Sentencing: generally

March 28, 2013 Cases Comments Off

When the defendant violates probation on a probationary split sentence, he is entitled to credit for time served on the original DOC sentence. When probation is violated on a true split sentence he is not entitled to credit. The court in that case has discretion either the suspended period of incarceration or grant credit on the original, non-suspended portion of the sentence.

The court imposed 18 months followed by two years probation. That is a probationary split sentence. Thus, when he violates probation and receives a two-year sentence, he is entitled to the time served on the 18-month original sentence.

(See this case for discussion of the distinctions between a true split sentence and a probationary split sentence, and the effect of the type of sentence on the credit the defendant must receive when he subsequently violates probation.)

Mann v. S., __ So. 3d __, 38  F.L.W.  D703 (5th DCA 3/27/2013)

Sentencing: guidelines: 1994-present guidelines: scoresheet factors: multipliers and additions

March 28, 2013 Cases Comments Off

Defendant is assessed six point for each additional VOP that is before the court for sentencing. Thus, when he is being sentenced for his second VOP, the court should assess 12 points for community sanction violation.

Holmes v. S., __ So. 3d __, 38  F.L.W.  D684 (2d DCA 3/27/2013)

Sentencing: probation and community control: violations

March 28, 2013 Cases Comments Off

When the defendant violates probation on a probationary split sentence, he is entitled to credit for time served on the original DOC sentence. When probation is violated on a true split sentence he is not entitled to credit. The court in that case has discretion either the suspended period of incarceration or grant credit on the original, non-suspended portion of the sentence.

The court imposed 18 months followed by two years probation. That is a probationary split sentence. Thus, when he violates probation and receives a two-year sentence, he is entitled to the time served on the 18-month original sentence.

(See this case for discussion of the distinctions between a true split sentence and a probationary split sentence, and the effect of the type of sentence on the credit the defendant must receive when he subsequently violates probation.)

Mann v. S., __ So. 3d __, 38  F.L.W.  D703 (5th DCA 3/27/2013)

Trial – conduct of: confrontation of witnesses

March 28, 2013 Cases Comments Off

A hearsay objection is not sufficient to preserve a claim that allowing a substitute expert to testify violates confrontation rights under Crawford. The defense must specifically object on constitutional confrontation grounds to preserve a Crawford violation.

Oehling v. S., __ So. 3d __, 38  F.L.W.  D702 (3d DCA 3/27/2013)

Appellate practice: generally and miscellaneous

March 26, 2013 Cases Comments Off

An order granting a post-verdict judgment of acquittal is reviewable by appeal.

An appellate court has authority to consider an argument not made on appeal as an alternative basis for affirmance, but there is no rule that permits an appellate court to consider an unargued point as an alternative basis for reversal.

S. v. Sims, __ So. 3d __, 38  F.L.W.  D676 (1st DCA 3/25/2013)

Evidence: circumstantial

March 26, 2013 Cases Comments Off

(See S. v. Sims, __ So. 3d __, 38  F.L.W.  D676 (1st DCA 3/25/2013), including dissent, for discussion of the sufficiency of circumstantial evidence in a case seeking to identify the defendant as the person who committed a drive-by shooting.)

US Supreme Court affirms Jardines 5-4

March 26, 2013 Articles Comments Off

A month after the US Supreme Court unanimously found fault with the Florida Supreme Court’s drug dog jurisprudence in Florida v. Harris, 133 S.Ct. 1050 (2013) (reversing the FSC regarding the requirements for the admissibility of drugs found pursuant to a drug dog alert), a divided court has upheld the Florida Supreme Court’s decision in Jardines v. S., 73 So. 3d  34 (Fla. 2011), 36  F.L.W.  S147 (4/14/2011). Florida v. Jardines, No. 11-564 (3/26/2013)

A Miami police officer received a tip that Jardines was operating a grow house in his home. After some surveillance of the home, an officer brought a drug dog onto the porch, where it alerted at the base of the front door. The officer used that information to obtain a search warrant, and a search located marijuana plants. The trial court granted a motion to suppress, the Third DCA reversed (S. v. Jardines, 9 So. 3d 1 (3d DCA 2008), 33  F.L.W.  D2455 (10/22/2008)), and the Florida Supreme Court reversed the Third DCA (Jardines v. S., 73 So. 3d  34 (Fla. 2011), 36  F.L.W.  S147 (4/14/2011)). The US Supreme Court affirmed the Florida Supreme Court’s decision. Florida v. Jardines, No. 11-564 (3/26/2013).

The majority opinion was written by Justice Scalia and was joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan. Justices Alito, C.J. Roberts, Kennedy, and Breyer dissented.

Justice Scalia found the case to be “a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.”

The dissenters in the Florida Supreme Court, and the majority in the Third DCA, distinguished the cases prohibiting searches in a home’s curtilage from the search in Jardines on the ground that the general public is permitted to come onto a person’s porch, and the police have no less of a right to do so. Justice Scalia disagreed, invoking the implied license granted “the Nation’s Girl Scouts and trick-or-treaters.”

“A license may be implied from the habits of the country,” notwithstanding the “strict rule of the English common law as to entry upon a close.” McKeev. Gratz, 260 U. S. 127, 136 (1922) (Holmes, J.). We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria, 341 U. S. 622, 626 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. Thus, a police officer not armed with a warrant may approach a home and knock, precisely because that is “no more than any private citizen might do.” Kentucky v. King, 563 U.S. __, __ (2011) (slip op. at 16).

But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to—well, call the police. The scope of a license— express or implied—is limited not only to a particular area but also to a specific purpose. Consent at a traffic stop to an officer’s checking out an anonymous tip that there is a body in the trunk does not permit the officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to the front door do not invite him there to conduct a search.

Justice Kagan’s concurring opinion, joined by Justices Ginsburg and Sotomayor, likewise found the case simple:

For me, a simple analogy clinches this case—and does so on privacy as well as property grounds. A stranger comes to the front door of your home carrying super-high powered binoculars. See ante, at 7, n. 3. He doesn’t knock or say hello. Instead, he stands on the porch and uses the binoculars to peer through your windows, into your home’s furthest corners. It doesn’t take long (the binoculars are really very fine): In just a couple of minutes, his uncommon behavior allows him to learn details of your life you disclose to no one. Has your “visitor” trespassed on your property, exceeding the license you have granted to members of the public to, say, drop off the mail or distribute campaign flyers? Yes, he has. And has he also invaded your “reasonable expectation of privacy,” by nosing into intimacies you sensibly thought protected from disclosure? Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring). Yes, of course, he has done that too. That case is this case in every way that matters. Here, police officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equipment they used was animal, not mineral. But contra the dissent, see post, at 2 (opinion of ALITO, J.) (noting the ubiquity of dogs in American households), that is of no significance in determining whether a search occurred. Detective Bartelt’s dog was not your neighbor’s pet, come to your porch on a leisurely stroll. As this Court discussed earlier this Term, drug-detection dogs are highly trained tools of law enforcement, geared to respond in distinctive ways to specific scents so as to convey clear and reliable information to their human partners. See Floridav. Harris, 568 U. S. ___ (2013) (slip op. at 2–3, 7–8). They are to the poodle down the street as high-powered binoculars are to a piece of plain glass. Like the binoculars, a drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell). And as in the hypothetical above, that device was aimed here at a home—the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the Court holds today. Was it also an invasion of privacy? Yes, that as well.

