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© 2007-12 Easley Appellate Practice, P.L.L.C. (Since 1994) All rights reserved.
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Phillips v. State ,(Fla.)
Criminal Justice - Capital defendant, the majority of whose IQ scores exceeded 70, was not mentally retarded so as to be exempt from death penalty.
Competent, substantial evidence supported the trial court's determination that a capital defendant was not mentally retarded within the meaning of the statute prohibiting the execution of a mentally retarded defendant. Notably, the majority of the defendant's IQ scores exceeded 70, the defendant supported himself and functioned well at home, and the defendant's school history did not suggest onset of significantly subaverage general intellectual functioning with deficits in adaptive behavior before the age of 18. <p>This decision may not yet be released for publication.
Criminal law -- Carrying concealed firearm without permit -- Private conveyance exception in section 790.25 does not permit the unlicensed carrying of concealed firearm or other weapon in zippered pack around the waist while riding a motorcycle -- Hand gun was “securely encased” in defendant's zippered pack, but pursuant to section 790.25(5), even a securely encased weapon does not fall under private conveyance exception if it is carried on the person -- Section 790.25(5), by its express terms, applies only to carrying of concealed weapon “within the interior of a private conveyance” -- Under facts presented, defendant did not meet statutory requirements of private conveyance exception, because, albeit he was traveling in private conveyance and his firearm was securely encased, he was carrying firearm on his person and did not have it within an interior compartment of his motorcycle
Reported at 33 Fla. L. Weekly D799a
Criminal law -- Juveniles -- Secure detention -- Juvenile was improperly held in secure detention pending disposition of violation of conditions of probation where there was no statutory risk assessment instrument sufficient to justify upgrading juvenile's status to secure detention before court's summary dispatch of juvenile to secure detention -- Summary detention of juvenile could not be sustained under juvenile court's statutory contempt powers -- Although order to show cause was issued, no hearing was ever held -- Court's findings that juvenile presented an extensive record of absconding from home as well as disregard for court process were not sufficient to justify secure detention -- Fact that juvenile left home on multiple occasions was insufficient to justify labeling her as an absconder where there were no lengthy absences and no effort to avoid judicial process -- Finding that juvenile disregarded court process was insufficient reason to support secure detention, and was not factually supported where juvenile appeared voluntarily at every court hearing set in her case -- Petition for writ of habeas corpus granted
Reported at 33 Fla. L. Weekly D802a
Criminal law -- Juveniles -- Criminal mischief -- Evidence -- Self-defense -- Trial court erred in basing its evidentiary rulings on view that juvenile could not assert a defense of self-defense to charge of criminal mischief under circumstances of instant case, in which juvenile contended that damage to truck occurred when driver of truck tried to hit juvenile with baseball bat, juvenile attempted to defend himself by holding up his skateboard, and baseball bat knocked skateboard into truck -- Trial court abused its discretion in excluding, as irrelevant, testimony by juvenile's girlfriend regarding telephone call with the truck driver's girlfriend, who was in truck at time of incident -- Testimony regarding phone call was relevant to credibility of truck driver's girlfriend, who was one of state's key witnesses and who had denied talking to juvenile's girlfriend on the phone that day -- Hearsay -- Exceptions -- Declarant's state of mind -- Testimony by juvenile's girlfriend regarding statement “there he is,” made by truck driver and overheard by juvenile's girlfriend before call was disconnected, was not offered to prove truth of matter asserted, but to prove truck driver's state of mind or to prove or explain truck driver's subsequent act of swinging bat at juvenile -- Impeachment -- Prior inconsistent statement -- Trial court should have allowed defendant to question his girlfriend about a prior statement to a defense investigator that was inconsistent with her rebuttal testimony for state that juvenile had asked her to lie for him during trial -- Although prior inconsistent statement to investigator was not disclosed to state because it was protected by work product privilege, privilege ceased to exist when defense attempted to use statement as impeachment evidence at trial -- Trial court could have allowed state to review the statement during recess if necessary, since work product privilege applied until defense decided to use the privileged information at trial -- Even if use of statement constituted a possible discovery violation, trial court failed to conduct required Richardson hearing -- Error in failing to conduct hearing was not harmless because there is reasonable possibility that juvenile was prejudiced by improper exclusion of the impeachment evidence -- Further, trial court misunderstood proper method of impeaching witness with prior inconsistent statement -- Issue was preserved for appeal, despite absence of proffer, where failure of defense counsel to proffer prior inconsistent statement was caused by trial court's erroneous refusal to permit anything other than the defense investigator's testimony -- Remand for new adjudicatory hearing
