December 05, 2022

Updated: December 05, 2022

Florida District Court of Appeals Criminal Law Update (November 28, 2022 – December 2, 2022)

The “Cite” of the Crime Podcast
CASE SUMMARIES

Florida Criminal Law Update (November 28, 2022 – December 2, 2022)

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

OVERVIEW – 21 Cases

0 – Florida Supreme Court Cases
4 – First DCA Cases
14 – Second DCA Cases
1- Third DCA Cases
1- Fourth DCA Cases
1 – Fifth DCA Cases

The Fourth Judicial Circuit (Duval, Clay, Nassau) will be moving from the 1st DCA to the 5th DCA on January 1st. Judges Makar and Jaye will move to the 5th DCA from the 1st DCA.

Case #1 – Duffy v. State, No. 1D21-3773 (Fla. 1st DCA)(November 30, 2022)

Duffy is a child hearsay case in a sexual battery case out of Washington County.
Mr. Duffy was charged with sexual battery of a child under 12 by a person 18 years or older.
Mr. Duffy went to trial, was convicted and sentenced to life.
On appeal, Mr. Duffy alleged that the trial court erred by admitting child hearsay statements made to the child protection team and to the child’s father.
The child at issue was 6 years old and told the father and CPT team that Mr. Duffy had the child perform oral sex on him.
The trial court admitted the statements under Rule 90.803(23) finding that the statements were reliable as the child used age appropriate language, was asked open ended questions by the CPT team, was fairly specific about the timeframe, made the statements within approximately 6-7 months of the offense, the interview was conducted shortly after disclosure, the child testified three years later and testified consistently with the prior statement and was subject to cross examination.
The 1st DCA held that the trial court’s findings were sufficient and there was no abuse of discretion in admitting the child hearsay statements.
Case Affirmed.

Case #2 – Johnson v. State, No. 1D21-1934 (Fla. 1st DCA)(November 30, 2022)

Johnson is a first degree murder demonstrative aid case out of Duval County.
Mr. Johnson went on trial for the first degree murder stabbing of his neighbor.
During the medical examiner’s testimony, the State used a demonstrative aid in the form of a short video that showed a computer generated animated victim mannequin and the path of each of the 17 stab wounds.
The prosecutor then used the demonstrative video during the closing argument.
Mr. Johnson’s attorney objected, arguing that the video made it appear like the victim was stabbed 17 times simultaneously and like the stab wounds were deeper than they actually were because of the different body types of the actual victim and the animation.
The purpose of a demonstrative exhibit is to aid the jury’s understanding.
Demonstrative exhibits can be used when they are relevant and provide a reasonably accurate reproduction of the objects and incident involved.
Whether a demonstrative exhibit constitutes a sufficiently accurate reproduction is a matter left to the discretion of the trial court.
Here, the 1st DCA held that the trial court did not abuse its discretion by allowing the demonstrative aid because it only assisted the medical examiner’s testimony as to the location and path of the wounds and did not attempt to recreate the crime scene .
Mr. Johnson also argued that the trial court erred in admitting several autopsy and crime scene photos as cumulative and overly gruesome.
The test for admissibility of photographic evidence is relevance, not necessity.
§ 90.403 makes relevant photos inadmissible if the probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence.
When a defendant objects to graphic photo evidence, the trial court must decide whether the gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jury and distract them from a fair and unimpassioned consideration of the evidence.
Here, the 1st DCA held that the trial court did not abuse its discretion by admitting the photos because they were relevant to show the nature, extent and location of the victim’s wounds and of the scene.
Case Affirmed.

Case #3 – Miles v. State, No. 1D22-1990 (Fla. 1st DCA)(November 30, 2022)

Miles is an ineffective assistance of appellate counsel case.
Mr. Miles was convicted of sexual battery without physical force.
The State charged him with two counts involving two separate victims.
During the trial involving victim K.W., the trial court admitted D.M.’s testimony over Mr. Miles’ objection as improper Williams Rule.
The testimony involving victim K.W. was that Mr. Miles met her at an internet cafe and the two went back to his place.
Victim K.W. testified that Mr. Miles forcibly removed her pants and struggled with her. Eventually she told him to go ahead and do what he wanted so she could leave.
Victim D.M. testified that she met Mr. Miles the day before she went to his house and he forcibly removed her clothes and had sex with her.
Mr. Miles also testified claiming that he believed both victims consented.
Mr. Miles was convicted at trial and his case was affirmed on direct appeal.
Mr. Miles now claims his appellate counsel was ineffective for failing to argue fundamental error by the trial court in admitting collateral crime evidence of D.M.’s case because D.M.s offense occurred after K.W’s. and the trial court erred in prohibiting Mr. Miles from testifying about K.W.’s state of mind.
- The First DCA noted that collateral crime evidence can be admitted even if that evidence was from an offense that occurred after the charged offense.
- And Mr. Miles’ trial counsel didn’t raise this specific objection at the trial level and therefore the issue wasn’t preserved.
- Therefore, the appellate counsel could not be ineffective for failing to raise a meritless argument.
As for Mr. Miles’ second argument, §90.803(3)(a)(1) states, a statement of the declarant’s then-existing state of mind is admissible to prove the declarant’s state of mind at the time when such state is an issue in the action.
- The victim’s statements immediately prior to, and at the time of the sexual encounter are relevant to, and are admissible as, evidence of the victim’s then existing state of mind regarding the question of consent.
- Although the trial court wouldn’t let Mr. Miles’ trial attorney ask him if he believed the encounter was consensual, Mr. Miles did testify about statements the victim made, including her statement, “go ahead and do what you want so I can leave.”
- Mr. Miles also testified to the victim’s behavior, which along with her statements, went to her state of mind.
- So, even if there was any error, it was harmless because there is no reasonable probability that the ruling affected the verdict in light of what the 1st DCA described as “overwhelming evidence of guilt.”
- Petition Denied.

