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.