Florida Criminal Law Update (November 14, 2022 - November 18, 2022 — Jacksonville Criminal Lawyer Blog

The “Cite” of the Crime Podcast
CASE SUMMARIES

Florida Criminal Law Update (November 14, 2022 – November 18, 2022)

Listen to this week’s The “Cite” of the Crime Podcast episode here.

OVERVIEW – 13

2 – Florida Supreme Court Cases
2 – First DCA Cases
5 – Second DCA Cases
1 – Third DCA Cases
2 – Fourth DCA Cases
1 – Fifth DCA Cases

Case #1 – Somers v. State, No. SC21-1407 (Fla. Sup. Ct.)(November 17, 2022)

Somers is an important case involving the mens rea requirement for assault that affects state and federal criminal practitioners, and immigration practitioners.
In Somers, the 11th Circuit certified a question to the Florida Supreme Court to clarify whether Florida’s assault statute requires more than mere recklessness.
If assault requires more than mere recklessness, then an aggravated assault will continue to be a qualifying predicate offense for the Armed Career Criminal Act (or ACCA, for short).
If assault only requires a reckless mens rea, then Florida’s aggravated assault and other assault based felonies cannot serve as predicate offenses for Armed Career Criminal status.
Likewise, if assault requires more than mere recklessness, it can serve as the basis for an aggravated felony in the immigration context, but if it requires only mere recklessness, then Florida’s aggravated assault with a year or more of incarceration would not be an aggravated felony.
So, did I say that this was an important case?
So, the Eleventh Circuit certified two questions to the Florida Supreme Court
- 1) Does the first element of assault as defined in Fla. Stat. §784.011(1) – “an intentional, unlawful threat by word or act to do violence to the person of another” – require specific intent?
- 2) If not, what is the mens rea required to prove that element of the statute?
The Florida Supreme Court wanted to rephrase the questions a little focusing on what the Eleventh Circuit was really trying to discern from Florida’s assault statute in the ACCA context.
- The Court looked to the Borden case which held that the ACCA elements clause sets out a mens rea requirement of purposeful or knowing conduct.
- The perpetrator must also direct his action at, or target, another individual.
- And a crime that can be committed by mere recklessness cannot be a crime of violence under the elements clause because reckless conduct is not aimed in a prescribed manner.
- So, the Florida Supreme Court determined that the Eleventh Circuit wasn’t really interested in whether Florida’s assault is a specific intent or general intent crime, but rather whether it required more than mere recklessness.
- So the Florida Supreme Court rephrased the question, asking instead:
  - Does the first element of the assault statute, §784.011(1) require not just the general intent to volitionally take the action of threatening to do violence, but also that the actor direct the threat at a target, namely another person?
- And the answer is yes. Florida’s assault statute requires that the actor direct the threat at another person and therefore requires more than mere recklessness.
- § 784.011(1) defines assault as an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.
- Therefore, there are three elements:
  - 1) an intentional, unlawful threat by word or act to do violence to the person of another
  - 2) an apparent ability to carry out the threat, and
  - 3) creation of a well-founded fear that the violence is imminent.
- The Florida Supreme Court contained its analysis to the first element.
  - The words “threat” and “violence” are not defined by the statute, so the Court looked to the ordinary dictionary definitions.
  - A threat is an expression of an intent or communicated intent to do violence to another.
  - Violence is the use of physical force to cause harm.
  - Putting them together, §784.011(1) prohibits an intentional expression of an intent to use physical force to harm another’s person.
  - Therefore, the statute cannot be violated without directing action at or targeting another person.
  - Assault cannot be accomplished by a reckless act and therefore requires at least knowing conduct.
  - Florida’s assault statute requires not just the general intent to volitionally take the action of threatening to do violence, but also directing the threat at another person.
- So, from a state criminal practitioner’s point of view, get those motions to dismiss ready where a defendant is charged with waiving a gun around in a reckless manner, rather than knowingly directing a threat at an individual person.
- And for those federal criminal practitioners and immigration practitioners, aggravated assault convictions will continue to be predicate ACCA offenses and aggravated felonies.
- Certified Question answered in the affirmative.

