Florida Criminal Case Law Topics: L-P

LAUTENBERG AMENDMENT

United States v. Gill, 16-11306 (11th Cir. July 27, 2017) Because Florida law prohibited the defendant from possessing a certain firearm, the government was not required to show that the firearm moved in interstate commerce under USSG 2K2.1(b)(1)(B) (directs district courts to increase by four levels the offense level of defendant convicted of unlawful possession of a firearm if the offense involved eight to twenty-four firearms).

LAUTENBERG AMENDMENT

United States v. Gill, 16-11306 (11th Cir. July 27, 2017) Because Florida law prohibited the defendant from possessing a certain firearm, the government was not required to show that the firearm moved in interstate commerce under USSG 2K2.1(b)(1)(B) (directs district courts to increase by four levels the offense level of defendant convicted of unlawful possession of a firearm if the offense involved eight to twenty-four firearms).

LEAVING THE SCENE OF AN ACCIDENT

State v. Dorsett, 158 So.3d 557 (Fla. 2015) In prosecution under hit and run statute, state must prove beyond a reasonable doubt that driver had actual knowledge of crash, as an essential element of the crime of leaving the scene of an accident. Hit and run statute expressly provided that felony criminal violation required that driver had willfully violated statute and willful violation would be established only if driver had actual knowledge that the crash occurred.

McGowan v. State, 139 So.3d 934 (Fla. 4th DCA 2014) Evidence was insufficient to support defendant’s conviction for leaving the scene of a crash involving injury to or death of a person absent evidence that defendant knew or should have known that he hit a person, necessitating his duty to stop, as essential element of crime. When there are multiple impacts, the driver must know of the specific impact that actually resulted in the injury to be convicted for leaving the scene of a crash involving injury or death of a person.

LESSER AND INCLUDED OFFENSES

Wong v. State, 212 So.3d 351 (Fla. 2017) A defendant is entitled to an instruction on the permissive lesser included offense upon the request where two conditions are met: (1) the indictment or information must allege all the statutory elements of the permissive lesser included offense and (2) there must be some evidence adduced at trial establishing all of these elements. Defendant was entitled to the lesser included offense jury instruction for unnatural and lascivious acts after requesting such instruction during his trial for lewd and lascivious molestation and lewd and lascivious battery. The information alleged that defendant made oral and skin contact with sexual organ of another person, victim’s testimony at trial supported allegations, and none of the charges involved sexual intercourse. When a trial court reversibly errs in failing in giving a defendant an instruction on a permissive lesser included offense, the proper remedy is to vacate the judgment of guilt and order a new trial.

Walton v. State, 208 So.3d 60 (Fla. 2016) The trial judge has no discretion in whether to instruct the jury on a necessarily lesser included offense. Once the judge determines that the offense is a necessarily lesser included offense, an instruction must be given. The law requires that an instruction be given for any lesser offense all the elements of which are alleged in the accusatory pleadings and supported by the evidence adduced at trial.

Collier v. State, 159 So.3d 963 (Fla. 2nd DCA 2015) Allegations of information charging defendant with aggravated assault with a deadly weapon warranted jury instruction on lesser included offense of improper exhibition of a dangerous weapon.

LINE UP

Walton v. State, 208 So.3d 60 (Fla. 2016) Police employed an unnecessarily suggestive procedure in obtaining out of court identification of defendant, where detective repeatedly called witness’s attention to the defendant’s picture in photo array without witness having given indication that she recognized the defendant. Her opportunity to see the perpetrator was limited and shaky at best at trial.

LOITERING

Madge v. State, 160 So.3d 86 (Fla. 4th DCA 2015) While the observations of lay persons leading up to the arrival of law enforcement may provide factual background prior wrongdoing cannot establish the basis for a loitering and prowling charge. An officer’s observations are critical to satisfying the state’s burden of proof for the crime of loitering and prowling. Evidence was insufficient to establish that defendant, who reportedly attempted to enter a car of a lay witness in a restaurant parking lot, committed the offense of loitering and prowling. No evidence indicated that responding police officer personally observed any alarming behavior which presented an immediate concern for the safety of persons or property.

MIRANDA

Gordon v. State, 4D14-2901 (Fla. 5h DCA March 8, 2017) The defendant voluntarily turned himself into police over a shooting in another jurisdiction. He sat in a ajail cell for four hours without being interrogated until police from the other jurisdiction arrived. In the interim, two detectives-not correctional guards or deputies- stood watch over the defendant. The defendant was not administered Miranda warnings but “voluntarily” made statements to the detectives. The detectives then wrote down his statements without offering to administer Miranda warnings.

