing statutes. Cox v. State, 2D18-4718 (11/13/19)

https://www.2dca.org/content/download/542178/6114161/file/184718_

65_11132019_08301498_i.pdf

INEFFECTIVE ASSISTANCE-APPEAL: Defendant may not raise by petition for habeas corpus more than two years after the conviction became final his claim that appellate counsel was ineffective. Jackon v. State, 3D19-2071 (11/13/19)

https://www.3dca.flcourts.org/content/download/542158/6113900/file/

192071_804_11132019_10253554_i.pdf

APPEAL-INTERLOCUTORY-JURISDICTION: Defendant may not raise on interlocutory appeal issue of Court’s denial of motion for disclosure of CI. Farr v. State, 3D19-282 (11/13/19)

https://www.3dca.flcourts.org/content/download/542155/6113864/file/

190282_804_11132019_10194459_i.pdf

COMPETENCY: Court may not merely accept counsel’s stipulation as to the admissibility of the doctors’ reports and the competency conclusions contained therein and proceed to VOP hearing without making an independent finding of competency. A trial court must make its own determination as to competency; the doctor evaluations are advisory only. Aquino v. State, 3D18-751 (11/13/19)

https://www.3dca.flcourts.org/content/download/542148/6113780/file/

180751_812_11132019_10061805_i.pdf

COMPETENCY-REMAND-REMEDY: “Depending on the circumstances of the case, a trial court may make a retroactive competency determination so long as the defendant is assured due process. . . [T]he decision as to whether the case’s circumstances and due process considerations warrant a new trial or a nunc pro tunc competency determination is left to the trial court to make upon remand.” Aquino v. State, 3D18-751 (11/13/19)

https://www.3dca.flcourts.org/content/download/542148/6113780/file/

180751_812_11132019_10061805_i.pdf

EVIDENCE-OPINION: Officer may not give his opinion, based on his investigation, that the Defendant is the burglar, but the error is harmless. Pujol v. State, 3D18-1045 (11/13/19)

https://www.3dca.flcourts.org/content/download/542149/6113792/file/

181045_809_11132019_10071286_i.pdf

RESTITUTION: Victim of burglary is entitled to replacement value and cost of installation of a new window, notwithstanding that the new window is more expensive than the original. Pujol v. State, 3D18-1045 (11/13/19)

https://www.3dca.flcourts.org/content/download/542149/6113792/file/

181045_809_11132019_10071286_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to call witnesses who could have been identified and located. “While it is generally true that the defendant must provide the names of uncalled fact witness, . . . where. . . the fact witnesses’ names are not known . . .[but] defendant has provided sufficient information from which both the witnesses’ names can be learned and the individuals located, the defendant has satisfied his burden.” Ruiz v. State, 3D18-1627 (11/13/19)

https://www.3dca.flcourts.org/content/download/542151/6113816/file/

181627_812_11132019_10111522_i.pdf

HABEAS CORPUS: Defendant may not raise an untimely and successive habeas corpus claim for relief for ineffective assistance of counsel under the “Manifest injustice” doctrine except in the “rarest and most exceptional of situations.” “The mere incantation of the words ‘manifest injustice.’ does not make it so.” Beiro v. State, 3D18-2479 (11/13/19)

https://www.3dca.flcourts.org/content/download/542153/6113840/file/

182479_804_11132019_10152195_i.pdf

SENTENCING-SCORESHEET: Where sentencing scoresheet improperly lists three prior misdemeanor convictions when he really had two, the Defendant is not entitled to a new sentencing hearing where the trial court sentenced Defendant to almost two years more than the minimum sentence, and it is therefore obvious that the .2 error did not affect the sentence. Harmon v. State, 4D18-1295 (11/13/19)

https://www.4dca.org/content/download/542138/6113653/file/181295_

1257_11132019_09160426_i.pdf

RESENTENCING: Resentencing is de novo. Upon resentencing, the Court must consider events occurring after the original sentence such as, as here, a psychosexual evaluation that found Defendant’s risk of sexual recidivism to be low. Spires v. State, 4D18-2210 (11/13/19)

https://www.4dca.org/content/download/542139/6113665/file/182210_

1709_11132019_09171470_i.pdf

RESENTENCING: Court lacks jurisdiction to vacate an order granting resentencing on the basis of subsequent case low holding that 30-year sentence for a juvenile does not violate Graham. German v. State, 4D18-3635 (11/13/19)

https://www.4dca.org/content/download/542142/6113701/file/183635_

1709_11132019_09204682_i.pdf

CONSPIRACY-ELEMENTS CLAUSE: Conspiracy to commit Hobbs Act robbery does not qualify as a “crime of violence,” as defined by § 924(c)(3)(A) (the elements clause). Conspiracy is not violent. Brown v. United States, No. 17-13993 (11/12/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201713993.pdf

ELEMENTS CLAUSE DEFINED: The elements clause (18 U.S.C. § 924(c)(3)) defines a “crime of violence” as an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Brown v. United States, No. 17-13993 (11th Cir. 11/12/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201713993.pdf

RESIDUAL CLAUSE DEFINED: The residual clause is § 924(c)(3)(B), and is unconstitutional. Brown v. United States, No. 17-13993 (11/12/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201713993.pdf

DEATH PENALTY: Freestanding actual innocence claims are not cognizable under Florida law. Dailey v. State, SC19-1780 (11/12/19)

https://www.floridasupremecourt.org/content/download/542089/611314

3/file/sc19-1780.pdf

SENTENCING-CONSIDERATIONS: New sentencing hearing is required when Court, in imposing sentence, considers factors laid out in the probable cause affidavit which were not proven at trial and which were more egregious than what was shown at trial. Where the record reflects that the trial judge may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show that the judge did not rely on such considerations. Petit-Homme v. State, 5D19-108 (11/8/19)

https://www.5dca.org/content/download/541891/6111111/file/190108_126

0_11082019_09050907_i.pdf

YOUTHFUL OFFENDER-VOP: When a youthful offender commits a substantive violation of probation and the trial court imposes a sentence in excess of the six year cap, the Defendant cannot maintain his youthful offender status. Alexis v. State, 5D19-1032 (11/8/19)

https://www.5dca.org/content/download/541893/6111135/file/191032_126

0_11082019_09091331_i.pdf

APPEAL-PRESERVED ISSUE: Defendant may not argue on appeal that his forty-year minimum mandatory sentence for armed robbery while possessing and discharging a firearm is unlawful where he did not raise the issue in the lower court at sentencing or in a motion to correct. A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal. Reager v. State, 1D18-1316 (11/8/19)

https://www.1dca.org/content/download/541957/6111824/file/181316_DC0

5_11082019_130646_i.pdf

PRINCIPAL-ACCESSORY AFTER THE FACT: A person convicted as a principal to a crime cannot also be convicted as an accessory after the fact to the same crime, since these two offenses are mutually exclusive. Vowell v. State, 1D18-2018 (11/8/19)

https://www.1dca.org/content/download/541958/6111836/file/182018_DC0

8_11082019_132947_i.pdf

POST CONVICTION RELIEF: When elderly Defendant rejected plea offer, counsel’s representation was deficient when he failed to tell Defendant he faced a mandatory minimum life sentence if convicted of the armed burglary, but no prejudice is shown where Defendant rejected the fifteen year offer because he considered it a de facto life sentence. Mongo v. State, 1D18-2208 (11/8/19)

https://www.1dca.org/content/download/541959/6111848/file/182208_DC0

5_11082019_134136_i.pdf

JURY INSTRUCTION-HARMLESS ERROR: Harmless error applies to a claim that the trial court failed to instruct on attempted voluntary manslaughter as a necessary lesser included offense of attempted second degree murder. Smart v. State, 1D18-4119 (11/8/19)

