FLORIDA SUPREME COURT

No cases reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ James Farrell Davis, Jr., v. State of Florida, Docket # 1D17-4366

Convicted of several offenses arising out of an altercation with neighbors (attempted first-degree premeditated murder, burglary of a dwelling while armed with a firearm, shooting at, into, or within a building, and aggravated assault by threat with a firearm). Whether trial court committed fundamental error by failing to conduct an adequate competency hearing before ruling whether competency to stand trial had been restored. “Once found incompetent, a presumption clings to the criminal defendant that the state of incompetence persists until a court, after proper notice and a hearing, finds otherwise.” Molina v. State, 946 So. 2d 1103, 1105 (Fla. 5th DCA 2006). Nothing in the record to suggest that the court made an independent determination that Davis had been restored to competency before proceeding to trial. Reverse and remand for competency hearing. Court must strike the mandatory minimum term of his life sentence for attempted first-degree premeditated murder because the allegations in the charging document were not sufficient to place him on notice that he was subject to an enhanced sentence under section 775.087(2)(a)3., Florida Statutes (providing for the imposition of a twenty-five-year mandatory minimum when a defendant inflicts death or great bodily harm through the discharge of a firearm). Court erred in imposing a discretionary fine and surcharge, as well as a $300 public defender lien. Court was required to pronounce at sentencing and also did so without providing an opportunity to contest the amount.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Johandy Morejon-Medina v. State of Florida, Docket # 2D18-3539

Argues ineffective assistance of appellate counsel for failing to argue that convictions violate double jeopardy. Disagree that counsel is deficient at time of appeal, but under current law convictions violate double jeopardy. Fundamental error on the face of the record. Soliciting a child to commit a sex act and traveling after soliciting a child to commit a sex act stemming from police posing as 14-year-old girl online. Found guilty by jury. Convictions affirmed. State alleged conduct on separate dates in separate counts. Two years after mandate in direct appeal the Supreme Court settled conflict on the dates issue in Lee v. State, 258 So. 3d 1297 (Fla. 2018). Court treats his assertion of a double jeopardy violation as a request for a writ of habeas corpus and grants it.

CLICK TO READ Stephen Charles Rogers v. State of Florida, Docket # 2D18-3799

Petition for a writ of certiorari asking us to quash an order in which the circuit court, sitting in its appellate capacity, dismissed appeal of the denial of his amended motion for postconviction relief. Because the extreme sanction of dismissal is not warranted under the circumstances of this case, the court grants the petition and quashes the order of dismissal. Issues of whether or not he paid the fee for preparation of the record and whether he was noticed to do so. It is well established that the sanction of dismissal is an extreme sanction and “should be employed sparingly and only after repeated violations or contumacious disregard of a court’s orders.” Well established that Florida’s public policy favors resolving cases on their merits. Fla. Wellness & Rehab. Ctr., Inc. v. Mark J. Feldman, P.A., 262 So. 3d 234, 237 (Fla. 3d DCA 2018). While an appellate court clearly possesses the authority to dismiss an appeal as a sanction where appropriate, this extreme sanction should be “reserved for the most flagrant violations of the appellate rules.” Forehand v. State, 264 So. 3d 333, 335 (Fla. 1st DCA 2019) (citing Lindsey v. King, 894 So. 2d 1058, 1059 (Fla. 1st DCA 2005)). Order to pay was the first and only notice and he diligently pursued his appeal otherwise. Issues with crossed out date stamps and not getting 10 days to comply. conclude that the dismissal constitutes a departure from the essential requirements of the law, and we therefore grant the petition and quash the order of dismissal.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ Domonique Smith v. State of Florida, Docket # 3D18-2319

Appeal dismissal of a motion for post-conviction relief pursuant to 3.850. Summarily denied as legally insufficient. It is well-established that where the trial court denies a timely rule 3.850 motion as “insufficient on its face, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.” Fla. R. Crim. P. 3.850(f)(2); see also Spera v. State, 971 So. 2d 754, 761 (Fla. 2007) (holding that where “a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion”); Brown v. State, 252 So. 3d 332 (Fla. 3d DCA 2018). Reverse and remand for opportunity to file a facially sufficient motion within 60 days.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Eric L. Wiley v. State of Florida, Docket # 4D19-587

