FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

No reversals reported.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ A.B., a child v. State of Florida, Docket # 4D19-3873

Juvenile appeals the trial court’s disposition orders adjudicating him delinquent and committing him to a nonsecure residential program. The State concedes, the trial court erred when it failed to make the written findings required by section 985.441(2)(d), Florida Statutes (2019). The trial court made an oral pronouncement at the disposition hearing to support its decision to commit the juvenile to a nonsecure residential program, finding that the juvenile’s needs would be best met by a nonsecure program.

Despite the trial court’s indication that it would reduce its findings to writing, it failed to do so. Affirm the juvenile’s adjudications of delinquency, but reverse his commitment and remand for the trial court to reduce its oral findings to writing in compliance with section 985.441.

CLICK TO READ Lex Lugard Eugene v. State of Florida, Docket # 4D19-992 and 4D19-1281

On motion for rehearing court withdraws opinion and issues this in its place. Appeals his judgments and sentences entered after a jury found him guilty of: vehicular homicide; fleeing or attempting to elude an officer causing serious bodily injury or death; operating a motor vehicle carelessly or negligently causing death or serious injury without having a driver’s license; and resisting an officer without violence. The state cross-appeals the trial court’s order dismissing the count charging Appellant with fleeing or attempting to elude an officer causing serious bodily injury or death, based on the single homicide rule.

Because the trial court relied on judicial precedent regarding the single homicide rule that state supreme court has now determined is no longer applicable, reverse the trial court’s dismissal of the fleeing and eluding charge, which the jury determined the state proved beyond a reasonable doubt. Remand the case for the trial court to proceed with sentencing on that charge.

CLICK TO READ Mohamed Donald v. State of Florida, Docket # 4D19-3461

Appeals his sentence for three counts of grand theft and three counts of unlawfully operating as a real estate broker. As the State concedes, the sentence contravened a Florida sentencing statute, as interpreted by the Florida Supreme Court. Reverse the sentence and remand for resentencing consistent with this opinion.

Fraudulently posed as areal estate agent, collected fees and stopped communicating with clients. Pled no contest to six felonies and scored 14.5 points. Requested probation, but judge heard from victims and sentenced him to 15 years in prison with 10 years of probation. Made written finding that he was a danger to the community.

Filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) that raised the sentencing issue considered in this appeal. The circuit court denied the motion. Section 775.082(10), Florida Statutes (2016) provides that if (1) a defendant is sentenced for a qualifying felony and (2) the defendant’s sentence points are 22 or fewer, “the court must sentence the offender to a nonstate prison sanction.” Significantly, the statute contains an exception: “[I]f the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.” Id.

The Florida Supreme Court has held that a section 775.082(10) dangerousness finding must be made by a jury, not a judge. Brown v. State, 260 So. 3d 147, 150 (Fla. 2018). The statute violates the Sixth Amendment by “requiring the court, not the jury, to find the fact of dangerousness to the public necessary to increase the statutory maximum nonstate prison sanction.” Id. “[F]or a court to impose any sentence above a nonstate prison sanction when section 775.082(10) applies, a jury must make the dangerousness finding.” Id. at 151.

Reverse the sentence and remand to the circuit court “for resentencing with instructions to either impose a nonstate [prison] sanction of up to one year in county jail or empanel a jury to make the determination of dangerousness, if requested by the State.” Gaymon v. State, 288 So. 3d 1087, 1089–90 (Fla. 2020).

CLICK TO READ Rod Lee Bruce v. State of Florida, Docket # 4D19-3877

Appeals the trial court’s resentencing order which was entered on remand after reversed and remanded for a de novo resentencing hearing in Bruce v. State, 276 So. 3d 1 (Fla. 4th DCA 2019) (Bruce I). Defendant was found guilty of one count of burglary of an occupied dwelling, one count of burglary of a dwelling, and two counts of grand theft. The trial court sentenced Defendant to concurrent 40-year prison sentences as a Prison Releasee Reoffender (“PRR”) and a Violent Career Criminal (“VCC”) on each of the burglary counts and concurrent 5-year prison sentences on each of the grand theft counts. In Bruce I, Defendant appealed his convictions and sentences, arguing, among other things, that the trial court erred in designating him as a VCC. Did not challenge PRR status. Reversed on VCC.

