Florida District Court of Appeals Criminal Law Update (January 16, 2023 - January 20, 2023) — Jacksonville Criminal Lawyer Blog

The “Cite” of the Crime Podcast
CASE SUMMARIES

Florida Criminal Law Update (January 16, 2023 – January 20, 2023)

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

OVERVIEW –

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

We have 8 cases to talk about this week, including a discussion about alligator eggs, edited facial tattoos, lesser included offenses, zoom hearings, lack of remorse at sentencing and more.

Case #01 – Beasley v. State, No. 2D19-4257 (Fla. 2nd DCA)(January 20, 2023)

Beasley is a quirky case out of DeSoto County about the laundering of alligator eggs and the RICO statute.
Florida Fish and Wildlife was running an undercover operation to expose the illegal harvesting and sale of alligator eggs. Who knew that was a thing.
Mr. Beasley worked for Robert Albritton, an alligator egg harvester.
Mr. Albritton had a license and permit to collect alligator eggs on certain public and private lands.
Mr. Albritton was accused of collecting eggs on properties not covered by the permits, during times not covered by the permits, and collecting eggs without permits.
And it was all part of a conspiracy where he, and others including Mr. Beasley, was collecting as many alligator eggs as possible to sell to an alligator farm in Louisiana for as much profit for Mr. Albritton as possible.
Mr. Beasley was charged with Conspiracy to commit racketeering and possessing or capturing alligators or alligator eggs.
He was convicted after a trial and sentenced to 11 months and 29 days in jail, which was a downward departure.
On appeal, Mr. Beasley argued that the evidence wasn’t sufficient to convict him of conspiracy because theft of alligator eggs is not a qualifying predicate offense.
- And the 2nd DCA agreed with him. The only problem is that the Court did find that there was another predicate offense that was proven.
- Conspiracy to commit racketeering requires that the defendant know of the overall objectives of the criminal enterprise and agree to further its purpose or the defendant personally committed at least two predicate acts.
- Theft, which is an enumerated predicate offense, wasn’t a proper predicate offense in this case because you cannot steal alligator eggs; they are not owned by private individuals or the state, and therefore they are not the property of another, as is required under the theft statute.
- And the conspiracy statute doesn’t list illegal harvesting of alligator eggs as a predicate offense. At least it didn’t at the time of Mr. Beasley’s offense.
- But, the State alleged and proved that Mr. Albritton committed forgery during the conspiracy and therefore, forgery, which is an enumerated predicate offense under the conspiracy statute, served as a proper predicate act here.
- The forgeries came from Mr. Albritton falsifying documents to represent that the eggs came from lands covered by the permits, when in fact, they did not.
- And the evidence established that Mr. Beasley was aware of the forged documents because he transported the eggs with those forged documents.
- Therefore, the evidence was sufficient to prove Mr. Beasley committed conspiracy.
Mr. Beasley’s next argument was that the jury instructions were incomplete, misleading and confusing because they didn’t address the Florida Fish and Wildlife licensing and permit regulations that Mr. Beasley was accused of violating.
- Mr. Beasley argued that the 2nd DCA’s decision in Nichols v. State was controlling, but the 2nd DCA distinguished Nichols finding that the trial court in Nichols did give instructions regarding an administrative code, but then failed to provide the important part to that code “unless authorized,” which then provided an incomplete, misleading and confusing explanation of the law.
- Here, Mr. Beasly did not request a jury instruction explaining any licensing or permit rule at the trial level, so the trial court didn’t give any instructions on them, and therefore, the instructions were not misleading or incomplete.
- In other words, if he doesn’t ask for instructions, he can’t complain. If he had asked for instructions on the permitting rules and the trial court provided them, but those instructions were incomplete, then he would have a viable appellate issue.
0 for 2, Mr. Beasley then turned to his third argument, that §379.409 the alligator egg statute, is preempted by §379.3751(4), another alligator egg statute.
But, Mr. Beasley didn’t raise this issue at the trial court level because he argued a due process violation from a conflict in those two statutes, but never said the words preemption. The appellate courts are really tough on issue preservation.
- But regardless, the 2nd DCA said, “hey, there can be two statutes regulating the same conduct. No problem.” Many statutes overlap and vary their penalties. And multiple sentences are even allowed for conduct arising from the same incident. It is within the prosecutor’s discretion to decide which statute to use.
- So, Mr. Beasley’s preemption argument failed.
Mr. Beasley next argued that §379.409 is unconstitutional because it is an improper delegation of the legislature’s power to Florida Fish and Wildlife. This is an interesting issue that is being litigated in courts all around the nation up to the U.S. Supreme Court on various delegations of power to administrative agencies. For example, the bump stock cases where ATF after years of saying bump stocks did not fall under the federal definition of machine gun unilaterally changed its mind and then overnight made bump stocks illegal. Then the 5th Circuit said, no you can’t do that. Only Congress can do that.
- But here, the 2nd DCA said, no, this was not an improper delegation of power because the legislature didn’t give Florida Fish and Wildlife broad policy discretion and Florida Fish and Wildlife cannot determine what acts constitute crimes, it was only given the power to control how permits are issued and rules for the management of alligators and alligator eggs.
- So, §379.409 is not unconstitutional as an improper delegation of legislative power.
  - The 2nd DCA next turned to the State’s cross appeal. And this is the danger with appealing a sentence. Mr. Beasley was given a downward departure and now he has lost his appeal, so what if the court determined that the trial court erred in granting a downward departure? Pretty risky.
    - But, lucky for him, the 2nd DCA upheld the downward departure.
    - Mr. Beasley’s lowest permissible sentence was 22.05 months. The trial court gave him 11 months and 29 days followed by 10 years probation.
    - The trial court found that Mr. Beasley was a relatively minor participant under §921.0026(2)(b) because it was Mr. Albritton who ran the operation, made the bulk of the profit, and was involved in the fraud and forgery, while Mr. Beasley was described as a worker bee. Because the trial court found that Mr. Beasley was a minor participant as it related to the entire conspiracy, which drove the guidelines, the court granted the downward departure.
    - The State relied on State v. Milici, a 5th DCA case that held that where the defendant, who was charged with robbery, obtained a fraudulent prescription, was unsuccessful in filling it, drove the co-defendant to purchase a pellet gun and drove the co-defendant back to the pharmacy to rob it, a downward departure was not warranted.
    - The State also relied on State v. Johnson, a 2nd DCA case, that held where a defendant took a check to a bank and attempted to cash it, but the cashier refused, a downward departure was not warranted.
      - But in that case, the defendant didn’t put on any evidence that he was a minor participant. His attorney argued that there was an uncharged ringleader, but an attorney’s argument is not evidence.
      - In Mr. Beasley’s case, the evidence was that it was Mr. Albritton who put the operation together, engaged in most of the trickery and deceit and was the one who benefited financially.
  - So, both the State and Mr. Beasley lost on their appellate arguments and his case remains status quo.
  - Case affirmed.

