2nd DCA
James Nicholas v. State of Florida-2D07-5400
This case involves the Defendant appealing the denial of his JOA on a Trafficking charge. The State proved up that the Defendant lived in a residence known as Cerro Circle, where a substantial amount of drugs had been cooked. The Defendant allegedly sold drugs to the residents of Morro Manor. During a search of Morro Manor, the police found large quantities of cocaine. Mr. Nicholas was not on the lease for Morro Manor and was not present during the search. Although evidence was elicited that Mr. Nicholas did sell drugs to the residents of Morro Manor, and Mr. Nicholas had a key to Morro Manor, the court finds that is not sufficient for constructive possession of the cocaine, and so the JOA as to the trafficking charge should have been granted.
4th DCA
Donnell Mickell v. State of Florida-4D08-3606 Judge Levin
If you are going to try to invoke the defense of necessity on a DWLS-HO, don’t lie to the cop about your name. Giving the officer a fake name and information belies the claim that you have someone in the car that you need to get to the hospital immediately. If that were the case, you would have told the officer the correct name and tried to get on your way as quickly as possible (so says the court). However, couldn’t it conversely be argued that the Defendant knew that he was DWLS-HO and that he knew if he gave his real name it would involve him getting arrested and possibly not being able to continue on to the hospital with his distressed passenger?? Just a thought.
Brittany Hanfield v. State of Florida-4D08-4072
The mere taking of car keys cannot amount to both carjacking and robbery as it violates double jeopardy.
State of Florida v. Jason Stone-4D10-795
Wow. If you are the State and you say ready and swear the jury, you better have your ducks in a row. Mr. Stone was charged with First Degree Murder and Attempted First Degree Murder. The arrests on those charges violated his probation. His defense first tried the substantive charges, but that resulted in a mistrial. The State then proceeded on the violation and Mr. Stone was found in violation. Mr. Stone appealed that finding. Somehow it seems that some of the exhibits were sent up to the 4th with the appeal on the VOP. The State sought to re-try Mr. Stone in January of 2010. The jury was selected and sworn, but on the day that the trial was to begin, the State sought to continue the case because they had realized that some of the exhibits were missing. The Judge was adamant that the trial begin that day. The State said that they could not proceed. The Judge said they at least needed to start the opening, but the State for some reason said that they could not. The Judge then declared that the State had rested. The Defense then moved for a JOA and the Judge granted it. The State now appeals the granting of the JOA. The Defense moves to strike the appeal on the grounds that the State is not entitled to appeal the granting of a JOA after a jury is sworn but before a verdict is rendered. The court agrees and rules that the State is not permitted to appeal the granting of the JOA because jeopardy had already attached. Mr. Stone can now not be retried for the murder.
5th DCA
Dennis Junior Francis v. State of Florida-5D08-4463
Double convictions for Possession of a Firearm by a Convicted Felon and Possession of Ammunition by a Convicted Felon pursuant to Florida Statute 790.23 violates double jeopardy based on the Grappin/Watts “a/any” test.
Monday, September 13, 2010
July 19-23
1st DCA
Ryan Donald-James Partch-1D09-1894
Mr. Partch was tried and convicted of Sexual Battery and Attempted Sex Bat with a person helpless to resist (in this case, intoxicated and passed out). Mr. Partch argued a double jeopardy violation. The court agrees. The court lays out a very informative 3 step process to determine whether or not charges violate double jeopardy. First, whether the crimes arose out of the same criminal transaction/episode. The second step is to determine if the charges were predicated on distinct offenses. If the charges were not predicated on distinct offenses, but occurred within the same episode, you must proceed to the third step, the Blockburger analysis. Here the court concludes these two counts occurred during the same transaction and were not distinct offenses. The court holds that to have been convicted and sentenced on both violated the Defendant’s double jeopardy rights. This is a great discussion of DJ issues, if you ever need to address them post-conviction.
