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.

ANTI-MURDER

Mobley v. State, 1D19-1594 (Fla. 1st DCA 2020) Court must make a written findings that a violent felony offender of special concern poses a danger to the community.

BATTERY

Morris v. State, 1D17-552 (Fla. 1st DCA 2017) “Just as parents are privileged to administer corporal discipline to their children and touch them non-abusively against their will, ‘the law permits, by privilege, a simple battery in the administration of discipline by [other persons with] authority over a child.’ …This parental corporal discipline privilege extends specifically to teachers and school personnel acting in loco parentis, negating their potential liability for committing simple battery.”

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.

BRADY EVIDENCE

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

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.

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.

Medina v. State, 4D15-4134 (Fla. 4th DCA 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

I.L. v. State, 3D17-1108 (Fla. 3rd DCA 2018) Where the building at issue was under construction and had no roof, the structure requirement of burglary of a structure (FS 810.02(2)(4)(a)) is not satisfied.

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.

Cannabis

STATE OF FLORIDA, Plaintiff, v. ORISSON NORD, (20-CF-57. 2020) Odor of cannabis coming from defendant’s parked vehicle, with no other reasonable suspicion of criminal activity, did not provide valid basis to detain defendant and perform warrantless search of vehicle or defendant because odor of cannabis is indistinguishable from odor of now-legal hemp

CARRYING CONCEALED FIREARM

Kilburn v.State, 1D18-4899 (Fla. 1st DCA 2020) Defendant cannot be stopped and searched based on the officer’s observation of the concealed weapon absent evidence apparent at the moment that the Defendant did not have the concealed weapons permit. A law enforcement officer may not use the presence of a concealed weapon as the sole basis for seizing an individual.

Jackson V. State, 4D18-3021 (Fla. 4th DCA 2020). An element of the crime of carrying a concealed weapon is that the defendant was not licensed to carry a concealed weapon. Burden of proof on this element is on the State, rather than on the Defendant to assert as an affirmative defense. Fundamental error occurs when information fails to allege that the Defendant was not licenced and objected to jury instructions do not mention the element.

Brunson v. State, 211 So.3d 96 (Fla. 4th DCA 2017) At time of defendant’s encounter with police, his firearm was not “readily accessible for immediate use” within meaning of statute providing that it is lawful for a person to possess a concealed firearm for self-defense or other lawful purpose within interior of a private conveyance, without license, if the firearm is not readily accessible for immediate use, and thus, defendant could not be convicted of carrying a concealed firearm when the police subsequently found the firearm underneath the front seat of the car after the defendant informed the police as such at a place away from the car.

CELL PHONE

Garcia v. State, 5D19-590 (Fla 5th DCA 2020)The Fifth Amendment protects a person from the compelled disclosure of a passcode to a passcode-protected smartphone. Compelling a defendant to provide orally the passcode to his smartphone is a testimonial communication protected under the Fifth Amendment and the foregone conclusion exception or doctrine does not apply to compelled oral testimony. The Fifth Amendment’s protection also encompasses compelled statements that lead to the discovery of incriminating evidence. “Distilled to its essence, the revealing of the passcode is a verbal communication of the contents of one’s mind.” Conflict and question of great public importance certified.

Carpenter v. State, No. SC15-2125 (Fla. 3rd DCA 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.

CHILD NEGLECT

Lanier v. State, 264 So.3d 402 (Fla. 1st DCA 2019) For purposes of a charge of neglect of a child, culpable negligence means more than a failure to use ordinary care. For purposes of a charge of child neglect, culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily harm.

CIRCUMSTANTIAL EVIDENCE

Stephens v. State, 44 Fla. L. Weekly D1308a ( Fla.1st DCA 2019) Theory that evidence of the burglary is too circumstantial to sustain a conviction because someone else might have committed the burglary and put the stolen items in the car occupied by the defendant is too far-fetched to compel the court to grant a motion for judgment of acquittal.

CLOSING ARGUMENT

Williams v. State, 209 So.3d 543 (Fla. 3rd DCA 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.

COMPETENCY

McCray v. State, No. 2D17-332 (Fla. 2nd DCA 2017) Where defendant has been adjudicated incompetent to proceed, trial court thereafter ordered a continuing program of conditional release, and appellate court, on certiorari review, that held that, as a matter of statutory text, defendant was ineligible for placement on conditional release under section 916.17, trial court was not prevented from imposing appropriate release conditions pursuant to rule 3.2129(d) following remand – Neither law of the case doctrine nor res judicata doctrine prevented state from seeking conditions of release under rule 3.212(d) for the first time on remand.