Case #02 – Jimenez, Jr. v. State, No. 2D22-1792 (Fla. 2nd DCA)(January 20, 2023)

Jimenez is a legal sufficiency of a Stand your ground motion case.
Mr. Jimenez was charged with attempted manslaughter with a firearm. He filed a 3.190(b) motion to dismiss invoking Stand your ground immunity under §776.032 and 776.012.
§776.012(2) states that a person does not have a duty to retreat if he or she is not engaged in a criminal activity and is in a place where he or she has a right to be.
So, if you are engaged in a criminal activity or in a place you don’t have a right to be, then you have a duty to retreat before using deadly force.
Apparently, Mr. Jimenez was carrying a concealed firearm without a license when he used deadly force.
So, the trial court denied his Stand Your Ground Motion finding it legally insufficient because it admitted he engaged in unlawful activity.
But, the 2nd DCA noted that its precedent has previously rejected this approach in Garcia v. State. Because his motion also alleged that he was unable to retreat or otherwise terminate the encounter before resorting to deadly force, it was legally sufficient to justify an evidentiary hearing.
So, if a defendant is engaged in a criminal activity, like carrying a concealed firearm, but also alleges that he was unable to retreat due to the circumstances, the trial court cannot summarily deny the motion as legally insufficient.
Petition granted.

