Florida Criminal Law Update (November 21, 2022 - November 23, 2022) — Jacksonville Criminal Lawyer Blog

The “Cite” of the Crime Podcast
CASE SUMMARIES

Florida Criminal Law Update (November 21, 2022 – November 23, 2022)

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

OVERVIEW – 12

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

Case #1 – Edwards v. State, No. 1D21-2838 (Fla. 1st DCA)(November 21, 2022)

Edwards is a self defense immunity case out of Alachua County.
Mr. Edwards got into an argument with his girlfriend’s adult son, who he called his stepson over the stepson taking his car, getting in an accident and leaving the scene.
The two started pushing each other on the front porch, where Mr. Edwards’ girlfriend, the victim’s mother, was watching.
Mr. Edwards walked inside and the stepson followed him inside and the mother lost sight of them for 10–15 seconds.
When the mother walked in, she saw her stepson punch Mr. Edwards in the head.
She reached for her stepson’s shirt to pull him away and realized he had been shot.
She had not heard a gunshot.
Mr. Edwards later testified that the stepson had punched him in the head three times and he shot him in self defense.
Mr. Edwards called 911 but never rendered aid, even though he was a surgical nurse by profession.
Mr. Edwards told the 911 operator that he had been sound asleep when he awoke to his stepson on top of him beating him.
One of the officers at the scene did not see a big goose egg on his head, but a nurse at the hospital did.
A doctor later testified at the immunity hearing that Mr. Edwards had mild, localized bruising.
Mr. Edwards later claimed that the stepson had threatened to kill him, punched him in the head and put a hand over his mouth to prevent him from breathing.
Mr. Edwards was charged with manslaughter and he filed a stand your ground immunity motion under §776.032(1).
The trial court held a hearing and denied the motion.
Mr. Edwards filed a Writ of Prohibition.
There are two paths to seek review of a denial of a self defense immunity motion to dismiss.
For a substantive challenge, the proper vehicle is a writ of prohibition.
For a procedural challenge, the proper vehicle is a writ of certiorari.
Mr. Edwards challenged the trial court’s order on procedural and substantive grounds.
Mr. Edward’s procedural challenge alleged that the trial court misapprehended the burden of proof and shifted the burden to Mr. Edwards.
- Under §776.032(4), once the defendant makes a prima facie claim of self defense at a pretrial immunity hearing, the burden of proof by clear and convincing evidence shifts to the prosecution.
- Here, the trial court stated that it was interested in hearing from Mr. Edwards.
- On appeal, Mr. Edwards argues that this was improper burden shifting.
- However, Mr. Edwards had the initial burden to establish a prima facie case, where he could choose to present evidence or testimony.
- While the trial court explained how Mr. Edward’s testimony could help resolve conflicts in the testimony, the trial court also ensured that Mr. Edwards understood it was his decision whether to testify or not.
- The trial court never told Mr. Edwards that he must testify.
- Under these facts, the 1st DCA held that the trial court did not commit procedural error.
The Court next turned to Mr. Edwards substantive argument that the State did not meet its burden by clear and convincing evidence.
- A burden shifts to the State to overcome a defendant’s self defense immunity claim only after the defendant makes a prima facie claim of self defense immunity.
- To establish a prima facie claim, the defendant must establish the elements of justifiable force.
- A conclusory allegation is not enough.
- The defendant must allege specific facts that show or tend to show that he used deadly force, reasonably believed deadly force was necessary to prevent imminent death or great bodily harm to himself or another, used such deadly force while resisting the victim’s attempt to murder him, to commit a forcible felony on him, or to commit a forcible felony on or in Edwards’ dwelling, and was not otherwise engaged in criminal activity and was in a place he had a right to be.
- Mr. Edwards simply presented an unsworn motion to establish his prima facie case.
  - The Court noted that it is questionable whether this was sufficient to shift the burden to the State because unsworn allegations lack evidentiary value.
  - But the State didn’t challenge whether Mr. Edwards established a prima facie case, so the 1st DCA didn’t address it and left it for another day.
  - So, there is a real question whether an unsworn motion to dismiss will be sufficient to shift the burden of proof to the state. The better practice is to submit a sworn affidavit with the motion alleging specific facts and/or presenting witness testimony at the hearing.
- So, the 1st DCA moved on to the substantive argument that the State didn’t meet its burden.
  - The Court first looked at whether competent, substantial evidence supported the trial court’s factual findings and next reviewed de novo whether the State proved by clear and convincing evidence that Mr. Edwards did not have an objectively reasonable belief that he faced imminent threat of great bodily injury or death.