https://www.1dca.org/content/download/541961/6111872/file/184119_DA0

8_11082019_134854_i.pdf

SENTENCING-CONSIDERATIONS: In sentencing Defendant for unlawful sexual activity with a minor and delivery of a controlled substance to a minor, based on him picking up and having sex with a drug addicted minor to whom he gave Dilaudid, who later overdosed that night, Court erred by considering that the Defendant blamed the victim for her own death and the possibility that the Defendant caused the death. (“[W]e’ll never know really what caused her death other than it was tragic. And you are the primary cause of her death, period.”). Consideration of subsequent misconduct or pending or dismissed charges is constitutionally impermissible and violates a defendant’s due process rights. Nichols v. State, 2D18-1487 (11/8/19)

https://www.2dca.org/content/download/541911/6111363/file/181487_114_

11082019_08201318_i.pdf

ATTORNEY DISCIPLINE: Attorney who altered a photo lineup by replacing his client’s image in one exhibit with the image of an alternate suspect and using it in a deposition in a criminal case is subject to discipline for conduct involving dishonesty. The element of intent can be satisfied, merely by showing that the conduct was deliberate or knowing, regardless of the lawyer’s motive. The Florida Bar v. Schwartz, SC17-1391 (11/7/19)

https://www.floridasupremecourt.org/content/download/541422/6107574/fil

e/sc17-1391.pdf

DEATH PENALTY-WAIVER OF JURY: Defendant who waived jury for penalty phase is not entitled to new sentencing hearing based on change of law requiring a unanimous jury. Brant v. State, SC17-1391 (11/7/19)

https://www.floridasupremecourt.org/content/download/541422/6107574/file/sc17-1391.pdf

POST CONVICTION RELIEF-DEATH-CHANGE OF LAW: Opinion in Buck v.Davis that injection of racial bias into a criminal trial violates Due Processis not a new fundamental constitutional right. Defendant may not seek post conviction relief 20 years after his conviction became final. Bell v. State, SC18-1713 (11/7/19)

https://www.floridasupremecourt.org/content/download/541425/6107610/file/sc18-1713.pdf

COURT RECORDS-CONFIDENTIALITY: Rule is amended to provide that Baker Act records are confidential. In Re: Amendments to Rules of Judicial Administration 2.420, SC19-1049 (11/7/19)

https://www.floridasupremecourt.org/content/download/541427/6107634/file/sc19-1049.pdf

STAND YOUR GROUND: From his porch, Defendant was entitled to fire a warning shot and, in response to return fire, then actually fire upon three people who had dragged his niece from his home against her will, notwithstanding that the three people turned out to be undercover cops. Derossett v. State, 5D19-802 (11/7/19)

https://www.5dca.org/content/download/541749/6110095/file/190802_1262_11072019_03402234_i.pdf

STAND YOUR GROUND-RETROACTIVITY: Burden of proof is upon the State in SYG hearing. Change to burden of proof applies retroactively. Derossett v. State, 5D19-802 (11/7/19)

https://www.5dca.org/content/download/541749/6110095/file/190802_1262_11072019_03402234_i.pdf

DEADLY FORCE: The firing of a warning shot into the air constitutes an act of deadly force. Derossett v. State, 5D19-802 (11/7/19)

https://www.5dca.org/content/download/541749/6110095/file/190802_1262_11072019_03402234_i.pdf

APRIL FOOLS: Court erred by adjudicating delinquent a 12 year old student on April 1st who said “I’m going to shoot up the classroom, April Fools.” Threats of future action are not bomb threats. “[Child] does not argue, nor do we reach, the issue of under what circumstances a joke or other statement that is explicitly not intended to be taken seriously can violate § 790.163(1).” J.A.W. v. State, 1D19-1974 (19-1974)

https://www.1dca.org/content/download/541191/6105413/file/191974_DC13_11062019_090446_i.pdf

DOUBLE JEOPARDY-MERGER DOCTRINE: Convictions for first-degree felony murder and aggravated battery on a law enforcement officer violate double jeopardy under the merger doctrine. The principle of merger, prohibiting multiple punishments for a single killing, is an exception to the standard Blockburger double jeopardy analysis.” [W]e have not found a single Florida case upholding a defendant’s conviction for aggravated battery where the defendant was also convicted for a homicide offense resulting from the same criminal conduct.” Barnett v. State, 2D17-379 (11/6/19)

https://www.2dca.org/content/download/541242/6106067/file/170379_114_11062019_08473095_i.pdf

LESSER INCLUDED: It is error to instruct the jury on a nonhomicide offense as a lesser offense to a homicide offense. Barnett v. State, 2D17-379 (11/6/19)

https://www.2dca.org/content/download/541242/6106067/file/170379_114_11062019_08473095_i.pdf

RECLASSIFICATION: Second-degree murder is a 1st PBL. Court improperly treated the offense as a life felony based on State’s erroneous representation that it was a life felony. Error is fundamental. Williams v. State, 17-3959 (11/6/19)

https://www.2dca.org/content/download/541245/6106110/file/173959_39_1

1062019_08510562_i.pdf

ELEMENT-PRIOR CONVICTION: A certified copy of a judgment does not need further authentication to be admitted into evidence, but merely introducing a judgment, which shows identity between the name on the prior judgment and the name of the defendant, is insufficient. Defense counsel’s stipulation to admission of the records does not waive the requirement of linking the judgment to the Defendant. B.M. v. State, 2D17-4306 (11/6/19)

https://www.2dca.org/content/download/541246/6106122/file/174306_39_11062019_08574463_i.pdf

EVIDENCE-AGE: Arresting officer’s testimony merely that juvenile “was seventeen, I believe.” is insufficient to establish that the juvenile was a juvenile. B.M. v. State, 2D17-4306 (11/6/19)

https://www.2dca.org/content/download/541246/6106122/file/174306_39_11062019_08574463_i.pdf

FALSE REPORT OF USE OF FIREARM: Middle school conversation in which Child says that he hates school and wanted to kill other students and “shoot the school, ” and that he “was going to kill somebody” but did not say “he was going to kill somebody right at that moment,” cannot be found delinquent for making a false report concerning the use of firearms in a violent manner. “A reasonable reader would understand making a report to mean providing information about something that is occurring or has already occurred, not expressing a desire or an intention to do something in the future. L.C. v. State, 2D18-1398 (11/6/19)

https://www.2dca.org/content/download/541250/6106170/file/181398_39_11062019_09013439_i.pdf

VIOLENT CAREER CRIMINAL: Defendant may qualify as a Violent Career Criminal on the basis of out of state convictions. Molina v. State, 2D18-4081 (11/6/19)

https://www.2dca.org/content/download/541264/6106338/file/184081_65_11062019_09023039_i.pdf

DISCOVERY VIOLATION: Court properly exercised discretion in allowing fingerprint expert, whose report had not been disclosed, to testify about fingerprints on a car (not the crime scene). Curry v. State, 3D18-141 (11/6/19)

https://www.3dca.flcourts.org/content/download/541210/6105669/file/180141_809_11062019_10103585_i.pdf

ARGUMENT-PRESERVATION: State’s argument that jury should think of itself as baseball players and to keep their eyes on the ball and not be swayed by “sliders” or “outside fast balls” is proper. Woodard v. State, 3D18-141 (11/6/19)

https://www.3dca.flcourts.org/content/download/541210/6105669/file/180141_809_11062019_10103585_i.pdf

APPEAL-PRESERVED ISSUE: If a party makes a contemporaneous objection to an improper comment which is sustained by the trial judge, the party must move for mistrial if he or she wishes to preserve the issue for appellate review. Woodard v. State, 3D18-141 (11/6/19)

https://www.3dca.flcourts.org/content/download/541210/6105669/file/180141_809_11062019_10103585_i.pdf

HABEAS CORPUS: Habeas corpus action challenging Defendant’s confinement in close supervision must be raised in the county where the Defendant is incarcerated. Owens v. Department of Corrections, 3D18-2264 (11/6/19)

https://www.3dca.flcourts.org/content/download/541215/6105729/file/182264_812_11062019_10161582_i.pdf

APPEALS: Unless a notice of appeal is filed within thirty days of the judgment’s rendition, appellate court has no jurisdiction. A petition for writ of habeas corpus may not be employed as a substitute for an appeal. Darkins v. State, 3D19-1324 (11/6/19)

https://www.3dca.flcourts.org/content/download/541220/6105789/file/191324_804_11062019_10264974_i.pdf

