FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ J.A.R. v. State of Florida, Docket # 2D18-4975

Appeals an order adjudicating him delinquent for committing the offenses of burglary of an unoccupied dwelling, grand theft of a motor vehicle, and resisting arrest without violence. Argues that court erred in denying motion for judgment of dismissal and erred in imposing fee for the public defender without giving him notice of his right to a hearing regarding the fee. Agree on both.

Argues that the state did not show that the Jeep he was driving belonged to the victim. In light most favorable to the state evidence did not establish the offenses of burglary and grand theft. James White testified at trial that he owned a gray, four-door, 1999 Jeep Grand Cherokee, and he testified as to the Jeep’s license tag number. Reported Jeep stolen and was notified by police that they had found it and he could pick it up. State put up police officer to testify. The State did not ask Officer Wolff to identify the Jeep’s year or license plate number. The State also did not ask him if anyone had contacted the Jeep’s owner or what had happened to the Jeep after it was stopped.

The allegation as to the owner of the vehicle is a material element of the crime of burglary of a conveyance and “must be proven as alleged in the detention petition or information.” (quoting L.D.S. v. State, 784 So. 2d 1227, 1228 (Fla. 2d DCA 2001)). “Similarly, ‘[t]o convict a person of grand theft auto, the State is required to present evidence that the vehicle in possession of that person was the vehicle identified by the victim as stolen.’ ” Id. (alteration in original) (quoting

Joseph v. State, 956 So. 2d 1232, 1234 (Fla. 4th DCA 2007)). The prosecutor never asked him about the Jeep’s license plate number, the vehicle identification number, the year of the vehicle, whether the victim’s mother picked up the Jeep, or whether the victim or his mother ever identified the Jeep.

Reverse order adjudicating delinquent for committing the offenses of burglary of an unoccupied dwelling and grand theft of a motor vehicle. Affirm the adjudication of delinquency for the offense of resisting an officer without violence. The evidence established that J.A.R. continued to flee after being instructed by the officer to stop. Reverse public defender fee because he did not have a hearing. Conflict certified.

CLICK TO READ Jonathan Shortridge, Docket # 2D19-1376

Appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Post-conviction court lacked jurisdiction to withdraw a prior order granting motion for post-conviction relief and enter an order denying the motion. Reversed.

In his 3.850 motion, argued that his sentence was unconstitutional in light of the decision in Atwell v. State, 197 So. 3d 1040 (Fla. 2016), among others. Relying on Atwell, the postconviction court granted the motion in February 2017 and ordered a resentencing hearing. The State did not appeal the order. While he was awaiting resentencing, the State moved for reconsideration of the postconviction court’s order, relying on State v. Michel, 257 So. 3d 3 (Fla. 2018). In an order entered February 2019, the court granted the State’s motion, withdrew the order granting resentencing, and denied the motion for postconviction relief. However, the postconviction court lacked jurisdiction to withdraw the February 2017 order. Remand for resentencing hearing. May receive same sentence at resentencing.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Emmanuel Rosado v. State of Florida, Docket # 5D18-1763 and 5D19-262

Appeals the judgment and sentence entered after a jury found him guilty of battery and attempted second-degree murder. While appeal was pending, he filed two motions to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2); one challenging the costs of investigation and the other challenging his life sentence based on an alleged Apprendi violation. The trial court dismissed the rule 3.800(b)(2) motion challenging the costs of investigation, and it granted the rule 3.800(b)(2) motion based on the Apprendi violation and resentenced Rosado to thirty years in prison.

Appeals several issues and the denial of the 3.800(b) and state cross appeals granting of his second 3.800(b) motion. Reverse denial of the 3.800(b) on costs of investigation and reverse 3.800(b)(2) motion. Order resentencing. Affirm in all other respects.

