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

Cases that we’ll cover include unassigned vehicle tag, failing to register motor vehicle, Miranda, missing transcripts, possession of marijuana, possession of cocaine, armed sexual battery, kidnapping with intent to facilitate a felony, aggravated battery with a deadly weapon, downward departure, scoresheet, battery on a law enforcement officer, resisting an officer with violence, battery on a police dog, possession of a controlled substance, habitual felony offender (HFO), prison releasee reoffender (PRR), kidnapping, attempted second-degree arson, resisting an officer without violence, Assault, Battery By Strangulation, False Imprisonment, competency, Possession of a Firearm or Ammunition by an Illegal Alien, Federal Sentencing Guidelines, Pre-Sentence Report, Federal Rules of Criminal Procedure, motion to suppress, search warrant, good faith exception, suppression, invalid warrant, use of a computer to seduce/solicit/entice a child to commit a sex act, unlawful use of a two-way communications device, Double Jeopardy, and more

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.

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FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ Daniel K. Maxwell v. State of Florida, Docket # 1D19-3314

Appeal of conviction after trial of Assault, Battery By Strangulation, False Imprisonment, case remanded for competency determination.  Prior to trial, Defendant had been previously found to be incompetent and was at the Florida State Hospital for treatment.  The records from the hospital finding him competent and releasing him were not part of the trial court record.  The parties stipulated to competency, and based on that stipulation, the court found him competent. 

Because the trial court did not make a proper competency determination, the case was remanded for a hearing to determine whether competency can be retroactively determined.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Ricardo L. Fernandez, Docket # 2D19-1184

State appeal of an order granting a motion to suppress after the trial court found the affidavit used to obtain the anticipatory search warrant was deficient and the good faith exception to the warrant requirement did not apply.  However, the issue of Defendant’s standing to challenge the invalid search warrant was not addressed in the trial court, the case was remanded for a hearing to address the issue of standing only.

CLICK TO READ Steven A. Schwoerer v. State of Florida, Docket # 2D19-2010

Appeal of a conviction after a bench trial of Use of a Computer to Seduce/Solicit/Entice a Child to Commit a Sex Act and Unlawful Use of a Two-Way Communications Device, and other sex offenses.  Conviction for Unlawful Use of a Two-Way Communications Device reversed under Double Jeopardy.  Because it was not clear from the information that different conduct underlay each charge, that convictione as reversed, and the case was remanded for a new sentencing under a corrected Sentencing Scoresheet.  The unlawful communications charge was subsumed with the proof of the soliciting offense, preventing conviction on both charges.

CLICK TO READ Dennis Lamar Flint v. State of Florida, Docket # 2D18-2742

Appeals his judgments and sentences on two counts of battery on a law enforcement officer (counts one and two) and one count each of resisting an officer with violence (count three), battery on a police dog (count four), and possession of a controlled substance (count five). Mr. Flint was sentenced as a habitual felony offender (HFO) to concurrent terms of seven years’ prison on counts one, two, and three, with a consecutive five-year prison releasee reoffender (PRR) sentence on count three; time served on count four; and a concurrent term of five years’ prison on count five. State properly conceded, the sentence as to count three, resisting arrest with violence, exceeds the statutory maximum for a third-degree felony under the HFO statute. Reverse the sentence as to count three; affirm as to the convictions and remaining sentences without discussion.

CLICK TO READ Joshua Steven Tanner v. State of Florida, Docket # 2D18-3053

Appeals his convictions after a jury trial for kidnapping, attempted second-degree arson, and resisting an officer without violence. Raises five issues on appeal. Tanner was having a dispute with his paramour. She called 911 and said that he had been shooting at the trailer and tried to burn it down. No shots heard on 911 call. Police arrived at the house and Tanner fled on foot from car stuck in the mud. No evidence of shell casings or bullet holes. Tanner was arrested by K-9 after fleeing into the woods. Gasoline on his shoes and gas can in his work truck. Had been a controlled burn earlier on the property.

Post Miranda, Tanner said that the victim was a liar and he had asked her to stop texting him and get out of his life. She was not supposed to be on the property which belonged to this boss. Admitted to hooking up the camper to his truck in the thoughts of taking it away, but that might look like kidnapping, so he did not. Denied shooting and denied pouring gas near the camper. Said victim had set the whole thing up. Property owner testified at trial that Tanner was helping him develop the land, that he owned the camper and that the victim was told not to be on the property.

Jury convicted on all counts. Victim testified at sentencing that Tanner should not go to prison. He was sentenced to nine years on arson and kidnapping charges with time served on resisting.

Statement to police was recorded. Tanner claimed he invoked right to remain silent. Transcript seems to clearly indicate several times that he did not want to talk to law enforcement. Tanner waived his right to remain silent at the beginning of the interview by speaking to police. But he later articulated his desire to terminate the questioning with sufficient clarity that a reasonable police officer would understand his statements to be an assertion of the right to remain silent.

Further issues on improperly admitted evidence and hearsay. Trial court abused its discretion in admitting that evidence over objection.

Reversed and remanded.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Anthony Maurice Brown v. State of Florida, Docket # 4D19-396

Appeals denial of a motion to suppress after a plea, reserving the right to appeal. Argues that the court erred in denying the motion and that loss of the transcript, as well as inability to recreate the record, prevents appellate review, warranting a new trial.

