FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ Brandon Joshua Bailey v. State of Florida, Docket # 1D18-4514

Appeals his judgment and sentence for first-degree murder, armed robbery, and possession of a firearm by a convicted felon. He raises three arguments for reversal. His second argument—that the affidavit used by police to obtain the search warrant for his cell phone records failed to establish probable cause—is rejected. Appellant’s remaining arguments are that the trial court erred: 1) in denying his motion to suppress warrantlessly-obtained Global-Positioning-System (GPS) records tracking his movements in a borrowed car; and 2) by failing to conduct a formal competency hearing before proceeding to trial in light of a previous order for a competency evaluation. Affirmed in part, revered in part.

Victim found shot dead in a park. Body had been stripped of valuables. Appellant resided in a hotel equipped with cameras which saw him and victim leave together and him come back alone. Appellant was staying with a woman who was the sole owner of a Honda equipped with GPS due to an agreement with her and her leasing company. Woman testified that she gave Appellant permissions to use the car, but that night reported it stolen. When the car was not returned the next day she contacted the financing company to locate it. GPS showed the vehicle stop at a home in the vicinity and then at the park. Polcie sought and obtained video from the home among other evidence.

Trial court denied motion to suppress the GPS data. Reasoned that there was no expectation of privacy and sheriff was not required to get a warrant. Issue here focuses on Katz test for intrusion into areas where there is a reasonable expectation of privacy. Second question is whether or not the expectation of privacy is one that society is willing to recognize. Knotts case controls because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S. at 281.. No expectation of privacy on public thoroughfares.

Reversed and remanded for competency determination, but otherwise affirmed.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Frank David Berry III v. State of Florida, Docket # 2D19-2340

Appeal of a conviction for Insurance Fraud Less than $20,000 and Unlawful Use of a Two-Way Communications Device, and sentence to 5 year concurrent prison terms.  Unlawful Use of a Two-Way Communications Device reversed and motion for judgment of acquittal granted.

Defendant’s car was unoccupied and parked in a parking lot when another car crashed into it.  Approximately 1 week later, Defendant called his insurance company and claimed that he was in the car at the time of the accident and was injured.  The call was recorded and introduced at trial.  During the call, Defendant did not tell the insurance representative where he was at the time he made the call.  At the close of the State’s case Berry moved for a judgment of acquittal, arguing that the State had failed to prove venue. The motion was renewed at the close of all the evidence. The trial court denied the motion.

The Second DCA reversed, finding that the State failed to present any evidence establishing that Berry used a cell phone in DeSoto County to facilitate the commission of insurance fraud.  The Second DCA found that venue had not been waived even though counsel failed to challenge venue prior to trial; further, even though the accident occurred in DeSoto County and Defendant provided a DeSoto County mailing address, that was not evidence that Defendant used a cell phone while in DeSoto County to facilitate insurance fraud.

Affirmed in part, reversed in part, judgment of acquittal granted in part.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Jakaris Taylor v. State of Florida, Docket # 4D19-950

Appeal of 65-year sentence imposed at a resentencing.

Defendant was convicted at the age of 15 after trial of Burglary with Assault or Battery with a Firearm While Wearing a Mask, Kidnapping with a Firearm While Wearing a Mask, Kidnapping a Child Under the Age of Thirteen While Wearing a Mask, Sexual Battery by Multiple Perpetrators with a Firearm, Promoting the Sexual Performance of a Child with a Firearm While Wearing a Mask, Grand Theft of a Motor Vehicle.  He was initially sentence to life imprisonment on all counts except the last two counts, which was 818 days concurrent.

While the defendant’s appeal was pending, the United States Supreme Court decided Graham v. Florida and Defendant’s life sentences were vacated.  Defendant was resentences to concurrent sentences of 60 years with a 10-year mandatory minimum on each county.  On the last two counts, Defendant was sentence to 30 years with a 10-year mandatory minimum, concurrent to the other sentences, and 5 years concurrent.

