June 28-July 2

2nd DCA
Mickey Canavan v. State of Florida-2D08-5182
Court ruled that JOA on Ag Stalking should have been granted as State did not prove BRD that the Defendant knew of the injunction. While the Defendant’s former wife had gotten a temporary injunction, the former wife was later granted a permanent injunction at a hearing which the Defendant did not attend. On top of that, the Defendant was never served with the permanent injunction. Because of the non-service, the State could not prove the third prong of Ag Stalking BRD, so the case was reversed and remanded for sentencing on simple stalking.

John Richards v. State of Florida-2D08-5553
Case reversed due to improper outdated jury instruction on self defense in a murder case. Of particular interest is how the court so noblely describes what happens when all of your witnesses are wasted at the time the crime allegedly occurred with “All four were homeless and were spending their time imbibing alcohol. This activity was detrimental to their recollection of the events of the day, and each recalled the events somewhat differently.” Id. I’ll have to use that one next time in a trial. Also, it is important to note that this supposed attempted murder allegedly took place because the Defendant would not give the victim a beer (as an aside, after reading this, I will definitely be Johnny on the spot if anyone ever asks me to get and/or hand them a beer, so as not to get stabbed). The erroneous instruction the court gave on self defense included the duty to retreat, which was eliminated by the legislature in 2005!! The instruction was fundamental error (good thing because the Defense attorney didn’t object to it), so the case was reversed and remanded.

3rd DCA
Aaron Hill v. State of Florida-3D09-1346
MTS case. Cops get an anonymous call saying a black male and white female are in a car and B/M is selling drugs. Cops roll up to the location and see B/M and W/F that match description, but do not see any illegal activity. 4 cops surround them with spotlights trained on them. Cops ask Mr. Hill for permission to search him, he consents. Mr. Hill has a baggie with cocaine in his pocket (Ugh…again, just say no, you don’t have to let them search, especially not in this circumstance). At the motion to suppress, the State says the search is consensual. Defense says it wasn’t (4 cops, boxed in, spotlight, didn’t feel free to leave). The court finds this was a show of force, four cops coming from different directions, one cop car parked in front of Mr. Hill’s car in the opposite direction of the traffic, with a spotlight on him. Also, one officer had Mr. Hill’s license when the other officer was asking for consent to search. Reversed and Remanded.

4th DCA
Jevon Wimberly v. State of Florida-4D08-207
Make sure to object to improper arguments regarding neighborhood (ie. high crime neighborhood, neighborhood where people attack each other, or neighborhood where people protect each other). If you do not object it can only be reversible if it’s fundamental error, which it usually will not rise to that level because an improper comment rises to the level of fundamental error only where the error “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000).

Daryl Tindall w. State of Florida-4D08-3263-Judge Mirman
Defendant was charged with Aggravated Kidnapping, L/L, and Sex Bat on two separate victims. The Defense moved for JOA after the close of the State’s case on the Ag Kidnapping counts because the kidnapping was incidental to the alleged sexual misconduct (he pulled the two minor, on separate occasions, into his bedroom, locked the door and confined them there only so long as it took to complete the sex bat). The court relies on the following test announced in Faison In such situations, the confinement or movement:(a) Must not be slight, inconsequential and merely incidental to the other crime; (b) Must not be of the kind inherent in the nature of the other crime; and (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier to [commit] or substantially lessens the risk of detection. Faison, 426 So. 2d at 965 (citing State v. Buggs, 547 P.2d 720, 731 (Kan. 1976)). The court ruled that it was error not to grant the JOA as to the Ag Kidnapping charges, as the kidnapping was incidental to the other crime, and reversed and remanded.

5th DCA
William Downs v. State of Florida-5D08-3925
Mr. Downs was charged with one count of Cap Sex Bat. During the trial, the State introduced evidence of other crimes (separate molestations and/or lewd exhibitions) between Mr. Downs and the victim. The court held that was improper evidence that went to crimes not charged and did not side with the State that they were inextricably intertwined, as they occurred years apart, and were not necessary to describe the crime charged.

David Lowe v. State of Florida-5D09-3028
Appeal from no contest plea on an L/L exhibition after Mr. Lowe’s motion to dismiss was denied. The facts are not in dispute. Mr. Lowe was at a gas station when a mother and her young child pulled up and parked next to him. The mother went inside to purchase something and while she was inside Mr. Lowe picked up a dildo (which the court footnotes to define as a “an object resembling a penis used for sexual stimulation”) and put it in his mouth repeatedly and waved it around. The mother came out, saw this, and called the cops, who arrived immediately and found Mr. Lowe in possession of the dildo. Lowe correctly points out that “sexual activity” as used in the L/L statute does not include oral (only anal and vaginal) penetration with an object. Reversed and remanded.