Case #2 – Sievers v. State, No. SC20-225 (Fla. Sup. Ct.)(November 17, 2022)

Sievers is a death penalty case involving several issues.
Mr. Sievers hired two men to kill his wife, Dr. Teresa Sievers.
The two men were provided access to the home while Mr. Sievers was out of town.
The two men lied in wait until Dr. Sievers returned home alone from a trip and when she entered the residence, they attacked her with hammers.
Evidence eventually led to the two men and one of the men flipped on Mr. Sievers and testified against him at the trial.
The State also introduced cell phone evidence, GPS evidence and video surveillance records along with physical evidence.
Mr. Sievers did not testify at trial.
He was found guilty of first degree murder and conspiracy to commit murder.
During the penalty phase, the jury found one of two alleged aggravators – that the murder was committed in a cold, calculated and premeditated manner with no pretense of moral or legal justification.
The jury rejected all mitigators including that Mr. Sievers had no prior criminal history, which was conceded by the State in closing argument.
During the Spencer hearing, the trial court sentenced Mr. Sievers to death finding CCP aggravator and finding the mitigators of no prior criminal history, a loving and supportive relationship with his family, that the family would be negatively affected by execution, and that Mr. Siever engaged in charitable activity, however, the trial court attributed little weight to the mitigators.
Mr. Sievers appealed to the Florida Supreme Court.
The testifying co-defendant entered into a plea agreement that gave the State the right to subject him to a polygraph examination.
Mr. Siever’s tethered several of his arguments on appeal to the fact that the state never subjected the co-defendant to a polygraph examination.
At trial, the trial court told the jury, “If Mr. Wright had actually taken a polygraph, those results, if they were – if he passed, would not have been admissible during this trial.”
Mr. Sievers argues on appeal that this was a misstatement of the law.
- The Florida Supreme Court first held that Mr. Sievers did not preserve the issue because his attorney didn’t object to the jury instruction.
- And the Florida Supreme Court found that the instruction was not a misstatement of law and it wasn’t a comment on the evidence or on the co-defendant’s credibility.
Mr. Sievers next argued that the State falsely argued in rebuttal that the co-defendant, Mr. Wright would be subjected to a polygraph examination between trial and sentencing.
- But the Florida Supreme Court determined the record only established that the State told the jury that the co-defendant remained obligated to take a polygraph through sentencing, not that the State would require him to do so. So no error.
Mr. Sievers next claimed that the detective’s testimony that he didn’t need a lie detector machine to tell him when the co-defendant was lying was an improper implication that the detective had a natural ability to detect lies and was therefore improper bolstering of a witness.
- The Florida Supreme Court looked at the context of the statements in the record and found that the bulk of the testimony related to extrinsic evidence that showed the co-defendant was lying, not that the detective had a sixth sense. So no error.
Mr. Sievers next argued that the codefendant’s statement about changing his testimony where he said, “I just couldn’t quite let go of all that. And I took a break. I talked to my attorney. I prayed,” was a violation of §90.611.
- §90.611 states that evidence of the beliefs or opinions of a witness on matters of religion is inadmissible to show that the witness’s credibility is impaired or enhanced thereby.
- However, here, the Florida Supreme Court held that the reference to prayer was fleeting and was equated with talking to his attorney and taking a break and it wasn’t solicited by the prosecutor and never mentioned again. So, no error.
Mr. Sievers next argued that the trial court erred by preventing him from admitting a video that showed during a proffer where the prosecutor told the co-defendant that his wife was a blip on the radar screen that the prosecutor wanted to go away.
- Here, the Florida Supreme Court held that the evidence was properly excluded as cumulative under §90.403.
- Mr. Sievers questioned both the detective and the co-defendant about the blip on the screen comment.
- And during closing, Mr. Sievers’ attorney argued that the co-defendant’s wife had tampered with witnesses and could have been criminally charged, but that went away because of the co-defendant’s testimony.
- The Court noted that the co-defendant’s testimony and the detective’s testimony was consistent with the statements in the video, so they weren’t impeachment.
- So, the trial court did not err by excluding the cumulative evidence.
- Mr. Sievers next argues that the trial court erred by preventing him from asking the detective about a sexual relationship between the co-defendant and the third murder defendant.
  - Here, the Florida Supreme Court noted that there was no proffer showing any potential romantic relationship between the two defendants, so the trial court was within its discretion in sustaining the State’s relevance objection.
  - Mr. Sievers next argued that the trial court erred by allowing his neighbor to testify that she encountered him on her backyard lanai several months before the murder and that she heard Mr. Sievers arguing with Dr. Sievers a month prior to the murder.
