J.S. v. State, 207 So.3d 903 (Fla. 4th DCA 2017) When determining whether the first element of the crime of assault is met, the focus is the perpetrator’s intent and not the reaction of the person perceiving the word or act.
Wright v. State, 1D15-4331 (Fla. 1st DCA Aug. 1, 2017) At the time of the incident that led to the charges in this case, appellant was 24 years old with no prior record and had held the same job for 4 years. The charges arose from an incident where the victim barged, uninvited, into appellant’s home. They had been former lovers and shared a child. Appellant asked the victim to leave the residence, and a struggle ensued. The victim was bigger than appellant and continued to refuse to leave. Appellant then drew a gun and fired one shot. It is undisputed that the gun was not fired directly at the victim and was fired in an attempt to get victim to leave. Based on these facts, appellant was convicted of aggravated assault with a deadly weapon without intent to kill. The jury found appellant discharged of firearm during the commission of the offense. The trial court, as required by law, sentenced appellant to 20 years mandatory minimum with the Department of Corrections. The trial judge stated she would like not to sentence 3 appellant to the mandatory minimum if she felt like there was another option, stating she “[didn’t] disagree that the defendant should be spending that kind of time in the Florida State Prison, but I, in my charge, I am bound by the law to do what the law says.”
Montero v. State, 3D16-0392 (Fla. 3d DCA July 26, 2017) Where the evidence shows that the defendant tells the victim (a nightclub manager) that he is going to kill him, and then almost does so, there is competent substantial evidence to support the jury’s verdict of guilty on a charge of aggravated battery.
Kirkland v. State, 1D15-4751 (Fla. 1st DCA Aug. 10, 2017) “Here, the State charged Kirkland with committing ‘a battery upon Dedrick Hall by Hitting with a Bat, a deadly weapon.’ That is, the State charged Kirkland with aggravated battery with a deadly weapon. Because Kirkland was only charged with aggravated battery using a deadly weapon, it was fundamental error, in this specific context, to convict him of felony battery.”
AMENDMENTS TO THE FLORIDA EVIDENCE CODE-
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) The Court adopts sections 1 and 2,Laws of Florida (Daubert amendments), which amended sections Testimony by experts and Basis of opinion testimony by experts of the Florida Evidence Code to replace the Frye standard for admitting certain expert testimony with the Daubert standard.
Morris v. State, 1D17-552 (Fla. 1st DCA Oct. 6, 2017) “Just as parents are privileged to administer corporal discipline to their children and touch them non-abusively against their will, ‘the law permits, by privilege, a simple battery in the administration of discipline by [other persons with] authority over a child.’ …This parental corporal discipline privilege extends specifically to teachers and school personnel acting in loco parentis, negating their potential liability for committing simple battery.”
J.J. v. State, 170 So.3d 861 (Fla. 3rd DCA 2015) A witness’s in court description of actions depicted in a video recording is content based testimony that violates the best evidence rule when offered to prove a crime without introduction of the video in evidence. However, testimony describing events that were observed live and recorded do not violate the best evidence rule, even if the recording is not admitted into evidence.
Fajardo v. State, 4D14-3770 (Fla. 4th DCA June 8, 2016) Reversing a conviction and sentence for attempted second degree murder and remanding for a new trial, the trial court improperly precluded the defendant from questioning a key state witness about his detention at an immigration detention facility when, during an interview with a detective, he identified the defendant from a photo lineup.
Aguilar v. State, 3D13-2167 (Fla. 2d DCA Jan.17, 2018) A trial court does not err in denying a motion to suppress the results of a warrantless blood alcohol test where the defendant is in a medically induced comma. Where the defendant is already convicted of DUI manslaughter, additional convictions for DUI causing serious bodily injury and DUI causing damage to person or property violate the prohibition against double jeopardy.
Turner v. United States, 15-1503 (June 22, 2017) A petitioner is not entitled to Brady relief where there is not “reasonable probability” that the withheld evidence would have changed the outcome of the trial.
S.P. Ex. Rel. R.P. v. Vecchio, 162 So.3d 75 (Fla. 4th DCA 2014) The State is charged with constructive knowledge and possession of evidence withheld by state agents, including law enforcement officers.
Sammiel v. State, No. 4D15-3310 (Fla. 4th DCA July 12, 2017) Officers had reasonable suspicion to stop defendant’s van under totality of circumstances, which included BOLO based on physical description from 911 call given by citizen witness who had no interest in the situation and was fully cooperative with law enforcement, fact that there were virtually no other cars on road at time BOLO went out, fact that witness told law enforcement that there were at least three people in vehicle and was able to identify vehicle’s direction of travel, and fact that law enforcement stopped vehicle within 10 minutes of BOLO and less than 5 miles away from where van was initially spotted — No error in denying motion to suppress
Guzman v. Junior, 211 So.3d 1098 (Fla. 3rd DCA 2017) Trial court improperly denied defendant’s request for bond and ordered defendant to be held without bond after defendant failed to appeared in court and was arrested on an alias capias warrant, by failing to conduct a sufficient hearing, and by failing to make requisite findings that defendant willfully violated condition of his pretrial release and that no condition of release could reasonably protect community from risk of physical harm or assure defendant’s presence at trial.