Myers v. State, 211 So.3d 962 (Fla. 2017) Although the four Ramirez factors frame the court’s custody analysis for Miranda purposes, the ultimate inquiry is twofold and focuses on: (1) the circumstance surrounding the interrogation, and (2) given those circumstances, whether a reasonable person would have felt he was not at liberty to terminate the interrogation and leave. Unless and until the Miranda warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of the interrogation can be used against the defendant. Extend to which murder suspect was confronted with evidence of her guilt during two police interrogations weight in favor of finding that she was in custody for Miranda purposes during both interrogations. Aside from law enforcement agents one statement on each occasion that suspect was free to leave, every other fact surrounding the interviews indicated police coercion and custody, including suspect’s placement in a small room and fact that agents confronted her with a “mountain of evidence” accusing her of lying, and used a “good cop/bad cop” technique and it was clear that the purpose of the confrontational and accusatory interrogations was to solicit a confession from the suspect. Defendant should have been read her Miranda rights in this case.

Saunders v. State, 208 So.3d 99 (Fla. 4th DCA 2017) Prior to the point where an informant approached his handler about defendant, any statements defendant made to the informant are not the result of law enforcement intervention for purposes of determining whether a defendant’s statement to a jail house snitch violates a defendant’s Sixth Amendment Right. Statements made by defendant after the informant approached law enforcement and began working on defendant’s case at law enforcement’s behest should not have been admitted as statements violated defendant’s Sixth Amendment Rights. Law enforcement may investigate uncharged offenses against the defendant who has invoked his Sixth Amendment rights in other pending charges however, this that not mean that the government may use a defendant’s statements as obtained during a permissible investigation into an uncharged crime to prove that the defendant is guilty of a charged crime. In other words, if a defendant makes a statement to a jail house informant unrelated to the offense for which he is in jail, statements can be used. They may not be used, however, if the informant has advised law enforcement of his efforts to get defendant to talk and thereafter elicits statements from the defendant on the current, charged offense.

F.C. v. State, 205 So.3d 831 (Fla. 2nd DCA 2016) Like the question of consent to a search, the state bears a heavy burden to demonstrate a waiver of Miranda rights, and this burden is even heavier when subject is a juvenile.

Miller v. State, 208 So.3d 178 (Fla. 1st DCA 2016) The prosecution may not use a defendant’s post Miranda silence for impeachment purposes. However, this prohibition does not apply where the defendant does not invoke his Fifth Amendment privilege against self-incrimination (but only requests counsel).

Reza v. State, 163 So.3d 572 (Fla. 3rd DCA 2015) Although lack of notification of a child’s parents is a factor court may consider in determining voluntariness of a child’s confession, it is not a statutory prerequisite to interrogation.

Somers v. State, 162 So.3d 1077 (Fla. 5th DCA 2015) Officer’s testimony in describing defendant “I remember he didn’t want to speak with me” was an improper comment on defendant’s exercise of his right to remain silent.

Carlisle v. State, 164 So.3d 69 (Fla. 2nd DCA 2015) Due process clause of state constitution prohibits the use of post arrest pre-Miranda silence at trial. Admission of defendant’s statement to detective that “he wasn’t going to tell detective where he got property and wasn’t going to tell on anyone” violated his right to remain silent under Miranda. Statement was made after defendant was arrested and before he was given his Miranda warnings.

Wright v. State, 161 So.3d 442 (Fla. 5th DCA 2014) Fifteen year old defendant’s waiver of Miranda rights following her prior un-Mirandized custodial confession to involvement in a murder was not knowing, intelligent and voluntary. Although officers’ failure to provide proper warnings was an honest mistake and officers did not minimize the significance of Miranda warnings, defendant had little experience with criminal justice system and officers did nothing to counter defendant’s probable and reasonable belief that her prior incriminating statements, made just minutes before, could be used against her.

Salinas v. Texas, 133 S.Ct. 2174 (2013) A defendant’s silence can be held against him and referred to by the prosecution at trial if he remains silent to certain questions pre-arrest and pre-Miranda. This assumes that the defendant is not in custody at the time the statements were made.

Scotsman v. State, 4D15-2729 (Fla. 4th DCA Feb. 21, 2018) Reversing convictions and sentences for three counts of armed robbery and one count of aggravated assault, detectives violated the defendant’s Miranda rights by continuing to engage with him after he invoked his right to counsel, which led to a confession that was used against him at trial.