  - Substantial evidence is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion and evidence is competent if it is sufficiently relevant and material.
  - Evidence is clear and convincing when the truth of the facts asserted is highly probable or when the evidence is credible, the witnesses distinctly remember the facts, and the testimony is precise and explicit.
- The Court first noted that the appellate record lacked several key pieces of evidence including photographs and audio recordings.
- The Court next looked at the trial court’s factual findings.
- The trial court found that Mr. Edwards left several degrading messages for his stepson, laughed at his stepson’s hurt feeling showing he wasn’t afraid of him; Mr. Edwards and the stepson had been drinking; the stepson wrecked Mr. Edwards car and Mr. Edwards was irate; Mr. Edwards and the stepson grabbed and pulled each other in a physical altercation; Mr. Edwards went inside and the stepson followed; mr. Edwards kept a gun in a locked case by his bed; the stepson struck Mr. Edwards and Mr. Edwards shot the stepson at point blank range; it was more likely that the shot occurred before the mother walked in; it was more likely that the shot occurred before the punching occurred; Mr. Edwards 911 demeanor was inconsistent with self defense; Mr. Edwards, a surgical nurse rendered no first aid; there was no history of violence between Mr. Edwards and his stepson; Mr. Edwards was 300 pounds and the stepson was 160 pounds; the stepson was not particularly physically fit and had injured his shoulder in the car accident and Mr. Edwards had an injured hand.
The 1st DCA held that competent, substantial evidence supported the trial court’s finding that Mr. Edwards shot his stepson before the mother entered the room and before the stepson struck Mr. Edwards.
- The Court noted that the first officer didn’t see a goose egg on Mr. Edwards head, which developed later at the hospital and the medical examiner testified that generally goose eggs show up pretty fast.
- A testifying doctor didn’t consider Mr. Edwards injuries to be significant.
- Mr. Edwards didn’t tell the doctor that the stepson smothered him.
- The Court stated that not every blow to the head is deadly and not every fist fight justifies defending oneself with deadly force.
- Here, the Court noted that Mr. Edwards and the stepson knew each other, the stepson had free access to the trailer, their interaction was frequent, Mr. Edwards knew his stepson’s behaviors and tendencies; Mr. Edwards was half the stepson’s size; there was no history of violence; the stepson never threatened Mr. Edwards; had no specialized fighting knowledge; had just injured his shoulder; and Mr. Edwards had been aggressive; left explicit degrading messages, and laughed at the stepson when he discovered the stepson was hurt by the messages.
- Based on these facts, the 1st DCA found that the State met its burden.
But, Judge Thomas gave an interesting dissent that is worth a mention.
- Judge Thomas believes the majority misapplied the burden of proof and resorted to the old law before it was amended in 2017.
- Judge Thomas believes the majority improperly applied a heightened standard because the victim was the stepson of Mr. Edwards.
- In Judge Thomas’ view, the undisputed facts showed that the victim repeatedly punched Mr. Edwards in the head and Mr. Edwards shot him, which is lawful self defense.
- Judge Thomas also noted, which was conspicuously absent from the majority opinion, that Mr. Edwards was obese, 61 years old, had a hip replacement, high blood pressure, and other medical issues, while the stepson was 24 years young and had a bac almost three times the legal limit.
- Judge Thomas also noted that one punch could inflict serious brain injury, especially on an older person with medical issues.
- The Judge read the majority’s decision as requiring a person to wait until great bodily harm or death was actually inflicted, which is not what the law requires.
- Judge Thomas noted that §776.032(4) requires the State to disprove self-defense immunity.
- He also noted that there is no legal or moral requirement for a victim of an attack to render aid to the attacker when self defense is used.
- Judge Thomas also discounted Mr. Edwards lie during the 911 call as a reasonable fear of a person who just shot a person in self defense but unaware of the legal ramifications.
- In Judge Thomas’ view, once the stepson attacked Mr. Edwards’ in Mr. Edwards home, any previous invitation was rescinded and therefore the stepson was committing the forcible felony of burglary with an assault and therefore Mr. Edwards was justified in using deadly force to resist that forcible felony.
- But even if it wasn’t a burglary with assault, Judge Thomas believes that Mr. Edwards was immune from prosecution under §776.032(1) because the State did not prove by clear and convincing evidence that he was not in reasonable fear of great bodily harm or death.
At any rate, the petition was denied and self defense immunity motions to dismiss just got a little more difficult in the 1st DCA.
Petition denied.

