2017 Florida Criminal Case Law Update

BEST EVIDENCE

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.

BIAS

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.

BRADY

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.

BOND

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.

BURGLARY TOOLS

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.

CIRCUMSTANTIAL EVIDENCE

Smith v. State, 170 So.3d 745 (Fla. 2015)   Where the only proof of guilt is circumstantial, no matter how strongly 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.

CONFLICT

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.

CONSOLIDATION

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.

CONSTRUCTIVE POSSESSION

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.

CONTINUANCE

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.

CORPUS DELICTI

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.

DISCOVERY

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.

DOMESTIC VIOLENCE

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.

DOUBLE JEOPARDY

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.

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.

DOWNWARD/UPWARD DEPARTURE

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.

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.

DRUGS

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.

ENTRAPMENT

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.

EVIDENCE

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.

FAILURE TO MAINTAIN A SINGLE LANE

Peeples v. State, 2D14-1009 (Fla. 2d DCA Sept. 3, 2015) he 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.

FTMSL brief by Richard Sanders

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.

FIFTH AMENDMENT

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.

FORFEITURE

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.

HEARSAY

Kaseta v. State, 2D12-6431 (Fla. 2d DCA June 3, 2016) Reversing a conviction for manslaughter and reversing for a new trial, the trial court reversibly erred by permitting the victim’s sister to testify that her late father related to her a neighbor told him there was a disturbance at a mobile home where the defendant and victim lived on the evening before victim’s disappearance.  “Given the paucity of the State’s evidence even that Mimmovich is dead, let alone that Kaseta killed her, we easily reject the State’s assertion that permitting Martin’s improper testimony was harmless error. To the contrary, Kaseta’s conviction may well have unfairly turned on it.”

Leonard v. State, 2D15-1949 (Fla. 2d DCA June 10, 2016) Following a bench trial, the defendant was convicted of leaving the scene of an accident with death contrary to section 316.027, Florida Statutes (2009), a first-degree felony, and tampering with evidence contrary to section 918.13, Florida Statutes (2009), a third- degree felony. During the bench trial, a detective explained that he contacted the tag agency and learned that Mr. Leonard had changed the registration and license plate of the vehicle from his sister to himself. Mr. Leonard’s counsel immediately objected on hearsay grounds, but the trial court overruled the objection.  As to the conviction for tampering with evidence, the trial court erroneously admitted hearsay testimony over timely defense objection; as it is not clear from the record that the trial court did not rely on that evidence in reaching its determination of guilt, the conviction for tampering must be reversed and remanded for a  new trial.

Lopiano v. State, 164 So.3d 82 (Fla. 4th DCA 2015)   Police officer’s statements during interview that he did not believe defendant’s denials of officer’s accusation that defendant digitally penetrated alleged victim were not admissible in prosecution for lewd or lascivious molestation, where the probative value of the statements was sufficiently outweighed by the unfair prejudice to his defense engendered by admission of the officer’s commentary.   A police officer’s testimony or comments suggesting a defendant’s guilt invades the province of the jury to decide guilt or innocence.

J.B. v. State, 166 So.3d 813 (Fla. 4th DCA 2014)   Hearsay testimony of store security officer in delinquency adjudication proceedings, relating his co-worker’s statement that subject juvenile took bracelet from store, was not admissible to explain “state of mind” of officer who heard hearsay or to explain logical sequence of events.

IDENTITY

Jershun v. State, 169 So.3d 232 (Fla. 4th DCA 2015)   When the state must establish the existence of a prior conviction to prove an essential element of the offense, merely introducing a judgment, which shows identity between the name on the prior judgment and the name of the defendant, is insufficient. Instead, the state must present affirmative evidence that the defendant and the person named on the prior judgment are the same person.

INFORMATION

Grant v. State, 138 So.3d 1079 (Fla. 4th DCA 2014)   To enhance a defendant’s sentence under statute subjecting a defendant convicted of actually possessing a firearm during the commission of a robbery to a ten year mandatory minimum sentence, the grounds for enhancement must be clearly charged in the information.   Jury’s finding that defendant carried a firearm in the course of committing an attempted robbery, so as to support conviction for attempted armed robbery was insufficient to support ten year mandatory minimum sentence under statute authorizing such a sentence for a defendant who actually possessed a firearm during the commission of an attempted robbery. Jury made no finding that firearm was within immediate physical reach with ready access or that defendant had intent to use the firearm during the commission of the offense as required for constructive possession under the sentence enhancement statute.   Applicability of statute subjecting a defendant convicted of actually possessing a firearm during the commission of a robbery to a ten year mandatory minimum sentence is predicated on the defendant being found to have been in actual possession of the firearm.

