FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Ventrel Rush, Docket # 1D19-3577

State appeal of a trial court’s sua sponte decision to reduce the Defendant’s sentence, sentence reversed, remanded for resentencing.

Defendant and his roommate communicated with what they thought was a woman on Tinder for sex, only to find that the person had intentionally misrepresented that they were a woman, and was actually male.  Defendant and his roommate then entered the complainant’s home and assaulted him and shot him with a BB gun before pistol-whipping him. 

Defendant was convicted after trial of Burglary of a Dwelling with Person Assaulted, Battery and Assault.  His sentencing guideline was 48.15 months to a maximum of life imprisonment.  Defendant requested a downward departure claiming the attack was done in an unsophisticated manner and was an isolated incident; the trial judge denied his request.

On her own, the judge departed downward from the guidelines and sentenced Rush to 11 months and 29 days in county jail (with 28 days’ time served), followed by two years of community control and three years of probation.  The reason five was that the victim was the initiator, aggressor or provoker.  The State objected, and appealed.

The First DCA reversed the sentence, finding that the departure was legally invalid and that no evidence supported the rationale for the downward departure.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Victor Ortiz-Lopez v. State of Florida, Docket # 2D18-4910

Appeal of conviction for False Imprisonment, Battery, Grand Theft Motor Vehicle, convictions reversed and dismissed for violation of Speedy Trial.

On October 8, 2017, an arrest warrant was issued in Lee County for Defendant’s arrest.  He was arrested on February 2, 2018 in Hillsborough County on that warrant.  He was later charged with violating probation in Hillsborough County, and after that was over, was transported to Lee County on July 23, 2018 and first appeared in court the following day.  The State still had not filed an Information for the October 8, 2018 incident.

On August 9, 2018, Defendant gave Lee County Jail officials a pro se motion to dismiss for Speedy Trial violation.  The motion was not docketed until August 20, 2018, the same day the State filed an Information.  Defendant was appointed counsel, and later argued that because Defendant gave his motion to jail officials on August 9, 2020, that started the 10-day recapture rule under Rule 3.191(p)(3), which expired before the State filed the Information.  The court denied the motion, finding that the motion was not an effective invocation of Speedy Trial rights because it did not include the proper title under the rule, an argument never made by the State.  Defendant was ultimately convicted at trial.

The Second DCA reversed and granted the motion to dismiss, finding that the speedy trial clock began to run when Defendant was taken into custody on the warrant and continued to run.  Because the State failed to file charges within 175 days after Defendant’s arrest, the State lost its ability to ever prosecute Defendant for those charges.

Reversed and remanded for discharge.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Devrick Boykins, Docket # 3D20-1303

The State of Florida petitions this court for a writ of certiorari. The State contends that the trial court departed from the essential requirements of the law, resulting in irreparable harm, by entering an order granting the defendant’s motion to compel the State, within thirty days, to produce for deposition an eyewitness who is not within the custody or control of the State. Agree that the order represents a clear departure from the essential requirements of the law, dismiss the petition because the State has failed, at this procedural juncture, to demonstrate the irreparable harm required to invoke certiorari jurisdiction.

State provided an address for witness, but defense was unable to locate. State claimed that there was no better address, that witness was not in custody and was homeless. Trial court still granted motion to compel and ordered State to produce individual for a defense deposition.

Although the parties are in agreement that the trial court’s order constitutes a departure from the essential requirements of the law, the State has failed to meet its additional burden of demonstrating that the departure results in material injury for the remainder of the case that cannot be corrected on post-judgment appeal.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Leon Denard Quinn v. State of Florida, Docket # 4D19-2006 and 4D19-2007

Appeals his convictions and concurrent sentences following a final violation hearing in two cases. Argues the trial court: (1) fundamentally erred in finding he violated probation by committing criminal mischief; and (2) erred in failing to conduct a danger hearing and make written findings on whether he poses a danger to the community. Argues the trial court’s written order should be corrected to reflect the offense of battery. Court held a final probation hearing after new crime allegations for burglary of an occupied dwelling, criminal mischief, violation of a domestic violation injunction and domestic battery. State filed a memorandum summarizing the defendant’s criminal history, which included nine felony and thirty-four misdemeanor offenses. The felony convictions included: one robbery, two grand theft, one possession of cocaine, one dealing in stolen property, one aggravated assault with a firearm, and one possession of a weapon on school property.

Moved to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing: 1) the trial court’s written order should be amended to reflect the offense of “battery,” rather than “battery (domestic);” and 2) the defendant should be resentenced with written findings as to whether he poses a danger to the community as a violent felony offender of special concern. The trial court denied the motion. Appeals conviction, sentence and denial of Rule 3.800 motion.

State provided no evidence that he acted maliciously towards a vase that he broke, so the criminal mischief must be deleted from the case. All other issues affirmed.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Kevin Tyler Hart, Docket # 5D19-3390

State’s appeal of order granting Defendant’s motion to suppress evidence obtained from 3 separate search warrants granted by three different magistrates; orders reversed, suppression denied.

After a fatal traffic accident, a Florida Highway Patrol officer swore out three affidavits in support of a search warrant seeking blood samples from Defendant, who was believed to be the driver of one of the cars, to search the impounded vehicle and the car’s Event Data Recorder, and DNA samples to be compared to DNA found in the air bag on the driver’s side of the car.  Defendant was later charged with Driving Under the Influence Manslaughter.

The trial court granted suppression, finding that the allegations in the affidavits were conclusions, not facts, and did not give rise to probable cause for the search warrants.

The Fifth DCA reversed, noting that the trial court made no findings of fact in its decision.  In reviewing a search warrant, a trial court must give great deference to the magistrate’s finding of probable cause and must uphold the warrant if there is a substantial basis for the magistrate’s finding.  Here, the trial court misapplied the law by not giving the requisite great deference to each magistrate’s original finding of probable cause.  Here the affidavits contained sufficient facts to establish probable cause that Defendant had committed two counts of DUI manslaughter and that evidence of these crimes would be found in the vehicle Defendant was driving and in his blood and DNA samples.

Orders reversed, suppression denied.