Florida Criminal Case Law Update (October 10, 2022 – October 15, 2022)

by Lasnetski Gihon Law

The “Cite” of the Crime Podcast
CASE SUMMARIES

Florida Case Law Update (October 10, 2022 – October 15, 2022)

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

OVERVIEW – 10 Cases

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

Case #1 – Statler v. State, No. SC21-119 (Fla. Sup. Ct.)(October 14, 2022)

Statler is a case about the constitutionality of §794.011(5)(b) Sexual Battery and whether Sexual Battery requires the State to prove that the Defendant knew or should have known that the victim did not consent.
Mr. Statler’s roommate, Jonathan Tait brought a young woman home to their apartment and Mr. Tait and the young woman engaged in sexual intercourse.
When they were finished, Mr. Tait told the young woman that he would be right back.
Mr. Tait then told Mr. Statler, his roommate, “You could try if you want.”
Mr. Statler walked into the room and saw the young woman lying face down on the bed and he proceeded to engage in sexual intercourse with her.
The young woman never turned around and Mr. Statler never said anything to her.
After they were finished, the young woman turned around and realized that it was Mr. Statler and not Mr. Tait and she immediately became distraught, left the apartment and called the police.
Mr. Statler was arrested and tried for Sexual Battery.
At trial, Mr. Statler moved for a judgment of acquittal arguing that the State could not refute the reasonable hypothesis of innocence that Mr. Statler believed that he had consent from the victim because she was not physically incapacitated and all evidence that he could have had at the time suggested it was a consensual act.
The trial court denied the motion holding that whether the defendant believed he had consent is not a defense to sexual battery.
The jury found Mr. Statler guilty and he appealed arguing that the Sexual Battery statute is unconstitutional and that it requires the State to prove that the defendant did not know or should not have known that the victim did not consent.
The First DCA affirmed based on its precedent in Watson v. State which held that whether a defendant knew or should have known that the victim was refusing sexual intercourse is not an element of the crime of sexual battery.
The First DCA also found that §794.011(5)(b) is constitutional.
The Florida Supreme Court granted discretionary review.
794.011(5)(b) states:
- A person 18 years of age or older who commits sexual battery upon a person 18 years of age or older, without that person’s consent, and in the process does not use physical force and violence likely to cause serious personal injury commits a felony of the second degree.
- 794.011(1)(a) defines consent to mean intelligent, knowing, and voluntary consent and does not include coerced submission; consent shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.
- The Court first addressed whether the statute requires the State to prove that the defendant did not or should not have known that the victim did not consent.
  - The statute does not mention a defendant’s state of mind.
  - The Court found the plain language of the statute made it clear that the legislature did not intend to require proof of a defendant’s subjective understanding of whether the victim consented.
  - The Florida Supreme Court also looked at the long common law history of the rape statutes and found that it has always been a general intent crime, and not a specific intent crime.
  - The Court also looked at other similar statutes and found that some of them did require specific knowledge of a fact and that because the legislature did not include a similar requirement in this statute, it must have not intended specific intent.
  - It is the existence of consent, objectively manifested between the parties and not the defendant’s subjective perception of the complainant’s thoughts, that is at issue.
  - Likewise, the subjective understanding of the victim is not at issue. A defendant should not be found guilty because of some undisclosed mental reservation on the part of the victim.
  - It is what the victim said and did that matters. How the victim manifested such consent as reasonably construed.
  - In this case, the Florida Supreme Court held that the jury drew permissible inferences from the facts that the victim was not a willing partner, including Mr. Statler’s failure to identify himself, the victim was waiting for Mr. Tait, not Mr. Statler, the victim’s reaction upon learning that it was Mr. Statler, and not Mr. Tait that had engaged in sexual intercourse with her, and Mr. Statler’s conduct before, during and after the episode.
- The Florida Supreme Court also held that the statute was constitutional.
  - Mr. Statler argued that 794.011(5)(b) is facially unconstitutional because it lacks a mens rea requirement as to the non-consent element and therefore denies due process.
  - For a statute to be facially unconstitutional, there are no set of circumstances that exist under which the statute would be valid.
  - Here, the Court found that the statute requires general intent and is not a strict liability offense.
  - Florida’s law has the same constitutional safeguards recognized by other states and federal courts to protect against criminalization of innocent sexual activity.
  - Sexual intercourse with another person without his consent could not reasonably be mistaken to be an innocent act.
- Therefore, the Florida Supreme Court held that the statute is constitutional and does not require the State to prove that the defendant did not and should not have reasonably known that the victim did not consent.
- So, it appears, if Mr. Tait had walked out of the room and lied to Mr. Statler stating that the young woman asked for Mr. Statler to come in and engage in sexual intercourse with her and if Mr. Statler reasonably believed that he had her consent, he would still be guilty of sexual battery.
- First DCA’s Affirmance Approved.