Shelly v. State, 262 So.3d 1 (Fla. 2018) Police officer’s statements following defendant’s invocation of his right to silence during murder investigation which included a promise to tell defendant what purported alibi witness said telling defendant that his mother was losing another son and telling him there was a difference between death penalty and life sentence, constituted interrogation in violation of Miranda. Officer’s actions were an attempt to use reward and punishment to induce defendant to acquiesce to continued interrogation and were not merely harmless, clarifying questions. A defendant having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him unless the defendant himself initiates further communication, exchanges, or conversations with the police.

MIRANDA – ORAL STATEMENTS

Hanania v. State, 264 So.3d 317 (Fla. 2nd DCA 2019) Oral statements made after an unlawful search or arrest can be suppressed in the same manner as tangible evidence obtained during an unlawful search or arrest where those statements are properly considered fruits of the unlawful search.

MURDER

Landy v. State, 205 So.3d 801 (Fla. 2nd DCA 2016) Defendant who had been sentenced to life imprisonment with parole eligibility after 25 years for murder committed when he was 17 years old was entitled to resentencing after Florida Supreme Court concluded that state’s existing parole scheme did not provide for requisite individual consideration of a juvenile’s status.

Williams v. State, 209 So.3d 543 (Fla. 2017) Admission of medical examiner’s opinion that victim’s cause of death was homicide did not invade the providence of the jury where medical examiner provided opinion based upon her training and experience which assisted jury in understanding the evidence, and medical examiner did not opine as to ultimate question to be determined by the jury, in that medical examiner did not implicate defendant as being guilty of murder.

NEBBIA HOLD

Casiano v. State, 2D17-4150 (Fla. 2d DCA Feb. 14, 2018 Under the Florida constitution, state courts lack authority to detain accuseds for the purpose of inquiring into the source of funds used to post bail as any such inquiry “is for the purpose of ascertaining whether the bail set is sufficient to secure the defendant’s appearance, not to deny him pretrial release.”

NEW TRIAL- STANDARD

Baker v. State, 262 So.3d 241 (Fla. 1st DCA 2018) Unlike a motion for judgment of acquittal, which tests the sufficiency of the evidence, a motion for new trial requires the court to weigh the evidence and determine credibility just as a juror would. When deciding a motion for new trial, the trial court acts as a safety valve where the evidence of guilt is tenuous but technically sufficient to go to the jury.

OPEN TESTIMONY

Heare v. State, 205 So.3d 823 (Fla. 2nd DCA 2016) State’s witnesses may not offer opinions regarding the innocence or guilt of the defendant. This type of testimony is generally excluded on the grounds that its probative value is substantially outweighed by unfair prejudice to the defendant. Sergeants’ testimony that defendant had battered the victim should not have been admitted in felony battery case. His repeated description of defendant’s actions toward the victim as battery essentially told the jury that he believed defendant was guilty of battery and the prejudicial value of this testimony was increased because it was a police officer who offered the testimony.In felony battery case, when during direct examination of sergeant, the state asked the sergeant if the victim had lunged at the defendant or hit the defendant, would sergeant have taken some action against victim, and sergeant replied that victim would have been arrested for battery as well, improperly told the jury that the sergeant believed defendant was guilty or that he arrested the right person.

OPEN VIEW DOCTRINE

Purifoy v. State, 1D14-4007 (Fla. 1st DCA May 25, 2017) Under the open view doctrine, the seizure of the bag of clothing [taken from the foot of a hospital bed] was justified because, even though there was a meaningful interference with [the defendant’s] possessory right, there was probable cause to associate the bloody clothes with criminal activity.

PARAPHERNALIA

J.V. v. State, No. 4D16-442 (Fla. 4th DCA July 5, 2017) The Court reverses J.V.’s adjudications on two separate drug paraphernalia counts because of a “fundamental defect in the petition for delinquency.” At trial, the State prosecuted J.V. on the theory that he used or possessed drug paraphernalia to “pack, repack, store, contain, or conceal” a controlled substance, which would be a violation of § 893.147(1)(a); however, the State did not allege that element in the petition, nor did it cite § 893.147(1)(a).

Conyers v. State, 164 So.3d 73 (Fla. 2nd DCA 2015) A crack pipe may be contraband even if it has never been used.