Justice Kagan painted the rule as a bright line: “The police officers here conducted a search because they used a “device . . . not in general public use” (a trained drug-detection dog) to “explore details of the home” (the presence of certain substances) that they would not otherwise have discovered without entering the premises.”

 

Search and seizure: generally

March 26, 2013 Cases Comments Off

Police act in bringing a drug dog onto the porch of the defendant’s home to sniff for drugs constitutes a search, and the porch is part of the curtilage of the home. Bringing a dog to do a search without a warrant violates the fourth amendment, and the search should be suppressed.

The “habits of the country” establish that there is an implicit license to approach the front door of a home, knock, and if not allow entrance, to then leave. A police officer without a warrant may do the same, just as any private citizen could do. But bringing a drug dog onto the curtilage is different because it is not similar to the circumstances where persons are typically licensed to come to a person’s home.

The Katz reasonable expectations of privacy test is inapplicable when the search analysis is based on traditional property-based fourth amendment grounds. The reasonable expectation of privacy test is in addition to, not in the place of the traditional property-based analysis.

(See this case, including concurring opinion, for extensive discussion of the interest of a property owner in privacy rights attached to his home that may be invaded by the use of new or unusual forms of surveillance.)

Florida v. Jardines,  S.Ct.   (2013), 24  F.L.W. Fed.  S117 (3/26/2013)

approving Jardines v. S., 73 So. 3d 34, 36  F.L.W.  S147 (Fla. 4/14/2011)

Search and seizure: probable cause searches

March 26, 2013 Cases Comments Off

Police act in bringing a drug dog onto the porch of the defendant’s home to sniff for drugs constitutes a search, and the porch is part of the curtilage of the home. Bringing a dog to do a search without a warrant violates the fourth amendment, and the search should be suppressed.

The “habits of the country” establish that there is an implicit license to approach the front door of a home, knock, and if not allow entrance, to then leave. A police officer without a warrant may do the same, just as any private citizen could do. But bringing a drug dog onto the curtilage is different because it is not similar to the circumstances where persons are typically licensed to come to a person’s home.

The Katz reasonable expectations of privacy test is inapplicable when the search analysis is based on traditional property-based fourth amendment grounds. The reasonable expectation of privacy test is in addition to, not in the place of the traditional property-based analysis.

(See this case, including concurring opinion, for extensive discussion of the interest of a property owner in privacy rights attached to his home that may be invaded by the use of new or unusual forms of surveillance.)

Florida v. Jardines,  S.Ct.   (2013), 24  F.L.W. Fed.  S117 (3/26/2013)

approving Jardines v. S., 73 So. 3d 34, 36  F.L.W.  S147 (Fla. 4/14/2011)

Appellate practice: procedural matters; briefs, the record, etc.

March 26, 2013 Cases Comments Off

Where the state does not introduce transcripts of taped phone calls and the recordings themselves are not introduced into evidence, and the state relies on the court reporter to transcribe the calls as they are played for the jury, and the record shows that the court reporter found the records “unintelligible” except for a few words, the record is insufficient to show the evidence presented on the recordings.

Morgan v. S., __ So. 3d __, 38  F.L.W.  D671 (2d DCA 3/22/2013)

Attorney for defendant: public defenders

March 26, 2013 Cases Comments Off

A defendant is not entitled to a Nelson hearing when he presents general complaints about counsel’s strategy and he makes no formal allegations of incompetence. Merely being dissatisfied with his attorney will not get the defendant a Nelson hearing. However, the court’s failure to conduct any inquiry at all into the defendant’s complaints is structural defect that will result in reversal.

Where the court conducts a sufficient preliminary Nelson inquiry before going into a Faretta inquiry when the court refuses to replace appointed counsel, any error in earlier summarily denying the motion to replace counsel is cured.

Crosby v. S., __ So. 3d __, 38  F.L.W.  D672 (2d DCA 3/22/2013)

Attorney for defendant: self-representation

March 26, 2013 Cases Comments Off

Defendant sought to replace his public defender right before trial, and the court denied the request. He then asked to represent himself, which the court allowed. The court then postponed the trial for two days, and then began trial. The court did not re-offer counsel at the start of the trial. Held: The court must offer counsel at each stage of the proceeding. The initial Faretta inquiry was held at the start of the trial phase, and the court does not need to re-offer counsel when the trial actually starts two days later. What matters is the stage of the proceeding, not the intervening time periods between the stages.

Crosby v. S., __ So. 3d __, 38  F.L.W.  D672 (2d DCA 3/22/2013)

Confidential informants

March 26, 2013 Cases Comments Off

Defendant may not be punished at sentencing for exercising his right to a trial or his right to obtain the identity of a CI. The fact that the defense legally exposed a CI is not a basis for an enhanced sentence.

Where the record does not show that the court in fact imposed a harsher sentence as a result of the defense exposing the CI, the sentence is affirmed.

McMillon v. S., __ So. 3d __, 38  F.L.W.  D669 (5th DCA 3/22/2013)

Crimes: homicide: manslaughter

March 26, 2013 Cases Comments Off

An attempted manslaughter by act instruction that deletes the intent phrase (stating instead, “The defendant committed an act which would have resulted in the death of …”) is not fundamental error under Montgomery.

Canales v. S., __ So. 3d __, 38  F.L.W.  D670 (2d DCA 3/22/2013)

Crimes: miscellaneous substantive crimes

March 26, 2013 Cases Comments Off

The court errs in admitting a tape of a 911 call in a charge of making false emergency calls under sec. 365.172(13) when the only authentication of the tape is an LEO’s testimony that it was defendant’s voice on the tape. The predicate for admitting the tape would also require showing that the call was received by the 911 service and handled as an emergency call on the charged date.

D.D.B. v. S., __ So. 3d __, 38  F.L.W.  D674 (2d DCA 3/23/2013)

Crimes: RICO

March 26, 2013 Cases Comments Off

To prove the “pattern of racketeering activity” element in RICO, the state must show that the defendant engaged in at least two predicate acts that have the same intents, results, accomplices, victims, or methods of commission. To show that the defendant conspired to commit RICO, the state must show either (1) the defendant knew of the overall objectives of the criminal enterprise and agreed to further its purpose, or (2) the defendant personally committed at least two predicate acts.

(See this case for reversal of RICO and conspiracy to commit RICO convictions on the ground that the record was insufficient to show two predicate acts committed by the defendant.)

