Florida Criminal Case Law Update (October 24, 2022 – October 28, 2022)

by Lasnetski Gihon Law

The “Cite” of the Crime Podcast
CASE SUMMARIES

Florida Criminal Case Law Update (October 24, 2022 – October 28, 2022)

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

OVERVIEW – 13 Cases

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

Case #1 – State v. Garcia, No. SC20-1419 (Fla. Sup. Ct.) (October 27, 2022)

Garcia is a Fifth Amendment compelling a defendant to disclose a cellphone password case where the Florida Supreme Court addressed whether the 5th DCA properly granted certiorari.
Mr. Garcia’s ex-girlfriend’s new boyfriend found a cellphone outside his house shortly after someone shattered his bedroom window.
Mr. Garcia’s ex-girlfriend told police she thought that the cell phone was Mr. Garcia’s.
They called Mr. Garcia’s phone number and the cell phone rang and Mr. Garcia’s name and phone number displayed on the phone.
A gps tracker was also found on Mr. Garcia’s ex-girlfriend’s car which could be traced by smart phone application.
Mr. Garcia was charged with aggravated stalking with a credible threat and with throwing a deadly missile into a building.
The State obtained a search warrant for the smartphone, but it was password protected.
The State filed a motion to compel Garcia to disclose his smartphone’s passcode.
Mr. Garcia argued that compelling him to disclose the passcode would violate the Fifth Amendment privilege against self-incrimination.
The trial court granted the State’s motion and Mr. Garcia filed a petition for writ of certiorari in the 5th DCA.
The 5th DCA granted the writ and quashed the trial court’s order.
The State then sought discretionary review with the Florida Supreme Court.
Florida law authorizes interlocutory appeals in only limited circumstances when involving nonfinal orders.
Otherwise, you have to wait until the case is concluded and addressed in a final order.
For a district court to grant a writ of certiorari, the petitioner must demonstrate that the contested order constitutes
- 1) a departure from the essential requirements of the law,
- 2) resulting in a material injury for the remainder of the case,
- 3) that cannot be corrected on post-judgment appeal.
#2 and #3 are considered together and referred to as the irreparable harm prong. Would the petitioner suffer irreparable harm.
The Courts will consider irreparable harm first and departure from essential requirements of the law second.
Here, the Court found that compelling the passcode could materially injure his defense.
- It would provide evidence that he owned the smartphone, corroborated by the fact that the phone rang when the phone number was called
- And it proved that Mr. Garcia was there at some point as it was still charged enough to function.
However, the Court also found that Mr. Garcia could adequately remedy these potential injuries on post-judgment appeal of a final order rather than through this interlocutory appeal.
Therefore, there was no irreparable harm and thus the 5th DCA had no jurisdiction to issue a writ of certiorari.
The Florida Supreme Court went one step further though and found that the trial order was not a departure from the essential requirements of law because the law is not well settled on whether a defendant can be compelled to provide their passcode.
The Second and Fourth DCAs have held that the Fifth Amendment does not protect a person from compelled disclosure and that disclosure would not be testimonial.
The Fifth DCA has held that the Fifth Amendment does protect a person from compelled disclosure and is testimonial.
The Florida Supreme Court and the U.S. Supreme Court have not directly addressed this question.
Because the law is not settled, the trial court didn’t depart from the essential requirements of law.
Writ of Certiorari quashed.

Case #2 – Burney v. State, No. 1D21-1082 (Fla. 1st DCA)(October 26, 2022)

Burney is a first degree murder case out of Duval County involving the admission of evidence of pending charges against a witness.
The State called two witnesses who had pending robbery charges in other cases.
They testified on direct that they hoped to get a better sentence in that case in exchange for their testimony against Mr. Burney and they were questioned about it on cross examination.
On redirect, the trial court allowed the State to question the witnesses about Mr. Burney’s brother being involved in that other robbery.
Mr. Burney’s brother later testified for Mr. Burney.
Mr. Burney argues that the testimony that Mr. Burney’s brother was involved in the other case was not relevant and was prejudicial.
However, the First DCA held that the testimony was admissible for the same reason it was admissible as to the two state witnesses because it explained why two of the three co-defendants were turning on the other and was relevant to show bias.
Case Affirmed.

