FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Shaun Wyrich v. State of Florida, Docket # 2D22-1458

Defendant appealed his 15-year sentence with a 4-year minimum mandatory for Leaving the Scene of a Crash Involving Death Without Rendering Aid, Florida Statutes § 316.027(2)(c).

On the evening of December 5, 2020, Defendant was on his way home from work, traveling at a high rate of speed on his motorcycle, when he crossed a solid double line in order to pass another vehicle and struck a seven-year-old child. The child later died from the sustained injuries. Mr. Wyrich left the scene but turned himself in to law enforcement the following day.  Defendant was nineteen at the time of the incident.  He entered an open plea of guilty, and requested a youthful offender downward departure sentence—six months of county jail followed by five and one-half years of probation during which Defendant would receive mental health treatment.  A Pre-Sentence Investigation report was prepared which included facts related to uncharged conduct that occurred on the morning before the crash, namely Mr. Wyrich’s presence at his residence when his roommate returned fire after another individual fired gunshots into their residence and Mr. Wyrich’s disposal of the roommate’s gun used in the incident.  The PSI included a prior criminal case in which Defendant received a twenty-four-month probation sentence after entering a negotiated plea of guilty to two felony drug sales.

Pursuant to the PSI, Defendant’s lowest permissible sentence under the Criminal Punishment Code was 124.8 months in prison, but he could be sentenced to up to thirty years with a four-year minimum mandatory sentence if he was not sentenced as a youthful offender.  The State requested a 20-year sentenced and opposed a Youthful Offender sentence.  Without objection, the State provided the sentencing judge with a copy of the police report regarding the uncharged shooting incident. The report alleged that marijuana was found in the residence and that Defendant disposed of the gun involved in the gunfire. The State also brought up an out-of-court statement from another individual, who alleged that at the time of the accident Defendant was on his way to dispose of the gun. The State argued that both the uncharged conduct and the instant case involved the concealment and destruction of evidence. During the presentation of the State’s evidence, the judge was engaged in the State’s presentation of the uncharged conduct, summarizing and commenting on the evidence. The court imposed a 15-year sentence, and specifically commented on the uncharged conduct.

The Second DCA reversed.  Because the sentencing judge referenced uncharged conduct during sentencing and the State failed to prove that the trial court did not rely upon that uncharged conduct, the Second DCA reversed and remanded for a new sentencing hearing before a different judge.

CLICK TO READ Luis M. Harris v. State of Florida, Docket # 2D22-1355

In January 2011, Harris was tried on charges arising from an incident in Tampa.  He was found guilty of Sexual Battery, Kidnapping, Falsely Impersonating an Officer, Fraudulent Use of Personal Information, Fraudulent Use of a Credit Card, and Grand Theft.  His conviction was affirmed on direct appeal.  Harris filed various post-conviction motions in the following years, but his convictions stood.

In October 2021, he filed a new motion for post-conviction relief after he claimed he received an anonymous letter from a retired Tampa Police Department detective on city letterhead.  In this letter, the detective claimed that there are thirteen videos from traffic cameras and building security cameras and two videos from news and weather cameras from Fox News and Bay News 9 that all show that no crimes occurred at the subject location on the night of Harris’s charged crimes. Harris alleged that after receiving the letter, he contacted the city of Tampa via public records requests and that he was told there are “videos in evidence” but that he would have to contact the State Attorney’s Office about them. He then requested information via a public records request from the State Attorney’s Office and received a letter stating that surveillance videos are exempt from public disclosure.  The court summarily denied his motion, finding that the videos did not qualify as newly discovered evidence.  The court also found it it suspicious that the detective’s letter as well as the letter from the Tampa Police Department were unsigned, and it questioned their authenticity. The court also found that with due diligence Harris or his counsel could have discovered, investigated, and obtained the camera footage from traffic cameras and building security cameras.