Case #2 – Spurling v. State, No. 1D22-765 (Fla. 1st DCA)(November 23, 2022)

Spurling is a 3.800(a) motion to correct illegal sentence on an habitual felony offender (or HFO) case out of Duval County.
Mr. Spurling received a withhold of adjudication on an unemployment compensation fraud case in 2006 and he was placed on probation.
In 2015, he was placed on probation for elderly neglect.
Later in 2015, Mr. Spurling was arrested on a new offense of threatening to throw a destructive device and giving false name to law enforcement.
Mr. Spurling was sentenced for violating his 2015 elderly neglect probation and for committing the new offense of threatening to throw a destructive device on the same day and he was sentenced to 30 years in prison as an habitual felony offender on the new case.
On appeal, Mr. Spurling argues that the trial court erred in using his elderly neglect conviction as a qualifying predicate for his habitual felony offender status because he was sentenced to that predicate offense on the same day as the HFO sentence.
§775.084(1), the HFO statute, requires the State to prove that the defendant has been previously convicted of two or more felonies.
Under §775.084(5), in order to to be counted as a prior felony for HFO purposes, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.
The State must also prove that the current felony was committed within 5 years of the date of conviction of the defendant’s last prior felony or within 5 years of the defendant’s release from a prison sentence imposed as a result of a prior conviction for a felony or other qualified offense.
The State must also show the defendant hasn’t received a pardon or that the conviction wasn’t set aside.
If the State satisfies those requirements, the trial court must sentence the defendant as an habitual felony offender unless it provides a written finding that it is not necessary for the protection of the public.
In State v. Richardson, the Florida Supreme Court held that a sentence of probation or community control can serve as a predicate conviction for purposes of habitualization.
This is true even when the HFO sentence is imposed at the same time as the violation of probation sentence.
Here, Mr. Spurling was convicted of two predicate felonies prior to his current offense where he was designated as an habitual felony offender.
So, even though the trial court originally sentenced Mr. Spurling to probation on the elderly neglect case and then revoked his probation and sentenced him to prison on the same day he sentenced him on the HFO case, it is the original withhold and sentence to probation that makes the elderly neglect case a qualifying predicate offense for HFO purposes.
Case affirmed.

Case #3 – Stevens v. State, No. 1D21-2691 (Fla. 1st DCA)(November 23, 2022)

Stevens is a child sex case out of Santa Rose County where the child victim repudiated out of court statements.
Mr. Stevens was charged with three counts of capital sexual battery on a 3 year old.
Count III alleged penile-vaginal union.
At trial, the child, who was now 5 years old, could not identify Mr. Stevens who was a close relative, and testified that he would bathe her and licked her butt and no-no spot, but she did not ever see his penis only his tongue touched her vagina.
The child’s mother testified at trial that she started noticing redness in the child’s vaginal area and the child was experiencing itching there.
The mother used traditional ailments, but the redness and itchiness didn’t go away.
When she asked her daughter if anyone had looked at her vaginal area, the child said that Mr. Stevens had looked at and licked her vagina.
The mother reported the abuse to law enforcement and a child protection team conducted a forensic interview where the child stated that Mr. Stevens licked her vagina and buttocks and touched her vagina with his penis.
A nurse practitioner testified that the child told her that Mr. Stevens’ penis got stuck in her vagina and there was redness on her inner labia that could have been caused by the actions described by the child.
At the close of the State’s case, Mr. Stevens moved for a judgment of acquittal on the grounds that the child denied any penile-vaginal union, which was required for conviction.
The trial court denied the motion.
§794.011(2)(a) requires the State to prove:
- 1) Mr. Stevens committed an act on the victim in which his sexual organ had union with the victim’s vagina,
- 2) the victim was younger than 12 years of age at the time of the offense, and
- 3) Mr. Stevens was 18 or older at the time of the offense.
Mr. Stevens argues on appeal that the child’s out of court statements alone cannot support his conviction.
The child’s out of court statements were admitted under §90.803(23), which provides a hearsay exception in the case of a child victim of abuse and provides for the admission of those statements as evidence.
To be admissible, the source of the information through which the statement was reported must be trustworthy and the time, content, and circumstances of the statement must reflect that the statement is reliable.
The Florida Supreme Court, in State v. Townsend provided factors to be considered: the statement’s spontaneity, whether the statement was made at the first available opportunity following the alleged incident, whether the statement was elicited in response to questions from adults; the mental state of the child when the abuse was reported; whether the statement consisted of a child-like description of the act; whether the child used terminology unexpected of a child of similar age; the motive or lack thereof to fabricate the statement; the ability of the child to distinguish between reality and fantasy; the vagueness of the accusations; the possibility of any improper influence on the child by participants involved in a domestic dispute; and contradictions in the accusation.
The Florida Supreme Court held in Beber v. State that if a child victim later repudiates a prior out of court statement, that statement standing alone is insufficient to prove guilt beyond a reasonable doubt.
Later, in Baugh v. State, the Florida Supreme Court held that recanted statements can sustain a sexual battery conviction when other proper corroborating evidence is admitted.
But here, the 1st DCA found that Beber and Baugh were distinguishable because the child victim in this case did not totally repudiate her prior out of court statements. And even if she did, other evidence corroborated those out of court statements.
The Court relied on its prior decision in Godbolt v. State where it held that a child victim did not completely repudiate or recant prior out of court statements where the child reaffirmed the truth of the prior statements and did not testify that she made them up.
Here, the child victim testified with inconsistencies between her out of court statements and trial statements, but a jury could reasonably conclude that her trial testimony was based on limitations on ability to recall events that occurred when she was 3 years old.
The Court noted that children do not retain details for a long time, which is why forensic interviews are conducted.
The child was extremely distressed at trial, had trouble answering straightforward questions, was nervous, did not want to point to where her butt was and testified that she couldn’t remember anything else happening.
This, in the view of the 1st DCA, was not a total repudiation of her prior out of court statements.
But even if it was a total repudiation, the 1st DCA found that the State presented enough competent, substantial evidence to corroborate the out of court statements.
The child had redness, irritation and itchiness which standard remedies failed to cure; the redness was on the inner labia which the nurse testified was consistent with penile-vaginal contact; the child had never been exposed to sexually explicit material and knowledge of events she described could only have come from Mr. Stevens based on the testimony of the mother, and Mr. Stevens was the only male in the home.
Based on these facts, the out of court statements along with the corroboration was sufficient to support conviction despite the victim testifying at trial that Mr. Stevens did not make union with his sexual organ with her vagina.
Case Affirmed.