Appellant stopped for an unassigned temporary tag on his vehicle. Records did not match and was told he was going to be arrested for failing to register his motor vehicle. Search incident to arrest turned up marijuana and cocaine in the vehicle. After reading Miranda rights, he admitted to placing the tag on the vehicle, owning the drugs and failing to register the vehicle. Argued that statements should be suppressed because they were obtained without a warrant. State did not respond to motion. Court held and evidentiary hearing and denied the motion. Appealed denial of district court of appeal. While the appeal was pending, the defendant moved to relinquish jurisdiction to reconstruct the record because of the missing transcript. Following the reconstruction hearing, the trial court entered a written order memorializing that both parties agreed: 1) the transcript of the hearing had been irretrievably lost; 2) the record cannot be reconstructed; 3) the testimony and objections presented at the hearing contained evidentiary issues the defendant preserved and would have served as legitimate grounds for appeal; and 4) the defendant is prejudiced in his appeal because the transcript is necessary for a complete and full review of this case.

If the initial stop and arrest was solely for an unassigned tag, precedent would require a reversal. See Phillips v. State, 531 So. 2d 1044 (Fla. 4th DCA 1988). “Since [a] violation of . . . section 320.261 is only a misdemeanor, a police officer may arrest without a warrant only if the person has committed the offense in the presence of the officer.” Id. at 1045. State concedes officer did not witness. Order does not indicate whether officer learned the tag was unassigned, before or after the stop. Transcript required to discern officer’s testimony and these nuances. Also, no ability for court to determine sequence of events leading up to admission.

Lack of record prevents review on the merits. Reversed and remanded for a new trial.

CLICK TO READ Jeromee Saffold v. State of Florida, Docket # 4D19-1879

Appeals sentences imposed after he pleaded no contest to seven counts: (I)–(V) armed sexual battery; (VI) kidnapping with intent to facilitate a felony; and (VII) aggravated battery with a deadly weapon. Argues that improper inclusion of firearm points in scoresheet requires reversal. State concedes improper inclusion, but argues that it is harmless. Eighteen firearm points were erroneously included on Saffold’s scoresheet. If a defendant is convicted of “any felony other than those enumerated in s. 775.087(2)” while having a firearm in his possession, then eighteen firearm points are authorized. § 921.0024(1)(b), Fla. Stat. (2019). Saffold was convicted of five counts of armed sexual battery, one count of kidnapping, and one count of aggravated battery with a deadly weapon (a firearm), all of which are enumerated felonies in section 775.087. See § 775.087(2)(a)1.b., f., g., Fla. Stat. (2019). Because all are enumerated felonies, the eighteen firearm points were not authorized. Record shows that this was harmless.

Saffold argues that sexual penetration points were improperly added to a few counts. Affirm as to some, but two were improperly added. Not harmless as error as the record does not show the court would have imposed the same sentence with a corrected scoresheet. Court must resentence on these counts.

Court heard downward departure motion but did not believe that any treatment had been sought or that he was amenable to treatment. Record disputes that and it is unclear whether the trial court was aware of the rule about amenability. Trial court to reconsider downward departure motion.

Affirm in part, reverse in part and remanded for further proceedings.

FIFTH DISTRICT COURT OF APPEAL

No reversals reported.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ United States v. Juan Carlos Ramirez-Arcos, Docket # 19-13371

Appeal of sentence after a guilty plea to Possession of a Firearm or Ammunition by an Illegal Alien, sentence reversed.

Defendant shot and killed another person, and claimed self-defense.  He was acquitted after trial.  At the time, Defendant was a foreign national unlawfully present in the United States.  After his acquittal, he was charged in Federal court with 18 U.S.C. §§ 922(g)(5), 924(a)(2).  he pled guilty, and the Pre-Sentence Report indicated his Offense Level was 14 and a Criminal History Category III, which resulted in a Federal Sentencing Guidelines range of 21-27 months.  The PSR did not identify any factors that warranted an upward departure.  The Government request an upward departure under Guideline § 5K2.1 because Ramirez-Arcos’ criminal conduct resulted in death in its presentence memorandum.

At the sentencing, the court ruled that Defendant was entitled to a 2 level reduction for acceptance of responsibility, which would have made his Guidelines sentence 15-21 months.  However, the court imposed an upward departure under U.S.S.G. § 5K2.1 (death), § 5K2.2 (injury), and § 5K2.14 (public welfare) based on the fact that the gun used was found in a trailer park where children lived.  Defendant was sentenced to 60 months.  Ramirez-Arcos objected to the upward departure but did not specify the grounds for his objection.

The 11th Circuit reversed, ruling that Rule 32(h) of the Federal Rules of Criminal Procedure requires that advance notice of an upward departure be provided.  Even though he did not properly preserve it, the District Court plainly erred in failing to provide him with advance notice under Rule 32(h).  As a result, the sentence was reversed, and the case remanded for resentencing.

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unassigned vehicle tag, failing to register motor vehicle, Miranda, missing transcripts, possession of marijuana, possession of cocaine, armed sexual battery, kidnapping with intent to facilitate a felony, aggravated battery with a deadly weapon, downward departure, scoresheet, battery on a law enforcement officer, resisting an officer with violence, battery on a police dog, possession of a controlled substance, habitual felony offender (HFO), prison releasee reoffender (PRR), kidnapping, attempted second-degree arson, resisting an officer without violence, Assault, Battery By Strangulation, False Imprisonment, competency, Possession of a Firearm or Ammunition by an Illegal Alien, Federal Sentencing Guidelines, Pre-Sentence Report, Federal Rules of Criminal Procedure, motion to suppress, search warrant, good faith exception, suppression, invalid warrant, use of a computer to seduce/solicit/entice a child to commit a sex act, unlawful use of a two-way communications device, Double Jeopardy,