Stemmed from attempted murder charges on wife and deputies responding to domestic disturbance. The trial court entered an order granting the rule 3.800(b)(2) motion, concluding that there was an Apprendi violation because the verdict form failed to reflect the special finding that Rosado had knowledge of the victim’s status as a law enforcement officer at the time he committed the crimes. State argues that the trial court erred when it granted Rosado’s rule 3.800(b)(2) motion because the jury was properly instructed on each element of the lesser-included offense of attempted second-degree murder, and it is apparent that the jury found each element of the crime beyond a reasonable doubt.

In Apprendi, the United States Supreme Court reiterated that a criminal defendant is entitled to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”

In Ramroop, the Florida Supreme Court considered the statute at issue here, section 782.065, Florida Statutes, which carries a mandatory life sentence for the attempted second-degree murder of a law enforcement officer. Here, the trial court made the findings of fact on the elements and did not require special jury instructions. Trial court erred in sentencing to 30 years.

CLICK TO READ Jerome McCray v. State of Florida, Docket # 5D20-566

Appeal trial court’s denial of a motion for post-conviction relief pursuant to Rule 3.850. Affirm on five of the six grounds, but reverse on double jeopardy violation.

The State charged Appellant with: count I, lewd or lascivious molestation by a person over eighteen years of age to a victim under twelve years of age, in violation of section 800.04(5), Florida Statutes (2016); count II, attempted lewd or lascivious molestation by a person over eighteen years of age to a victim under twelve years of age, in violation of sections 800.04(5) and 777.04(1), Florida Statutes (2016); and count III, lewd or lascivious conduct by a person over eighteen years of age, in violation of section 800.04(6), Florida Statutes (2016).

Appellant’s acts of touching the victim’s breasts in violation of section 800.04(5) and kissing the victim’s neck in violation of section 800.04(6), were a part of the same criminal episode. Therefore, a conviction under each statute cannot be upheld in this case.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ United States v. Winyontis Quavari Gordon, Docket # 19-13708

Appeal of 192-month sentence upon a guilty plea to Felon In Possession of a Firearm, 18 U.S.C. § 922(g)(1) and sentence under the Armed Career Criminal Act (ACCA).  At issue is the enhanced sentenced.

In order to determine whether a conviction qualifies as a “violent felony” under ACCA, courts have to look to the charging document, plea agreement, transcript of plea, or some other judicial record.  The Supreme Court has held that touching or striking battery does not qualify as a predicate “violent felony” but causing bodily harm does.

Defendant was convicted of felony battery under Florida Statute § 784.03(2), which bumps-up a misdemeanor battery to a felony when a person has a prior conviction for battery.  The District Court relied upon the Sentencing Scoresheet for Defendant’s prior felony battery conviction, which did not specify the specific subdivision of Florida Statute § 784.03 under which Gordon was convicted.  The Scoresheet states that the victim’s injury was “slight” which the Eleventh Circuit held does not provide the requisite certainty Gordon was convicted of the “bodily harm” subsection of the battery statute.  Thus, the District Court erred in concluding Gordon’s conviction for battery under Florida Statute § 784.03 was a violent felony.

Sentence reversed, remanded for resentencing.

CLICK TO READ United States v. Yoel Graveran-Palacios and Noel Graveran-Palacios, Docket # 18-13814

Appeal by two twin brothers for Access Device Fraud, Aggravated Identity Theft, Conspiracy to Commit Access Device Fraud after trial.  Convictions affirmed, but sentence of one Defendant reversed and remanded for resentencing. 

The District Court plainly erred by failing to make findings of the actual loss amount attributable to Yoel.  The Pre-Sentence Report did not include a list of victim banks or calculations of actual loss.  Instead, the District Court relied on his brother’s PSR.  The error here resulted in a 2-level increase in the Sentencing Guideline range for 10 victims or more, and a higher sentence of imprisonment. 

Nor is the order of restitution sufficient to meet the requirement that District Courts make specific factual findings of the loss calculation.  As a result, the restitution order was also erroneous.

Reversed and remanded for resentencing.