State v. Lawrence, 4D16-3693 (Fla. 4th DCA May 24, 2017) The court erred as a matter of law when it found section 903.0351(1)(b) unconstitutional and unenforceable. Because there is no constitutional right to bail pending a violation of probation hearing, there can be no constitutional infirmity in not providing a procedure for seeking bail. Similarly, the failure to explicitly state that arrests pursuant to the statute be lawful and with probably cause does not render the statute unconstitutional as every statutory authorization of arrest implicitly requires the arrest be lawful and with probable cause.
Thomas v. State, 208 So.3d 326 (Fla. 5th DCA 2017) Trial court was required to conduct a pretrial release hearing and grant defendant’s request for bond, in prosecution for attempted second-degree murder with a firearm, possession of a firearm by a convicted felon, carrying a concealed firearm, and possession of cocaine, where none of the charged offenses were capital felonies or life felonies and the state did not move for pretrial detention.
Davis v. State, 162 So.3d 91 (Fla. 4th DCA 2014) Rule providing that if the defendant remains uncharged the court on the 30th day shall, if good cause is shown by the State, order that the defendant automatically be released on his own recognizance on the 40th day unless the State files formal charges by that date, requires that the order provide for the defendant’s automatic release unless the State files formal charges by the fortieth day from arrest, and the rule requires that the order include this directive, regardless of whether a hearing is held. In fact, the rule does not require another hearing and order to authorize release once the State has been noticed of the passage of the thirty day time period.
Medina v. State, 4D15-4134 (Fla. 4th DCA Jan. 5, 2016) Where a circuit court revoked the petitioner’s bond and ordered pretrial detention based solely on the pretrial release officer’s affidavit stating only that the petitioner, while on pretrial release, had been charged in a Miami-Dade County case with driving while license suspended, without stating any facts establishing probable cause for the new charge, the affidavit is insufficient to revoke pretrial release and order pretrial detention.
I.L. v. State, 3D17-1108 (Fla. 3d DCA Feb. 21, 2018) Where the building at issue was under construction and had no roof, the structure requirement of burglary of a structure (FS 810.02(2)(4)(a)) is not satisfied.
Grandison v. State, 160 So.3d 90 (Fla. 1st DCA 2015) Circumstantial evidence was insufficient to support defendant’s convictions of burglary of an unoccupied convenience store and criminal mischief, although eyewitness saw defendant pick up two men outside store and defendant jumped out of moving vehicle to flee from police. Gloves and crowbars found in defendant’s vehicle were not established to have been used in burglary by DNA or fingerprint evidence. DNA from a ski mask in vehicle identified defendant as a possible DNA contributor but eyewitness did not see either man at scene wearing a mask and no evidence indicated defendant was physically at store when burglary and criminal mischief allegedly occurred. Circumstantial evidence was insufficient to support defendant’s conviction of possession of burglary tools, where neither DNA nor fingerprint evidence connected mask, gloves, and crowbar found in defendant’s vehicle to convenience store burglary.
Vagansbeke v. State, No.5D16-2688 (Fla. 5th DCA June 2017) Drugs seized from vehicle passenger’s person during traffic stop — There was no reasonable suspicion to search vehicle in which defendant was a passenger based on canine alert to presence of drugs inside vehicle — There was reasonable suspicion to search defendant’s person based on the unusual manner in which she adjusted her clothing as she exited the vehicle — Traffic stop was not unnecessarily prolonged in order to conduct dog sniff under circumstances where canine arrived approximately nineteen minutes into stop, and officer had not finished writing traffic citation when dog sniff began.
CARRYING CONCEALED FIREARM
Jackson V. State, 4D18-3021 (Fla. 4th DCA January 2020). An element of the crime of carrying a concealed weapon is that the defendant was not licensed to carry a concealed weapon. Burden of proof on this element is on the State, rather than on the Defendant to assert as an affirmative defense. Fundamental error occurs when information fails to allege that the Defendant was not licenced and objected to jury instructions do not mention the element.
Brunson v. State, 211 So.3d 96 (Fla. 4th DCA 2017) At time of defendant’s encounter with police, his firearm was not “readily accessible for immediate use” within meaning of statute providing that it is lawful for a person to possess a concealed firearm for self-defense or other lawful purpose within interior of a private conveyance, without license, if the firearm is not readily accessible for immediate use, and thus, defendant could not be convicted of carrying a concealed firearm when the police subsequently found the firearm underneath the front seat of the car after the defendant informed the police as such at a place away from the car.