Morgan v. S., __ So. 3d __, 38  F.L.W.  D671 (2d DCA 3/22/2013)

Crimes: theft

March 26, 2013 Cases Comments Off

Defendant was charged with grand theft, dealing in stolen property, and false report to a pawnbroker for stealing a computer and pawning it the same day. During the charge conference, the defense objected to instructing on grand theft and dealing, which the court overruled. Defendant was convicted of all three counts, and the court granted the state’s motion to dismiss the grand theft charge. Held: The court’s procedure is proper under sec. 812.025 (question certified).

Crosby v. S., __ So. 3d __, 38  F.L.W.  D672 (2d DCA 3/22/2013)

Pleas: generally and miscellaneous

March 26, 2013 Cases Comments Off

Defendant’s pro se motion to withdraw plea under rule 3.170(l) is a nullity when it is made while he is represented by counsel and the motion is devoid of allegations showing an adversarial relationship between the defendant and his attorney.

Ruiz v. S., __ So. 3d __, 38  F.L.W.  D674 (2d DCA 3/22/2013)

Post-conviction relief: 3.800 motions: 3.800(a) illegal sentences

March 26, 2013 Cases Comments Off

A written sentence that deviates from the orally pronounced sentence is an illegal sentence. Thus, where the court orally prohibits contact with the defendant’s wife except as required for their divorce proceedings, but the written judgment prohibits all contact, the court must grant a 3.800(a) motion and correct the written judgment to permit contact in divorce proceedings.

Whitney v. S., __ So. 3d __, 38  F.L.W.  D675 (1st DCA 3/22/2013)

Sentencing: generally

March 26, 2013 Cases Comments Off

Defendant may not be punished at sentencing for exercising his right to a trial or his right to obtain the identity of a CI. The fact that the defense legally exposed a CI is not a basis for an enhanced sentence.

Where the record does not show that the court in fact imposed a harsher sentence as a result of the defense exposing the CI, the sentence is affirmed.

McMillon v. S., __ So. 3d __, 38  F.L.W.  D669 (5th DCA 3/22/2013)

Trial – conduct of: jury instructions

March 26, 2013 Cases Comments Off

An attempted manslaughter by act instruction that deletes the intent phrase (stating instead, “The defendant committed an act which would have resulted in the death of …”) is not fundamental error under Montgomery.

Canales v. S., __ So. 3d __, 38  F.L.W.  D670 (2d DCA 3/22/2013)

XIX#12

March 21, 2013 Online Newsletters Comments Off





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Vol.XIX, #12 — March 22, 2013 | Download Print Version | Florida Criminal Law Report Online website

This Week’s Cases

Supremes revise rules for excess investigator fees

Welcome!

Welcome to the new Florida Criminal Law Weekly Report. The newly-revised and revamped Newsletter provides all of the content you received in the former layout, but with several improvements, all part of the new Florida Criminal Law Weekly Report, Florida best and most comprehensive source of criminal law research and news. Visit website.

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Kurt Erlenbach

Section 27.711(6) allows a capital registry attorney to charge up to $15,000 for “the costs of preparing transcripts, compensating expert witnesses, and copying documents,” and the court may approve additional fees “if the trial court finds that extraordinary circumstances exist.” How the court is to evaluate those “extraordinary circumstances” is the subject of McClain v. Atwater, __ So. 3d __, 38 F.L.W. S169 (Fla. 3/21/2013).

Attorney Martin McClain was appointed to represent a capital defendant in a successive capital postconviction proceeding. An investigator billed an amount that exceeded the cap by $1,844.00. The trial court denied the request for payment over the $15,000 cap, finding that the case was “an ordinary post-conviction case involving an evidentiary hearing, and that the Defendant has not established that extraordinary or unusual circumstances existed that would have warranted an extra $1,844.00 investigator’s fees over and above the $15,000 already spent, as required by Florida Statute sec. 27.711(6).” A 5-2 Supreme Court reversed, and ordered that the excess fees be paid.

[Read more]

Fourth gives a hearsay lesson

Those of us old enough to have learned evidence from Prof. Irving Younger (and if you’re not, you owe it to yourself to watch some of his lectures online), will appreciate this week’s exposition of the law of hearsay from Judge Gross of the Fourth DCA. In Massey v. S., __ So. 3d __, 38 F.L.W. D637 (4th DCA 3/20/2013), the Court provides a thorough discussion of the “truth of the matter asserted” element of hearsay.

The defendant was charged with possession of cocaine and possession of a firearm by a felon after he and the driver of a car in which they were found was stopped for a traffic violation. The driver was arrested for DWLSR, and while in jail the arresting officer took a statement from him regarding the defendant’s actions. At defendant’s trial, the driver testified against him and the defendant sought to introduce the video of the jail statement, arguing that it was not introduced for the truth of the matter asserted, but to show how the officer spoon-fed information to the driver about the defendant The court refused to allow it, finding the statement to be hearsay. The Fourth DCA reversed. The Court held:

No aspect of the hearsay rule is as misunderstood as the second part of the definition of hearsay — that the out of court statement is “offered in evidence to prove the truth of the matter asserted” — which McCormick describes as a “complicated and confusing condition.” McCormick on Evidence sec. 246 (2d ed. 1972). To explain the rationale for this aspect of the hearsay definition, McCormick looks to the reasons that hearsay is inadmissible in evidence, namely

[Read more]

Posting a threat to kill on Facebook violates sec. 836.10

The defendant’s act of posting a threat to kill another person on the defendant’s personal Facebook page can violate sec. 836.10, and constitutes the “sending” of the threat sufficient to violate the statute, the 1st DCA held March 18. O’Leary v. S., __ So. 3d __, 38 F.L.W. D633 (1st DCA 3/18/2013).

The defendant posted a threat to kill a relative and her boyfriend on his Facebook page. The defendant was charged with violating sec. 836.10, which states:

Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree.

The defendant filed a motion to dismiss pursuant to rule 3.190(c)(4) alleging that the act of posting on Facebook did not constitute “sending” for purposes of the statute. The trial court disagreed, and the 1st DCA affirmed.

[Read more]

1 Appellate practice: generally and miscellaneous

The state and defense are encouraged to work together to come up with an expedited procedure to be used in cases where the defendant is sentenced to a short net sentence following a VOP so that appellate issues can be addressed prior to the expiration of the sentence. Once the defendant completes his sentence, an appeal regarding a sentencing issue is moot because no meaningful relief can be provided.

Bush v. S., __ So. 3d __, 38 F.L.W. D653 (2d DCA 3/20/2013)

7 Attorney for defendant: public defenders

In determining whether investigator fees greater than those allowed under sec. 27.711(13) to registry counsel representing defendant in a successive postconviction proceeding in a death penalty case, the court errs in focusing on whether the case is an “ordinary” one.

