FLORIDA SUPREME COURT

CLICK TO READ State of Florida v. Elizabeth Francis Marsh, Docket # SC18-1108

State seeks review of the decision in Marsh v. State, 253 So. 3d 674, 675 (Fla. 2d DCA 2018), on the ground that it expressly and directly conflicts with the Fifth District’s decision in Lott v. State, 74 So. 3d 556, 559-61 (Fla. 5th DCA 2011), and the Fourth District’s decision in Anguille v. State, 243 So. 3d 410, 414-15 (Fla. 4th DCA 2018).1 Because the same-elements test in section 775.021, Florida Statutes (2014), controls whether dual convictions violate the prohibition against double jeopardy.

On appeal, Marsh argued that dual convictions for DUI with serious bodily injury and DWLS with serious bodily injury as to the same victim were prohibited by double jeopardy principles. Relying on its decision in Kelly v. State, 987 So. 2d 1237, 1238 (Fla. 2d DCA 2008), the Second District held that Marsh’s convictions violated the single homicide rule, which prohibited multiple convictions arising from a single killing.

Hold that dual convictions for driving under the influence causing serious bodily injury and driving with license suspended causing serious bodily injury are not prohibited. Accordingly, quash the Second District’s decision in Marsh and approve the Fifth and Fourth District’s opinions in Lott and Anguille to the extent they are consistent with this opinion. Dual convictions for DUI with serious injury and DWLS with serious injury are not prohibited under the Blockburger same-elements test or any statutory exceptions codified in section 775.021(4), Florida Statutes. Therefore, dual convictions for these offenses do not violate the constitutional prohibition against double jeopardy.

 CLICK TO READ State of Florida v. Jose Maisonet-Maldonado, Docket # SC19-1947

 Reviewed as a question of great public importance. Question is as follows: DOES THE “SINGLE HOMICIDE” RULE FOUND IN HOUSER V. STATE, 474 SO. 2D 1193 (FLA. 1985), PRECLUDE SEPARATE CONVICTIONS OF VEHICULAR HOMICIDE AND FLEEING AND ELUDING CAUSING SERIOUS INJURY OR DEATH THAT INVOLVE THE SAME VICTIM?

Stabbed his girlfriend and then ran her over with a car resulting in death. Then fled law enforcement resulting in a crash and two additional deaths. A jury convicted Maisonet-Maldonado of one count of first-degree murder with a weapon for the murder of Ms. Alvelo, three counts of fleeing or attempting to elude a law enforcement officer causing serious injury or death, and two counts of vehicular homicide. Amanda Taylor and Francesca Jeffrey were each named as the victim for one count of fleeing and eluding causing serious bodily injury or death and one count of vehicular manslaughter.

Convictions upheld. Filed a Rule 3.850 motion for post-conviction relief arguing, among other things, that convictions for vehicular homicide and fleeing or eluding a law enforcement officer causing serious injury or death violated the constitutional prohibition against double jeopardy. On appeal, the Fifth District concluded that Maisonet-Maldonado’s convictions were prohibited under the single homicide rule, which prohibits dual convictions for a single homicide under two different statutes. Florida Supreme Court concludes that dual convictions for fleeing or eluding causing serious injury or death and vehicular manslaughter are not prohibited by section 775.021(4), Florida Statutes, answer the certified question in the negative, quash the Fifth District’s decision in Maisonet-Maldonado, and remand for proceedings consistent with our decision.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Alfonso Garcia-Rodriguez, Docket # 2D19-2969

Appeals order revoking probation and the resulting sentence. Was placed on probation in January 2019 and required to wear a GPS ankle monitor. On or about April 26, 2019, the GPS data showed that he entered a strip mall. Drove to north end and then south end for about three and a half minutes. This was the basis for the violation of condition of “visiting a school.” He was asked on April 30^th to come to the probation office. He was required to keep a driving log and the last 5 days were missing. This formed the basis for the second violation.