TOO WEIRD: Victim with fairy wings is murdered by Defendant in a white and blue pinstriped zoot suit with a big wide hat. Hedvall v. State, 3D15-2368 (11/6/19)

https://www.3dca.flcourts.org/content/download/541208/6105645/file/152368_809_11062019_03431875_i.pdf

FAIRY DUST: No error in admitting glitter from the victim’s fairy wings in homicide case. Hedvall v. State, 3D15-2368 (11/6/19)

https://www.3dca.flcourts.org/content/download/541208/6105645/file/152368_809_11062019_03431875_i.pdf

DISCOVERY-EXPERT: Error, if any, in not designating a witness as an expert is harmless where Defendant had an opportunity to depose the witness and the witness testified to the uncontested cause of death, not the identity of the killer, where the defense was that Some Other Dude Did It (SODDI). Hedvall v. State, 3D15-2368 (11/6/19)

https://www.3dca.flcourts.org/content/download/541208/6105645/file/152368_809_11062019_03431875_i.pdf

EXPERT: Detective who had taken a crime scene reconstruction course with 20 or more hours devoted to blood pattern analysis, had training at the medical examiner’s office with 12 hours devoted to blood pattern analysis, and had taken a DNA course with 20 hours of blood pattern analysis may give expert testimony as to blood splatter. Hedvall v. State, 3D15-2368 (11/6/19)

https://www.3dca.flcourts.org/content/download/541208/6105645/file/152368_809_11062019_03431875_i.pdf

JURORS-CHALLENGE FOR CAUSE: Court properly denied challenge for cause to juror who said that trained police officers may observe some things that others would not, but that police officers do not always tell the truth and absent special training, their testimony is entitled to no greater weight than another witness. Hedvall v. State, 3D15-2368 (11/6/19)

https://www.3dca.flcourts.org/content/download/541208/6105645/file/152368_809_11062019_03431875_i.pdf

JURORS-CHALLENGE FOR CAUSE-PRESERVATION OF ISSUE: In order to preserve appeal of Court’s denial of Defendant’s challenge for cause, Defendant must exhaust all challenges and identify who he would have stricken had he had more challenges. Where Defendant unsuccessfully challenged three jurors for cause and exercised his peremptory challenges on them, but only identified two additional jurors he would have excused if he could, the issue is not preserved. Hedvall v. State, 3D15-2368 (11/6/19)

https://www.3dca.flcourts.org/content/download/541208/6105645/file/152368_809_11062019_03431875_i.pdf

POST CONVICTION RELIEF-SPEEDY TRIAL: The State is not entitled to the recapture period when it leads a defendant to believe that no charges are pending against him/her, even though the State has pursued new charges based on the same conduct, whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi. Counsel is not ineffective for filing a notice of expiration of speedy trial instead of moving for a discharge because at the time the prevailing law in the state of Florida entitled the State to the recapture period. There can be no deficient performance if defense counsel follows then prevailing law. Arslam v. State, 4D16-4339 (11/6/19)

https://www.4dca.org/content/download/541195/6105475/file/164339_1257_11062019_08512428_i.pdf

INVESTIGATIVE COSTS: Investigative costs must be requested by the investigating agency and supported by evidence of the amount of the costs incurred. Kelly v. State, 4D18-1456 (11/6/19)

https://www.4dca.org/content/download/541196/6105487/file/181456_1708_11062019_08534907_i.pdf

DISCOVERY: Failure to disclose maps used as a demonstrative aid, if a discovery violation, is harmless error. Smith v. State, 4D18-3076 (11/6/19)

https://www.4dca.org/content/download/541200/6105535/file/183076_1257_11062019_10000905_i.pdf

KIDNAPPING-JURY INSTRUCTION: A jury instruction that erroneously includes an element that the State neither argued nor presented evidence to support is not fundamental error because it is not in dispute. No reversible error for defining “restraint” in a kidnapping case where restraint is not pled in the information. Improperly including an additional element not initially charged is not fundamental error if the element of the offense is not in dispute at trial or material to the jury’s consideration. Smith v. State, 4D18-3076 (11/6/19)

https://www.4dca.org/content/download/541200/6105535/file/183076_125

7_11062019_10000905_i.pdf

POST CONVICTION RELIEF: Claim that counsel was ineffective in failing to object to the alleged error and that, but for the error, the State may have made a more favorable plea offer is speculative and states no basis for postconviction relief. Passino v. State, 4D19-2117 (11/6/19)

https://www.4dca.org/content/download/541204/6105583/file/192117_1257_11062019_09102371_i.pdf

POST CONVICTION RELIEF: A scoresheet error raised under rule 3.800(a) is harmless if the court could have imposed the same sentence using a corrected scoresheet. Fausten v. State, 4D19-2185 (11/6/19)

https://www.4dca.org/content/download/541205/6105595/file/192185_1708_11062019_09113034_i.pdf

BATTERED SPOUSE SYNDROME: Battered Spouse Syndrome is not available in the absence of a claim of self-defense. BSS cannot be asserted to support a disallowed diminished capacity defense. Morris v. State, 1D18-1638 (11/5/19)

https://www.1dca.org/content/download/541176/6105223/file/181638_DC05_11052019_152128_i.pdf

CIRCUMSTANTIAL EVIDENCE: Defendant is not entitled to judgment of acquittal when proof of premeditation is circumstantial but other elements are supported by direct evidence. The circumstantial evidence standard applies only when all evidence of the defendant’s guilt is circumstantial, not when an element of the crime is shown entirely by circumstantial evidence. Morris v. State, 1D18-1638 (11/5/19)

https://www.1dca.org/content/download/541176/6105223/file/181638_DC05_11052019_152128_i.pdf

PLEA WITHDRAWAL: Court is not required to appoint counsel on Defendant’s motion for rehearing of order denying motion to withdraw plea where plea, tendered during trial, was thoroughly qualified and at the hearing jail calls were admitted in which Defendant said his motion

was an effort to game the system. Hamilton v. State, 1D18-1287 (11/1/19)

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

POST CONVICTION RELIEF: Court properly dismissed without hearing Defendant’s

successive motions for post conviction relief which persistently violated length and format

requirements. Ziegler v. State, 1D18-2314 (11/1/19)

https://www.1dca.org/content/download/540371/6099300/file/182314_1284_11012019_01132782_i.pdf

ACCIDENT REPORT PRIVILEGE: The compelled disclosure of a driver’s identity at an accident scene does not violate the privilege against self-incrimination. Because the accident-report privilege only applies to self-incriminatory statements, the officer may compel the Defendant to give his identity. The accident-report privilege is not a true privilege but rather a limitation on the admissibility of evidence. Jones v. State, 1D18-3535 (11/1/19)

https://www.2dca.org/content/download/540336/6098876/file/183535_167_11012019_08550163_i.pdf

WITHHOLD OF ADJUDICATION: Court may not withhold adjudication for fleeing and eluding. State v. Rapson, 2D18-4206 (11/1/19)

https://www.2dca.org/content/download/540343/6098960/file/184206_114_11012019_08563675_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that counsel was ineffective for failing to call private investigator who would have testified that the officer’s testimony

that he saw the Defendant driving was false and for failing to depose officer who claimed the Defendant had confessed. Osborn v. State, 5D18-3039 (11/1/19)

https://www.5dca.org/content/download/540307/6098506/file/183039_1259_11012019_08114220_i.pdf

DOUBLE JEOPARDY-RICO: Defendant is properly convicted of two RICO counts where there was a seduced widow (principal victim) whose money was used to swindle others because the charges alleged different time-periods, different enterprise membership, different victims, and different unlawful conduct. Overlapping enterprises pursuing different patterns of racketeering can be prosecuted separately without violating double jeopardy protections. Ball v. State, 1D18-330 (10/30/19)

https://www.1dca.org/content/download/540368/6099264/file/180330_1284_11012019_01084967_i.pdf