    - The State’s had submitted testimony from the co-defendant that Mr. Sievers had been scoping out the two murderer’s escape route and therefore the neighbor’s testimony relating to Mr. Siever’s being on her porch related to him scoping out the area for escape.
    - Mr. Sievers argues that the evidence was irrelevant, overly prejudicial and prior bad acts.
    - However, the Florida Supreme Court disagreed finding that it corroborating the co-defendant’s testimony
    - And as for the testimony that Mr. Sievers was arguing with the victim, the Florida Supreme Court did not get to the admissibility of those potentially hearsay statements because the Court found that if there was any error, it was harmless because the State didn’t even mention the statements in closing argument and argued a financial motive, rather than one of marital problems.
Mr. Sievers next argued that the trial court erred in admitting eleven autopsy photographs as overly prejudicial.
- However, the Florida Supreme Court found that photos probative as they corroborated the co-defendant testimony and assisted the jury in understanding the medical examiner’s testimony.
Mr. Sievers also argued cumulative error, but because the Court found no error at all, there could be no cumulative error.
The Court also found the evidence sufficient under the principal theory to support the first degree murder conviction and the conspiracy count.
And even though he had never met or communicated with the third defendant, the government does not have to prove that the defendant knew the identity of every other person alleged in the conspiracy. It is enough to prove that the alleged co-conspirator shared a common purpose to commit the crime.
Mr. Sievers next argued that the notice of intent to seek the death penalty was insufficient because it did not list the aggravating factors when it was filed one day before the 45 day deadline from the date of arraignment.
- Mr. Sievers had filed a motion to strike the notice and the State filed an amended notice listing the aggravators, but it was filed after the 45 day deadline to file a notice.
- Mr. Sievers then filed a motion to strike the amended notice.
  - The trial court denied Mr. Siever’s motion to strike.
  - The Florida Supreme Court found that any procedural defect here is subject to harmless error analysis.
  - The Court relied on its decision in Massey v. State where it held that an habitual felony offender notice that had procedural defects was guided by §59.041 which states that a reviewing court may not set aside a criminal judgment for error as to any matter of pleading or procedure unless the court determines that the error has resulted in a miscarriage of justice.
  - The Florida Supreme Court precedent has equated that standard with the harmless error test.
  - And here, the Court determined that the State has shown beyond a reasonable doubt that Mr. Sievers suffered no prejudice from any delay in the State’s full compliance with the notice provision in §782.04(1)(b).
  - The amended notice was filed within 4 days of the statutory deadline, no discovery had commenced yet, no hearings had been conducted and trial didn’t begin until 3 ½ years after the amended notice was filed.
  - So no harmless error.
  - Mr. Sievers next argued that the jury did not find his lack of criminal history mitigator because of a misstatement of law by the State.
    - The State told the jury, “So, if one or more individual jurors find that one or more mitigating circumstances was established by the greater weight of the evidence, check no. It was not”
    - However, Mr. Siever’s attorney didn’t object and therefore the fundamental error standard applied and the Court found no fundamental error.
    - The trial court instructed the jury on the correct law and the State told the jury that Mr. Sievers had no criminal history.
    - So no error.
    - Mr. Sievers next argued that the trial court erred by excluding a portion of a postcard he received from his daughter stating “Is it possible they could kill you? I really hope not. Please say no.”
    - Here, the statement was hearsay and Mr. Siever’s daughters didn’t testify giving the prosecution the chance to cross-examine them and therefore there was no abuse of discretion by the trial court in preventing the admission of the statements.
  - Mr. Sievers next argued that live testimony of Dr. Sievers’ mother and a video clip of Dr. Sievers talking about holistic and preventative medicine should have been excluded.
  - Under Florida law, victim impact evidence is admissible to demonstrate the victims’ uniqueness as an individual human being and the resultant loss to the community’s members by the victim’s death.
  - Here, the testimony and video clip was proper victim impact evidence.
  - Mr. Sievers next argued that the trial court erred in having a Spencer hearing on the same day as the sentencing hearing.
  - The Florida Supreme Court stated that its decision in Spencer does not categorically preclude the trial court from holding a Spencer hearing and imposing sentence on the same day.
  - So, no error.
- - Mr. Spencer next argued that the jury’s cold, calculated and premeditated aggravator finding was unconstitutional because it depended on a co-defendant’s testimony.
    - But, it is up to a jury to determine whether a witness is credible and therefore the aggravator was sufficiently supported by testimonial evidence the jury found credible.
Finally, Mr. Spencer requested a proportionality review, but the Court’s precedent in Lawrence v. State holds that the Court lacks constitutional or statutory authority to do so.
Case Affirmed.