Case #2 – Atwood v. State, No. 1D21-2605 (Fla. 1st DCA)(October 12, 2022)

Atwood is a traffic stop search and seizure case out of Escambia County.
Mr. Atwood was in the driver’s seat of an illegally parked car that was obstructing a roadway when two officers approached him.
Mr. Atwood was temporarily detained to address the traffic infraction and he consented to a search of his car.
Mr. Atwood was acting nervous so the officer asked if he could conduct a patdown and Mr. Atwood consented.
The officer felt “a tied off corner baggy of an unknown powder,” and asked Mr. Atwood what it was.
Mr. Atwood said his cell phone was in that pocket and the officer could remove the cell phone.
The officer removed both the cell phone and the baggie, which turned out to be heroin.
Mr. Atwood then took off running and threw down two more baggies of heroin and marijuana.
He was subsequently arrested and charged with Trafficking.
Mr. Atwood filed a motion to suppress the evidence which was denied and he pled guilty preserving his right to appeal.
The Fourth Amendment protects against unreasonable searches and seizures.
The U.S. Supreme Court created the exclusionary rule to prevent, not repair. The purpose is to deter.
Whether the exclusionary rule applies in a particular case is a separate issue from whether an individual’s Fourth Amendment rights were violated.
There are three types of police-citizen encounters: consensual, investigatory stops, and arrests.
Consensual encounters do not invoke constitutional safeguards.
During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them.
On the flip side, officers need not ignore crime during consensual encounters and they can seize evidence they see in plain view or that they know to be contraband from its contour or mass; or plain touch.
Both the plain view and plain touch doctrines depend on the legality of the intrusion that enables them to perceive and physically seize the property in question and the probable cause to associate the property with criminal activity.
It is a stepped inquiry. First, the Court asks if the Fourth Amendment protections are triggered by the nature of the action.
If so, the Court then addresses whether those protections were trespassed,
And finally, if they were, the Court evaluates whether the resulting evidence should be excluded.
Here, the authority for the pat down search rested solely on consent, so the inquiry is whether the search was conducted within the limits of the consent given.
Mr. Atwood agreed to allow the deputy to conduct a pat down and then agreed to allow the officer to remove his cell phone.
Because the consent was limited to removing his cell phone, the officer exceeded the consent by removing the baggie, which both triggered and trespassed his Fourth Amendment protections.
The First DCA also held that the plain touch doctrine did not apply because the State failed to elicit any testimony from the officer to establish a belief that the baggie contained contraband.
For the plain touch doctrine to apply, the touch alone must provide sufficient information to the officer to develop probable cause. It must be plain.
The officer must be reasonably certain the object is contraband.
The State could have elicited testimony from the officer that the unique texture and size and shape of the baggie, along with the officer’s experience that illegal drugs are often carried in the tied off corners of plastic baggies suggested the baggie contained a controlled substance, but the State failed to do that.
Therefore, there was insufficient evidence to determine the existence of probable cause for the search of Mr. Atwood’s pocket and the baggie of heroin should have been suppressed.
The Court next turned to the baggies that Mr. Atwood threw when he was running from the police.
- The State argued that he abandoned those baggies and so they should not be suppressed.
- The First DCA agreed.
- The encounter began as a lawful traffic stop.
- Mr. Atwood was lawfully detained while the officers conducted a driver’s license check and warrant check and he was not free to leave.
- He then fled committing the offense of resisting an officer without violence under §843.02.
- And even though he may not have run but for the illegal search, but for causation is only a necessary, not a sufficient, condition for suppression.
- And even if he had not tossed the baggies and abandoned them, they would have been inevitably discovered during a lawful search subsequent to his arrest for resisting.
And the Court further agreed that the suppression of the initial bag would not have been dispositive of the case and the abandoned baggies served as independent evidence sufficient to support each of the drug convictions.
So, he won the battle but lost the war.
Case Affirmed.

