Florida Criminal Caselaw Roundup – July, 2023

July 31, 2023

Jack Palmeri, Esq.

Jack Palmeri, a former New York City prosecutor with 19 years of experience in criminal law, is a Senior Associate for Weinstein Legal’s criminal division, practicing across Florida and its Federal Courts. You can reach him directly at 888-408-0253 or at www.Weinstein-Legal.com.

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 Aggravated Battery, cross-examination, impeachment, abuse of discretion, revocation of probation, probation violation, condition of probation, child pornography, modify sentence, juvenile offender, Use of a Computer to Seduce, Solicit or Entice a Child to Commit a Sex Act, Lewd and Lascivious Battery, entrapment, Information, discovery violation, unfair surprise, criminal contempt, contempt of court, 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.

FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ Patrick O’Neal McCall, Jr. v. State of Florida, Docket # 1D21-3494

Appeal of a conviction after a jury trial of Aggravated Battery on a Pregnant Woman, a Second Degree Felony, Florida Statutes 784.045(1)(b). Conviction reversed and remanded for a new trial.

At trial, the woman pregnant with Appellant’s baby testified that on the date of the incident she was in a relationship with the Defendant. When asked to identify him in court, she hesitated and said that she could not see without her glasses. She also said that on the day in question, she hit herself by mistake during an argument with her boyfriend, and he never hit her. She further testified that a woman named Andrea Davis arrived and she told Davis she did not want to talk with her, walked away, and Davis called the police.

Andrea Davis testified at trial that she saw a man hitting the complainant at a bus stop, and she confronted the man, and called the police. Her 911 call was admitted into evidence and played for the jury. On cross-examination, counsel did not ask Davis if she had ever told anyone that she had not seen the incident, and Davis was excused as a witness. Another witness, Elisia Carter, testified the complainant and the Defendant left her apartment near the bus stop on the day of the incident, and the complainant called her 15 minutes later, crying and claiming Defendant had hit her. Both Carter and Davis testified in jail clothes having been arrested for failing to appear at Appellant’s first trial date a month earlier. Carter testified that Appellant had contacted her and indicated she did not need to come to court, because the victim had recanted. Carter then relayed that information to Davis.

After the State rested, Carter was called as a defense witness, and testified that the complainant had no injuries on the date of the incident. Carter also testified that she was in the same pod at the jail with Ms. Davis. Defense counsel asked if Carter had heard Davis making statements to other inmates, which drew a hearsay objection. Defense Counsel argued it was impeachment evidence, because Carter had overheard Ms. Davis saying she did not see anything. The trial court sustained the objection.

Defense counsel attempted to recall Davis to ask her if she made a statement to anyone at the jail about her testimony. The trial court denied the request. During an offer of proof, Carter testified that Davis told her she had not witnessed the incident. Defendant was found guilty and sentenced to 15 years as a Prison Release Reoffender.

The First DCA reversed and granted a new trial. The Court held that Appellant was attempting to reopen cross-examination to impeach Davis’ prior testimony, not call a witness for the sole purpose of impeaching them. It is widely accepted in Florida and elsewhere that “it is an abuse of discretion for the trial court to deny a request to recall a witness if the denial will deprive the defendant of an opportunity to present evidence crucial to the defense.”

New trial ordered.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Angel Steven de la Rosa v. State of Florida, Docket # 2D22-1284

Appeal of an Order revoking probation and amending probation, order reversed because the State failed to prove Defendant violated a valid condition of his probation.

In 2013, Defendant pled guilty to seventy-eight counts of possession of child pornography, violations of Florida Statutes 827.071(5), Florida Statutes, which were reclassified as Second Degree Felonies pursuant to Florida Statutes 775.0847(2).The trial court sentenced de la Rosa to fifteen years’ sex offender probation on count one and to five years’ sex offender probation on counts two through seventy-eight, concurrent with each other but consecutive to count one for a total of twenty years’ probation.

In 2021 the probation officer filed an affidavit of violation of probation, claiming Special Condition 9 was violated because Defendant failed to plug in his electronic monitoring device at 10 pm each night as instructed. The Second DCA held that the Probation Officer’s instruction that he place the device on the charger every night was an additional condition of probation that the Probation Officer lacked the authority to imposed. Because the condition was invalid, Defendant could not commit a violation of probation.

CLICK TO READ Jeffrey Murphy v. State of Florida, Docket # 2D22-642

Appeal of an Order denying Defendant’s motion to modify his sentence pursuant to Florida Statutes § 921.1402, which allows for review of sentence for offenses committed while under the age of 18, order reversed and case remanded.

