FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Calvin Dejuan Forman v. State of Florida, Docket # 2D18-4740

Appeals twenty-year habitual felony offender (HFO) sentence entered on remand from this court in Forman v. State, 231 So. 3d 580 (Fla. 2d DCA 2017). Because the resentencing court was precluded from relying on evidence admitted at the original sentencing hearing to support its finding that Mr. Forman qualifies as an HFO and because there was no evidence presented at resentencing to establish the existence of any prior convictions, again reverse Mr. Forman’s sentence and remand for the circuit court to conduct a de novo resentencing hearing consistent with this opinion.

Convicted of one count of aggravated battery and originally sentenced as an HFO to twenty-five years in prison. Reversed and remanded for resentencing before a different judge, holding that the totality of the circumstances surrounding the trial judge’s involvement in the plea negotiations and ultimate sentence gave rise to a presumption of judicial vindictiveness. Resentencing court relied on same evidence. Tried to put forward an uncertified copy of a Time and Crime Report. Court tried to take judicial notice of the items in the file. Defense objected and reminded court that original, certified copies were required. Resentencing court properly precluded the uncertified report from being admitted. See Yisrael v. State, 993 So. 2d 952, 960 (Fla. 2008). On remand, State will have the opportunity to present evidence that Forman qualifies as HFO.

CLICK TO READ Victor Manuel Alvarado-Contreras v. State of Florida, Docket # 2D18-3383

Appeals conviction and sentence for sexual battery. Argues that the trial court erred in denying his request to impeach the victim with evidence of the victim’s bias. Reverse his conviction and sentence and remand for a new trial.

Sought to introduce the testimony of the victim’s sister, his girlfriend. Alvarado-Contreras argued that the victim’s sister would have provided testimony that was relevant to show the victim’s testimony against him was motivated by bias towards her. The victim’s sister would have testified that her daughter had caused the victim’s former husband to be jailed and deported after accusing him of sexual battery, and she would have testified that the victim considered the accusation against her former husband to have been false. The trial court rejected Alvarado-Contreras’ request to present the testimony, concluding that such evidence was inadmissible as a specific instance of misconduct.

The trial court did allow the victim’s sister to testify as to the victim’s reputation in the community, which she described as untruthful and dishonest. After the jury found him guilty as charged, Alvarado-Contreras filed a motion for new trial arguing in part that the trial court abused its discretion in ruling that evidence of the victim’s bias against his girlfriend was inadmissible. The trial court denied the motion. A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion, but such discretion is limited by the rules of evidence. See Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008). A trial court’s “erroneous interpretation” of the rules of evidence is reviewed de novo. Pantoja v. State, 59 So. 3d 1092, 1095 (Fla. 2011) (quoting McCray v. State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006)). The trial court erroneously excluded the testimony of the victim’s sister on the basis that it was a specific act of misconduct. This is not a scenario in which a party seeks to introduce a witness’s prior bad act in order to impeach her credibility.

State argues that error was harmless as there was other evidence of guilt, but the record does not reflect that there is “no reasonable possibility” that failure to allow the evidence of bias could have contributed to the jury conclusion that she had been truthful when she recounted her version of the encounter.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Lucas Stevenson, Docket # 4D19-3831

State appeals trial court’s order dismissing felony information for possession of tetrahydrocannabinol (“THC”), with leave to refile the charge in county court as a misdemeanor. State was unable to make a prima facie showing that the defendant committed a felony. Affirm the trial court. Charged with one felony count for allegedly having a total gross weight of 14.04 grams. Argued that this was under the 20 grams and should have been a misdemeanor. Distinction in the law for plant based versus synthetic.

Argued that THC is a naturally occurring psychoactive chemical compound found in the cannabis plant and is also commercially produced as a synthetic compound. Because the Broward County Sheriff’s Office Crime Lab (“BSO Crime Lab”) was unable to analyze the vaping compound in a manner to determine whether the THC he possessed was synthetic or natural, he further argued that it was impossible to determine whether the charge is a felony or a misdemeanor, and therefore, applying the rule of lenity, the felony charge should be dismissed with leave for the State to re-file as a misdemeanor.

State had charged under the section governing synthetic cannabinoids, but the chemist was unable to determine which parts were synthetic and which parts were plant based. The defendant contended that because the substance in this case could not be removed from the definition of cannabis, the misdemeanor limitation for possession of twenty grams or less of cannabis was applicable, noting that all that was excluded from that misdemeanor limitation was resin, which was not shown to be present, based on the chemist’s testimony.

If the source of the THC was a “compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds,” but not the resin of a cannabis plant or any compound manufacture, salt, derivative, mixture, or preparation of such resin, then the misdemeanor exception for prosecution would apply to the defendant’s possession, given the quantity possessed.

CLICK TO READ Yeral Andalia Rodriguez v. State of Florida, Docket # 4D20-2010

Petition for writ of certiorari to the circuit court. Defendant in a pending vehicular homicide case – petitions for certiorari review from orders allowing the State to subpoena defendant’s hospital and paramedic records from the date of the incident from which his charges arose. Because there was no reasonable founded suspicion that the records would contain information relevant to the pending charges or an ongoing criminal investigation, petition is granted.