Carpenter v. State No. SC15-2125 (Fla. June 29, 2017) Good faith exception to warrant requirement — In conducting warrant-less search of cell phone, officers could not rely in good faith on district court of appeal decision which was under review by Florida Supreme Court
State v. K.C., 207 So.3d 951 (Fla. 4th DCA 2016) A warrant was required to search defendant’s password protected cell phone that was left in a stolen car and that was not claimed by anyone at the police station. The quantitative and qualitative nature of the information contained on the cell phone set it apart from other physical objects, even locked containers. A categorical rule permitting warrantless searches of abandoned cellphones, the contents of which are password protected, violates the Fourth Amendment.
State v. Stahl, 206 So.3d 124 (Fla. 2nd DCA 2016) Requiring the defendant who was charged with video voyeurism to produce the passcode to unlock his cell phone did not compel defendant to communicate information that had testimonial significance under the Fifth Amendment’s protection against self-incrimination. Providing the passcode would not be an acknowledgment that the phone contained evidence of video voyeurism, and the state had a warrant to search the phone. In order for the foregone conclusion exception of the Fifth Amendment privilege against self-incrimination to apply, the state must show with reasonable particularity that at the time it seeks the act of production, it already knows the evidence sought exists, the evidence is in the possession of the accused, and the evidence is authentic. Where the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination applies to a requested act of production, the question is not of testimony but of surrender.
Lanier v. State, 264 So.3d 402 (Fla. 1st DCA 2019) For purposes of a charge of neglect of a child, culpable negligence means more than a failure to use ordinary care. For purposes of a charge of child neglect, culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.
Smith v. State, 170 So.3d 745 (Fla. 2015) Where the only proof of guilt is circumstantial, no matter how h2ly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. Appellate courts will sustain a conviction based solely on circumstantial evidence so long as the evidence is: (1) consistent with the defendant’s guilt, and (2) inconsistent with any reasonable hypothesis of innocence.
Stephens v. State, 44 Fla. L. Weekly D1308a (1st DCA 5/16/19) Theory that evidence of the burglary is too circumstantial to sustain a conviction because someone else might have committed the burglary and put the stolen items in the car occupied by the defendant is too far-fetched to compel the court to grant a motion for judgment of acquittal.
Williams v. State, 209 So.3d 543 (Fla. 2017) In capital murder trial, permitting prosecutor’s comments during voir dire, the jury had justice for the victim and the victim’s family, in its hands and that “justice for a little old lady” was at stake, is improper. Prosecutor’s comments during closing argument of guilt phase of capital murder trial, insinuating that defendant sexual battered victim, were improper, since evidence of sexual misconduct was insufficient to allow prosecutor to insinuate it occurred, and state never charged defendant with sexual offense. This is true even though defendant’s DNA was found in victim’s underwear.
McCray v. State No. 2D17-332 (Fla. 2nd DCA Aug. 4 2017) Where defendant has been adjudicated incompetent to proceed, trial court thereafter ordered a continuing program of conditional release, and appellate court, on certiorari review, that held that, as a matter of statutory text, defendant was ineligible for placement on conditional release under section 916.17, trial court was not prevented from imposing appropriate release conditions pursuant to rule 3.2129(d) following remand – Neither law of the case doctrine nor res judicata doctrine prevented state from seeking conditions of release under rule 3.212(d) for the first time on remand.
Miller v. State, 161 So.3d 354 (Fla. 2015) Defendant may waive right to conflict free counsel and this waiver will be affirmed when record indicates that defendant: (1) was aware of the conflict of interest; (2) realized conflict could affect defense; and (3) knew of the right to obtain other counsel.
Joshua v. State, 205 So.3d 851 (Fla. 4th DCA 2016) When asserting that disclosure of identity of a confidential informant is necessary to establish a specific defense, defendant must assert a legally recognized defense to the crime charged, support that defense with sworn proof, and show that the confidential informant is a material witness to the defense. When the defendant comes close to, but technically falls short of, establishing that disclosure of identity of a confidential informant is necessary to establish a specific defense, the trial court is nonetheless required to order the state to produce the confidential informant for the court’s in camera review to determine if the informant is a helpful witness to the defense being raised by the defendant.
CONSCIOUSNESS OF GUILT
Allen v. State 4D13-4459 (Fla. 4th DCA May 25, 2016) The police did not tell the defendant that he was required to submit to a DNA swab or that his refusal could be used against him; instead, the defendant was given the impression that the test was optional and that refusal did not carry any adverse consequences. In fact, both detectives went so far as to tell the defendant that it was his ‘right’ to refuse to submit a DNA swab. Further, … the defendant here was not told that he had no choice but to submit to the test, or that if he refused, he could lose some privilege. Thus, we are compelled to follow Herring and Menna and hold that it was error to admit the defendant’s pre-arrest refusal to submit to a DNA swab.
CONSENT JURY INSTRUCTION
Faulk v. State, D (Fla. 1st DCA June 19, 2017) A trial court’s failure to instruct the jury on his affirmative defense of consent to enter the victim’s vehicle amounted to fundamental error.