VOP: Defendant may be found guilty of violating probation by committing a battery on his daughter

where officers observed old injuries on her, she said that he had hit her a week before, and she waffled as to whether he had hit her that day. Reynolds v. State, 17-3820 (10/30/19)

https://www.5dca.org/content/download/540224/6097648/file/173820_1257_10302019_04001534_i.pdf

VOP-HEARSAY (DISSENT): “The photograph of Jessica’s injured mouth was no more proof

that Appellant hit her than the photo of a dinner plate was proof that ‘a ghost had been seen in the

story of the man who said, ‘My friend saw a ghost eating off a plate at his house last night, and if you

don’t believe it, here is the plate he says he saw the ghost eating from.’” Reynolds v. State, 17-3820

(10/30/19)

https://www.5dca.org/content/download/540224/6097648/file/173820_1257_10302019_04001534_i.pdf

POST CONVICTION RELIEF: Defendant is not entitled to vacation of conviction where Court

finds that Defendant’s claim, denied by trial counsel, that trial counsel advised him to reject plea offer based on erroneous evaluation of merits of the case. Jones v. State, 1D17-3833 (10/30/19)

https://www.1dca.org/content/download/540185/6097171/file/173833_1284_10302019_12451771_i.pdf

POST CONVICTION RELIEF: Court lacks jurisdiction to rescind an order granting resentencing

once it became a final, appealable order, and neither party timely moved for rehearing. Henderson

  1. State, 1D18-3098 (10/30/19)

https://www.1dca.org/content/download/540186/6097183/file/183098_1287_10302019_12473135_i.pdf

VINDICTIVE SENTENCE: Defendant is not vindictively sentenced when his and the codefendant’s sentences are disparate but when the two are not similarly situated, such as where, as

here, the Defendant had a gun and was older than the seventeen year old co-defendant. Love v.

State, 1D19-368 (10/30/19)

https://www.1dca.org/content/download/540194/6097279/file/190368_1284_10302019_12593289_i.pdf

APPEAL: Defendant cannot appeal the Court’s failure to impose the firearm mandatory minimum

because the error was not adverse to the Defendant. Johnson v. State, D19-1225 (10/30/19)

https://www.1dca.org/content/download/540195/6097291/file/191225_1279_10302019_01010483_i.pdf

RECLASSIFICATION-AGGRAVATED BATTERY: Aggravated battery is properly reclassified to a first-degree felony where it is clear that the aggravated battery was based on great bodily harm and that therefore the use of a deadly weapon was not an essential element of the offense. Evans v. State, D19-1341 (10/30/19)

https://www.1dca.org/content/download/540196/6097303/file/191341_1284_10302019_01020674_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on the claim that counsel was ineffective for failing to retain a video enhancement expert to improve the clarity of the perpetrator’s face in the surveillance video. Romaine v. State, 2D17-4605 (10/30/19)

https://www.2dca.org/content/download/540139/6096615/file/174605_114_10302019_08385966_i.pdf

JURY INSTRUCTION-DELIVERY OF NARCOTIC-FUNDAMENTAL ERROR: Where defendant is charged with delivery of cannabis, but the jury was instructed that the Defendant could be found guilty if he “sold, delivered, or possessed with intent to sell or deliver” cannabis, the Defendant is entitled to a new trial. When the jury instruction erroneously includes an element of the offense, it will be held to be fundamental error if there is a dispute concerning that specific element at trial. 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. Reese v. State, 2D18-916 (10/30/19)

https://www.2dca.org/content/download/540142/6096658/file/180916_114_10302019_08410991_i.pdf

COMPETENCY: Court may not enter an order finding the Defendant incompetent based on the written reports of two experts “and others,” without actually holding a competency hearing. Rogers v. State, 2D19-2193 (10/30/19)

https://www.2dca.org/content/download/540181/6097126/file/192193_167_10302019_08464172_i.pdf

UNSEALING RECORD: Defendants in a defamation lawsuit, based on the claim that they had disparaged the Plaintiff as a drug dealer, may not have the Plaintiff’s sealed record unsealed to support their defense that their claim was true. Farach v. Rivero, 3D19-866 (10/30/19)

https://www.3dca.flcourts.org/content/download/540125/6096433/file/190866_804_10302019_10101528_i.pdf

EXPUNCTION: “[T]he expungement statute does not transmute a once-true fact into a falsehood. It does not require the excision of records from the historical archives of newspapers or bound volumes of reported decisions or a personal diary. It cannot banish memories. . .[I]t does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.” Farach v. Rivero, 3D19-866 (10/30/19)

https://www.3dca.flcourts.org/content/download/540125/6096433/file/190866_804_10302019_10101528_i.pdf

POST CONVICTION RELIEF-SEXUAL OFFENDER REGISTRATION: Defendant’s asserted ignorance of sexual offender requirements is not newly discovered evidence allowing the Defendant to raise a motion for postconviction relief beyond the two-year limitation period. Tisdale v. State, 3D18-1717 (10/30/19)

https://www.3dca.flcourts.org/content/download/540122/6096397/file/181717_809_10302019_10052053_i.pdf

SCORESHEET ERROR: Upon resentencing on the remaining counts after the Defendant’s vehicular homicide count was vacated, the Defendant is not entitled to another resentencing based on the use of an improper scoresheet where the Court sentenced the Defendant and statutory maximum without regard to the scoresheet. The scoresheet is to be corrected, but the sentences stand. Oakley v. State, 4D18-1800 (10/30/19)

https://www.4dca.org/content/download/540113/6096282/file/181800_1257_10302019_09100133_i.pdf

JUDGMENT OF ACQUITTAL: State may appeal the erroneous entry of a Judgment of Acquittal after a jury verdict, regardless of whether the verdict is recorded. State may not a file Judgment of Acquittal entered before a jury verdict. State v. Pickersgill, 4D18/3115 (10/30/19)

https://www.4dca.org/content/download/540115/6096306/file/183115_1709_10302019_09140799_i.pdf

EVIDENCE-MARIJUANA: Officers may identify marijuana without chemical or

scientific proof. State v. Pickersgill, 4D18/3115 (10/30/19)

https://www.4dca.org/content/download/540115/6096306/file/183115_1709_10302019_09140799_i.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Defendant’s claim that newly discovered evidence bearing on the motivation of the confidential informant who told police that the Defendant would receive a package of narcotics is properly denied without a hearing. Regardless of informant’s motive, police had sufficient evidence for an anticipatory warrant. Joshua v. State, 4D18-3724 (10/30/19)

https://www.4dca.org/content/download/540116/6096318/file/183724_1257_10302019_09291947_i.pdf

ARMED CAREER CRIMINAL-VIOLENT FELONY: Attempted first-degree assault (Alabama offense) is a violent felony under the Armed Career Criminal Act. In deciding whether a defendant’s prior state offense contains a use-of-force element, the Court employs a categorical approach, looking to the elements. But if the prior conviction was for violating a divisible statute (one that sets out one or more elements of the offense in the alternative) the Court applies a modified categorical

approach, whereby if some forms of the offense require the use of violent force but others do not, a sentencing court may refer to a case documents to determine whether the defendant’s prior conviction had, as an element, the use of violent force or not. United States v. Hunt, No. 17-12365 (11th Cir. 10/30/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201712365.op2.pdf

SEARCH AND SEIZURE: Defendant has standing to contest search of motel room from which he fled, but officers, who had an arrest warrant for Defendant, were justified in entering the room to see if he had returned. United States v. Ross, No. 18-11679 (11th Cir. 10/30/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811679.pdf

SEARCH AND SEIZURE: Defendant’s right to privacy in a motel room ends at check out time at 11:00 a.m. United States v. Ross, No. 18-11679 (11th Cir. 10/30/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811679.pdf

POSSESSION OF FIREARM BY FELON-KNOWLEDGE: An element of Possession of a Firearm by a Felon is that the Defendant knew he was a felon. Failure of indictment to so allege and for jury instructions to so instruct is harmless error. “Because the record establishes that Reed knew he was a felon, he cannot prove that the errors affected his substantial rights or the fairness, integrity, or public reputation of his trial.” United States v. Reed, No. 17-12699 (11th Cir. 10/30/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201712699.rem.pdf

