Kearney v. State, 208 So.3d 808 (Fla. 5th DCA 2016) The Felony Reclassification Statute 775.087 specifically precludes reclassification based on the use of a firearm where a defendant is convicted of a crime for which the use of a firearm was and essential element of the offense.
Antoine v. State, 138 So.3d 1064 (Fla. 4th DCA 2014) Victim’s reputation for violence is admissible in self-defense cases regardless of the defendant’s knowledge thereof to demonstrate that the victim was the aggressor. In a self-defense case, evidence of the victim’s character trait of violence may be offered on the issue of who was the aggressor, as showing, or as tending to show, that the defendant acted in self-defense. This is because the evidence is offered to show the conduct of the victim, rather than the defendant’s state of mind. One purpose for offering evidence of the victim’s character trait of violence in self-defense case is to prove that the accused was reasonably apprehensive of the victim and that the defensive measures of the accused were reasonable. When the evidence is offered for this purpose, there must be evidence that the accused knew of the victim’s acts of violence or aggression. Evidence of prior specific acts of violence by the victim is admissible, if known by the defendant, because it is relevant to reveal the reasonableness of the defendant’s apprehension at the time of the incident. Standard jury instruction on reputation of victim, offered in prosecution for attempted second degree murder, failed to accurately and sufficiently instruct jury, where reputation evidence was offered to show that one of the victim was the aggressor, but instruction undermines such evidence by requiring jury to find that defendant was aware of victim’s reputation for violence.
RESISTING AN OFFICER
Lobb v. State, 2D18-4137 (Fla.2DCA. January 31st, 2020). Defendant who apparently was impaired by drugs but had not lost the power of self-control when she was found sleeping in the grass was not eligible for Marchman Act detention. Officer who detained her was not in the lawful execution of a legal duty. Defendant is entitled to Judgment of Acquittal.
T.P. v. State, 2D15-5543 (Fla. 2d DCA Aug. 2, 2017) A conviction for resisting an officer without violence must be reversed where the evidence does not show the officer was engaged in the lawful execution of a legal duty: REASONABLE SUSPICION TO STOP: “In this case, the State presented no testimony that flight took place in a high-crime area, and the officer observed no suspicious activity prior to ordering T.P. to stop. The only suspicious activity was reported by an unidentified 911 caller who provided a vague description of a light-skinned black male wearing shorts and a shirt looking through windows. Under the circumstances of this case, we conclude that the officer lacked the requisite reasonable suspicion to stop T.P.” CONSENSUAL ENCOUNTER: “The officer was not justified in detaining T.P. at the time he approached him, and T.P.’s flight in response to the officer’s attempted consensual encounter was not sufficient here to provide the officer with reasonable suspicion. Again, this case is distinguishable from R.R., in which the officer observed suspicious activity prior to the juvenile’s flight, and there is no evidence that the flight took place in a high-crime area…”
D.L.S. v. State, 2D14-5215 (Fla. 2d DCA June 10, 2016) Reversing a withhold of adjudication, the trial court erred by denying the motion to dismiss the charge of obstructing an officer without violence where the officer was not detaining anyone when he ordered the juvenile to stop, he was not executing process, and not asking for assistance in an ongoing emergency. To the extent that the State argued the officer wanted to detain the juvenile for investigatory purposes, the officer had no founded suspicion to stop or arrest the juvenile.
Jackson v. State, 4D14-972 (Fla. 4th DCA May 11, 2016) “The issue presented is whether appellant can be convicted of resisting arrest without violence when he refused to leave his home after the police, without a warrant or exigent circumstances, ordered him to come outside and submit to police custody. Because we find that ordering appellant to leave his home was unlawful, we reverse appellant’s conviction for resisting arrest without violence.”
James v. State No. 4D15-4854 (Fla. 4th July 2017) The trial court abused its discretion in ordering restitution for 20 pieces of additional jewelry that the State did not include in the information. “[I]n this case, the crime of theft and the crime of dealing in stolen property are unrelated and constitute separate criminal episodes that, here, were separated by time, place, and manner of commission.”
J.D. v. State, 212 So.3d 1144 (Fla. 5th DCA 2017) The trial court abused his discretion when it ordered juvenile to pay over $10,000 in restitution which included reimbursement for items that allegedly were stolen from the victim’s residence and were not disclosed until the restitution hearing, in delinquency proceeding. The victim did not disclose the additional items until several month after juvenile had plead no contest to burglary and the additional items were not listed in the plea agreement, delinquency petition, predisposition report, or any other discovery.