Case #3 – State v. Hamilton, No. 1D21-3073 (Fla. 1st DCA)(November 16, 2022)

Hamilton is a boating under the influence case out of Wakulla County.
Mr. Hamilton was boating and drinking with friends when he caused the boat’s passengers to be ejected from the boat and the propeller struck one of the passengers who subsequently died.
Florida Fish and Wildlife immediately began an investigation and they took a blood sample from Mr. Hamilton which was over a .08. Mr. Hamilton was arrested for manslaughter by boating under the influence.
Mr. Hamilton filed a motion to suppress the blood draw evidence arguing that it was an illegal search and seizure obtained without a warrant.
The State relied on Mr. Hamilton’s consent.
Mr. Hamilton argued that any consent was coerced and Mr. Hamilton’s father testified that that officers told Mr. Hamilton that Florida law required officers to take his blood and that one way or another, they were going to take his blood.
The trial court granted the motion to suppress finding that the consent was not voluntary because the officers gave Mr. Hamilton no option to refuse the request.
The U.S. Supreme Court has held in Missouri v. McNeely that a blood draw is a search.
And individuals cannot be lawfully compelled to submit to a blood draw by statute.
Rather, officers must obtain a search warrant before drawing blood.
A suspect can consent to a blood draw, but it must be voluntary.
Consent is not considered voluntary when statements or actions by law enforcement officers imply that an individual has no right or ability to refuse the request.
Whether consent is voluntary is a question of fact.
Here, the State had the burden by a preponderance of the evidence to establish that the consent was voluntary.
In Montes-Valeton, the Florida Supreme Court set out 8 factors to help determine whether consent was voluntary
- 1) the time and place of the encounter
- 2) The number of officers present
- 3) the officers words and actions
- 4) the age and maturity of the defendant
- 5) the defendant’s prior contacts with the police
- 6) whether the defendant executed a written consent form
- 7) whether the defendant was informed that he or she could refuse to give consent and
- 8) the length of time the defendant was interrogated before consent was given.
In this case, although there was conflicting evidence from the officers and Mr. Hamilton’s father as to whether Mr. Hamilton was given an opportunity to refuse the blood draw, the trial court is within its discretion to find one witness more credible than another.
Case Affirmed.