The Second DCA reversed, ruling the trial court should have held an evidentiary hearing on Defendant’s post-conviction relief motion.  Order reversed and remanded.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Herman Blount v. State of Florida, Docket # 4D22-2755

Defendant pled guilty pursuant to a firm plea agreement that he would admit to a violation of probation in exchange for reinstatement and modification of probation and the state’s stipulation that Blount is not a danger to the community. At the change of plea hearing, the trial court determined that Blount was a danger to the community and sentenced him to the lowest permissible sentence, which was more than four years. The trial court denied Blount’s motion to withdraw his plea.  He appealed.

The Fourth DCA reversed, finding that when there has been a firm agreement for a specified sentence and the judge determines to impose a greater sentence, the defendant has the right to withdraw the plea.  The court reversed and remanded to allow Defendant the opportunity to withdraw his plea.

CLICK TO READ Franklin Montoya v. State of Florida, Docket # 4D2022-2757

Defendant admitted to violating his probation, and was placed on community control, which he also violated.  The trial court held an evidentiary hearing on the new violations and found the Defendant willfully and substantially violated his community control. Immediately thereafter, the trial court began to pronounce sentence when defense counsel asked for the opportunity to present evidence for sentencing and objected to moving forward immediately to sentence.  The trial court overruled the objection.  The Fourth DCA reversed, finding that the trial court violated his due process rights by failing to provide an opportunity to present evidence and argument in mitigation prior to imposing sentence.  The case was remanded for a new sentencing hearing before a different judge.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Jason Scott Downs, Docket # 5D22-1279

Defendant was convicted in 2001 of forcing or enticing a child to commit a lewd, lascivious, or indecent act and of committing a lewd or lascivious act in the presence of a child.  In 2013, Downs filed a petition for writ of habeas corpus seeking to file a belated motion for post-conviction relief pursuant to Rule 3.850(b)(3). The denial of the petition was reversed and remanded for further proceedings.  Downs filed his first postconviction motion; among the claims he asserted was that his trial counsel misadvised him to reject a plea offer made by the State during a private discussion.  The post-conviction court held a hearing, and found Defendant was not credible and that he had received a plea offer but had turned it down.  The denial was affirmed on appeal.

Defendant filed a second Rule 3.850 motion in which he alleged, among other things, there was newly discovered evidence that his trial counsel was ineffective.  The claim was based upon an affidavit of Judge Bruce Jacobus, who presided over Downs’ original 2001 trial. In his affidavit, Judge Jacobus represented that he had heard a plea offer in open court on the day of trial which Downs’ trial counsel failed to convey to Downs. The postconviction court summarily granted Downs’ motion without holding an evidentiary hearing, concluding merely that Downs “did not receive a fair trial and is entitled to relief.”  The State appealed.

The Fifth DCA reversed and remanded for an evidentiary hearing.  At the hearing, the Judge Jacobus testified that on the day of the 2001 trial the assistant state attorney disclosed in open court that there was a plea offer for “[a] nonsexual misdemeanor with one year probation, and a withhold” but did not state the exact crime. Judge Jacobus testified that Downs’ counsel, without consulting with his client, responded, “that’s totally ridiculous, he’s innocent, we’re going to trial.”  Judge Jacobus testified that he was not present for any private discussions between Defendant and his attorney.  As a result, he did not know if the offer that was extended in open court was the same offer discussed privately between Defendant and his attorney. 

In 2013, Downs filed a petition for writ of habeas corpus seeking to file a belated motion for postconviction relief pursuant to rule 3.850(b)(3). The denial of the petition was reversed and remanded for further proceedings.  Downs filed his first postconviction motion; among the claims he asserted was that his trial counsel misadvised him to reject a plea offer made by the State during a private discussion.  The post-conviction court held a hearing, and found Defendant was not credible and that he had received a plea offer but had turned it down.  The denial was affirmed on appeal.

Defendant filed a second Rule 3.850 motion in which he alleged, among other things, there was newly discovered evidence that his trial counsel was ineffective.  The claim was based upon an affidavit of Judge Bruce Jacobus, who presided over Downs’ original 2001 trial. In his affidavit, Judge Jacobus represented that he had heard a plea offer in open court on the day of trial which Downs’ trial counsel failed to convey to Downs. The postconviction court summarily granted Downs’ motion without holding an evidentiary hearing, concluding merely that Downs “did not receive a fair trial and is entitled to relief.”  The State appealed.

