Florida District Court of Appeals Criminal Law Update (December 12, 2022 – December 16, 2022)

by Lasnetski Gihon Law

The “Cite” of the Crime Podcast
CASE SUMMARIES

Florida Criminal Law Update (December 12, 2022 – December 16, 2022)

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

OVERVIEW – 6

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

Case #1 – Byram v. State, No. 1D22-828 (Fla. 1st DCA)(December 14, 2022)

Byram is a timeliness of a 3.850 ineffective assistance of counsel case out of Baker County.
Mr. Byram’s direct appeal was denied and the 1st DCA’s mandate was issued on March 8, 2019.
Mr. Byram handed his 3.850 postconviction relief motion to prison officials on October 26, 2020.
Rule 3.850(b) requires a defendant to file a 3.850 motion within two years of the judgment and conviction becoming final.
If no appeal is filed, judgment and conviction becomes final 30 days after it is entered.
Under the mailbox rule, the date that the motion is placed in the hands of prison officials for filing is the date the motion is considered filed.
Therefore, Mr. Byram’s 3.850 motion was timely filed.
Case Reversed and remanded.

Case #2 – State v. Snow, No. 1D22-90 (Fla. 1st DCA)(December 12, 2022

Snow is a timeliness of a petition for writ of prohibition challenging the trial court’s denial of a pretrial self defense immunity motion case.
Mr. Snow was charged with aggravated battery with a firearm.
His attorney filed a motion to dismiss claiming self defense immunity under §776.032(1).
On August 13, 2021, the trial court denied the motion.
On September 14, 2021, Mr. Snow hired a new attorney to appeal the trial court’s decision.
On November 16, 2021, Mr. Snow’s new attorney obtained a transcript of the pretrial immunity hearing.
Mr. Snow’s jury trial was scheduled for January 24th.
On January 11, 2022, Mr. Snow filed a petition for writ of prohibition with the 1st DCA and he styled the petition as an emergency petition.
The 1st DCA held in Rice v. State that the proper vehicle to challenge the denial of a motion to dismiss is a petition for writ of prohibition.
The 1st DCA began by explaining that a writ of prohibition is issued to prevent the commission of an act, not a remedy to revoke an order already issued.
The Court is bound by case law precedent to accept that a writ of prohibition is the proper vehicle to challenge a pretrial immunity denial order, but the Court explained that it has reservations because a writ of certiorari, which is corrective in nature, might be more appropriate to remedy the denied order.
There are no set deadlines to file a petition for writ of prohibition, but our courts have held that it may be denied if the filing has been unreasonably delayed.
Here, the 1st DCA noted that Mr. Snow’s new appellate attorney filed a notice of appearance 31 days after that attorney was retained.
Three months had already passed from the time the motion was denied until the new attorney was hired.
Mr. Snow’s attorney then waited two additional months to file the petition.
The Court noted that if this were an interlocutory appeal, a notice of appeal would have had to have been filed within 30 days of the order and the initial brief would have had to have been filed within 15 days of the notice for a total of 45 days at most.
So the majority held that this delay was unreasonable.
As a side note, the 1st DCA also noted that it would have denied the petition even if it had not been unreasonably delayed.
The 1st DCA noted that even though the trial court’s order made no express factual findings, the trial court implicitly resolved conflicts in favor of the State by denying the motion.
And the evidence in the record showed that Mr. Snow was engaged in a fight, used language inviting the fight, blindsided the victim with a punch, and when he was knocked to the ground by the victim, Mr. Snow pulled a gun and shot the victim.
In the view of the 1st DCA, there was competent, substantial evidence that supported the trial court’s decision that Mr. Snow was the initial aggressor and it didn’t matter that Mr. Snow testified to a different version of what happened that may have been supported by some of the evidence.
All that matters is that the trial court’s decision is supported by competent, substantial evidence.
In a concurring and dissenting opinion, Judge Makar concurred on the merits but dissented on the timeliness issue.
In Judge Makar’s view, the majority held too rigidly to the time delay.
Petitions for prohibition may be filed at any time and aren’t restricted by any fixed time limit.
Courts have simply held that they must be filed expeditiously.
Here the State conceded that it was not prejudiced by any delay by simply citing possible prejudice in its filings.
And a 5 month delay is unlikely to affect the State’s ability to locate witnesses and unlikely to cause recollections to fade.
And at least a portion of the delay was due to getting legal counsel and obtaining a transcript.
And the State didn’t even raise the timeliness issue. It was the majority.
In closing, Judge Makar urged for an amendment to the appellate rules to provide for more notice to appellants on how long they have to file a petition for a writ of prohibition.
But as of now, attorneys are at the mercy of the appellate courts which will determine with some arbitrariness whether a petition is filed within an undefined reasonable period of time.
Petition denied.

