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 Extortion, malice, search incident to arrest, Aggravated Battery with a Firearm, Aggravated Assault with a Firearm, possession of a firearm by a convicted felon, motion to suppress, warrantless search, inevitable discovery doctrine, suppression of evidence, 3.850 motion for post-conviction relief, abuse of discretion, Possession of a Controlled Substance, knock and announce requirement, arrest warrant, DUI investigation, reasonable suspicion, DUI stop, Rule 3.800 motion to correct sentence, Rule 3.800(a) motion to correct illegal sentence, resentencing, 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

CLICK TO READ Kevin F. Tomlinson v. State of Florida, Docket # SC2021-1204

In this appeal, the Florida Supreme Court decided whether Florida Statutes § 836.05 requires the State to prove that a defendant made a threat “intentionally and without a lawful justification” and that the defendant acted with ill will, hatred, spire, or evil intent.  The Supreme Court held that the State satisfies its burden to prove extortion just by proving a defendant made a threat “intentionally and without a lawful justification” and does not have to prove actual malice.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Emmanuel Reynolds v. State of Florida, Docket # 2D22-3834

 Appeal of an Order denying Rule 3.850 motion for post-conviction relief and motion for rehearing, case reversed and remanded for rehearing because the trial court abused its discretion.

After the Defendant’s motion Rule 3.850 motion was stricken for facial insufficiency, he was given an opportunity to amend the motion.  Defendant’s lawyer failed to amend, and the trial denied the motion in a final order.  The lawyer then filed a motion for rehearing, alleging she had been out sick and mistakenly believed that a motion for an extension of time had been filed, and simultaneously filed an amended Rule 3.850 motion.  The trial court denied the motion.

The Second DCA reversed, finding that the denial of the motion for rehearing was an abuse of discretion because the second amended motion was filed within the two-year statute of limitations.

CLICK TO READ State of Florida v. Robb Melhous Wallin, Docket # 2D22-3145

State appeal of an order granting suppression of physical evidence collected from a motel room while executing an arrest warrant, order reversed, suppression denied.

Defendant lived in a motel room in Sarasota County.  The court in Charlotte County issued a warrant for Defendant’s arrest, and Sarasota law enforcement officers went to the motel to execute the warrant.  Upon arriving at Defendant’s room, they saw the sliding glass doors completely wide open, and looked inside but did not enter.  They saw Defendant in the room with drugs and paraphernalia on the bed, and begin to use drugs.  The police walked in and announced they had a warrant, placed him under arrest, and collected the drugs and paraphernalia.  Defendant was charged with Possession of a Controlled Substance and related offenses.

Defendant moved to suppress, arguing that the police violated the knock-and-announce requirement of Florida Statutes § 901.19.  The trial court granted Mr. Wallin’s motion and suppressed the evidence.  The State appealed the order granting suppression.

The Second DCA reversed, finding that the knock-and-announce requirement of Florida Statutes § 901.19 was inapplicable because the door to the room was open and no force was used or needed to enter.

Order reversed, Information reinstated.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Eric Zonk Ward v. State of Florida, Docket # 4D21-3229

State’s cross-appeal of sentence for Sexual Battery, sentenced reversed, remanded for resentencing.

Defendant was convicted of Sexual Battery.  His original Criminal Punishment Code scoresheet indicated that the lowest permissible sentence on the sexual battery charge was 7.875 years.  He moved for a downward departure, but the court never granted the motion and said nothing to lead him to believe that it was considering a sentence below the Scoresheet.  At the conclusion of the sentencing hearing, the court pronounced “I’ll adjudicate you guilty of sexual battery, sentence you to serve 7.875 months in the Department of Corrections.”  Approximately seven seconds after appellant left the courtroom, the judge acknowledged that he had misspoken when he said “months” instead of “years,” and corrected himself on the record.  Defendant moved to correct his sentence pursuant to Rule 3.800(b)(2) and asked for his sentence of months to be reinstated, and also challenged the calculation of 80 sexual penetration points.  The State opposed but conceded that appellant should be resentenced using a scoresheet with 40 sexual contact points instead of 80 sexual penetration points.  The trial court granted appellant’s motion to correct the sentence and scheduled an evidentiary hearing on his argument that his 7.875-month sentence should be reinstated to avoid violating double jeopardy principles. The court also granted resentencing based on the scoresheet error.  At the resentencing hearing, the amended Scoresheet indicated a lowest permissible sentence of 5 years and 4.5 months, and the court sentenced Defendant again to 7.875 “months” instead of years.  The State objected to the sentence imposed, arguing “that the 7.875 years could have been applied.”