Appeal order denying Rule 3.800 motion to correct illegal sentence and prohibiting him from pro se filing. Reverse and remand for new sentencing. convicted of third-degree murder predicated on the underlying felonies of aggravated assault with a deadly weapon and aggravated battery with a deadly weapon. The jury found that Wiley carried and discharged a firearm during the commission of the offense, resulting in the death of the victim. The court sentenced Wiley to life in prison as a habitual felony offender pursuant to section 775.084(4)(a)1., Florida Statutes (2007). It also imposed a twenty-five-year mandatory minimum under section 775.087(2)(a)3., Florida Statutes (2007), (the “10/20/life” statute).Wiley argued that the court could not impose both a twenty-five-year mandatory minimum and a life sentence under section 775.087(2)(a)3. Trial court denied the motion and barred further pro-se filings. third-degree murder conviction should not have been reclassified from a second-degree felony to a first-degree felony under section 775.087(1). Because the conviction was predicated on the underlying felonies of aggravated assault with a deadly weapon and aggravated battery with a deadly weapon, the use of a weapon was an essential element of the offense and, as a result, the offense was not subject to reclassification. Life sentence not authorized under habitual felony offender statute. Reversed on 3.800 and pro-se filing bar because court did not give opportunity to respond.

CLICK TO READ Nikolas Cruz v. State of Florida, Docket # 4D19-1321

Petitions for certiorari review of the trial court’s order denying his motion to prevent disclosure of the names of experts who may visit him in jail. We deny the petition because petitioner has not shown that the trial court’s order departs from the essential requirements of law. More specifically, he failed to overcome that the jail’s visitor logs are public records with no statutory exemption for the experts’ names within those logs. Attempting to prevent public disclosure of the mental health experts who may visit him to prepare a defense. Petitioner failed to demonstrate that the trial court departed from the essential requirements of law in denying his motion for protective order. The constitution and the Public Records Act do not authorize redacting the names of the experts visiting petitioner in jail.

FIFTH DISTRICT COURT OF APPEAL

No cases reported.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CLICK TO READ Jordan Norman Sims v. United States, Docket # 18-12021

Pled guilty to several counts including violation of 18 U.S.C. 793(e). Was concerned about adverse effect on military retirement pay. Was told by Counsel A that government was not going after his retirement pay. Almost a year after plea retirement pay was terminated because of his plea. Filed a 2255 motion. Held evidentiary hearing where magistrate judge found Attorney A had affirmatively misadvised as to collateral consequence. Government appeals district court’s order granting 2255 motion to vacate. Where a defendant is affirmatively misadvised about a collateral consequence of a guilty plea, he can show prejudice by proving that he would not have pled guilty and would have proceeded to trial, even if the possibility of acquittal was highly unlikely. An individual convicted of an offense under 18 U.S.C. § 793 may not be paid annuity or retired pay based on his past government service. 5 U.S.C. § 8312(a)(1), (b)(1)(A). Time to file 2255 was from time he could have reasonably found out about the misadvice, not the date of the plea. Reasonable to rely on Attorney A’s advice. Filed 2255 within 1 year of retirement benefits being terminated. Affirmed.

CLICK TO READ United States v. Calvin L. Harris, Docket # 18-12653

Appeals district court’s denial of motion for a new trial claiming jury was exposed to extrinsic evidence that prejudiced the verdict against him. District court erred in finding that no exposure occurred. Vacate and remand for further proceedings.  Tried and convicted of conspiracy to carjack, carjacking, use of a firearm during a crime of violence, conspiracy to kidnap, and kidnapping. After the verdict but before sentencing, the government learned from a co-worker of one of the jurors about possible external influence on the jury. Holdout jurors saw Defendant and his friend writing down their tag numbers. Jurors then voted guilty because of this conduct. Jurors were interviewed and expressed concern about possibly having identities found out. Court denied motion for a new trial after interviews. To prevail on a Rule 33 motion for a new trial based on outside influence on the jury, the defendant “has the burden of making a colorable showing that the exposure has, in fact, occurred.” Siegelman, 640 F.3d at 1182. The exposure must involve “a matter pending before the jury.” United States v. Alexander, 782 F.3d 1251, 1258 (11th Cir. 2015) (quotation marks omitted). If the defendant carries the burden of showing exposure has occurred, prejudice “is presumed and the burden shifts to the government to show that the jurors’ consideration of extrinsic evidence was harmless to the defendant.” Siegelman, 640 F.3d at 1182. The district court’s own understanding of the evidence makes plain that its finding of no exposure was clear error. Reverse and remand to apply the presumption of prejudice.