CONFLICT

Miller v. State, 161 So.3d 354 (Fla. Fla. 2nd DCA 2018 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.

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.

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

Lovelace v. State, 1D 19-243 (Fla 1st DCA 2020) Defendant cannot be found guilty of possession of a controlled substance in a jointly occupied area absent additional evidence of knowledge/dominion and control.

Wiley v. State, 2D18-878 (Fla. 2nd DCA 2020) Defendant cannot be found to be in constructive possession of drugs found in the safe in a jointly possessed home. Where possession is constructive, State must prove that Defendant (1) had knowledge that the contraband was within his presence and (2) had the ability to exercise dominion and control over the contraband.

Sanders v. State, 2D15-2360 (Fla. 2nd DCA 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.

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. 3rd DCA 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

N.G.S. v. State, 44 Fla. L. Weekly D1316a (Fla. 2nd DCA 2019) Corpus Delicti bars evidence of Child’s confession to owning a gun found in a car occupied by the Child and two other people, not all of whom had been adjudicated delinquent. “If all of the occupants of the car in which the gun was found had previously been found to have committed delinquent acts. . .this would be a no-brainer affirmance. . .[H]owever, . . .this is one of those uncommon cases where. . .proof of the identity of the person who committed the offense was necessary to prove that a crime was committed at all.”

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

Doland v. State, 2D19-3310 (Fla 2ndDCA 2020)A sentencing court has discretion to grant jail credit on each individual consecutive sentence. DOC may not sua sponte reduce the credit based on its own calculation.

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.

CRIMINAL MISCHIEF

Quinn v. State, 4D19-2006 (Fla. 4th DCA 2020)Court improperly found Defendant to have violated probation for committing criminal mischief where Victim did not discover that her vase had been broken until after the Defendant chased her into the house and beat her with a door  stopper. Malice cannot be inferred. The doctrine of transferred intent cannot support a conviction for criminal mischief. Maximum sentence based on the other offenses is lawful.

 

CROSS EXAMINATION

Recco v. State, 264 So.3d 273 (Fla. 5th DCA 2019) Cross examination is not confined to the identical details testified to in chief but extends to its entire subject matter and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief.

Teachman v. State, 264 So.3d 242 (Fla. 1st DCA 2019) A defendant’s right to full and fair cross examination, guaranteed by the Sixth Amendment, may limit rape shield law’s application when evidence of the victim’s prior sexual conduct is relevant to show bias or motive to lie.

CULPABLE NEGLIGENCE

Medina v. State, 2D15-654 (Fla. 2nd DCA 2017) Reversing judgment and sentence for neglect of a child causing great bodily harm in violation of section 827.03, Florida Statutes (2012), the defendant’s conduct in allowing a four-year-old child to descend a flight of stairs unassisted—stairs that the child had regularly traversed previously without significant incident—did not rise to the level of culpable negligence or a willful failure to care for the child’s well-being.

DISCOVERY

Millette v. State, 1D15-2150 (Fla. 1st DCA 2017) Where the State fails to disclose an expert witness in discovery and the witness testifies (over objection) that a physical examination of the victim likely would not have shown signs of sexual abuse, the defendant is entitled to a new trial on a charge of sexual battery by a person in a position of familial custody.

Ward v. State, 165 So.3d 789 (Fla. 4th DCA 2015) State must designate, in discovery, the expert status of a police officer who will testify as an expert as a category A witness. State’s reference to “listed police officers” in portion of exhibit relating to reports or statements of experts was insufficient to comply with its discovery obligation regarding the designation of detective as an expert witness. The state’s burden to show that a discovery violation is harmless is extraordinarily high.

DISCOVERY- ALIBI & RESULTED WITNESS

Wilson v. State, 261 So.3d 723 (Fla. 1st DCA 2018) The State is required to disclose both alibi witnesses and rebuttal alibi witnesses as well as expert witnesses who have not provided a written report and curriculum vitae or who are going to testify.

DEADLY WEAPON

Bryant v. State, 1D19-915 (Fla 1st DCA 2020) A BB gun may be considered a deadly weapon.

DEALING IN STOLEN PROPERTY

Rodriguez v. State, 2D16-271 (Fla. 2nd DCA 2017) After the defendant stole farm-grade herbicide, the State charged the defendant with dealing in stolen property. The Second DCA reversed and held that the evidence was insufficient to establish the trafficking elements of the offense.

DEMONSTRATION

Caro v. State, 5D19-1818 (Fla. 5th DCA 2020)Unscientific experiment conducted by a police detective (shooting into a t-shirt from various distances) that was intended to prove that the victim was shot at close range was improperly admitted because it was not shown to be substantially similar to the actual event.