2nd DCA
Michael T. Dery, Jr. v. State-2D08-3869
This is an appeal from a first degree murder conviction and life sentence. The State’s case here was largely, if not wholly, circumstantial. The victim was a known prostitute, there were no witnesses to the murder, the victim had left her motel to get more crack, and was never heard from again. The only evidence the State had was that Mr. Deny’s DNA was apparently found on the victim and he had access to the type of strangulation device used. During voir dire, the State asked the jurors if any had a specific interest or knowledge of DNA (as their case rested mostly on the DNA here), and only one juror responded. Juror #8 had actually taken a seventeen (that’s 17) week course on forensics, which was...wait for it….taught by the Detective who was the State’s witness in the case. The juror apparently didn’t think 17 weeks qualified as specific interest or knowledge of forensics. When this was revealed on the second day of trial, the defense moved for the juror to be removed and to be supplemented with an alternate (of which there was 2 to choose from and they were both still available). The judge refused and allowed Juror #8 to deliberate on the case. The court held that this was reversible error and applies a three step test (the courts love three step tests, not two, not four, three step tests). First you must determine if the information withheld by the juror is relevant and material (here it is). Second you must determine that the Juror concealed the information during questioning (here she did). Third the failure to disclose must not be attributable to a lack of diligence.
4th DCA
Arthur Pulcini v. State-4D08-2885
This case involves improper use of Williams rule evidence. There are many factors to consider when the State attempts to introduce Williams rule evidence. This case is a great factual example of the analysis that needs to be used. The court finds that the Williams rule evidence was admitted improperly and reverses and remands the case.
Kenneth Johnson v. State-4D08-3482
The court reversed to L/L convictions based on improper admission of prejudicial evidence. The State introduced the fact that the alleged victim had twice tried to commit suicide because of her relationship with the Defendant. The court found that this could cut both ways and allowed it in. However, the court held that if it “cut both ways” that it wasn’t very probative at all, while being very prejudicial. Therefore it should have been excluded and to admit it was harmful. Reversed and remanded.
T.M. v. State-4D10-2938 -Judge Sweet
On habeas, the Defendant contends that he is being held illegally in secure detention because he was classified as an “absconder.” The court holds that the running away must be “clandestine” and an attempt to avoid the legal process. Here there was no such evidence. Remanded.
Ryan Donald-James Partch-1D09-1894
Mr. Partch was tried and convicted of Sexual Battery and Attempted Sex Bat with a person helpless to resist (in this case, intoxicated and passed out). Mr. Partch argued a double jeopardy violation. The court agrees. The court lays out a very informative 3 step process to determine whether or not charges violate double jeopardy. First, whether the crimes arose out of the same criminal transaction/episode. The second step is to determine if the charges were predicated on distinct offenses. If the charges were not predicated on distinct offenses, but occurred within the same episode, you must proceed to the third step, the Blockburger analysis. Here the court concludes these two counts occurred during the same transaction and were not distinct offenses. The court holds that to have been convicted and sentenced on both violated the Defendant’s double jeopardy rights. This is a great discussion of DJ issues, if you ever need to address them post-conviction.
2nd DCA
Michael T. Dery, Jr. v. State-2D08-3869
This is an appeal from a first degree murder conviction and life sentence. The State’s case here was largely, if not wholly, circumstantial. The victim was a known prostitute, there were no witnesses to the murder, the victim had left her motel to get more crack, and was never heard from again. The only evidence the State had was that Mr. Deny’s DNA was apparently found on the victim and he had access to the type of strangulation device used. During voir dire, the State asked the jurors if any had a specific interest or knowledge of DNA (as their case rested mostly on the DNA here), and only one juror responded. Juror #8 had actually taken a seventeen (that’s 17) week course on forensics, which was...wait for it….taught by the Detective who was the State’s witness in the case. The juror apparently didn’t think 17 weeks qualified as specific interest or knowledge of forensics. When this was revealed on the second day of trial, the defense moved for the juror to be removed and to be supplemented with an alternate (of which there was 2 to choose from and they were both still available). The judge refused and allowed Juror #8 to deliberate on the case. The court held that this was reversible error and applies a three step test (the courts love three step tests, not two, not four, three step tests). First you must determine if the information withheld by the juror is relevant and material (here it is). Second you must determine that the Juror concealed the information during questioning (here she did). Third the failure to disclose must not be attributable to a lack of diligence.
4th DCA
Arthur Pulcini v. State-4D08-2885
This case involves improper use of Williams rule evidence. There are many factors to consider when the State attempts to introduce Williams rule evidence. This case is a great factual example of the analysis that needs to be used. The court finds that the Williams rule evidence was admitted improperly and reverses and remands the case.
