19 Years Later – Latest News in Florida Criminal Appeals with Criminal Defense Attorney Jack Palmeri – September 11, 2020

Jack Palmeri, Esq. 888-408-0253

Jack Palmeri, Esq.

Jack Palmeri, a former New York City prosecutor with 19 years of experience in criminal law, is a Senior Associate for Weinstein Legal’s criminal division, practicing across Florida and its Federal Courts. You can reach him directly at 888-408-0253 or at www.Weinstein-Legal.com.


In this Florida Criminal Caselaw Roundup we’ll be discussing the latest developments in Florida criminal law, criminal appeals, and post-conviction relief.

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The Florida Criminal Caselaw Roundup is a blog and video podcast by criminal defense, criminal appeal and post-conviction attorney Jack Palmeri, summarizing the latest developments in criminal law, criminal appeals, and post-conviction relief in the State of Florida.  Our sponsoring attorney will digest the latest reversed  convictions throughout the Florida Supreme Court and the Florida District Courts of Appeal,

This is a FREE service designed to give you the cutting edge of developments in Florida criminal law, appeals, and post-conviction relief.

Visit us at www.Weinstein-Legal.com


No reversals reported.


No reversals reported.


CLICK TO READ Aaron Ramon Shaw v. State of Florida, Docket # 2D17-4664

Appeals conviction for one count of battery on a Florida Civil Commitment Center staff member. Trial started with objection to him wearing a stun belt in the courtroom. Claimed that mental and emotional issues could be exacerbated by wearing a stun belt. Feared that wearing the device would trigger an outburst and the use of the device. No dispute of his schizophrenia. Given option to sit outside courtroom. Was absent for all of jury selection, opening statements, and the testimony of the first seven witnesses, including several eyewitnesses to the alleged battery. He returned to the courtroom for the State’s last witness, the victim in the case. There was no discussion on the record describing why he decided to return or indicatingwhether he was wearing the stun belt. A defendant has the right to be free of physical restraints, such as shackles and so forth, when in the presence of the jury. Weaver v. State, 894 So. 2d 178, 193 (Fla. 2004). The right is not absolute, and “[r]estraints ‘may be necessary to prevent the defendant from disrupting the trial . . . and to protect the physical well-being of the jury, lawyers, judge, and other trial participants.’ ” Id. (quoting Israel v. State, 837 So. 2d 381, 390 (Fla. 2002)). The use of restraints is within the discretion of the trial court, id., “provided that [the court] has made the requisite findings that such shackles arenecessary.” Hernandez v. State, 4 So. 3d 642, 658 (Fla. 2009) (emphasis added). Trial court made no finding in this case. Nothing indicated any outbursts or potential risks of harm or escape. Prior convictions would not be enough to warrant use of restraints. Besides prejudice, him being absent deprived him of the right to be present at trial. Reverse and remand for a new trial.


No reversals reported.


No reversals reported.


CLICK TO READ State of Florida v. Juan Rosario, Docket # 5D19-1592

State appeals order granting a new penalty phase after a jury trial finding him guilty of first-degree murder and arson of an occupied structure, finding that he received ineffective assistance of counsel. State argues that the trial court erred in granting motion without providing it notice or an opportunity to be heard, and in failing to hold an evidentiary hearing to establish factual support for the allegations of ineffective assistance of counsel. State further argues that trial court failed to provide a proper prejudice analysis under Strickland v. Washington. Defendant entered the home of an eighty-five-year-old woman, beat her severely and brutally and stole many belongings. Returned later and set the home on fire. Victim died of blunt force trauma to head and skull and smoke inhalation. Found guilty and sentenced to death.

New counsel came in and filed motion for a new trial arguing ineffective assistance in the penalty phase. Argued that trial counsel was not legally qualified to handle a death penalty case. No allegations of deficient performance. No hearing was held, and trial court granted and denied in part. Granted only for penalty phase. Argues that the court granted the motion on its own, but record shows that trial court relied on his motion. Alternatively argues that under Rule 3.600(b) the court could have acted on its own, but no findings support that.