DNA – EXPERT TESTIMONY

Cruz v. State, 262 So.3d 244 (Fla. 2nd DCA 2018) Although a witness need not be a statistician or a mathematician to testify as an expert about the statistical significance of a DNA match, the witness must demonstrate a sufficient knowledge of the population database grounded in the study of authoritative sources.

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

McCray v. State, 5D20-566 (Fla. 5th DCA 2020)Fondling victim’s breasts and kissing her neck were a part of the same criminal episode, and therefore cannot support separate L & L convictions.

Johnson v. State, 1D19-1474 (Fla. 1st DCA 2020)One cannot be convicted of multiple counts of leaving the scene of a crash stemming from a single crash.

Rodriguez v. State, 5D19-2346 (Fla. 5th DCA 2020)Double jeopardy bars convictions for both home invasion robbery with a weapon (1st degree felony) and burglary of a dwelling with an assault with a weapon (1st PBL). The lesser crime should be (that which is the offense that has elements wholly subsumed by the other) should be vacated, even though, as here, the lesser offence (armed burglary) carries a more severe sanction.

Mitchell v. State, 44 Fla. L. Weekly D1294a (4th DCA 2019) Where Court modified probation to require drug treatment upon the Defendant’s testing positive for marijuana, the defendant cannot be later accused of violating probation on the basis of that positive test. Since Defendant’s probationary sentence had already been enhanced for the same violation of this condition, a second enhancement or punishment based upon the same violation would impose multiple punishments for the same offense.

Freeman v. State, 262 So.3d 863 (Fla. 2nd DCA 2019) Dual convictions for both scheme to defraud and grand theft violate double jeopardy when the convictions are based on the same course of conduct where the same evidence that defendant used a debit card to access victim’s funds 21 times over a period of three weeks without his permission was used to support both convictions.

Doyle v. State, 5D17-686 (Fla. 5th DCA 2018) The evidence adduced at trial was that Doyle sent a handwritten letter to his pastor, threatening “a slow and painful death” for the pastor’s children and their families if the pastor failed to deliver $15,000 to Doyle or if he notified the police. Under the circumstances, dual convictions and sentences for extortion under section 836.05, Florida Statutes (2015), and written threats to kill or do bodily injury under section 836.10, Florida Statutes (2015), violate double jeopardy.

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.

Johnson v. State, 1D16-5350 (Fla 1st DCA 2017) Where items were inside a vehicle at the time of a re-possession, dual convictions for grand theft auto and theft or property violate Double Jeopardy.

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

Kovalski v. State, 4D15-3916 (Fla. 4th DCA 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.

Concha v. State, 4D16-2046 (Fla. 4th DCA 2017) A trial judge committed fundamental error when he implied that he would not, as a general policy, consider the defendant’s mental health needs as a basis for downward departure. Reversed and remanded for resentencing before a different judge.

Reed v. State, 2D15-1458 (Fla. 2nd DCA 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.

DRIVING WITH A SUSPENDED LICENSE

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

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.

DRUG PARAPHERNALIA

R.C. v. State, 2D17-1976 (Fla. 2nd DCA 2016) Juvenile entitled to judgement of dismissal on two counts of possession of drug paraphernalia where evidence failed to establish that residue on alleged paraphernalia was a controlled substance.

DUI

STATE OF FLORIDA, v. KEVIN DAUGHTRY 2804DAUG(Fla 4th DCA 2020) where defendant, who was lawfully stopped and detained, was never asked if he would consent to field sobriety exercises, but merely submitted to trooper’s show of apparent authority that would lead reasonable person to conclude that he was not free to leave or refuse, motion to suppress exercises is granted — Post-arrest evidence is also suppressed where there was no probable cause for arrest without evidence of exercises.

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

Gonzalez v. State, 3D18-980 (Fla. 3rd DCA 2020) Gloves found in a van are inadmissible absent a showing that they were used in the crime (State: “This glove just makes it more likely that these people were up to no good.”). Evidence requiring an extended chain of inferences to be relevant or that suggests an improper basis for the jury’s verdict should be excluded. The probative value, if any, of such evidence was far outweighed by its

prejudicial effect.

Walker v. Harley-Anderson, 4D19-2216 (Fla 5th DCA 2020) Text messages from a phone not identified as the appellant’s and with inconclusive contextual clues are not properly authenticated. There is no specific list of requirements for authentication. Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. Testimony that a person received a text or email from another is not sufficient, by itself, to authenticate the identity of the sender, but other factors can circumstantially authenticate the text.

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.

