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© 2007-12 Easley Appellate Practice, P.L.L.C. (Since 1994) All rights reserved.
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Criminal law -- Sentencing -- Mandatory minimum -- Error to impose three-year mandatory minimum term under section 775.087(2)(a)1. for offense of attempted possession of firearm by convicted felon
Reported at 32 Fla. L. Weekly D2290a
Criminal law -- Juveniles -- Sentencing -- Departure from placement recommended by Department of Juvenile Justice on ground that juvenile was member of criminal street gang was not supported by competent substantial evidence -- Finding that juvenile was member of criminal street gang must be supported by at least two of eight criteria delineated in statute, and trial court's finding was based solely on observation that juvenile had a tattoo of a tear on his face -- Trial court also erred by failing to reference restrictiveness level vis-a-vis needs of juvenile
Reported at 32 Fla. L. Weekly D2289a
Criminal law -- Resisting officer with violence -- Knowledge that victim is law enforcement officer is essential element of offense of resisting officer with violence under section 843.01, which makes it unlawful to “knowingly and willfully resist, obstruct, or oppose” an officer in the execution of legal process or in the lawful execution of any legal duty -- In the case at issue, there were facts suggesting that undercover officer took steps to identify himself as police officer before attempting to arrest defendant and also facts to suggest that jury, if properly instructed and not affirmatively misled by the prosecution, could have determined that state failed to meet its burden on element of whether defendant knew that the person who attempted to detain him was a police officer -- Furthermore, standard jury instructions, which were no more than a verbatim restatement of the statute, insufficiently instructed jury on state's burden of proof, and trial court should have given special instruction requested by defendant, which would have prevented state from misleading jury as to its burden of proof -- New trial required
Reported at 32 Fla. L. Weekly S576a
Criminal law -- Robbery with firearm -- Possession of cocaine and drug paraphernalia -- Possession of firearm by convicted felon -- Trial court erred in dismissing two cases against defendant when key witness for state failed to appear for deposition or at trial where there was no indication that failure to appear was due to any fault on part of state, lesser sanctions had not been attempted to compel victim's appearance, and neither state nor defense counsel asserted that further efforts to secure victim's presence would have been futile
Reported at 32 Fla. L. Weekly D2305a
Criminal law -- Juveniles -- Obstructing officer without violence -- State failed to show that officer was engaged in lawful execution of legal duty at the time juvenile exited car in which he was passenger and ran off, despite officer's verbal order to stop, because officer lacked reasonable suspicion to believe that juvenile was engaged in criminal activity -- Officer had responded to intersection known as drug area in response to a report that vehicle had just been stolen; upon arrival he saw a truck and vehicle in which juvenile was passenger; driver of truck was honking horn, flashing lights, and pointing to the other vehicle; officer activated his lights and siren in attempt to stop vehicle to ascertain if it was the stolen car and determine the cause of truck driver's agitation; driver of vehicle raced away at high speed until cornered at dead end; and at this point driver and juvenile fled on foot despite being ordered to stop
Reported at 32 Fla. L. Weekly D2306a
Criminal law -- Search and seizure -- Residence -- Warrant -- Probable cause -- Error to grant motion to suppress evidence of marijuana found growing in defendant's home by police pursuant to search warrant on ground that dog sniff on front porch constituted an illegal search and could not be used as evidence of probable cause for search warrant -- Affidavit which stated that detective visited defendant's premises to corroborate anonymous tip that marijuana was being cultivated there, that detective smelled marijuana when he walked from sidewalk toward premises, and that detective and other officers returned to premises the following day and observed strong odor of marijuana emanating from the house while standing at the front door, was sufficient, even without evidence of the dog sniff, to demonstrate sufficient probable cause to support issuance of warrant -- There is no reasonable expectation of privacy at the entrance to property which is open to the public, including the front porch
Reported at 32 Fla. L. Weekly D2324a
Criminal law -- Evidence -- Hearsay -- Identification -- Error to admit testimony of police officers that witness who did not testify at trial had identified defendant as the person robbery victim had seen at a flea market wearing a medallion which had been stolen during the robbery