Under the statute, an attorney is entitled to fees beyond the statutory maximum when “extraordinary circumstances” exist. However, counsel need not show that the case itself is more complex than the usual case, because even in routine capital cases the attorney may be required to spend his or her time in a manner that is disproportionate to the maximum fee allowable. The focus instead is on the defendant’s right to effective representation rather than the attorney’s right to fair compensation. Once the court analyses what is reasonable in light of the attorney’s obligation to the client, the court must then perform an “as applied” analysis to determine whether the statutory cap would be confiscatory of the attorney’s time.

(See this case for extensive evaluation of investigatory costs expended for an investigator looking into claims that another person may have committed the crime for which defendant was convicted.)

McClain v. Atwater, __ So. 3d __, 38 F.L.W. S169 (Fla. 3/21/2013)

20 Crimes: controlled substances

Admitting testimony that defendant possessed a “large amount of cash” when he was searched following a traffic stop of a car in which he was a passenger, in an incident that eventually led to him being charged with possession of cocaine, is error. Where the charge is merely possession of cocaine and not trafficking or sale, the fact that the defendant possessed a large amount of cash is not relevant.

Massey v. S., __ So. 3d __, 38 F.L.W. D637 (4th DCA 3/20/2013)

LEO saw defendant commit a parking violation and detained him. The officer check his DL, and the defendant consented to a search of his person. The officer found a single oxycodone pill in his pocket, and arrested him. Defendant told him he had a prescription. Held: The court properly suppresses the pill. Oxycodone can be legally possessed, and the possession of a single pill, standing alone, does not provide probable cause to believe that the defendant is committing a crime.

S. v. Deaton, __ So. 3d __, 38 F.L.W. D646 (4th DCA 3/20/2013)

26 Crimes: homicide: 1st degree murder

Following his arrest for murder, the defendant was transported from Georgia to Florida, and he talked nonstop without being questioned. He made statements about “hunting” for a victim, and he stated several times that he had “lost his mind.” Held: The statements were admissible to show premeditation and were not evidence of other crimes.

Hilton v. S., __ So. 3d __, 38 F.L.W. S174 (Fla. 3/21/2013)

31 Crimes: homicide: manslaughter

Giving the standard attempted manslaughter by act instruction as a lesser of attempted second degree murder is fundamental error, resulting in reversal of the attempted second degree murder conviction.

Ferrier v. S., __ So. 3d __, 38 F.L.W. D632 (1st DCA 3/18/2013)

34 Crimes: loitering or prowling

Both elements of loitering must be committed in the officer’s presence before he can make an arrest. The defendant’s act of walking slowly through a neighborhood looking at carports and at the sides of houses at 9:00 a.m. is not unusual or indicative of criminal activity. The conduct is not such that should warrant a finding that a breach of peace was imminent or that the public safety was threatened.

E.F. v. S., __ So. 3d __, 38 F.L.W. D652 (4th DCA 3/20/2013)

35 Crimes: miscellaneous substantive crimes

The defendant’s act of posting a threat to kill or do bodily harm to another person on the defendant’s own Facebook wall constitutes a sufficient violation of sec. 836.10 to withstand a c(4) motion.

O’Leary v. S., __ So. 3d __, 38 F.L.W. D633 (1st DCA 3/18/2013)

The elderly neglect statute, sec. 825.102(3) is intended to criminalize only failures or omissions committed by a person who cares for an elderly person. It does not criminalize affirmative acts. Thus, where the defendant gave an elderly person medicine that was not prescribed for her, the statute does not apply.

Maxwell v. S., __ So. 3d __, 38 F.L.W. D641 (4th DCA 3/20/2013)

40 Crimes: sex offenses: lewd battery, etc. on a child

The defendant cannot be convicted of two counts of lewd molestation for touching the victim’s breast and touching her genitals in a single incident. However, where another count charges that the defendant caused the victim to touch his genitals, conviction on that count does not violate double jeopardy.

Under Webb v. State, 104 So. 3d 1153 (Fla. 4th DCA 2012) and State v. Meshell, 2 So. 3d 132 (Fla. 2009), causing the victim to touch the defendant is a different act than the defendant touching the victim, and thus can result in separate convictions.

Cupas v. S., __ So. 3d __, 38 F.L.W. D647 (4th DCA 3/20/2013)

43 Crimes: theft

Defendant was charged with theft, money laundering, and exploitation of the elderly for using money from his mother’s bank account. He was acquitted of theft and money laundering, but convicted of exploitation. The facts underlying the theft count formed the basis for the exploitation count. Held: The counts are legally interlocking, and were inconsistent. The acquittal on the theft charge negated the intent need to convict on the exploitation charge, and the exploitation charge is reversed.

S. v. Kelley, __ So. 3d __, 38 F.L.W. D621 (2d DCA 3/15/2013)

56 Evidence: circumstantial

A car driven by defendant’s cousin and owned by defendant’s girlfriend was found parked at the victim’s house while a burglary of the house was ongoing. Defendant was found a short distance from the house acting suspiciously. Held: The evidence is insufficient to sustain a burglary conviction. The evidence is not inconsistent with defendant’s reasonable hypothesis of innocence, and the court errs in denying JOA.

Schultz v. S., __ So. 3d __, 38 F.L.W. D654 (2d DCA 3/20/2013)

60 Evidence: generally

Evidence that the victim of a sexual battery was a prostitute is admissible if the defendant claims that the sexual contact was consensual.

(See this case for citations to cases indicating the predicate the defense must lay before introducing evidence of prostitution.)

Harrell v. S., __ So. 3d __, 38 F.L.W. D628 (5th DCA 3/15/2013)

61 Evidence: hearsay: generally

Defendant was a passenger in a car stopped for a traffic violation. The driver was arrested for DWLSR. Defendant was arrested for possession of cocaine and possession of a firearm by a felon based on the driver’s statement that a gun and cocaine found on the side of the road was thrown there by the defendant. After the driver’s arrest, he gave a statement to the police regarding defendant’s involvement. At trial, the defense attempted to introduce the conversation between the LEO and driver to show that the driver was merely parroting what the officer said. The court refused to allow the evidence. Held: The court errs in refusing admission. The statement was not admitted for the truth of the matter asserted, but was sought to be admitted only to show the manner in which the statement was made.

(See this case for extensive discussion of the “truth of the matter asserted” requirement for determining hearsay.)

Massey v. S., __ So. 3d __, 38 F.L.W. D637 (4th DCA 3/20/2013)

62.02 Evidence: hearsay: exceptions: business records

An appraisal letter from a jeweler introduced over objection stating the jeweler’s opinion of the fair market value of stolen jewelry is not sufficient to establish an amount of restitution when the state fails to lay the predicate for a business record.

Leatherwood v. S., __ So. 3d __, 38 F.L.W. D625 (5th DCA 3/15/2013)

64 Evidence: physical evidence

Admitting testimony that defendant possessed a “large amount of cash” when he was searched following a traffic stop of a car in which he was a passenger, in an incident that eventually led to him being charged with possession of cocaine, is error. Where the charge is merely possession of cocaine and not trafficking or sale, the fact that the defendant possessed a large amount of cash is not relevant.