State v. Tomasheski, 4D12-4070 (Fla. 4th DCA June 17, 2015) First, a trial court errs by allowing the jury to determine the amount of restitution because Section 775.089, Florida Statutes, mandates that the court do so. Second, a trial court is not restricted by a maximum statutory dollar ceiling amount of restitution where the verdict reflects the monetary dollar range ($20,000 – $50,000).
RETURN OF PROPERTY
Sanchez v. State, 174 So.3d 439 (Fla. 4th DCA 2015) A facially sufficient motion for return of property must: (1) specifically describe the property at issue; (2) allege that the property is the personal property of the movant; (3) allege that the property was not the fruit of criminal activity; and (4) allege that the property is not being held as evidence. In an evidentiary hearing, the defendant seeking the return of seized property is required to prove the property is exclusively his own, that it was not the fruit of illegal activity, and that it is not being held for evidentiary purposes.
Wagner v. State, 208 So.3d 1229 (Fla. 3rd DCA 2017) State’s discovery violation, namely failing to provide the defense with a copy of the offense incidence report, warranted new trial. State did not show that the defense’s trial strategy would not have been materially different had the report been disclosed.
Mathis v. State, 208 So.3d 158 (Fla. 5th DCA 2016) Statutory offense of conducting racketeering activity would be construed as requiring proof of attorney’s actual knowledge that he violated Racketeer Influenced and Corrupt Organizations Act (RICO) Statutes. Mens rea is required.
RIGHT TO COUNSEL
Greenwich v. State, 207 So.3d 258 (Fla. 5th DCA 2016) Failure of receptionist at police department who received stepfather’s phone call during custodial interrogation of defendant, offering his assistance as a criminal defense attorney, to specifically notify interrogating detectives in her communication to them that stepfather was defendant’s attorney, violated constitutional protection afforded to a suspect of his right to consult with counsel and thus, statements made by defendant to detectives during interview but prior to his ultimate communications with stepfather, should have been suppressed, even though there was no evidence that the police detectives either intentionally or fraudulently tried to conceal the phone call from defendant.
Davis v. State, 207 So.3d 177 (Fla. 2016) To prove attempted armed robbery, the state must show: (1) the formation of an intent to commit the crime of robbery; (2) the commission of some physical act in furtherance of the robbery; and (3) the use of a firearm. The overt act necessary to fulfill the requirements of attempted robbery must be adapted to affect the intent to commit the crime. It must be carried beyond mere preparation, but it must fall short of executing the ultimate design.
RULE OF COMPLETENESS
42 Fla. L. D1392a Post arrest exculpatory statement by defendant was properly excluded because it did not explain or shed light on defendant’s statements, already admitted, from a controlled phone call with the minor victim –In asserting that the plain language of the statute requires the contemporaneous introduction of his post-arrest statement, defendant ignores the significant limitation to the rule of completeness that it requires the contemporaneous introduction of an “other” statement only if that statement is necessary to give a complete understanding of the total tenor and effect of the already-introduced statement.
McCool v. State, 211 So.3d 304 (Fla. 1st DCA 2017) Defendant whose sentencing scoresheet erroneously included a sixth “prior record” misdemeanor was entitled to be resentenced for felony battery, despite state’s contention that the error was harmless because the points assessed for the sixth misdemeanor were the same as those that should have been assessed for misdemeanor battery as an “additional offense” on the scoresheet.
SEALING AND EXPUNGEMENT
Lazard v. State, 5D16-39763 (Fla. 5th DCA Oct. 20, 2017) Where Defendant pled to child abuse, FDLE may not deny application for certificate of eligibility to seal record because Defendant pled guilty to a charge related to an act of domestic violence. Court must make the finding as to whether the offense related to an act of domestic violence, precluding the record from being sealed. Failure to issue certificate should be raised by petition for mandamus.
SEARCH AND SEIZURE
N.S. v. State, 4D16-0514 (Fla. 4th DCA May 24, 2017) Officer responds to call of a suspicious vehicle, but hears noises in a nearby park. The officer lacks reasonable suspicion to order the child to stop and conduct a pat down search.
G.M. v. State, 172 So.3d 963 (Fla. 4th DCA 2015) Officer’s perception that bulge in juvenile’s pocket contained contraband did not come as a result of officer’s tactile perception, but rather from an educated hunch based on the plain feel of the object, and thus removal and seizure of baggy containing marijuana was improper under the plain feel doctrine.
Robinson v. State, 164 So.3d 742 (Fla. 2nd DCA 2015) Defendant had reasonable expectation of privacy in his real property, such that police officers were required to obtain warrant or consent for search of property, where property was a semi-rural homestead, surrounded by a chain-link fence, having a closed gate with a “no trespassing – violators will be prosecuted” sign and a “beware of dog” sign, and property had a mail box accessible from outside the fence.