Reported at 32 Fla. L. Weekly D2321b
Criminal law -- Probation revocation -- Sentencing -- Claim that trial court violated defendant's due process rights by relying upon an impermissible factor in evaluating probation violation, the death of a passenger in the original case, was not preserved for appellate review where defendant failed to object to testimony concerning the death of the passenger -- Issue is also foreclosed from review by invited error doctrine -- Further, factors considered by trial court in sentencing defendant on violation of probation, including death of the passenger, were not impermissible -- Because plea agreement provided for a fifteen-year prison sentence if defendant violated plea agreement, and court imposed shorter term of ten years in prison, it does not appear that consideration of an impermissible factor affected the sentence
Reported at 32 Fla. L. Weekly D2320a
Criminal law -- Post conviction relief -- Timeliness -- Tolling -- Post conviction court erred when it dismissed Rule 3.850 motion and subsequent motion for reconsideration without considering the allegation that defendant had been imprisoned out-of-state from time his judgment and sentence became final until date he was returned to Florida and transferred to Florida state prison, during which time he was unrepresented by counsel and had no access to Florida law material -- It appears that under all these circumstances, incarceration out-of-state, lack of access to Florida legal materials, and lack of representation by counsel, the two-year time limit for filing rule 3.850 motion was tolled and did not begin to run until defendant was transferred to a Florida prison -- Thus, on face of unrefuted motion and attachments before postconviction court, two-year time for filing post conviction motion had not expired when defendant delivered the motion to prison authorities for mailing -- Remand for further proceedings
Reported at 32 Fla. L. Weekly D2349b
Criminal law -- Misdemeanor battery arising from operation of motor vehicle -- Sentencing -- Although judge commented during sentencing as to his belief that jury gave defendant a pardon by convicting her of lesser charges, emphasized his concern about seriousness of incident and punishment that defendant would have faced had she been convicted of the more serious charges, and briefly mentioned defendant's alleged contact with one of the victims after the incident, record does not support defendant's contention that reversal of sentences was required -- Sentences, although significant, were less than the maximum that judge could have imposed, and record demonstrates that sentencing process was fair and that factors considered by trial court in imposing sentences were relevant and reliable
Reported at 32 Fla. L. Weekly D2347a
Criminal law -- Conspiracy to traffic in cocaine -- Conviction of conspiracy to traffic in cocaine could not be based on defendant's possession or purchases of cocaine from two cocaine suppliers over 11-month period where each transaction involved less than 28 grams of cocaine, and no evidence established a specific agreement to purchase more than 28 grams of cocaine -- Because state proved beyond reasonable doubt that defendant conspired to purchase or possess cocaine with the intent to purchase, a lesser-included charge of conspiracy to traffic, trial court directed to enter conviction on lesser-included charge -- No merit to defendant's contention that federal decisions holding that no conspiracy exists when the participants are on different sides of the transaction apply to court's analysis -- Evidence of multiple sales of resale quantities of drugs is sufficient to permit conviction on lesser-included offense of conspiracy to purchase or possess cocaine with intent to purchase
Reported at 32 Fla. L. Weekly D2339a
Criminal law -- Aggravated assault -- Aggravated battery -- Sentencing -- Where trial court originally orally pronounced sentence of 14 years on aggravated assault count, which carried five-year maximum sentence, and five years on aggravated battery count, which carried a fifteen-year maximum sentence, sentence could not lawfully be “restructured” to reflect five-year sentence for aggravated assault and 14-year sentence for aggravated battery -- Court was obliged to correct aggravated assault sentence in response to defendant's rule 3.800(b) motion, but was not permitted to increase aggravated battery sentence to fourteen years where originally pronounced sentence on that charge was neither ambiguous nor illegal
Reported at 32 Fla. L. Weekly D2335c