Case #3 – Eastburn v. State, No. 1D22-1205 (Fla. 1st DCA)(October 26, 2022)

Eastburn is a petition for a writ of certiorari case involving a competency issue.
Mr. Eastburn filed a motion requesting the trial court to find him incompetent.
There was an evaluation that was conducted a year and a half earlier, so the Assistant Public Defender agreed to get a new evaluation.
However, Mr. Eastburn filed this petition for writ of certiorari and there is no indication in the record that the new evaluation was ever completed or that the trial court ruled on the motion.
So, the First DCA remanded for the trial court to rule on the motion and encouraged the trial court to order an evaluation if necessary.

Case #4 – Dydek v. State, No. 2D21-1275 (Fla 2nd DCA)(October 26, 2022)

Dydek is a motion to suppress case out of Pasco County.
Officers were called out to the Rodeway Inn when a housekeeper found a gun in one of the rooms.
The officers took possession of the gun and the motel manager told them that a man and woman had been staying in the room and had recently moved to a different room.
At the suppression hearing, the State offered no evidence as to how long they had been in the first room, when they left it, how many beds were in either room or when either room was last cleaned.
There was no evidence that the officers searched the room where the gun was found.
And although the firearm was stolen in a theft that involved multiple firearms, there was no evidence presented about the circumstances of the theft, location or date of the theft or identity of any suspects.
The officers were shown a photocopy of the male’s driver’s license and the hotel staff described him as a white, middle aged man of average build and height.
So the officers went to the second room where the man and woman moved into and they saw Mr. Dydek walk out of the room, look around and go back into the room.
Mr. Dydek was a middle aged white male with average build and average height.
Five officers got into position, one had a rifle from across the pool trained on the room and at least three officers had their guns drawn.
The officers knocked and announced themselves and when Mr. Dydek answered the door, he was either pulled out of the room or he hesitantly stepped out, depending on who you believe, and the officers funneled him down the hallway away from the room and patted him down for weapons.
When Mr. Dydek was told to put his hands behind his back, he pulled away and an officer took him to the ground and handcuffed.
Officers also searched the room and Mr. Dydek and they found drugs in a pouch that was belted around his waist.
Mr. Dydek was arrested for drug possession and resisting without violence.
Mr. Dydek filed a motion to suppress which was denied.
Mr. Dydek pled guilty to drug charges reserving the right to appeal the denial of his motion to suppress.
There are three levels of police-citizen encounters.
- Consensual encounters that involve only minimal police contact where the citizen can voluntarily comply with a police officer’s requests or choose to ignore them.
- Investigatory stops where police may detain a person temporarily if the officer has reasonable suspicion that the person has committed, is committing, or is going to commit a crime.
- Arrest supported by probable cause that a crime has been or is being committed.
The State argued that the encounter here was consensual, but the First DCA strongly disagreed.
- An encounter is not consensual if the officer’s show of authority would lead a reasonable person to conclude that he or she is not free to end the encounter and depart.
- The U.S. Supreme Court gave examples of nonconsensual circumstances in United States v. Mendenhall.
  - The threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of violence indicating that compliance with the officer’s request might be compelled.
- The subjective intent of the officer is irrelevant except as it is related to how it was conveyed to the defendant.
- Generally, a knock and talk may be consensual if certain guidelines are followed.
  - There must be an absence of coercive police conduct, including any express or implied assertion of authority to enter or authority to search.
  - The police should not deploy overbearing tactics that essentially force the individual out of the home.
  - Nor should overbearing tactics be employed in gaining entry to a dwelling or in obtaining consent to search.
- Here, multiple officers had firearms drawn and one had a rifle trained at the room, they put their hands on him, directed him down the hall, attempted to handcuff him and took him to the ground.
- The Court also found that the encounter was not an investigatory stop.
  - An investigatory stop requires a well founded articulable suspicion of criminal activity.
  - Mere suspicion is not enough.
  - The State argued that the officers had a reasonable suspicion that a potential felon was in possession of a firearm and in possession of a stolen firearm.
  - However, the Court found that there was no evidence that any crime took place or that Mr. Dydek was reasonably suspected of committing a crime.
  - As for possession of a firearm by a convicted felon, the staff found the gun in a vacant room, only one of the two people that were associate with that room had a felony conviction and there was no evidence how long they had been in that first room, how much time passed between their departure from the room and the discovery of the firearm or whether anyone else had entered the room.
  - As for possession of a stolen firearm, there was no evidence when the firearms were stolen, they were stolen in a different county, and there was scant evidence that supported only a hunch, not reasonable suspicion.
  - And there was no evidence linking Mr. Dydek to the offense.
- The search of the pouch also was not lawful pursuant to his arrest for resisting without violence because they had no lawful authority to detain him in the first place.
- In resisting cases involving an investigatory detention, the State must prove that the officer had a reasonable suspicion of criminal activity.
- And the State failed to do so here.
- Evidence seized as a direct result of an unlawful search is inadmissible.
- So, the First DCA reversed and remanded for the trial court to dismiss the charges.
- Case reversed and remanded.