McBride v. State, 158 So.3d 608 (Fla. 5th DCA 2013) A person’s dwelling, whether in a hotel or motel or in a private home, is protected by the Fourth Amendment. Owner or manager of a motel cannot validly consent to entry into a lawfully rented room to facilitate a search or seizure.
Gay v. State, 138 So.3d 1106 (Fla. 2nd DCA 2014) After officer determined not to cite driver during traffic stop and driver consented to search of vehicle which rendered the encounter consensual, officer’s actions in searching passenger’s purse and pill box contained in purse removing the pill box from the vehicle, and taking the box to his patrol car for further investigation resulted in the encounter again becoming an investigatory detention which was not justified by reasonable suspicion of criminal activity. Officer’s actions would have lead a reasonable person to conclude she was not free to leave, and nothing about the pills or pill box gave officer reasonable suspicion that passenger or driver had committed, was committing, or was about to commit a crime. Probable cause must exist before an object can be seized. After the fact discovery of contraband does not render the seizure legal. For a seizure legal to be under the plain view doctrine, it must be immediately apparent to the officer that the seized object constitutes evidence of a crime. Immediately apparent for purposes of plain view doctrine means that at the time the police view the object to be seized, they must have probable cause to believe that the object is contraband or evidence of a crime.
Durham v. State, 5D15-732 (Fla. 5th DCA Sept. 11, 2015) Officers do not have exigent circumstances or an objective fear for anyone’s safety to enter a home without consent (or a warrant) after a neighbor reports that a man and woman are arguing in the yard and when police arrive, the man is inside the home, and the woman is in the yard with no visible signs of injury.
Dieujuste v. State, 44 Fla. L. Weekly D1285a (4th DCA 5/15/19) Officers lacked reasonable suspicion to detain the Defendant based on an anonymous call that a black male with dreads, wearing designer pants with glitter on the back side of the pants, standing by a convertible black Camaro parked in front of a liquor store was dealing drugs out of the vehicle. The anonymous tip’s assertion of illegal conduct must be corroborated in some way to establish its reliability. The Defendant’s quick return to the vehicle, bending down, and placing something inside the vehicle is insufficient corroboration of illegal activity to justify the stop. “Appellant’s retreat to the vehicle did not evidence criminal activity. Indeed, if appellant could not retreat, then he was not free to leave, which circumstance constitutes a seizure for Fourth Amendment purposes.”
SEARCH AND SEIZURE – JUVENILE
T.L.B. v. State, 44 Fla. L. Weekly D1283d (4th DCA 5/15/19) School resource officer may not search a juvenile based solely on a hunch that he might have a weapon.
SEARCH AND SEIZURE- INEVITABLE DISCOVERY
O’Hare v. State, 263 So.3d 255 (Fla. 5th DCA 2019) Inevitable discovery doctrine did not apply to allow admission of evidence obtained from an unlawful warrantless search of residence during a child pornography investigation, where the state failed to show that police officers were in pursuit of a search warrant at the time of the search.
Rogers v. State, 264 So.3d 1119 (Fla. 2nd DCA 2019) Inevitable discovery doctrine did not apply to evidence obtained by police during illegal search of defendant’s recreational vehicle pursuant to search warrant for residence and its curtilage, although it was not entry onto premises described in warrant that was illegal. There was no indication that police were actively pursuing search warrant for RV at time of illegal entry into RV, and defendant disputed officer’s authority to enter RV as soon as search warrant was produced. RV that was located within curtilage of residence was being used as a separate residence and thus did not fall within scope of search warrant for residence and its curtilage where RV had an awning and septic line affixed to ground, it was connected to main house by router cable, and interior was blocked from view by shades on all windows. Officers are not authorized to search a separate dwelling unit that exist on the premises but is not separately identified in the warrant.
SEARCH INCIDENT TO ARREST
Harris v. State, 3D16-1101 (Fla. 3d DCA Jan. 17, 2018) Despite the search incident to arrest exception and automobile exception, and consent exception, a trial court reversibly errs by denying a motion to suppress where the police searched a backpack worn by the defendant riding a dirt bike. (The trial court made no finding as to consent.)