The Fourth DCA held that Double Jeopardy did not preclude correction of the court’s sentencing error because Defendant did not have a legitimate expectation in the finality of his sentence, especially where he appealed his conviction.  Further, because the 7-month sentence fell below the lowest permissible sentence, it would have had to be based on a downward departure, which requires written or oral reasons for the departure.

CLICK TO READ Haijia Wu v. State of Florida, Docket # 4D22-3301

Haijia Wu appeals her conviction for driving under the influence. The State concedes error on a dispositive issue. The State agrees it failed to present sufficient evidence that the officer had reasonable suspicion to stop her car. As a result, the State agrees “the DUI investigation and resulting arrest were illegal.” The Fourth DCA accepted the State’s confession of error, reversed Wu’s conviction, and remanded with instructions for the county court to vacate Wu’s conviction.

CLICK TO READ State of Florida v. Eliana Velasco, Docket # 4D23-264

State’s appeal of an order granting suppression, order reversed, case reinstated and remanded.

Defendant was stopped for speeding at 83 miles per hour in a posted speed limit of 35 miles per hour.  Upon being pulled over, Defendant stopped suddenly, and the police officer noticed a cop of liquid on the floor and smelled alcohol on the Defendant’s breath, and she had bloodshot, watery eyes and slurred speech.  Based on this, the officer conducted a DUI investigation, and Defendant admitted she had three mixed drinks and three shots.  The trial court held that the officer lacked reasonable suspicion to conduct a DUI investigation and suppressed all of the evidence.

The Fourth DCA reversed, finding that the while speeding by itself does not justify reasonable suspicion to conduct a DUI investigation, the officer’s observations of the sudden stop, alcohol smell, the cup of liquid, her appearance and slurred speech constituted grounds for reasonable suspicion.  Order reversed, suppression denied, case reinstated.

CLICK TO READ Jordan B. Palmer v. State of Florida, Docket # 4D23-775

Defendant appeals from the denial of a Rule 3.800(a) motion to correct an illegal sentence.  The Fourth DCA held that Defendant was entitled to de novo resentencing on count I after his conviction and sentence on count II were vacated on direct appeal.  Generally, when a conviction is vacated, de novo resentencing with a new scoresheet is required for the remaining counts. The failure to hold de novo resentencing can be raised in a rule 3.800(a) motion.  Here, the trial court incorrectly denied the motion.  The case was remanded for resentencing.

FIFTH DISTRICT COURT OF APPEAL

No reversals reported.

SIXTH DISTRICT COURT OF APPEAL

CLICK TO READ Jamari Jean v. State of Florida, Docket # 6D23-1255

Appeal of a conviction for possession of a firearm and ammunition by a convicted felon; conviction reversed, suppression of the gun and ammunition granted, case dismissed.

After obtaining an arrest warrant for Aggravated Battery with a Firearm and Aggravated Assault with a Firearm, police conducted surveillance on Defendant’s home and watched him ride up to the home on a bicycle.  The police approached Defendant, who was wearing a backpack and a fanny pack, followed him into the garage and tackled him, placing him in handcuffs.  The police removed both bags from his body and placed it on the hood of the police car 8-10 feet away from him while Defendant remained rear-cuffed.  The fanny pack had a keylock on it, and police found a key on the Defendant and used it to unlock the lock, finding a loaded firearm inside.  Police never sought or obtained a warrant to search the locked fanny pack.  Defendant unsuccessfully moved to suppress the gun, and after the motion was denied, entered a no-contest plea but reserved the right to appeal.

The Sixth DCA reversed, finding that once Defendant was rear-cuffed and the bags taken 10 feet away from him, there was no reason to search based on officer safety or destruction of evidence, and thus the search was not a lawful search incident to arrest.  Further, the Court held that the inevitable discovery doctrine did not apply.

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WEEK-SPECIFIC:

 Extortion, malice, search incident to arrest, Aggravated Battery with a Firearm, Aggravated Assault with a Firearm, possession of a firearm by a convicted felon, motion to suppress, warrantless search, inevitable discovery doctrine, suppression of evidence, 3.850 motion for post-conviction relief, abuse of discretion, Possession of a Controlled Substance, knock and announce requirement, arrest warrant, DUI investigation, reasonable suspicion, DUI stop, Rule 3.800 motion to correct sentence, Rule 3.800(a) motion to correct illegal sentence, resentencing,