Massey v. S., __ So. 3d __, 38 F.L.W. D637 (4th DCA 3/20/2013)

83 Pleas: generally and miscellaneous

A 3.850 motion seeking to withdraw a plea filed within 30 days of sentencing can be considered a 3.170(l) motion. Thus, a subsequent 3.850 motion addressing different issues should not be considered to be successive.

When a 3.850 motion is unsworn, the court should dismiss the motion. A subsequently-filed 3.850 motion then will not be considered successive.

Watson v. S., __ So. 3d __, 38 F.L.W. D651 (4th DCA 3/20/2013)

84 Possession

LEO observed defendant coming from a house where suspected drug activity was occurring. The police executed a warrant, and found marijuana in a room where only male clothing was found. Defendant’s picture was found next to the drugs. Held: The court errs in failing to enter a JOA. The evidence is insufficient to show that the defendant was able to exercise dominion or control over the drugs.

Evans v. S., __ So. 3d __, 38 F.L.W. D642 (4th DCA 3/20/2013)

85 Post-conviction relief: 3.800 motions: 3.800(a) illegal sentences

A challenge to a plea agreement concerning credit for time served cannot be raised under rule 3.800(a) because the motion presents a factual question that cannot be resolved based on court records.

A claim that the court improperly failed to award credit for time served in an out-of-state jail cannot be raised under rule 3.800(a) and must be raised on direct appeal or under a 3.850 motion.

Bonilla v. S., __ So. 3d __, 38 F.L.W. D652 (4th DCA 3/20/2013)

Defendant’s motion seeking clarification of his sentence and for a ruling to determine whether his sentence from Palm Beach County was to run concurrently with a sentence from St. Lucie County is not properly filed under rule 3.800(a) when he does not allege that his sentence is illegal, nor allege where in the record the required information could be found.

Bradley v. S., __ So. 3d __, 38 F.L.W. D651 (4th DCA 3/20/2013)

86 Post-conviction relief: 3.800 motions: 3.800(b) correction of sentencing errors

In determining whether an out-of-state offense con be used as prior record on a scoresheet, the court must compare the elements of the out-of-state offense to Florida crimes, not the facts of the offense.

Defense counsel’s act of agreeing with the state that the proper way to compare offenses in by comparing facts is ineffective assistance on the face of the record, and the sentencing is reversed.

The errors cannot be preserved by filing a 3.800(b) motion because the error is one in the sentencing process. The error would have to be raised under rule 3.800(a).

Bracey v. S., __ So. 3d __, 38 F.L.W. D620 (2d DCA 3/15/2013)

89 Post-conviction relief: 3.850 motions: generally and miscellaneous

A 3.850 motion seeking to withdraw a plea filed within 30 days of sentencing can be considered a 3.170(l) motion. Thus, a subsequent 3.850 motion addressing different issues should not be considered to be successive.

When a 3.850 motion is unsworn, the court should dismiss the motion. A subsequently-filed 3.850 motion then will not be considered successive.

Watson v. S., __ So. 3d __, 38 F.L.W. D651 (4th DCA 3/20/2013)

90 Post-conviction relief: 3.850 motions: ineffective assistance

Counsel’s conduct will not be considered ineffective if alternative courses are considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. Thus, where counsel decided not to seek a Richardson hearing and instead sought to discredit the witness, counsel was not ineffective.

Conahan v. S., __ So. 3d __, 38 F.L.W. S179 (Fla. 3/21/2013)

To be eligible for Padilla relief, the defendant must be subject to deportation based only as a consequence of his plea. When the defendant is an illegal alien, he is subject to removal on that ground alone and he is not eligible for Padilla relief.

Ibarra v. S., __ So. 3d __, 38 F.L.W. D639 (4th DCA 3/20/2013)

No prejudice is shown when defendant alleges counsel failed to tell him that he faced a mandatory ten-year sentence for armed home invasion robbery when the defendant was properly informed during the plea that he faced a maximum life sentence.

Watson v. S., __ So. 3d __, 38 F.L.W. D651 (4th DCA 3/20/2013)

Accepting a plea to a PRR sentence based on the erroneous advice of counsel results in prejudice as a result of the defendant’s loss of his right to have a jury trial. The fact that had he gone to trial he would have been convicted and received the same sentence does not remove the prejudice.

Privette v. S., __ So. 3d __, 38 F.L.W. D626 (5th DCA 3/15/2013)

96 Search and seizure: consent

When the record fails to show any basis for the police stopping a vehicle, defendant’s subsequent consent to search is invalid absent clear and convincing evidence of an unequivocal break in the chain of illegality sufficient to dissipate the taint of the unlawful stop.

Batchelor v. S., __ So. 3d __, 38 F.L.W. D628 (5th DCA 3/15/2013)

104 Search and seizure: probable cause arrests and seizures

During a joint suppression hearing/trial, the state presented evidence that a CI of unproven reliability told the arresting LEO that a drug deal was going to occur at a specific place. The defendant arrived at that location, and the officer stopped the car based on a broken taillight. The defendant was arrested during the traffic stop. The court found the stop lawful based on the traffic violation. Held: The fact that the court also heard evidence regarding the untested CI’s information does not render the stop unlawful. The court rejected the CI’s information as a basis of the stop, and the traffic violation standing alone was sufficient to justify the stop.

Rutledge v. S., __ So. 3d __, 38 F.L.W. D639 (4th DCA 3/20/2013)

104 Search and seizure: probable cause arrests and seizures

LEO saw defendant commit a parking violation and detained him. The officer check his DL, and the defendant consented to a search of his person. The officer found a single oxycodone pill in his pocket, and arrested him. Defendant told him he had a prescription. Held: The court properly suppresses the pill. Oxycodone can be legally possessed, and the possession of a single pill, standing alone, does not provide probable cause to believe that the defendant is committing a crime.

S. v. Deaton, __ So. 3d __, 38 F.L.W. D646 (4th DCA 3/20/2013)

110 Sentencing: credit for time served

A challenge to a plea agreement concerning credit for time served cannot be raised under rule 3.800(a) because the motion presents a factual question that cannot be resolved based on court records.

A claim that the court improperly failed to award credit for time served in an out-of-state jail cannot be raised under rule 3.800(a) and must be raised on direct appeal or under a 3.850 motion.

Bonilla v. S., __ So. 3d __, 38 F.L.W. D652 (4th DCA 3/20/2013)

111.09 Sentencing: death penalty: aggravating factors: Sec. 921.141(5)(h) heinous, atrocious and cruel

Where defendant kidnapped the victim and held her for two days to a week prior to her murder, and she was injured during that time sufficiently to leave traces of blood, the court properly infers that the victim was likely terrified and suffered prior to her murder. The court properly finds the killing to be HAC.

