FLORIDA SUPREME COURT

No reversals reported this week.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ Mohammed Alsubaie v. State of Florida, Docket # 1D17-3517

Denial of Rule 3.850 motion based on ineffective assistance of counsel, failure to advise Defendant of deportation consequences ineffective.  Appellant has shown a reasonable probability that he would have rejected the plea and proceeded to trial had he been adequately informed of the plea’s deportation consequences.  Conviction for Possession of a Controlled Substance (Cocaine), Possession of a Controlled Substance (less than 20 grams of cannabis) vacated

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Christopher Curtis Manley v. State of Florida, Docket # 2D16-2272

Second Degree Murder with a Firearm and Aggravated Battery with a Firearm reversed, new Stand Your Ground Hearing ordered.  Second DCA rules that the 2017 amendment to Florida Statutes § 776.032 applies retroactively to pending cases.

CLICK TO READ Gerardo Sanchez, Sr. v. State of Florida, Docket # 2D17-258

Conviction for Unlawful Use of a Two-Way Communications Defense and First Degree Misdemeanor Criminal Mischief reversed, dismissed as legally insufficient.  No evidence defendant used a walkie-talkie to commit or facilitate a burglary, simple possession insufficient.

CLICK TO READ Juan Mesen v. State of Florida, Docket # 2D16-4971

Conviction for Lewd or Lascivious Exhibition in the Presence of an Elderly or Disabled Person reversed and dismissed, evidence was legally insufficient to prove that he exposed his genitals to the victim because there was no testimony that his genitals were visible.

CLICK TO READ Michael M. Kalich v. State of Florida, Docket #2D16-4675

State concedes error, Battery on a Law Enforcement Officer is not a qualifying or enumerated offenses under the Prison Release Reoffender statute, rendering the sentence illegal

CLICK TO READ State of Florida v. Stanley Raphael Jean, Docket # 2D18-2281

State appeal from order to disclose the identity of a confidential informant, order quashed, trial court ordered the disclosure without first conducting the in-camera hearing the law requires.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ Bernard Gyden, II v. State of Florida, Docket # 3D18-2230

Summary Denial of Rule 3.850 motion reversed, Appellant’s petition for writ of habeas corpus pending in the District Court of Appeal did not deprive the trial court of jurisdiction to hear Rule 3.850 motion.

CLICK TO READ John Garcia v. State of Florida, Docket # 3D15-2815

Convictions for Second Degree Murder, Second Degree Grant Theft reversed.  State presented evidence that the value of the property stolen was only $1000, conviction reduced to Third Degree Grant Theft.  With regard to Mr. Garcia’s conviction for second-degree murder, the State presented purely circumstantial evidence that Ms. Macriello was deceased and that she died through the criminal agency of Mr. Garcia. Therefore, because the State failed to adduce sufficient, competent evidence to rebut Mr. Garcia’s reasonable hypothesis of innocence, the conviction for second-degree murder reversed and dismissed.

CLICK TO READ Revenel Francique v. State of Florida, Docket # 3D19-0484

Summary denial of Rule 3.850 motion for post-conviction relief reversed, remanded

CLICK TO READ State of Florida v. Dominic Harris, Docket # 3D17-2703

State appeal of order suppressing evidence seized in a warrantless search of Dominic Harris’s property.  Determination that Defendant had not abandoned his reasonable expectation of privacy in his property when it was seized and searched by the police affirmed.

CLICK TO READ State v. Daniel Rincon, Docket # 3D18-1282

State appeal of dismissal of Affidavit of Violation of Probation and termination of probation, trial court reversed, VOP for Aggravated Battery on a Pregnant Victim and Strong-Arm Robbery reinstated.

CLICK TO READ Wade Pounds v. State of Florida, Docket # 3D19-0190

Summary denial of Rule 3.850 motion reversed

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ James Warren Radice v. State of Florida, Docket # 4D17-1373

Appeal and cross appeal. Convicted of felony battery, the circuit court granted a downward departure and sentenced to twenty months’ imprisonment followed by two years’ probation. Appeals denial of motion for new trial. State cross appeals downward departure. Affirm appeal. Reverse downward departure. Extensive criminal history did not justify downward departure.