EYEWITNESS IDENTIFICATION

Bugg v. State, 5D19-2108 (Fla 5th DCA 2020) Eyewitness Identification: Officer’s testimony relating description of the suspect by a witness is hearsay and not subject to the witness identification exception to the hearsayrule (90.801(2)(c)). A description is not an identification. Here, error is harmless.

FALSE CONFESSION

McCloud v. State, 208 So.3d 668 (Fla. 3rd DCA 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. 2nd DCA 2015) The State concedes that the trial court erred in denying Mr. Peeples’ motion to suppress because the stop of his car was unauthorized—law enforcement did not have a reasonable safety concern based on Mr. Peeples’ one failure to maintain a single lane that did not endanger the deputies or anyone else.

FELON IN POSSESSION OF A FIREARM

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.

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.

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.

FINGERPRINTS

Wiley v. State, 2D18-878 (Fla 2nd DCA 2020)  A fingerprint on an item containing contraband does not in itself prove the defendant’s knowledge of the container’s contents, because the fingerprint just as likely could have predated the introduction of the contraband into the container.

FLEE AND ELUDE

Canidate v. State, 4D16-4162 (Fla. 4th DCA 2018) The mere fact that the Defendant “weaved,” without more, is insufficient to show a conscious and intentional indifference to consequences in order to sustain a conviction for high speed or wanton fleeing pursuant to F.S. 316.1935(3)(a) (2016).

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.

GRAND THEFT

Bruce v. State, 44 Fla. L. Weekly D1284a (Fla. 4th DCA 2019) Victim’s testimony that her daughter told her that the stolen bracelet was worth close to $300 is insufficient to establish the felony value. The sheer volume of the items stolen cannot sustain an inference that the cumulative value is above $100. “[E]ven where stolen items would appear to have a minimum value based on the nature of the item, a lack of evidence as to that value is typically fatal.”

Johnson v. State, 1D16-5350 (Fla. 1st DCA 2017) Reversing a conviction for grand theft auto, the defendant lacked the requisite criminal intent where he re-possessed a vehicle in broad daylight and contacted police to report the intended re-possession as a result of non-payment of a loan. “The evidence presented regarding Johnson’s intent at the time of taking supports only a conclusion that he re-possessed the car as collateral for the unpaid loan.” Further, dual convictions for grand theft auto and theft of property within the vehicle at the time of the taking violate double jeopardy principles.

GOLDEN RULE

Allen v. State, 261 So.3d 1255 (Fla. 3rd DCA 2019) A Golden Rule closing argument asks the jurors to place themselves in the victim’s position, and asks the jurors to imagine the victim’s pain and terror or imagine how they would feel is the victim were a relative.

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.

Holborough v. State, No. 4D11-3552 (Fla. 4th DCA 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.”

IMPEACHMENT

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

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. 2nd DCA 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.

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.

JURY SELECTION

Pacchiana v. State, 4D15-3340 (Fla. 4th DCA 2018) “Here, the juror was not questioned about her religious views until after the state made its preemptory strike, thus calling its genuineness into question. Moreover, even after questioning the prospective juror about her religion, there was a complete lack of evidence that her religion would influence her decision-making as a juror. In fact, the juror unequivocally stated she would follow the evidentiary standard beyond a reasonable doubt and none of her responses during voir dire gave any reason to doubt this statement. Further, after the trial court determined that being a Jehovah’s Witness was a race-neutral reason to strike the juror from the panel and that she wavered on sentencing, the court opined that ‘a Jehovah Witness, that as a religion, it would almost be malpractice for a prosecutor to let someone on the jury like that.’ These statements support the argument that it was not the juror’s answers, but rather her mere religious affiliation, that caused her to be struck from the panel. Even if the state’s strike were ‘genuinely’ based on the juror’s religion, members of a religion that is a cognizable class are also protected under the United States and Florida Constitutions from being systematically struck from juries solely based on their faith. Appellant has a right to a fair and impartial jury panel where the state does not exclude members of a religion in the absence of competent substantial evidence that the potential juror cannot be fair and impartial due to her views related to her membership in that religion. ”

Rentas v. State, 4D160533 (Fla. 4th DCA 2018) A trial judge reversibly errs by denying strikes for cause of two prospective jurors based on statements raising doubts as to their impartiality where both questioned the validity of false confession allegations. A trial court reversibly errs by limiting playback of a victim’s recorded testimony to the first twenty minutes without playing cross-examination as well because the first portion of the testimony solely supported the State’s case.

JUVENILE

K.D. v. State, 4D19-2196 (Fla. 4th DCA 2020) Court lacks jurisdiction beyond the age of 19 over a Child in cases for which he is not a sex offender, notwithstanding that in a different case he is on supervision as a juvenile sex offender.