Castro v. State, No. 2D16-1466 (Fla. 2nd DCA July 14, 2017) Affidavit in support of search warrant was insufficient to provide sufficient nexus between third party’s sale of methamphetamine to undercover officer and defendant’s residence — Vague anonymous tip regarding presence of methamphetamine at residence and meth sales by defendant was insufficient to support warrant where there was no information as to veracity or reliability of the tipster and no independent corroborating evidence — Good faith exception to warrant requirement did not apply where information provided in affidavit that relied upon speculation was so weak that objectively reasonable officer would have known that affidavit was insufficient to establish probable cause to search residence — Trial court erred in denying motion to suppress
Daniels v. State, 208 So.3d 1223 (Fla. 2nd DCA 2017) An anonymous tip that has not been proven reliable adds nothing to the determination of probable cause for a search warrant. Where a court finds that police unlawfully obtained some of the evidence contained in the application for the search warrant, the court must then determine if there is probable cause to support the issuance of the warrant based on any independent and lawfully obtained evidence. The court must excise the invalid allegations from the affidavit and determine whether sufficient valid allegations remain to support a finding of probable cause.
Friedson v. State, 207 So.3d 961 (Fla. 5th DCA 2016) Evidence obtained from an unlawful search cannot serve as the basis for the issuance of a search warrant.
Dunn v. State, 206 So.3d 802 (Fla. 1st DCA 2016) The state has the burden of showing beyond a reasonable doubt that the defendant did not act in self-defense. Once a prima facie case of self-defense is established by the defendant, the state must overcome the defense by rebuttal, or by inference in its case-in-chief.
Mohler v. State, 165 So.3d 773 (Fla. 2nd DCA 2015) Evidence that alleged victim was in prior altercation with third party on day of defendant and alleged victim’s altercation was admissible in prosecution for felony battery to prove that defendant, who asserted self-defense claim, was reasonably apprehensive of alleged victim and that defendant’s defensive measures were reasonable. When a defendant asserts claim of self-defense, reputation evidence of the victim is admissible as circumstantial evidence to prove that the victim acted consistently with his reputation for violence. When a defendant asserts claim of self-defense, victim’s specific acts of violence, if known by the defendant, are admissible to prove that the defendant was reasonably apprehensive of the victim and that the defensive measures of the defendant were reasonable.
Cunningham v. State, 4D12-3321 (Fla. 4th DCA March 4, 2015) Reversing a conviction for aggravated assault with a firearm, a trial court errs by refusing to instruct the jury on the justifiable use of non-deadly force where there was no conflicting evidence that a process server drove aggressively and approached the defendant and his brother with something in his hand, resulting in the defendant pointing a gun toward the process server while making threatening statements.
Stickney v. State, 4D16-1803 (Fla. 4th DCA Feb. 14, 2018) A trial court abuses its discretion by instructing the jury on the victim’s right to self defense. “Here, the modified jury instruction on [the victim’s] right to use non-deadly force was misleading and confusing, because it improperly shifted the focus of the case from appellant’s claim of self-defense to the issue of [the victim’s] right to use force. Because [the victim] was not charged with any offense, the question of whether [the victim] was legally justified in using force against appellant was not at issue in this case.”
Williams v. State, 261 So.3d 1248 (Fla. 2019) A trial court must grant a judgment of acquittal when the state’s case is legally insufficient to rebut a defendant’s prima facie case establishing self-defense.Any inconsistency between the evidence and the defendant’s self-defense theory must be resolved by the finder of fact, but evidence that leaves room for two or more inferences of fact, at least one of which is consistent with the defendant’s hypothesis of innocence, is not legally sufficient to make a case for the jury. State failed to rebut defendant’s theory of self-defense that victim initiated altercation in which defendant was able to fight to gain control of victim’s gun and use it in self-defense, as to first-degree premeditated murder charge, and thus defendant was entitled to grant of judgment of acquittal.
SELF-DEFENSE – CHARACTER EVIDENCE
Lantz v. State, 263 So.3d 279 (Fla. 1st DCA 2019) Where a defendant asserts that he acted in self-defense or there is doubt about who was the first aggressor, evidence of the victim’s aggressive character may be admitted to show that the victim acted in conformance with that character trait at the time of the crime.
Adams v. State, 207 So.3d 252 (Fla. 5th DCA 2016) When a trial court imposes a new split sentence following a violation of probation, the law requires that the court give credit for any time previously served on probation if the new period of probation together with all other sanctions, including jail and prison credit, and the time previously served on probation total more than the statutory maximum for the underlying offense.
Allen v. State, 211 So.3d 48 (Fla. 4th DCA 2017) Trial courts are prohibited from penalizing a defendant for not admitting guilt a sentencing. This prohibition is designed to protect an individual’s right of appeal or prospects of post-conviction relief that might otherwise be jeopardized by rewarding a defendant’s admission of guilt following trial.