Case #5 – Jackson v. State, No. 2D21-3827 (Fla. 2nd DCA)(October 28, 2022)

Jackson is a post-conviction relief case out of Pinellas County.
The trial court summarily denied Mr. Jackson’s motion for post conviction relief.
In his motion, Mr. Jackson alleged that the State did not request a costs of prosecution or investigative costs and did not provide documentation supporting the amounts awarded.
The trial court summarily denied the motion finding that Mr. Jackson failed to allege prejudice in the motion because he did not allege he would not have pleaded guilty and would have proceeded to trial had the error not been made.
The Florida Supreme Court has held that a defendant must demonstrate a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.
However, this has no logical application outside the context of the entry of a plea.
Because the deficient performance occurred after and was unrelated to the entry of his guilty plea, the Florida Supreme Court’s standard doesn’t apply here.
Here, Mr. Jackson simply had to allege that but for his trial counsel’s failure to object to the imposition of unrequested costs of prosecution, these costs would not have been imposed and therefore the result of the sentencing hearing would have been different.
Case reversed in part and remanded.

Case #6 – Roman v. State, No. 2D22-766 (Fla. 2nd DCA)(October 28,. 2022)

Roman is a post conviction relief case out of Polk County.
Mr. Roman’s motion for post conviction relief was summarily denied where he alleged his trial counsel did not inform him that he faced life in prison on two separate counts.
The trial court relied on competency reports where experts opined that Mr. Roman understood that he could possibly be imprisoned for life.
However, the 2nd DCA found that the evidence only demonstrated that Mr. Roman understood that he faced life in prison, but it did not refute Mr. Roman’s claim that trial counsel failed to advise him that he faced life sentences on two separate counts and had he known, he wouldn’t have pled guilty.
Therefore, Mr. Roman pleaded a facially sufficient ground.
Case reversed in part and remanded.

Case #7 – State v. Erway, No. 2D21-1265 (Fla. 2nd DCA)(October 28, 2022)

Erway is a No Valid Driver’s License case out of Highlands County involving the definition of a motor vehicle.
Mr. Erway’s citation described the vehicle he was driving as a black “Huffy” with a style of MK.
The police report described the vehicle as a motorized bike powered by a gasoline engine.
Mr. Erway made a motion to dismiss the charge arguing that the motorized bicycle was not a motor vehicle as defined under Florida law.
Mr. Erway argued that he was driving a moped which he argues is not included in the legal definition of a motor vehicle.
The trial court held a hearing and granted the motion to dismiss finding that the MK stood for minibike and because a minibike does not require a driver license, the charge could not be sustained.
The 2nd DCA first addressed the issue whether the State could appeal the dismissal of a criminal traffic citation.
- 924.07(1)(a) states that the State may appeal from an order dismissing an indictment or information or any count thereof.
- The Florida Supreme Court held in Whidden v. State that the State could also appeal the dismissal of an affidavit purporting to charge a criminal offense.
- Here, the charging document, the citation, is a formal charge and therefore, the State has the right to appeal.
The Court next addressed whether the vehicle Mr. Erway was driving was a motor vehicle as defined under Florida law.
- §322.03(1) does not define the term “motor vehicle.”
- However, §322.01(27) contains definitions applicable to Chapter 322 and states that a motor vehicle is any self propelled vehicle, including a motor vehicle combination, not operated upon rails or guideway, excluding vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles as defined in §316.003.
- Mr. Erway’s Huffy was self propelled and it was not a motorized wheelchair.
- So, the only way Mr. Erway could drive it without a license is if it meets the definition of a motorized bicycle.
- Under 316.003, the term motorized bicycle is referenced within the definition of bicycle as “every motorized bicycle propelled by a combination of human power and an electric helper motor capable of propelling the vehicle at a speed of not more than 20 miles per hour on level ground upon which any person may ride, having two tandem wheels, and including any device generally recognized as a bicycle through equipped with two front or two rear wheels.
- Because this definition does not include a bicycle powered by a gasoline engine, which is what Mr. Erway’s Huffy was propelled by, it is not a motorized bicycle and therefore does require a license.
- Case reversed and remanded.