Rule 3.590 was amended in such a way that motion for new trial was premature when filed by Defendant before conviction and sentence being filed. Dissent by Judge Eisnaugle wherein he notes that the majority opinion fails to address whether there would be any “jurisdictional implications” relative to a prematurely-filed motion for new trial. Discussion of Rule 3.851 applicability in death penalty cases. Lengthy analysis of issues potentially arising and statutory construction. Reverse the trial court’s order granting Rosario a new penalty phase trial and remand the case back to the trial court with instructions to sentence him.

CLICK TO READ Steven Caro v. State of Florida, Docket # 5D19-1818

Appeals judgment and sentence. Charged with attempted second-degree murder with a firearm, found guilty following a jury trial, and sentenced to thirty years in prison with a twenty-five year minimum mandatory. Evidence by State of an unscientific experiment conducted by detective intended to prove that victim was shot at close range. State failed to show conditions were demonstrably the same and meet its burden. Detective improperly permitted to state his opinion that the point blank shot most resembled the bullet hole on the victim’s shirt. Appellant moved in limine to exclude unscientific experiment. Court wanted to hear more testimony before ruling. No proof of barrel length or qualities of gun used.

“The general rule [regarding the admission of an experiment at trial] is [that] ‘evidence of an experiment . . . is not admissible, where the conditions attending the alleged occurrence and the experiment are not shown to be similar.’” Rindfleisch v. Carnival Cruise Lines, Inc., 498 So. 2d 488, 492 (Fla. 3d DCA 1986) (quoting Hisler v. State, 42 So. 692, 695 (Fla. 1906)). “The similarity of circumstances and conditions go to the admissibility of the evidence, and must be determined by the court.” Hisler , 42 So. at 695. “The party offering the evidence of the experiment has the burden to lay a proper foundation for its admission by showing a similarity of the circumstances and conditions.” Rindfleisch, 498 So. 2d at 492. Neither the caliber of the gun nor the size of the bullet were known, so the jury could not determine anything about the experiment. Substantial similarity test requirements not met. Inadmissible shooting testimony evidence and demonstration contributed to the jury verdict. Reverse and remand for new trial.


CLICK TO READ United States v. Sylvester Gillon, Docket # 19-15016

Appeals partial denial of motion to reduce sentence based on the First Step Act of 2018. Argues that although the court reduced his supervised release portion it left the remaining sentence intact, concluding he was ineligible for further reduction.  Jones makes clear that, when the record is ambiguous as to whether the district court understood its authority under the First Step Act, appeals court must vacate the order denying relief and remand for further proceedings. 962 F.3d at 1305. Here, the record is ambiguous so vacate order denying motion and remand for further consideration.

CLICK TO READ Kelvin Leon Jones v. Governor of Florida, Docket # 20-12003

In 2018, the Florida Constitution was amended to allow convicted felons to vote, something that was not allowed previously.  The Amendment had one condition – “completion of all terms of sentence, including parole or probation.”  The Legislature enacted a statute that defined all terms of sentence to include payment of fines, court costs, and restitution.  The Florida Supreme Court upheld that statute.

In this appeal, several people convicted of felonies in Florida sued the Governor of Florida to reinstate their right to vote.  The plaintiffs argued that the Florida requirement that convicted felonies must pay fines, court costs and restitution before their voting rights were restored violated the Equal Protection Clause of the Fourteenth Amendment and imposed a voting tax in violation of the Twenty-Fourth Amendment.  The District Court agreed, and granted a permanent injunction against Florida.

The Eleventh Circuit reversed.  The Court of Appeals held that this requirement does not violated the Constitution’s Equal Protection Clause and does not constitute a poll tax.


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Equal Protection Clause, voter disenfranchisement, poll tax, First Step Act, Second Degree Murder, expert witness, ineffective assistance of counsel, First Degree Murder, arson, battery, right to be present, stun belt,

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