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 Rule 3.850 motion, newly discovered evidence, robbery, possession of marijuana, sale and delivery of marijuana, motion to suppress, sexual battery, expert testimony, violation of probation, involuntary plea, battery 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 Kyle Ray Himes v. State of Florida, Docket # 1D19-2432

Appeals the trial court’s denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which alleged newly discovered evidence. Himes argues that he was entitled to an opportunity to amend his facially insufficient motion. Convicted of robbery in the underlying criminal case and direct appeal was affirmed. In 2017, Himes filed the postconviction motion under review. The trial court denied the motion as successive, but appellate court reversed because the trial court failed to attach necessary records to prove that the claims were conclusively refuted by the record. Upon remand, the trial court denied the motion as facially insufficient without leave to amend.

Appellate court had previously held that motion was facially sufficient on remand to trial court. Court was not bound to follow, but needed to attach portions of record to refute. Raised two newly discovered evidence claims. A newly discovered evidence claim must be supported by a properly sworn affidavit from the witness whose testimony provides the basis for the claim. See Fla. R. Crim. P. 3.850(c). In this case not made under penalty of perjury now did notary indicate how he was known. Order below does not conclusively resolve Himes’ claim of newly discovered exculpatory evidence. Accordingly, Himes should have been given an opportunity to amend his motion under Spera. See Fletcher v. State, 53 So. 3d 1249, 1252 (Fla. 4th DCA 2011).

Reverse the trial court’s order and remand with instructions to strike the motion with leave to refile the motion with a properly sworn affidavit, within a reasonable time period, pursuant to Spera.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Cleo Brown v. State of Florida, Docket # 2D20-193

Appeals conviction and sentence for possession of marijuana with intent to sell or deliver. Brown entered a no contest plea to the charge, reserving the right to appeal the denial of his dispositive motion to suppress physical evidence. In his motion to suppress, Brown argued that the search and seizure of the drug evidence was unlawful, that there was no probable cause for arrest, and that Brown was illegally arrested and searched without probable cause or reasonable suspicion.

There was no dispute that Brown was subjected to a warrantless search; thus, the burden therefore shifted to the State to show that the search was legal. See Palmer v. State, 753 So. 2d 679, 680 (Fla. 2d DCA 2000). At the hearing, the State did not present any evidence regarding what happened during the stop, did not argue that there was probable cause to arrest and search (and in fact argued that there was no arrest), and did not otherwise address the search that resulted in the discovery of the drugs. Thus, the State did not demonstrate that the police had probable cause to arrest Brown or any other basis to justify a search of Brown or his personal belongings.

The trial court erred in denying his motion to suppress because the State did not demonstrate that the search was lawful. Reversed and remanded.

THIRD DISTRICT COURT OF APPEAL

No reversals reported.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ Daryl Levon Tindall v. State of Florida, Docket # 4D19-2215

Appeals his life sentence, imposed after a second resentencing, for crimes committed while he was a juvenile. Argues that the trial court erred by relying upon its own opinion of his mental state in face of contradictory evidence from expert opinion. He was found guilty of two counts of kidnapping and two counts of sexual battery on a victim less than twelve years of age after a jury trial. Initially sentenced to life imprisonment. He successfully appealed his sentence twice, and was resentenced twice. See Tindall v. State, 45 So. 3d 799 (Fla. 4th DCA 2010); Tindall v. State, 41 Fla. L. Weekly S453 (Fla. Oct. 13, 2016). This appeal follows the second resentencing, which took place on July 10, 2019.

Three separate experts testified that he did not have any sexual disorder. The trial court’s opinion that Defendant had an “immutable” sexual disorder, absent a diagnosis by any testifying expert, cannot stand as a rationale for its sentence in this case. On this record, there was no basis for the trial court to substitute its interpretation of the facts for that of the experts. The trial court erred in rejecting expert testimony regarding the Defendant’s mental status in favor of its own opinion. Reversed and remanded for resentencing in front of another judge.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Kelly A. Boswell v. State of Florida, Docket # 5D19-2890 and 2900

Appeals circuit court order revoking probation, adjudicating her guilty and sentencing to a 31.2 month term in the Department of Corrections. The State conceded error, and that Appellant is entitled to full violation of probation proceedings in accordance with Gaither v. State, 296 So. 3d 553 (Fla. 5th DCA 2020). Gaither dealt with a matter of first impression in Florida and was decided after Appellant was sentenced; thus, it was not available to guide the trial court in conducting the proceedings that led to Appellant’s imprisonment. Reverse and remand for a new full revocation hearing.

CLICK TO READ State of Florida v. Karen Hayes Decker, Docket # 5D20-831

State appeals post-conviction court order setting aside plea and vacating sentence. Pled no contest to a lesser included charge of misdemeanor battery against her grandmother. Filed a Rule 3.850 motion five years later after being unable to seal her record. Alleged that attorney’s misadvice about eligibility rendered her plea involuntary. Admits to conducting no due diligence on sealing eligibility. And motion was time barred.

The court first found that because Decker could not seal her record until she completed probation, she had only one year to investigate the issue. It also found that Decker’s attorney, the FDLE, the State, and the court had each “misled” Decker during the sealing process. The court observed that the Florida Statutes contain no deadline by which an applicant must petition to seal her criminal record. And the postconviction court concluded that Decker exercised due diligence by filing her motion within two years of when Decker first learned of her attorney’s misadvice.

A public criminal record is a collateral consequence of a criminal sentence. Like other collateral consequences, Decker could identify the legal impact of her plea at the time of entry. Deportation and professional licensing cases are similarly held to two year time bar despite being much more important than a criminal conviction. Decker could have investigated the sealing of her criminal record after the imposition of her sentence and quickly learned that she was statutorily ineligible.

Reversed and remanded with instructions.

ELEVENTH CIRCUIT COURT OF APPEALS

No reversals reported.

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Rule 3.850 motion, newly discovered evidence, robbery, possession of marijuana, sale and delivery of marijuana, motion to suppress, sexual battery, expert testimony, violation of probation, involuntary plea, battery