In October 2018, defendant was allegedly driving at a high rate of speed (approximately 78 mph) alongside another speeding vehicle. Defendant’s vehicle crossed over the concrete median into oncoming traffic. He struck two other vehicles resulting in the death of defendant’s seventeen-year-old passenger and serious bodily injury to the driver of one of the other vehicles. Transported to hospital, but not note of drug or alcohol influence at the time of crash. No documented signs of impairment by detective and did not ask defendant to submit to blood testing. Search of vehicle, upon consent, produced no evidence that defendant was under the influence of drugs or alcohol. No reports from witnesses of smell of alcohol. No probable cause affidavit or charging document alleges drugs or alcohol.

State filed a motion to obtain medical records and presented no evidence of impairment. Court nonetheless granted the State’s motion.

In the present case, the State has not met its burden of demonstrating a reasonable founded suspicion that the medical records have any information relevant to the pending charges or any ongoing criminal investigation. Defendant was charged with vehicular homicide and reckless driving, not DUI. Neither the accident report, the search of defendant’s vehicle, nor the statements of any witness proved any reasonable suspicion that defendant was under the influence of alcohol or drugs. Disagree with trial court that every reckless driving incident creates a compelling state interest to obtain toxicology records. There must be some reasonable founded suspicion that alcohol or drugs were involved, such as someone smelling alcohol, drug or alcohol containers in the vehicle, or statements or evidence which might suggest drug use or alcohol intoxication.

FIFTH DISTRICT COURT OF APPEAL

No reversals reported.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ Elliot Keith Anderson v. United States, Docket # 17-14101

Appeals order denying 28 U.S.C. § 2255 motion. Sentenced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), resulting in a lengthier term of imprisonment and supervised release.

Mr. Anderson was charged in 2002 with being a felon in possession of a firearm. The indictment listed three prior Florida convictions for aggravated battery, strong arm robbery, and battery on commitment facility staff. Citing those three prior convictions, the government filed a notice of intent to seek a longer sentence under the ACCA. A jury convicted Mr. Anderson of being a felon in possession of a firearm. Thus, in 2003, Mr. Anderson was given a longer sentence under the ACCA. He was sentenced to 210 months’ imprisonment and 5 years’ supervised release.

In this second § 2255 motion, Mr. Anderson argued that, after Johnson’s invalidation of the ACCA’s residual clause, he no longer had the three violent felonies required for an enhanced sentence under the ACCA. Specifically, he argued that the battery-on-commitment-facility-staff conviction was no longer a qualifying predicate offense. He also asserted his disagreement with circuit precedent as to the two other violent felonies identified in the indictment, robbery and aggravated battery.

The District Court decided Mr. Anderson’s § 2255 motion without the benefit of this Court’s decision in Beeman, 871 F.3d at 1221–22, and Tribue, 929 F.3d at 1332 (holding that the government does not waive reliance on use of convictions outside of those identified in the presentence investigation report as ACCA predicates). Remand this case so that the District Court may do the Beeman and Tribue analyses in the first instance.

CLICK TO READ United States v. Latecia Watkins, Docket # 18-14336

Government interlocutory appeal from district court’s suppression order and order denying a motion for reconsideration. Packages discovered with missing addresses bound for Boca Raton. Agents replaced cocaine in them with GPS trackers and fake cocaine. Setup surveillance, but on morning the packages were supposed to be delivered the trackers stopped working. Tracking in post office system was not routine. Packages were not delivered, pointing to an inside job. Supervisor must have manipulated data to show delivery times that were different. Agents talked to Watkins under a ruse of needing documents. GPS tracker started working and tracked to her house.

Agents went to the house where she volunteered the packages and there was a smell of marijuana. Warrant was obtained though nothing else useful came of it. Marijuana in plain view and packages on bedroom floor. Signed written Garrity and Miranda waiver and consented to search of her cellphone. Charged with four crimes (Conspiracy to import five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. §§ 963, 952(a), and 960(b)(1)(B) (Count 1); importation of five kilograms or more of cocaine into the United States, in violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(B) (Count 2); conspiracy to possess five kilograms or more of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count 3); and attempted possession of five kilograms or more of cocaine with attempt to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count 4)) and moved to suppress all evidence.

Magistrate judge issued report and recommendation that motion be denied after an evidentiary hearing. District court granted the motion instead. The court agreed with the magistrate judge that the initial search and placement of the tracking devices by the government was lawful. But relying on the Supreme Court’s Karo and Jones decisions, the court concluded that the government had to have a warrant to monitor the tracking device inside Watkins’ house because it was no longer open to visual surveillance from a public place and Watkins had a justified privacy interest in her house. See United States v. Jones, 565 U.S. 400 (2012); United States v. Karo, 468 U.S. 705 (1984). District court ruled that even without consent it was tainted because t was the product of unlawful monitoring of the tracking device. Government filed motion to reconsider based on inevitable discovery. District court denied again.

Evidence here would have been subject to the inevitable discovery doctrine since agents were going to knock and talk anyway. Reversed order granting suppression.