Council v. State, 206 So.3d 155 (Fla. 1st DCA 2016) State failed to lay the proper foundation to establish the price listed on the computer as a business record and thus testimony of victim’s mother, that she looked on computer with the prosecutor to determine the value of a ring that looked identical to the replacement diamond ring, constituted inadmissible hearsay and was legally insufficient as a matter of law to prove the stolen ring’s replacement value in theft prosecution.
Ball v. State, 208 So.3d 327 (Fla. 5th DCA 2017) Vehicular Homicide cannot be proven without also proving the elements of reckless driving, which involves driving with a willful or wanton disregard for the safety of persons or property.
Proctor v. State, 205 So.3d 784 (Fla. 2nd DCA 2016) Jury’s finding on verdict form that defendant did not possess a firearm negated required element for jury’s finding that defendant committed aggravated assault with a deadly weapon, and thus, jury arrived at legally inconsistent verdicts. Jury found that defendant committed aggravated assault with a deadly weapon against his father but jury also found under that same count that defendant did not actually possess a firearm and finding of the firearm was necessary to support the conviction for aggravated assault.
VIOLENT FELONY OFFENDER OF SPECIAL CONCERN
Whittaker v. State, No. 4D16-1036 (Fla 4th DCA July , 2017) Defendant who was placed on probation for offense of aggravated battery with deadly weapon qualified as VFOSC, and trial court was required by statute to make written findings as to whether defendant posed danger to the community — Failure of trial to make these written findings does not entitle defendant to have VFOSC designation stricken– Proper remedy is new sentencing hearing with directions that trial court make necessary written findings.
VIOLATION OF PROBATION
Hill V. State, 1D18-1355 (Fla 1st DCA January 21, 2020). Bare allegation that the Defendant was engaged in criminal activity in a particular residence insufficiently charges a violation of Condition Six.
Aguirre v. State, 207 So.3d 244 (Fla. 4th DCA 2016) Subsequent nolle prose for underlying new offense warranted consideration of post-plea evidence in post-conviction relief proceeding alleging voluntariness of defendant’s guilty plea to probation violation stemming from alleged commission of new offense. After defendant pleaded guilty to probation violation state entered nolle prose for burglary charge that was basis of probation violation after trial court granted defendant’s motion to suppress.
Allen v. State, 211 So.3d 55 (Fla. 4th DCA 2017) Evidence was insufficient to establish defendant violated his probation by changing his address without informing his probation officer. When probation officer first arrived at defendant’s home no one answered the door, on officer’s second visit she was stopped by a locked gate and she noticed a real estate agent’s lock on the door, officer did not testify that the home was vacant, and she did not call the owner who rented the home to the defendant.
Charles v. State, 209 So.3d 32 (Fla. 4th DCA 2016) Trial court abused its discretion in finding that probationer’s violation was willful so as to trigger revocation of probation, where probationer attempted to attend her scheduled rehabilitation sessions but was turned away and discharged from her treatment program due to her child care issues. Probation revocation based on the failure to complete a rehabilitation program must be shown to be the probationer’s fault. If a probationer makes reasonable efforts to comply with rehabilitation program, his failure will not be considered willful so as to trigger revocation of probation. State failed to present any evidence that probationer became homeless due to any intentional conduct, and thus, her violation of probation was not willful so as to trigger revocation of probation.
Goers v. State, 2D15-338 (Fla. 2d DCA June 15, 2016) The State failed to prove that the probationer willfully violated a substantial condition of his probation based on the following: “Goers was initially sentenced to five years’ probation. Shortly thereafter, the State filed an affidavit alleging that Goers violated condition three, which required that he “not change [his] residence . . . without first procuring the consent of [his] officer,” and condition nine, which required that he comply with all instructions given by his probation officer. At the subsequent violation hearing, the State put on evidence that Goers changed the address on his driver’s license without the prior permission of his probation officer. It was undisputed that Goers did not move to the new address nor did he intend to move until after it had been approved by his probation officer and that he received approval of the new address from the sheriff’s office prior to changing his license.
State v. Quieor, SC15-367 (Fla. April 21, 2016) A probation officer’s testimony that the probationer failed a field drug test personally administered by the officer is competent, nonhearsay evidence of a probation violation.Villenueva v. State, 2D15-1422 (Fla. 2d DCA Feb. 10, 2016) The Fourth Amendment exception that allows a probation officer to search a probationer’s home or workplace to the extent necessary for proper supervision of the probationer does not extend to law enforcement officers. Accordingly, a defendent does not voluntarily consent to a search of his person and vehicle by a law enforcement officer (LEO) where he believes he cannot refuse the search because he is on probation and the officer retains his drivers license when requesting permission to search.