Andrews v. State, 207 So.3d 889 (Fla. 4th DCA 2017) Trial court was not permitted to consider defendant’s out of county residency as a sentencing factor for defendant convicted of armed burglary and related offenses. Imposing a stiffer sentence merely because the defendant did not reside in the county did not result in a sentence that was proportionate to the offense. (Note: this holding may apply to gypsies)
Lawton v. State, 207 So.3d 359 (Fla. 3rd DCA 2016) Trial court’s consideration of remorse constituted an impermissible factor in imposing a sentence where defendant did not file a motion for a downward departure based on rehabilitation or otherwise inject remorse into his argument for mitigation.
Fernandez v. State, 212 So.3d 494 (Fla. 2nd DCA 2017) Trial court was not permitted to consider defendant’s arrest for being a felon in possession of a firearm when imposing sentence on possession of cocaine conviction, as arrest occurred while on pretrial release in possession of cocaine case.
Guerra v. State, 212 So.3d 541 (Fla. 4th DCA 2017) Trial court could not subject defendant to cross-examination during his allocution at sentencing hearing after defendant’s open plea to solicitation to commit murder, armed home invasion robbery, and refusal to submit a DNA sample.
Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016) A new sentence before a different judge was warranted in a murder case where the original judge commented during sentencing about the defendant’s attitude during trial as surly and noted that he had no job and failed to support his children when none of those factors were in evidence. Impermissible factors that the trial court may not consider during sentencing include a defendant’s assertion of his innocence and refusal to admit guilt. When the defendant denies committing the crime, it is generally improper for the sentencing court to consider the defendant’s lack of remorse.
Williams v. State, 1D15-1923 (Fla. 1st DCA June 7, 2016) A trial court reversibly errs when basing a sentence, even in part, on unsubstantiated allegations: “I believe that he has either been directly or indirectly involved in the threatening of witnesses in the cases against him, both in this case and in the past…”
State v. Jimenez, 173 So.3d 1020 (Fla. 3rd DCA 2015) When an initial sentence was illegal, at resentencing, the trial court may impose any sentence consistent with the sentencing laws in effect on the date of offense, even if it results in a harsher sentence.
Rankin v. State, 174 So.3d 1092 (Fla. 4th DCA 2015) While remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true. A trial court violates due process by using a protestation of innocence against a defendant. This applies to the penalty phase as well as to the guilt phase.
Harvey v. State, 156 So.3d 583 (Fla. 5th DCA 2015) A suspended sentence imposed at the time a defendant is placed on probation or community control is not an automatic sentence in the sense that the trial court is required to impose the suspended sentence in the event of a violation. Instead, the court retains the discretion and authority to impose any sentence it could otherwise have imposed. The trial court retains discretion to impose any sentence up to the suspended sentence previously issued.
Norvil v. State, 162 So.3d 3 (Fla. 4th DCA 2014) If a defendant has been acquitted of charges stemming from a prior or subsequent arrest, the sentencing court is prohibited from considering the arrest. Sentencing court may properly consider subsequent arrests and related charges, if relevant, in determining an appropriate sentence. Sentencing court must be mindful that the arrest and pending charges are not convictions or findings of guilt and refrain from placing undo emphasis on them at the sentencing hearing. Sentencing court could consider defendant’s subsequent arrest and charges at sentencing because of the following factors: (1) the new charge was relevant in that defendant was being sentenced for burglary while armed with weapon and subsequent arrest involving burglary of vehicle; (2) the allegations of criminal conduct were supported by evidence of the record; (3) the defendant had not been acquitted of the charge that arose from the subsequent arrest; (4) the record did not show that the trial court placed undo emphasis on the subsequent arrest and charge in imposing sentence; and (5) the defendant had an opportunity to explain or to present evidence on the issue of his prior and subsequent arrests.
Hawkins v. State, 138 So.3d 1196 (Fla. 2nd DCA 2014) Evidence failed to establish that defendant willfully violated his furlough agreement by failing to appear for sentencing as a result of an arrest. An arrest was an action by a police officer based on that officer’s evaluation of probable cause, not a willful action of the defendant. It is crucial that a trial court make a factual determination as to whether a defendant’s failure to appear at sentencing was willful, prior to ruling on whether said absence was violative of a negotiated plea agreement. Where a defendant’s failure to appear is found to be non-willful, the defendant is entitled to the bargained for mitigation of his sentence.