Case #3 – Jack v. State, No. 1D21-1494 (Fla. 1st DCA)(October 12, 2022)

Jack is a second degree murder lack of preservation of error case out of Bay County.
Mr. Jack was convicted at trial of Second degree murder where his girlfriend testified as a cooperating co-defendant pursuant to a plea agreement .
During her testimony, the girlfriend was asked how many people Mr. Jack claimed to have killed.
Mr. Jack’s attorney objected arguing that there was no evidence that the conversation took place and because the testimony was prejudicial.
The State argued that the testimony was not unfairly prejudicial and showed consciousness of guilt and an attempt to tamper with or intimidate the witness.
The trial overruled the objection and the girlfriend testified that Mr. Jack told her that this “makes victim number 23.”
On appeal, Mr. Jack argued that the girlfriend’s testimony was improper Williams Rule evidence.
Unfortunately, because Mr. Jack’s trial counsel did not specifically object at the trial court level on that basis, the issue was not preserved and because it didn’t rise to the high level of fundamental error, it cannot be considered.
The same was true for Mr. Jack’s argument that he was entitled to a jury of twelve. He didn’t raise this issue at the trial level either, therefore the district court refused to address it.
Mr. Jack did get a small win though as the First DCA held that the trial court erred in assessing a $150 discretionary public defender fee under 938.29, a $10 surcharge under 938.04 and a $200 fine under 775.083(1) because the trial court did not specifically pronounce them at sentencing to give Mr. Jack notice and an opportunity to be heard.
So the Court remanded for the trial court to strike the fine and surcharge and to conduct an appropriate hearing with proper notice on the discretionary public defender fee.
Case Affirmed in part, Vacated in part, and Remanded.

Case #4 – State v. Green, No. 1D21-1808 (Fla. 1st DCA)(October 12, 2022)