CASE LAW UPDATE

WEEK OF NOVEMBER 25-29, 2019

EVIDENCE-SENTENCING HEARING: The standard for admissibility of evidence in a sentencing hearing is not the evidence code, but rather whether the evidence has sufficient indicia of reliability. United States v. Pitts, No. 18-14873 (11th Cir. 11/27/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201814873.pdf

PLEA-WITHDRAWAL: A defendant who seeks to withdraw a guilty plea after the court has accepted the plea but before sentencing must demonstrate a fair and just reason for doing so, considering the totality of the circumstances surrounding the plea. Trial court acted within its discretion in denying motion to withdraw plea by Defendant, an attorney who had pled guilty to mishandling escrow accounts, on the ground that new evidence (a poorly qualified expert hired to contest the amount of restitution) would establish lack of criminal intent. United States v. Pitts, No. 18-14873 (11th Cir. 11/27/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201814873.pdf

APPEAL: Defendant’s pleading entitled “Objections to Government’s Response to Defendant’s Motion for Relief from Judgment. . .and/or Notice of Appeal” is not a legally sufficient notice of appeal because it does not designate the court to which the appeal is being taken, nor does it evince a clear intent to appeal, nor does it identify the order being appealed. United States v. Baxter, No. 19-10327 (11th Cir. 11/27/19)

http://media.ca11.uscourts.gov/opinions/unpub/files/201910327.pdf

STAND YOUR GROUND-APPEAL: Prohibition is the appropriate remedy when the Court errs in denying SYG immunity on the merits. Certiorari is the appropriate remedy when the Stand Your Ground proceeding or the trial court’s ruling is flawed by legal error. Garcia v. State, 2D18-4541 (11/27/19)

https://www.2dca.org/content/download/544007/6130104/file/184541_167_11272019_10255126_i.pdf

STAND YOUR GROUND-SELF-DEFENSE-TRESPASS: One is entitled to defend oneself and is protected by SYG when attacked for dithering about leaving the house party. A defendant is not foreclosed from defending himself simply because he is in a place where he does not have the right to be, but he must first attempt to retreat from the situation if he can do so safely. Court errs by ruling that as a matter of law any use of force by the party host is lawful. Garcia v. State, 2D18-4541 (11/27/19)

https://www.2dca.org/content/download/544007/6130104/file/184541_167_11272019_10255126_i.pdf

POST CONVICTION RELIEF: Defendant is entitled to a hearing on claim that Court improperly allowed expert testimony on DNA evidence in which “low count number” testing had been utilized, that possible contamination of the DNA samples had occurred, and that the population frequency statistics were unreliable. Miller v. State, 2D19-17 (11/27/19)

https://www.2dca.org/content/download/544010/6130140/file/190017_114_11272019_10272812_i.pdf

INFORMATION: Defendant is estopped from vacating conviction where State filed an amended information as part of a reduced charge plea negotiation, in which it wrote “possession with intent to sell cannabis” on the face of the information but neglected to state all the elements of the offense in the body. Even where the body of a charging instrument omits an essential element, such an error is a waivable technical defect, if the charging instrument references the correct statute, and the statute sets forth the required elements. de Quesada v. State, 3D19-2018 (11/27/19)

https://www.3dca.flcourts.org/content/download/543893/6128701/file/192018_809_11272019_09522561_i.pdf

IMMIGRATION CONSEQUENCES: Defendant cannot raise claim that his plea was involuntary for failure to warn of likely immigration consequences more than two years after the plea, absent allegation that that he could not have ascertained the immigration consequences of his plea during two-year period after his judgment became final. de Quesada v. State, 3D19-2018 (11/27/19)

https://www.3dca.flcourts.org/content/download/543893/6128701/file/192018_809_11272019_09522561_i.pdf

EVIDENCE-OPINION ON CREDIBILITY: State may not ask whether Defendant believes police offer lied (“Therefore, you are saying that what the officer said on the stand is not the truth, is that correct?”). A witness may not be asked to give an opinion about the credibility of another witness. Y.N. v. State, 3D18-45 (11/27/19)

https://www.3dca.flcourts.org/content/download/543883/6128581/file/180045_812_11272019_09350896_i.pdf

EVIDENCE-BENCH TRIAL: When improper evidence is admitted over objection in a bench trial, the court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination or it will be regarded as having been considered. New trial required. Y.N. v. State, 3D18-45 (11/27/19)

https://www.3dca.flcourts.org/content/download/543883/6128581/file/180045_812_11272019_09350896_i.pdf

COMPETENCY: Upon remand, successor judge who acquainted himself with the record may make a nunc pro tunc finding of competency after hearing. Little v. State, 4D17-2611 (11/27/19)

https://www.4dca.org/content/download/543930/6129166/file/172611_1257_11272019_08510627_i.pdf

SENTENCING-DOWNWARD DEPARTURE: Court may not sentence Defendant who has under 22 points on his scoresheet to prison for VOP. Upon remand, if it seeks an enhanced penalty, the State must convene a jury to consider danger to the public. Issue of whether chronic thievery constitutes “danger to the public” is not addressed. Lewis v. State, 4D18-2548 (11/27/19)

https://www.4dca.org/content/download/543933/6129202/file/182548_1709_11272019_08531060_i.pdf

SEARCH AND SEIZURE-STANDING: A defendant who is tracked using Cell-Site Location Information (CSLI) data has standing to challenge the search of his or her physical location, notwithstanding that the location in which he is found is in his murdered mother’s car. State v. Martin, 4D18-3417 (11/27/19)

https://www.4dca.org/content/download/543936/6129238/file/183417_1257_11272019_08570593_i.pdf

SEARCH AND SEIZURE-GOOD FAITH: The good faith exception to the exclusionary rule for unlawful searches does not apply to areas of law that are undecided or unsettled. Officers acted in good faith reliance on then-existing practices and orders authorizing Cell-Site Location Information (CSLI) data, but not in using Cell-Site Simulator data to pinpoint the Defendant’s location in his murdered mother’s car. State v. Martin, 4D18-3417 (11/27/19)

https://www.4dca.org/content/download/543936/6129238/file/183417_1257_11272019_08570593_i.pdf

SEARCH AND SEIZURE-CELL PHONE-SITE LOCATION: A cell-site simulator is a device that transforms a cell phone into a real-time tracking device, tricking nearby cell phones into thinking the device is a cell tower. Police may not track Defendant’s location with a cell-site without obtaining a warrant. Officers did not act in good faith reliance based on their claimed belief that a the court order authorizing the disclosure of “real-time/live cell site locations” and a “mobile tracking device” extends to a cell site simulator. “The Fourth Amendment violation here is precisely the kind of violation the exclusionary rule seeks to deter.” Evidence properly suppressed. State v. Martin, 4D18-3417 (11/27/19)

https://www.4dca.org/content/download/543936/6129238/file/183417_1257_11272019_08570593_i.pdf

RETROACTIVITY-PRISON RELEASEE REOFFENDER: Lewars (Defendant who was committed to prison but released from jail with credit time served before getting there is not subject to PRR) does not apply retroactively. Life sentence as PRR affirmed. A change of law will not be applied retroactively unless the change: (a) emanates from the Supreme Court of Florida or the United States, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance. Lewars is an evolutionary refinement and not a development of fundamental significance, a major constitutional change, or jurisprudential upheaval that requires retroactive application. Sims v. State, 4D19-1506 (11/27/19)

https://www.4dca.org/content/download/543959/6129514/file/191506_1257_11272019_09062188_i.pdf

QUOTATION 1: “Of course, there’s no such thing as a good bank robbery. But. . .there are certainly less bad ones.” United States v. Perez, No. 17-14136 (11th Cir. 11/26/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201714136.pdf

QUOTATION 2: “If this were an Encyclopedia Brown mystery, it might be called The Case of the Polite Bank Robber.” United States v. Perez, No. 17-14136 (11th Cir. 11/26/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201714136.pdf