Reported at 33 Fla. L. Weekly D778b
Criminal law -- Post conviction relief -- Newly discovered evidence -- Claim that counsel was ineffective for failing to suppress a taped statement defendant made to detectives is not based on newly discovered evidence, although the legal theory may be new, because facts upon which claim is based were known or discoverable since time statement was made, and defendant has not shown how suppression of statement would have probably produced an acquittal in that he denied involvement in incident in his statement -- Claim that defendant has newly discovered evidence from postconviction evidentiary hearing that state used false evidence against him at trial and mishandled exculpatory evidence was fully vetted at evidentiary hearing on first postconviction relief motion -- Claim that state created a false exhibit of defendant's driver's license identification card was fully explored at prior hearing, and court concluded that there was a logical explanation as to how state presented information that was not necessarily false or manufactured -- Information attached to motion showing that postal service informed defendant that it had no authority to change an address on a Florida driver's license does not constitute newly discovered evidence that would lead court to conclude either that evidence was false or that prosecutor knew evidence was false or did anything to create this evidence, as alleged by defendant
Reported at 33 Fla. L. Weekly D793a
Criminal law -- Search and seizure -- Consensual encounter -- Consent to search -- Meeting between officers and defendant outside the gate to defendant's residence was a consensual encounter -- Encounter was not rendered non-consensual by the presence of four officers outside the gate where none of the officers drew any weapons or made coercive demands of defendant -- Where there was no basis for concluding that a reasonable person in defendant's situation would believe that he was either under arrest or otherwise compelled to leave the house, there was no constructive entry -- Because initial entry into defendant's residence occurred through consensual encounter with police followed by consent to enter residence, defendant was not illegally detained when he gave consent to search his residence and outside building -- Error to grant motion to suppress marijuana seized at defendant's residence
Reported at 33 Fla. L. Weekly D807a
Criminal law -- Sexual battery by person at least eighteen years of age on child less than twelve years of age -- Lesser included offenses -- Trial court did not err in denying request to instruct jury on lewd or lascivious molestation as permissive lesser included offense where statutory elements of lewd or lascivious molestation were not alleged in information -- Information alleged that defendant's mouth and/or tongue had union with the victim's vagina, but did not allege that defendant touched the victim in a lewd or lascivious manner
Reported at 33 Fla. L. Weekly D780a
Criminal law -- Sexual battery on child less than twelve years old -- Sexual activity with same child when she was twelve years old but less than eighteen years old -- Evidence -- Other crimes, wrongs, or acts -- No error in admitting nude photographs taken of victim by defendant during ten-year period of sexual molestation -- Photographs were admissible under section 90.404(2)(b)(1) and could be considered for any relevant purpose, including to show motive, intent, plan, or absence of mistake, as well as to corroborate victim's claims of sexual abuse against defendant -- When defendant forced his minor daughter to expose her genitals in lewd way for his camera, he committed lewd or lascivious conduct, which qualifies as other crimes, wrongs, or acts of child molestation under statute -- Photographs do not constitute “collateral crimes” evidence, such that section 90.404(2)(b) governs their admissibility -- Photographs are evidence of other acts or crimes which are inseparable from or inextricably intertwined with crimes charged, and such evidence is admissible under section 90.402 and is not Williams rule evidence -- Trial court properly evaluated and admitted under section 90.404(2)(b) victim's testimony about incident of molestation she witness between defendant and her younger sister -- As to both items of challenged evidence, trial court gave appropriate cautionary instructions to jury throughout trial and was careful to prevent evidence from becoming feature of trial
Reported at 33 Fla. L. Weekly D794a
Criminal law -- Third degree murder -- Jury instructions -- Justifiable use of deadly force -- Erroneous jury instruction on justifiable use of deadly force did not give rise to fundamental error where instruction did not deprive defendant of his defense, given that neither state nor defense referred to erroneous instruction in closing argument and that erroneous charge was part of set of jury instructions that experienced criminal lawyers have difficulty explaining
Reported at 33 Fla. L. Weekly D797b
Criminal law -- Burglary of conveyance -- Search and seizure -- Officer who received dispatch reporting car robbery in progress in his area exceeded scope of lawful investigatory stop where officer handcuffed defendant, placed him in police car, and transported him away from place where he was initially apprehended for a “show-up” -- Because transportation to “show-up” was illegal, trial court erred in denying motion to suppress identification
Reported at 33 Fla. L. Weekly D833a
Milton v. State ,(Fla.App. 1 Dist.)