Case #8 – Michel v. State, No. 3D22-1373 (Fla. 3rd DCA)(October 26, 2022)

Michel is a post conviction case out of Miami Dade County involving the failure of trial counsel to file a motion to suppress a photo lineup.
Trial counsel cannot be deemed ineffective for failure to file a meritless motion.
In order to warrant exclusion of evidence of an identification, the identification procedure must have been so suggestive, and the witness’ unassisted ability to make the identification so weak, that it may reasonably be said that the witness has lost or abandoned his or her mental image of the offender and has adopted the identity suggested.
Here, the evidence showed that the officer showed the victim a six person lineup, told the witness the perpetrator may not be in the lineup, that the witness was not obligated to choose anyone, that it is just as important to clear innocent people as identifying guilty parties, and that the victim should not feel like he had to make an identification.
The lighting conditions were adequate; the victim immediately identified Mr. Michel and he was certain Mr. Michel was the perpetrator.
Case Affirmed.

Case #9 – Mintz v. State, No. 3D21-1925 (Fla. 3rd DCA)(October 26, 2022)

Mintz is a burden shifting in closing argument case out of Miami Dade County.
Mr. Mintz was arrested for attempted second degree murder for stabbing a victim in the back, neck and face.
The victim testified that Mr. Mintz was the only attacker and that the crime occurred in the backseat of the victim’s mother’s car.
The police found a bus identification card for an individual named Kenneth Logan.
The defense argued at trial that Kenneth Logan was the real attacker.
The victim testified that he did not know anyone named Kenneth Logan, he didn’t know where the ID came from and only he and Mr. Mintz were in the car.
The State argued in closing rebuttal argument that the identification could be fake or Mr. Mintz could have dropped the ID.
Defense counsel objected arguing that the State shifted the burden and moved for a mistrial which was denied.
Mr. Mintz was found guilty .
In closing argument, counsel is permitted to review the evidence and fairly discuss and comment upon properly admitted testimony and logical inferences from that evidence.
Here, the 3rd DCA found that the comments made by the prosecutor were logical inferences of the evidence and did not shift the burden.
Case Affirmed.

Case #10 – P.J.S. v. State, Nos. 3D21-1729, 3D21-1730 (Fla. 3rd DCA)(October 26, 2022)

P.J.S. is another Zoom juvenile delinquency hearing case out of Miami Dade County where the judge appeared by Zoom, but everyone else appeared in the courtroom.
Here, the 3rd DCA followed a long and growing string of cases finding that a trial court must make an individual case specific finding of necessity in order to conduct a delinquency hearing via zoom.
Here, the trial court did not do that.
Case reversed and remanded.

Case #11 – Guzman v. State, No. 4D22-0148 (Fla. 4th DCA)(October 26, 2022)

Guzman is a constitutionality of a six person jury and PSI case out of St. Lucie County.
Mr. Guzman was convicted of sexual battery on a child under 12 years of age and lewd or lascivious molestation on a child under 12 years of age counts and sentenced to life.
On appeal, he argued that he is entitled to a new sentencing hearing because he was a first time felony offender and the trial court sentenced him above the statutory minimum without ordering a PSI, or pre sentence investigation.
The trial court denied Mr. Guzman’s 3.800(b)(2) motion to correct sentence finding that Mr. Guzman waived his right to a PSI because he went forward with the sentencing hearing after the court specifically mentioned that he was entitled to a PSI.
Under Rule 3.710(a), no sentence or sentences other than probation or the statutorily required mandatory minimum may be imposed until after a PSI has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.
A PSI may be waived by the defendant’s attorney.
A trial court’s failure to obtain a personal waiver does not constitute fundamental error.
Waiver is the voluntary and intentional relinquishment of a known right, or conduct which implies the voluntary and intentional relinquishment of a known right.
A defendant does not waive the right to a PSI simply because defense counsel had an opportunity to request a pre sentence investigation and an opportunity to object to the sentencing without the court having first ordered a PSI.
The 4th DCA held in White v. State that the defendant was entitled to resentencing where the trial court’s error in failing to consider a mandatory PSI was preserved in Rule 3.800 motion and where the defense never expressly waived the right to a PSI.
Here, unlike in White however, the trial court specifically mentioned that Mr. Guzman was entitled to a PSI and he could waive it.
And the 4th DCA found that this was sufficient for a valid waiver.
Mr. Guzman’s attorney did not have to use the magic words, “We waive the PSI,” but rather just had to specifically mention his entitlement to a PSI and then if defense counsel proceeds with sentencing, it will be considered a valid waiver.
Mr. Guzman also argued for the first time on appeal that a six person jury violated the Sixth and Fourteenth Amendments.
In Williams v. State, the U.S. Supreme Court held that six person juries were permissible. Williams was decided in 1970.
This was sufficient for the majority to dispose of this issue, but Judge Gross wrote a well written concurring opinion specifically addressing this issue.
Mr. Guzman argues that the Supreme Court’s recent decision in Ramos v. Louisiana changes the framework upon which Williams relied.
In Ramos, the Court held that the Sixth Amendment’s trial by an impartial jury requirement mandates a unanimous verdict to convict a defendant of a serious offense because the right to trial by a jury included a right to a unanimous verdict at the time of the Sixth Amendment’s adoption.
Judge Gross surmises that the next logical step is to apply the same framework that the Supreme Court applied to jury unanimity in Ramos to jury size.
And because there is a good argument that at the time of the Sixth Amendment’s creation that 12 jurors were required, as Judge Makar stated in a decision cited by Judge Gross, “the future of jury size jurisprudence lies in the United States Supreme Court, which could update its functional approach based on contemporary social science research, abandon Williams and return to the originality position of 12 member juries, or like it has done for four decades – leave it be.”
So, make sure you object to 6 person juries to preserve the issues.
Case Affirmed.