Case #4 – State v. Wagner, No. 1D21-3802 (Fla. 1st DCA)(November 30, 2022)

Wagner is a 3.850 ineffective claim on an attempted murder case out of Okaloosa County.
Ms. Wagner was convicted of attempted first degree murder for shooting her husband. She was sentenced to 30 years with a 25 year min man.
Ms. Wagner was drinking and got into an argument with her husband. She testified that he hit her repeatedly and choked her but he denied it.
She retrieved a firearm and walked out of the house to go to a neighbor’s house.
When the neighbor didn’t come to the door quick enough, she went back to her house and her husband came to the door.
She asked for her car keys and took the firearm out and pointed it at him.
The husband came back with the keys and tossed them to her and went back into the house and closed a glass door behind him.
Ms. Wagner testified that she bent down to pick up her keys and the firearm discharged accidentally.
The bullet went through the glass door, struck her husband in the back and he went into his son’s room, locked the door and called 911.
Ms. Wagner went back in the house to search for her wallet and she took her husband’s wallet, phone and work badge and drove away until she was pulled over an hour and 45 minutes later by police.
She never called 911 or sought any help.
At trial, Ms. Wagner attempted to assert battered spouse syndrome defense but it was denied by the trial court for lack of evidence.
So, at trial she asserted that the shooting was an accident.
The 1st DCA affirmed her direct appeal and she filed a 3.850 which was granted by the trial court and the State appealed.
Ms. Wagner alleges that her trial counsel was ineffective for failing to request the “no duty to retreat” instruction from Florida’s Stand Your Ground law in §776.012(2).
At trial, her trial counsel conceded that the last sentence in the stand your ground instruction did not apply based on the evidence presented and the court did not give it, however, the trial court did instruct the jury on justifiable use of deadly force.
The 2nd DCA noted that the trial court could only give the duty to retreat instruction if there was evidence to support it.
- Here, the Stand Your Ground Law only suspends the common law duty to retreat in limited, defined circumstances.
- The threat must be imminent and it must be deadly or sufficient to cause great bodily harm or constitute a forcible felony.
- Ms. Wagner never filed a Stand Your Ground immunity motion and did not raise Stand Your Ground at trial as her defense was that it was an accidental shooting.
- If the shooting occurred during the alleged physical confrontation, she may be entitled to the instruction, but it didn’t.
- Instead, at the time of the shooting, she was armed and her husband wasn’t; she was outside and free to leave standing 30 feet away with a closed door between her and her husband and therefore the evidence fell, in the words of the 2nd DCA, “far, far short of the imminent threat.”
- Therefore, the retreat instruction could not apply and therefore counsel was not ineffective for failing to request it.
Case reversed and remanded.

Case #5 – Bennett v. State, No. 2D22-768 (Fla, 2nd DCA)(November 30, 2022)

Bennett is a 3.850 motion case involving identification out of Polk County.
Mr. Bennett’s second amended 3.850 motion was summarily denied and Mr. Bennett appealed to the 2nd DCA.
The 2nd DCA affirmed three grounds and reversed based on two grounds.
First, the 2nd DCA found that Mr. Bennett’s claim that his trial counsel misadvised him to reject a State offer was sufficiently pled and therefore should not have been summarily denied.
Second, Mr. Bennett claimed his trial attorney was ineffective for failing to refresh the recollection of an officer who testified that she couldn’t recall if the victim described where in the car a six foot tall occupant was sitting.
The trial court denied the claim, finding that the testimony would have been inadmissible because a statement providing a physical description is not an identification within the meaning of §90.801(2)(c).
However, the 2nd DCA found that the statement would likely have been admissible as an excited utterance under §90.803(2).
Therefore, the 2nd DCA reversed based on that allegation.
The 2nd did note that the officer’s report actually refutes Mr. Bennett’s claim, but because it was not part of the record, the 2nd DCA could not consider it.
- But, it was a wink wink, nod nod to the trial court that attaching that report to the record and making a finding that the statement would have been adverse to Mr. Bennett would likely end that challenge.
Case affirmed in part and reversed in part and remanded.

Case #6 – Chapper v. State, No. 2D21-1278 (Fla. 2nd DCA)(November 30, 2022)