Williams v. State, 2D14-5500 (Fla. 2d DCA Jan. 15, 2016) Where there is no showing that consumption of alcohol contributed to the offense, the trial court reversibly errs by ordering the defendant to refrain from consuming alcohol while on probation.
Bell v. State, 5D14-1569 (Fla. 5th DCA Oct. 9, 2015) A probation officer’s testimony regarding a positive result of field drug test that the officer personally conducted, along with hearsay evidence from positive laboratory test on same urine sample, constitutes substantial competent evidence sufficient to support a finding that the defendant violated probation by possessing illicit drugs. CONFLICT CERTIFIED Queior v. State, 157 So. 3d 370, 373 (Fla. 2d DCA 2015), rev. granted, No. SC15-367, 2015 WL 1894002 (Fla. April 14, 2015) and Dawson v. State (below), 40 Fla. L. Weekly D1683 (Fla. 1st DCA July 21, 2015).
Thompson v. State, 3D13-2337 (Fla. 3d DCA Aug. 13th 2015) A trial court errs by revoking probation based on constructive possession of a knife found in his room: “The knife was found in the defendant’s dormitory room, but it was not in plain view. It was located in the recessed area under the drawer used by the defendant which could be accessed only by removing the drawer from its tracks. At the time the knife was discovered, the defendant was the only occupant of the room. The dormitory room could house six residents, however, and at one point had five occupants, including the defendant. Moreover, the room did not have a lock and could be entered by other residents living in other rooms. The drawer also did not have a lock. No evidence of fingerprints on the knife was entered into evidence. Among other defects, these facts do not establish that the defendant had knowledge of the knife. … Because constructive possession was not established, the trial court erred in using the possession of the knife as a basis for revoking the defendant’s probation.”
Dawson v. State, 1D14-4630 (Fla. 1st DCA July 21, 2015) After the State petitioned to revoke the defendant’s probation on the grounds she violated the terms of probation for using cocaine, the only evidence presented by the State to prove the violation was the probation officer’s testimony that she conducted a urinalysis at her office that indicated appellant used cocaine, and then she sent a urine sample to a laboratory which issued a report indicating the urine tested positive for cocaine. Reversing, the First District held that laboratory test reports not testified to by an expert are HEARSAY.
Harrell v. State, 162 So.3d 1128 (Fla. 4th DCA 2015) A warrantless search of a probationer’s home by his probation officer is reasonable and is not dependent on the existence of an express search condition in a probation order. Extending a probation officer’s general authority to conduct a warrantless search of a probationer to a law enforcement officer is not permissible under the Fourth Amendment. However, police can come with probation officer for safety purposes when probation officer conducts the search.
Williams v. State, 163 So.3d 1257 (Fla. 1st DCA 2015) Where the state seeks to establish a violation of probation based upon a defendant associating with persons engaged in criminal activities, there must be evidence that the defendant was aware those he was associating with were engaged in criminal activity.
Aviles v. State, 165 So.3d 841 (Fla. 1st DCA 2015) A probation officer has no authority to impose additional conditions of probation, even if the court has ordered the probationer to follow all instructions the officer may give. Trial court could not require defendant to maintain full time employment without exception as condition of probation and therefore court could not subsequently revoke probation for failure to comply with requirement. Factors out of the defendant’s control could have prevented completion of this requirement. Defendant’s submission of job search logs was not imposed as a condition of his probation and therefore trial court could not revoke probation for failing to submit logs as ordered by probation officer. Trial court failed to make finding concerning whether defendant was able to pay court costs, restitution, and drug testing costs and therefore trial court was not permitted to revoke defendant’s probation for failing to pay costs.
Thomas v. State, 159 So.3d 937 (Fla. 3rd DCA 2015) Trial court could not revoke defendant’s probation due to defendant’s failure to complete community service hours pursuant to the terms of a plea agreement, where failure to complete community service hours was not alleged as a basis for revocation in the affidavit of violation of probation, and defendant’s failure to complete the hours was not willful, as he was unable to complete the hours due to his incarceration on unrelated charges.
