FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Austin Matthew Brooks v. State of Florida, Docket # 2D22-3753

Defendant was convicted after trial of Exploitation of an Elderly or Disabled Adult, Fraudulent Use of Personal Information, and Money Laundering.  His sentence was calculated under the Florida Criminal Punishment Code at 51.52 months in prison.  At sentencing, Brooks sought a lesser sentence to make restitution to the victim’s family.  Brooks also argued that his offenses did not warrant such a harsh penalty and presented an Excel spreadsheet reflecting several other cases where the defendants were similarly charged and the sentences were rarely “over three (3) years in Florida State Prison, despite being in similar circumstances as Mr. Brooks.” The State objected to the trial court’s reliance on the unauthenticated spreadsheet as a basis for a downward departure. It also pointed out that the charges reflected on the spreadsheet were not the same charges Brooks was convicted of at trial and that Brooks was convicted of multiple counts, unlike the cases cited.  The trial court granted his motion for a downward departure sentence, imposing 36 months imprisonment.  The State cross-appealed the downward departure sentence. 

The Second DCA reversed the sentence, finding that the trial court’s determination of comparable sentences in other cases was not a valid basis for departure because there was no evidence presented, only an unauthenticated spreadsheet.  The case was remanded for resentencing.

PRACTICE TIP:  If you want to use comparable sentences, get EVIDENCE in the form of certified judgments, court documents, testimony, etc.

CLICK TO READ Eliseo Soto v. State of Florida, Docket # 2D22-1764

Defendant was convicted of Sexual Battery.  At sentencing, he requested a downward departure sentence.  Although none of the statutory mitigating factors applied to Soto, he asked that the court consider nonstatutory mitigators and downward depart from 94.5 months in prison, the lowest permissible sentence indicated on his scoresheet. Soto submitted evidence in support of his request.  The court denied the motion, finding that its “hands are pretty much tied by the fact that he was found guilty, and his score sheet, his criminal punishment score sheet.”

The Second DCA reversed and remanded for resentencing, finding that the trial court applied an incorrect standard in determining whether to exercise its discretion and impose a downward departure sentence or not.  There is a two-step process that a court must follow in considering a request for a downward departure sentence:

First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1)

Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.

Because that procedure was not followed here, the Court remanded for resentencing.

CLICK TO READ State of Florida v. Guillermo Rodriguez Lopez, Docket # 2D22-1194

Police executed a search warrant for Defendant’s home after receiving information that he and others were growing marijuana in his house.  The search warrant application detailed a 12-month investigation, which included observations of the house with sealed-off windows, excessive electricity utility bills, and intercepted phone calls concerning coded language.  Police found marijuana plants and growing materials in the home.

Defendant moved to challenge the search warrant and suppress physical evidence.  The trial court granted the motion, finding that the affidavit did not present the issuing judge with a substantial basis to determine that probable cause existed, the court emphasized, among other things, that the anonymous tips that had given rise to the entire investigation had not mentioned Defendant or the home, that police never saw Defendant shopping for growing materials, had never observed any transactions at the home in question, and observed that Defendant also bought and sold vehicles legally.

The State appealed.  The Second DCA reversed and denied suppression, finding that the affidavit did provide an adequate basis to establish probable cause.

Reversed and remanded.

CLICK TO READ State of Florida v. Jonathan Valley, Docket # 2D22-4133

Defendant was arrested for Carrying a Concealed Firearm, Florida Statutes § 790.01(2) after he was pulled over and police smelled burnt marijuana. Police ordered him out of the car, and he was wearing a cross-body zippered bag.  Police removed the pack, searched it, and found the loaded handgun.  He filed a motion to dismiss the information pursuant to Florida Statutes § 790.25(5), arguing that he was permitted to possess the firearm because it was securely encased within a private conveyance.  The trial court adopted Valley’s argument that as long as the firearm was securely encased, he could lawfully possess it anywhere in the vehicle—even on his person — because the statute does not limit the exception to constructive possession.  It dismissed the Information, and the State appealed.

The Second DCA reversed and reinstated the Information.  The Court ruled that Florida Statutes § 790.25(5) expressly limits the right to possess a firearm in a vehicle to those that are either securely encased or not otherwise available for immediate use and not carried on the person. 

Reversed and remanded.

CLICK TO READ State of Florida v. Juan Martin Gonzalez, Docket # 2D22-3707

Defendant was charged with Lewd of Lascivious Molestation of a Child Twelve Years of Age or Older But Less than Sixteen Years of Age for sexually assaulting a minor at the church they attended.  The victim reported the incident to her family.  The pastor of the church learned of the incident and visited Defendant to discuss the matter with him.  Afterwards, the pastor consulted with a leader of the church in Mexico, and then conducted a meeting with the church’s local leaders.  Defendant and his wife were two of those local leaders.  Five days after the incident, Defendant attended the meeting, which included the victim’s uncle.  There was an understanding that the meeting would be confidential.  At some point, the uncle started recording the meeting, and Defendant asked for forgiveness from the victim, and made a number of statements admitting his guilt.  The video recording ended up in the hands of law enforcement.

Defendant moved to suppress, citing the clergy-penitent privilege set forth in Florida Statutes § 90.505(2).  The trial court held an evidentiary hearing, and the granted suppression.  The State appealed.