SENTENCING-GUIDELINES: Unarmed bank robber who said “please” and “thank you,” bargained pleasantly with one teller (“Perez asked. . . if [$1000.00] was the most cash the teller could dispense.”), and allowed another to report the

robbery while it was ongoing is not subject to the Guidelines’ threat-of-death offense level enhancement. “Put $5[,]000 in an envelope . . . and no one will get hurt.” is a threat of harm, but not in itself enough to justify the enhancement. United States v. Perez, No. 17-14136 (11th Cir. 11/26/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201714136.pdf

CASE LAW UPDATE

WEEK OF NOVEMBER 18-22, 2019

EVIDENCE-OTHER CRIMES, WRONGS OR MISDEEDS: In theft and burglary case, evidence of a stolen checkbook, unrelated to the case at issue, found in the stolen backpack is inadmissible. “Although. . . the prosecutor and State witness carefully avoided making the overt assertion that Appellant had stolen the checkbook, they might just as well have. . . When the jury was told that. . .the Appellant. . .was found to be in possession of a checkbook belonging to somebody else, the inescapable implication was that he stole it, and was a person prone to theft.” Trahan v. State, 1D18-1174 (11/22/19)

https://www.1dca.org/content/download/543750/6126960/file/181174_DC13_11222019_105507_i.pdf

STAND YOUR GROUND: Defendant is not entitled to SYG immunity when he came up behind the victim, grabbed her, threw her to the ground, laid on top of her, hit her repeatedly in the face and said, “You f—ing b—-, you’ll never hit my wife again,” after his wife had started the fight by repeatedly stabbing the victim with a broken bottle. Craven v. State, 1D18-5270 (11/22/19)

https://www.1dca.org/content/download/543760/6127082/file/185270_DC02_11222019_114153_i.pdf

STAND YOUR GROUND: Defendant who shattered a beer bottle, grabbed the victim by the throat with her free hand, stabbed the victim with the bottle, and said, “You want some of this? You want to try me? You want some of this b—-?” and who cut the victim’s facial nerves and vocal cords is not entitled to SYG immunity. Craven v. State, 1D18-5272 (11/22/19)

https://www.1dca.org/content/download/543761/6127094/file/185272_DC02_11222019_114608_i.pdf

OPENING THE DOOR: Defendant, charged with a violent crime with a firearm, opens the door to evidence that he had been previously convicted of possession of a firearm by a felon when he says that he did not have a gun during the crime charged because he could not legally possess one. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

HEARSAY: Statements of the bleeding, upset victim at the scene of the crime while the fire department was still trying to put out the fire are admissible as excited utterances and statements of identification. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

POST CONVICTION RELIEF-SEVERANCE: Counsel is not ineffective for failing to sever Defendant’s case from that of his co-Defendant where each testified only to their own innocence and neither of them attempted to implicate the other with their testimony. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

POST CONVICTION RELIEF-EDITED RECORDING: Defendant is not entitled to relief on claim that counsel was ineffective for allowing a too heavily redacted interview to be admitted where he fails to show that the redactions fundamentally changed the nature of the video. Dickerson v. State, 1D19-1320 (11/22/19)

https://www.1dca.org/content/download/543764/6127130/file/191320_DC05_11222019_120329_i.pdf

JURY INSTRUCTION-EXCUSABLE HOMICIDE: In case of Defendant shooting his wife through a door in what he claims was a botched suicide attempt, failure to give an excusable homicide instruction is reversible error. But where the trial court specifically directed the parties to the missing definition of excusable homicide and defense counsel acknowledged the omission, the Defendant affirmatively waived any claim to assert fundamental error. Question certified whether waiver further requires the record to reflect that counsel knew the omission itself was erroneous. Brady v. State, 2D18-117 (11/22/19)

https://www.2dca.org/content/download/543718/6126569/file/180117_65_11222019_08401793_i.pdf

RESENTENCING-CONSIDERATIONS: Defendant is entitled to a 3rd sentencing hearing before a 3rd judge when the first two judges, before and after the first appeal, considered the Defendant’s use of a firearm during the robbery when the jury had found him guilty of the lesser included of robbery without a firearm. Love v. State, 2D18-4461 (11/22/19)

https://www.2dca.org/content/download/543730/6126713/file/184461_39_11222019_08434386_i.pdf

APPEAL-CERTIORARI-MODIFICATION OF PROBATION: Defendant may move to modify the conditions of probation at any time, including before it begins. Court’s ruling that it is without jurisdiction to modify conditions of probation can be challenged by petition for writ of certiorari. Wilson v. State, 2D18-4662 (11/22/19)

https://www.2dca.org/content/download/543731/6126725/file/184662_167_11222019_08513434_i.pdf

CORPUS DELICTI: Cocaine found on the ground where the Defendant had run is sufficient evidence that someone had committed the crime of possession of cocaine, so Defendant’s admission that he had discarded the cocaine is admissible. “Whether a corpus delicti has been established is a different inquiry from whether the evidence adduced would legally withstand a motion for judgment of acquittal. The former is a rule of evidentiary admission; the latter is one of evidentiary consideration.” With limited exceptions, to establish a corpus delicti the State need only show that a crime has been committed, not that the defendant committed that particular crime. K.T.B. v. State, 2D19-59 (11/22/19)

https://www.2dca.org/content/download/543736/6126785/file/190059_65_11222019_08542780_i.pdf

CONTINUANCE: Defendant is entitled to a continuance in murder case when, 12 days before trial, State discloses an FDLE report showing the victim’s blood on Defendant’s headboard, undermining the Defendant’s defense that the blood came from murdered kittens. Defense counsel must be afforded a reasonable opportunity to investigate and prepare any applicable defenses. Court must consider (1) the time actually available for preparation; (2) the likelihood of prejudice from the denial; (3) the defendant’s role in shortening preparation time; (4) the complexity of the case; (5) the availability of discovery; (6) the adequacy of counsel actually provided; and (7) the skill and experience of chosen counsel. Singer v. State, 5D18-1783 (11/22/19)

https://www.5dca.org/content/download/543753/6127003/file/181783_1260_11222019_09315060_i.pdf

VEHICULAR HOMICIDE-JOA: Drag race ending in a fatal crash at 99 m.p.h. is sufficient to establish vehicular homicide. Ruiz v. State, 5D18-3402 (11/22/19)

https://www.5dca.org/content/download/543756/6127039/file/183402_1257_11222019_09440476_i.pdf

POST CONVICTION RELIEF-SCORESHEET ERROR: Defendant is entitled to a hearing on claim that there was an apparent scoresheet error, unless the Court attaches records showing that the same sentence would have been imposed regardless. The fact that the trial court did not impose the lowest permissible sentence does not compel the conclusion that the court would have imposed the same sentence even if the extra points had not been listed on the scoresheet. Sanders v. State, 5D19-1194 (11/22/19)

https://www.5dca.org/content/download/543757/6127051/file/191194_1259_11222019_11091768_i.pdf

PROBATION-TERM: For life felony, Defendant cannot be sentenced to 40 years in prison followed by 15 years of probation. The maximum sentence for a life felony is 40 years or life. Because the Defendant was sentenced to 40 years imprisonment, no probation could follow. VOP dismissed. Owens v. Flowers, 5D19-3366 (11/22/19)

https://www.5dca.org/content/download/543772/6127218/file/193366_1262_11222019_01563276_i.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Newly discovered evidence of dubious admissibility and credibility, including that a third party had implied that he might be the killer and that that person had been seen running with a gas can and blood on his shirt, is not sufficient to warrant post conviction relief in an otherwise strong case of guilt. Calhoun v. State, sc18-340 (11/21/19)

https://www.floridasupremecourt.org/content/download/543646/6125944/file/sc18-340.pdf

NEWLY DISCOVERED EVIDENCE-GENDER DYSPHORIA: Defendant’s symptoms of severe depression, self-mutilation, and suicidality, now attributed to gender dysphoria, are not newly discovered evidence warranting the vacation of his guilty plea and previous waivers of post conviction relief. Rodgers v. State, sc19-241 (11/21/19)

https://www.floridasupremecourt.org/content/download/543647/6125956/file/sc19-241.pdf