Pulecio v. State, 160 So.3d 556 (Fla. 2nd DCA 2015) A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted; (2) relates to conduct which is not itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. All three factors for determining if a probation condition is invalid as related to rehabilitation must exist for an appellate court to strike a special probation condition as an abuse of discretion. However, a special condition of probation will be upheld if one of the factors outlined in Rodriguez exists. Special condition of drug trafficking defendant’s probation which stated that self-employment does not satisfy the employment requirement of his probation was not reasonably related to rehabilitation and thus would be stricken, despite contention that state had difficulty monitoring defendant in the past. Monitoring difficulties were not a factor to be considered in determining the validity of the condition, and requiring defendant to seek additional employment in addition to self-employment, which condition did not forbid, was not reasonably related to future criminality.
VIOLATION OF PROBATION – ABILITY TO PAY
Banks v. State, 262 So.3d 876 (Fla. 1st DCA 2019) Probation could not be revoked for probationer’s failure to perform community service, where community service was a permitted alternative to probationer paying court costs, but probation order did not obligate her to perform community service, and the trial court had not made a determination of probationer’s ability to pay court costs. Orders of probation indicated that defendant “may perform community service hours in lieu of court costs.” As such, court needed to determine ability to pay the court costs before revoking probation.
VIOLATION OF PROBATION – ADMISSION
Hanania v. State, 264 So.3d 317 (Fla. 2nd DCA 2019) A probationer’s admissions against interest, may, as a matter of law, be sufficient to revoke his probation even where there is no independent evidence of the corpus delicti of the crime.
VIOLATION OF PROBATION – OUT OF PLACE
Archie v. State, 264 So.3d 276 (Fla. 5th DCA 2019) Evidence was insufficient to support trial court’s finding that probationer willfully and substantially violated his probation by leaving his residential county. Probationer’s GPS device that tracked his location did not have the alert function enabled that would have notified him when he left the county. He was not questioned about his knowledge of county borders, and no evidence was presented indicating there was county signage that would have alerted him that he was leaving residential county and traveling into neighboring county.
VIOLATION OF PROBATION – AFFIDAVIT
McKinnon v. State, 263 So.3d 821 (Fla. 5th DCA 2019) Allegations that are not mentioned or required in the condition of probation cannot form the basis of a violation of probation. Probationer’s failure to report for appointment at probation office was not a violation of probation condition that he notify and obtain consent of probation officer for a change in residence. The violation condition must match the probationary orders.
Hopkins v. State No. 4D15-4266 (Fla. 4th DCA July 12, 2017) The trial court abused its discretion in imposing an unreasonable time limitation on voir dire. “Given the large jury pool and the very few minutes the 3-hour time permitted counsel with each juror, the trial court abused its discretion in refusing to grant a few additional minutes, where there were jurors whom defense counsel could not reach within the allotted time for voir dire. The trial court committed reversible error in denying challenges for cause of two jurors who expressed doubts about their ability to follow the law if Hopkins did not testify.
Calloway v. State, 210 So.3d 1160 (Fla. 2017) Parties may not question potential jurors during voir dire about evidence that is expected to be presented during trial and request an initial decision from the prospective jurors as to how they will rule in the case.
West v. State, 168 So.3d 1282 (Fla. 4th DCA 2015) Melbourne establishes three step procedure that must be followed when party objects to the exercise of a preemptory challenge on the basis that it was made on a discriminatory basis and compliance with each step is not discretionary: (1) Objecting party must make a timely objection, showing that the venire person is a member of a distinct protected group, and request that the trial court ask the striking party to provide a reason for the strike; (2) if these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike, and the burden shifts to the proponent to come forward with a race, ethnicity, or gender neutral explanation; and (3) if the explanation is facially race, ethnicity, or gender neutral, the court must determine whether the explanation is a pretext given all the circumstances surrounding the strike, with the focus of this inquiry being the genuineness of the explanation. The proper remedy when the trial court fails to abide by its duty under this procedure is to reverse and remand for a new trial. New trial was warranted because trial court failed to conduct a genuineness analysis of the state’s preemptory challenge of a Hispanic juror, where state’s initial race neutral reason for its preemptory strike was that the juror was unemployed, trial court then corrected the state that the juror was a housekeeper and not unemployed, and the state responded that it did not want a housekeeper on the jury.
Spencer v. State, 162 So.3d 224 (Fla. 4th DCA 2015) Compliance with each step of the procedure for evaluating the challenge to opposing counsel’s exercise of a pre-emptory strike to a prospective juror is not discretionary, and the proper remedy when the trial court fails to abide by its duty is to reverse and remand for a new trial.