Kenneth Johnson v. State-4D08-3482
The court reversed to L/L convictions based on improper admission of prejudicial evidence. The State introduced the fact that the alleged victim had twice tried to commit suicide because of her relationship with the Defendant. The court found that this could cut both ways and allowed it in. However, the court held that if it “cut both ways” that it wasn’t very probative at all, while being very prejudicial. Therefore it should have been excluded and to admit it was harmful. Reversed and remanded.
T.M. v. State-4D10-2938 -Judge Sweet
On habeas, the Defendant contends that he is being held illegally in secure detention because he was classified as an “absconder.” The court holds that the running away must be “clandestine” and an attempt to avoid the legal process. Here there was no such evidence. Remanded.
July 12-July 16
1st DCA
Canon Williams v. State-1D07-3707
Here is an example of what not to do as Appellate counsel “Appellant’s counsel was also appellate counsel for the appellant in Harris. The initial brief in this case did not even mention Harris even though the trial court relied on that case in denying Appellant’s rule 3.800(b)(2) motion and the opinion in Harris rejected the argument that section 893.101 rendered the appellant’s convictions unconstitutional. See 932 So. 2d at 552. And, as Appellant’s counsel acknowledged for the first time in the motion for rehearing, “Appellant’s alternative argument (ISSUE II) that the sentences imposed for the offenses of convictions were unconstitutional ... was indeed raised in Harris” (emphasis in original). This directly contradicts what Appellant’s counsel argued in the briefs, as well as what he argued to the trial court in connection with the rule 3.800(b)(2) motion where he stated that Harris “has no bearing” on the argument that Appellant’s sentences are unconstitutional because the opinion only addressed the constitutionality of the appellant’s convictions. Thus, although Appellant’s counsel asserted that our opinion in Harris was “ambiguous and poorly written,” the opinion could not have been more clear in its rejection of the arguments raised in this case. See 932 So. 2d at 552 (“We affirm all issues raised on appeal.”). We have also rejected these same arguments made by Appellant’s counsel in numerous other cases subsequent to Harris. See, e.g., Henry v. State, 29 So. 3d 294 (Fla. 1st DCA 2010) (table); Pugh v. State, 25 So. 3d 563 (Fla. 1st DCA 2010) (table); Knox v. State, 25 So. 3d 563 (Fla. 1st DCA 2010) (table); Schofield v. State, 993 So. 2d 968 (Fla. 1st DCA 2008) (table); Rasheed v. State, 992 So. 2d 258 (Fla. 1st DCA 2008) (table); Robinson v. State, 969 So. 2d 1023 (Fla. 1st DCA 2007) (table); Sanders v. State, 965 So. 2d 128 (Fla. 1st DCA 2007) (table); Canty v. State, 954 So. 2d 1158 (Fla. 1st DCA 2007) (table); Davis v. State, 944 So. 2d 351 (Fla. 1st DCA 2006) (table); Williams v. State, 940 So. 2d 1172 (Fla. 1st DCA 2006) (table). It is one thing for counsel to argue for a change in the law in the face of these adverse decisions or for counsel to simply preserve an issue for purposes of subsequent review; but, it is an entirely different thing to continue to argue an issue that has been consistently rejected by the courts without even acknowledging that the argument has been rejected, which is what Appellant’s counsel did in this case.”
Embarrassing, but really, what did you expect after telling the court that their opinion was “ambiguous and poorly written.” Perhaps it’s time to change your area of practice???
Johnathan Wright v. State-1D09-4150
The Defendant was charged with Attempted Second Degree Murder. After the close of the State’s case, the State requested the lesser of Aggravated Battery with a Deadly Weapon be included. The defense objected because the Deadly Weapon language was not present in the information that they went to trial on. This would substantially prejudice the Defense because they were now precluded from crossing the State’s witnesses about whether the weapon was a deadly weapon (because the State had rested) and the Defendant had chosen to go to trial because the Defendant did not believe that the State could prove up the Attempted Murder charge. The court, overruled the Defense objections and allowed the State to amend the Information. This was error, as it was prejudicial to the Defense. The court reversed and remanded the case.