Defendant appealed again, and the case was remanded for resentencing a second time.  At the resentencing, the State read an unsworn letter from one of the victims over objection.  Defendant was resentenced to sixty years, but this time with an additional 5-year consecutive sentence on the Grand Theft count for a total of 65 years.  His motion to correct the sentence for a violation of Double Jeopardy was denied.

The Fourth DCA reversed, finding that the sentences for the last two counts violated Double Jeopardy because he had already served those sentences at the time of resentencing.  The court lacked jurisdiction to change those sentences after it initially sentenced him on those two counts to 818 days concurrently. 

CLICK TO READ B.W v. State of Florida, Docket # 4D19-1524

Appeals judgment of delinquency after bench trial. First, B.W. argues the circuit court erred when it ordered restitution without making required factual findings. Second, B.W. argues the court erred when it ordered payment for the cost of prosecution in excess of the amount agreed to by the State. Reverse and remand on both issues. The juvenile restitution statute provides that the court may order the child to pay restitution “in a reasonable amount or manner to be determined by the court. When restitution is ordered by the court, the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make.” § 985.437(2), Fla. Stat. (2019). Ordered to pay restitution without a hearing. State concedes error on second ground and that court’s disposition should correctly reflect cost of prosecution. On remand, the court shall correct the disposition order to reflect the imposition of $100, instead of $200, in the cost of prosecution. See, e.g., Guadagno v. State, 291 So. 3d 962, 963 (Fla. 4th DCA 2020).

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Bruce Fuller v. State of Florida, Docket # 5D16-2646

On remand from Florida Supreme Court. Appellant’s pretrial Stand Your Ground hearing took place on March 1, 2016, prior to the 2017 effective date of the modified Stand Your Ground statute, he is not entitled to another such hearing. See Love, 286 So. 3d at 190 (“Section 776.032(4) is a procedural change in the law and applies to all Stand Your Ground immunity hearings conducted on or after the statute’s effective date.”). We remand this matter for a new trial in accordance with our previously issued opinion.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ Clifford Senter v. United States, Docket # 18-11627

Certificate of Appealability to review the denial of a 28 U.S.C. § 2255 petition for a writ of habeas corpus.  Certificate granted, case reversed and remanded.

In 1999, Defendant was found guilty of Armed Bank Robbery in violation of 18 U.S.C. § 2113(a), (d), and 2, Using and Carrying a Firearm in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii), and Felon-In-Possession in violation of 18 U.S.C. § 922(g)(1).  Defendant was sentenced under the Armed Career Criminal Act (ACCA) based on three prior Alabama convictions:  (1) a 1988 second degree robbery; (2) a 1988 attempted first degree robbery; and (3) a 1992 third-degree robbery.  However, the District Court did not specify whether the prior convictions qualified as violent felonies under the residual clause or instead under one of the ACCA’s other definitional clauses.  He was sentenced to a total of 420 months imprisonment = 35 years.

In 2015, the United States Supreme Court decided Johnson v. United States, holding “that imposing an increased sentence under the [ACCA’s residual clause] violates the Constitution’s guarantee of due process.”  Defendant filed a 28 U.S.C. § 2255 petition to correct his sentence.  In that petition he argued that, under federal law, his attempted robbery conviction cannot meet the requirements of a violent felony conviction under either of the remaining ACCA definitional clauses, because attempted robbery does not exist under Alabama law and, therefore, does not have any elements. The District Court interpreted his petition as a collateral attack on his state court conviction, and denied the petition without deciding the core issue.

The Eleventh Circuit granted a Certificate of Appealability, and reversed, holding that the District Court misunderstood Defendant’s argument in his 2255 petition and failed to resolve the claim on the merits.  The case was remanded for consideration on the merits as to whether the 1988 attempted robbery conviction is not a violent felony conviction for purposes of the ACCA because it lacks elements.

There was a dissenting opinion.