Chapper is a resisting without violence under §843.02 case out of Polk County .
Mr. Chapper’s wife called 911 to report a domestic dispute with Mr. Chapper.
The police arrived and separated Mr. Chapper and his wife.
While an officer was inside talking to Ms. Chapper, Mr. Chapper was outside speaking loudly on his phone.
Ms. Chapper couldn’t make out what Mr. Chapper was saying, but an officer testified that she was agitating and distracting Ms. Chapper.
The officer went outside and asked Mr. Chapper to lower his voice or get off the phone.
Mr. Chapper walked further away and continued his conversation.
When the officer could still hear Mr. Chapper while inside talking to Mrs. Chapper, the officer went back outside and told Mr. Chapper to get off the phone and to lower his voice.”
Mr. Chapper continued talking loudly and the officer arrested him for resisting without violence.
At trial, Mr. Chapper moved for a judgment of acquittal which was denied and the jury came back guilty.
§843.02 states, “whoever shall resist, obstruct, or oppose any officer in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, is guilty of a misdemeanor of the first degree.”
On appeal, Mr. Chapper argued that his verbal conduct alone did not constitute obstruction.
In D.A.W., the 2nd DCA concluded that refusal to stop taunting another person who was being arrested did not amount to obstructing an officer.
Words alone rarely, if ever, rise to the level of an obstruction.
Limited exceptions to this general rule include when an officer is serving process, legally detaining someone, or seeking assistance with an ongoing emergency or when a defendant is serving as a lookout and warns police.
But, none of those exceptions applied here.
Mr. Chapper was standing away from the officer’s questioning and speaking with someone unrelated to the investigation.
There was no evidence that he was engaging in any conduct to physically obstruct the investigation or that he said anything to upset the victim.
And Ms. Chapper testified that Mr. Chapper’s phone conversation wasn’t what was agitating her.
Mr. Chapper’s words alone were insufficient to constitute obstruction under §843.02.
Case Reversed.

Case #7 – Douglas v. State, No. 2D21-1642 (Fla. 2nd DCA)(December 2, 2022)

Douglas is a §948.06(8)(3) VFOSC (Violent felony offender of special concern) case out of Lee County.
§948.06(8) states, “If the court, after conducting a violation of probation hearing, determines that VFOSC has committed a violation of probation other than a failure to pay costs, fines, or restitution , the court shall: 1. Make written findings as to whether or not the VFOSC poses a danger to the community considering the factors enumerated in §948.06(8)(e)(1).
The trial court entered an order revoking Mr. Douglas’ probation finding Mr. Douglas to be a danger to the community.
However, in the trial order, the trial court simply listed the §948.06(8)(e) factors that the trial court is supposed to consider, but the trial court did not make any specific factual findings as they related to Mr. Douglas.
And although the 2nd DCA found that there was sufficient evidence in the record to find that Mr. Douglas is a danger to the community, the Court had to reverse because it could not determine whether the trial court would have revoked the probation if the trial court did not determine Mr. Douglas to be a danger to the community.
So, the 2nd DCA reversed and remanded for the trial court to make specific factual findings and the trial court is free to reimpose the VFOSC designation if it makes the requisite written factual findings.
Case reversed and remanded.

Case #8 – Hicks v. State, No. 2D21-3503 (Fla. 2nd DCA)(November 30, 2022)

Hicks is a modification of restitution after 60 days case out of Highlands County.
Ms. Hicks was convicted in four criminal cases and was ordered to pay $50 monthly minimum to four separate victims, one of which was her father.
Ms. Hicks’ father had since passed away.
The estate of her father apparently learned that Ms. Hicks was getting a lump sum from the sale of her marital house and the estate filed a motion with the trial court requesting an order for disbursement of those funds to the father’s estate.
The trial court granted the motion and Ms. Hicks appealed.
Ms. Hicks argued that the trial court erroneously modified her probation after the 60 day period had expired, in violation of Rule 3.800(c).
However, the 2nd DCA held that Rule 3.800(c) did not come into play because the post-conviction court did not change the restitution amount or enhance the probationary sentence.
But, the trial court also didn’t specifically modify the terms of probation under §948.03 by ordering a single, lump sum payment if there were changed circumstances.
Because the post-conviction court didn’t actually modify the probation order under §948.03, the 2nd DCA found no statutory support for the trial court’s order.
In other words, if the post conviction court intended to modify probation, it should have entered an order.
If the post conviction court did not intend to modify probation, there was no statutory support for its order.
And the post-conviction court cited to §775.089 which gives the court authority to enforce a judgment when the judgment is in default, but that wasn’t the case here.
Judge Black dissented because in his view, the post conviction court did modify the probation pursuant to §948.03(2) and Judge Black does not believe the trial court had to cite to that statute and didn’t have to modify the probation order for this to be a modification of probation.
And Judge Black noted that the father’s estate requested that the probation be modified and then the court granted the motion.
But, the majority disagreed and found that for there to be a modification of probation, it must be in the probation order.
Order vacated and remanded.

Case #9 – Hill v. State, No. 2D21-1444 (Fla. 2nd DCA)(November 30, 2022)

Hill is a double jeopardy case out of Polk County.
Mr. Hill was convicted of multiple counts of failing to properly register as a sex offender.
Four of those counts related to failing to register various vehicles at his residence.
The four vehicles in question belonged to Mr. Hill’s parents.
Mr. Hill’s attorney moved for a judgment of acquittal on the four counts arguing that §943.0435 is only intended to penalize a defendant for one count of failing to register even if there are multiple vehicles that weren’t registered.
So, the 2nd DCA had to determine whether a failure to register all vehicles owned during a single reporting event constitutes one distinct act or multiple acts based on the failure to register each vehicle.
§943.0435(2)(b) and §943.0435(a) & (c)(1) require sex offenders to register the make, model, color, VIN, and license tag number of all vehicles owned at initial registration and to make any changes at reregistration.
And sex offenders must report any changes in vehicles owned within 48 hours of the change.
The term “vehicles owned” is defined in §775.21(2)(p) to include any motor vehicle registered, co-registered, leased, titled, or rented by a person or persons residing at the sexual offender’s permanent residence for 5 or more consecutive days.
The 2nd DCA found that the statute was ambiguous as to whether the legislature intended for a sex offender to be charged with one count or multiple counts and therefore the rule of lenity applies.
The word “any” in the statute could mean one, some, every or all without specification.
So, the 2nd DCA looked at the legislative intent and determined the legislature wanted to protect the public by ensuring that a registered sex offender has provided all necessary current information, whether it is one vehicle or many.
So, the 2nd DCA reversed 3 of the 4 convictions for failing to register a vehicle and affirmed one of the counts.
Case affirmed in part, reversed in part and remanded for resentencing.