INDICTMENT – INFORMATION

Carlson v. State, 166 So.3d 957 (Fla. 4th DCA 2015)   Trial court erred when it allowed state, mid-trial, to amend the information to add officer as an alternative victim under the resisting without violence charge because the mid-trial amendment was not a mere clarification of some detail in an existing charge, but rather, was tantamount to adding a new charge against defendant. This was not a case of simply correcting the name of the victim where only a single officer was involved and no one, including the defendant, reasonably could have been misled as to the identity of the victim.

INJUNCTION

Hall v. State, 2D14-2321 (Fla. 2d DCA Jan. 5, 2016)  Where it was undisputed at trial that the victim’s statements led the defendant reasonably to conclude that the domestic violence injunction was no longer in effect, the trial court erred in failing to grant the defendant’s motion for a judgment of acquittal on the charge of violation of the domestic violence injunction.

INTRODUCING CONTRABAND

Brief by Richard Sanders

JUVENILE

Landrum v. State, SC15-1071 (Fla. June 9, 2016) “[T]he Supreme Court’s decision in Miller applies to juvenile offenders whose sentences of life imprisonment without parole were imposed pursuant to a discretionary sentencing scheme when the sentencing court, in exercising that discretion, was not required to, and did not take ‘into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ Miller, 132 S. Ct. at 2469.”

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.

M.B. v. State, 5D14-2979 (Fla. 5th DCA March 13, 2015) A trial court errs by ordering a 14-year-old juvenile offender to register as a sex offender after the trial court expressly found that the juvenile touched his victim’s genitals over their clothing.  Section 800.04(5)(c)1, Florida Statutes, only permits a trial court to order a juvenile offender to register as a sex offender “where the court finds molestation involving unclothed genitals…”

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

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.

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

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.

PARAPHERNALIA

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

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.

REPUTATION

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

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.”

RESTITUTION

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.

SEARCH AND SEIZURE

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.

SELF-DEFENSE

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.

SENTENCE

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.

SEX CRIMES

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

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.

SPEEDY TRIAL

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

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.

STATUTE OF LIMITATIONS

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.

TAMPERING

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.

TAPE

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.

THEFT

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.

TRESPASS

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.

VIOLATION 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.

VOIR DIRE  

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.

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.

WITNESS

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.

YOUTHFUL OFFENDER

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)).

AGGRAVATED ASSAULT

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.

BEST EVIDENCE

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.

BIAS

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.

BRADY

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.

BOLO

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

BOND

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.

BURGLARY TOOLS

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.

CANINE SNIFF

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

 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.

CELL PHONE

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.

CIRCUMSTANTIAL EVIDENCE

Smith v. State, 170 So.3d 745 (Fla. 2015) Where the only proof of guilt is circumstantial, no matter how strongly 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.

CLOSING ARGUMENT

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.

CONFLICT

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.

CONFIDENTIAL INFORMANT

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.

CONSOLIDATION

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.

CONSPIRACY

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.

CONSTRUCTIVE POSSESSION

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.

CONTINUANCE

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.

CORPUS DELICTI

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.

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.

DISCOVERY

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.

DOMESTIC VIOLENCE

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.

DOUBLE JEOPARDY

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.

DOWNWARD/UPWARD DEPARTURE

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.

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.

DRUGS

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.

ENTRAPMENT

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.

EVIDENCE

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.

FALSE CONFESSION

 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) he 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.

FIFTH AMENDMENT

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.

FORFEITURE

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.

HEARSAY

North v. State, 2D16-2030 (Fla. 2017) Where defendant was charged with dealing in stolen property on basis of his taking and selling of his employer’s scrap metal, it was error to exclude defendant’s testimony that he had been given permission in email messages to take the scrap metal for himself — Defendant’s prospective testimony was not inadmissible hearsay, as the statements went to defendant’s state of mind, and not to prove the truth of the matter asserted.

Davis v. State, 207 So.3d 177 (Fla. 2016) The absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make dying declarations admissible under exception to hearsay rule under Florida Statute 90.804(2)(b). In order for the dying declaration exception to the hearsay rule to apply, the deceased must have known and appreciated his condition as being that of an approach to certain and imminent death, although it is not necessary that the declarant make express utterances that he would never recover. In determining whether to admit hearsay as a dying declaration, the court should satisfy itself, on the totality of circumstances, that the deceased knew he was dying.