Case #4 – Reed v. State, No. 1D21-2473 (Fla. 1st DCA)(November 16, 2022)

Reed is a manslaughter case involving a recorded statement out of Escambia County.
Mr. Reed was standing near a man who was shot.
A few days later, he was picked up by police on an unrelated offense.
He was interviewed by police about the shooting and he admitted that he was standing near the victim when he was shot, he didn’t know where the shots were coming from, and he described how he fled the scene.
During the interview, Mr. Reed asked for medical attention and he was taken to the hospital.
Mr. Reed had to be restrained at the hospital after becoming disorderly.
An officer left his body camera in the hospital room and walked outside the room.
The body camera picked up Mr. Reed’s interaction with a nurse who walked in where he threatened to spit on her.
When the nurse told Mr. Reed he would be committing a crime, he stated that he didn’t care because he committed murder.
Mr. Reed was charged with second degree murder and he filed a motion to suppress the footage, which was denied by the trial court.
At trial, the State admitted the body cam footage, along with medical examiner’s testimony that the shot came from within two feet, and the murder weapon found on the same path Mr. Reed said he fled on.
Mr. Reed was convicted of the lesser included offense of manslaughter.
On appeal, Mr. Reed argues that the recording should have been excluded under §943.03, which makes it illegal to intentionally intercept oral information.
Unfortunately for Mr. Reed, his attorney didn’t object to the admission of the recording at trial and therefore he waived the issue.
But, not to make the trial attorney feel too bad, the Court did go on to say, it would have affirmed anyway because §943.03 only applies when the speaker has a reasonable expectation of privacy in the statements.
Mr. Reed was in police custody and there generally is no reasonable expectation of privacy when in police custody.
And, not to mention that he loudly made the incriminating statement to a hospital nurse that could easily be heard through the open glass door of the hospital room.
Under these facts, Mr. Reed had no reasonable expectation of privacy and therefore his oral communication was not recorded illegally in violation of §943.03
The 1st DCA also determined that Mr. Reed’s motion for judgment of acquittal was properly denied.
- Manslaughter has two elements
  - 1) the victim is dead, and
  - 2) the defendant intentionally committed an act that caused the victim’s death, or that the death of the victim resulted from the culpable negligence of the defendant.
- The state presented testimony that Mr. Reed was standing beside the victim when he was shot, the victim was shot at close range, Mr. Reed admitted to killing someone, and he admitted to fleeing on the path where the gun was found.
- Under these circumstances, a reasonable jury could conclude beyond a reasonable doubt that Mr. Reed shot and killed the victim.
Case Affirmed.

Case 5 – B.P. v. State, No. 2D21-3074 (Fla. 2nd DCA)(November 16, 2022)

B.P. is a juvenile restitution case out of Hillsborough County.
B.P. was adjudicated delinquent after an adjudicatory hearing.
The trial court entered a restitution order based on evidence admitted during the adjudicatory hearing.
B.P. objected arguing that he received no notice that the court would base a restitution amount solely on evidence admitted during that hearing.
B.P. filed a Rule 8.135(b)(2) motion requesting a restitution hearing and the trial court failed to rule on it so it is deemed denied for appellate purposes.
Under §985.437(2)(c), when restitution is ordered by the court, the amount cannot exceed an amount the child, parent or guardian could reasonably be expected to pay.
The court must make a finding as to the child’s expected earning capacity before setting a restitution amount.
If the court intends on ordering restitution based solely on evidence admitted at the adjudicatory hearing, the child must be given notice.
Here, the State conceded error and the 2nd DCA agreed.
Case reversed and remanded.

Case #6 – Baeza v. State, No. 2D22-114 (Fla. 2nd DCA)(November 16, 2022)

