FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Donald L. LaMore v. State of Florida, Docket # 2D20-37

Appeal of an order summarily denying Rule 3.850 motion based on newly-discovered evidence.  Reversed and remanded.

Defendant was charged with fifteen sex offense charges against his girlfriend’s daughter.  A jury found him guilty on two counts of the lesser included offenses of misdemeanor battery and guilty as charged of lewd sexual battery of a child between twelve and eighteen years of age by one in familial or custodial authority. The jury acquitted him of the other offenses, and the trial court granted LaMore’s motion to dismiss one of the misdemeanor batteries.  He was sentenced to 31 years imprisonment, and his conviction was upheld on direct appeal.

Defendant filed a Rule 3.850 motion for post-conviction relief, maintaining his innocence and attached an affidavit from a friend.  The affidavit demonstrated that the girlfriend “had the propensity, willingness, and motive to fabricate sexual abuse accusations using her daughter.” Debney stated in his affidavit that he and his wife stayed with LaMore and the girlfriend around February 2001. According to the witness’ affidavit, the girlfriend and LaMore had been arguing most of the day. When LaMore left for the back porch, the girlfriend became very angry and said that LaMore better watch himself because she knew just what to say to put him in prison for the rest of his life and her girls would swear to anything she told them to say or do. The witness said he would always remember the girlfriend’s statement “because of the way she said it.”

Defendant wrote in his affidavit that during various arguments with the girlfriend, she would threaten to put him away like she did her husband, who was convicted of numerous sex offenses against a child.  LaMore also asserted that he had twice thrown the victim out of a residence he shared with two other men, and she therefore had reasons to assist her mother in “this fiction.” He noted that the report of sexual abuse was made less than a week after he threw the victim out the second time.

The trial court denied the motion, finding that the newly discovered evidence would not have probably produced an acquittal, because the witness’ testimony would have been inadmissible hearsay.

The Second DCA reversed, finding that the statement would have been admissible as impeachment evidence of the girlfriend (who testified at trial) and would have been admissible to prove motive to lie or bias of a witness. 

Reversed and remanded for a new determination of the motion or to hold an evidentiary hearing.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Corey Wayne Webb v. State of Florida, Docket # 5D20-1151

Appeals denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Claimed written sentence did not match oral pronouncement. In Florida, oral pronouncement controls See Williams v. State, 957 So. 2d 600, 603 (Fla. 2007). Charged with three counts of lewd or lascivious battery on a child twelve years of age or older, but younger than sixteen, as well as one count of disorderly intoxication. He entered a negotiated plea to one count of lewd or lascivious battery and to disorderly intoxication. The State dismissed the remaining two lewd or lascivious battery counts. Webb was sentenced to time served on the disorderly intoxication charge, and to two years in prison, followed by ten years of sexual offender probation, for the lewd or lascivious battery. He served his prison term and was released on probation. He subsequently violated his probation multiple times and was on community control (his probation had been revoked) at the time that his last violation came before the court. Court pronounced 66 months Department of Corrections with credit for 30 months time served. Written sentence only gave him credit for 387 days. Motion to correct sentence denied, holding that oral pronouncement reflected the intent of the court. Transcript clearly shows that trial court intended credit for jail and prison time. Reversed and remanded for correction of the written sentence to include all prison and jail time reflected in the oral pronouncement.

CLICK TO READ Lamaria Dean v. State of Florida, Docket # 5D20-1097

Seeks writ of prohibition following circuit court’s denial of her motion to dismiss for lack of subject matter jurisdiction. Argues that the amendment to section 812.014, Florida Statutes (2019), applied retroactively and, therefore, the information, which alleged that Petitioner committed a theft of $300 or more, charged her with a first-degree misdemeanor rendering jurisdiction in the county court. Petition granted. 2019 amendment reduced the penalty for theft between $300 and $749 from third-degree felony to first-degree misdemeanor. Petitioner was charged via information for incident occurring August 2, 2019. New statute took effect after September 30, 2019.article X, section 9 of the Florida Constitution was amended to read, “Repeal of a criminal statute shall not affect prosecution for any crime committed before such repeal.” This amendment, which is commonly referred to as the “Savings Clause,” altered Florida constitution so that there would “no longer be any provision in the Florida Constitution that would prohibit the Legislature from applying an amended criminal statute retroactively to pending prosecutions or sentences.” Jimenez v. Jones, 261 So. 3d 502, 504 (Fla. 2018).§ 775.022(3), Fla. Stat. (2019). Subsection (4) specifically demonstrates the Legislature’s intent that amendments to sentencing laws “must” be applied retroactively to cases in which the defendant has not yet been sentenced. Trial court relied on Stapleton v. State, 286 So. 3d 837 (Fla. 5th DCA 2019), but in that case, defendant was sentenced prior to section 775.022(4) went into effect. Here, petitioner not sentenced and clear legislative intent to apply retroactively in that case. Petition granted.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ Carl Hoffer, and class of similarly situated persons, v. Secretary, Florida Department of Corrections, Docket # 19-11921

This case presents the question whether the Eighth Amendment requires Florida prison officials to treat all inmates with chronic Hepatitis C—including those who have only mild (or no) liver fibrosis—with expensive, state-of-the-art “direct acting antiviral” (DAA) drugs. The DAA course of treatment costs about $25,000-$37,000 per inmate. 

Plaintiffs sued under 42 U.S.C. § 1983 as a class, arguing that the refusal of the Florida Secretary of the Department of Corrections treatment plan for inmates with Hepatitis C to treat all inmates with DAA drugs was deliberately indifferent to inmates’ serious medical needs in violation of the Eighth Amendment.  That plan was to monitor all HCV-positive inmates, including those who have yet to exhibit serious symptoms, and provide DAAs to only to those who have an exacerbating condition, shows signs of rapid progression, or develops even moderate fibrosis of the liver.

The District Court held this plan violated the Eighth Amendment and entered a permanent injunction mandating across-the-board DAA treatment. The Eleventh Circuit reversed, holding to the contrary, that the officials’ current treatment plan satisfies constitutional requirements.