Case #3 – Hamilton v. State, No. 1D21-2532 (Fla. 1st DCA)(December 12, 2022)

Hamilton is an alleged improper prosecutor comments and burden shifting case out of Walton County.
Ms. Hamilton got into an argument with the victim about reimbursing her for a broken windshield.
When the victim refused to pay, Ms. Hamilton fired a gun toward the victim’s vehicle.
Ms. Hamilton then obtained an exercise weight and smashed the victim’s windshield.
The victim then grabbed the weight and used it to smash Ms. Hamilton’s cellphone.
Ms. Hamilton then struck the victim with her gun.
Ms. Hamilton then wrestled with a second victim for the gun.
The second victim hit Ms. Hamilton in the head and Ms. Hamilton obtained a second firearm and then fired three shots, hitting the second victim in the leg three times.
After this incident, Ms. Hamilton posted on SnapChat bragging about shooting the victim and making him beg for his life.
At trial, Ms. Hamilton argued self defense and the jury convicted her.
She was sentenced to 30 years with a 25 year mandatory minimum.
During closing argument, the prosecutor told the jury that the gun wasn’t loaded so it was basically a paperweight.
Defense counsel objected on the basis of mischaracterization.
The Court stated that the jury would decide what the facts were.
On appeal, Ms. Hamilton argues that the state improperly argued that the firearm could not be a deadly weapon.
However, the 1st DCA found that the State did not suggest that an unloaded firearm could not form the basis of a self defense claim, but rather that Ms. Hamilton’s force was disproportionate to the alleged threat.
So, there was no error.
Ms. Hamilton next contended that the State’s argument that she did not call police after she shot the victim shifted the burden.
But the 1st DCA noted that the State did not claim that Ms. Hamilton had any legal duty to call police, but instead argued that if she was really in fear of the victim, she would have called the police.
The Court noted that it is fair to suggest that a person who believes they lawfully shot a person would immediately call the police rather than posting on Snapchat and leaving the scene.
Ms. Hamilton also argued that the State shifted the burden by stating that its witnesses were honest, straightforward, and truthful.
But the 1st DCA again found that Ms. Hamilton mischaracterized the State’s argument.
The prosecutor never said he personally found the witnesses truthful, but rather argued based on the evidence presented that the witnesses were credible and Ms. Hamilton wasn’t.
The Court stated, “This is a conventional, unremarkable assertion that is well within the lawful scope of closing argument.”
So, the Court rejected each of Ms. Hamilton’s claims.
Case Affirmed.

Case #4 – Little v. Gualtieri, No. 2D22-2613 (Fla. 2nd DCA)(Dec. 16, 2022)

Little is a petition for writ of habeas corpus case out of Pinellas County involving detention after revocation of a pretrial release order.
Mr. Little was arrested for felony battery and resisting without violence.
He was released on pretrial conditions that included a condition to wear an alcohol monitoring device.
A few months later, Pretrial Services made an ex parte oral motion to revoke Mr. Little’ s bond based on allegations that he consumed alcohol 15 days earlier.
An emergency duty judge ordered Mr. Little’ s arrest and ordered him held without bond.
Mr. Little turned himself in, was held in custody and was only released after he filed the petition for writ of habeas corpus.
Here, the 2nd DCA denied the petition because it was moot once Mr. Little was released, but still wrote an opinion to explain that it would have granted the petition had it not been moot.
Generally, only the trial judge can modify existing pretrial release conditions.
Rule of Criminal Procedure 3.131 authorizes the trial judge, or the circuit court in the absence of the trial judge, to modify pretrial release conditions and no judge or court of equal or inferior jurisdiction may modify or set a condition of release, unless the judge imposed the convictions, is the chief judge, has been assigned to preside over the criminal trial, or is the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release.
The Rule does not empower an emergency duty judge or any other alternate judge to modify or set a condition of release.
The State argued that a 6th Circuit Administrative Order authorized the emergency duty judge to order Mr. Little’s arrest, but that administrative order is directed at emergencies.
Here, it was alleged that Mr. Little consumed alcohol 15 days before the oral motion was made and therefore, there was no emergency.
So, the 2nd DCA denied the petition as moot but noted it would have granted the petition had Mr. Little still been in custody.
Petition denied as moot.