E.G. v. State, 263 So.3d 81 (Fla. 4th DCA 2019) Failure to consider a predisposition report (PDR) in a juvenile delinquency proceeding before disposition is reversible error.

Brown v. State, 263 So.3d 48 (Fla. 4th DCA 2018) State direct filing charges of vehicular homicide, fleeing and eluding, and driving while license canceled, suspended, or revoked causing serious bodily injury or death against juvenile defendant in adult court was improper under Florida Statute 985.557(1)(a) allowing discretionary direct filing for certain enumerated crimes, where the list did not include lesser included offenses for the enumerated list, and none of the crimes charged were part of the enumerated list.

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. 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 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

Fields v. State, 2D18-5067 (Fla. 2nd DCA 2020)  Trying to turn a door handle of a house is not loitering and prowling.  A vaguely suspicious presence is insufficient to establish the first element of the crime.

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.

MURDER

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.

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.

NEBBIA HOLD

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

NEW TRIAL- STANDARD

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

OPEN TESTIMONY

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

OPEN VIEW DOCTRINE

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

PARAPHERNALIA

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

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

PLAIN VIEW DOCTRINE

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

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

Pornography

Goesel v. State, 2D19-2730 (Fla. 2nd DCA 2020)Search warrant including failed to establish probable cause. First, it contained nothing to support the detective’s conclusory assertion that the photo at issue qualified as child pornography. Second, it did not establish that the Detective had any training or expertise in identifying child pornography.

POSSESSION WITH THE INTENT TO SELL

Barr v. State, 1D19-147 (Fla 1st DCA 2020) Defendant may not be convicted of possession with intent to sell based on him being in the rear of the vehicle in close proximity to, or an actual possession of, 3.8 grams of cannabis, 2.7 grams of powder cocaine in a plastic baggie, crack cocaine in several different pieces in a small plastic container, a cigarillo and a razor blade, notwithstanding officer’s testimony that someone having multiple drugs is generally indicative of sale and is not typically seen on the user.

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.

POSSESSION OF RECENTLY STOLEN PROPERTY

Joseph v. State, 5D17-3907 (Fla. 5th DCA 2019) State is not entitled to the inference of guilt arising from the Defendant’s possession of recently stolen property where the possession is not exclusive.

Prescription Defense

Maksymowska v. State, 2D18-4697 (Fla 2nd DCA 2020)Defendant was entitled to a prescription defense jury instruction. Holding a controlled substance as an agent for a person who had a prescription is an affirmative defense to the possession charges. A prescription defense instruction is necessary where there is evidence that the defendant was holding a controlled substance as theagent of another individual to whom it was prescribed.

PRIMA FACIA EVIDENCE

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

PRINCIPAL

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

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

PRIOR CONVICTIONS

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

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

PRISON RELEASE REOFFENDER

Helms v. State, 44 Fla. L. Weekly D1288a (Fla. 4th DCA 2019) To qualify as a prison releasee re-offender the Defendant must have been incarcerated in and physically released from a prison, not a county jail.

PROBATION

Kelsey v. State, 1D19-2665 (Fla 1st DCA 2020)Court may not prohibit early termination of probation.

Bowman v. State, 4D20-2514 (Fla. 4th DCA Mar 2022) A condition of probation requiring a probationer to consent at any time to a warrantless search by a law enforcement officer is a violation of article I, section 12, of the Florida Constitution, and the fourth amendment to the United States Constitution. The search of a probationer’s person or residence by a probation supervisor without a warrant is lawful; granting such general authority to law enforcement officials is not.

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

Lobb v. State, 2D18-4137 (Fla. 2nd DCA.  2020). Defendant who apparently was impaired by drugs but had not lost the power of self-control when she was found sleeping in the grass was not eligible for Marchman Act detention. Officer who detained her was not in the lawful execution of a legal duty. Defendant is entitled to Judgment of Acquittal.

N.C. v. State,  3D19-613  (Fla 3rd DCA 2020) Officers may not detain Defendant because he previously had lied about his identity during a consensual encounter. Conviction for resistance without violence based on flight from officers vacated. It is not unlawful to give a false name during a consensual field interview.