Case #10 – Jefferson v. State, No. 2D21-1106 (Fla. 2nd DCA)(December 2, 2022)

Jefferson is a 3.850 case out of Highlands County involving an allegation of failing to convey a plea offer.
Mr. Jefferson was convicted of armed kidnapping, armed burglary and armed robbery and sentenced to life.
On an amended supplemental 3.850 motion, Mr. Jefferson argued that trial counsel was ineffective for failing to convey a 14 year offer to him.
Mr. Jefferson alleged that his brother had called him and told him about the 14 year offer and when he asked his lawyer about it, the lawyer told him that the offer had already expired.
So, Mr. Jefferson asked his lawyer to convey a 7 year offer and told his attorney that he would not accept the State’s current 20 year offer.
Mr. Jefferson alleged that he would have still accepted the 14 year offer.
The post-conviction court denied the motion.
On appeal, the 2nd DCA affirmed several counts, but discussed 3 claims.
The 2nd DCA discussed the four Alcorn factors that a defendant must allege and prove in a misadvice of a plea offer ineffectiveness case.
- He would have accepted the offer had counsel advised him of it, the prosecutor had to have withdrawn the offer, the court would have had to have accepted the offer, and the conviction or sentence would have had to have been less severe than the sentence in fact imposed.
Also, the favorable plea must actually exist.
Here, the 2nd DCA could not ascertain from the record whether the 14 year plea offer was ever actually extended by the State.
Because the record doesn’t refute the claim that the State extended a 14 year offer, the 2nd DCA reversed and remanded.
Mr. Jefferson also alleged that his attorney was ineffective for failing to argue in a motion to suppress statements that he was subject to custodial interrogation.
Mr. Jefferson alleged that he was told by a detective that he would be arrested if he didn’t come to the station and provide a sworn statement implicating himself.
The post conviction court found that Mr. Jefferson’s statements were non-custodial and therefore counsel was not ineffective for not raising that claim.
But, the 2nd DCA found that the claim was valid utilizing the Ramirez factors set out by the Florida Supreme Court.
Because the record didn’t refute the claim that the attorney should have argued custodial interrogation, the 2nd DCA reversed on that ground.
Finally, Mr. Jefferson argued that his counsel was ineffective for failing to effectively cross examine the detective because the attorney told him that he and the detective were close and he didn’t want to embarrass the detective.
Because the transcript didn’t specifically address this claim, the 2nd DCA reversed and remanded.
Therefore, the 2nd DCA reversed and remanded to address these three specific claims.
Case affirmed in part, reversed in part and remanded.

Case #11 – Neer v. State, No. 2D21-2680 (Fla. 2nd DCA)(November 30, 2022)

Neer is an exclusion of defense witnesses DUI case out of Charlotte County.
Mr. Neer was charged with DUI with a BAC over .15.
On the first day of trial, Mr. Neer’s attorney announced for the first time, two defense witnesses – an FDLE inspector and a police sergeant.
The State made a motion in limine to exclude the witnesses arguing that they were never disclosed in reciprocal discovery.
The Court conducted a Richardson hearing to determine whether a discovery violation occurred.
Mr. Neer’s attorney argued that he had no duty to disclose because the court didn’t issue an order requiring disclosure.
The county court found that Mr. Neer’s attorney did commit a discovery violation and that it was willful and substantial and excluded both witnesses from testifying.
At trial, the State introduced the most recent agency inspection report.
The State called the officer who performed the monthly inspection of the Intoxilyzer 8000 and the officer who administered the breath test.
The defense then proffered what the two defense witnesses would have provided.
The defense wanted to question the reliability of the Intoxilyzer 8000 and specifically that it had been out of service for months because of an issue with the flow sensor.
The inspection report didn’t indicate that whatever was wrong with the flow sensor was ever fixed.
Defense counsel asserted that one of the witnesses would be able to answer that question and the other witness created the FDLE inspection and defense counsel intended to admit the inspection through that witness.
Mr. Neer was subsequently convicted at trial.
On appeal, Mr. Neer argues that the exclusion of the two witnesses was error and it was not harmless.
Because Mr. Neer elected to participate in discovery, it triggered reciprocal discovery under Rule 3.220(a) and (d)(1) and defense counsel was obligated to provide a written witness list. Therefore, the trial court was correct in finding a discovery violation.
However, when a trial court prohibits a party from calling a witness, the court errs when it imposes this most severe sanction without considering whether the potential prejudice to the non offending party could be overcome with a less severe, or more reasonable, sanction.
Exclusion of exculpatory evidence implicates the defendant’s constitutional right to defend himself or herself.
The trial court must strictly adhere to the procedure of first considering less severe sanctions because the sanction of excluding witnesses implicates the right to a fair trial and should be utilized only under the most compelling circumstances.
It should be a last resort and reserved for extreme or aggravated circumstances.
Especially when the excluded witness is critical to prove the defense.
Here, the trial court failed to consider less extreme measures like granting a short continuance or allowing the State to talk to the two witnesses before the trial began.
And there was no showing by the State of harmless error by showing that there was no reasonable possibility that the error contributed to the conviction.
The State’s witness could not testify to whether the flow sensor had been repaired; which apparently the defense witness could and the defense could not admit the FDLE annual inspection report without the other witness.
Because only the breath test results supported the .15 or higher BAC level and because Neer’s defense was that the Intoxilyzer 8000 was not working properly calling into question the results and the two defense witnesses would have testified as to the nonworking nature of the machine, the State failed to establish harmless error.
Case reversed and remanded.