Green is a warrantless search of a probationer’s residence case out of Gulf County where evidence seized pursuant to a search warrant was used to charge a non-probationer resident of the house.
Ms. Green lived with two people who were on probation, both of which were required to submit to warrantless searches of their residence.
Probation officers received an anonymous tip that one of the probationers had drugs in the residence.
Two probation officers went to the house accompanied by police officers who waited outside the house.
The probation officers conducted a search and found a smoking device and syringe in the master bedroom shared by the probationer and Ms. Green.
The probation officer also saw a crystal-like substance in a container on top of the dresser.
The probation officer gave the syringe to the police officer, who field tested it and determined that it was methamphetamine.
At that point, the probation officers stopped their search and the police officers obtained a search warrant based on what the probation officers told them and the field tested syringe.
Subsequent to the search warrant search, officers located additional drugs and charged Ms. Green with possession of those drugs.
Ms. Green moved to suppress the evidence and the trial court granted the motion determining that evidence recovered from the search would only be admissible in a probation revocation proceeding had Ms. Green been on probation, but could not be used in the prosecution for a new crime.
The State appealed to the First DCA.
A non-probationer cannot reasonably expect privacy in areas of a residence that she shares with probationers.
A probationer does not enjoy the same expectation of privacy under the Fourth Amendment as an ordinary citizen.
It is a privilege to be free on probation conditioned on supervision by a probation officer and a probation officer may visit a probationer’s home or place of employment without a warrant under §948.03(1)(b).
The search of a probationer’s person or residence by a probation supervisor without a warrant is a reasonable search and absolutely necessary for the proper supervision of probationers.
Therefore, under Florida law, a probation officer has the authority, consistent with the Fourth Amendment, to inspect a probationer’s home without a warrant or any showing of reasonable suspicion.
If evidence of a probation violation is found, such evidence may be used against the probationer in a probation revocation proceeding.
But the same evidence may not be used to support new criminal charges unless the search otherwise satisfies the requirements of the Fourth Amendment.
The United States Supreme Court has held in Knights that law enforcement (as opposed to a probation officer) may conduct warrantless searches of probationers’ homes under a lesser standard of reasonable suspicion (not probable cause) where a condition of probation included consent to a warrantless search.
The Fourth DCA in Lawson v. State, held that law enforcement could use information found in a probationary search to obtain a search warrant.
The Fourth DCA observed that Florida law gave the state two options in investigating suspected criminal activity on the part of probationers.
- First, the state can allow probation officers to seize evidence during a warrantless search and use that evidence to seek a revocation of probation.
- Second, the State can continue the investigation and seek a search warrant to secure the evidence necessary to support new charges.
Where evidence observed during a valid administrative search is used by the state to obtain a search warrant, the fruits of a subsequent search pursuant to the warrant are legally seized and may be used to support a separate substantive charge.
The First DCA agreed with the Fourth DCA’s analysis and here determined that the probation officers had a right to inspect Ms. Green residence without a warrant and without reasonable suspicion.
The probation officer’s discovered evidence of drug use and passed it to police officers who were outside.
The police officers used that information to obtain a search warrant based on probable cause provided by the probation officers.
The evidence found subsequent to that search warrant was properly admitted in the prosecution of Ms. Green for a substantive drug possession offense.
Ms. Green did make a new argument on appeal that the evidence seized by the probation officers only showed personal use and therefore there was no probable cause that additional contraband would be found.
- Ms. Green relied on trash pull cases where courts have held that a small amount of drugs in someone’s trash does not reliably signal that more contraband will be found inside the home.
- However, the First DCA distinguished those cases because here there was a smoking device and a used syringe with a substance that tested positive for methamphetamine and a crystal-like substance in a plastic container on the dresser that was observed, but left by, the probation officer.
- It could reasonably be inferred that the crystal-like substance that was left on the dresser was methamphetamine and therefore, there was probable cause to believe additional drugs remained in the residence.
Therefore, there was no illegal search or seizure.
Case reversed and remanded.

Case #5 – Williams v. State, No. 1D22-123 (Fla. 1st DCA)(October 12, 2022)