4th DCA
Lamercus Tremain Law v. State-No. 4D08-4063 JUDGE BELANGER
The state tried to introduce Mr. Law’s driving record, and the Defense objected saying it was prejudicial (because it had another crime on there). The state (Brandon White) and Judge Belanger referred the Defense (PD Dorothy Busch) to State v. Byrd, 969 So. 2d 581 (Fla. 4th DCA 2007), which discussed the use of redacted driving records. The court and the State both thought that Byrd stood for the proposition that you could not use redacted driving records. However, even though the court found this erroneous reading harmless, they nonetheless write an entire opinion just to address it. This misreading is clearly important to them to or they wouldn’t have written about it, when it made no difference in the outcome of the case, and this is my opinion why the court found the misreading significant. The court and the State are both claiming that Byrd says it is error for the court to EVER redact a driving record. When you read Byrd (which doesn’t take long, because it’s only a page), you find out that the case affirms the granting of a JOA because the State, sua sponte, redacted the defendant’s driving record so much that they redacted the predicate offenses necessary to prove up the driving while license revoked charge. Without the predicate charges, the JOA had to be granted. However, the court goes on to say “Redaction should occur only where a court orders it upon a motion by the defendant (such as to prevent undue prejudice where the record is more extensive and has notations of other criminal acts****WHICH IS EXACTLY THE CASE HERE****) or where the parties agree to submit the redacted version. In those instances the defendant would necessarily have waived his right to insist on the complete record coming into evidence.” Id. at 582. The case clearly holds that redaction is permissible in the exact instance in which the defense is requesting it in this case, which is exactly what the 4th says “Quite simply in the footnote we clearly covered the situation present in this case where the defendant requested a redaction.” I haven’t listened to the audio of the trial, so I don’t know if Ms. Busch pointed this flaw in the court and the state’s argument out, but is certainly something that is evident from a plain reading of Byrd, which is why I think the court found it important to address it in a published opinion.
Jawara Ward v. State of Florida-4D08-4220-JUDGE SCHACK
The Defendant is charged with robbery and grand theft motor vehicle for allegedly robbing a guy on a scooter, taking the scooter, a wallet, money, and a cell phone. The police somehow developed Mr. Ward as a suspect, even though the victim could not identify him, and spoke with Mr. Ward about the crime. Mr. Ward said some kid named “Showtime” did it (I always wonder about these street names, who gives them to these kids?? Can you make up your own?? Is it like that Jersey Shore thing with “The Situation” and “Snooki??” Does that make the Jersey Shore kids gang members?? Perhaps I need to do more investigation on the subject, but I wonder what street name I would be given.). Showtime told Mr. Ward what he did and gave Mr. Ward the victim’s cell phone. Based on that, the cops arrest Mr. Ward, who convieniently (for the cops-not for Mr. Ward) has the victim’s bank card on him. Mr. Ward then tells the cops where Showtime dumped the scooter (another question…what good is stealing the scooter if you are just going to dump it??). During the trial, the Judge started reading the “Possession of Recently Stolen Property Inference Instruction,” when both sides reminded the Judge that that instruction was out. The Judge said okay, but then later read the instruction to the jury (the opinion doesn’t mention any objections this time though). Mr. Ward was convicted and sentenced to 8 years on the robbery and 5 concurrent on the grand theft, he appeals the grand theft conviction of the scooter, claiming he was never in possession of it and it was error to read the inference instruction. The court holds that “the crucial inquiry in determining the existence of a proper factual basis to support this instruction is whether possession is personal a n d ‘involve[s] a distinct a n d conscious assertion of possession by the accused.’ Chamberland, 429 So. 2d at 843.” The court holds that, this factual basis was lacking and the instruction should not have been read. Because identity was at issue, the error was not harmless and the court reversed and remanded the case.
Dustin J. Williams v. State-4D08-477 JUDGE SCHACK
This case involves the death of the victim by accidental shooting. Mr. Williams was friends with the decedent and was handling the loaded weapon around him, when the weapon accidentally went off, shot the victim, and killed him. Mr. Williams went on trial for manslaughter and grand theft firearm. The grand theft firearm resulted from Mr. Williams allegedly stealing the gun from Deputy George Primm’s car (Mr. Primm apparently thought this was a safe place to store a gun-over the visor in his car, which is completely unfortunate and provides those against gun rights yet another argument for gun control. I’ll agree that we need gun control, specifically, that a Sheriff Deputy understand that it is NOT safe to keep a gun in a car in your driveway. Perhaps if Mr. Primm had understood this simple rule of gun ownership this tragedy would have never occurred). Back to the case though…Defense counsel tried to sever the counts, and the court denied the motion. The 4th holds that this was reversible error because the crimes were not part of one single criminal episode. The 4th reversed and remanded the case for two new trials.
