FLORIDA SUPREME COURT

CLICK TO READ In Re Standard Jury Instructions in Criminal Cases, Docket # SC18-1860

The Florida Supreme Court amends standard criminal jury instructions for 3.6(m) (Affirmative Defense: Temporary Possession of Controlled Substance for Legal Disposal); 3.6(n) (Affirmative Defense: Controlled Substance Was Lawfully Obtained from a Practitioner or Pursuant to a Valid Prescription); 25.2 (Sale, Purchase, Manufacture, Delivery, or Possession with Intent to Sell, Purchase, Manufacture, or Deliver a Controlled Substance); 25.3 (Sale, Purchase, Delivery, or Possession in Excess of Ten Grams of a Controlled Substance); 25.4 (Delivery of a Controlled Substance to or Use of Minor); 25.5 (Bringing a Controlled Substance into the State); 25.6 (Sell, Manufacture, Deliver, or Possession with Intent to Sell, Manufacture or Deliver a Controlled Substance in Specified Locations); 25.8 (Obtaining a Controlled Substance by Fraud, etc.); 25.14 (Use or Possession with Intent to Use Drug Paraphernalia); 25.15 (Delivery, Possession with Intent to Deliver, or Manufacture with Intent to Deliver Drug Paraphernalia); 25.17 (Contraband in County Detention Facility); 25.18 (Contraband in Juvenile [Detention Facility] [Commitment Program]); 25.19 (Unlawful Sale, Manufacture, Alteration, Delivery, Uttering or Possession of Counterfeit-Resistant Prescription Blanks for Controlled Substances); 25.20 (Possession of Contraband [in] [upon the Grounds of] a State Correctional Institution); and 25.21 ([Introduction] [Removal] of Contraband [into] [from] a State Correctional Institution). The Committee also proposes deleting instructions 25.9 (Trafficking in Cannabis), 25.10 (Trafficking in Cocaine), 25.11 (Trafficking in [Morphine] [Opium] [Hydromorphone] [Heroin] [(Specific Substance Alleged)]), 25.11(a) (Trafficking in Hydrocodone), 25.11(b) (Trafficking in Oxycodone), 25.12 (Trafficking in Phencyclidine), 25.13 (Trafficking in Methaqualone), 25.13(a) (Trafficking in [Amphetamine] [Methamphetamine]), 25.13(b) (Trafficking in Flunitrazepam), 25.13(c) (Trafficking in [GHB] [GBL] [1,4-Butanediol]), 25.13(d) (Trafficking in Phenethylamines (Includes MDMA)), and 25.13(e) (Trafficking in LSD). In addition, a new instruction, 25.7(a) (Trafficking in (Name of Controlled Substance)),

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ Tony Carl McBee v. State of Florida, Docket # 1D17-3383

Appeal of summary denial of 3.850 hearing, order reversed and remanded because the record attachments provided by the trial court did not conclusively refute the sworn allegations of appellant’s motion.

CLICK TO READ Kyshonda Williams v. State of Florida, Docket # 1D18-5337

Petition for writ of mandamus to compel the trial court in her pending criminal case to hold an adversary preliminary hearing.  Petition denied, no adversary preliminary hearing is required where a defendant has posted bail and is already on pretrial release.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Adam T. Tharp v. State of Florida, Docket # 2D17-4513

Sentences for Lewd and Lascivious Exhibition reversed, court violated Appellant’s due process rights by considering evidence of uncharged subsequent conduct when imposing his sentences.  Resentencing ordered before a different judge.

CLICK TO READ Joseph Weitz v. State of Florida, Docket # 2D18-72

Appeal of conviction for Unlawfully Using a Two-Way Communications Device (Florida Statutes § 934.215) and Transmitting Material Harmful to Minors Via Electronic Mail (Florida Statutes § 847.0138(2)) based on Double Jeopardy vacated in part based on Double Jeopardy.

CLICK TO READ Joshua J. Murphy v. State of Florida, Docket # 2D17-731

Denial of motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)(B), reversed and hearing ordered.  When the defense challenges prior convictions and the accuracy of the Sentencing scoresheet, the State has the burden of producing competent evidence of the disputed conviction at a hearing.

CLICK TO READ Robert Newby v. State of Florida, Docket # 2D17-228

Appeal of conviction of First Degree Burglary and Battery of a woman inside the home reversed, trial court erred by refusing to admit so-called reverse Williams rule evidence that another person had committed a burglary with a battery in the same area in a strikingly similar manner.

THIRD DISTRICT COURT OF APPEAL

No reversals reported

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Herman Farrell v. State of Florida, Docket # 4D18-683

First degree murder. Appeals conviction. Reverse because victim’s prior act of violence was known to defendant and went to issue of self-defense. Two drug dealers involved in a shooting with each other. On state’s motion trial court excluded testimony that victim had hit witness in the back of the head days before. Victim’s murder of another had cooled relationship. Only permitted to testify about reputation for violence, not firsthand knowledge of it. The defendant need only show the “slightest evidence’ of an overt act by the victim ‘which may be reasonably regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm.” Reject state allegations that issues were not preserved. Not harmless error. Where a defendant’s entire defense hinges on self-defense, “the reasonableness of the apprehension in the mind of the defendant at the time of the slaying” is a crucial fact. Reverse and remand for new trial.

CLICK TO READ Marlon A. Ellison v. State of Florida, Docket # 4D18-1754

Robbery conviction reversed, the trial court erred in admitting evidence of an out-of-court identification of appellant by a witness, who was not present at the scene of the robbery, after viewing a surveillance video.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Christopher Lee Payne v. State of Florida, Docket # 5D19-36

Summary denial of 3.850. 3.850 appeal. Record does not conclusively refute claim that counsel was ineffective for failing to call two exculpatory witnesses. Appellant failed to allege witnesses were ready, willing and able to testify. Remand for leave to amend within 60 days.

CLICK TO READ James Edward Boffo v. State of Florida, Docket # 5D18-15

Pled no contest to domestic battery by strangulation. Sentenced to five years in prison. Suspended sentence upon completion of two-year community control. Appointed public defender apprised that they could not represent due to out of country military service. New public defender assigned and asked for a continuance. Court denied after factors test claiming that it was an uncomplicated case. Public defender noted that witnesses were not present. Court found violation and imposed five-year sentence. Appeal revocation of community control. McKay factors test applied. Trial court used factors, but not necessarily McKay factors. Alleges abuse of discretion. Delay not attributable to Defendant. Prejudice in denial of continuance. Reverse and remand for new evidentiary hearing.

CLICK TO READ Terrence Lee Hayes v. State of Florida, Docket # 5D18-1110

Appeals judgment and sentence for driving with permanently revoked license. State failed to establish that Appellant possessed a license that could be permanently revoked. Appellant only possessed a learner’s permit from June 1975 to June 1976. Argued that at most he was guilty of lesser included driving without a valid license. No evidence presented that he possessed a license that could be revoked. District Court notes loophole in Florida Statute 322.341 to avoid felony

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CLICK TO READ David Everett Jones v. Secretary, Department of Corrections, Docket # 18-11583

Certificate of Appealability from denial of Federal habeas corpus petition pursuant to 28 U.S.C. § 2254, petition was untimely.  Resentencing will only produce a new judgment and trigger a new 1 year statute of limitations when the new sentence authorizes the petitioner’s confinement, rather than the magnitude of change in the sentence.