Case #12 – Meinecke v. State, No. 2D21-2880 (Fla. 2nd DCA)(November 30, 2022)

Meinecke is a trespass within a school safety zone and disruption of a school function constitutional challenge case out of Lee County.
Mr. Meinecke stood outside a high school on a sidewalk abutting the school at dismissal time with a bullhorn shouting religious messages.
Some students stopped to record him, others altered their path to avoid him and parents goosenecked while in the carline all causing some disruption to the dismissal.
A school resource officer arrested Mr. Meinecke for trespass within a school zone and disruption of a school function.
Mr. Meinecke filed three motions to dismiss challenging the constitutionality of both statutes on vagueness and overbreadth grounds.
The trial court denied the motions and Mr. Meinecke was convicted at trial and he appealed to the 2nd DCA.
There is a strong presumption that a statute is constitutionally valid and all reasonable doubts about the statute’s validity must be resolved in favor of constitutionality.
In order for a criminal statute to withstand a void-for-vagueness challenge, the language of the statute must provide adequate notice of the conduct it prohibits when measured by common understanding and practice. The language of a statute must provide a definite warning of what conduct is required or prohibited, measured by common understanding and practice.
Any doubt as to a statute’s validity that is raised in a vagueness challenge should be resolved in favor of the citizen and against the state.
§810.0975 provides that 1 hour before the start of school and until 1 hour after school ends, a person cannot enter a school safety zone if the person does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone.
A school safety zone is defined in §810.0975(1) as meaning in, on, or within 500 feet of any real property owned or leased to any public or private elementary, middle, or high school or school board and used for elementary, middle, or high school education.
§810.0975 does not define “legitimate business.”
Mr. Meinecke argues that this term could result in conviction for purely innocent and constitutionally protected conduct.
The 2nd DCA found that the term “legitimate business in a school safety zone” has the ordinary meaning that “one entering or remaining in a school safety zone must lack any purpose for being there which is connected with the operation of any of the areas included within the school safety zone.
The Court also found that the statute is not unconstitutionally vague because the phrase “other authorization, license or invitation” because in their plain and ordinary meaning is understood by a person of ordinary intelligence to mean that approval to be present must be obtained by a person with authority over the particular area of the school safety zone at issue.
The 2nd DCA also found that the statute is not overbroad.
- A statute is overbroad when it criminalizes legal as well as illegal activity and has a chilling effect on First Amendment freedoms.
- Prior to finding a law overbroad on its face, a court should first determine that the regulation is not susceptible to a reasonable limiting construction.
- Mr. Meinecke argues that the statute regulates free speech, but the 2nd DCA disagreed and held that the statute regulates conduct and not speech.
- The act of merely being present is not itself an expressive act intended to communicate.
- Rarely if ever will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech, such as picketing or demonstrating.
- A statute is facially invalid if it prohibits a substantial amount of protected speech.
- The 2nd DCA found that Mr. Meinecke did not meet his burden to establish from both the text of the statute and the actual facts that substantial overbreadth exists.
- The purpose of the statute is to protect school children which is a compelling governmental interest and the statute limits who can be present in and around schools when students are likely to be present to people who have legitimate business in the school safety zone.
- And this, according to the 2nd, is not facially overbroad.
- As the statute was applied to Mr. Meinecke, the 2nd held that the statute did not criminalize his right to free speech on a public sidewalk.
- To establish an as applied overbreadth claim, Mr. Meinecke must establish that his own admitted conduct was wholly innocent and its proscription was not supported by any rational relationship to a proper governmental objective.
- And where the asserted overbreadth of a law may have a chilling effect on the exercise of First Amendment freedoms, a challenge will be permitted even by one who does not show that his own conduct is innocent and not subject to being regulated by a narrowly drawn statute.
- The 2nd DCA again noted that statute criminalizes conduct and not speech and doesn’t substantially burden First Amendment rights relative to the scope of the statute’s plainly legitimate applications.
- Mr Meinecke was convicted for his presence, not for his speech.
- So, finding that trespass in a school safety zone is constitutional, the Court next turned to §877.13(1)(a) disrupting school function.
- §877.13(2)(a) makes it unlawful to knowingly disrupt or interfere with the lawful administration or functions of any educational institution, school board, or activity on school board property in this state.
- The 2nd DCA rejected Mr. Meinecke’s constitutional challenges on the same grounds as the other statute.
- So, if you’re going to blare religious messages from a bullhorn, make sure you don’t do it in a school safety zone.
- Case Affirmed.