Case #4 – Terry v. State, No. 1D21-1933 (Fla. 1st DCA)(November 23, 2022)

Terry is a preservation of a jury selection cause challenge case out of Duval county.
Mr. Terry was on trial for first degree murder.
During jury selection, the State moved to strike a prospective juror arguing that she could not be fair and impartial. The defense objected, arguing that she had been rehabilitated.
The trial court granted the cause challenge.
The State later used a peremptory challenge on another prospective juror and Mr. Terry objected. The trial court again granted the strike over objection.
Both the State and the defense then accepted the jury and Mr. Terry stated he was satisfied with the jury and his attorney accepted the jury.
After Mr. Terry was convicted at trial, his attorney moved for a new trial based on the granting of the peremptory strike. The motion was denied.
To preserve an objection on a voir dire challenge, the objecting party must renew the objection before the jury is sworn.
Here, Mr. Terry’s attorney accepted the jury without renewing his initial objections and therefore failed to preserve the issues on appeal.
Case Affirmed.

Case #5 – Thomas v. State, No. 1D20-2260 (Fla. 1st DCA)(November 22, 2022)

Thomas is a murder case with several issues out of Duval County.
Mr. Thomas was charged with walking into a house with a gun and shooting several people, including an 18 year old victim who died.
One of the surviving victims recognized him from social media and a YouTube music video that he was in.
Mr. Thomas was read his Miranda rights and then confronted with several lies during his interrogation where he stated he didn’t have a Facebook page and that he was at his girlfriend’s house at the time of the shooting.
Mr. Thomas told the detectives he didn’t want to talk anymore and the interrogation ceased.
Defense counsel deposed the surviving victim and a couple months later, she was shot 14 times while sitting in a car.
The victim survived and ID’d Caleb Sheffield as the shooter, but it was later determined that Mr. Sheffield was out of town at the time.
The State obtained evidence from Mr. Thomas’ messages sent from jail that suggested he arranged to have the victim killed to prevent her from testifying against him, so the State added a charge of witness tampering.
Mr. Thomas’ attorney deposed the victim a second time where the attorney asked the victim about the second shooting and her identification of Caleb Sheffield.
The victim stated that someone else in the car told her it was Caleb Sheffield and that’s why she ID’d him.
Mr. Thomas moved to compel discovery related to the second shooting and requested all statements made about Caleb Sheffield.
At a hearing, the trial court ruled that the defense could question the victim about her misidentification of Caleb Sheffield, but the defense could not introduce any extrinsic evidence because it was impeachment on a collateral matter.
So, the defense would have to accept the victim’s answers.
The trial court also denied Mr. Thomas’ request for discovery on the second shooting because the defense already deposed the victim on that shooting and other information was not relevant to impeaching her and was unlikely to lead to admissible evidence.
The defense also filed a motion to determine competency and a motion to suppress Mr. Thomas’ statements.
The trial court granted the motion to determine competency but then never held a hearing or issued a competency order.
The trial court denied the motion to suppress after a hearing.
A jury ultimately convicted Mr. Thomas.
Mr. Thomas’ lowest permissible sentence was 286.5 months and the trial court sentenced him to life in prison.
On appeal, the State conceded error on the competency issue and the 1st DCA remanded for the trial court to hold a nunc pro tunc competency hearing to determine whether Mr. Thomas was competent at the time of trial.
- If the trial court determines he was competent at the time, it should issue a written order nunc pro tunc with no change to the judgment.
As for the motion to suppress statements, the 1st DCA found that there was competent, substantial evidence to support the trial court’s factual findings.
- In this case, the entire interrogation was video recorded, so the appellate court applies a less deferential standard.
- Even so, the 1st DCA determined that Mr. Thomas validly waived his Miranda rights.