Williams is a Statute of Limitations in a Sexual Battery case out of Duval County.
Mr. Williams was convicted of sexual battery for the rape of a 15 year old girl.
The victim claimed that a man named Dwayne gave her an alcoholic drink and she only remembered waking up in his bed.
She reported the crime the same day, which was January 26, 2010 and a sexual assault kit was utilized.
On April 30, 2010, FDLE determined that the DNA matched Mr. Williams.
However, Mr. Williams wasn’t arrested until March 20, 2019, more than 9 years later.
Mr. Williams filed a 3.800(a) motion arguing that the statute of limitations had expired under §775.15 which states that the prosecution of any felony, other than a first degree felony, must be commenced within three years after the offense was committed.
The trial court summarily denied the motion under §775.15(16)(a) because the offense was for sexual battery and Mr. Williams’ identity was established through DNA evidence.
Mr. Williams appealed.
As an initial matter, the First DCA held that Mr. Williams’ claim was not cognizable under rule 3.800(a), but it would have been timely under Rule 3.850 and the lower court denied it on the merits.
§775.15(2)b) provides that prosecution of a second degree felony must be commenced within three years of the offense except as otherwise provided in this §.
§775.15(16) extends the statute of limitations for various offenses, including sexual battery.
That § allows for prosecution to be commenced at any time after the identity of the accused is established through DNA evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused.
It does not apply to offenses already barred from prosecution before July 1, 2006, but Mr. Williams’ offense, which was committed in January 2010, was not already barred.
The First DCA found that under this provision, the statute of limitations would not have expired, but because the record did not indicate whether a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA was preserved and available for testing by Mr. Williams, the trial court’s reliance on this § is not supported by the record.
However, the First DCA found that the record supported reliance on §775.15(13)(a) and (13)(c).
§775.15(13)(a) provides that if the offense is a first or second degree felony violation of §794.011 and the offense is reported within 72 hours after its commission, the prosecution for such offense may be commenced at any time.
- The record established that the offense was reported the same day, therefore the statute of limitations has not expired.
§775.15(13)(c) provides if the offense is a violation of §794.011 and the victim was under 16 years of age at the time the offense was committed, a prosecution of the offense may be commenced at any time.
- There is an exception to this provision which didn’t apply in this case because the victim was under 16 at the time of the offense in January 2010, therefore, no statute of limitations applied.
Because the record established that two statute of limitations provisions allowed prosecution at any time, the State was not barred from prosecution.
Case Affirmed.

Case #6 – Battles v. State, No. 2D22-765 (Fla. 2nd DCA)(October 14, 2022)

Battles is a 3.800(a) motion to correct illegal sentence case out of Polk County.
Mr. Battles argues that the predicate offenses for his habitual felony offender sentence should not have counted.
As a general rule, a defendant’s contention that he does not have the predicate felonies required to support an HFO designation is cognizable under 3.800(a) if entitlement to relief is clear from the face of the record.
Mr. Battles argued that his prior offenses fell outside the 5 year time frame, were non qualifying drug related offenses and could not be counted as separate offenses because they occurred on the same day.
Here, because Mr. Battles made a facially sufficient claim, the trial court should have addressed it.
Case reversed and remanded.

Case #7 – Alcazar v. State, No. 3D22-1669 (Fla. 3rd DCA)(October 12, 2022)

Alcazar is a pretrial detention case.
Mr. Alcazar was a correctional officer who was charged with solicitation to commit murder among other charges.
The State moved for pretrial detention under Florida Rule o f Criminal Procedure 3.132 and §907.041.
The trial court granted the motion under 907.041(4)(c)(5) and Mr. Alcazar filed a petition for writ of habeas corpus with the 3rd DCA.
Article I, §14 of the Florida Constitution provides: Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to person, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.
The capital or life offense exception applies when a person is charged with a crime punishable by capital punishment or life imprisonment, and the State can demonstrate the proof of guilt is evident or the presumption is great.
The pretrial detention exception applies when, regardless of the level of crime charged, the State can demonstrate that no conditions of release will protect the community, ensure the presence of the accused at trial, or assure the integrity of the judicial process.
§907.041 states that it is the intent of the legislature to create a presumption in favor of release on non-monetary conditions for any person who is granted pretrial release unless such person is charged with a dangerous crime as defined in subsection (4).
Subsection (4)(a) enumerates “dangerous crimes,” and solicitation is not enumerated.
Here, the trial court ordered pretrial detention based on 907.041(4)(c)(5) which states: The court may order pretrial detention if it finds a substantial probability, based on a defendant’s past and present patterns of behavior, the criteria in §903.046, and any other relevant facts, that any of the following circumstances exist:
- The defendant poses the threat of harm to the community. The court may so conclude, if it finds that the defendant is presently charged with a dangerous crime, that there is no substantial probability that the defendant committed such crime, that the factual circumstances of the crime indicate a disregard for the safety of the community, and that there are no conditions of release reasonably sufficient to protect the community from the risk of physical harm to persons.
The Third DCA has previously found in Hodges v. State that a dangerous crime can only be one that is enumerated in §907.041(4)(a)
Because Solicitation of first degree murder is not listed as a dangerous crime under 907.041(4)(a), it can not serve as a basis for pretrial detention under §907.041(4)(c)(5).
And although the State argued that there was sufficient competent substantial evidence that the solicitation became attempted murder, the Third DCA found that no such finding was made by the trial court and the Information only charges Solicitation.
Therefore, the Court granted the writ of habeas corpus and ordered the State to file a legally sufficient motion for pretrial detention within three business days.
Petition Granted.