WARRANTLESS HOME ENTRY
State v. Markus, 211 So.3d 894 (Fla. 2017) A warrantless home entry, accompanied by a search, seizure, and arrest, is not justified by the exigent circumstance exception of hot pursuit when the underlying conduct for which there is alleged probable cause is a nonviolent misdemeanor and the evidence related thereto is outside the home. The reasonable expectation of privacy under the Fourth Amendment not only applies to the inside of a person’s home, but to the curtilage of the home as well. An overnight guest is afforded a reasonable expectation of privacy in his place of stay, and thus has standing to claim Fourth Amendment protection.
C.W. v. State, 205 So.3d 843 (Fla. 2nd DCA 2016) The state failed to establish that BB gun found in juvenile’s backpack was a deadly weapon, for the purpose of the delinquency act of possession of a weapon on school property. There was no evidence that the gun was operable or capable of inflicting death or great bodily injury and the gun was not loaded.
WEIGHING THE EVIDENCE
Wiggins v. Fla. Dep’t of Highway Safety, SC14-2195 (Fla. January 31, 2017) A circuit court does not improperly reweigh evidence by refusing to accept an officer’s testimony which is refuted by video evidence.
Goggins v. State, 211 So.3d 1100 (Fla. 1st DCA 2017) Collateral act evidence, that defendant had previously been found in possession of personal identification information of a woman who lived in North Dakota along with a credit card and checks containing her name, should not have been admitted in prosecution of defendant for using another person’s identification without consent and grand theft.
Truehill v. State, 211 So.3d 930 (Fla. 2017) Admissible evidence of uncharged crimes falls into two categories: similar fact evidence and dissimilar fact evidence.
Bess v. State, 208 So.3d 1213 (Fla. 5th DCA 2017) Defendant was procedurally prejudiced by the state’s discovery violation, namely state’s failure to list nurse as expert witness, since nurse offered expert opinion testimony establishing that the lack of vaginal injury was not unusual in rape cases and defendant’s theory of the case was that the lack of injury to the victim’s vagina proved that a crime did not occur, and thus, new trial was warranted. There was a reasonable possibility that the discovery violation materially hindered the defendant’s trial preparation or strategy.
Calloway v. State, 210 So.3d 1160 (Fla. 2017) It is erroneous to permit a witness to comment on the credibility of another witness, because the jury alone determines the credibility of witnesses. Testimony from a police officer about the credibility of another witness may be particularly harmful because a jury may grant greater credibility to the officer. Experts may not comment on the credibility of other experts or witnesses.
Wingo v. State, 158 So.3d 743 (Fla. 2nd DCA 2015) A witness is incompetent to testify if the trial court determines the witness is: (1) unable to communicate to the jury; (2) unable to understand the duty to tell the truth; or (3) unable to perceive and remember the events.
McCloud v. State, D1759a (Fla. 2nd DCA, Aug. 11, 2017) Statute does not require state to prove that a witness was attempting to contact law enforcement during commission or possible commission of criminal offense in order to support conviction for witness tampering — Conflict certified — Evidence was sufficient to show that defendant knowingly used physical force, intimidation, or threat with intent to hinder or prevent communication by either battery victim or victim’s older daughter to law enforcement regarding the assault and battery — Various errors in judgment to be corrected on remand — Sentencing — Scoresheet — New sentencing hearing required where scoresheet improperly included multiplier based on domestic violence charge, although primary offense was witness tampering, not domestic violence.
Pacheco-Velasquez v. State, 208 So.3d 293 (Fla. 3rd DCA 2016) Provision of youthful offender law expressly authorizes a trial court, in lieu of other criminal penalties authorized by law, to withhold adjudication of guilt for certain offenders under the age of 21 even if the offense constitutes a first-degree felony, which would under other circumstances, render a withhold of adjudication impermissible.
Yegge v. State, 2D12-4194 (Fla. 2d DCA April 15, 2015) http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2015/April/April%2015,%202015/2D12-4193.pdf A trial court has discretion to impose a non-youthful offender sentence after a substantive violation of probation, noting that a trial court is not required to impose the minimum mandatory sentence, but instead, is able to do so when exercising its discretion, dependent upon the circumstances of the case. (Conflict certified with Blacker v. State, 49 SO. 3d 785, 789 (Fla. 4th DCA 2010)). (Host Test)