Macintosh v. State, 5D15-919 (Fla. 5th DCA Jan. 8, 2016) Orange County, Judge Lubet In this case, the trial court’s comments indicate that the sentence was influenced by its belief that MacIntosh had committed uncharged acts of violence against another individual. Although this may be a proper sentencing consideration, here, the allegations of violence were unsubstantiated hearsay from the assistant state attorney, to which MacIntosh objected. Because we cannot determine whether MacIntosh’s sentence was influenced by the consideration of the improper argument, we remand for resentencing by a different judge.
Taylor v. State, 5D17-2259 (Fla. 5th DCA Feb. 23, 2018) Where the State decides not to proceed on separate charges, a trial court is foreclosed from considering the conduct supporting those charges in sentencing.
Love v. State, 2D17-76 (Fla. 2d DCA Jan. 12, 2018) Even where a sentencing judge does not state on the record that he considered such when fashioning the sentence, incidents of misconduct occurring after the charged offense, some of which did not result in charges or arrests, were impermissible sentencing factors.
Baehern v. State, 4D16-364 (Fla. 4th DCA Jan. 10, 2018) Where a defendant is yet to be convicted in a separate case, a trial judge reversibly errs by considering that pending case in imposing sentence
SENTENCING- SUBSEQUENT ARREST
Turner v. State, 261 So.3d 729 (Fla. 2nd DCA 2018) A trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.
Daughtry v. State, 211 So.3d 84 (Fla. 4th DCA 2017) Concerning witness sequestration, the court may allow some witnesses to remain in the court room however, should the witness’s presence cause some prejudice to the accused, the witness should not be allowed to remain.
Barnett v. State, 159 So.3d 922 (Fla. 5th DCA 2015) An offense under the computer pornography and child exploitation prevention act does not authorize dual convictions under statutes prohibiting using a computer service to solicit unlawful sexual conduct with a minor and traveling for the purposes of engaging in unlawful sexual conduct with a minor for conduct that occurs in a single criminal episode.
SPECIAL JURY INSTRUCTIONS
Jeudy v. State, 209 So.3d 37 (Fla. 4th DCA 2016) Instruction, which stated that proof of purchase or sale of stolen property at price substantially below the fair market value gives rise to inference that person buying or selling the property knew or should have known that property had been stolen, amounted to improper comment on the evidence by the trial judge and thereby invaded to province of the jury in grand theft prosecution. State presented evidence as to the amount the original owner paid for the shotgun, but did not present evidence of fair market value of the shotgun when defendant purchased it.
Gutierrez v. State, SC14-799 (Fla. June 25, 2015) Quashing the Fifth District’s decision in Gutierrez v. State, 133 So. 3d 1125 (Fla. 5th DCA 2014), a trial court errs by giving a special jury instruction informing the jury that the testimony of a sexual battery victim need not be corroborated.
Crockett v. State, 206 So.3d 742 (Fla. 1st DCA 2016) Four factors guide the determination of whether the constitutional speedy trial right was violated: (1) the length of the delay, e.g. whether the delay is presumptively prejudicial; (2) the reason for the delay; (3) whether the appellant has timely asserted his rights; and (4) the existence of actual prejudice as a result of the delay. A delay of eight years between filing of information and defendant’s continued prosecution on burglary charges violated his Sixth Amendment right to a speedy trial. State failed to demonstrate that it lodged a detainer against defendant in the foreign jurisdiction in which he was incarcerated, defendant’s failure to assert his right to speedy trial was due in part of state’s negligence in failing to lodge detainer informing him of state’s continued interest in prosecuting, and defendant was prejudiced by loss of alibi witnesses and destruction of evidence.
State vs. Drake, 209 So.3d 650 (Fla. 2nd DCA 2017) The state may not circumvent the purpose and intent of the speedy trial rule by taking no action after the defendant is arrested and waiting until after the speedy trial period has expired to file formal charges. This is because under these circumstances, the state has essentially abandoned the prosecution and the recapture provisions of the rule do not apply, with the result that the defendant must be discharged. Even though the state filed its criminal information against the defendant within the speedy trial period, where the information was immediately sealed by the clerk’s office and was not unsealed until after expiration of the speedy trial period, defendant was unaware of the information and could not have known he needed to file a notice of expiration, and the state was aware that defendant remained in custody.
Holland v. State, 210 So.3d 238 (Fla. 1st DCA 2017) Amended information reducing the charge of possession of cocaine with intent to sell within 1000 feet of a school to possession of a controlled substance, after the expiration of the speedy trial period, did not charge defendant with a new offense. Offense charged in the amended information was a necessarily included lesser offense of the offense charged in the original information and defendant failed to allege or establish any specific prejudice resulting from this change.