Case #03 – Walker v. State, No. 2D21-2675 (Fla. 2nd DCA)(January 20, 2023)

Walker is a probation revocation case out of Hillsborough County.
Mr. Walker entered a negotiated plea to an armed burglary and grand theft case where he would receive 5 years in prison followed by probation.
Years later, Mr. Walker was charged with violating that probation by committing a new armed robbery and aggravated battery with great bodily harm in one case and possession of a firearm by a convicted felon in another case.
The probation officer designated him a violent felony offender of special concern.
At the revocation hearing, Mr. Walker’s attorney notified the court that a motion to suppress was filed in the new cases.
But that motion to suppress had not reached the docket yet and it wasn’t filed in the violation of probation case.
Mr. Walker argues on appeal that the trial court should have heard the motion to suppress before beginning the violation of probation hearing.
- But the 2nd DCA held that the trial court did not err because no motion was filed in the violation of probation case, Mr. Walker did not ask for a hearing on the motion to suppress in that case, the motion was filed in the new cases the day before the VOP hearing, and it hadn’t reached the docket by the time of the VOP hearing.
- Also, the motion addressed an out of court identification. And the point of excluding an out of court identification is to call into question the witness’s ability to identify the defendant in the courtroom.
- But, where a victim’s in-court identification is based on independent recollection and is uninfluenced by any defective pretrial identification, the court will assume that the in court identification is not biased by the out of court identification defect.
- In other words, it doesn’t matter how messed up the out of court identification was if the witness knows the person from previous encounters. If the police conduct a lineup of a husband in a domestic battery case and the husband is 6 ft 5 and all the other people in the lineup are 5 ft 4, that’s not going to taint the wife’s in court identification of her husband.
- Here, the victim testified that he knew who Mr. Walker was, had seen him several times before and was 100% sure it was him.
- Oh, and by the way, the trial court later heard the motion to suppress and denied it, so any error would be harmless.
Mr. Walker also challenged the trial court’s VFOSC designation (violent felony offender of special concern), not because his new offense didn’t qualify, but because the trial court failed to make written findings as to whether he poses a danger to the community, which is required under §948.06(8)(e)(1).
The State conceded the error but asked the 2nd DCA to remand only for a conforming written order and not for resentencing. The State relied on State v. McCray where the 2nd DCA held that a trial court’s oral pronouncement that the defendant was a danger to the community substantially complied with the statute.
- The 2nd DCA said no way. §948.06(8)(e) imposes minimum sentencing requirements if the VFSOC is found to be a danger to the community. In McCray, the trial court orally addressed the statutory requirements, but here, the trial court’s oral pronouncement did not address those requirements.
- So, the 2nd DCA remanded for another sentencing hearing.
Case affirmed in part, reversed in part and remanded.

Case #04 – Arnold v. State, No. 3D21-1012 (Fla. 3rd DCA)(January 18, 2023)

Arnold is another Zoom hearing case out of Miami Dade County.
Mr. Arnold pled guilty to various counts of battery, aggravated battery and grand theft of a vehicle.
While serving three years of probation, Mr. Arnold was violated for committing second degree murder and possession of a firearm by a convicted felon.
He moved to suppress his videotaped, sworn statement to police, but the trial court denied the motion.
Mr. Arnold had a VOP hearing and was found in violation.
The trial court scheduled his sentencing hearing and Mr. Arnold filed a written objection to remote sentencing.
The trial court overruled the objection and held the sentencing hearing over Zoom where everyone appeared via Zoom.
Mr. Arnold and his attorney were at two different locations.
Mr. Arnold’s attorney again objected on procedural due process grounds.
The trial court sentenced Mr. Arnold to a total of 20 years in prison.
As an initial matter, the Court determined that the admission of MR. Arnold’s videotaped, sworn statement was harmless error if it was error at all based on the other evidence submitted, which included testimony from the victim’s girlfriend that Mr. Arnold had a gun and got into an argument with the victim at the time of the shooting, testimony from the victim’s brother who saw Mr. Arnold with a gun, heard a dispute with his brother, and then heard a gunshot and Mr. Arnold say, “that’s what you get,” Mr. Arnold fled the scene and the person Mr. Arnold claimed was the shooter tested negative for gunshot residue.
As for the remote sentencing hearing, a defendant generally has a due process right to be physically present in the courtroom at a sentencing hearing.
This sentencing hearing occurred during the Florida Supreme Court’s administrative order suspending physical presence requirements, but that order specifically stated that the trial court must consider the constitutional rights of the defendant, among other people.
So, the trial court was required to balance Mr. Arnold’s due process rights against the public health concerns.
The trial court stated that it didn’t see anything unique about Mr. Arnold’s case, but that isn’t the standard.
The trial court should have made express findings specific to Mr. Arnold.
Case affirmed in part; reversed in part and remanded.