Argues that the State failed to prove he was at a school. He claimed he was lost and asked for directions. Term “visit” in not further defined and may be ambiguous. it is well established that probation may not be revoked based on a violation of a condition that is ambiguous or vague. See Johnson v. State, 701 So. 2d 367, 370 (Fla. 2d DCA 1997) (“[A]ny ambiguity in a condition imposed at sentencing will affect the state’s ability at a later date to establish a willful violation of that condition.”); Miller v. State, 679 So. 2d 1186, 1186 (Fla. 2d DCA 1996) (condition prohibiting loitering in high drug areas stricken as vague); Wilson v. State, 781 So. 2d 1185, 1187 (Fla. 5th DCA 2001) (condition prohibiting contact with victim was ambiguous as applied); People v. Barajas, 131 Cal. Rptr. 3d 412, 422 (Cal. Ct. App. 2011) (condition prohibiting defendant from being “adjacent” to a school campus was impermissibly vague).

Second condition he argued that he did not read and write well, had cognitive decline, and needed his son to help him with the log and he was forced to report on such short notice. Testimony supported this. State failed to prove either claim of violation. Reversed and remanded for reinstatement of probation.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Hernan Francisco Marin, Docket # 3D19-2179

State appeals trial court’s order granting Marin’s motion to exclude audio-video recording of a controlled call with victim in the underlying case because it contains audible portions discussing the crimes charged. The State charged Marin with one count of aggravated assault with a deadly weapon without intent to kill and one count of felony battery or domestic battery by strangulation.

Controlled call recorded by detective body camera which was hard to hear. Trial court found that recording was largely “inaudible, unintelligible, and ultimately meaningless.” Trial court granted motion and excluded the recording. “The general rule regarding admissibility of partially inaudible tape recordings is that such recordings are admissible unless the inaudible and unintelligible portions are so substantial as to deprive the remainder of relevance.” Commerford v. State, 728 So. 2d 796, 798 (Fla. 4th DCA 1999) (citing Odom v. State, 403 So. 2d 936, 940 (Fla. 1981)).

The State’s evidence at the hearing demonstrated that the recording is largely audible. First, Lieutenant Smith testified regarding what he heard in open court. Second, the transcript of the proceedings contains a transcription of the majority of the recorded call, based on what was played in court.  Thus, the trial court’s finding that the recording was inaudible was not supported by competent, substantial evidence, and it was an abuse of discretion to exclude the recording in its entirety on that basis. Reversed and remanded.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Traci Grosvenor v. State of Florida, Docket # 5D20-1013

On motion for rehearing, withdraw per curiam affirmance. Challenges denial of her Rule 3.800(a) motion to correct illegal sentence. Grosvenor committed the attempted first-degree murder with a firearm in 1989. That offense is normally a first-degree felony punishable by a maximum sentence of 30 years. See §§ 775.082(3)(b), 777.04(4)(a), Fla. Stat. (1989). However, because Grosvenor used a firearm in the commission of the offense, the offense was reclassified to a life felony. See Id. § 775.087(1)(a). At that time, the penalty for a life felony was a sentence of life in prison or “a term of imprisonment not exceeding 40 years.” Id. §775.082(3)(a). Accordingly, the fifty-year sentence imposed for the attempted first-degree murder with a firearm conviction exceeds that statutory maximum, and is illegal, even if Grosvenor agreed to it as part of her plea. Reverse and remand for correction of sentence.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ United States v. Robert A. Gist, Docket # 20-13481

Appeals the district court’s denial of his motion for a reduced sentence under 18 U.S.C. § 3582(c)(1)(A), as amended by Section 603(b) of the First Step Act of 2018, Pub. L. 115 391, 132 Stat. 5194 (“First Step Act”). On appeal, Gist argues that the district court erred by finding that he had not established extraordinary and compelling circumstances.

Here, it is not clear from the district court’s denial of Gist’s motion whether it believed it had the authority to consider Gist’s proffered extraordinary and compelling circumstances. After outlining the changes to § 3582(c)(1)(A) made by the First Step Act, the district court listed the grounds on which Gist sought compassionate release — including his age of 69 years, his medical conditions (hypertension, a cardiac murmur, and prostate cancer), the BOP’s response to the COVID-19 pandemic, his non-violent history, his support system outside of prison, and his personal improvement while incarcerated.

Without knowledge of the district court’s basis for the denial, cannot evaluate whether the district court abused its discretion by denying Gist’s motion. Accordingly, vacate the district court’s denial and remand for clarification as to whether the district court believed that it could consider Gist’s proffered reasons or that it was limited to the reasons as listed in the policy statements to § 3582(c)(1)(A).