Case #8 – Mendoza v. State, No. 3D21-1522 (Fla. 3rd DCA)(October 12, 2022)

Mendoza is a failure to complete a sex offender program because of purported inability to pay probation violation case.
Mr. Mendoza, after being released from prison after a 5 year prison term, began his seven year term of probation.
One of the conditions of probation was to enroll in and complete a sex offender program.
No deadline or date of completion was ordered.
While on probation, Mr. Mendoza’s probation officer scheduled him to appear for an intake evaluation, but Mr. Mendoza failed to appear.
The probation officer tried again three more times, but each time, Mr. Mendoza failed to appear.
After the fourth failure to appear for the sex offender program intake, a violation of probation affidavit was filed within the fifth month of probation.
At the violation hearing, Mr. Mendoza argued that he could not afford the $92 intake fee and that is why he didn’t appear.
The State contended that Mr. Mendoza could have sold property he had to raise the $92 and that he made no attempts to find employment.
The trial court found that he willfully violated the probation and sentenced him to life in prison. Brutal.
Mr. Mendoza appealed arguing first that he did not willfully violate his probation because he could not afford the fee, and second that because there was no deadline to complete the program in his probation order, he could not be violated.
Probation is an act of grace to a defendant convicted of a crime.
For this reason, the trial court’s finding of a willful and substantial violation of a probation term is reviewed for competent, substantial evidence and the trial court’s decision to revoke probation based on such evidence is reviewed for an abuse of discretion.
In arguing that he had an inability to pay, Mr. Mendoza relied on King v. State, a First DCA case that held that failure to attend sex offender treatment is not a willful violation when it is the result of an inability to pay.
- However, the 3rd DCA distinguished King from Mr. Mendoza’s case because King tried to make a partial payment and was turned away, was working with a job referral specialist and had documentation that he was searching for work.
- The Florida Supreme Court has held in Adams v. State, that when there is a question as to whether a defendant’s conduct is willful, the trial court is well within its discretion in rejecting the defendant’s excuse as unpersuasive.
As for Mr. Mendoza’s argument that there was no deadline to complete the sex offender program and he still had plenty of time to complete it, the 3rd DCA noted that the Florida Supreme Court has held that a trial court is well within its discretion to revoke probation for the non-completion of a sex offender program, even when the order does not specify the date by which it needs to be completed.
In Adams, the Florida Supreme Court stated that where a defendant enrolls in but fails to complete a sex offender treatment program, a trial court may, in its discretion, and depending on the circumstances, revoke the defendant’s probation.
Here, the 3rd DCA found that the probation officer gave Mr. Mendoza four chances to enroll in the program and he failed to appear each time, therefore, the trial court was within its discretion to revoke his probation for failure to complete the program even though the probation order did not specify a completion date.
Case Affirmed.