CONSPIRACY: Government is not required to prove that the Defendant conspired to distribute a specific controlled substance. Government is only required to prove that the Defendant conspired to distribute a generic controlled substance. Proof of the type of drug involved in the conspiracy is separate and distinct from proof of mens rea as to the type of drug. Because the type of drug is not an element of the statutory offense, a finding of mens rea with respect to the specific type of drug is ordinarily not required. But where the indictment charged a specific substance instead of the generic substance as an element, the government is required to prove mens rea as to the specific substance. United States v. Achey, (11th Cir 11/22/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811900.pdf

DEFINITION-“A”: When used as an indefinite article, “a” means some undetermined or unspecified particular. United States v. Achey, (11th Cir 11/22/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811900.pdf

CONSPIRACY: A simple buyer-seller controlled substance transaction does not, by itself, form a conspiracy, but if the evidence allows an inference that the buyer and seller knew the drugs were for distribution rather than to support the buyer’s personal drug habit, the transaction may amount to a conspiracy. United States v. Achey, (11th Cir 11/22/19)

http://media.ca11.uscourts.gov/opinions/pub/files/201811900.pdf

POST CONVICTION RELIEF: Counsel was not ineffective for failing to call to alibi witnesses where their testimony would have been cumulative and their credibility suspect. Thomas v. State, 1D18-2024 (11/20/19)

https://www.1dca.org/content/download/543469/6123890/file/182024_DC05_11202019_093628_i.pdf

POST CONVICTION RELIEF-RULE OF SEQUESTRATION: Defendant is not entitled to a new trial on claim that counsel was ineffective for failing to invoke rule of sequestration where the act of two witnesses talking to each other is not shown to be prejudicial. Faulk v. State, 1D18-2173 (11/20/19)

https://www.1dca.org/content/download/543471/6123909/file/182173_DC05_11202019_094024_i.pdf

POST CONVICTION RELIEF-PHOTO LINEUP: Defendant’s speculation that the victims may have picked him out of the lineup because they believe that all people of color look alike is not a basis for postconviction relief. Faulk v. State, 1D18-2173 (11/20/19)

https://www.1dca.org/content/download/543471/6123909/file/182173_DC05_11202019_094024_i.pdf

POST CONVICTION RELIEF-MENTAL HEALTH EVALUATION: Counsel was not ineffective for not seeking a mental health evaluation where the record reflects that the Defendant participated meaningfully throughout the trial in his claims of mental illness are otherwise undermined by the facts. Any mental health mitigation would have been meaningless because the Defendant was a Prison Releasee Re-offender who was required by law to serve the statutory maximum sentence. Faulk v. State, 1D18-2173 (11/20/19)

https://www.1dca.org/content/download/543471/6123909/file/182173_DC05_11202019_094024_i.pdf

JURY INSTRUCTION-SEXUAL BATTERY-PENETRATION: It is fundamental error in a sexual battery case for the state to argue, and for the court to instruct the jury on, union with the vagina when the information only alleges actual penetration. Goodman v. State, 1D18-2264 (11/20/19)

https://www.1dca.org/content/download/543472/6123921/file/182264_DC08_11202019_095259_i.pdf

EVIDENCE-VOUCHING: CPT officer’s testimony that in her medical opinion there was sexual assault or abuse according to patient history and physical findings that were consistent with the history is improper vouching. Counsel provided deficient performance in failing to object to the CPT officer’s testimony, but no prejudice was shown given the overwhelming evidence of guilt. (“Appellant could not recall if he had raped his daughter as he had seven drinks that night and did not know how much alcohol the victim drank.”) Roderick v. State, 1D18-4020 (11/20/19)

https://www.1dca.org/content/download/543475/6123957/file/184020_DC05_11202019_100453_i.pdf

ARGUMENT: Prosecutor did not improperly evoke religion when telling the story about King Solomon’s maternity case and suggesting that jurors should use their God-given common sense. Roderick v. State, 1D18-4020 (11/20/19)

https://www.1dca.org/content/download/543475/6123957/file/184020_DC05_11202019_100453_i.pdf

PLEA-WITHDRAWAL: Motion to withdraw plea filed by the Defendant who is represented by counsel is a nullity absent a claim in the motion that an adversarial relationship with his counsel existed. Trial counsel’s obligation of representation to his or her client does not end upon the rendition of a judgment of conviction and sentence, but continues thereafter until either a notice of appeal is filed and related tasks completed, the time for filing the notice has passed, or good cause is shown upon written motion. Rodriguez v. State, 3D19-1006 (11/20/19)

https://www.3dca.flcourts.org/content/download/543485/6124084/file/191006_812_11202019_10052911_i.pdf

CREDIT FOR TIME SERVED-SPLIT SENTENCE: A defendant who is sentenced to incarceration because he violated the probationary portion of a split sentence is entitled to receive credit for time served in prison before being placed on probation. The trial court shall direct the Department of Corrections to compute and apply credit for all other time served previously on the prior sentence for the offense for which the offender is being recommitted. The failure to award a defendant proper credit for prior prison time served is cognizable on a motion to correct illegal sentence under Rule 3.800(a). Villalona v. State, 3D19-1080 (11/20/19)

https://www.3dca.flcourts.org/content/download/543487/6124108/file/191080_812_11202019_10105007_i.pdf

EVIDENCE-OPINION: Detective may not testify that, based on his training and experience, there was no self defense legitimately available for Defendant. Such an opinion improperly invades the exclusive province of the jury. Hunt v. State, 4D18-1577 (11/20/19)

https://www.4dca.org/content/download/543490/6124151/file/181577_1709_11202019_08473986_i.pdf

CONTEMPORANEOUS OBJECTION: A contemporaneous objection may be made a few questions after the objectionable comment. Hunt v. State, 4D18-1577 (11/20/19)

https://www.4dca.org/content/download/543490/6124151/file/181577_1709_11202019_08473986_i.pdf

SEARCH AND SEIZURE-FACTUAL FINDINGS: “While not an independent ground for reversal, unexplained rulings are generally anathema to a sound appellate opinion. While we decline to enunciate a ruling that would require factual findings following hearings on motions to suppress, we implore trial judges to consider such a routine procedure, whether they be written or orally pronounced.” Case remanded for the court to make factual findings. Searcy v. State, 4D18-2201 (11/20/19)

https://www.4dca.org/content/download/543492/6124175/file/182201_1709_11202019_08520463_i.pdf

COMMENT ON SILENCE: State’s question of Defendant during cross-examination “And today in 2018 is the first time we’re hearing about this guy name[d] Rico?” is an improper comment on Defendant’s right to remain silent. The State is not permitted to comment on a defendant’s postarrest silence. This prohibition applies to all evidence and argument, including impeachment evidence and argument, that is fairly susceptible of being interpreted by the jury as a comment on silence. A defendant does not waive this prohibition by electing to take the stand and testify at trial.  Hopkins v. State, 4D18-2204 (11/20/19)

https://www.4dca.org/content/download/543493/6124187/file/182204_1709_11202019_08542951_i.pdf

SHIFTING BURDEN OF PROOF: State may not imply that Defendant has the burden of offering an exculpatory statement prior to trial. Asking the Defendant “And today in 2018 is the first time we’re hearing about this guy name[d] Rico?” improperly shifts the burden of proof. Hopkins v. State, 4D18-2204 (11/20/19)

https://www.4dca.org/content/download/543493/6124187/file/182204_1709_11202019_08542951_i.pdf

RESTITUTION: Court may not summarily order the defendant to pay $57,148.25 in restitution without first providing the defendant with notice and an opportunity to be heard at a restitution hearing. Whittaker v. State, 4D18-2336 (11/20/19)

https://www.4dca.org/content/download/543494/6124199/file/182336_1708_11202019_08564727_i.pdf

RESENTENCING-MINOR: After Court grants motion for resentencing under Graham and State does not seek rehearing or appeal of the order, and where the law is changed before resentencing occurred, the circuit court lacked jurisdiction to reconsider the earlier order granting resentencing. Scott v. State, 4D18-3682 (11/20/19)

https://www.4dca.org/content/download/543496/6124223/file/183682_1709_11202019_09103867_i.pdf