Hilton v. S., __ So. 3d __, 38 F.L.W. S174 (Fla. 3/21/2013)

111.10 Sentencing: death penalty: aggravating factors: Sec. 921.141(5)(i) cold, calculated and premeditated

Where the defendant makes a statement that refers to “hunting” for victims, the defendant held the victim for a least a few days before killing her, and the method of disposal of the victim’s body showed reflection, the court properly finds the murder to be CCP.

Hilton v. S., __ So. 3d __, 38 F.L.W. S174 (Fla. 3/21/2013)

116 Sentencing: death penalty: mitigating factors

The defense sought to show that the defendant was a law abiding citizen prior to taking Ritalin. The state presented a psychologist in rebuttal. Held: The psychologist’s testimony was not evidence of an nonstatutory aggravator. The state is permitted to present rebuttal to defense psychological evidence.

Hilton v. S., __ So. 3d __, 38 F.L.W. S174 (Fla. 3/21/2013)

117 Sentencing: death penalty: post-conviction relief

Where defendant fails to present mental mitigation witnesses at his evidentiary hearing, the court properly finds that defendant was not prejudiced by trial counsel’s failure to present the witnesses.

Conahan v. S., __ So. 3d __, 38 F.L.W. S179 (Fla. 3/21/2013)

120 Sentencing: generally

When the judge at sentencing tells the defendant, “You’ve never expressed, as the State has indicated, any remorse and still claim you were innocent. I don’t believe that claim for a second,” the judge is indicating that he is taking the defendant’s claim of innocence into account, and the sentence is reversed.

Robinson v. S., __ So. 3d __, 38 F.L.W. D627 (5th DCA 3/15/2013)

123.2 Sentencing: guidelines: 1994-present guidelines: departure factors: mitigators

Section 921.0026(3) precludes a downward departure on the ground that the defendant needs treatment for alcoholism.

(See this case for the court’s favorable discussion of an interpretation of the statute that would permit a downward departure to obtain rehabilitation as opposed to a downward departure based only on substance abuse or addiction.)

S. v. Henderson, __ So. 3d __, 38 F.L.W. D629 (5th DCA 3/15/2013)

124.6 Sentencing: guidelines: 1994-present guidelines: scoresheet factors: prior record

In determining whether an out-of-state offense con be used as prior record on a scoresheet, the court must compare the elements of the out-of-state offense to Florida crimes, not the facts of the offense.

Defense counsel’s act of agreeing with the state that the proper way to compare offenses in by comparing facts is ineffective assistance on the face of the record, and the sentencing is reversed.

Bracey v. S., __ So. 3d __, 38 F.L.W. D620 (2d DCA 3/15/2013)

126 Sentencing: habitual offenders: generally and miscellaneous

Sec. 775.084(3)(a)(2 requires that the state provide written notice of intent to seek habitual offender sentencing prior to the entry of a plea or prior to sentencing. Oral notice is insufficient, and the court errs in imposing a habitual offender sentence without prior written notice.

Johnson v. S., __ So. 3d __, 38 F.L.W. D632 (1st DCA 3/18/2013)

129 Sentencing: habitual offenders: prison releasee reoffenders

The court errs in imposing consecutive PRR sentences for lewd molestation and aggravated stalking when the offenses occur in a single incident.

Mosely v. S., __ So. 3d __, 38 F.L.W. D635 (1st DCA 3/18/2013)

131 Sentencing: probation and community control: violations

(See Bush v. S., __ So. 3d __, 38 F.L.W. D653 (2d DCA 3/20/2013) for criticism of the forms used by Pasco County in entering a finding of VOP, and a discussion of how those forms differ from the approved forms.)

133 Sentencing: restitution

An appraisal letter from a jeweler introduced over objection stating the jeweler’s opinion of the fair market value of stolen jewelry is not sufficient to establish an amount of restitution when the state fails to lay the predicate for a business record.

Leatherwood v. S., __ So. 3d __, 38 F.L.W. D625 (5th DCA 3/15/2013)

138 Statute of limitations

Misdemeanor contracting without a license is a different offense than felony contracting. Where defendant is arrested for misdemeanor contracting, but the state upgrades the crime to a felony and then fails to execute the capias within the statute of limitations, the court errs in failing to grant a motion to dismiss.

Mora v. S., __ So. 3d __, 38 F.L.W. D650 (4th DCA 3/20/2013)

146 Trial conduct: impeachment and cross-examination: generally

The court errs in refusing to allow the defense to cross the state’s key witness regarding criminal charges pending against the witness.

K.A.A. v. S., __ So. 3d __, 38 F.L.W. D647 (4th DCA 3/20/2013)

148 Trial conduct: impeachment and cross-examination: prior inconsistent statements

The court errs in allowing the state to call a witness for the sole purpose of impeaching him with a prior inconsistent statement.

The defendant and his brother were charged with robbery. The brother made a statement inculpating the defendant, and he pled to the offense. Prior to trial the state indicated that the brother was refusing to testify, and when called during a proffer he testified he did not remember whether his brother was involved in the crime. The court allowed the state to call the brother and to play the video of the statement the brother made to the police. Held: The error was not harmless and the conviction is reversed.

Bleich v. S., __ So. 3d __, 38 F.L.W. D631 (5th DCA 3/15/2013)

153 Trial conduct: jury instructions

Giving the standard attempted manslaughter by act instruction as a lesser of attempted second degree murder is fundamental error, resulting in reversal of the attempted second degree murder conviction.

Ferrier v. S., __ So. 3d __, 38 F.L.W. D632 (1st DCA 3/18/2013)

155 Trial conduct: verdicts

Defendant was charged with theft, money laundering, and exploitation of the elderly for using money from his mother’s bank account. He was acquitted of theft and money laundering, but convicted of exploitation. The facts underlying the theft count formed the basis for the exploitation count. Held: The counts are legally interlocking, and were inconsistent. The acquittal on the theft charge negated the intent need to convict on the exploitation charge, and the exploitation charge is reversed.

S. v. Kelley, __ So. 3d __, 38 F.L.W. D621 (2d DCA 3/15/2013)

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Supremes revise rules for excess investigator fees

March 21, 2013 Articles Comments Off

Section 27.711(6) allows a capital registry attorney to charge up to $15,000 for “the costs of preparing transcripts, compensating expert witnesses, and copying documents,” and the court may approve additional fees “if the trial court finds that extraordinary circumstances exist.” How the court is to evaluate those “extraordinary circumstances” is the subject of McClain v. Atwater, __ So. 3d __, 38  F.L.W.  S169 (Fla. 3/21/2013).

Attorney Martin McClain was appointed to represent a capital defendant in a successive capital postconviction proceeding. An investigator billed an amount that exceeded the cap by $1,844.00. The trial court denied the request for payment over the $15,000 cap, finding that the case was “an ordinary post-conviction case involving an evidentiary hearing, and that the Defendant has not established that extraordinary or unusual circumstances existed that would have warranted an extra $1,844.00 investigator’s fees over and above the $15,000 already spent, as required by Florida Statute § 27.711(6).” A 5-2 Supreme Court reversed, and ordered that the excess fees be paid.

