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 grand theft, unfair surprise, continuance, Battery, Delivery of Marijuana to a minor, Lewd or Lascivious Molestation, Delivering a Controlled Substance within 1000 Feet of a Church, Possession of Cocaine, Simple Battery, Community Control, jury instructions, Batson, jury selection, race-neutral reason, peremptory strike, 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

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. B.T.G., Docket # 1D20-0330

State appeals the juvenile sanction imposed upon B.T.G. after he was charged as an adult pursuant to section 985.557(2), Florida Statutes (2018), and sentenced pursuant to section 985.557(2)(d)2.a., Florida Statutes (2018). The State claims that the foregoing statute prohibited the trial judge from imposing juvenile sanctions and required criminal sanctions instead because B.T.G. had earlier been adjudicated for an offense involving a firearm. Insufficient record evidence exists that he had a previous adjudication or withhold adjudication on such felonies or previously placed in a residential program. Burden fall on State to prove. Affirmed.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Kenneth James Kegler v. State of Florida, Docket # 2D19-3479

Appeals order revoking community control and sentences in two circuit court cases involving petit theft and grand theft. Was placed on community control and probation. Officer attempted house visit at 5:37AM. Wife testified that she was a driver for Lyft and she left at 5:25AM and saw him leave to go back in the house. Officer was unable to make contact with him by ringing the doorbell or calling his cell phone. Wife further testified that he is on mental health medication that makes her unable to wake him. Kegler testified that he didn’t take his medication and watched TV until he fell asleep.

Reasonable explanation that he did not hear his phone or door is inconsistent with being away from the residence. State failed to prove that he willfully and substantially violated community control by being away from his approved residence without permission. Reverse revocation and sentences and remand for reinstatement of community control.

CLICK TO READ Terry Joseph Gibson v. State of Florida, Docket # 2D18-4349

Defendant was caught after the Florida Fish and Wildlife Conservation Commission set up a robotic deer and Defendant attempted to shoot a deer out of season.  He as charged with several offenses, including Possession of a Firearm By a Convicted Felon in a bifurcated trial. 

During jury selection, the State exercised a peremptory strike against an African-American juror.  The defense objected, and the State gave three reasons for striking the juror:  (1) because the juror “said she did not like public speaking, in reference to the defendant potentially not speaking himself, and I would say that that’s not necessarily the best reason to find someone not guilty” (2) the juror’s alleged lack of interest in the jury selection by being quiet and writing on a questionnaire that she rated her interest in serving as a juror 3 out of 10 (3) lack of rapport with the prosecutor.

The trial court credited those responses.

The Second DCA reversed, finding that first, the juror never said she would not find Defendant not guilty if he did not testify, she just said she could understand why a defendant would not want to testify because she would be nervous speaking in public.  Regarding the second issue, the State never directly asked the juror any questions during voir dire.  Additionally, there was no record support for the juror’s lack of interest or attentiveness, especially when the State accepted another juror who had rated her interest in serving 1 out of 10.

Because the State did not present a sufficient race-neutral reason for its peremptory strike, the Batson challenge could have been granted and a new trial was ordered.

CLICK TO READ Wayne Andrew Nichols v. State of Florida, Docket # 2D19-1721

Appeal of a conviction for Illegal Killing, Possessing or Capturing Alligators or Crocodilia or Eggs and other counts.  Conviction reversed, remanded for a new trial because the jury instructions were incomplete, misleading and confusing on those first counts.

Defendant was licensed to operate an alligator farm by the Florida Fish and Wildlife Conservation Commission.  Pursuant to regulations, he was required to keep records on alligators caught or killed.  He was charged with having live alligators on his farm with no record of when or where they were captured, capturing an alligator on property for which he was not licensed, and for killing an alligator and distributing meat without proper documentation.  The State alleged that each of these acts, which violated the applicable Administrative Code provisions, resulted in Nichols being in illegal possession of alligators.  Defendant proceeded to trial on the theory that his possession of alligators was not illegal because he was licensed and these were administrative violations, not crimes.

The court issued jury instructions that did not contain the statutory exception, “unless authorized by rules of the Fish and Wildlife Conservation Commission.”  Defendant requested that language be included in the instructions, but the court rejected that request.  Instead, the court gave the jury instructions on Administrative Code record-keeping requirements, which had already been introduced into evidence.

The Second DCA reversed, finding that the omission of the “unless authorized by rules of the Fish and Wildlife Conservation Commission” language resulted in the court providing an incomplete, misleading, and manifestly confusing explanation of the law to the jurors. Nichols’ defense was that he was not guilty of the charged offenses because the statutory exception applied — an exception that was based on the application of the Administrative Code provisions. Regardless of whether the “unless authorized” phrase in the statute defined an element of the offense or an affirmative defense to it, that phrase was necessary to the jury’s understanding of both the charges and the evidence before it.

CLICK TO READ Joshua Ricardo Bell v. State of Florida, Docket # 2D19-1591

Appeal of an order modifying conditions of community control, order reversed. 

Defendant pled guilty to Delivering a Controlled Substance within 1000 Feet of a Church, Possession of Cocaine, Simple Battery, and was sentenced to community control and probation.  The community control officer filed a violation, alleging he missed an anger management class under Condition # 16.  However, that condition required Defendant to “remain confined to [his] approved residence except for one half hour before and after” any activity approved by his community control officer.

At the hearing, the officer testified he went to the anger management class and learned Defendant had missed it.  When Defendant called back the officer later the same day, he told him he had to stay home and watch his infant son.  Defendant testified at the hearing he made up the class later.  At the end of the hearing, the court found Defendant violated Condition # 16 because that extends to any failure to be present at “public service work or other activities approved by the officer.”  The court then modified Defendant’s community control to a higher level of community control. 

The Second DCA reversed, finding that an offender does not violate condition (16) by failing to be present at “public service work or other activities approved by the officer” because that condition does not require the offender to attend that work or those activities.

CLICK TO READ Fred Owen Davis v. State of Florida, Docket # 2D18-2613

Appeal of conviction for Battery and Delivery of Marijuana to a minor after trial, marijuana count reversed, new trial ordered.

Defendant was originally charged with Lewd or Lascivious Molestation and Delivery of Xanax to a Minor, but the State amended the Information to add the third count on the first day of trial.  The defense objected and requested a continuance to prepare a defense to that charge, but the court denied it and proceeded to trial.  He was convicted of the lesser included offense of Battery and the marijuana charge.

The Second DCA held the trial court abused its discretion by denying a continuance and that Defendant was prejudiced by the State’s addition of an entirely new substantive charge on the first day of trial.  The amendment to the Information added a completely new substantive offense with completely different elements of proof immediately before trial began, without giving defense counsel an opportunity to investigate and prepare any applicable defense.  Just because defense counsel was aware of the facts does not mean that he prepared to defend against charges based on those facts—rather, defense counsel explained that even though the facts had been known from the beginning, there was no indication during the two-year prosecution that the State planned to file charges based on those facts. It was a “total surprise.”

Reversed and remanded on that count for a new trial. 

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported..

FIFTH DISTRICT COURT OF APPEAL

No reversals reported.

ELEVENTH CIRCUIT COURT OF APPEALS

No reversals reported.

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grand theft, unfair surprise, continuance, Battery, Delivery of Marijuana to a minor, Lewd or Lascivious Molestation, Delivering a Controlled Substance within 1000 Feet of a Church, Possession of Cocaine, Simple Battery, Community Control, jury instructions, Batson, jury selection, race-neutral reason, peremptory strike