Criminal law -- Trafficking in oxycodone -- Error to deny motion for judgment of acquittal on count for trafficking of oxycodone in amount of 28 grams or more where facts do not allow for aggregation of amounts of the prescribed controlled substance to support defendant's conviction for trafficking -- Where state relied upon prescriptions issued over three-month period of time, the prescriptions occurred over a significant “spatial and temporal time” that allowed defendant to pause, reflect, and form a new criminal intent between the occurrences -- Applicable statutory language does not prohibit aggregation of amounts of drugs to support a trafficking charge -- “Spatial and temporal time” between writing of prescriptions is a viable means by which to determine if defendant had sufficient time to form a new criminal intent thereby committing separate crimes -- Remand for entry of lesser included crime of delivery -- Evidence was sufficient to support conviction for trafficking of oxycodone in amount between 4 and 14 grams where state relied upon two prescriptions presented by patient to pharmacy and defendant was present and attempted to intercede when pharmacist questioned patient about filling two prescriptions at same time -- Racketeering -- Enterprise -- Defendant's medical practice satisfies statutory definition of enterprise and his multiple convictions for delivery, trafficking, and Medicaid fraud sufficiently satisfy statute's requirement of “racketeering”
Reported at 32 Fla. L. Weekly D2363a
Criminal law -- Post conviction relief -- Counsel -- Ineffectiveness -- Defense counsel was not ineffective for electing not to raise a voluntary intoxication defense, notwithstanding evidence that defendant had been taking drugs prior to killing and the availability of such a defense at that time -- Decision was one of strategy -- Where trial court determined that trial attorney conducted a thorough investigation of law and facts relevant to plausible options, trial court was free, as matter of law, to conclude that strategic decision was reasonable -- Trial court did not abuse discretion in excluding testimony of criminal law expert as irrelevant or considering it speculative as infringing on province of court, where expert testimony related to reasonableness of attorney's strategic decision, or whether he or any other attorney would have made this same decision
Reported at 32 Fla. L. Weekly D2361a
Criminal law -- Sentencing -- Correction -- Probation revocation -- Credit for time served -- State cannot avoid providing jail credit to detainee on sentence imposed for violation of probation based on new offense by delaying execution of arrest warrant on detainee in local jail where detainee is at all relevant times in jail pending disposition of the same new offense, and where sentence on new offense and offense on violation of probation are imposed to run concurrently -- Detainee is entitled to receive jail credit from date of issuance of affidavit and related warrant if the warrant is not served within reasonable time
Reported at 32 Fla. L. Weekly D2359a
Criminal law -- Lewd and lascivious battery on child less than sixteen years of age -- Evidence -- Controlled telephone call from victim's friend to defendant -- Trial court's error in allowing jury to view transcript of tape of controlled telephone call during deliberations was harmless -- Transcript was properly authenticated where victim's friend, a participant in the controlled call, testified that she reviewed the original recording, an enhanced recording, and the transcript, and that they were an accurate depiction of the conversation she had with defendant -- Trial court properly found that victim's friend voluntarily consented to recording of telephone call to defendant where she testified that she felt pressured by police to make call, but that she was not forced or coerced
Reported at 32 Fla. L. Weekly D2377a
Criminal law -- Second degree murder with firearm -- Attempted voluntary manslaughter with firearm -- Speedy trial -- Where defendant filed late notice of alibi, and state advised court that it would be ready for trial if defendant withdrew alibi notice, but that it would request defense-charged continuance if alibi notice were not withdrawn, trial court did not abuse discretion in charging continuance jointly to state and defense after defendant declined to withdraw notice of alibi -- Argument -- Where throughout trial defense focused on fact that large number of people were present at scene of crime, but that state presented only one eyewitness, prosecutor's comment in closing argument, suggesting that people who had witnessed a man get gunned down in front of a crowd with an assault rifle were not likely to get involved, was a fair response to defense arguments -- Although court had granted motion in limine precluding state from presenting evidence or comment that witnesses in the neighborhood do not come forward to police or are afraid to talk to police, court did not abuse discretion in overruling defense objection to state's argument and motion for mistrial -- Evidence -- Demonstrative -- Where there was evidence that an assault weapon was used in commission of offense, but actual crime weapon was not found, court did not err in allowing a demonstrator to exhibit to jury an AK-47 semiautomatic assault weapon
Reported at 32 Fla. L. Weekly D2375a