Case #12 – Nottage v. State, No. 4D21-3238 (Fla. 4th DCA)(October 26, 2022)

Nottage is a 3.850 based on newly discovered evidence case out of Palm Beach County.
Mr. Nottage filed a 3.850 motion for post conviction relief based on an affidavit he filed where his co-defendant recanted his testimony that Mr. Nottage participated in the crime.
However, before the hearing occurred, the co-defendant withdrew his affidavit.
Because the co-defendant withdrew his affidavit, the trial court denied the motion.
Rule 3.850(c) states that for all other newly discovered evidence claims, the defendant shall attach an affidavit from any person whose testimony is necessary to factually support the defendant’s claim for relief.
Here, the 4th DCA agreed with the trial court and held that because the co-defendant withdrew his affidavit, the motion was legally insufficient.
Case Affirmed.

Case #13 – State v. Trinidad, No. 5D21-3006 (Fla. 5th DCA)(October 28, 2022)

Trinidad is a 90.403 evidence that’s probative value is outweighed by unfair prejudice case out of Osceola County.
Mr. Trinidad filed a motion to suppress an audio recording and the trial court granted the motion.
On appeal, the State argued that the trial court erred by concluding the probative value of the audio recording was outweighed by unfair prejudice.
The audio recording was taken by an alleged minor victim of sexual abuse who recorded Mr. Trinidad without his knowledge and without his consent.
The trial court had explained that the recording may be relevant in some ways, but part of the recording was partly inaudible and would tend to confuse a jury.
Partially inaudible or unintelligible audio recordings are not per se inadmissible.
An audio recording should be admitted into evidence unless the condition of the recording degrades its usefulness to such an extent that it makes the evidence misleading or irrelevant.
§90.403 states that evidence that is relevant may nonetheless be inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.
Unfair prejudice prong attempts to eliminate evidence that inflames the jury or appeals improperly to the jury’s emotions.
As a separate matter, the confusion listed in 90.403 is confusion of the issues which includes evidence that distracts jurors from the central issues of the trial in the case in which the defendant is charged.
Here, the trial court stated the evidence would confuse a jury and would cause some prejudice.
However, the trial court never concluded that the evidence would improperly inflame the jury or improperly appeal to the jury’s emotions.
The 5th DCA noted that explicit references to molestation or intercourse would not improperly inflame the jury nor distract the jury from the issues.
The statements are evidence from which guilt can be inferred and therefore were probative and not unfairly prejudicial.
Mr. Trinidad argued that even if the trial court had the wrong analysis, it still got to the right result, so the 5th DCA should affirm under the Tipsy Coachman doctrine.
Mr. Trinidad argued that because Mr. Trinidad was recorded without his knowledge or consent, the recording is inadmissible as an illegally intercepted oral communication under 934.03.
But, the Court noted that the case Mr. Trinidad relied on analyzed the old version of 934.03 which was amended in 2015 to provide an exception in 934.03(2)(k) where it is now legal for a child under 18 years of age to intercept and record an oral communication if the child isa. Party to the communication and has reasonable grounds to believe that recording the communication will capture a statement by another party to the communication that the other party intends to commit, is committing, or has committed an unlawful sexual act or an unlawful act of physical force or violence against a child.
Because that exception applies here, Mr. Trinidad’s argument fails.
Case Reversed and Remanded.