Case #5 – Phillips v. State, No. 2D22-758 (Fla. 2nd DCA)(December 15, 2022)

Phillips is an increase of sentence during resentencing case out of Hardee County.
Mr. Phillips was convicted of two counts of DUI manslaughter, one count of DUI personal injury and four counts of DUI property damage.
His guideline scoresheet calculated a lowest permissible of life.
The trial court sentenced Mr. Phillips to life in prison on Count I and to a consecutive 15 years on Count II, which was the statutory maximum.
Mr. Phillips filed a 3.850 motion arguing that his trial counsel was ineffective for failing to object to the scoresheet because it incorrectly scored four legal status points and the correct scoresheet would have made him ineligible for a life sentence.
The postconviction court granted his 3.850 motion and the trial court resentenced Mr. Phillips to 20.775 years on Count I, to 20.775 years consecutive on Count II and to 1 year for each of the remaining sentences with one of the counts to run consecutive and the others to run concurrently.
Mr. Phillips filed a 3.800(b)(2) motion arguing that the court lacked authority to modify his sentences on Counts II – VII.
The trial court granted the motion with respect to Counts III – VII, but denied it as to Count II.
Mr. Phillips appealed to the 2nd DCA.
Whether a trial court can increase a sentence that was previously imposed depends on whether the defendant had a legitimate expectation of finality in the sentence.
As a general rule, a legitimate expectation of finality attaches when the sentence is orally pronounced.
A defendant has no legitimate expectation in the finality of a sentence that has been appealed or otherwise challenged.
Florida case law has provided a different framework than the Federal system when determining whether a trial court can increase a sentence on a count not challenged on appeal when the case is before the court for resentencing.
Under federal law, the vacatur of one sentence can reopen the entire sentencing package to effectuate the original sentencing court’s intent.
Under Florida law, a trial court may not increase the sentence on a different count that was not challenged by the defendant.
A defendant who has been sentenced on multiple counts is free to pick and choose which sentences to challenge in a multi count judgment without affecting the finality of the other sentences.
So, the 2nd DCA seemed to reluctantly agree with Mr. Phillips that reversal was appropriate, but seemed to agree with the dissent in theory that Florida should follow the federal sentencing package system that allows a resentencing judge to consider the entire sentencing package and to resentence on all counts.
In his dissent, Judge Stargel wanted to create an exception to the longstanding Florida jurisprudence of separating counts for sentencing purposes.
Judge Stargel believes that there is no legitimate expectation of finality when the sentence is illegal.
And here, the trial judge was forced to sentence Mr. Phillips to a sentence of 15 years on count II which was lower than the lowest permissible sentence of 20.775 only because Mr. Phillips did not appeal that count and because the trial court originally relied on an incorrect guideline calculation.
But, as of now, a trial court cannot increase a sentence on one count when another count is back before the court for resentencing.
Case Reversed and remanded.

Case #6 – State v. Anderson, No. 4D22-171 (Fla. 4th DCA)(December 14, 2022)

Anderson is a downward departure case out of Broward County.
Mr. Anderson, unbeknownst to him, was being followed and surveilled by law enforcement when he pulled into a driveway of a residence.
His co-defendant got out, broke into the house, and came back to the car.
Mr. Anderson drove away and officers stopped the car and arrested Mr. Anderson for burglary of a dwelling and grand theft.
A search of the car revealed $15,000 worth of jewelry taken from the home.
While awaiting trial, Mr. Anderson was convicted of a separate burglary and grand theft in Palm Beach County and sentenced to 2 years in prison.
Mr. Anderson pled to the instant case and requested a downward departure under §921.0026(1) .
Mr. Anderson argued that the offense was committed in an unsophisticated manner, was isolated, and he had shown remorse.
The State objected arguing that the offenses were planned and deliberate, he worked with a co-defendant, waited in the vehicle, committed the offenses during the daytime when homeowners are typically at work or school and the codefendant utilized a tool to break in.
The State also argued that the offense wasn’t isolated because Mr. Anderson had three prior burglary convictions.
The trial court granted the downward departure and the State appealed.
921.0026(1) requires the defendant to prove that the offense was committed in an unsophisticated manner, it was an isolated incident and the defendant has shown remorse. The defendant must show all three.
A crime is committed in an unsophisticated manner when the crime is artless, simple and not refined.
Here, the Court held that the offense was not unsophisticated because they were planned and deliberate; Mr. Anderson worked with a co-defendant who possessed a burglary tool, and Mr. Anderson waited for the co-defendant and acted as a getaway driver.
The Court also found that the crime was not isolated because Mr. Anderson had three prior burglary convictions on three separate occasions.
Case reversed and remanded.