In denying the motion for reimbursement, the judge made the same error as occurred in White v. Board of County Commissioners of Pinellas County, 537 So. 2d 1376, 1378 (Fla. 1989), where the trial court misunderstood our prior precedent and applied it in such a manner that it required defense counsel to show that the case was sufficiently complex. A review of the Court’s precedent shows that this Court explicitly rejected the premise that in order to obtain fees beyond the statutory limit, counsel must show that the case itself is more complex. This is because even in “routine” capital cases, an attorney may be required to spend his or her time in a manner that is disproportionate to the maximum allowable fee. Id. at 1380.

Instead, the proper focus of the court’s review should be “on the ‘defendant’s right to effective representation rather than the attorney’s right to fair compensation,’ ” reviewing what was reasonable in light of an attorney’s professional obligation to provide services to the indigent defendant. Olive, 811 So. 2d at 653 (quoting Makemson, 491 So. 2d at 1114). Then, the court must perform an “as applied” analysis to determine whether the statutory cap would be confiscatory of the attorney’s time, energy, talent, and resources under the circumstances of the particular case. Id. at 654.

Justice Pariente, exhibiting her trademark concern for the mechanics of the court system, blamed the problem on various acts of the legislature:

First, it highlights the fact that the investigatory fee schedule set forth in section 27.711(5), Florida Statutes (2011), has not been increased since it was first introduced over fourteen years ago. While the Legislature took a necessary step by enacting a fee schedule in section 27.711 that more fully ensures the constitutional right to effective representation of counsel in capital cases, it may now be an appropriate time for the Legislature to review the statutory schedule for fees and expenses paid to registry counsel handling death penalty cases. …

In death penalty cases, the consequences of underfunding the defense are clearly significant. While the Legislature should be commended for establishing a system designed to ensure that all death penalty defendants have assigned postconviction counsel paid for by the State, the Legislature should also periodically review such fee structures to ensure that the statutory fee limitations are realistic and permit attorneys to hire qualified investigators who can perform a comprehensive investigation.

Second, the circumstances of this case exemplify the problems that flowed from the Legislature’s elimination of one of the capital collateral regional offices, Capital Collateral Regional Counsel-North (CCRC-North), and the redistribution of the cases assigned to that office. After CCRC-North could no longer represent Moore, Martin McClain, a private attorney, was appointed and undertook a significant amount of work in order to be familiar with all of the necessary facts of the case so that he could fully represent the defendant.

In dissent, Justice Canady pointed up the conundrum created by the case law which finds there is no constitutional right to counsel in a postconviction proceeding, yet finds a constitutional basis for requiring payment for counsel fees beyond that permitted by the legislature:

Since there is no constitutional requirement for the State to provide postconviction counsel, there is no constitutional basis for requiring the State to spend public funds beyond the level determined by the Legislature to be appropriate for the benefit of a capital defendant seeking postconviction relief. If the State could constitutionally decline to provide any postconviction counsel for death-sentenced defendants, I cannot fathom how there can be a constitutional mandate that the State provide such a defendant with investigative services costing in excess of the statutory cap of $15,000.

To be sure, the majority in this decision treads along on a path where the Court has trod before in Remeta v. State, 559 So. 2d 1132 (Fla. 1990), and Olive v. Maas, 811 So. 2d 644 (Fla. 2002). I would recede from those decisions as seriously flawed violations of the separation of powers. I therefore would affirm the order on review.

Fourth gives a hearsay lesson

March 21, 2013 Articles Comments Off

Those of us old enough to have learned evidence from Prof. Irving Younger (and if you’re not, you owe it to yourself to watch some of his lectures online), will appreciate this week’s exposition of the law of hearsay from Judge Gross of the Fourth DCA. In Massey v. S., __ So. 3d __, 38  F.L.W.  D637 (4th DCA 3/20/2013), the Court provides a thorough discussion of the “truth of the matter asserted” element of hearsay.

The defendant was charged with possession of cocaine and possession of a firearm by a felon after he and the driver of a car in which they were found was stopped for a traffic violation. The driver was arrested for DWLSR, and while in jail the arresting officer took a statement from him regarding the defendant’s actions. At defendant’s trial, the driver testified against him and the defendant sought to introduce the video of the jail statement, arguing that it was not introduced for the truth of the matter asserted, but to show how the officer spoon-fed information to the driver about the defendant The court refused to allow it, finding the statement to be hearsay. The Fourth DCA reversed. The Court held:

No aspect of the hearsay rule is as misunderstood as the second part of the definition of hearsay — that the out of court statement is “offered in evidence to prove the truth of the matter asserted” — which McCormick describes as a “complicated and confusing condition.” McCormick on Evidence § 246 (2d ed. 1972). To explain the rationale for this aspect of the hearsay definition, McCormick looks to the reasons that hearsay is inadmissible in evidence, namely

the want of the normal safeguards of oath, confrontation and cross-examination for the credibility of the out-of-court declarant. W, a witness, reports on the stand that D, a declarant, has stated that X was driving a stolen car 60 miles an hour at a given time and place. If the proponent is trying with this evidence to prove those facts about X’s conduct we are vitally interested in the credibility of D, his opportunity and capacity to observe, his powers of memory, the accuracy of his reporting, and his tendency to lie or tell the truth. The want of oath, confrontation and opportunity to cross-examine D may greatly diminish the value of his testimony; the “hearsay dangers” are present. But the same evidence of D’s declaration may be offered for quite different purposes, as for example, to show that D at the time he spoke, was conscious, or was able to speak English, or as evidence of the utterance by D of defamatory statements in an action for slander brought by X. Where offered for these purposes, the evidence would still be evidence of an out-of-court statement by D, but its value would not at all hinge upon D’s credibility. Hence, when declarations are offered for these purposes, the want of safeguards for his credibility is of no consequence. We are interested only in the question, did D speak these words, and for that we have the testimony of W, on the stand, fully supported by all the safeguards.

Id. (footnotes omitted). Out-of-court statements may be offered for a multitude of purposes other than to prove the truth of the facts asserted in them. Florida has recognized these common types of nonhearsay utterances: (1) prior inconsistent statements, because they are “not offered to prove [their] truth, only to show the inconsistency for impeachment purposes,” K.P. v. State, 90 So. 3d 890, 891 (Fla. 4th DCA 2012) (quoting Marshall v. State, 68 So. 3d 374, 375 (Fla. 5th DCA 2011)) (internal quotations omitted; (2) statements offered to prove motive, Foster v. State, 778 So. 2d 906, 915 (Fla. 2000), Eugene v. State, 53 So. 3d 1104, 1109 (Fla. 4th DCA 2011); (3) statements used to establish an element of a crime, S.D.T. v. State, 33 So. 3d 779, 780 (Fla. 4th DCA 2010); (4) statements that describe and give significance to ambiguous acts, Stotler v. State, 834 So. 2d 940, 944 (Fla. 4th DCA 2003); (5) statements that are “verbal acts,” such as the words of an oral contract or of slander, which have “independent legal significance” because “the law attaches duties and liabilities to their utterance,” A.J. v. State, 677 So. 2d 935, 937 (Fla. 4th DCA 1996); and, (6) statements offered to show the state of mind of, or notice to, the listener, Dorsey v. Reddy, 931 So. 2d 259, 267 (Fla. 5th DCA 2006); Alfaro v. State, 837 So. 2d 429, 432 (Fla. 4th DCA 2002). See generally Charles W. Ehrhardt, Florida Evidence §§ 801.4, 801.6 (2012 ed.).

