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 possession of firearm and ammunition by a convicted felon, Rule 3.850 motion for post-conviction relief, ineffective assistance of counsel, grand theft of a firearm, grand theft of electronic goods, petit theft, witness recantation, newly discovered evidence, possession of a sexual performance by a child, discovery violations, impeachment 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 Ricky L. Mills v. State of Florida, Docket # 1D20-798

Appeals summary denial of Rule 3.850 post-conviction relief motion. Convicted of possession of a firearm and ammunition by a convicted felon and sentenced to four years in prison pursuant to a plea deal. No direct appeal. Alleged ineffective assistance of counsel for failing to inform him that the charge could be supported by mere possession and that the maximum was fifteen years in prison. He rejected the 36 months offer and later took a 48 month offer. Lower court summarily denied Rule 3.850 motion finding that there was a lack of prejudice because Mills’ allegations refuted any attempt to establish that the State would not have withdrawn the initial plea offer.

To establish prejudice for this type of claim, a defendant must allege and prove a reasonable probability that 1) he would have accepted the offer with correct advice, 2) the state would not have withdrawn the offer, 3) the court would have accepted the offer, and 4) the sentence would have been less severe. See Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013). Mills does not perfectly follow that, but substantially meets the Alcorn requirements. Court must either attach portions of the record that conclusively refute the claim or hold an evidentiary hearing. Reversed and remanded with instructions.

CLICK TO READ Spencer Seville Gallion v. State of Florida, Docket # 1D19-2717

Appeals convictions for grand theft of a firearm and possession of a firearm by a convicted felon. Affirm on everything except that the State failed to prove the value of the electronic goods stolen. The State alleged that Appellant stole two televisions and a stereo from the victim in this case. At Appellant’s trial, the victim provided a receipt for one of the televisions showing that it had been purchased for $532.86 the year before Appellant stole it. No evidence was offered as to the value of the other television. The victim provided another receipt showing that she had purchased

the stereo stolen by Appellant for $699.99. Beyond the two receipts, there was no testimony regarding the condition of the items at the time they were stolen, or how much they may have depreciated in value since they were purchased.

The value of the property stolen is an essential element of grand theft that must be proved by the State. Carter v. State, 238 So. 3d 362, 364 (Fla. 1st DCA 2017). To prove third-degree grand theft the State was required to prove that the value of the items was greater than $300. § 812.014(2)(c)1., Fla. Stat. (2017). “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)1., Fla. Stat. (2017). “The value of tangible personal property may be proved with evidence of the original purchase price, together with the percentage or amount of depreciation since the property’s purchase, its manner of use, and its condition and quality.” Carter, 238 So. 3d at 364 (quoting Fritts v. State, 58 So. 3d 430, 431 (Fla. 1st DCA 2011)). The State does not provide sufficient evidence where it “elicit[s] no testimony regarding the condition and quality of any of the items taken or their depreciation.” Id. Remand to enter an amended judgment for petit theft as to the electronic goods and resentence accordingly.

SECOND DISTRICT COURT OF APPEAL

No reversals reported.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Jessie James Border v. State of Florida, Docket # 5D20-1331

Pro se appeal summary denial of Rule 3.850 motion for post-conviction relief. Serving life sentence for various felonies stemming from a single incident in 1994. Filed a motion in 2017 where on co-defendant recanted claiming forced confession. Co-defendant failed to show for court. Motion was denied. In February 2020 he filed the instant motion also based on newly discovered evidence, another co-defendant recantation alleging same forced or coerced confession. Court summarily denied finding that with exercise of due diligence he could have learned about co-defendant’s intent to recant during his first motion preparation.

The decision of a postconviction court to deny an evidentiary hearing on a Rule 3.850 motion based on newly discovered evidence is subject to de novo review. Grays v. State, 246 So. 3d 520, 521 (Fla. 5th DCA 2018). Furthermore, although an affidavit produced by a co-defendant many years after the alleged crime(s) is inherently suspicious, that suspicion alone does not automatically support summary denial. Simpson v. State, 100 So. 3d 1258, 1260 (Fla. 4th DCA 2012).

The record is devoid of any evidence to support the postconviction court’s determination that, with the exercise of due diligence, Borders could have learned at an earlier date of Richardson’s intent to recant his trial testimony. Additionally, the postconviction court did not find Richardson’s affidavit to be “inherently incredible,” nor would it have been appropriate for the court to have done so. Reverse and remand for an evidentiary hearing.

