FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ David Goesel v. State of Florida, Docket # 2D19-2730

Appeal of an order denying a motion to suppress child pornography seized from Defendant’s home pursuant to a search warrant.  Order reversed, suppression granted.

Law enforcement authorities were tipped off that an IP address uploaded child pornography to a website.  Police traced the IP address to a home owned by Defendant.  During the investigation, it was discovered that the same IP address had uploaded a non-pornographic image earlier.

Law enforcement prepared an application for a search warrant and detailed the non-pornographic photo information, but did not mention the pornographic photo that was allegedly uploaded.  The affidavit stated that the officer reviewed the non-pornographic image and concluded that it was child pornography.  The search warrant was granted, and Defendant’s home and computer searched.  Defendant moved to suppress, and when the motion was denied, pled guilty with a reservation of his right to appeal.

The Second DCA reversed, finding that the search warrant application was not based upon probable cause.  First, the affidavit contained nothing to support the detective’s conclusory assertion that the photo at issue qualified as child pornography.  Second, the affidavit was insufficient to demonstrate that the detective had any training or expertise in identifying child pornography.  The fact that he had participated in some investigations and did some online digital forensic investigation training on computers in general did not establish expertise. 

Further, the Second DCA held that the good-faith exception simply does not apply in this case.  An objectively reasonable officer would have known that an officer’s conclusory assertion of criminality without any supporting details and without any demonstrated expertise on the subject would be insufficient to establish probable cause for a search.

CLICK TO READ Katarzyna Ma Maksymowska v. State of Florida, Docket # 2D18-4697

Appeal of a conviction after trial of Possession of Clonazepam, Possession of Oxycodone, and Driving with a Suspended License.  Conviction reversed, new trial ordered.

Defendant was stopped in a car and after giving police a false name, pills were found in the car.  Defendant told the officer the pills belonged to her grandmother.  At trial, Defendant testified she took care of his elderly grandmother who suffered from dementia and that the pills were her grandmothers, and the grandmother had a prescription for them.  She maintained that she did not know it was illegal for her to hold her grandmother’s medication, that she gave a false name to police because she knew her license was suspended, and that she was afraid.

Following the guilty verdict but before sentencing, trial counsel informed the court that he had failed to request a jury instruction on the prescription defense because he was unaware that holding a controlled substance as an agent for a person who had a prescription was an affirmative defense to the possession charges.  The court sentenced Defendant, and new counsel filed a motion for a new trial and a judgment of acquittal, which was denied.

The Second DCA held that counsel was ineffective on the face of the record for failing to request a jury instruction on the prescription defense.  New trial ordered on the felony drug charges.

CLICK TO READ Michael Ryan v. State of Florida, Docket # 2D18-1338 and 2D18-2664

Defendant was charged with Possession of a Controlled Substance in two separate cases.  The court offered him a sentence at the bottom of the guidelines before trial, and warned Defendant that if he “played with him” then he would get a harsher sentence. Defendant was found guilty and sentenced to more than double what he was originally offered by the judge. 

The Second DCA held that Defendant has show a reasonable likelihood that his sentenced were vindictive, and the sentences were reversed and remanded for resentencing before a different judge.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ Rancifer Brown v. State of Florida, Docket # 3D19-1636

Appeal of a summary denial of a motion to vacate a sentence under Rule 3.800(a) and 3.850.  Order reversed, remanded for resentencing.

Defendant was convicted in 2000 of Armed Robbery with a Firearm, Attempted Second Degree Murder with a Firearm, Use of a Firearm During the Commission of a Felony, at the age of 17.  He was sentenced to life imprisonment on the first two counts and 15 years on the third count.

In 2010, following Graham v. Florida, 560 U.S. 48, 74-75 (2010), Brown moved to vacate his life sentences as unconstitutional. At the hearing, defense counsel advised the court that Brown was willing to accept a sentence of twenty-five years, which was the state’s original plea offer, without the need of a separate sentencing hearing.  The State said the offer was 40 years.  The court did not hold a new sentencing hearing, and resentenced Brown to 30 years on the first two counts.

In 2016, the Florida Supreme Court decided Kelsey v. State, 206 So. 3d 5 (Fla. 2016) which held that a defendant is entitled to a new sentencing hearing if their original sentence violated Graham v. Florida.  Defendant moved for resentencing, and the court denied the motion, ruling that by failing to object in 2010, Defendant waived his right to a new sentencing hearing.

The Third DCA held that Defendant was entitled a full resentencing hearing under Kelsey.  Reversed and remanded.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported.

FIFTH DISTRICT COURT OF APPEAL

CLICK TO READ Jahquell Davis v. State of Florida, Docket # 5D20-810

Criminal Habeas Corpus Petition alleging ineffective assistance of appellate counsel granted, new trial ordered.

Davis was charged with Attempted First Degree Murder with a Firearm. However, the State proceeded at trial on the theory of Attempted Felony Murder.  The trial court instructed the jury on Attempted Felony Murder and not Attempted First Degree Murder with a Firearm. Davis’s trial counsel did not object to the change in the State’s theory or the erroneous jury instruction.  The jury found Defendant guilty “as charged” of Attempted First Degree Murder with a Firearm and he was sentenced to 40 years imprisonment.  On appeal, his appellate lawyer raised only a Speedy Trial issue and the conviction was affirmed.

When the jury is instructed on an alternate theory of the charged crime, but that alternate theory was not charged in the information, it is fundamental error if it is clear that the jury returned a verdict on that uncharged theory.  Here, it is clear that the jury returned a verdict on the theory of attempted felony murder because that was the only theory on which the jury was instructed. Such an error is fundamental.  Appellate counsel’s failure to raise the jury instructions error in Davis’s direct appeal was ineffective assistance of counsel.

Petition granted, conviction reversed, new trial ordered.

CLICK TO READ Aquillia T. Wilson v. State of Florida, Docket # 5D20-1343

Appeal of summary denial of a second motion for post-conviction relief under Rule 3.850, order reversed and remanded for reconsideration.  Defendant filed his post-conviction relief motion and then immediately filed a motion to disqualify the judge.  The court denied the post-conviction relief motion first, then later denied the motion to disqualify.

The Fifth DCA reversed, finding that Florida law requires an immediate ruling on motions to disqualify and that while a motion to disqualify is pending, the trial court is not authorized to rule on other pending motions.  The lower court erred when it ruled on Appellant’s postconviction motion while the motion to disqualify was pending.