Baeza is a 3.850 post-conviction relief case out of Pasco County.
Mr. Baeza’s brother was charged with a drug offense and began working as a confidential informant for the police.
After his brother got him to talk about drugs, Mr. Baeza agreed to cooperate with law enforcement also.
Mr. Baeza led police to a trafficking amount of methamphetamine and he was charged with trafficking.
After he was convicted by a jury, Mr. Baeza was sentenced to 15 years.
His direct appeal was affirmed and he filed a 3.850 motion claiming that his trial counsel was ineffective for failing to raise an entrapment defense.
The trial court summarily denied the motion finding that the record conclusively refuted his claim.
- The trial court noted that trial counsel did argue in closing that his brother entrapped him by telling him to store drugs and then telling the police the drugs belonged to Mr. Baeza.
On appeal, the 2nd DCA found that the record did not conclusively refute Mr. Baeza’s claim.
- The 2nd DCA noted that Mr. Baeza’s trial counsel argued in closing that there was no wire or police presence there when Mr. Baeza’s brother talked to Mr. Baeza, thereby undercutting the entrapment theory.
The Court did find that Mr. Baeza’s motion was facially insufficient because he failed to plead sufficient facts that would establish that the government induced him to commit the crime and that he wasn’t predisposed to commit it, both of which are required to establish an entrapment defense.
But he is entitled to amend the motion, so the Court reverses and remands for the trial court to allow Mr. Baeza to amend and refile his motion.
Case affirmed in part, reversed in part, and remanded.

Case #7 Bowers v. State, No. 2D21-2597 (Fla. 2nd DCA)(November 18, 2022)

Bowers is a §796.07(6) prostitution civil penalty case out of Polk County.
Mr. Bowers was convicted of offer of prostitution, lewdness, or assignation under §796.07(2)(e).
At sentencing, he was assessed a $5,000 civil penalty pursuant to § 796.07(6).
§796.07(2)(e) provides punishment as provided in §775.082 or §775.083, neither of which mentions a civil penalty of any amount.
§796.07(6) provides, a person who violates 796.07(2)(f) shall be assessed a civil penalty of $5,000 if the violation results in any judicial disposition other than acquittal or dismissal.
But, Mr. Bowers wasn’t charged under §796.07(2)(f), he was charged under (2)(e), therefore he is not subject to the civil penalty.
Case affirmed in part, reversed in part and remanded.

Case #8 – State v. Lopez Garcia, No. 21-1492 (Fla. 2nd DCA)(November 16, 2022)

Lopez Garcia is a subjective entrapment in a traveling to meet a minor case out of Sarasota County.
Mr. Lopez Garcia filed a motion to dismiss his case which was granted by the trial court.
This is an interesting motion to dismiss case because although the facts were not in dispute; that is, the communications between the fictitious minor and the defendant were by text message and therefore not in dispute; the interpretation of those text messages was in dispute.
Under §777.201(1), a law enforcement officer, a person cooperating with law enforcement or a a person acting as an agent of law enforcement commits entrapment if, for the purpose of obtaining evidence of a crime, induces or encourages and as a direct result causes another person to engage in conduct constituting a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
So, we ask two questions.
- First, did the officer induce the defendant to commit the crime.
  - The defendant has the burden of proving inducement by a preponderance of the evidence.
  - Inducement includes persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy, or friendship.
  - Inducement cannot be found by prompting or creating an opportunity.
- The second question we ask is if the officer did induce the defendant to commit the crime, was the defendant predisposed to commit the crime.
  - Predisposition refers to whether the defendant was awaiting any propitious opportunity or was ready and willing, without persuasion, to commit the offense.
  - Predisposition focuses on whether the defendant was an unwary innocent or instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime.
  - The defendant has the initial burden to show lack of predisposition and then the burden shifts to the State to rebut the evidence beyond a reasonable doubt.
If the defendant was predisposed to commit the offense, then there is no entrapment.
Generally, a trial court can grant a motion to dismiss due to subjective entrapment if the material facts are not disputed, the defendant meets his burden of proof to establish entrapment, and the State is unable to rebut the evidence of lack of predisposition.
Here, what was typed in the text messages was not in dispute, but reasonable persons could draw different conclusions as to what each message meant.
- The officer created an online profile on an over 18 dating app and had her age at 21 years old.
- A day after they first started online chatting, the undercover officer told Mr. Lopez-Garcia that she was 14.
- Mr. Lopez-Garcia told the officer that he just wanted to chat and nothing else and the undercover officer said, “I don’t want to just chat.”
- The officer and Mr. Lopez-Garcia go back and forth where the officer kept trying to get Mr. Lopez-Garcia to come to her house.
- Mr. Lopez-Garcia wavered between saying he would not do anything sexual with her and asking her for photos of herself.
- Eventually, Mr. Lopez-Garcia sent the officer a photo of his penis and the two went back and forth with the officer trying at least four times to get Mr. Lopez-Garcia to come to her house.
- The 2nd DCA held that Mr. Lopez-Garcia did not establish by a preponderance of the evidence that he was induced as a matter of law because the text and online chat statements were open to interpretation and therefore questions of fact that should have been left for the jury to decide.
- And the Court held that even if Mr. Lopez-Garcia did establish inducement as a matter of law, the State introduced evidence of predisposition to commit the offense and therefore, that issue should have been left to the jury.
  - Mr. Lopez Garcia met his initial burden of establishing lack of predisposition by showing that he had never been investigated or charged with similar offenses in the past.
  - The State then rebutted his lack of predisposition by presenting the text messages between himself and the officer.
  - Post-inducement evidence can be admissible if it tends to show the defendant was predisposed to commit the crime before the government induced him.
  - When a government agent simply provides the defendant with an opportunity to commit a crime, the ready commission of the criminal act amply demonstrates the defendant’s predisposition.
  - After learning that the fictitious child was 14, Mr. Lopez-Garcia asked for nude photos, repeatedly steered the conversation to a sexual natureand sent an unsolicited photo of his genitalia.
  - Even though he also stated that they could only chat and not do anything sexual and that he wouldn’t take her virginity, these statements contradicted other statements requesting nude photos and things he wanted to do sexually with her. This created an issue of fact for the jury to decide.
- Because there was a material issue of fact, the trial court erred in granting the motion to dismiss.
- Case reverse and remanded.