- The police never told him he was not under arrest, did not question him before delivering Miranda, confirmed that he could read and write English, had a 12 grade education,confirmed he wasn’t under the influence of alcohol or drugs and had never seen a mental health counselor, had him sign a written rights form.
- Also, Mr. Thomas had been informed of his Miranda rights during an interrogation on a different matter.
- Mr. Thomas argued that his consent was the result of police intimidation, coercion or deception because the officer told him to just give a verbal yes that he understood his rights, and therefore did not give him the option of saying he didn’t understand.
- But the 1st DCA noted that the officer repeatedly asked if Mr. Thomas understood, to which he could have answered “no.”
- And when the officer said, “just sign on it there fore me if you don’t mind” was not an order in the context of the entire interview.
- Mr. Thomas also argued that when detectives told him that he was not required to consent to a search of his backpack, that he didn’t realize he had the option to refuse consent.
- But the 1st DCA held that this argument was inconsistent with the facts.
- Mr Thomas refused consent to take his DNA which showed he was aware of his right to refuse consent.
- And he initially consented to DNA and then changed his mind which shows he understood his right to refuse consent and his right to revoke consent
- And Mr. Thomas eventually exercised his right to remain silent after he realized he was making incriminating statements.
- Thus, the 1st DCA held that the waiver was knowing, intelligent, and voluntary.
Mr. Thomas also argued on appeal that the trial court erred by denying his motion for additional evidence and Brady evidence related to the second shooting.
- However, the Brady rule only applies to the discovery, after trial, or information which had been known to the prosecution and unknown to the defense.
- Here, the defense knew of the information it sought.
- And a Brady violation doesn’t apply to a trial court’s denial of a motion to compel discovery.
- Here, Mr. Thomas already received information on the second shooting and her misidentification through the second deposition.
- And the denial of the motion to compel was appropriate because Mr. Thomas already received the evidence he needed to impeach the victim through the second deposition and the defense used that information during cross examination.
- And the trial court did not err in not conducting an in camera review of the requested material because Mr. Thomas never requested an in camera review and therefore the issue wasn’t preserved.
Because there was not multiple errors, there was no cumulative error.
Mr. Thomas also alleged three sentencing errors.
- He alleged that the trial court erred in applying a Domestic Violence Trust Fund surcharge under §938.08 and a Rape Crisis Program Trust surcharge under §938.085 because he was not found guilty of one of the enumerated offenses listed in those statutes.
- Mr. Thomas was convicted of armed burglary with assault or battery under §810.02(2).
- Armed burglary is not an enumerated offense, but assault and battery are.
- The State argued that the jury found Mr. Thomas guilty of all of the elements of assault when it found him guilty of armed burglary with assault and therefore the surcharges should apply.
- The 1st DCA found that §938.085 does not authorize the surcharge for a conviction of burglary with a battery; he didn’t commit a crime of domestic violence and he didn’t commit an enumerated offense under §938.08 or §938.085, so the Court vacated the sentencing order as to those two surcharges.
- Mr. Thomas also filed a 3.800(b) motion arguing that the trial court improperly scored the first degree murder offense on his scoresheet.
- The State conceded error as §921.002 states that the Criminal Punishment Code shall apply to all felony offenses except capital felonies.
- But here, the State argued that it was harmless error and the 1st DCA agreed.
- Under the corrected scoresheet the lowest permissible sentence was 243 months as opposed to 286.5 months.
- But because the trial court sentenced Mr. Thomas to life plus 1,140, most of which was consecutive, the lowest permissible sentence played no part in the sentence and therefore any error was harmless.
Case Reversed and Remanded.