T.P. v. State, 2D15-5543 (Fla. 2nd DCA 2017) A conviction for resisting an officer without violence must be reversed where the evidence does not show the officer was engaged in the lawful execution of a legal duty: REASONABLE SUSPICION TO STOP: “In this case, the State presented no testimony that flight took place in a high-crime area, and the officer observed no suspicious activity prior to ordering T.P. to stop. The only suspicious activity was reported by an unidentified 911 caller who provided a vague description of a light-skinned black male wearing shorts and a shirt looking through windows. Under the circumstances of this case, we conclude that the officer lacked the requisite reasonable suspicion to stop T.P.” CONSENSUAL ENCOUNTER: “The officer was not justified in detaining T.P. at the time he approached him, and T.P.’s flight in response to the officer’s attempted consensual encounter was not sufficient here to provide the officer with reasonable suspicion. Again, this case is distinguishable from R.R., in which the officer observed suspicious activity prior to the juvenile’s flight, and there is no evidence that the flight took place in a high-crime area…”

D.L.S. v. State, 2D14-5215 (Fla. 2nd DCA 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 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

E.J.A. v. State, 4D19-3520 (Fla 4th DCA 2020) In car burglary case, victim’s $412 payment to tow lot to release car from impoundment and for re-keying is not compensable restitution.

James v. State, No. 4D15-4854 (Fla. 4th DCA  2017) The trial court abused its discretion in ordering restitution for 20 pieces of additional jewelry that the State did not include in the information. “[I]n this case, the crime of theft and the crime of dealing in stolen property are unrelated and constitute separate criminal episodes that, here, were separated by time, place, and manner of commission.”

J.D. v. State, 212 So.3d 1144 (Fla. 5th DCA 2017) The trial court abused his discretion when it ordered juvenile to pay over $10,000 in restitution which included reimbursement for items that allegedly were stolen from the victim’s residence and were not disclosed until the restitution hearing, in delinquency proceeding. The victim did not disclose the additional items until several month after juvenile had plead no contest to burglary and the additional items were not listed in the plea agreement, delinquency petition, predisposition report, or any other discovery.

State v. Tomasheski, 4D12-4070 (Fla. 4th DCA 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.

SCORESHEET

Brown v. State, 4D20-1068 (Fla 4th DCA 2020)Any offenses for which Defendant is not being sentenced are prior record, not additional offenses.

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 re-sentenced for felony battery, despite state’s contention that the error was harmless because the points assessed for the sixth misdemeanor were the same as those that should have been assessed for misdemeanor battery as an “additional offense” on the scoresheet.

SEALING AND EXPUNGEMENT

J.F.T. v. State, 5D20-907 (Fla 5th DCA 2020) Discretion to deny expunction is not unfettered. Expunction may not be arbitrarily denied. Remanded for reconsideration of Denial of Expunction in juvenile case.

Lazard v. State, 5D16-39763 (Fla. 5th DCA 2017) Where Defendant plead to child abuse, FDLE may not deny application for certificate of eligibility to seal record because Defendant plead guilty to a charge related to an act of domestic violence. Court must make the finding as to whether the offense related to an act of domestic violence, precluding the record from being sealed. Failure to issue certificate should be raised by petition for mandamus.

SEARCH INCIDENT TO ARREST

Harris v. State, 3D16-1101 (Fla. 3d DCA 2018) Despite the search incident to arrest exception and automobile exception, and consent exception, a trial court reversibly errs by denying a motion to suppress where the police searched a backpack worn by the defendant riding a dirt bike. (The trial court made no finding as to consent.)

SEARCH WARRANTS

Castro v. State, No. 2D16-1466 (Fla. 2nd DCA 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

Lopez v. State, 3D18-2217 (Fla 3rd DCA 2020) Defendant is entitled to the nondeadly force instruction where he testified that he retrieved a gun from the back of his truck because he thought the victim was armed, but did not threaten the victim with it.

Williams v. State, 261 So.3d 1248 (Fla. 3rd DCA 2019) A trial court must grant a judgment of acquittal when the state’s case is legally insufficient to rebut a defendant’s prima facie case establishing self-defense. Any inconsistency between the evidence and the defendant’s self-defense theory must be resolved by the finder of fact, but evidence that leaves room for two or more inferences of fact, at least one of which is consistent with the defendant’s hypothesis of innocence, is not legally sufficient to make a case for the jury. State failed to rebut defendant’s theory of self-defense that victim initiated altercation in which defendant was able to fight to gain control of victim’s gun and use it in self-defense, as to first-degree premeditated murder charge, and thus defendant was entitled to grant of judgment of acquittal.

Stickney v. State, 4D16-1803 (Fla. 4th DCA 2018) A trial court abuses its discretion by instructing the jury on the victim’s right to self defense. “Here, the modified jury instruction on [the victim’s] right to use non-deadly force was misleading and confusing, because it improperly shifted the focus of the case from appellant’s claim of self-defense to the issue of [the victim’s] right to use force. Because [the victim] was not charged with any offense, the question of whether [the victim] was legally justified in using force against appellant was not at issue in this case.”