Case #13 – Murphy v. State, No. 2D22-2126 (Fla. 2nd DCA)(November 30, 2022)

Murphy is a speedy trial case out of Highlands County.
The State filed an information against Mr. Murphy on May 9, 2019 for grand theft and scheme to defraud.
The offense date was between September 1, 2015 and March 31, 2015.
The court issued a capias on May 15, 2019.
Mr. Murphy was in the Seminole County jail at the time and on August 15, 2019, the Highlands County Sheriff put a hold on him.
Mr. Murphy was transferred to prison on January 6 , 2021 and the capias was not executed.
After the transfer, another detainer was placed on Mr. Murphy.
On December 20, 2021, the capias was executed on Mr. Murphy, more than 30 months after it was issued.
Mr. Murphy had been in State custody the entire time.
On February 17, 2022, Mr. Murphy filed a motion to dismiss based on a 6th Amendment speedy trial violation.
Mr. Murphy alleged that he was prejudiced because two of the victims had died in the interim.
The trial court denied the motion finding that at least one and a half years of delay was attributable to COVID and the remaining delay was attributable to Mr. Murphy because he was incarcerated.
The trial court also found that Mr. Murphy wasn’t prejudiced because the death of the two victims may have actually helped him.
Mr. Murphy filed a petition for writ of prohibition with the 2nd DCA and the 2nd started with the speedy trial framework set out by the Court in Seymour v. State.
The constitutional right to a speedy trial attaches upon arrest, filing of an indictment or information or other official accusation.
There are four guiding factors outlined by the U.S. Supreme Court in Barker for a speedy trial violation:
- 1) the length of the delay
- 2) the reason for the delay
- 3) whether the defendant has timely asserted his rights; and
- 4) the existence of actual prejudice as a result of the delay.
Delays exceeding one year are generally found to be presumptively prejudicial.
If there is a delay of more than a year and the reason for the delay is against the State and the defendant has timely asserted his rights, then the defendant does not need to show actual prejudice.
Here, the circuit court weighed the first Barker factor, the length of delay, against the State and the 2nd DCA agreed.
As for the second Barker factor, the reason for delay, there are three categories of fault for delay: deliberate, negligent, and justified.
The burden is on the prosecution to explain the cause of the Pretrial delay.
Here, the 2nd DCA found that the fault lied entirely with the State.
The State is clearly aware of a defendant’s whereabouts when that defendant is incarcerated in a State institution.
And there was no compelling reason why it failed to execute a capias for two and a half years on a defendant who had been in State custody the entire time.
The Court also rejected the trial court’s finding that COVID excused part of the delay because COVID affected the ability of a defendant to be brought to trial, whereas, this case involved the ability to serve a capias on a defendant.
And nothing in the record suggested that the State could not execute the capias on Mr. Murphy because of COVID.
Here, the 2nd DCA found that the state was simply negligent and that negligence was inexcusable, so the 2nd Barker factor weighs against the State.
As for the 3rd Barker factor, the State conceded that Mr. Murphy timely asserted his right by filing a motion less than 2 months after his arrest.
As for the fourth factor of prejudice, the 2nd DCA found the trial court’s rationale that the death of the two victims might actually help Mr. Murphy was pure speculation.
There was no evidence in the record what the witness’ testimony would be and the delay thwarted Mr. Murphy’ s ability to call or cross examine the two witnesses.
And because the first three Barker factors weighed heavily against the State, it was the State’s burden to show he was not prejudiced, which the State failed to do.
So, with all 4 Barker factors weighing against the State, Mr. Murphy established a speedy trial violation.
Petition Granted.

Case #14 – State v. Hall, No. 2D21-3197 (Fla. 2nd DCA)(November 30, 2022)

Hall is a trial court’s modification of an accepted plea agreement case out of Polk County.
Mr. Hall was arrested on several offenses stemming from an armed robbery of a restaurant.
Mr. Hall and the State entered into a negotiated plea agreement where Mr. Hall agreed to testify against a codefendant in exchange for a 5 year prison sentence.
The sentencing hearing was passed until after the co-defendant’s trial.
The co-defendant was found not guilty at trial and the trial court subsequently sentenced Mr. Hall to the negotiated 5 year sentence.
Mr. Hall then filed a Motion to Mitigate or Modify Sentence pursuant to Rule 3.800(c) claiming that the sentence was too harsh and severe considering the co-defendant’s acquittal.
The trial court granted the motion and sentenced Mr. Hall to time served over the State’s objection.
The State subsequently appealed.
The Florida Supreme Court has held that a State’s right to appeal an adverse ruling is limited and strictly governed by statute, rule, and overriding constitutional principles.
Under §924.07(1)(e), the State may appeal an illegal sentence.
An illegal sentence is one that imposes a punishment or penalty that no judge under the entire body of sentencing statutes and laws could impose under any set of factual circumstances.
The 2nd DCA has held that a trial court may not unilaterally modify a previously imposed negotiated sentence between a defendant and the State.
A plea agreement is a contract and the rules of contract law are applicable to plea agreements.
Here, the 2nd DCA held that the trial court could not unilaterally modify the contract between the state and the defendant.
The Court determined that permitting a defendant to use Rule 3.800(c) to evade a negotiated plea would discourage the state from entering into plea bargains in the future.
Case reversed and remanded.

Case #15 – State v. Jesus, No. 2D21-1843 (Fla. 2nd DCA)(November 30, 2022)

Jesus is an ineffective assistance case involving failure to identify and advise on the existence of exculpatory evidence out of Collier County.
Mr. Jesus was charged with shooting into an occupied vehicle and aggravated battery with a firearm.
He entered a plea of no contest to the shooting charge and was adjudicated guilty and sentenced to 15 years.
The State nol prossed the aggravated battery.
Mr. Jesus filed a 3.850 motion alleging that his attorney failed to tell him about a video showing someone else firing the gun.
The post conviction court granted his 3.850 motion and the State appealed.
Here, the 2nd DCA found that the trial court did not use the proper standard.
The Florida Supreme Court, in Grosvenor v. State, laid out factors for determining whether there is a reasonable probability exists that the defendant would have insisted on going to trial, including whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at trial.
Here, the 2nd DCA held that the trial court only focused on its conclusion that trial counsel could have used the video to show someone else fired the weapon, but did not consider the other Grosvenor factors to determine whether Mr. Jesus would have gone to trial.
So, the Court reversed for the trial court to consider those other factors.
Case Reversed and Remanded.