Case #6 – Tyson v. State, No. 1D21-2178 (Fla. 1st DCA)(November 23, 2022)

Tyson is an exceeding the scope of a search warrant case out of Escambia County.
Law enforcement conducted four controlled buys at Mr. Tyson’s residence.
The residence had one house number and mailbox and property records indicated it was a single family home.
During the controlled buys, Mr. Wilson would exit a side door to sell the drugs and then would walk through the yard and renter through the home’s front door.
Officers obtained a search warrant and when they went to execute the warrant they observed a wall constructed within the residence that partitioned one bedroom and bathroom from the rest of the house.
That bedroom and bathroom was only accessible through the residence side door.
Officers searched the entire residence including the partitioned bedroom and bathroom and they discovered methamphetamine.
Mr. Tyson was charged with possession with intent to distribute methamphetamine.
Mr. Tyson filed a motion to suppress the meth arguing that the unit was a multi-unit dwelling that required a second warrant to search the partitioned bedroom and bathroom.
The trial court denied the motion and Mr. Tyson entered a plea of no contest reserving his right to appeal.
On appeal, the 1st DCA determined whether the partitioned bedroom and bathroom were inclusive with the rest of the residence and if not, whether the officers search was still valid under the circumstances.
When executing a search warrant, officers may not search a separate dwelling unit that exists on the premises but is not separately identified in the warrant.
Under the U.S. Supreme Court decision in United States v. Garrison, when officers know or should know that the premises described in the warrant actually constitute two separate dwellings, they should only search the dwelling for a person being investigated pursuant to the warrant.
In addressing whether the residence was a multi-unit dwelling or a single-unit dwelling, the 1st DCA noted that there was no Florida case law that has developed any test.
The Court looked to federal cases that have addressed the issue and determined that it was a fact intensive and situation specific determination with no bright line standard.
The 1st DCA adopted the “equipped for independent living” analysis detailed in several federal cases where the court looks at whether the unit is comprised of more than one residence, each of which bears the hallmarks of being truly distinct and independent from the others.
The Court looks to indicators like separate street numbers, doorbells, mailboxes, utilities, exterior entrances, kitchens, and bathrooms.
The greater the number of distinct identifying features, the more likely it is that the two units are equipped for independent living where officers would need separate warrants for each unit.
Here, the bedroom and bathroom were walled off from the rest of the residence, but there was a single address, it was listed as a single family unit with the property appraiser, there was a single mailbox, there was only one kitchen and therefore the partitioned bedroom and bathroom was not an independent living unit distinct from the rest of the house.
Therefore the officers did not need a separate warrant to search it.
But the 1st DCA went one step further and held that even if there were two distinct living units, the motion to suppress should still have been denied because the general rule that a warrant should describe the particular section to be searched in a multiple unit building does not apply where the suspect controls the entire premises or where the premises extending beyond a single unit are also suspect and are covered by the warrant.
Here, the officers had probable cause that the controlled substances were in the partitioned bedroom and bathroom because officers observed Mr. Wilson using that portion of the residence.
They also could reasonably conclude that he had dominion over that portion of the residence.
So, even if it was a multi-unit under Garrison, officers didn’t need a second warrant.
Case Affirmed.

Case #7 – State v. Williams, No. 2D21-3755 (Fla. 2nd DCA)(November 23, 2022)

Williams is a withhold of adjudication on a fleeing case out of Sarasota County.
Mr. Williams was charged with fleeing and attempting to elude a law enforcement officer.
He pled no contest and the trial court withheld adjudication.
§316.1935(6) expressly prohibits a trial court from withholding adjudication on fleeing and attempting to elude offenses.
Because this was an illegal sentence, the 2nd DCA reversed and remanded.
The State also appealed the trial court’s downward departure on a separate case of burglary, possession of burglary tools, resisting without violence and loitering.
However, because the State did not appeal the judgment and sentence in that case, the 2nd DCA determined that the issue was not before it.
Case affirmed in part, reversed in part, and remanded.

Case #8 – Mays & Smith v. State, Nos. 3D20-1527; 1821 (Fla. 3rd DCA)(November 23, 2022)