PLAIN VIEW DOCTRINE

Friedson v. State, 207 So.3d 961 (Fla. 5th DCA 2016) The plain view doctrine applies when: (1) the police view the contraband from a place they have a legitimate right to be; (2) the incriminating character of the contraband is immediately apparent to the viewing police officer; and (3) the police officer has a lawful right of access to the contraband. The plain smell doctrine, under which evidence in plain smell may be obtained without a search warrant, applies only when law enforcement officers detect the odor while occupying a place where they have a legitimate right to be.

Young v. State, 207 So.3d 267 (Fla. 2nd DCA 2016) Guns and cash found pursuant to post-detention warrantless search of defendant’s residence were not admissible under inevitable discovery doctrine in prosecution for possession of a firearm, possession of cannabis, and other crimes, where police did not endeavor to obtain a search warrant at the time the searched defendant’s residence. Plain view doctrine provides that evidence in plain view can be seized without a warrant if (1) officers are in a place that they have a lawful right to be, (2) incriminating nature of evidence is immediately apparent, and (3) officers have a lawful right of access to the object seized.

POSSESSION WITH THE INTENT TO SELL

Thomas v. State, 211 So.3d 410 (Fla. 4th DCA 2017) Evidence was legally insufficient to prove an intent to sell as an element of possession of cocaine with intent to sell even though defendant did not possess any sort of drug paraphernalia for smoking the cocaine and he had over $1000 of cash on his person. Aggregate weight of the cocaine which was 3.5 grams was relatively small, the cocaine was not individually packaged, state’s witness acknowledged that defendant’s possession could have been for personal use, none of the cash was packaged or comingled with the drugs, no evidence connected the money with drug sales, and there was no other suspicious circumstances suggesting an intent to sell.

POST CONVICTION RELIEF

Penton v. State, 262 So.3d 253 (Fla. 2nd DCA 2018) To succeed on a claim of ineffective assistance of counsel, defendant must overcome a h2 presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

Allen v. State, 261 So.3d 1255 (Fla. 2019)

POST CONVICTION RELIEF – FAILURE TO FILE PRETRIAL MOTION

State v. Ellis, 44 Fla. L. Weekly D1280a (3rd DCA 5/15/19) Counsel for the defendant was ineffective for failing to file a pretrial motion to dismiss based on pre-arrest delay resulting in destruction of potentially exculpatory surveillance video recordings.

PRIMA FACIA EVIDENCE

Halliday v. State, 5D15-1803 (Fla. 5th DCA May 27, 2016) Where the only evidence to support a conviction was the victim’s out-of-court statements, which were contradicted by her in-court testimony, a trial court reversibly errs by denying a motion for judgment of acquittal as to a charge of lewd and lascivious molestation.

PRINCIPAL

K.B. v. State, 170 So.3d 121 (Fla. 2nd DCA 2015) Mere presence at the scene of a crime, knowledge of the crime, and even flight from the scene are insufficient to show that a defendant was an aider and abettor. To be a principal to the commission of a crime, one must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime.

Grandison v. State, 160 So.3d 90 (Fla. 1st DCA 2015) Neither mere knowledge that an offense is being committed nor presence at the scene of the crime and flight therefrom are sufficient to establish participation in the requisite intent that the criminal act be done as required to convict under a principal’s theory. To convict under a principal’s theory, the state is required to prove the defendant had a conscious intent and that the criminal act be done and that the defendant did some act or said some word which was intended to and which did insight, cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit a crime.

PRIOR CONVICTIONS

Nock v. State, 211 So.3d 321 (Fla. 4th DCA 2017) Defendant could be impeached with evidence of his nine prior felonies and crimes of dishonesty, where defense counsel brought out the exculpatory portions of the defendant’s statement, which supported his defense of the victim’s death being an accident, during cross-examination of the detective. See Florida Statute 90.806(1).

Spradling v. State, 211 So.3d 1144 (Fla. 1st DCA 2017) Trial court erred when it allowed state to impeach defendant by asking him whether any of his prior felonies involved dishonesty or a false statement. Witness may not be impeached with the specifics of prior convictions unless or until he provides false or inaccurate testimony, and witness may not be confronted with the specifics of qualifying prior convictions unless the questioning party has in its possession certified records of the prior convictions available for introduction into evidence.

PRISON RELEASE REOFFENDER

Helms v. State, 44 Fla. L. Weekly D1288a (4th DCA 5/15/19) To qualify as a prison releasee re-offender the Defendant must have been incarcerated in and physically released from a prison, not a county jail.

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