FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Erik Conan Vonlydick v. State of Florida, Docket # 2D18-4227

Appeals judgment and sentence. Pled no contest to charges of giving a false name by a person detained/under arrest, resisting an officer without violence, and multiple drug-related offenses. Argues that reasonable suspicion had not supported the detective’s investigatory stop.

Stopped a vehicle behind a strip mall after driver was spotted looking at a couch left for Salvation Army. Stop based not on traffic violation, but on suspicion of a crime being committed. Second detective arrived and questioned Vonlydick in such a manner as he was not free to leave. Gave fake name and then ran when caught. Was arrested after fleeing. Was cooperative and gave his real name which had warrants. Area was known for dumpster diving and only mere suspicion was present. Fails to raise issues of inventory in appeal.

Investigatory stop was unlawful and the court erred in declining to suppress Vonlydick’s statements to the detective, including his statement that there were drugs in the SUV, but do not agree that the court erred in declining to suppress the drugs that were actually found in the SUV during the

subsequent inventory. Reverse and remand for the court to grant in part and deny in part the suppression motion, for discharge on the charges of giving a false name and resisting an officer, and for vacatur of Vonlydick’s no-contest pleas and for further proceedings on the drug charges.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Barian Keith Parrish Jr. v. State of Florida, Docket # 4D19-1991

Appeals conviction and sentence. The State charged the defendant with one count of burglary, six counts of robbery, and six counts of kidnapping in connection with his participation in the robbery of an auto parts store. The State alleged the defendant kidnapped each of the victims by “forcibly, secretly, or by threat confining, abducting, or imprisoning” them against their will and without lawful authority with the intent to “[c]ommit or facilitate [the] commission of” the underlying burglary and robberies, in violation of section 787.01(1)(a)2., Florida Statutes (2015).

At the close of the State’s case, defense counsel moved for judgments of acquittal on the kidnapping charges. Defense counsel argued that the State’s evidence failed to satisfy the Faison test for determining whether the victims’ confinement during the burglary and robberies was sufficient to constitute the separate crime of kidnapping. Specifically, defense counsel argued the confinement and movement of the victims during the criminal episode was inherent “to the act of robbery.” Defense counsel further argued no hostages were taken during the criminal episode and the victims were never locked in a room evidenced by the fact that their confinement ceased when the accompanying crimes ended. Motion denied.

All elements of false imprisonment were necessarily determined by the jury in this case to have been present as to the manager’s confinement during the robbery. See State v. Sanborn, 533 So. 2d 1169, 1170 (Fla. 1988) (“[F]alse imprisonment is a necessarily lesser included offense of the crime of kidnapping.”). Because “[t]he Faison test is not applicable to false imprisonment convictions” as held in Smith, 840 So. 2d at 989, a conviction for false imprisonment on the kidnapping count involving the store manager is not precluded. On remand, the trial court shall vacate the defendant’s conviction for kidnapping the store manager, and shall, instead, enter judgment of conviction and resentencing on the lesser included offense of false imprisonment of the store manager while armed and masked.

Affirm three of the kidnapping convictions challenged on appeal, reverse one of them because the evidence was insufficient under the three-part test set forth in Faison v. State, 426 So. 2d 963 (Fla. 1983), to support the commission of that kidnapping count. Remand on that count pursuant to section 924.34, Florida Statutes, for entry of a judgment of conviction for the lesser included offense of false imprisonment while armed and masked.

CLICK TO READ Chanteria Nicole Lacey v. State of Florida, Docket # 4D20-0202

Appeals final judgment revoking probation. She argues on appeal that the circuit court impermissibly considered her failure to pay restitution in determining whether to revoke her probation and the length of her term of incarceration.

Pled no contest to two second degree felonies. Pursuant to her negotiated plea agreement, the circuit court adjudicated her guilty on both counts and sentenced her to two concurrent five-year terms of probation. As a special condition of probation, the court ordered that the defendant pay restitution to the victim in the amount of $1,500.00. The order of probation also directed the defendant to pay court costs in the amount of $1,118.00. Neither the probation order nor the court’s oral pronouncement of sentence specified that either of these amounts were to be paid by a date certain, nor was the defendant directed to make specified monthly payments toward these amounts.

Violated probation again and agreed to pay restitution “as ordered.” Court resentenced and discussed failure to pay restitution as reason for revocation. Appeals court persuaded the defendant has shown from the record that her sentence may have been influenced, in substantial part, by consideration of her failure to pay restitution to the victims, even though no schedule required her to pay restitution before her probation ended. Because the court considered impermissible factors in sentencing, which is a violation of due process, we reverse and remand for resentencing before a different judge.

CLICK TO READ Michael J. Rocque v. State of Florida, Docket # 4D21-354

A defense attorney appeals a contempt order entered against him while he was representing his client in a DUI case. He argues on appeal that the trial judge erred in: (1) denying his request for a brief recess to prepare a written motion to disqualify the trial judge; (2) taking him into custody prior to the contempt hearing; and (3) holding him in direct criminal contempt. The State agrees the court erred in taking defense counsel into custody before the contempt hearing. The State acknowledges the trial court took defense counsel into custody prior to beginning the contempt proceeding and that this constituted error.

Reverse and remand the case. Because the original trial judge has recused herself, the successor judge will have the opportunity to proceed in accordance with this opinion.

FIFTH DISTRICT COURT OF APPEAL

No reversals reported.