Case #9 – Roberts v. State, No. 5D21-2537 (Fla. 5th DCA)(October 14, 2022)

Roberts is a discovery violation and motion for new trial case out of Marion County.
Mr. Roberts was convicted for vehicular homicide and causing death while driving on a suspended license.
On appeal, Mr. Roberts first argued that the trial court erred by finding a discovery violation to be trivial and finding that it did not substantially hamper his trial preparation and strategy.
- The State disclosed the investigating officer as a witness and the defense took his deposition.
- At trial, the officer testified to his opinion as to the cause of the accident.
- Mr. Roberts requested a Richardson hearing claiming that the State failed to disclose the investigating officer as an expert witness.
- The trial court conducted a Richardson hearing where it considered whether the discovery violation was inadvertent or willful, substantial or trivial, and whether it had a prejudicial effect on Mr. Robert’s trial preparation.
- The trial court found that there was a discovery violation, but because Mr. Robert’s attorney only argued that the officer’s testimony was a complete contradiction to his deposition testimony, the trial court found that he could bring out those consistencies during cross examination.
- On appeal, Mr. Roberts argued for the first time that he would have offered expert testimony to rebut the investigating officer’s testimony.
- Unfortunately, for him, because this argument wasn’t made at the trial court level, it was not preserved.
- Therefore, the 5th DCA did not decide whether the trial court erred by allowing the testimony.
- So, if you have a similar circumstance where an investigating officer is offering his opinion on the cause of an accident, make sure to argue at the Richardson hearing that your client was prejudiced because you would have obtained an expert to rebut the testimony.
Mr. Roberts next argued that the trial court erred by applying the wrong standard to deny his motion for a new trial.
- Under Florida Rule of Criminal Procedure 3.600(a)(2), a motion for new trial requires the trial court to evaluate whether the jury’s verdict is contrary to the weight of the evidence and to act, in effect, as an additional juror.
- Here, the trial court applied the sufficiency of the evidence standard, which was an improper standard.
- The State conceded error and therefore the district court reversed and remanded for the trial court to consider the motion for new trial under the proper standard of considering the weight of the evidence.
- Case Affirmed in part; Reversed in part, and Remanded.

Case #10 – State v. Woodson, No. 5D21-2251 (Fla. 5th DCA)(October 14, 2022)

Woodson is a Stand Your ground case out of Osceola County.
In Woodson, the trial court granted a motion to dismiss for statutory immunity from prosecution, or a Stand Your Ground Motion.
The State appealed arguing that the motion was facially insufficient, so there never should have been a hearing in the first place and even if it was facially sufficient, the evidence presented overcame the clear and convincing evidence standard required by §776.032(4).
Mr. Woodson was an inmate at a detention facility when he was charged with battery on an inmate.
The Stand Your Ground Motion alleged that Mr. Woodson’s cellmate asked if Mr. Woodson wanted to fight with him, made repeated threats to Mr. Woodson’s life, struck Mr. Woodson with his shoulder as he walked by, chest bumped Mr. Woodson and was a member of a gang known for murder and gun violence.
Under §776.012(1) a person is justified in using non-deadly force against another to the extent that the person reasonably believes that such conduct is necessary to defend himself…against the other’s imminent use of unlawful force.
Under §776.032(4), once a defendant has raised a prima facie claim of self-defense immunity at a pretrial immunity hearing, the burden of disproving that claim by clear and convincing evidence is on the State.
Imminent means ready to take place; happening soon.
An imminent act requires no further measures to manifest
Imminence has a temporal dimension, developing quickly relative to the events that define it.
Very little time or preparation may stand between the present moment and an imminent event.
The 5th DCA found that Mr. Woodson’s motion was facially insufficient because none of the allegations amounted to an imminent threat.
An invitation to fight does not reasonably lead to the conclusion that Mr. Woodson necessarily had to use force.
And reasonable fear for his and his family’s safety, threats of force being used against him and believing his conduct was necessary are all conclusory allegations that do not amount to establishing a prima facie claim.
Rule of Criminal Procedure 3.190 requires the allegations in the motion to be alleged with specificity.
The District Court held that Mr. Woodson failed to do that in this case and therefore the trial court should have denied the motion as facially insufficient and should not have conducted an evidentiary hearing.
Case Reversed and remanded.