Mays & Smith is a consolidated appeal from two defendants on an attempted murder case involving a race neutral juror strike out of Miami-Dade County.
During voir dire, the defense asked the panel if anyone there wanted to serve on the jury.
One juror answered that she did want to serve on the jury because she was black and she only observed 4 other black jurors out of 39.
The State moved to strike her for cause and the trial court denied the strike.
The State then sought to use a peremptory strike on the juror.
Defense counsel asked for a race neutral reason and the State responded that it was because of her statement that she would be terrified if she had a jury that did not look like her.
The trial court determined that the State’s reason was race neutral and genuine and allowed the strike.
The State sought to strike every black juror on the venire.
Both defendants were convicted at trial.
Peremptory challenges are presumed to be exercised in a non discriminatory manner.
The Florida Supreme Court laid out factors to consider when determining whether a proffered race neutral reason is pretextual in State v. Slappy.
- 1) alleged group bias not shown to be shared by the juror in question
- 2) failure to examine the juror or perfunctory examination, assuming neither the trial court nor opposing counsel had questioned the juror,
- 3) singling the juror out for special questioning designed to evoke a certain response,
- 4) the prosecutor’s reason is unrelated to the facts of the case, and
- 5) a challenge based on reasons equally applicable to jurors who were not challenged.
The Florida Supreme Court then developed a three step procedure in Melbourne v. State where the party objecting to the peremptory on racial grounds must make a timely objection, show that the potential juror is a member of a distinct racial group and request the court to ask the striking party its reason for the strike.
- Next, the burden of production shifts to the proponent of the strike to come forward with a race neutral reason for the strike.
- And finally, the trial court must determine whether the reason was race neutral and genuine.
- If the explanation is facially race neutral and the court believes it is not a pretext, it will sustain the strike.
Here, the 3rd DCA focused on the genuineness of the State’s reason.
- The Court found that the trial court erroneously focused on the juror’s comments instead of the surrounding circumstances.
- The 3rd DCA determined that the juror’s statement that she would feel terrified to see a majority white jury rather than a fair representation of the community was a reasonable response to the defense attorney’s question.
- The trial court failed to look at other factors like the State’s clear exclusion of black jurors by seeking to strike all of the black jurors.
- The 3rd DCA went on to state that the State failed to question the juror about her motivations for her comments.
So, based on record of pattern exclusion of black jurors and the State’s thin rationale for the strike, the trial court erred in granting the peremptory strike.
Case Reversed and Remanded.

Case #9 – McClenney v. State, No. 3D22-198 (Fla. 3rd DCA)(November 23, 2022)

McClenney is a summary denial of a 3.850 motion case out of Miami-Dade County.
Mr. McClenney claimed in his 3.850 motion that his trial counsel was ineffective for advising him against testifying.
The 6th Amendment guarantees the right to effective assistance of counsel and imposes a duty on defense counsel to advise the client.
That duty extends to providing advice regarding a client’s decision to testify or not to testify.
In this case, Mr. McClenney’s attorney testified at a hearing that he had lengthy discussions with Mr. McClenney and advised him not to testify for strategic reasons.
The trial court found the attorney credible and denied the motion.
The trial court had conducted a colloquy with Mr. McClenney and a trial court does not have an affirmative duty to make a record inquiry concerning a defendant’s waiver of his right to testify.
A defendant has ultimate authority to make certain decisions in his case – whether to plead guilty, whether to waive a jury, whether to testify, whether to take an appeal and whether to assert innocence as a defense.
And a defendant is bound by his answers under oath when responding to the court’s questions.
Here, during a colloquy, Mr. McClenney stated that he was knowingly and voluntarily waiving his right to testify and he is bound by those answers.
The 3rd DCA did write to stress to trial courts the importance of advising a defendant of his right to testify or not to testify and that a trial court should discuss with the state and defense how many impeachable offenses the defendant has and then to discuss how those prior convictions can and cannot be used to impeach the defendant.
I guess the 3rd DCA is tired of getting 3.850 appeals where a defendant alleges his attorney failed to advise him that he would be impeached with prior convictions.
Case Affirmed.

Case #10 – Barker v. State, No. 4D21-2575 (Fla. 4th DCA)(November 23, 2022)

Barker is a restitution case out of St. Lucie County.
Ms. Barker pled guilty to fraudulent use of a credit card.
Ms. Barker was asked by her neighbor to help with bills while she was traveling.
Ms. Barker wrote a check for $2,000 to the IRS and a check to an individual for $1,005.71 that the victim said was not authorized.
On appeal, Ms. Barker argued that the State failed to submit evidence that the two checks were for the defendant’s benefit and therefore the trial court should not have ordered $3,005.71 in restitution.
A restitution order must be supported by competent, substantial evidence.
Under §775.089(7)(c),the State bears the burden by a preponderance of the evidence to prove the amount of loss.
Ms. Barker relied on Henry v. State where the 4th DCA overturned a restitution finding based on documentary evidence consisting of financial data, but no witnesses were called, and the State failed to establish the impropriety of each expenditure.
Here, the victim testified that the checks were written without her consent and the payments did not benefit her, so the 4th DCA found Henry inapplicable.
The 4th DCA did reverse based on the trial court’s imposition of a 5 percent surcharge under §938.04 because no fine was imposed and therefore the surcharge was incorrectly assessed.
Case affirmed in part and reversed in part.