CLICK TO READ James E. Long v. State of Florida, Docket # 4D17-3261

Appeal for failure to conduct a competency hearing within twenty days of ordering a competency evaluation per Florida Rule of Criminal Procedure 3.210. State concedes error. Remand for competency hearing within 60 days per Machin (2019 WL 1549376).

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Ambrose Vogds v. State of Florida, Docket # 5D18-3192

Defendant convicted of sexual battery of a child under twelve years of age, lewd or lascivious molestation of a child under twelve, sentenced as a sexual predator to life without the possibility of parole on both counts running sentences consecutively. Direct appeal affirmed. Appeal summary denial of 3.850 based on ineffective assistance of counsel (opening the door to inadmissible bad act evidence, failing to impeach victim with prior inconsistent statements). Reversed for an evidentiary hearing. Record does not conclusively refute claims.

CLICK TO READ Craig Lazar Bent v. State of Florida, Docket # 5D19-1060

Petition for writ of habeas corpus. Claims illegally detained and entitled to hearing on reasonable bail. Charged by information with second-degree felony murder (with a firearm), attempted first-degree murder with a firearm, and shooting at, within, or into an occupied vehicle. Trial court denied bail based on witness identification at hearing. Witness deposition suggestive photo lineup. Second bond hearing denied without explanation. Police officer witness supports suggestive lineup. Third bond hearing denied without written order. Petition granted for full bond hearing.

CLICK TO READ Julio Malave v. State of Florida, Docket # 5D17-3225

Per curiam. Direct appeal judgment and sentence after jury trial. Guilty of two counts of sexual battery upon a mentally defective adult, one count of lewd or lascivious battery upon a disabled person, two counts of lewd or lascivious molestation of a disabled adult, one count of committing an unnatural or lascivious act, and one count of incest. Trial court erroneous admission of statement. Hearsay violating Sixth Amendment right to confront witnesses. Forbids admission unless declarant is unavailable. Harmless error as to some counts but affected verdict on others. Reversed in part and remanded.

CLICK TO READ Ken Wilcox v. State of Florida, Docket # 5D18-1636

Defendant appeals convictions for robbery and battery on a person over sixty-five years old. No error in denying motion for judgment of acquittal. Reversable error in failing to allow private counsel to represent at trial. Private counsel appeared after trial began. Jury sworn, but actual trial not started. Right to be represented by private counsel. Not for delay or to subvert judicial proceedings. Absent showing of bad faith court could not prevent substitution of counsel. No prejudice to state. Reversed for new trial.

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CLICK TO READ United States v. Leon L. Roberts, Docket # 17-15002

Conviction after trial of Sex Trafficking of a Minor, 18 U.S.C. § 1591 reversed, new trial ordered. 

Federal District Court committed per se reversible error by constructively amending the indictment at trial.  Defendant was charged in the Indictment with sex trafficking based upon actual knowledge of the victim’s age and reckless disregard of the victim’s age.  At trial, the Government sought and obtained an instruction that the Defendant had a reasonable opportunity to observe the minor and therefore knew the age of the victim, a different legal theory than the one specified in the Indictment and presented to the Grand Jury.  Defense counsel objected on grounds that jury instructions unlawfully expanded the possible grounds of conviction beyond what was alleged in the indictment.  Eleventh Circuit held that this violated the Defendant’s right to be tried only on the charges returned by the Grand Jury.  The Eleventh Circuit declined to review whether there was insufficient evidence to prove knowledge and reckless disregard based on the evidence presented at trial and therefore a judgment of acquittal should be entered. 

PRACTICE TIP – always, always, always, compare the language of the indictment with the court’s jury instructions to ensure that the court instructions track the language of the indictment NOT the language of the statute. 

CLICK TO READ United States v. Diosme Fernandez Hano and Reinaldo Arrastia-Cardoso, Docket # 18-10510

The Eleventh Circuit decided two questions of first impression:

(1) whether a five-year statute of limitations for a defendant implicated by DNA testing, 18 U.S.C. § 3297, permits indictment within five years of that testing regardless of whether the limitation period otherwise applicable to the offense has already expired; and

2) whether the Confrontation Clause of the Sixth Amendment, see Bruton v. United States, 391 U.S. 123 (1968), or the Due Process Clause of the Fifth Amendment prohibits use of the nontestimonial statements of a nontestifying criminal defendant against his codefendant in a joint trial.

Both resolved against the Defendants who were convicted of Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a), (b)(1),