Fletcher v. State, 168 So.3d 186 (Fla. 2015) There must be a meaningful relationship between or among charges before they can be tried together. Crimes must be linked in some significant way before they can be tried together. Whether acts or transactions are connected, so as to support the offenses being tried together, is considered in an episodic sense and courts may consider whether the acts or transactions are temporally or geographically associated, the nature of the crimes, and the manner in which they are committed. Interests in practicality, efficiency, expense, convenience and judicial economy of consolidating offenses do not outweigh a defendant’s right to a fair determination of guilt or innocence.
George v. State, 208 So.3d 838 (Fla. 5th DCA 2017) Evidence was insufficient to support defendant’s conviction for conspiracy to sell or deliver cocaine within a 1000 feet of a park. Other than the fact that defendant went to two houses and returned with crack cocaine used to consummate the transaction with the confidential informant, there was no evidence of any meetings, conversations, or pre-arrangements from which the jury could infer the existence of an agreement between defendant and unnamed or unknown persons to commit a criminal offense.
United States v. Louis No. 1:15-cr-20761-DMM-2 The trial court erred in denying Louis’ motion for acquittal. The government failed to prove that Louis had knowledge that the boxes placed in the backseat of his car contained a controlled substance. “Louis’s flight might be persuasive evidence that he knew the boxes contained contraband illegal under some law. But the evidence is not enough to prove that Louis knew the boxes contained a controlled substance.” The government presented no evidence of any conversation in which Louis was informed of a plan regarding a controlled substance. Court rejects the government’s application of the entrustment theory because Louis’ presence with the boxes was only brief.
Sanders v. State, 2D15-2360 (Fla. 2d DCA Feb. 8, 2017) Close proximity to contraband and unusual behavior is insufficient to establish constructive possession of contraband. The State’s evidence established only that the contraband was within Sanders’ ready reach not that it was under his control.
Thompson v. State, 172 So.3d 527 (Fla. 3rd DCA 2015) Constructive possession may not be present when a knife or other weapon is found in a dormitory room occupied only by the defendant if, prior to the weapon being located, other people were occupying the same room.
R.C.R. v. State, 174 So.3d 460 (Fla. 4th DCA 2015) Evidence in juvenile delinquency case did not show juvenile’s actual or constructive possession of cocaine, which was found in police car, so as to support his conviction for possession of cocaine. There was no testimony that juvenile had the cocaine in his hands or that cocaine was found in container that he was holding or otherwise on his person, deputy said she never saw juvenile with cocaine and the bag of cocaine was not found when juvenile’s pockets were searched or when he was patted down before he was placed in patrol car, and while deputy testified that she checked her police vehicle the morning of her shift and that the contraband was not there, there was no testimony as to when the bag was placed in the car. Multiple officers had access to the back seat of the car during the range of potential time that the bag could have been placed there, and deputy was in control of her vehicle the entire time, making juvenile’s control only jointly held.
Smith v. State, 175 So.3d 900 (Fla. 1st DCA 2015) Evidence was insufficient to prove that defendant had exclusive control over place where ammunition was located in trunk, as required to establish defendant had constructive possession of ammunition by a convicted felon. Defendant was observed sitting in driver’s seat of truck, with a woman sitting in passenger seat, officer testified that bag containing ammunition, which was in plain view, was closer to passenger’s seat than driver’s seat, there was no evidence defendant purchased the ammunition nor placed it in the truck, and defendant was not the owner of the truck.
Kemp v. State, 166 So.3d 213 (Fla. 1st DCA 2015) Evidence was insufficient to establish defendant constructively possessed firearm found in the center console of rented car, even though a rental car agreement in defendant’s name was found in the glove compartment and a receipt for payment of a cellular telephone bill with defendant’s name was found in the center console, as required to establish conviction for possession of a firearm by a convicted felon. No one was in or near the rental car when police arrived at the residence, the console was closed when police searched the car, defendant presented evidence that another drove the rental car during the several days the defendant had the car, and no one could say who drove the car to the residence on the day of the search.
Smith v. State, 170 So.3d 745 (Fla. 2015) If the motion for continuance concerns the absence of a witness, the defendant must show (1) prior due diligence to obtain the witness’s presence; (2) substantially favorable testimony would have been forthcoming; (3) the witness was available and willing to testify; and (4) the denial of the continuance caused material prejudice.
Hill v. State, 157 So.3d 481 (Fla. 2nd DCA 2015) Trial court abused its discretion in denying probationer’s motion for continuance of revocation of probation hearing so he could hire private counsel, where only one month had passed since probationer’s arrest, probationer only had one prior court appearance, probationer’s motion was not a stalling tactic, and no injustice or prejudice to the state would have resulted had the trial court granted the continuance.
