July 5-July 9

1st DCA
Isaac Wilder v. State of Florida-1D08-5030
Mr. Wilder appeals the denial of his Motion to Suppress his statements in a murder case. The court relies on the recent Supreme Court decision in Maryland v. Shatzer, 130 S.Ct. 1213, 1219-20 (U.S. 2010) in reversing and remanding the case. In this case, Mr. Wilder asked for counsel, the police stopped for a short while, then began re-interrogating Mr. Wilder. Specifically, he said “I would rather not talk unless I had an attorney present.” By mirandizing him later, the taint is not removed and it does not make any subsequent statements admissible. Reversed and remanded for new trial.

3rd DCA
State v. Antoine Bowens-3D09-3023
The 3rd DCA certifies the following question to the Florida Supreme Court: “Whether section 27.5303(1)(d), Florida Statutes (2007), which prohibits a trial court from granting a motion for withdrawal by a public defender based on “conflicts arising from underfunding, excessive caseload or the prospective inability to adequately represent a client,” is unconstitutional as a violation of an indigent client’s right to effective assistance of counsel and access to the courts, and a violation of the separation of powers mandated by Article II, section 3 of the Florida Constitution as legislative interference with the judiciary’s inherent authority to provide counsel and the Supreme Court’s exclusive control over the ethical rules governing lawyer conflicts of interest?” This after the 3rd DCA reverses the trial court’s granting of the PD’s Motion to Withdraw based on the fact that that particular PD is overburdened with cases (164 mostly 3rd Degree felonies-a number which many public defender’s would be more than overjoyed to have that few!!!).

4th DCA
Jean Claude Bienaime v. State-4D08-2058
Jean Claude is appealing his conviction of false imprisonment, aggravated assault with a firearm, and domestic battery. He appeals the judge’s ruling to allow the officer to testify as to what the victim told him under the excited utterance exception. The State attempted to get in the vic’s statement about what Jean Claude did to her and his statement that he made to her that he was “ready to go back to prison.” Defense counsel objected and asked for a sidebar. The court overruled the objection on the excited utterance grounds and let the statement in. The Defense moved for mistrial after the close of the state’s case, about the victim’s statements in general and the prison statement specifically, because it let the jury know that Jean Claude was a convicted felon who had been to prison before. Later, the court admitted that it had erred in allowing the testimony, in direct dispute with Crawford v. Washington, but said that if the victim would testify later in the same fashion, the testimony would just be cumulative and the error would then be harmless. If the victim testified in a different fashion, than what the officer had said she said, the Judge would then grant the Defense’s Motion for Mistrial. The court found that the statement was not an excited utterance (it was made after there was time for reflection). The court also found it error to admit the statement because what the victim actually testified too was different. Also it was error that prison was mentioned 2 times. The curative would not have been sufficient to fix the error and a mistrial should have been granted. Both errors were not harmless, so the court reversed and remanded.

Leslie G. Kiss v. State-4D08-5057
Case involving conviction on Dealing in Stolen Property and Third Degree Grand Theft. The jury convicted on both and the court kicked the lesser conviction. The court rules that this is error. This is not a double jeopardy issue (if it was, then that solution would be correct). The court holds that the State can charge both, but the jury must be informed that they can choose one or the other, but not both. Case was reversed and remanded for a new trial.

Amos Augustus Williams v. State-4D09-2159 Judge Schack
Defendant claims the attempted voluntary manslaughter jury instruction constitutes fundamental error. The court disagrees and affirmed, but has certified the following two questions to the Florida Supreme Court (as the 1st DCA is in conflict on this issue): (1) Does the standard jury instruction o n attempted manslaughter constitute fundamental error? (2) Is attempted manslaughter a viable offense in light of Montgomery v. State, 2010 WL 1372701 (Fla. Apr. 8, 2010)?

Charles Anthony Latos v. State-4D09-2331 Judge Belanger
Latos is appealing his convictions for Sale and Delivery of Oxycodone and Trafficking in Oxycodone. APD Ledina pled his to both counts in front of Judge Belanger. Judge Belanger sentenced Latos to 5 years DOC on all three counts (he also had a possession of a firearm by convicted felon) to run concurrently. At the end of sentencing, APD Ledina advised that there may be a double jeopardy problem, sentencing Latos on both the S/D Oxy and the Trafficking. The court stated that Trafficking is just simple possession of a certain weight, so it does not violate double jeopardy. While entering a plea usually precludes a later double jeopardy attack, if the circumstances meet the following prongs, you can raise double jeopardy violations after a plea: [t]here is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation. Novaton v. State, 634 So. 2d 607, 609 (Fla. 1994). The court finds that the plea was general (open), the double jeopardy was apparent from the arrest affidavit that the court took judicial notice of, and there was no waiver of double jeopardy. The court notes that trafficking is an alternative conduct statute and as such, based on the factual basis (that Latos sold oxy to an undercover), the conviction on both was error and the court reversed and remanded as to the conviction on count 1 (the sale).

Florida Supreme Court
Eric Christopher Caldwell v. State-SC08-1519
The court addresses the question of whether, during a consensual encounter, one is Mirandized, is the person then “seized” at that time? The 2nd DCA (Caldwell v. State, 985 So. 2d 602 (Fla. 2d DCA 2008). and the 4th DCA (Raysor v. State, 795 So. 2d 1071 (Fla. 4th DCA 2001) are in conflict. The court holds that “In accordance with the cases discussed above, we hold that to the extent the Fourth District determined that the mistaken administration of Miranda warnings results in a seizure as a matter of law, its conclusion was error. The proper test is whether, based on the totality of the circumstances, a reasonable person would feel free to end the encounter and depart. While an individual act on the part of an officer may constitute a show of authority that contributes to a seizure finding, we again reject the notion that any single factor, taken alone, will be conclusive in every case in which it appears.” Therefore, on the facts of this case, the court concludes that there was no seizure and affirms.