State v. Warren, 5D14-1266 (Fla. 5th July 10, 2015) Reversing an order forever discharging the defendant for the crimes of burglary and theft based on a speedy trial violation, the trial court erred in concluding that the charges involved the same criminal conduct and same criminal episode as a prior arrest that occurred more than 175 days before the information was filed.
State v. Templar-O’Brien, 173 So.3d 1129 (Fla. 2nd DCA 2015) When a defendant has, by obtaining a continuance, waived his speedy trial rights under the rule of criminal procedure governing such rights, and the information is nolle prossed, the waiver carries over and is effective under the re-filed information.
State v. Borko, 173 So.3d 1086 (Fla. 2nd DCA 2015) The 170 day felony speedy trial rule did not apply once state nolle prossed felony case in circuit court, and then filed it as a misdemeanor case based on the same conduct, and therefore, 90 day speedy trial rule for misdemeanors barred trial court on charge of petit theft, where state failed to file misdemeanor charge against defendant within the speedy trial time applicable to misdemeanors.
Dozier v. State, 175 So.3d 322 (Fla. 1st DCA 2015) Once a speedy trial request has been made under the interstate agreement on detainers act, if the state fails to bring a defendant to trial within 180 days, dismissal of the detainer charges is mandated.
STAND YOUR GROUND
Andujar-Ruiz v. State, 205 So.3d 803 (Fla. 2nd DCA 2016) Although Stand Your Ground requires a defendant not to be engaged in unlawful activity a defendant’s felonious possession of a firearm does not preclude a defendant from raising such a defense.
Rosario v. State, 165 So.3d 852 (Fla. 1st DCA 2015) Florida’s Stand Your Ground law is intended to establish a true immunity from charges and does not exist as merely an affirmative defense. When a defendant claims Stand Your Ground immunity, a trial court is to conduct an evidentiary hearing, the purpose of which is to consider factual disputes.
Wyche v. State, 170 So.3d 898 (Fla. 3rd DCA 2015) A person is justified in the use of deadly force and has no duty to retreat if: (1) he is in a place where he has the right to be; (2) he reasonably believes such force is necessary to prevent death or great bodily harm or the imminent commission of a forcible felony; (3) he did not initially provoke the use of force against himself, i.e., he was not the initial aggressor; and (4) he was not himself attempting to commit, committing, or escaping after the commission of a forcible felony.
Martin v. State, 2D16-4468 (Fla. 2nd DCA May 4, 2018) We hold that the 2017 amendment to section 776.032, the Stand Your Ground law, is procedural in nature and, therefore, retroactive in application; that, as such, it applies to pending cases, including those on appeal; and that Mr. Martin is entitled to a new immunity hearing under the amended procedure of the statute. Accordingly, we must reverse the circuit court’s judgment and conviction.
State v. Peraza, 4D16-2675 (Fla. 4th DCA Aug. 30, 2017) Finding the law enforcement officers are eligible to assert the Stand Your Ground defense under F.S. 776.012 and 776.032, the Fourth District agreed with the trial court that “the officer reasonably believed using deadly force was necessary to prevent imminent death or great bodily harm to himself, his sergeant, and the nearby citizens.” Whether a law enforcement officer, who while making a lawful arrest, uses deadly force which he or she reasonably believes is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony, is limited to invoking a defense under section 776.05(1). Or is also permitted to seek immunity from criminal prosecution under sections 776.012(1) and 776.032(1), Florida statutes (2013), more commonly known as Florida’s “Stand Your Ground” law.
Sanchez v. State, 210 So.3d 252 (Fla. 2nd DCA 2017) A defendant has a legitimate expectation of privacy in a package and standing to challenge its search if he is the addressee under a fictitious name linked to him.
STATUTE OF LIMITATIONS
Guzman v. State, 211 So.3d 204 (Fla. 3rd DCA 2016) The statute of limitations that applies in a criminal case is the one that was in effect at the time of the incidents giving rise to the charges. A subsequently filed information, which contains language indicating that it is a continuation of the same prior prosecution, timely commenced will not be considered an abandonment of the first information and therefore will not be barred by the statute of limitations, however, where the state has brought a new charge, alleging a new and distinct crime with different elements, under a completely different statute, the statute of limitations requires dismissal of the new charge.
Norton v. State, 173 So.3d 1124 (Fla. 2nd DCA 2015) State failed to conduct a diligent search to locate defendant in order to execute service of capias for violation of the doctor shopping statute so as to excuse its delay in executing capias approximately four years after it was issued, and thus state failed to timely commence prosecution within three year statute of limitations. State concluded its efforts to locate defendant after having searched two public databases and did not attempt to search telephone book, property tax records, voter registration records, probation office records, or utility records, and no one attempted to search an online directory or use a basic internet search engine to ascertain defendant’s whereabouts. When a criminal defendant challenges his prosecution as being untimely commenced, the state has the burden to prove that the prosecution is not barred by the statute of limitations.
