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© 2007-12 Easley Appellate Practice, P.L.L.C. (Since 1994) All rights reserved.
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(800) 216-6185 (305) 444-1599 [email protected]
Criminal law -- Sentencing -- Double jeopardy -- Order imposing medroxyprogesterone acetate injections for period of five years subsequent to defendant's consecutive sentences of imprisonment for two separate sexual batteries violated double jeopardy where penalty was imposed approximately four months after sentencing hearing -- Administration of MPA is a penalty, not a remedial treatment -- Oral imposition of MPA treatment at sentencing without specifying the duration of treatment did not satisfy the mandatory requirements of the MPA statute and, accordingly, imposition of MPA treatment was not a valid portion of sentence -- Once defendant began serving sentence, subsequent order of MPA injections for period of five years violated double jeopardy principles because it amounted to a more onerous punishment -- Trial court could not “reserve ruling” on duration pending outcome of psychiatrist's determination of whether defendant was an appropriate candidate for treatment
Reported at 32 Fla. L. Weekly D2119a
Criminal law -- Argument -- Closing -- Prosecutor's comments on defense counsel's strategy of impeaching victim's identification of defendants were improper, where defense counsel did not attack or denigrate the victim in any way -- Where defendant has denigrated victim, particularly where victim is poor and possibly has a criminal record, then prosecution can justifiably comment on defense strategy of attacking the victim -- Mere impeachment of victim's ability to recall does not give prosecutor latitude to make an appeal for sympathy for victim -- Claim that conviction should be reversed because of improper prosecutorial argument rejected
Reported at 32 Fla. L. Weekly D2112b
Criminal law -- Restitution -- Trial court abused discretion by denying restitution as condition of probation where defendant specifically agreed to restitution as condition of plea, and agreed to pay restitution higher than that charged by state in information -- Statutes require that restitution be imposed absent clear and compelling reasons not to do so -- Statement that victim was not interested in restitution is not clear and compelling reason for failure to impose restitution -- Finding that allegation of loss was not established, reasonable, or credible was not supported by record where court did not conduct restitution hearing -- Remand for trial court to conduct evidentiary hearing on proper amount of restitution
Reported at 32 Fla. L. Weekly D2107b
Criminal law -- Cross-examination -- Even if prosecutor's cross-examination question was fairly susceptible of being interpreted as comment on defendant's silence at time of arrest, error was harmless beyond reasonable doubt -- Sentencing -- Sentence imposed for third-degree felony of leaving scene of accident with injury exceeded legal maximum -- Sentence of thirty years as violent habitual offender with mandatory minimum of fifteen years as prison releasee reoffender was appropriate sentence for theft conviction -- With regard to defendant's contention that jury must find that value of property taken was in excess of $20,000 before theft conviction could be enhanced to second-degree felony, any error in failing to make specific finding was harmless because jury instruction allowed jury to convict defendant only if value of property taken was $20,000 or more but less than $100,000 -- Burglary of occupied structure -- Any error in failure to include standard jury instruction on aggravating circumstance of “human being in structure or conveyance,” was harmless where it was undisputed that structure where robbery took place was occupied
Reported at 32 Fla. L. Weekly D2106c
Criminal law -- Double jeopardy -- Consecutive sentences for robbery with firearm and unlawful possession of firearm while engaged in criminal offense violated double jeopardy where both convictions arose out of same robbery of same victim -- Although trial court properly denied defendant's rule 3.850 motion on ground of law of the case, consecutive sentence for possession of firearm during commission of felony is manifestly unjust, and can be corrected by appellate court -- Defendant's appeal from denial of rule 3.800 motion treated as petition for writ of habeas corpus, and granted
Reported at 32 Fla. L. Weekly D2104a
Criminal law -- Disorderly conduct -- Defendant was erroneously convicted of disorderly conduct on basis of verbal abuse directed at bank officer and police officers where there was no evidence that witnesses responded to defendant's words in any particular manner or that anyone in the area was incited to engage in an immediate breach of the peace -- Sentencing -- Error to impose consecutive habitual offender sentences for separate batteries of law enforcement officers which occurred in a single criminal action as defendant resisted arrest
Reported at 32 Fla. L. Weekly D2128a
Criminal law -- Sentencing -- Mandatory minimum -- Trial court erred in sentencing defendant to mandatory minium of thirty years for second-degree felony -- Because Section 775.087 subjects defendant to minimum mandatory enhancement of twenty five years to life, and statutory maximum of fifteen years for a second degree felony is less than minimum mandatory of twenty-five years, court may only impose that minimum mandatory -- Court recedes from prior holding that trial court had discretion to resentence defendant to more than twenty-five years
Reported at 32 Fla. L. Weekly D2124b
Criminal law -- Murder -- Death penalty -- Post conviction relief -- Habeas corpus -- Counsel -- Ineffectiveness -- No error in denying relief on claims that counsel was ineffective for failing to vigorously advocate for defendant, failing to adequately prepare defense experts, failing to investigate and prepare for state's mental health expert, failing to present victim misconduct evidence, or failing to prepare lay witnesses to testify -- Newly discovered evidence -- No error in concluding that information defendant alleges could have been used at resentencing to impeach mental health expert did not constitute newly discovered evidence warranting new penalty phase proceeding because the evidence at issue did not exist at time of resentencing proceeding and, moreover, was not of such nature that it would probably produce acquittal on retrial -- Public records request -- No abuse of discretion in denying relief on claim that defendant was denied due process because certain public records pertaining to his case were not provided to him -- Records requested included photographs and a videotape purportedly taken from perspective of apartments of two witnesses on crime scene, personnel files of state investigator and two assistant state attorneys, and letter sent by assistant state attorney to defendant's trial counsel regarding ineffective assistance claims against him in the post conviction proceedings -- Police produced more than 200 photographs, and explained that they did not have videotape and that no records showed that a videotape was ever placed in evidence locker, and defense counsel apparently accepted this explanation -- No merit to defendant's contention that he was entitled to personnel files because circuit court did not timely deny the request because rule provides trial court with discretion to conduct in-camera inspections and extend the time specifications in rule -- Letter, which contained assistant state attorney's mental impressions about case, clearly fit within exemption for attorney work product prepared with regard to ongoing post conviction proceedings -- Ineffectiveness of appellate counsel -- Appellate counsel not ineffective for failing to raise trial court's denial of defendant's cause challenge to certain juror based on her knowledge of facts of case and her relationship to a testifying detective -- Neither juror's vague memories about crime, nor attenuated relationship to testifying detective, either separately or cumulatively, raised reasonable doubt about juror's ability to be fair and impartial in light of juror's unwavering statements during voir dire concerning need for fair sentencing proceeding and her ability to be impartial -- Appellate counsel not ineffective for failing to raise trial court's denial of defense counsel's motion for appointment of co-counsel at original trial -- No merit to constitutional challenges to death penalty
Reported at 32 Fla. L. Weekly S525a
Criminal law -- Standard jury instructions -- Amendments -- Evidence of other crimes, wrongs, or acts -- Closing argument -- Hate crimes -- Aggravation of crime by selecting victim based on prejudice -- Violation of domestic violence injunction -- Violation of repeat violence, sexual violence, or dating violence injunction -- Lewd or lascivious offenses committed upon or in presence of elderly person or disabled person -- Theft of communication services -- Unauthorized possession of communications device -- Giving false information concerning commission of a crime -- Giving false information concerning commission of a capital felony -- Driving under influence -- Refusal to submit to testing
Reported at 32 Fla. L. Weekly S530a