POST CONVICTION RELIEF-NEWLY DISCOVERED EVIDENCE: Acquitted co-Defendant who submits an affidavit that he, without the Defendant’s participation, committed the crime is newly discovered evidence. Post-trial confessions from codefendants can amount to newly discovered evidence that provides an exception to the two-year time limitation of Rule 3.850(b). Franklin v. State, 4D19-390 (11/20/19)

https://www.4dca.org/content/download/543501/6124283/file/190390_1709_11202019_09483894_i.pdf

COMPETENCY: Court may order video-recording of competency evaluation. Video-recording the evaluation ensures a complete and accurate record of the evaluation is available. Sylvestre v. State, 4D19-2753 (11/20/19)

https://www.4dca.org/content/download/543504/6124319/file/192753_1703_11202019_09533027_i.pdf

CONFIDENTIAL INFORMANT-DISCLOSURE: In attempted murder case, the State may withhold the identities of confidential informants who it does not intend to call when Defendant fails to raise a legally cognizable defense or otherwise show that disclosure of the witnesses’ identities is relevant or helpful to his defense or essential to a fair determination of the cause. State v. Henry, 5D19-2288 (11/18/19)

https://www.5dca.org/content/download/543366/6122803/file/192288_1255_11182019_09080854_i.pdf

CASE LAW SUMMARIES

WEEK OF NOVEMBER 11-15, 2019

APPEAL-SEARCH AND SEIZURE: As part of its discovery obligation, the State must disclose the application for the search warrant, but the Court’s failure to order the disclosure of the underlying affidavit is not a dispositive issue, and thus not appealable after a plea. House v. State, 1D18-4138 (11/15/19)

https://www.1dca.org/content/download/543338/6122457/file/184138_DC05_11152019_100319_i.pdf

COSTS: $3 assessment for teen court imposed pursuant to §938.19(2) cannot be assessed when adjudication has been withheld. H.R. v. State, 2D18-4028 (11/15/19)

https://www.2dca.org/content/download/543346/6122560/file/184028_114_11152019_08243258_i.pdf

COSTS: $100 assessment for costs of representation cannot be assessed when Child did not receive notice of her right to contest these costs. H.R. v. State, 2D18-4028 (11/15/19)

https://www.2dca.org/content/download/543346/6122560/file/184028_114_11152019_08243258_i.pdf

DOUBLE JEOPARDY: Double Jeopardy bars dual convictions for battery and lewd and lascivious molestation of a child. Dosal v. State, 5D18-2245 (11/15/19)

https://www.5dca.org/content/download/543323/6122270/file/182245_1257_11152019_08213496_i.pdf

YOUTHFUL OFFENDER: Court may decline to impose a Youthful Offender where it is clear that he understood that he had the option to do so if he so chose. Reynosopena v. State, 5D18-3856 (11/15/19)

https://www.5dca.org/content/download/543328/6122330/file/183856_1257_11152019_09173835_i.pdf

POST CONVICTION RELIEF-JUROR MISCONDUCT: Defendant is entitled to a hearing 15 years after his conviction on claim that juror concealed the fact that she had been the victim of sexual crimes as a child. Smith v. State, 5D19-101 (11/15/19)

https://www.5dca.org/content/download/543329/6122342/file/190101_1260_11152019_09203467_i.pdf

VOP: Defendant cannot be found in violation of probation for failing to register when he was arrested 24 hours after moving and the statute allows 48 hours to register upon changing one’s address. Niemi v. State, 5D19-325 (11/15/19)

https://www.5dca.org/content/download/543330/6122354/file/190325_1259_11152019_09222477_i.pdf

POST CONVICTION RELIEF: Arguing self-defense at trial but not requesting a self-defense instruction on the theory that self-defense was weak and a diminished capacity defense was preferable is not a reasonable defense strategy. ” We can fathom no sensible, strategic reason for counsel to argue self-defense during Washer’s closing argument but opt not to request a self-defense jury instruction. . .Counsel’s assessment that the instruction is ‘awful’ is insufficient.” Washer v. State, 5D19-663 (11/15/19)

https://www.5dca.org/content/download/543331/6122366/file/190663_1260_11152019_09242854_i.pdf

POST CONVICTION RELIEF: Counsel was ineffective for failing to investigate GPS data which would have undermined the credibility of State’s witnesses, despite being requested to do so. New trial is required. Washer v. State, 5D19-663 (11/15/19)

https://www.5dca.org/content/download/543331/6122366/file/190663_1260_11152019_09242854_i.pdf

JOA-MANSLAUGHTER: Defendant properly convicted of manslaughter based on marooning drunk victim in the swamp after their boat sank and she punched him in the nose and stabbed him in the forearm with a flounder gig (her co-defendant stabbed him, too) notwithstanding that the stabbings did not cause the death. King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_DC05_11132019_084518_i.pdf

DEADLY WEAPON: A three pronged flounder gig can be a deadly weapon. King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_DC05_11132019_084518_i.pdf

https://www.1dca.org/content/download/542126/6113511/file/181278_DC05_11132019_084518_i.pdfAGGRAVATED
BATTERY: “A trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent.” King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_DC05_11132019_084518_i.pdf

MANSLAUGHTER-JURY INSTRUCTION: Where Defendant is a principal to manslaughter, she is not entitled to an instruction that she was the cause in fact of the death or the proximate cause. Such an instruction is confusing or misleading. King v. State, 1D18-1278 (11/13/19)

https://www.1dca.org/content/download/542126/6113511/file/181278_DC05_11132019_084518_i.pdf

ACCESSORY AFTER THE FACT: In prosecution for accessory after the fact to murder, circumstantial evidence may be used to prove the defendant’s intent to aid another in avoiding punishment. Rice v. State, 1D18-4451 (11/13/19)

https://www.1dca.org/content/download/542132/6113579/file/184451_DC05_11132019_090756_i.pdf

SEARCH AND SEIZURE-INVESTIGATORY STOP: Officer may not stop vehicle for driving around at night for a long time in a neighborhood after receiving complaints about a loud muffler where State did not argue that the muffler violated the anti-loud muffler statute. Good string of cases on bad reasonable suspicion car cases. Allenbrand v. State, 2D17-4787 (11/13/19)

https://www.2dca.org/content/download/542171/6114070/file/174787_39_11132019_08272358_i.pdf

ARGUMENT: State’s argument that defense counsel’s arguments were spaghetti thrown against the wall, deflection tactics, and smoke and mirrors is improper, but not reversible in absence of a contemporary objection. Good string of cases on improper argument. Berouty v. State, 2D17-4787 (11/13/19)

https://www.2dca.org/content/download/542176/6114137/file/182251_65_11132019_08281259_i.pdf

JURY INSTRUCTIONS: Omission of reasonable doubt instruction is fundamental error. Usry v. State, 2D18-4435 (11/13/9)

https://www.2dca.org/content/download/542177/6114149/file/184435_39_11132019_08291951_i.pdf

SENTENCING-JUVENILE: When a defendant has reached the age of majority at the time he or she violates community control, the defendant is not entitled to be sentenced after the violation under the juvenile sentencing statutes. Cox v. State, 2D18-4718 (11/13/19)

https://www.2dca.org/content/download/542178/6114161/file/184718_65_11132019_08301498_i.pdf

INEFFECTIVE ASSISTANCE-APPEAL: Defendant may not raise by petition for habeas corpus more than two years after the conviction became final his claim that appellate counsel was ineffective. Jackon v. State, 3D19-2071 (11/13/19)

https://www.3dca.flcourts.org/content/download/542158/6113900/file/192071_804_11132019_10253554_i.pdf

APPEAL-INTERLOCUTORY-JURISDICTION: Defendant may not raise on interlocutory appeal issue of Court’s denial of motion for disclosure of CI. Farr v. State, 3D19-282 (11/13/19)

https://www.3dca.flcourts.org/content/download/542155/6113864/file/190282_804_11132019_10194459_i.pdf

COMPETENCY: Court may not merely accept counsel’s stipulation as to the admissibility of the doctors’ reports and the competency conclusions contained therein and proceed to VOP hearing without making an independ