Canon Williams v. State-1D07-3707
Here is an example of what not to do as Appellate counsel “Appellant’s counsel was also appellate counsel for the appellant in Harris. The initial brief in this case did not even mention Harris even though the trial court relied on that case in denying Appellant’s rule 3.800(b)(2) motion and the opinion in Harris rejected the argument that section 893.101 rendered the appellant’s convictions unconstitutional. See 932 So. 2d at 552. And, as Appellant’s counsel acknowledged for the first time in the motion for rehearing, “Appellant’s alternative argument (ISSUE II) that the sentences imposed for the offenses of convictions were unconstitutional ... was indeed raised in Harris” (emphasis in original). This directly contradicts what Appellant’s counsel argued in the briefs, as well as what he argued to the trial court in connection with the rule 3.800(b)(2) motion where he stated that Harris “has no bearing” on the argument that Appellant’s sentences are unconstitutional because the opinion only addressed the constitutionality of the appellant’s convictions. Thus, although Appellant’s counsel asserted that our opinion in Harris was “ambiguous and poorly written,” the opinion could not have been more clear in its rejection of the arguments raised in this case. See 932 So. 2d at 552 (“We affirm all issues raised on appeal.”). We have also rejected these same arguments made by Appellant’s counsel in numerous other cases subsequent to Harris. See, e.g., Henry v. State, 29 So. 3d 294 (Fla. 1st DCA 2010) (table); Pugh v. State, 25 So. 3d 563 (Fla. 1st DCA 2010) (table); Knox v. State, 25 So. 3d 563 (Fla. 1st DCA 2010) (table); Schofield v. State, 993 So. 2d 968 (Fla. 1st DCA 2008) (table); Rasheed v. State, 992 So. 2d 258 (Fla. 1st DCA 2008) (table); Robinson v. State, 969 So. 2d 1023 (Fla. 1st DCA 2007) (table); Sanders v. State, 965 So. 2d 128 (Fla. 1st DCA 2007) (table); Canty v. State, 954 So. 2d 1158 (Fla. 1st DCA 2007) (table); Davis v. State, 944 So. 2d 351 (Fla. 1st DCA 2006) (table); Williams v. State, 940 So. 2d 1172 (Fla. 1st DCA 2006) (table). It is one thing for counsel to argue for a change in the law in the face of these adverse decisions or for counsel to simply preserve an issue for purposes of subsequent review; but, it is an entirely different thing to continue to argue an issue that has been consistently rejected by the courts without even acknowledging that the argument has been rejected, which is what Appellant’s counsel did in this case.”
Embarrassing, but really, what did you expect after telling the court that their opinion was “ambiguous and poorly written.” Perhaps it’s time to change your area of practice???
Johnathan Wright v. State-1D09-4150
The Defendant was charged with Attempted Second Degree Murder. After the close of the State’s case, the State requested the lesser of Aggravated Battery with a Deadly Weapon be included. The defense objected because the Deadly Weapon language was not present in the information that they went to trial on. This would substantially prejudice the Defense because they were now precluded from crossing the State’s witnesses about whether the weapon was a deadly weapon (because the State had rested) and the Defendant had chosen to go to trial because the Defendant did not believe that the State could prove up the Attempted Murder charge. The court, overruled the Defense objections and allowed the State to amend the Information. This was error, as it was prejudicial to the Defense. The court reversed and remanded the case.