Case #11 – Goldbach v. State, No. 4D21-3545 (Fla. 4th DCA)(November 23, 2022)

Goldbach is a golden rule violation case out of Broward County.
Mr. Goldbach was charged with DUI.
During voir dire, the prosecutor asked the venire about Florida’s implied consent law.
During the questioning, the prosecutor asked jurors how important their driver’s license was to them.
Mr. Goldbach’ s attorney objected, arguing the prosecutor’s comments violated the golden rule.
The trial court sustained the objection.
The prosecutor then continued by asking jurors how much they would sell the prosecutor their license for? $5,000? $50,000? $500,000?
And then asking if jurors lied to their boss about having a fever and then running into the boss who asked them to take their temperature and whether the jurors would allow the boss to take their temperature knowing they would lose their job.
The prosecutor then stated, “That’s consciousness of guilt.”
Then in closing argument the prosecutor again raised the temperature check example and defense counsel objected arguing a golden rule violation.
The trial court again sustained the objection.
Defense counsel moved for a mistrial which was denied.
The prosecutor then brought up the driver’s license for sale example by saying, “we talked during jury selection about the devastating results of possibly losing your driver’s license. And we had a bid war, an auction going on, and I went all the way up to $500,000.
Defense counsel again objected and the trial court overruled the objection .
So, the prosecutor kept going stating that the defendant gave up his license for zero dollars and nobody paid him $5,000 which shows consciousness of guilt.
Defense counsel renewed the motion for mistrial which was denied.
Mr. Goldbach was convicted and his attorney filed a motion for a new trial based on the golden rule violation. That motion was denied.
Although the most common golden rule violation happens when the state asks jurors to put themselves in the victim’s position, a golden rule violation can also occur anytime a party asks a juror to place himself in any party’s position to decide the case on personal bias, rather than the evidence.
Here, the State linked its voir dire with closing argument through a common theme of asking jurors to put themselves in the defendant’s position by contrasting the jurors’ unwillingness to lose their driver’s licenses with the defendant’s willingness to lose his.
The 4th DCA held that these comments were clear golden rule violations.
And although the trial court initially properly sustained Mr. Goldbach’s objections, but for some reason ultimately overruled those objections creating error.
However, in the 4th DCA’s view, the error was harmless because the comments did not become a feature of the trial and would not have distracted the jury from reasonably determining whether Mr. Goldbach was guilty of DUI based on the witness testimony and video evidence.
And it appears the 4th DCA wrote an opinion in this case simply to remind counsel that the purpose of voir dire is not to preview the arguments that will be made later in the trial and to highlight golden rule violations so they don’t happen in the future.
But that doesn’t help Mr. Goldbach.
Case Affirmed.

Case #12 – State v. Janes, No. 5D21-1834 (Fla. 5th DCA)(November 21, 2022)

Janes is a resentencing case out of Orange County.
Mr. Janes was found guilty of ten counts of child sex crimes.
He was sentenced to 60 years in prison and his appeal was affirmed.
Mr. Janes filed a 3.800(a) motion challenging the legality of Counts 6, 10, and 11 because the sentence exceeded the statutory maximum.
Also, the written order of 80 years differed from the 60 year sentence that was orally pronounced.
Additionally, the trial court failed to pronounce any sentence on Count 7, but it was included in the written order.
The post conviction court granted Mr. Janes motion to correct sentence as to Counts 6 and 11.
Mr. Janes was later resentenced in front of a different post conviction judge.
The State conceded that Mr. Janes should also be resentenced on counts 8 and 10 even though they were not listed in the post conviction order.
At a resentencing hearing and over the State’s objection, the post conviction court changed Counts 2, 3, and 9 from 15 years in prison to 15 years probation and Count’s 4 and 5 to unspecified terms of sex offender probation.
On appeal, the State argues that while the trial court could resentence Mr. Janes in a de novo fashion on the counts that were illegal and subject to the post conviction order, the trial court had no jurisdiction to amend the counts that were not illegal and not part of the postconviction order.
Under Rule 3.800(a) and (c), while an illegal sentence can be corrected at any time, a court loses jurisdiction to modify a legal sentence after sixty days have passed since its imposition.
A Rule 3.800(a) motion does not provide a court with jurisdiction to modify a legal sentence imposed on a count, even if the sentence for another count was found to be illegal.
When a court is without jurisdiction to impose a sentence, the imposed sentence is illegal.
Case reversed and remanded.