Gudmestad v. State, 209 So.3d 602 (Fla. 2nd DCA 2016) Under Florida Statute 90.806(1) governing attacking and supporting credibility of a hearsay declarant, a hearsay declarant is treated as a witness, and his or her credibility may be attacked in the same manner as any other witness’s credibility.

Kaseta v. State, 2D12-6431 (Fla. 2d DCA June 3, 2016) Reversing a conviction for manslaughter and reversing for a new trial, the trial court reversibly erred by permitting the victim’s sister to testify that her late father related to her a neighbor told him there was a disturbance at a mobile home where the defendant and victim lived on the evening before victim’s disappearance.  “Given the paucity of the State’s evidence even that Mimmovich is dead, let alone that Kaseta killed her, we easily reject the State’s assertion that permitting Martin’s improper testimony was harmless error. To the contrary, Kaseta’s conviction may well have unfairly turned on it.”

Leonard v. State, 2D15-1949 (Fla. 2d DCA June 10, 2016) Following a bench trial, the defendant was convicted of leaving the scene of an accident with death contrary to section 316.027, Florida Statutes (2009), a first-degree felony, and tampering with evidence contrary to section 918.13, Florida Statutes (2009), a third- degree felony. During the bench trial, a detective explained that he contacted the tag agency and learned that Mr. Leonard had changed the registration and license plate of the vehicle from his sister to himself. Mr. Leonard’s counsel immediately objected on hearsay grounds, but the trial court overruled the objection.  As to the conviction for tampering with evidence, the trial court erroneously admitted hearsay testimony over timely defense objection; as it is not clear from the record that the trial court did not rely on that evidence in reaching its determination of guilt, the conviction for tampering must be reversed and remanded for a  new trial.

Lopiano v. State, 164 So.3d 82 (Fla. 4th DCA 2015) Police officer’s statements during interview that he did not believe defendant’s denials of officer’s accusation that defendant digitally penetrated alleged victim were not admissible in prosecution for lewd or lascivious molestation, where the probative value of the statements was sufficiently outweighed by the unfair prejudice to his defense engendered by admission of the officer’s commentary.   A police officer’s testimony or comments suggesting a defendant’s guilt invades the province of the jury to decide guilt or innocence.

J.B. v. State, 166 So.3d 813 (Fla. 4th DCA 2014) Hearsay testimony of store security officer in delinquency adjudication proceedings, relating his co-worker’s statement that subject juvenile took bracelet from store, was not admissible to explain “state of mind” of officer who heard hearsay or to explain logical sequence of events.

IDENTITY

Holborough v. State, No. 4D11-3552 (Fla. 4th DCA November 28, 2012) At the trial of this crime against a person, the trial court erred in allowing hearsay evidence alone to establish the victim’s identity. Because there was not competent evidence of the victim’s identity, we reverse and remand for a new trial.  Another issue in this case is whether the identity of the victim was an essential element of the crime charged that the State was required to
prove beyond a reasonable doubt. We conclude that it was. It is well established in Florida law that for crimes against persons, the name of the person victimized is an essential element of the crime that the State must prove beyond a reasonable doubt in a criminal prosecution. The dual rationale for this rule is that it “inform[s] the
defendant of the charge against him and . . . protect[s] him against another prosecution for the same offense.”

Jershun v. State, 169 So.3d 232 (Fla. 4th DCA 2015) When the state must establish the existence of a prior conviction to prove an essential element of the offense, merely introducing a judgment, which shows identity between the name on the prior judgment and the name of the defendant, is insufficient. Instead, the state must present affirmative evidence that the defendant and the person named on the prior judgment are the same person.

IMPEACHMENT

Calloway v. State, 210 So.3d 1160 (Fla. 2017) A party can open the door to otherwise inadmissible evidence through testimony from a witness. In the interests of fairness and the truth seeking function of a trial, the opposing party may in turn present inadmissible evidence that qualifies, explains or limits previously admitted evidence. Self-serving hearsay statements are generally inadmissible, but if a partial statement, writing, or recording is admitted, the rule of completeness permits the opposing party to introduce other portions of that same statement, writing, or recording in the interest of fairness.

Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016) Where there has been a prior felony conviction, only the fact of conviction can be brought out, unless the witness denies the conviction. If the witness denies ever having been convicted, or misstates the number of previous convictions, counsel may impeach the witness by producing a record of past convictions.

 Davis v. State, 207 So.3d 177 (Fla. 2016) To be admissible, a prior inconsistent statement must either directly contradict or materially differ from the expected testimony at trial. Moreover, the inconsistency must involve a material, significant fact rather than mere details.