CLICK TO READ Paul Elias v. State of Florida, Docket # 5D19-2370

Appeals judgment and sentence after a jury trial on thirty counts of possession of a sexual performance by a child in video and picture formats.

Alleges multiple discovery violations which either do not get addressed or do not matter because reverse and remand is on other issues. Argues that State expert testified that he had not used Flickr and had not viewed suspect images in deposition but became an expert on those between deposition and trial. Defense counsel objected, but not contemporaneously enough. Also, alleged that having expert doctor show each picture again to meet element of age was unduly prejudicial. State is permitted to prove elements and does not have to accept defense proffer. State offered detective testimony that a tip identified Appellant as the owner of a Flickr account that posted these images.

Appellant and wife testified as to receiving CDs and desktop from his late father. State put up no evidence that he knew of contents of CDs. Appellant is entitled to judgment of acquittal on seven counts regarding images found only on the CDs and a new trial on the remaining twenty-three counts because the State ignored binding authority forbidding police officers from offering prejudicial hearsay testimony conveying the substance of a tip identifying a defendant as the perpetrator of the subject crime. Reverse the judgment and sentence, and remand this matter to the trial court with instructions to enter judgment of acquittal as to Counts 20, 21, 23, 25, 26, 27, and 30, and to conduct a new trial on the remaining twenty-three counts

CLICK TO READ Reginald Eugene Barron v. State of Florida, Docket # 5D20-332

Appeals revocation of probation and resulting sentence. Placed on drug offender probation following guilty plea to burglary of a dwelling. About six months later, the trial court issued an arrest warrant for violating his probation in four ways. Although the probation officer listed one of these violations as an unauthorized change of residence, the affidavit did not mention that

Barron had absconded. Two months later, the probation officer issued an amended affidavit that added an absconding allegation. When law enforcement arrested Barron, they served him with the first affidavit but not the second. Three weeks later, Barron appeared for an arraignment before the trial court. The record does not show that anyone advised Barron of his alleged violations of probation before this hearing, and the trial court did not advise him of the alleged violations at the

hearing. Instead, the transcript shows that although the trial court had the amended affidavit, the prosecutor and Barron’s lawyer did not. Indeed, the trial court expressed some confusion about whether it had the right defendant before it.

Defense counsel had him admit to “low risk” violations capped at 90 days in jail, but failed to inform him about absconding. Court accepted and found him not “low risk” based on absconding. Did not tell him about absconding violation. Sentenced to 24 months.

Failure to advise a probationer of their charges is a due process violation entitling the probationer to a new revocation hearing. See Balsinger v. State, 974 So. 2d 592, 593–94 (Fla. 2d DCA 2008). Trial court did not advise him of his alleged violations before revoking probation. Reverse and remand for a new violation of probation hearing.

CLICK TO READ Anita Jane Smithey v. State of Florida, Docket # 5D19-880

Appeals denial of a motion for post-conviction relief pursuant to Rule 3.850. Argued ineffective assistance of counsel. Trial court denied motion following an evidentiary hearing. Evidence at trial was that Smithey and Cline were married for three years but estranged. Still engaged in sexual relations including role play such as rape, as well as vaginal and anal intercourse.

Smithey provided stories to law enforcement that indicated she engaged in sex with Smith after drinking. After showering he wanted more, and she did not. Alleged that he assaulted her with vaginal intercourse and anal digital penetration. 911 call Smithey claimed she shot Smith in self defense after being stabbed by him. Invoked counsel but was still questioned and later gave statement that she stabbed herself. Statements were suppressed but given voluntarily so trial court ruled that they could be used for impeachment. Trial court also suppressed evidence recovered at the scene as the result of an invalid search warrant, including a knife and the murder weapon.

Trial counsel introduced expert testimony that stab wound was not self-inflicted. State expert argued opposite. State tried to get testimony to police entered, but trial court denied. Trial counsel then introduced 911 call where she informed the operator that she was stabbed and shot him in self-defense. This time the court agreed with the State that the door was opened to impeachment. This was central to the case and State relied on it in closing.

Rule 3.850 motion based on ineffective assistance of counsel for introducing 911 call. Counsel testified that they were unaware of the 911 call contents that led to impeachment and they meant to keep her statements out. Not reasonable or strategic, so satisfies first prong of Strickland as to deficient performance. Admission was devastating to defense case as evidenced by ending State closing argument with it, so satisfies second prong of Strickland, prejudice. Reverse and remand for a new trial.

ELEVENTH CIRCUIT COURT OF APPEALS

No reversals reported.

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