Case #9 – Norman v. State, No. 2D22-1912 (Fla. 2nd DCA)(November 16, 2022

Norman is a summarily denied motion for clarification case out of Polk County.
Mr. Norman was found guilty at trial of burglary of a dwelling, grand theft and possession of methamphetamine.
He was sentenced to 30 years for the burglary as a prison releasee reoffender and to 5 years for the grand theft and 5 years for the possession of meth.
Mr. Norman’s convictions and sentences were affirmed on direct appeal.
Mr. Norman then filed a motion for clarification alleging that the trial court orally pronounced concurrent sentences with another case, but instead were running consecutive to that other case.
The record was ambiguous on the trial court’s initial intention related to concurrent or consecutive sentences.
Under 921.16(1), the sentences are presumed to run consecutively to the other case.
At sentencing, the trial court stated, “and I will request your wanting to have him have a concurrent sentence with the other case.”
On appeal, the 2nd DCA determined that the motion for clarification should have been treated as a 3.850 motion for post-conviction relief.
The Court reversed the order and remanded for the post-conviction court to enter an order allowing Mr. Norman 60 days to file an amended motion under 3.850.
Case Reversed and remanded.

Case #10 – Dilver v. State, No. 20-1823 (Fla. 3rd DCA)(November 16, 2022)

Dilver is a violation of injunction case out of Miami-Dade County.
Mr. Dilver was charged with Count I: Aggravated Stalking, and Count II: Violation of an injunction for protection against repeat violence.
At trial, the victim testified that Mr. Dilver stalked her and she sought and obtained a final judgment of injunction for protection against stalking violence under §784.0485.
The State admitted the injunction into evidence.
The State’s entire theory was that Mr. Dilver committed the crime of aggravated stalking by violating an injunction for protection against repeat violences under §784.046.
So, because the state alleged that Mr. Dilver violated an injunction against repeat violence under §784.046, but admitted an injunction against stalking, under §784.0485, the evidence at at trial was not sufficient to support the conviction.
The stalking injunction under §784.0485 is a distinct type of injunction from the repeat violence injunction under §784.046.
Therefore, the trial court erred in denying Mr. Dilver’s motion for judgment of acquittal.
And proof of issuance and existence of an injunction for protection against stalking was legally insufficient to establish the charge of aggravated stalking under §784.048(4), which requires proof of the issuance and existence of a repeat violence, dating violence, or domestic violence injunction.
However, because stalking is a lesser included offense of aggravated stalking and the jury found beyond a reasonable doubt that the State had proven all of the elements of stalking, under Rule 3.620 of the Florida Rules of Criminal Procedure, the Court reversed and remanded for the trial court to vacate the aggravated stalking conviction and violation of injunction conviction and to enter a judgment for stalking.
Case reversed and remanded.