INFORMATION

 State v. Gonzalez, 212 So.3d 1094 (Fla. 5th DCA 2017) “Material witness” is one whose testimony is both legally relevant, (meaning it tends to prove or disprove a material fact) and substantial (meaning that it supports the elements of the charged crime) as that term is used in criminal procedure Rule 3.140 providing that information charging the commission of a felony shall be signed by State Attorney under oath stating his good faith in instituting the prosecution and certifying that he has received testimony under oath from material witness for the offense.

Carlson v. State, 166 So.3d 957 (Fla. 4th DCA 2015) Trial court erred when it allowed state, mid-trial, to amend the information to add officer as an alternative victim under the resisting without violence charge because the mid-trial amendment was not a mere clarification of some detail in an existing charge, but rather, was tantamount to adding a new charge against defendant. This was not a case of simply correcting the name of the victim where only a single officer was involved and no one, including the defendant, reasonably could have been misled as to the identity of the victim.

Grant v. State, 138 So.3d 1079 (Fla. 4th DCA 2014) To enhance a defendant’s sentence under statute subjecting a defendant convicted of actually possessing a firearm during the commission of a robbery to a ten year mandatory minimum sentence, the grounds for enhancement must be clearly charged in the information.   Jury’s finding that defendant carried a firearm in the course of committing an attempted robbery, so as to support conviction for attempted armed robbery was insufficient to support ten year mandatory minimum sentence under statute authorizing such a sentence for a defendant who actually possessed a firearm during the commission of an attempted robbery. Jury made no finding that firearm was within immediate physical reach with ready access or that defendant had intent to use the firearm during the commission of the offense as required for constructive possession under the sentence enhancement statute.   Applicability of statute subjecting a defendant convicted of actually possessing a firearm during the commission of a robbery to a ten year mandatory minimum sentence is predicated on the defendant being found to have been in actual possession of the firearm.

INJUNCTION

Hall v. State, 2D14-2321 (Fla. 2d DCA Jan. 5, 2016)  Where it was undisputed at trial that the victim’s statements led the defendant reasonably to conclude that the domestic violence injunction was no longer in effect, the trial court erred in failing to grant the defendant’s motion for a judgment of acquittal on the charge of violation of the domestic violence injunction.

INTRODUCING CONTRABAND

Brief by Richard Sanders

JURY INSTRUCTION

Heare v. State, 205 So.3d 823 (Fla. 2nd DCA 2016) Appellant court reviews trial court’s decision to withhold a requested jury instruction for an abuse of discretion, and the question on review is whether there was any evidence, however slight, to support the requested instruction.

JUVENILE

Kelsey v. State, 206 So.3d 5 (Fla. 2016) Juveniles who are serving lengthy sentences are entitled to periodic judicial review to determine whether they can demonstrate maturation and rehabilitation.

Landrum v. State, SC15-1071 (Fla. June 9, 2016) “[T]he Supreme Court’s decision in Miller applies to juvenile offenders whose sentences of life imprisonment without parole were imposed pursuant to a discretionary sentencing scheme when the sentencing court, in exercising that discretion, was not required to, and did not take ‘into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ Miller, 132 S. Ct. at 2469.”

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.

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.

M.B. v. State, 5D14-2979 (Fla. 5th DCA March 13, 2015) A trial court errs by ordering a 14-year-old juvenile offender to register as a sex offender after the trial court expressly found that the juvenile touched his victim’s genitals over their clothing.  Section 800.04(5)(c)1, Florida Statutes, only permits a trial court to order a juvenile offender to register as a sex offender “where the court finds molestation involving unclothed genitals…”

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.

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.

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

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.

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.

RECLASSIFICATION

 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.

REPUTATION

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

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.”

RESTITUTION

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.

RICHARDSON HEARINGS

 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.

RICO

 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.

ROBBERY

 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.

SCORESHEET ERROR

 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.

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.

SEARCH WARRANTS

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.

SELF-DEFENSE

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.

SENTENCE

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.

SEQUESTRATION

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.

SEX CRIMES

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.

SPEEDY TRIAL

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.

STANDING

 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.

TAMPERING

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.

TAPE

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.

THEFT

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.

TRESPASS

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.

ULTIMATE ISSUE

 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

VALUATION

 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.

VEHICULAR HOMICIDE

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.

VERDICT

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   

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.

VOIR DIRE  

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.

WEAPONS

 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.

WILLIAMS RULE

 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.

WITNESS

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.

YOUTHFUL OFFENDER

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)).

ARTICLES

Mandatory Minimum Sentences: Handcuffing the Prisoner or the Judge?

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