J.B. v. State, 166 So.3d 813 (Fla. 4th DCA 2014) Before a confession or admission against interest may be received in evidence, the state has to prove: (1) that a crime of the type charged was committed; and (2) that the crime was committed through the criminal agency of another. State must present evidence of the corpus delicti of a crime, namely the legal elements necessary to show a crime was committed, before the defendant’s confession to that crime may be admitted.
N.G.S. v. State, 44 Fla. L. Weekly D1316a (2nd DCA 5/17/19) Corpus Delicti bars evidence of Child’s confession to owning a gun found in a car occupied by the Child and two other people, not all of whom had been adjudicated delinquent. “If all of the occupants of the car in which the gun was found had previously been found to have committed delinquent acts. . .this would be a no-brainer affirmance. . .[H]owever, . . .this is one of those uncommon cases where. . .proof of the identity of the person who committed the offense was necessary to prove that a crime was committed at all.”
CREDIT TIME SERVED
McCool v. State, 211 So.3d 304 (Fla. 1st DCA 2017) A defendant is entitled to an award of credit for all times spent in the county jail prior to sentencing in a violation of probation case, which includes all time spent in the county jail prior to the original sentencing plus all time spent in the county jail prior to any subsequent violation sentencings.
Valdespino v. State, 209 So.3d 64 (Fla. 3rd DCA 2016) If a defendant has not received a jail credit for time spent in jail after sentencing, he may submit his request for this additional time to the Department of Corrections. If he is unsuccessful in obtaining the requested relief, and he exhausts his administrative remedies, he may than seek mandamus relief.
Recco v. State, 264 So.3d 273 (Fla. 5th DCA 2019) Cross examination is not confined to the identical details testified to in chief but extends to its entire subject matter and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief.
Teachman v. State, 264 So.3d 242 (Fla. 1st DCA 2019) A defendant’s right to full and fair cross examination, guaranteed by the Sixth Amendment, may limit rape shield law’s application when evidence of the victim’s prior sexual conduct is relevant to show bias or motive to lie.
Medina v. State, 2D15-654 (Fla. 2nd DCA Aug. 30, 2017) Reversing judgment and sentence for neglect of a child causing great bodily harm in violation of section 827.03, Florida Statutes (2012), the defendant’s conduct in allowing a four-year-old child to descend a flight of stairs unassisted—stairs that the child had regularly traversed previously without significant incident—did not rise to the level of culpable negligence or a willful failure to care for the child’s well-being.
Millette v. State, 1D15-2150 (Fla. 1st DCA July 26, 2017) Where the state fails to disclose an expert witness in discovery and the witness testifies (over objection) that a physical examination of the victim likely would not have shown signs of sexual abuse, the defendant is entitled to a new trial on a charge of sexual battery by a person in a position of familial custody.
Ward v. State, 165 So.3d 789 (Fla. 4th DCA 2015) State must designate, in discovery, the expert status of a police officer who will testify as an expert as a category A witness. State’s reference to “listed police officers” in portion of exhibit relating to reports or statements of experts was insufficient to comply with its discovery obligation regarding the designation of detective as an expert witness. The state’s burden to show that a discovery violation is harmless is extraordinarily high.
DISCOVERY- ALIBI & RESULTED WITNESS
Wilson v. State, 261 So.3d 723 (Fla. 1st DCA 2018) The state is required to disclose both alibi witnesses and rebuttal alibi witnesses as well as expert witnesses who have not provided a written report and curriculum vitae or who are going to testify. There was reasonable probability that defendant’s trial preparation or strategy would have been materially different had state disclosed its intend to utilize export testimony in rebuttal prior to defense resting its case in trial for burglary and armed robbery, and thus error in failing to disclose rebuttal witness prior to trial was not harmless. Defendant had previously retained expert who concluded cell phone records were inconclusive which would have contradicted testimony of state’s expert, but defendant chose not to call this witness based at least in part on his belief the state would not be calling expert witness in rebuttal.
DEALING IN STOLEN PROPERTY
Rodriguez v. State, 2D16-271 (Fla. 2d DCA Dec. 6, 2017) After the defendant stole farm-grade herbicide, the State charged the defendant with dealing in stolen property. During closing, the State argued that the defendant “made a phone call initiating the chain of events; the getting of that herbicide; and that then the defendant purchased that with the intent to use it. You heard about his farm, his equipment and he was using it.” On appeal, the State acknowledges that although there was no evidence that Rodriguez sold the herbicide to another person, Rodriguez trafficked by using the herbicide for a commercial farming project and thereby placing it “into the stream of commerce.” The Second DCA reversed and held that the evidence was insufficient to establish the trafficking elements of the offense. “If Rodriguez organized the theft with the actual intent to use the herbicide on his own farm, his ‘intent to personally put the stolen items to their normal use of consumption, constitutes only the crime of theft and not the crime of dealing in stolen property.”