Escalante v. State, 165 So.3d 839 (Fla. 2nd DCA 2015) When a criminal defendant challenges his prosecution as untimely commenced, the state has the burden to establish that the prosecution is not barred by the statute of limitations.
SUBPOENA FOR MEDICAL RECORDS
Gomillion. v. State, 2D18-1640 (Fla. 2 DCA March 20, 2019) The defendant filed a petition for a writ of certiorari asking us to quash an order denying his objection to the State’s Subpoena of his toxicology records for purposes of his criminal prosecution.
Hataway v. State, 171 So.3d 156 (Fla. 4th DCA 2015) Tossing evidence away in the presence of law enforcement officer does not, as a matter of law, constitute a violation of the statute prescribing tampering with evidence. However, depending on the circumstances, such an act could amount to tampering or concealing evidence such as when a defendant throws it in a place that hides the evidence or if he swallows the evidence.
McCray v. State, 171 So.3d 831 (Fla. 1st DCA 2015) To convict defendant of tampering with a witness, it is necessary to present evidence that the victim was attempting to contact law enforcement during the time of the incident.
Gaines v. State, 155 So.3d 1264 (Fla. 4th DCA 2015) Probative value of defendant’s statements during un-redacted tape interview with police was outweighed by prejudicial effect of officer’s opinion of defendant’s guilt and truthfulness.
Morrison v. State, 161 So.3d 564 (Fla. 2nd DCA 2014) The trial court erred when it admitted into evidence a digital recording of a 9-1-1 telephone call as an excited utterance, where the court failed to conduct a hearing or make required predicate findings before admitting the evidence as an excited utterance.
Brandon v. State, 138 So.3d 1150 (Fla. 1st DCA 2014) Transcript of 9-1-1 call reporting that a woman had been assaulted by a man who struck her and then threatened to kill her while pointing a gun at her and identifying defendant as the assailant, was not admissible under excited utterance hearsay exception. State failed to show whether the caller was still under the emotional stress of the incident at the time of the call or whether the caller had time to reflect on the events prior to making the call, and the state failed to establish even the identity of the person who made the 9-1-1 call.
C.S. v. State, 3D 18-2491 (Fla. 3rd DCA 2020). Testimony that the Victim purchased an Apple iPhone 7
Plus for $700 one month before is sufficient to establish that the value exceeded $300.
Ulysse v. State, 174 So.3d 464 (Fla. 4th DCA 2015) In order for the use of force to be justifiable in defense of property, the victim must be interfering with property within the possession of the accused. Claim of right defense is a defense to crimes of theft, not false imprisonment, and claim of right defense arises from the common law rule recognizing that a forcible taking of property under a bonafide claim of right is not robbery where the taker has a good faith belief that he is owner of the property or is entitled to immediate possession.
Harriman v. State, 174 So.3d 1044 (Fla. 1st DCA 2015) Voluntary abandonment may be a defense to a theft that is accompanied by an attempt to commit theft, although the crime is not charged under the attempt statute. The separate offense of attempted grand theft does not exist in Florida because the statute uses the term “or endeavors to obtain or use.”
Wiechert v. State, 170 So.3d 109 (Fla. 2nd DCA 2015) When direct testimony concerning fair market value of items stolen is not available in a prosecution for theft, the state may establish value through evidence of (1) original market cost; (2) the manner in which the item was used; (3) the general condition and quality of the items; and (4) the percentage of depreciation.Johnson v. State, 1D16-5350 (Fla 1st DCA Aug. 10, 2017) Where items were inside a vehicle at the time of a re-possession, dual convictions for grand theft auto and theft or property violate Double Jeopardy.
A.L.H. v. State, 205 So.3d 782 (Fla. 2nd DCA 2016) To establish the delinquent act of trespass of a conveyance, the state had to prove that juvenile willfully entered or remained in a conveyance without being authorized, licensed or invited by the owner or a person authorized to give permission, and in this context, the willful element required the state to establish that juvenile knew or should have known that the vehicle was stolen.
Higgs v. State, 139 So.3d 411 (Fla. 5th DCA 2014) Because the information alleged that the site was legally posted these were the facts to be proved by the state, and the state’s failure to prove this element of the offense of trespass on a construction site required the lower court to enter judgment in the defendant’s favor.
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 province 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