The Fifth DCA reversed and remanded for an evidentiary hearing.  At the hearing, the Judge Jacobus testified that on the day of the 2001 trial the assistant state attorney disclosed in open court that there was a plea offer for “[a] nonsexual misdemeanor with one year probation, and a withhold” but did not state the exact crime. Judge Jacobus testified that Downs’ counsel, without consulting with his client, responded, “that’s totally ridiculous, he’s innocent, we’re going to trial.”  Judge Jacobus testified that he was not present for any private discussions between Defendant and his attorney.  As a result, he did not know if the offer that was extended in open court was the same offer discussed privately between Defendant and his attorney.  There is no evidence that the plea offer conveyed and rejected in the hallway was different than the open-court plea offer.

Because Defendant already raised a post-conviction claim of ineffective assistance of counsel based on the same plea, and failed to establish that the plea offer the Judge testified about was different from what was raised in his first claim, post-conviction relief was denied.

CLICK TO READ Justice Michael Gurolla v. State of Florida, Docket # 5D21-2957

Defendant was convicted of attempted second-degree murder and discharging a firearm in public from a vehicle. Appellant argued that the trial court erred when it found that the State did not commit a discovery violation by failing to disclose that its lead investigator would testify as an expert and in failing to conduct a Richardson hearing on the matter. The Fifth DCA reversed, finding that the investigator provided expert opinion testimony when he opined that the victim’s injuries were not consistent with Appellant’s claim that he shot at the ground instead of at the victim. Because the State failed to disclose this expert testimony before trial, the trial court should have held a Richardson hearing on the discovery violation. The Fifth DCA reversed and remanded for a new trial.

SIXTH DISTRICT COURT OF APPEAL

CLICK TO READ James Richard Young v. State of Florida, Docket # 6D23-24

Defendant was convicted of trafficking in illegal drugs (28 grams or more), a violation of Florida Statutes § 893.135(1)(c).  Defendant and his girlfriend called 911 to report two armed men outside their home.  Police arrived and did not find the two men, and then questioned both Defendant and his girlfriend separately.  The police entered the house, found a shotgun and bags of heroin, and detained both.    Defendant waived Miranda rights, and was questioned three times, two of the conversations were recorded and one was not recorded.  One of the recorded conversations was introduced into evidence at trial, to which trial counsel objected that the statement had not previously been disclosed during discovery.  Counsel moved for a mistrial, and to give a curative instruction ot the effect that the statements made by the police on the witness stand were not true, but the trial court denied the request.  Neither party requested a Richardson hearing and the trial judge did not perform a Richardson hearing at the time.  After the State rested its case, the State raised the issue of McDaniel’s comment and requested that the trial court make certain findings regarding “the Richardson issue.”  Prior to the trial judge submitting the case to the jury, Young’s counsel renewed Young’s motion for a mistrial based on the same grounds, which was denied.

The Sixth DCA reversed.  Anytime a trial court is alerted during a criminal trial to a possible discovery violation by the State, the trial court is required to conduct a Richardson hearing. The trial court need not be certain that a discovery violation occurred for a Richardson hearing to be required. Rather, if the trial court is informed of the possibility of a discovery violation, the trial court must conduct a Richardson hearing.  The trial court’s obligation is affirmative and a hearing must be conducted even where the defendant does not specifically request a hearing or mention Richardson.  There are no exact ‘magic words’ or phrases which must be used by the defense in order to necessitate the inquiry; only the fact that a discovery request has not been met.

A motion for mistrial adequately preserves a defendant’s discovery violation claim and the trial court’s failure to conduct a Richardson hearing about the alleged discovery violation, provided that “the motion reasonably informs the court of the nature of the complaint.  As a result, the conviction was reversed and a new trial ordered.