DNA – EXPERT TESTIMONY
Cruz v. State, 262 So.3d 244 (Fla. 2nd DCA 2018) Although a witness need not be a statistician or a mathematician to testify as an expert about the statistical significance of a DNA match, the witness must demonstrate a sufficient knowledge of the population database grounded in the study of authoritative sources.
Domingues v. State, 159 So.3d 1019 (Fla. 4th DCA 2015) Report of a domestic disturbance call from residence did not provide police officer with reasonable suspicion sufficient to support stop of defendant’s automobile as he drove away from the residence, even if such call was frequently used for incidents of domestic violence. Domestic disturbance call did not necessarily indicate commission of a crime.
Batchelor v. State, 2D15-308 (Fla. 2d DCA June 15, 2016) Separate convictions for traveling to meet a minor and unlawful use of two-way communications device violated the prohibition against double jeopardy where the offenses were part of a single criminal episode and the information did not predicate the charges on two distinct acts.
Griffith v. State, 208 So.3d 1208 (Fla. 5th DCA 2017) If based on the same conduct, the charge of traveling to meet a child for sex after soliciting the child by computer subsumes the charge for using a computer to solicit a child, which is a lesser included offense.
Thomas v. State, 209 So.3d 35 (Fla. 2nd DCA 2016) Convictions for traveling to meet a person to solicit a child to commit a sexual act and using a computer to solicit a person to commit a sexual act on a child encompassed the same criminal conduct and thus violated the constitutional prohibition against double jeopardy. Defendant was searching for a sexual liaison on social media when he happened across a posting from what turned out to be an undercover law enforcement agent posing as the online mother to fictional, minor-aged children, and there was no temporal break between defendant’s sustained and increasingly lurid text messages and online communications soliciting the agent and defendant’s driving to meet the agent at an agreed upon location.
State v. Shelley, SC14-755 (Fla. June 25, 2015) Approving of Shelley v. State, 134 So. 3d 1138, 1141-42 (Fla. 2d DCA 2014) and disapproving State v. Murphy, 124 So. 3d 323, 330 (Fla. 1st DCA 2013), separate convictions under different subsections of Computer Pornography and Child Exploitation Prevention Act, prohibiting solicitation and traveling after solicitation, violate double jeopardy principles prohibiting separate convictions based upon the same conduct.
Hamilton v. State, 163 So.3d 1277 (Fla. 1st DCA 2015) Duel convictions for traveling to meet a minor and unlawful use of a two way communication device, arising from defendant’s arranging via cell phone to meet an undercover officer who was posing as a fourteen year old girl violated double jeopardy.
Snow v. State, 157 So.3d 559 (Fla. 1st DCA 2015) Defendant’s convictions for using a computer service to solicit a child to engage in sexual conduct and traveling to meet a minor to do unlawful acts, arising out of the same criminal episode, did not violate double jeopardy.
Mitchell v. State, 44 Fla. L. Weekly D1294a (4th DCA 5/15/19) Where Court modified probation to require drug treatment upon the Defendant’s testing positive for marijuana, the defendant cannot be later accused of violating probation on the basis of that positive test. Since Defendant’s probationary sentence had already been enhanced for the same violation of this condition, a second enhancement or punishment based upon the same violation would impose multiple punishments for the same offense.
Breland v. State, 44 Fla. L. Weekly D1291a (4th DCA 5/15/19) Multiple convictions for leaving the scene of an accident in which 3 cars were hit does not violate double jeopardy since the crashes happen seconds apart and at different locations in the parking lot.
Doyle v. State, 5D17-686 (Fla. 5th DCA Feb. 23, 2018) The evidence adduced at trial was that Doyle sent a handwritten letter to his pastor, threatening “a slow and painful death” for the pastor’s children and their families if the pastor failed to deliver $15,000 to Doyle or if he notified the police. Under the circumstances, dual convictions and sentences for extortion under section 836.05, Florida Statutes (2015), and written threats to kill or do bodily injury under section 836.10, Florida Statutes (2015), violate double jeopardy.
Freeman v. State, 262 So.3d 863 (Fla. 2nd DCA 2019) Dual convictions for both scheme to defraud and grand theft violate double jeopardy when the convictions are based on the same course of conduct where the same evidence that defendant used a debit card to access victim’s funds 21 times over a period of three weeks without his permission was used to support both convictions.
DOUBLE JEOPARDY- STALKING
Jacobs v. State, 44 Fla. L. Weekly D1313a (2nd DCA 5/17/19) Dual convictions for violation of injunction for stalking are not barred by double jeopardy where there are two distinct acts, here, first yelling at the Victim from across the street and then, after police arrived, yelling “Bitch, I’m coming to get you” while pounding on his chest with both fists.
Grimes v. State, 208 So.3d 323 (Fla. 1st DCA 2017) When defendant and the state stipulated that defendant’s motion to dismiss was dispositive and defendant reserved his right to appeal the denial of his motion after pleading guilty, District Court of Appeal would accept the parties’ stipulation and address the merits of the confession issue that defendant and the state deemed dispositive, rather than independently determine that the issue was nondispositive and dismiss the appeal.