In this case, the defense’s proposed introduction of the tape recording was not hearsay because it was not offered to prove the truth of the matters contained in the driver’s jail house “statement” to the police; if taken as true, the taped statements established Massey’s guilt of the crimes charged. Rather, the detective’s statements were important because of how they were made; they supported the defense theory that the detective supplied the driver with the testimony the State wanted, so that, at trial, the driver would merely repeat this version of the facts. The detective could have authenticated the tape recording since he was present at its creation. Used in this manner, the tape contradicted the testimony of the driver, because it tended to show that the true facts were not “as testified to by the witness being impeached.” § 90.608(5), Fla. Stat. (2010).

Appellate practice: generally and miscellaneous

March 21, 2013 Cases Comments Off

The state and defense are encouraged to work together to come up with an expedited procedure to be used in cases where the defendant is sentenced to a short net sentence following a VOP so that appellate issues can be addressed prior to the expiration of the sentence. Once the defendant completes his sentence, an appeal regarding a sentencing issue is moot because no meaningful relief can be provided.

Bush v. S., __ So. 3d __, 38  F.L.W.  D653 (2d DCA 3/20/2013)

Attorney for defendant: public defenders

March 21, 2013 Cases Comments Off

In determining whether investigator fees greater than those allowed under sec. 27.711(13) to registry counsel representing defendant in a successive postconviction proceeding in a death penalty case, the court errs in focusing on whether the case is an “ordinary” one.

Under the statute, an attorney is entitled to fees beyond the statutory maximum when “extraordinary circumstances” exist. However, counsel need not show that the case itself is more complex than the usual case, because even in routine capital cases the attorney may be required to spend his or her time in a manner that is disproportionate to the maximum fee allowable. The focus instead is on the defendant’s right to effective representation rather than the attorney’s right to fair compensation. Once the court analyses what is reasonable in light of the attorney’s obligation to the client, the court must then perform an “as applied” analysis to determine whether the statutory cap would be confiscatory of the attorney’s time.

(See this case for extensive evaluation of investigatory costs expended for an investigator looking into claims that another person may have committed the crime for which defendant was convicted.)

McClain v. Atwater, __ So. 3d __, 38  F.L.W.  S169 (Fla. 3/21/2013)

Crimes: attempts

March 21, 2013 Cases Comments Off

Defendant’s acts of luring the victim into a school restroom, donning clothing he had obtained to prevent getting blood on his regular clothes, and attempting to get the victim into the restroom stall are together sufficient to sustain a conviction for attempted first-degree murder.

Hernandez v. S., __ So. 3d __, 38  F.L.W.  D660 (3d DCA 3/20/2013)

Crimes: controlled substances

March 21, 2013 Cases Comments Off

Admitting testimony that defendant possessed a “large amount of cash” when he was searched following a traffic stop of a car in which he was a passenger, in an incident that eventually led to him being charged with possession of cocaine, is error. Where the charge is merely possession of cocaine and not trafficking or sale, the fact that the defendant possessed a large amount of cash is not relevant.

Massey v. S., __ So. 3d __, 38  F.L.W.  D637 (4th DCA 3/20/2013)

Crimes: controlled substances

March 21, 2013 Cases Comments Off

LEO saw defendant commit a parking violation and detained him. The officer check his DL, and the defendant consented to a search of his person. The officer found a single oxycodone pill in his pocket, and arrested him. Defendant told him he had a prescription. Held: The court properly suppresses the pill. Oxycodone can be legally possessed, and the possession of a single pill, standing alone, does not provide probable cause to believe that the defendant is committing a crime.

S. v. Deaton, __ So. 3d __, 38  F.L.W.  D646 (4th DCA 3/20/2013)

Crimes: homicide: 1st degree murder

March 21, 2013 Cases Comments Off

Following his arrest for murder, the defendant was transported from Georgia to Florida, and he talked nonstop without being questioned. He made statements about “hunting” for a victim, and he stated several times that he had “lost his mind.” Held: The statements were admissible to show premeditation and were not evidence of other crimes.

Hilton v. S., __ So. 3d __, 38  F.L.W.  S174 (Fla. 3/21/2013)

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Sentencing: firearm mandatory minimums

Sentencing: generally

Sentencing: guidelines: 1983-93 guidelines: departure factors: aggravators

Sentencing: guidelines: 1983-93 guidelines: scoresheet factors: victim injury

Sentencing: guidelines: 1994-present guidelines: departure factors: aggravators

Sentencing: guidelines: 1994-present guidelines: departure factors: mitigators

Sentencing: guidelines: generally

Sentencing: habitual offenders: generally and miscellaneous

Sentencing: habitual offenders: habitual felony and habitual violent felony offenders

Sentencing: habitual offenders: prison releasee reoffenders

Sentencing: habitual offenders: violent career criminals

Sentencing: probation and community control: conditions

Sentencing: probation and community control: violations

Sentencing: reclassification

Sentencing: restitution

Sentencing: youthful offenders

Speedy trial

State attorneys: generally

State attorneys: prosecutorial misconduct

Statute of limitations

Statutes: constitutionality

Statutes: construction

Trial - conduct of: competency to stand trial

Trial conduct: competency to stand trial

Trial conduct: generally and miscellaneous

Trial conduct: impeachment and cross-examination: generally

Trial conduct: impeachment and cross-examination: prior convictions

Trial conduct: judgment of acquittal

Trial conduct: jurors: Neil challenges

Trial conduct: jurors: selection

Trial conduct: jury instructions

Trial conduct: verdicts

Trial conduct: witnesses

Trial – conduct of: closing arguments

Trial – conduct of: confrontation of witnesses

Trial – conduct of: continuances

Trial – conduct of: generally and miscellaneous

Trial – conduct of: impeachment and cross-examination: generally

Trial – conduct of: impeachment and cross-examination: prior convictions

Trial – conduct of: impeachment and cross-examination: prior inconsistent statements

Trial – conduct of: jurors: Neil challenges

Trial – conduct of: jurors: generally and miscellaneous

Trial – conduct of: jurors: selection

Trial – conduct of: jury instructions

Trial – conduct of: verdicts

Trial – conduct of: witnesses

Venue

Victim's rights

calculated and premeditated

fees and fines