Case #16 – Stephens v. State, No. 2D20-3256 (Fla. 2nd DCA)(December 2 , 2022)

Stephens is a cold case DNA murder case out of Sarasota County.
In 1988, a young woman was found dead lying in an open field near her abandoned vehicle.
The cause of death was manual strangulation and there was evidence of sexual assault.
Law enforcement collected DNA from the victim’s fingernails and lifted fingerprints from the exterior passenger of the window.
In 2009, twenty one years later, Mr. Stephens was identified as the source of DNA that was found underneath the victim’s fingernails.
Mr. Stephens was also identified as the source of the fingerprints on the car.
Mr. Stephens was incarcerated on an unrelated crime, so law enforcement obtained his DNA and Mr. Stephens admitted that he lived in the neighborhood at the time where and when the attack occurred but he denied knowing the victim and didn’t recognize a photograph of her.
Mr. Stephens was arrested and charged with second degree murder and sexual battery.
Mr. Stephens argued that the DNA and the fingerprints could have been the result of a drug transaction with the victim.
Mr. Stephens moved for a judgment of acquittal which was denied.
Mr. Stephens also filed a motion to dismiss based on statute of limitations.
The trial court deferred ruling and the jury came back guilty on both counts.
The trial court then dismissed the second degree murder charge because the statute of limitations had expired.
But, that didn’t help Mr Stephens much because the trial court sentenced him to life in prison on the remaining sexual battery count.
Mr. Stephens appealed arguing that the evidence against him was insufficient to support conviction.
Mr. Stephens argued that his case was like Hoskins v. State, where the Florida Supreme Court held that DNA evidence was insufficient to sustain a conviction under a then heightened standard of review for purely circumstantial cases.
In Hoskins, none of the fingerprints came back to Hoskins, no murder weapon was recovered, there were no eyewitnesses, there was no defendant admissions and no motive.
Here, the 2nd DCA found that Mr. Stephens case was distinguishable from Hoskins and a similar Third DCA case because Mr. Stephen’s fingerprints were found at the scene, admitted to living in the area at the time, claimed he didn’t know the victim and didn’t remember having contact with her, which the Court found to be arguably inconsistent.
So, the 2nd DCA found this additional evidence was sufficient in addition to the DNA evidence to support the conviction despite the Florida Supreme Court’s decision in Hoskins.
Case Affirmed.

Case #17 – Thomas v. State, No. 2D21-4004 (Fla. 2nd DCA)(November 30, 2022)

Thomas is a legality of an enhanced sentence run consecutively to an unenhanced sentence case out of Lee County.
The 2nd DCA considered this case en banc to recede from prior case law in light of the Florida Supreme Court’s decision in Cotto v. State.
Mr. Thomas was convicted of 1st Degree Murder and attempted robbery with a firearm in 1990.
He was originally sentenced to death on the murder and 30 years with a 10 year min man on the robbery count as a habitual violent felony offender.
Mr. Thomas was later resentenced to life with the possibility of parole after 25 years on the murder count and 30 years HVFO without any minimum mandatory on the armed robbery sentence. The armed robbery count was run consecutive to the life sentence.
Mr. Thomas filed a fourth 3.800(a) motion arguing that his consecutive sentence was illegal because it arose from the same criminal episode and one sentence was habitualized and the other wasn’t.
The post-conviction court denied the motion and found it frivolous and an abuse of process because Mr. Thomas had filed three previous motions alleging the same error that were all denied.
The 2nd DCA laid out the case law history of the 2nd DCA regarding consecutive enhanced sentences.
In 1993, the Florida Supreme Court held in Hale v. State that it is impermissible to impose multiple enhanced HVFO sentences to run consecutively when the offenses arose from the same criminal episode.
In Swanson v. State, the 2nd DCA held that a consecutive unenhanced and HFO sentence was impermissible under Hale.
The 2nd DCA subsequently reversed unenhanced sentences run consecutive to an enhanced sentence in Williams and Saldana.
The Florida Supreme Court then came out with State v. Cotto (or Cotto II), which held that a PRR sentence that was run consecutive to an HFO (habitual felony offender) sentence was legal under Hale.
The Supreme Court reasoned that the PRR statute does not enhance the maximum possible sentence, and Hale does not apply to any unenhanced sentence.
Under Cotto II, an unenhanced sentence can legally be imposed to run consecutively to an enhanced sentence and an enhanced sentence can legally be imposed to run consecutively to an unenhanced sentence.
Therefore, the 2nd DCA found that Cotto II overruled Swanson, Williams and Saldana and those cases are no longer good law in the 2nd district.
Here, Mr. Thomas’ unenhanced life sentence followed by a consecutive enhanced HVFO sentence on the armed robbery was lawful under Cotto II even though they arose out of the same criminal episode.
The 2nd DCA also reversed the post-conviction court’s finding that Mr. Thomas’ fourth 3.800(a) motion was frivolous because each of his motions was while the law on this issue continued to change and evolve.
Case affirmed in part, reversed in part, and remanded.