Case #11 – Godwin v. State, No. 4D22-645 (Fla. 4th DCA)(November 16, 2022)

Godwin is a summary denial of a 3.850 post-conviction relief motion case.
Mr. Godwin was arrested for driving with a revoked license as an habitual traffic offender under §322.34(5).
The State charged him with driving while his license was canceled, suspended, or revoked after two or more prior convictions under §322.34(2)(c).
Both offenses are third degree felonies.
Mr. Godwin entered an open plea of no contest and was sentenced to 10 years in prison.
Mr. Godwin alleged in his 3.850 motion that his attorney was ineffective for failing to tell him that he could not be prosecuted under §322.34(2) because he had been designated an habitual traffic offender.
He further alleged that he would have proceeded to trial if he had been advised of this complete defense.
The trial court summarily denied the motion and on appeal, the 4th Circuit held that Mr. Godwin failed to establish the second Strickland prong that he was prejudiced from the attorney’s error.
Here, the 4th DCA found that Mr. Godwin was not prejudiced because the State could have simply amended the Information at any time to reflect the proper statute.
The 4th DCA did find that the trial court erred in changing the statute of conviction to §322.34(5) which was the original statute of arrest, but not the statute that was listed in the Information that Mr. Godwin pled guilty to.
The 4th DCA said the trial court can’t do this and therefore reversed and remanded the case for the trial court to reinstate the original judgment reflecting §322.34(2)(c).
Case Affirmed in part, reversed in part, and remanded.

Case #12 – Johnson v. State, No. 4D21-3042 (Fla. 4th DCA)(November 16, 2022)

Johnson is a summary denial of a 3.850 motion involving the entrapment defense out of Palm Beach County.
Mr. Johnson was convicted by a jury of trafficking in heroin.
Mr. Johnson argued subjective entrapment under §777.201(2).
In his 3.850 motion, Mr. Johnson alleged that his trial counsel was ineffective for failing to present a video that allegedly showed promises being made by the detective that induced him to engage in the charged drug deal.
The trial court summarily denied the motion relying on a Nelson hearing where the trial judge addressed Mr. Johnson’s complaint that his attorney did not use the video to impeach the detective.
Here, the 4th DCA held that the evidence did not conclusively refute Mr. Johnson’s claims.
The trial court did not view the video at issue and the Nelson hearing did not sufficiently cover Mr. Johnson’s factual allegations made in the motion.
Case reversed and remanded.

Case #13 – Lynn v. State, No. 5D22-617 (Fla. 5th DCA)(November 14, 2022)

Lynn is a revocation of drug offender probation case out of Volusia County.
Mr. Lynn was initially sentenced to 6 years in prison concurrently on two 3rd degree felonies.
The 6 year sentences exceeded the statutory maximum of five years for 3rd degree felonies.
There was nothing in the record to show the lowest permissible sentence was six years or any other explanation why the statutory maximum was exceeded.
The written order of revocation also contained errors finding Mr. Lynn in violation of conditions not alleged and lack of violations that Mr. Lynn was found to have committed.
However, because the issues weren’t preserved at the trial level, the appeal was denied.
However, the 5th DCA did give Mr. Lynn a wink wink, nod nod indicating that the affirmance on direct appeal was without prejudice for him to file a 3.850 motion for post-conviction relief.
Case Affirmed, without prejudice.