The Second DCA reversed, denied suppression, and remanded the case.  In order for a communication to be deemed “confidential,” it must be “made privately for the purpose of seeking spiritual counsel and advice from the member of the clergy in the usual course of his or her practice or discipline and not intended for further disclosure except to other persons present in furtherance of the communication.  The Second DCA held that the statements were not made for the purpose of seeking spiritual counsel or advice.  The meeting was held at the pastor’s instruction for Defendant to explain what had happened and apologize.  Further, the statements were not made in the usual course of the clergy member’s practice or discipline – it was not Defendant who sought his clergy, but clergy who sought Defendant’s statements.  Finally, it was not made privately to clergy – it was made to a group of people who did not include clergy.

Because the evidence did not establish all the requirements of the penitent-clergy privilege, the order granting suppression was reversed.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Geoffrey Carlo v. State of Florida, Docket # 4D2022-2040

Police received a call about a man who was threatening people with a knife at an apartment complex.  When police arrived, the same a small group of people in the parking lot, and asked the group where the man with the knife was.  One person pointed to the top of a staircase, and police saw Defendant and a woman standing by themselves.  No weapons were visible.  The first officer drew his firearm and pointed it at Defendant, and waited for backup.  Police ordered Defendant to show his hands, but Defendant ignored the order and Defendant became agitated.  When backup arrived, police ordered Defendant to come down the stairs, and removed a gun from his waistband.  He was handcuffed and made to sit in a chair.  Defendant told police he had a concealed carry permit, which police verified.  However, Defendant was arrested for Disorderly Conduct, based on statements made by witnesses, and he was searched.  Cocaine was found in his pants pocket.  Defendant was only charged in an Information with Possession of Cocaine.

Defendant filed a motion to suppress, arguing the arrest was illegal and the search incident was illegal because Disorderly Conduct, a misdemeanor, was not committed in the police officer’s presence.  The trial court denied the motion, and Defendant appealed.

The Fourth DCA reversed and granted suppression.  The Court held that because misdemeanor Disorderly Conduct did not occur in the police officer’s presence, the arrest was illegal, and any resulting search was fruit of the poisonous tree.

CLICK TO READ State of Florida v. Tanner Dashner, Docket # 4D2022-1883 and 4D2022-2016

Following a car accident in 2018 in which five people died, the appellant was charged with five counts each of DUI Manslaughter and Vehicular Homicide, among other charges. Thereafter, in State v. Maisonet-Maldonado, 308 So. 3d 63 (Fla. 2020), the Florida Supreme Court determined that the Single Homicide Rule – which prohibits dual convictions for offenses resulting in a single death – is no longer applicable under Florida law pursuant to a 1988 amendment to Florida Statutes § 775.021(4).

Defendant moved to dismiss the counts for Vehicular Homicide, arguing that the retroactive application of State v. Maisonet-Maldonado would violate Due Process and the Ex Post Facto clause of the Constitution because the offenses occurred prior the change in the law.  The trial court granted the motion, and the State appealed.

The Fourth DCA reversed and reinstated the counts.  The Court held that application of a judicial opinion does not generally constitute a violation of the prohibition on ex post facto laws.  The clause applies to a judicial opinion only when it results in ‘an unforeseeable enlargement of a criminal statute.’  Because Florida Statutes § 775.021(4)’s plain language abrogates the Single Homicide Rule, this was not unforeseeable.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Kenneth Wayne Bowers v. State of Florida, Docket # 5D23-2930

Defendant was charged with Burglary of a Dwelling after DNA evidence linked him to the crime.  However, the State failed to preserve a portion of the original DNA evidence collected at the time of the initial investigation.  Defendant moved to dismiss the Information based on violation of Speedy Trial and statute of limitations, and the trial court denied the motion.   He petitioned for a writ of prohibition in the Fifth DCA, which granted his petition on statute of limitations grounds.

CLICK TO READ Mykel Anthony Nelson v. State of Florida, Docket # 5D22-0703

This appeal presents the question whether a trial court may rely on a defendant’s lawful firearm possession in sentencing him. The Fifth DCA held e that it may not. Courts deprive defendants of Due Process when they rely on uncharged and unproven conduct during sentencing, and this principle holds especially true where the uncharged conduct is the lawful exercise of a constitutional right.

Defendant was charged with selling marijuana on multiple occasions to a confidential informant and possession.  Police executed a search warrant at his home and found 28 pounds of marijuana.  Defendant had no prior record.  He pled no contest to the charges, and agreed to a sentence between 36 and 87.23 months imprisonment.  At sentencing, the State presented two photos of firearms found in Defendant’s home, and stated that “a possible murder a couple of months ago that was probably related to the sale of cannabis” had occurred in Citrus County. However, the State did not argue that Nelson himself was in any way connected to the murder, and it conceded that it did not bring any firearm-related charges against him.  The court imposed the 87.23 month sentence, specifically stating that “what hurts you the most, Mr. Nelson, was . . . the photographs of the guns. They did not charge with those. I did not take that into account; but why you did this, I do not know.”  Defendant appealed his sentence.

The Court reversed and remanded for new sentencing before a different judge.

SIXTH DISTRICT COURT OF APPEAL

No reversals reported.