The statute requires the court to consider whether a juvenile offender was been rehabilitated and is reasonably believed to be fit to renter society. If so, the court is required to resentence the juvenile offender to 5 years of probation. Here, the Second DCA held that the trial court’s denial was not supported by competent substantial evidence.

At the hearing, Defendant presented unrebutted testimony of a forensic psychologist who testified that he was rehabilitated and fit to re-enter society. The trial court decided to use the aggravating and mitigating factors applicable to death penalty cases, and then relied upon its own personal experience regarding the risk of reoffending, and relied on information other than the evidence presented.

Order reversed, remanded with instructions to resentence Defendant.

CLICK TO READ State of Florida v. Ernest Panebianco, Docket # 2D22-307

State appeal of an order dismissing all charges, order reversed, Information reinstated.

Defendant was charged with Use of a Computer to Seduce, Solicit or Entice a Child to Commit a Sex Act, Florida Statutes 847.0135(3)(a), 847.0135(4)(a), and Attempted Lewd and Lascivious Battery on a Victim 12 or Older But Less than Sixteen, Florida Statutes 800.04(4)(a). Defendant moved to dismiss the Information, arguing he was entrapped by law enforcement. The trial court granted the motion, finding there was insufficient evidence to show solicitation or enticement as a matter of law, and that Defendant was subjectively and objectively entrapped. The court also held that the State could not show Defendant was ready, willing and able to commit the offenses without persuasion by law enforcement.

The Second DCA reversed. The court found that Defendant’s actions in talking with an undercover officer posing as a 14-year old girl, and making suggestions of sexual contact did not constitute entrapment. This was also because Defendant asked several times over text messages if the undercover officer was the police.

Order reversed, Information reinstated.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ Eric J. Graveran v. State of Florida, Docket # 3D22-549

Appeal of Order revoking probation and imposing sentence, order reversed, violation of probation dismissed.

The trial court failed to enter a written order finding the Defendant mentally competent to proceed before it revoked his probation based upon a violation of probation. The case was remanded for a retroactive determination of the Defendant’s competency, and hold a new hearing if it finds that he was competent to proceed.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Adriaan Roderick McDonald v. State of Florida, Docket # 4D22-886

Appeal of a conviction after a jury trial for 15 counts of Possessing, Controlling or Intentionally Viewing Sexual Performance by a Child while in Possession of Ten or More Images of Child Pornography. Conviction reversed, new trial ordered.

DropBox – an online digital storage cloud service – reported to law enforcement that a Gmail account user had uploaded 33 video or image files that contained child pornography. Defendant was interviewed by law enforcement, and admitted to having a Yahoo email address which matched the Gmail address, and provided his phone number. However, he never admitted that the Gmail account was his, and went to trial with that defense.

At trial, he presented his defense that the Gmail account was not his, and neither were the child pornography images. At rebuttal, the State offered into evidence a record from Google linking the Gmail address to Defendant’s name and phone number. Defense counsel objected on the basis that the state had not produced the record in discovery. The trial court conducted a Richardson hearing, determined that the state’s discovery violation was not willful and that the defendant was not procedurally prejudiced, and allowed the state to admit the record.

The Fourth DCA reversed, holding that the late disclosure at trial constituted unfair surprise, and because the State Attorney relied on the Gmail address during his closing argument, constituted prejudice which was not harmless error. Accordingly, because the trial court’s ruling severely undermined the defendant’s testimony and theory of his case causing procedural prejudice, a new trial was ordered.

Additionally, the Fourth DCA held that the prosecutor’s closing argument where he argued that Defendant used Kik, Omegle, and Mega (applications or websites) which “are used for trading illegal child pornography.” However, there was no evidence presented at trial to support this claim, making the argument inflammatory and improper. The Fourth DCA issued a warning not to make the same or similar arguments at retrial.

Conviction reversed, new trial ordered.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Amanda C. Micallef v. State of Florida, Docket # 5D22-549

Appeal by an attorney from an order finding her in direct criminal contempt of court for her repeated failure to timely appear before the trial court. Order reversed.

The Attorney was late to court a few times by no more than 30 minutes while representing a criminal defendant, sometimes by only 5 minutes. After being late to court 5 minutes, the court held her in direct criminal contempt and did not give her an opportunity to explain her reasons for being late, or allow her to present evidence. The Fifth DCA reversed, finding that the trial court failed to follow the provisions of Florida Rule of Criminal Procedure 3.830, which requires strict compliance.

Order reversed, remanded to conduct new contempt proceedings.

SIXTH DISTRICT COURT OF APPEAL

No reversals reported.