State did not produce any evidence at resentencing that he was a PRR. Focused on concurrent versus consecutive PRR sentence. During the appeal Defendant filed a rule 3.800(b)(2) motion to correct a sentencing error below, arguing that the trial court deprived him of a de novo resentencing hearing. Defendant argued the trial court “did not require the State to present evidence proving that he was PRR, or entertain arguments against his PRR status.” The trial court denied the motion, concluding that by affirmatively agreeing at the resentencing hearing that he qualified for a PRR designation, Defendant waived any challenge to the sufficiency of the State’s evidence.

It is well established “that where a sentence has been reversed or vacated, the resentencings in all criminal proceedings . . . are de novo in nature.” State v. Fleming, 61 So. 3d 399, 406 (Fla. 2011). This means that “[r]esentencing must proceed as an entirely new proceeding where all issues bearing on the proper sentence must be considered de novo and the defendant is entitled to the full array of due process rights.” Heatley v. State, 279 So. 3d 850, 852 (Fla. 2d DCA 2019) (citing State v. Collins, 985 So. 2d 985, 989 (Fla. 2008)). Thus, “the State is required to produce evidence during the new sentencing proceeding to establish facts even if those facts were established during the original sentencing proceeding.” Lebron v. State, 982 So. 2d 649, 659 (Fla. 2008).

Although defense counsel’s stipulation that Defendant qualified as a PRR may have alleviated the State of its evidentiary burden, it did not alleviate the trial court of its obligation to conduct a de novo resentencing hearing. At the very least, in a situation where defense counsel stipulates that the defendant qualifies as a PRR, the trial court should confirm that the state is seeking PRR sentencing, acknowledge the stipulation, and verify the defendant’s consent to the stipulation. Doing so allows the appellate court to confirm that the trial court treated the resentencing hearing de novo.

Reverse the burglary sentences and remand for a de novo resentencing hearing.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Freddie Parker, Docket # 5D20-673

State appeals the trial court’s order granting Appellee, Freddie Parker’s, motion to suppress the cocaine and marijuana seized from his vehicle following a traffic stop, as well as any statements that Parker made to the deputy sheriffs during the stop.

Parker was stopped by police for blocking roadway while talking to bicycle rider. Police noted tint too dark and upon stop smelled marijuana. Parker was detained; and the two deputies proceeded to conduct a warrantless search of Parker’s car, where they found cocaine and a partially-smoked marijuana cigarette. Arrested and charged with possession of cocaine.

Moved to suppress the cocaine and the marijuana recovered from his car as well as any statements that he made to the deputies during the traffic stop. Parker argued that the deputies had no probable cause to stop his vehicle for the alleged window tint violation, nor did the location of his stopped vehicle in the road provide them with probable cause that he had committed a traffic infraction. Parker also argued in his motion that based upon recent amendments to Florida’s medical marijuana statute, codified at section 381.986, Florida Statutes (2019), and with the 2019 enactment of section 581.217, Florida Statutes, titled “State Hemp Program,” the odor of what the deputies perceived to be burnt cannabis emanating from his car no longer provided the deputies with probable cause to conduct the warrantless search.

Evidentiary hearing held where court determined that tint was a pretext to stop. When addressing the constitutional validity of a traffic stop, a trial court is tasked with applying “a strict objective test which asks only whether any probable cause for the [traffic] stop existed.” Holland v. State, 696 So. 2d 757, 759 (Fla. 1997) (citing Whren, 517 U.S. at 819). The trial court here erred when it did not apply this objective test to determine whether the deputies had probable cause for their traffic stop of Parker’s vehicle.

The trial court erred when it did not apply the objective test under Whren that required it to resolve whether the deputies had probable cause to believe that Parker had committed a traffic violation. Because the court applied an incorrect standard in determining the constitutional validity of the stop, reverse the order granting the motion to suppress and remand for further proceedings consistent with this opinion.