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 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.

SELF-DEFENSE – CHARACTER EVIDENCE

Lantz v. State, 263 So.3d 279 (Fla. 1st DCA 2019) Where a defendant asserts that he acted in self-defense or there is doubt about who was the first aggressor, evidence of the victim’s aggressive character may be admitted to show that the victim acted in conformance with that character trait at the time of the crime.

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. 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

Ortiz-Lopez v. State, 2D18-4910 (Fla 2nd DCA 2020)Where Defendant is arrested on an out of county warrant, held there until his local VOP was resolved, then brought to the county of the substantive offence, all without an information having been filed, Defendant is entitled to discharge without the necessity of filing a Notice of Expiration. State is not entitled to recapture period. The speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired. and is not entitled to any recapture period.

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.

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 v. Warren, 5D14-1266 (Fla. 5th  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

Derossett V State, 5D19-0802 (Fla 5th Dca 2020) The parties are before this court for a second time on the petition filed by John Derossett seeking a writ to prohibit the continued prosecution of the three charges pending against him, each for attempted premeditated first-degree murder of a law enforcement officer while discharging a
firearm regarding an incident that occurred at his home on the night of August 20, 2015. Derossett argues that the trial court erred in denying what is commonly referred to as a Stand Your Ground motion that he filed.

Little v. State, 4D18-3128 (Fla. 4th DCA 2020) Attempted car burglary (jiggling a car door handle) is not a forcible felony justifying SYG immunity for Defendant who detained suspect at gunpoint. Display of a deadly weapon, without more, is not deadly force.

Martin v. State, 2D16-4468 (Fla. 2nd DCA 2018) We hold that the 2017 amendment to section 776.032, the Stand Your Ground law, is procedural in nature and, therefore, retroactive in application; that, as such, it applies to pending cases, including those on appeal; and that Mr. Martin is entitled to a new immunity hearing under the amended procedure of the statute. Accordingly, we must reverse the circuit court’s judgment and conviction.

State v. Peraza, 4D16-2675 (Fla. 4th DCA 2017) Finding the law enforcement officers are eligible to assert the Stand Your Ground defense under F.S. 776.012 and 776.032, the Fourth District agreed with the trial court that “the officer reasonably believed using deadly force was necessary to prevent imminent death or great bodily harm to himself, his sergeant, and the nearby citizens.” Whether a law enforcement officer, who while making a lawful arrest, uses deadly force which he or she reasonably believes is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony, is limited to invoking a defense under section 776.05(1). Or is also permitted to seek immunity from criminal prosecution under sections 776.012(1) and 776.032(1), Florida statutes (2013), more commonly known as Florida’s “Stand Your Ground” law.

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.

Mackey v. State, 1D21-1326 (Fla. 1st DCA Jan 2022) Where drug sale offenses occurred in June 2012 and informations were filed one year later, but the capiases were not served until July 2020, the Defendant is entitled to discharge. Where a person has not previously been arrested or served with a summons, prosecution commences when an indictment or information is filed provided that the capias is executed without unreasonable delay. NCIC database notation that Defendant had been arrested out of state during the relevant time period is inadmissible hearsay, and does not establish continuance absence anyways. Proof of two days out of Florida does not equal proof of a continuous absence to toll the statute of limitations.

SUBPOENA FOR MEDICAL RECORDS

Gomillion. v. State, 2D18-1640 (Fla. 2 DCA March 2019) The defendant filed a petition for a writ of certiorari asking us to quash an order denying his objection to the State’s Subpoena of his toxicology records for purposes of his criminal prosecution.

McKnight v State, 21-1280 (Fla. 5th DCA Feb 2022) A trial court departs from the essential requirements of law when it allows disclosure of medical records absent a showing of the requisite nexus. A general request for the issuance of a subpoena for medical records in a DUI investigation is insufficient. State must present evidence making it reasonable to believe that defendant’s toxicology records would turn up evidence that he was under the influence of drugs or alcohol.

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

W.J.M. v. State, 2D17-3530  (Fla 2nd DCA 2020) Evidence that a person was a passenger in a stolen vehicle is insufficient to prove that the person stole the vehicle, even if the passenger knew the vehicle was stolen.

C.S. v. State, 3D 18-2491 (Fla. 3rd DCA 2020). Testimony that the Victim purchased an Apple iPhone 7
Plus for $700 one month before is sufficient to establish that the value exceeded $300.

Johnson v. State, 1D16-5350 (Fla 1st DCA 2017) Where items were inside a vehicle at the time of a re-possession, dual convictions for grand theft auto and theft or property violate Double Jeopardy.

