FLORIDA SUPREME COURT

CLICK TO READ State of Florida v. Herbert Leon Manago, Jr., Docket # SC2021-1047

In this case, the Defendant was 17 when he and three others carjacked a vehicle and shot the driver.  He was charged with First Degree Felony Murder and Carjacking with a Firearm.  The State presented two theories of felony murder at trial – Defendant as the shooter or as a principal to the crime.  Defendant was convicted of felony murder and carjacking with a firearm.  The verdict form did not specify whether Manago was the shooter, nor under which theory the jury convicted him for first-degree felony murder; it stated only that the jury found Manago guilty of first-degree felony murder and carjacking “as charged in the Indictment.”  Defendant was sentenced to life without parole on the felony murder count and concurrent 30-year term for the carjacking charge.  While Manago was serving his sentence, the United States Supreme Court decided in Graham v. Florida that it is a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment for a juvenile offender convicted of a non-homicide crime to receive a life sentence without the possibility of parole. 560 U.S. 48, 82 (2010).  The Florida Legislature amended Florida Statutes 775.082 to provide for resentencing of juveniles, and Defendant sought resentencing.

Manago argued he should be resentenced under section 775.082(1)(b)2., Florida Statutes (2016), because the jury never found beyond a reasonable doubt that he “actually kill[ed] . . . the victim.”  Thus, absent a jury finding that he was the shooter, Manago argued, he should be resentenced under section 775.082(1)(b)2., which applied to juvenile capital felony offenders “who did not actually kill . . . the victim.”

The trial court agreed with the State and sentenced Manago under section 775.082(1)(b)1, concluding that the case “lack[ed] an adequate jury finding.” Even so, it decided that a sentence under section 775.082(1)(b)1. was proper because “the record demonstrates beyond a reasonable doubt that a rational jury would have found [Manago] actually killed the victim.” In other words, the trial court determined that Manago was eligible for resentencing under section 775.082(1)(b)1. because it reviewed its own Alleyne violation and found it harmless.  Defendant was resentenced to life and 30 years.

Defendant appealed and the Fifth DCA vacated the sentence and held that the sole remedy was resentencing.

The Florida Supreme Court held that the trial court committed harmful sentencing error, and that another option was to empanel a jury to make the required factual finding to support a sentence under section 775.082(1)(b)1. 

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Daniel Leander McCall, Docket # 1D2022-2271 and 1D2022-2272

Defendant was given a downward departure sentence pursuant to Florida Statutes § 921.0026(2) based on a finding that Defendant was emotionally distressed at the time he committed the offenses.  The State appealed, and the First DCA reversed, holding that while a trial court may impose a downward departure sentence for reasons not delineated in section 921.0026(2) if the reason given is supported by competent, substantial evidence and is not otherwise prohibited, in this case there was no evidence presented in the underlying cases that Appellee acted under coercion or threat.  Reversed and remanded for resentencing.

SECOND DISTRICT COURT OF APPEAL

No reversals reported.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ Coffer Kenneth v. State of Florida, Docket # 3D22-2023

Defendant was charged with several offenses, including Reckless Driving pursuant to Florida Statutes § 316.192.  The Amended Information alleged that Defendant drove a vehicle in the wrong lane of travel in a residential area and passed four other vehicles.  A police officer testified that he saw Defendant stopped at a red light, and when the light turned green, Defendant “started burning off the tires, screeching tires, and took off Westbound from the light.”  He then crossed over the dashed yellow line and passed 3-5 cars while driving in the wrong lane in a residential neighborhood, driving at approximately twenty-five to thirty miles per hour.  After the State rested, the defense moved for a judgment of acquittal, but the motion was denied.  He was found guilty of Reckless Driving and acquitted of the other two charged offenses.

The Third DCA reversed and found the evidence was legally insufficient.  The testimony did not establish that Defendant’s driving almost caused an accident or caused other vehicles or persons to take evasive actions. The Defendant’s act of passing vehicles was careless, but the act does not amount to reckless driving. Further, although passing within 100 feet of an intersection is not permitted, doing so constitutes a noncriminal traffic infraction, punishable as a moving violation, not reckless driving.

FOURTH DISTRICT COURT OF APPEAL

CLICK TO READ State of Florida v. Mark A. DeSimone, Docket # 4D2022-2104

The State charged Desimone with thirteen counts of violating section 817.505(1)(a), Florida Statutes (2016) (The Patient Brokering Act).  Defendant moved to dismiss.  After an evidentiary hearing, the trial court dismissed the four counts, finding that while the counts alleged payments to one corporation, the payments were made for the same tests conducted on the same patients on the same date as payments made to another entity for those same patient referrals. Because of this, the trial court determined that the payments constituted one violation of the statute for each day alleged.

The State appealed.  The Fourth DCA reversed, finding that the trial court erred by holding an evidentiary hearing to determine disputed issues of fact. The Fourth DCA also held that the statute allowed the State to bring these multiple charges because the unit of prosecution pursuant to Florida Statutes § 817.505(1)(a) is each payment made to induce the referral of patients or patronage.

CLICK TO READ State of Florida v. Evelyn Barone, Docket # 4D2022-2487

Defendant was arrested for Driving Under the Influence after police officers witnessed her driving erratically and speeding.  When she was pulled over, the arresting officer asked the defendant if she would do roadside sobriety exercises, and she said yes. When the arresting officer asked her to begin the first exercise, the defendant asked, “Why do I have to do that?” The arresting officer told her that they needed to be sure she was “okay to drive.”

After an evidentiary hearing, the trial court found the arresting officer observed signs of impairment and had reasonable suspicion to detain the defendant and ask her to perform the exercises as part of the DUI investigation. But the trial court concluded the arresting officer needed probable cause to “compel” the defendant to conduct the exercises. The trial court focused on the arresting officer’s words that the defendant “needed” to do the exercises—i.e., her consent was required.  The court suppressed and the State appealed.

The Fourth DCA reversed and denied suppression.  It held that the proper standard to request Field Sobriety Exercises is reasonable suspicion that a driver has committed a law violation. If an officer has reasonable suspicion a defendant has committed a DUI, the defendant can be required to perform FSEs, and consent is immaterial.

Order reversed.

CLICK TO READ Wilkin Jose AcostaFigueroa v. State of Florida, Docket # 4D2023-1542

Defendant filed a motion for self-defense immunity pursuant to Florida Statutes § 776.032(1).  The trial court concluded that the time limit in Florida Rule of Criminal Procedure 3.190(c), which requires motions to dismiss to be filed before or at arraignment, applied and denied the motion as untimely.  Defendant petitioned for certiorari.

The Fourth DCA granted the petition and quashed the trial court’s order for three reasons. First, a motion to dismiss claiming self-defense immunity from prosecution may be entertained at any time before trial pursuant to rule 3.190(c)(3).  Second, a motion to dismiss based on self-defense immunity is a “fundamental ground[]” not subject to waiver for failure to comply with the time restrictions in rule 3.190(c). Third, the trial court failed to recognize its “discretion” to “grant[] further time” and permit the filing of a motion to dismiss after arraignment. The trial court also abused its discretion by not allowing the motion to dismiss where the motion was filed before the case had even been set for trial and where there was no showing of disruption to the criminal proceedings.

FIFTH DISTRICT COURT OF APPEAL

No reversals reported.

SIXTH DISTRICT COURT OF APPEAL

No reversals reported.