Criminal Justice - Examination of codefendant who refused to testify violated defendant's right of confrontation.
The prosecutor's examination of the codefendant, who refused to testify when called to the stand, violated defendant's Sixth Amendment right of confrontation during a trial for trafficking cocaine. Despite knowledge that the codefendant would refuse to testify, the State called him to the stand anyway, and tried to create the impression, by questioning him, that there was incriminating evidence against the defendant. The defendant was unable to counter the State's insinuations because the codefendant was unwilling to testify once called to the stand, and therefore, the defendant could not cross- examine. <p>This decision may not yet be released for publication.
Criminal law -- Battery on law enforcement officer -- Trial court erred by not requiring state to disclose names of other persons present when corrections officer, whom defendant was accused of striking from behind with his fist, sustained the blow -- Defendant's motion to compel, which was filed after his initial demand for discovery had triggered reciprocal discovery obligations, should have been treated as request for additional discovery and should have been granted
33 Fla. L. Weekly D687a
Criminal law -- Search and seizure -- Stop of vehicle and detention of driver and passenger -- Florida Game and Freshwater Commission officer who, while patrolling late at night, heard what he believed to be a rifle shot at a desolate, rural area known to be an area for illegal night hunting for deer, and who drove in the direction of the suspected shot, had reasonable suspicion justifying stop of the only vehicle coming from the direction of the suspected shot on a dead end road -- There was valid consent to search of truck where defendant driver of truck answered, “Nope, go right ahead,” in response to officer's question “Do you mind if I look in your truck for guns?”
33 Fla. L. Weekly D688b
Civil rights -- Law enforcement officers -- Search and seizure -- Plaintiff alleging that deputy falsely arrested her after entering her home without a warrant to search for the subject of a civil commitment order -- Qualified immunity -- Although deputy violated plaintiff's constitutional rights, deputy is entitled to qualified immunity because, at time he acted, law did not give a reasonable officer fair and clear warning that a civil commitment order did not present circumstances sufficiently exigent to excuse warrantless entry and search of an unrelated third party's home -- District court erred in denying deputy's motion for summary judgment on qualified immunity grounds
21 Fla. L. Weekly Fed. C444a
Criminal law -- Health care fraud conspiracy -- Sentencing -- Guidelines -- A defendant who is convicted of a conspiracy that began before, but continued after, a guidelines amendment became effective may be sentenced based on that amendment without triggering any ex post facto concerns unless the defendant has withdrawn from the conspiracy prior to the amendment's effective date -- District court erred in applying 2000 Guidelines Manual instead of 2004 Guidelines Manual in sentencing two coconspirators based on relevant-conduct analysis without determining these individuals had withdrawn from the conspiracy prior to the effective date of guidelines amendment
21 Fla. L. Weekly Fed. C450a
Criminal law -- Evidence -- District court did not plainly err in admitting a certified copy of a birth certificate as a foreign public document pursuant to Federal Rule of Evidence 902(3) -- Government properly authenticated the foreign document it admitted into evidence where there is no indication that the birth certificate is not what it purports to be and a copy of birth certificate was accompanied by certificate from proper foreign official, attesting that copy of birth certificate was a true copy of an official record authorized by law of foreign country and that certificate was accompanied by a final certification -- Because government met requirements for self-authentication, it did not have to lay a foundation for admission of foreign document as business record -- Challenges to reliability of information contained in birth certificate, such as date of birth and lack of signature of attendant at birth, goes to weight of evidence not its admissibility on grounds of authenticity -- Jury instructions -- Mistake of age -- District court did not err in refusing to instruct jury on mistake of age defense as to charge of using a minor to engage in sexually explicit conduct outside of United States for purpose of producing a visual depiction of such conduct, because knowledge of age is not an element of offense -- Constitution does not mandate a mistake of age defense to offense of sexual exploitation of a minor -- Judgment of acquittal -- No error in denying motion for judgment of acquittal on charge of possession of material containing child pornography, because evidence was sufficient to support conviction -- Defendant's testimony in his own defense, coupled with corroborative evidence of his guilt, supports jury guilty verdict
21 Fla. L. Weekly Fed. C451a