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

Macedo v. State, 4D19-2484 (Fla 4th DCA 2020)Victim’s may not testify about the value of a watch based upon an appraisal which was hearsay; Error harmless.

C.S. v. State, 3D 18-2491 (Fla. 3rd DCA 2020). Testimony that the Victim purchased an Apple iPhone 7 Plus for $700 one month before is sufficient to establish that the value exceeded $300.

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.

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.

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 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.

VOIR DIRE

Hopkins v. State, No. 4D15-4266 (Fla. 4th DCA 2017) The trial court abused its discretion in imposing an unreasonable time limitation on voir dire. “Given the large jury pool and the very few minutes the 3-hour time permitted counsel with each juror, the trial court abused its discretion in refusing to grant a few additional minutes, where there were jurors whom defense counsel could not reach within the allotted time for voir dire. The trial court committed reversible error in denying challenges for cause of two jurors who expressed doubts about their ability to follow the law if Hopkins did not testify.

Calloway v. State, 210 So.3d 1160 (Fla. 2017) Parties may not question potential jurors during voir dire about evidence that is expected to be presented during trial and request an initial decision from the prospective jurors as to how they will rule in the case.

West v. State, 168 So.3d 1282 (Fla. 4th DCA 2015) Melbourne establishes three step procedure that must be followed when party objects to the exercise of a preemptory challenge on the basis that it was made on a discriminatory basis and compliance with each step is not discretionary: (1) Objecting party must make a timely objection, showing that the venire person is a member of a distinct protected group, and request that the trial court ask the striking party to provide a reason for the strike; (2) if these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike, and the burden shifts to the proponent to come forward with a race, ethnicity, or gender neutral explanation; and (3) if the explanation is facially race, ethnicity, or gender neutral, the court must determine whether the explanation is a pretext given all the circumstances surrounding the strike, with the focus of this inquiry being the genuineness of the explanation. The proper remedy when the trial court fails to abide by its duty under this procedure is to reverse and remand for a new trial. New trial was warranted because trial court failed to conduct a genuineness analysis of the state’s preemptory challenge of a Hispanic juror, where state’s initial race neutral reason for its preemptory strike was that the juror was unemployed, trial court then corrected the state that the juror was a housekeeper and not unemployed, and the state responded that it did not want a housekeeper on the jury.

Spencer v. State, 162 So.3d 224 (Fla. 4th DCA 2015) Compliance with each step of the procedure for evaluating the challenge to opposing counsel’s exercise of a pre-emptory strike to a prospective juror is not discretionary, and the proper remedy when the trial court fails to abide by its duty is to reverse and remand for a new trial.

WARRANTLESS HOME ENTRY

State v. Markus, 211 So.3d 894 (Fla. 2017) A warrantless home entry, accompanied by a search, seizure, and arrest, is not justified by the exigent circumstance exception of hot pursuit when the underlying conduct for which there is alleged probable cause is a nonviolent misdemeanor and the evidence related thereto is outside the home. The reasonable expectation of privacy under the Fourth Amendment not only applies to the inside of a person’s home, but to the curtilage of the home as well. An overnight guest is afforded a reasonable expectation of privacy in his place of stay, and thus has standing to claim Fourth Amendment protection.

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. 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

Reyna v. State, 4D19-2306 (Fla 4th DCA 2020) In sexual assault case (unwanted fondling and penetration of a house guest) Court erred in admitting evidence of a separate incident of unwanted fondling of and sexual assertiveness on a different woman. For collateral sex crimes not involving minors to be admissible, ignificant similarity between the collateral evidence and the charged crime, evidence so similar and specific that it resembles a clear pattern of conduct, is required. The attack on the Williams rule witness on a bench in a public place is only minimally probative of the charged crime—repeated sexual batteries against a passed-out woman on a couch in a residential living room.

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.

WITNESS TAMPERING

McCloud v. State, D1759a (Fla. 2nd DCA 2017) Statute does not require state to prove that a witness was attempting to contact law enforcement during commission or possible commission of criminal offense in order to support conviction for witness tampering — Conflict certified — Evidence was sufficient to show that defendant knowingly used physical force, intimidation, or threat with intent to hinder or prevent communication by either battery victim or victim’s older daughter to law enforcement regarding the assault and battery — Various errors in judgment to be corrected on remand — Sentencing — Scoresheet — New sentencing hearing required where scoresheet improperly included multiplier based on domestic violence charge, although primary offense was witness tampering, not domestic violence.

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. 2nd DCA 2015) 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. 4^th DCA 2010)). (Host Test)