Kovalski v. State, 4D15-3916 (Fla. 4th DCA May 31, 2017) A trial court reversibly errs by disregarding unrequited expert testimony that “Avoidant Personality Disorder” is a mental illness within the meaning of the downward departure sentencing statute, Fla. Stat. 921.0026.
Romans v. State, 4D14-4817 (Fla. 4th DCA May 31, 2017) When determining whether a criminal act is committed in a sophisticated manner, a trial court applies the wrong standard but looking solely to the severity of the victim’s injuries. The nature of the victim’s injuries does not go to the issue of whether the offense was “artless, simple, and not refined”. The court further errs by considering whether the defendant engaged in “several distinctive and deliberate steps.” And although the defendant presented testimony from an ASA that he cooperated in another case, a trial court errs by requiring the testimony of a law enforcement officer in order to depart. (But because the defendant’s cooperation did not resolve an offense, as testified to by the prosecutor, a departure was not authorized.)
Reed v. State, 2D15-1458 (Fla. 2d DCA May 27, 2016) A circuit court erred when it sentenced a professional dog fighter [11 counts of animal fighting and baiting, 11 counts of animal cruelty] to an upward departure sentence of 25 years imprisonment without making adequate findings that the defendant’s sentence to a nonstate prison sanction could have presented a danger to the public, as required by section 775.082(10). Thus, the sentence must be reversed and remand to the circuit court with instructions that the defendant be resentenced to a nonstate prison sanction.
State v. Centeno, 5D14-4664 (Fla. 5th DCA June 3, 2016) A trial court errs by imposing a downward departure sentence for burglary of a dwelling and petit theft where: Isolated Incident: The offense could not be considered an isolated offense where the defendant had been convicted of seven prior misdemeanors and three felonies; Unsophisticated: The defendant admitted to seeking items that would garner more money when pawned and he the garage to steal the items twice; and Remorse: Although the defendant entered a plea of no contest, he refused to admit that he took the items.
Concha v. State, 4D16-2046 (Fla. 4th DCA Aug. 16, 2017) A trial judge committed fundamental error when he implied that he would not, as a general policy, consider the defendant’s mental health needs as a basis for downward departure. Reversed and remanded for resentencing before a different judge.
State v. Johnson, 2D16-1819 (Fla. 2d DCA Aug. 16, 2017) While competent substantial evidence supported the trial court’s downward departure sentence for sentence manipulation, the trial court erred by imposing a sentence below the lowest permissible sentence if only the first of give charges had been scored.
DRIVING WITH A SUSPENDED LICENSE
State v. Laina, 5D14-4469 (Fla. 5th DCA Sept. 11, 2015) A trial court errs in granting a motion to suppress where the knows that the registered owner (rather than the driver) of the car has a suspended license and conducts the traffic stop to investigate. “The relevant probability here is that most vehicles are driven by their owners, most of the time. As such, once Officer Bruns discovered that the owner of the vehicle he was following had a suspended driver’s license, this ‘articulated fact’ gave him a ‘founded suspicion’ that the driver might be driving illegally.”
Prater v. State, 161 So.3d 489 (Fla. 5th DCA 2014) License suspension, knowledge of the license suspension, and actually driving are the requisite elements of the crime of driving while license suspended.
Wilder v. State, 1D14-5705 (Fla. 1st DCA June 15, 2016) The liquid by-product from the manufacture of the methamphetamine is properly included when calculating the weight of the methamphetamine for purposes of meeting the threshold weight for trafficking.
Fletcher v. State, 168 So.3d 330 (Fla. 1st DCA 2015) Testimony that church services were held regularly at time of trial was not sufficient evidence of regularly conducted religious services at time of offense, which was approximately six months prior to trial, in prosecution for possession of cocaine within a thousand feet of a church and possession of cocaine with intent to sell within a thousand feet of a church.
Lemaster v. State, 162 So.3d 56 (Fla. 4th DCA 2014) To convict a defendant of sale or possession with intent to sell a controlled substance within a thousand feet of a church, the state must present evidence establishing that, during the time frame when the offense occurred (not the trial) religious services being conducted.
DRUG OFFENDER PROBATION
Orr v. State, 206 So.3d 120 (Fla. 2nd DCA 2016) Resisting an officer with violence is a forcible felony and it therefore does not constitute a nonviolent felony that qualifies for drug offender probation.
Juvenile entitled to judgement of dismissal on two counts of possession of drug paraphernalia where evidence failed to establish that residue on alleged paraphernalia was a controlled substance.
Oyler v. State, 162 So.3d 200 (Fla. 5th DCA 2015) Defendant who asserted entrapment defense, should not have been precluded from offering evidence that he had never been arrested in prosecution for use of a computer to lure minor to commit unlawful sexual conduct. Evidence of lack of prior criminal history was relevant to entrapment defense.