Criminal law -- Search and seizure -- Strip search -- Under totality of circumstances, officers had probable cause to believe that defendant arrived at scene of arrest with intent to consummate a drug transaction and to arrest defendant based on information provided by known confidential informant who had provided information leading to arrest on sufficient number of occasions to establish his reliability and who demonstrated that he had personal knowledge of defendant's drug activities -- Further, officers were able to corroborate every item of information provided by informant except the ultimate determination of whether defendant actually had drugs on his person -- Informant did not merely allege to police officers that defendant was drug dealer and that drug transaction might occur, but actually orchestrated a drug transaction in the presence of a law enforcement officer and expressly confirmed to officer at the scene that defendant was in fact a drug dealer with whom the informant had previously conducted drug transactions -- Validity of search -- Scope and manner of search were not unreasonable under Fourth Amendment where single officer merely pulled boxer shorts away from defendant's body at the waist area and looked inside to discover cocaine -- Although search occurred at public place, there was no indication that any private body parts or the buttock area became publicly exposed -- Further, officers did not touch defendant's buttocks, but simply removed bag containing drugs from defendant's boxer shorts -- Search was not equivalent to a strip search, but qualified as a “reach-in” search, where suspect remained clothed and suspect's genitals were not visible to onlookers -- Moreover, record reflects that law enforcement officer proceeded to look in boxer shorts only after initial frisk and search of defendant's person and vehicle failed to reveal drugs, although officers had probable cause to believe that defendant arrived at scene for purpose of selling drugs -- Finally, district court properly found that exclusionary rule does not apply to violations of section 901.211
33 Fla. L. Weekly S147c
Criminal law -- Post conviction relief -- Habeas corpus -- Murder -- Death penalty -- Counsel -- Ineffectiveness -- Trial court did not err in vacating death sentence and ordering a resentencing on ground that counsel had provided ineffective assistance during penalty phase by failing to investigate and prepare for penalty phase -- On-the-record waiver of presentation of mitigation evidence did not preclude consideration of ineffective assistance of counsel claim -- Competent, substantial evidence supported trial court's finding that waiver was not made knowingly and intelligently because counsel did not investigate possible mitigation sufficiently before defendant waived her right to present penalty-phase evidence -- Trial court correctly concluded that counsel was deficient for failing to obtain informed mental health evaluation of defendant in advance of penalty phase and for failing to provide mental health expert with information which would have alerted expert to possibility of sexual and physical abuse -- Trial court did not err in denying motion to vacate conviction -- Claim that jury instructions and state's closing arguments constituted a constructive amendment or a fatal variance to indictment is procedurally barred because it could have been raised on direct appeal -- Conflict of interest -- Defendant failed to show that any alleged interest her attorney may have had in minimizing costs was an actual, not merely potential, conflict that adversely affected her representation -- Actual conflict resulting from dual representation of defendant and codefendant was waived by defendant and affirmed on direct appeal -- No error in denying relief on claims that counsel was ineffective for failing to consult or hire certain expert witnesses, including guilt-phase mental health expert, concrete expert, insurance expert, and handwriting expert -- Remaining arguments are either without merit or procedurally barred, and defendant is not entitled to relief on basis of cumulative error -- Ineffective assistance of appellate counsel -- No merit to claim that appellate counsel was ineffective for failing to raise claim that trial court's reading of conspiracy instruction and state's closing argument referencing that instruction impermissibly expanded grounds on which defendant could be convicted from the charges set forth in her indictment
33 Fla. L. Weekly S136c
Criminal law -- Post conviction relief -- Ineffective assistance of counsel -- When a defendant has committed two crimes and informs his attorney about both of them, the attorney's erroneous advice that defendant's plea in one case could not be used to enhance his sentence in the other constitutes ineffective assistance of counsel -- To raise a facially sufficient claim, defendant must plead that (1) before entering the plea, he informed defense counsel that he committed a prior crime for which he had not yet been sentenced, (2) he explained to counsel the nature of the crime, (3) counsel erroneously advised defendant about the potential use of the conviction to enhance a subsequent sentence for that prior crime (explaining why the advice was erroneous), and (4) had counsel not erroneously advised defendant, defendant would have exercised his right to a trial -- Such a claim must be filed within two years after the conviction based on the plea the defendant is attacking becomes final -- Although defendant's post conviction motion was not filed within two years after the conviction based on the plea became final, defendant's motion is deemed timely because at the time the motion was filed district courts held in similar claims that the clock started on the date the defendant discovered the enhancement in sentence -- On remand, defendant is to be allowed to amend claim to meet pleading requirements
33 Fla. L. Weekly S144a