Case #18 – Thompson v. State, No. 2D21-2602 (Fla. 2nd DCA)(November 30, 2022)

Thompson is a DUI with property damage multiple conviction case out of Lee County.
Mr. Thompson was convicted of several counts that included two counts of DUI with property damage.
Mr. Thompson damaged two traffic signs with her vehicle.
§316.193(3) provides that any person who commits a DUI and who by reason of such operation of a vehicle causes or contributes to causing damage to the property or person of another commits a misdemeanor of the first degree.
Both traffic signs belonged to the Lee County Board of County Commissioners.
When there is damage to the property of only a single victim, multiple convictions for DUI with property damage violates double jeopardy.
Case affirmed in part, reversed in part and remanded.

Case #19 – Carballo v. State, No. 3D21-1583 (Fla. 3rd DCA)(November 30, 2022)

Carballo is a 3.850 advisal to the client not to testify case out of Miami Dade County.
Ms. Carballo’s husband was murdered and her 18 month old child was injured by two unidentified gunmen.
Ms. Carballo suspected her husband’s former business partner, so she shot and killed him inside her home.
Two years later, she was charged with murder after making incriminating statements to an undercover DEA informant.
Ms. Carballo claimed Stand Your Ground immunity under §776.032, but it was denied.
At trial, Ms. Carballo’s attorney claimed self defense, but Ms. Carballo didn’t testify.
She was convicted at trial and subsequently filed a 3.850 motion claiming that her attorney was ineffective for advising her not to testify in her own defense because without her testimony, her defense was not factually or legally viable.
The post-conviction court denied the motion and Ms. Carballo appealed.
The 3rd DCA found that Ms. Carballo did not affirmatively relinquish her right to testify at the trial.
The Court also agreed with her that without her testimony, the jury was arguably left without a reasonable basis for inferring self defense.
Generally, a trial court may not summarily deny a 3.850 motion on the ground that trial counsel made a reasonable tactical decision, unless it is so obvious from the face of the record that trial counsel’s strategy is very clearly a tactical decision well within the discretion of counsel.
Here, the Court held that an evidentiary hearing was necessary to determine whether the advice was deficient.
Case affirmed in part, reversed in part and remanded.

Case #20 – Bennett v. State, No. 4D21-2925 (Fla. 4th DCA)(November 30, 2022)

Bennett is a DUI forensic lab report Crawford confrontation clause case out of Palm Beach County.
Mr. Bennett was charged with Driving under the influence of controlled substances.
At trial, a senior forensic scientist testified about the standard operating procedures for the crime lab.
The scientist testified that one toxicologist runs screening tests, compiles data, makes a list of findings and prepares a report and a second toxicologist reviews the entire toxicology file to ensure quality control.
The testifying scientist was the reviewing toxicologist in this case.
The first toxicologist that actually performs the testing did not testify.
Mr. Bennett objected to the toxicology report on hearsay grounds.
The jury found Mr. Bennett guilty and Mr. Bennett appealed.
In Crawford v. Washington, the Supreme Court held that the admission of a hearsay statement made by a Declarant who does not testify at trial violates the 6th Amendment if:
- 1) the statement is testimonial,
- 2) the Declarant is unavailable, and
- 3) the defendant lacked a prior opportunity for cross examination of the Declarant.
The Florida Supreme Court held in State v. Johnson that forensic lab reports can constitute testimonial hearsay. Lab reports and similar materials, when prepared for criminal trials, are testimonial statements and their admission without the preparer’s testimony runs afoul of Crawford and the confrontation clause.
Where the reports are testimonial, their admission violates the 6th Amendment if the preparer is unavailable and the defendant lacked a prior opportunity to cross examine the preparer.
Here, the 4th DCA found that the toxicology report was testimonial and Mr. Bennett did not have an meaningful opportunity to cross examine the preparer of the report and the State did not establish that the preparer was unavailable to testify.
The State argued that the second reviewer was an author of who prepared the report, but the 4th DCA found that the Florida Supreme Court has previously rejected a similar argument in Bullcoming.
Another analyst’s testimony does not satisfy the 6th amendment because they can’t convey what the original preparer knew or observed and lapses or lies on the preparer’s part could not be exposed.
However, the Florida Supreme Court in Calloway held that surrogate medical examiner could testify about another medical examiner’s autopsy at trial because the surrogate ME was subject to cross examination and the original ME’s report wasn’t admitted and the ME testified to his independent opinion.
Here, the 4th DCA held that the reviewing toxicologist could have testified to her own independent opinion based on the initial toxicologist’s work, but the State could not admit the toxicology report into evidence because it wasn’t authored by the reviewing toxicologist.
So, it was error for the trial court to admit the toxicology report, but the 4th DCA still refused to reverse because Mr. Bennett’s trial attorney didn’t object on Confrontation clause or 6th Amendment grounds and only objected on hearsay grounds, so the issue wasn’t properly preserved.
Case Affirmed.

Case #21 – Stridiron v. State, No. 5D21-2571 (Fla. 5th DCA)(December 2, 2022)

Stridiron is another double jeopardy DUI with property damage or personal injury case out of Brevard County.
Ms. Stridiron was convicted and sentenced for one count of DUI with serious bodily injury and one count of DUI with property damage. Both counts involved the same victim.
Both counts were based on the same accident involving the same victim.
Ms Stridiron argued on appeal that double jeopardy prohibits a defendant from being convicted and sentenced for both crimes.
The State conceded on appeal.
The 5th DCA noted that the Florida Supreme Court in held that where one accident and the same victim is involved, DUI with property damage and DUI with serious bodily injury are degree variants of the same criminal offense, so double jeopardy is violated.
So the 5th held that the trial court must vacate the DUI with property damage and amend the judgment deleting that conviction.
Case Reversed and remanded.