Case #05 – Otero-Rosario v. State, No. 3D22-0868 (Fla. 3rd DCA)(January 18, 2023)

Otero-Rosario is a probation violation case out of Miami Dade County.
Mr. Otero-Rosario argued on appeal that the trial court failed to conduct a proper Nelson inquiry before allowing him to represent himself, the State failed to offer competent, substantial evidence of a willful violation of probation, and remand is necessary for entry of a written probation revocation order.
As for the Nelson hearing, the 3rd DCA held that it was adequate because Mr. Otero-Rosario only made generalized grievances and never requested that his counsel be replaced.
And a Nelson inquiry is not required when a defendant wants to represent himself. A Nelson hearing determines whether current counsel is ineffective and whether appointing other counsel is warranted. So, no Nelson hearing was required in this case.
As for the sufficiency of the evidence, the record showed that Mr. Otero-Rosario failed to appear for a court-ordered mental health evaluation. And the trial court was within its discretion in determining that it was willful ignorance, rather than an inept attempt to comply.
But the Court did remand for the trial court to enter a written probation revocation order.
Affirmed in part and remanded.

Case #06 – Korets v. State, No. 4D22-828 (Fla. 4th DCA)(January 18, 2023)

Korets is a 3.850 motion case out of Broward County.
Mr. Korets argues on appeal that the trial court erred in denying his 3.850 motion, which alleged that his attorney was ineffective failing to object to a jury instruction listing aggravated battery with a deadly weapon as a lesser included offense of attempted first degree murder.
The State conceded because the amended information didn’t allege that Mr. Korets used a deadly weapon.
So, the 3rd DCA reversed and remanded.

Case #07 – Sibrun v. State, No. 4D19-1629 (Fla. 4th DCA)(January 18, 2023)

Sibrun is a remand case from the Florida Supreme Court out of Martin County.
The Florida Supreme Court quashed the 4th DCA’s original opinion and remanded for reconsideration in light of the Florida Supreme Court’s decision in Davis v. State.
In the original Sibrun decision, the 4th DCA held that the trial court could not consider a defendant’s lack of remorse at a sentencing hearing.
In that decision, the 4th DCA noted that it was bound by its prior precedent which held that a court cannot consider a defendant’s protestations of innocence or failure to show remorse in determining what sentence to impose.
Well, the Florida Supreme Court changed all that in Davis v. State, which held that in a non-capital case, the trial court can consider a defendant’s failure to accept responsibility.
So, defendants be warned. If you do not accept responsibility and show remorse at the sentencing hearing, the trial court can now use that against you to increase your sentence.
Case Affirmed.

Case #08 – Bowen v. State, No. 5D22-1546 (Fla. 5th DCA)(January 20, 2023)

Bowen is a 3.850 case involving edited photo lineups out of Marion County.
In Mr. Bowen’s case, law enforcement created a photo lineup where they edited the photos to make every person have a black shirt and they removed a facial tattoo and scar on Mr. Bowen’s face.
The State argued that this was done to make sure each person was more consistent with each other and that it would be difficult to find enough people who had similar facial tattoos and scars.
It does beg the question why they couldn’t superimpose Mr. Bowen’s facial tattoo and scar on all of the other photos, but I digress.
Mr. Bowen filed a 3.850 motion arguing that his trial counsel was ineffective for not objecting to the photo lineup.
The trial court denied the motion finding that the lineup was not overly suggestive and there was other evidence that the jury could rely on to determine guilt.
On appeal, the 5th DCA agreed with the trial court finding that any motion to exclude the photo lineup would have been denied, so trial counsel was not ineffective for failing to file a meritless motion.
Case Affirmed.