4th DCA
Lamercus Tremain Law v. State-No. 4D08-4063 JUDGE BELANGER
The state tried to introduce Mr. Law’s driving record, and the Defense objected saying it was prejudicial (because it had another crime on there). The state (Brandon White) and Judge Belanger referred the Defense (PD Dorothy Busch) to State v. Byrd, 969 So. 2d 581 (Fla. 4th DCA 2007), which discussed the use of redacted driving records. The court and the State both thought that Byrd stood for the proposition that you could not use redacted driving records. However, even though the court found this erroneous reading harmless, they nonetheless write an entire opinion just to address it. This misreading is clearly important to them to or they wouldn’t have written about it, when it made no difference in the outcome of the case, and this is my opinion why the court found the misreading significant. The court and the State are both claiming that Byrd says it is error for the court to EVER redact a driving record. When you read Byrd (which doesn’t take long, because it’s only a page), you find out that the case affirms the granting of a JOA because the State, sua sponte, redacted the defendant’s driving record so much that they redacted the predicate offenses necessary to prove up the driving while license revoked charge. Without the predicate charges, the JOA had to be granted. However, the court goes on to say “Redaction should occur only where a court orders it upon a motion by the defendant (such as to prevent undue prejudice where the record is more extensive and has notations of other criminal acts****WHICH IS EXACTLY THE CASE HERE****) or where the parties agree to submit the redacted version. In those instances the defendant would necessarily have waived his right to insist on the complete record coming into evidence.” Id. at 582. The case clearly holds that redaction is permissible in the exact instance in which the defense is requesting it in this case, which is exactly what the 4th says “Quite simply in the footnote we clearly covered the situation present in this case where the defendant requested a redaction.” I haven’t listened to the audio of the trial, so I don’t know if Ms. Busch pointed this flaw in the court and the state’s argument out, but is certainly something that is evident from a plain reading of Byrd, which is why I think the court found it important to address it in a published opinion.
Jawara Ward v. State of Florida-4D08-4220-JUDGE SCHACK
The Defendant is charged with robbery and grand theft motor vehicle for allegedly robbing a guy on a scooter, taking the scooter, a wallet, money, and a cell phone. The police somehow developed Mr. Ward as a suspect, even though the victim could not identify him, and spoke with Mr. Ward about the crime. Mr. Ward said some kid named “Showtime” did it (I always wonder about these street names, who gives them to these kids?? Can you make up your own?? Is it like that Jersey Shore thing with “The Situation” and “Snooki??” Does that make the Jersey Shore kids gang members?? Perhaps I need to do more investigation on the subject, but I wonder what street name I would be given.). Showtime told Mr. Ward what he did and gave Mr. Ward the victim’s cell phone. Based on that, the cops arrest Mr. Ward, who convieniently (for the cops-not for Mr. Ward) has the victim’s bank card on him. Mr. Ward then tells the cops where Showtime dumped the scooter (another question…what good is stealing the scooter if you are just going to dump it??). During the trial, the Judge started reading the “Possession of Recently Stolen Property Inference Instruction,” when both sides reminded the Judge that that instruction was out. The Judge said okay, but then later read the instruction to the jury (the opinion doesn’t mention any objections this time though). Mr. Ward was convicted and sentenced to 8 years on the robbery and 5 concurrent on the grand theft, he appeals the grand theft conviction of the scooter, claiming he was never in possession of it and it was error to read the inference instruction. The court holds that “the crucial inquiry in determining the existence of a proper factual basis to support this instruction is whether possession is personal a n d ‘involve[s] a distinct a n d conscious assertion of possession by the accused.’ Chamberland, 429 So. 2d at 843.” The court holds that, this factual basis was lacking and the instruction should not have been read. Because identity was at issue, the error was not harmless and the court reversed and remanded the case.
Dustin J. Williams v. State-4D08-477 JUDGE SCHACK
This case involves the death of the victim by accidental shooting. Mr. Williams was friends with the decedent and was handling the loaded weapon around him, when the weapon accidentally went off, shot the victim, and killed him. Mr. Williams went on trial for manslaughter and grand theft firearm. The grand theft firearm resulted from Mr. Williams allegedly stealing the gun from Deputy George Primm’s car (Mr. Primm apparently thought this was a safe place to store a gun-over the visor in his car, which is completely unfortunate and provides those against gun rights yet another argument for gun control. I’ll agree that we need gun control, specifically, that a Sheriff Deputy understand that it is NOT safe to keep a gun in a car in your driveway. Perhaps if Mr. Primm had understood this simple rule of gun ownership this tragedy would have never occurred). Back to the case though…Defense counsel tried to sever the counts, and the court denied the motion. The 4th holds that this was reversible error because the crimes were not part of one single criminal episode. The 4th reversed and remanded the case for two new trials.
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