Roman v. State, 165 So.3d 723 (Fla. 4th DCA 2015) If there is any possibility of a tendency of evidence to create a reasonable doubt, the rules of evidence are usually construed to allow for its admissibility.
Newton v. State, 160 So.3d 524 (Fla. 5th DCA 2015) When the state opens the door, the defense can introduce otherwise inadmissible evidence to prevent the jury from being misled. The rule of completeness allows a court to admit a defendant’s out of court statement when a witness has testified to incriminating statements contemporaneously made by the defendant.
McCloud v. State, 208 So.3d 668 (Fla. 2016) Murder defendant was entitled to expert witness testimony regarding the phenomena of false confessions, how to recognize them, and how, based on diagnostic testing, defendant’s statement to police was involuntary. Expert’s testimony showing that defendant was vulnerable to being induced to falsely confess to a crime required specialized knowledge. A false confession expert can play an important role in explaining to the jury that a phenomenon that causes innocent people to confess to a criminal offense exists, and the parameters which one can evaluate a confession to demonstrate its veracity.
FAILURE TO MAINTAIN A SINGLE LANE
Peeples v. State, 2D14-1009 (Fla. 2d DCA Sept. 3, 2015) The State concedes that the trial court erred in denying Mr. Peeples’ motion to suppress because the stop of his car was unauthorized—law enforcement did not have a reasonable safety concern based on Mr. Peeples’ one failure to maintain a single lane that did not endanger the deputies or anyone else.
FELON IN POSSESSION OF A FIREARM
Finley v. State, 139 So.3d 940 (Fla. 4th DCA 2014) Evidence was not sufficient to support defendant’s conviction for being felon in possession of a firearm although handgun was found in defendant’s apartment and his DNA was on the handgun and magazine, state’s witness could not determine when the DNA was put on the gun, and even more significantly, she testified that secondary DNA transfer was possible, and since there was additional inferences needed, that defendant’s DNA was put on the gun by him, and that it was put under the mattress by him, in order to believe that defendant possessed handgun, the DNA evidence was circumstantial, and defendant’s theory was that it was the burglar, who put the handgun in his apartment, and state did not present any evidence inconsistent with this theory.
Greenlee v. State, 40 Fla. L. Weekly D718b (Fla. 1st DCA 2015) Greenlee was convicted of four counts of possession of any firearm by a convicted felon under section 790.23(1), Florida Statutes. Each count was based on firearms possessed during the same event. Three of the convictions violate double jeopardy principles. The court vacated the convictions and sentences for three counts, vacated the sentence on the remaining count, and remanded for resentencing on that count. The court affirmed the remaining issues.
Floyd v. State, 159 So.3d 987 (Fla. 1st DCA 2015) Every post arrest silence is ambiguous because of what the state is required to advise the person arrested, and it would be fundamentally unfair and a depravation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial by the defendant.
FINAL ARGUMENT – PROSECUTORS
Moss v. State, 169 So.3d 223 (Fla. 1st DCA 2015) A comment by a prosecutor that the defendant has not before offered the explanation of events he offers at trial, as an exercise of his right to remain silent, is improper.
McDowell v. State, 162 So.3d 124 (Fla. 4th DCA 2014) The prosecution’s closing argument remarks, which suggested that there were other witnesses who would corroborate the State’s case, were improper, and were not harmless.
Constant v. State, 139 So.3d 479 (Fla. 3rd DCA 2014) Prosecutor’s improper comments during closing argument in robbery trial that jury had promised to convict defendant if there was a single credible witness and that prosecutor believed defendant committed the crime was not harmless error. The state’s improper closing argument, during which the prosecutor stated that the non-testifying victim would have testified “to exactly the same things” she said in her telephone call for emergency assistance, was not harmless.
FLEE AND ELUDE
Canidate v. State, 4D16-4162 (Fla. 4th DCA Feb. 14, 2018) The mere fact that the Defendant “weaved,” without more, is insufficient to show a conscious and intentional indifference to consequences in order to sustain a conviction for high speed or wanton fleeing pursuant to F.S. 316.1935(3)(a) (2016).
Brevard County Sheriff’s Office v. Brown, 208 So.3d 1281 (Fla. 5th DCA 2017) Owner’s car was subject to forfeiture since pipe located in car tested positive for methamphetamine. Positive results from a field test furnished sufficient proof as to the existence of the presence of contraband.
Agresta v. City of Maitland, 159 So.3d 876 (Fla. 5th DCA 2015) Civil forfeiture of defendant’s home under Contraband Forfeiture Act following defendant’s convictions for cultivating cannabis, stealing electricity, and misdemeanor possession of cannabis, all of which occurred in home, violated Eighth Amendment’s excessive fines clause. The value of the home was between $238,000 and $295,000. Defendant faced eleven year maximum prison sentence and $11,000 maximum fine and there was no indication that defendant caused harm beyond his commission of offenses.