Florida Criminal Law Update (November 7, 2022 – November 11, 2022)

The “Cite” of the Crime Podcast

Florida Criminal Law Update (November 7, 2022 – November 11, 2022)

Listen to this week’s The “Cite” of the Crime Podcast episode here.

OVERVIEW – 10 Cases

  • 0 – Florida Supreme Court Cases
  • 5 – First DCA Cases
  • 3 – Second DCA Cases
  • 1 – Third DCA Cases
  • 1 – Fourth DCA Cases
  • 0 – Fifth DCA Cases

Case #1 – Howard v. State, No. 1D21-3340 (Fla. 1st DCA)(November 9, 2022)

  • Howard is a preservation of error case out of Leon County.
  • Mr. Howard requested a downward departure which was denied by the trial court. 
  • Mr. Howard appealed to the 1st DCA, but his trial counsel failed to object to the denial of downward departure request at the trial level.
  • Florida Rule of Appellate Procedure 9.140(e) states that a defendant may not raise a sentencing error on direct appeal unless there was a contemporaneous objection to the error, or the error was the subject of a rule 3.800(b) motion.
  • Also, the 1st DCA lacks authority to review a trial court’s denial of a downward departure unless the trial court misconstrued its discretion or had a blanket policy of refusing to exercise such discretion. 
  • Appeal dismissed. 

Case #2 – Knight v. State, No. 1D20-3016 (Fla. 1st DCA)(November 9, 2022)

  • Knight is an improper comment in closing argument case out of Escambia County.
  • Mr. Knight was arrested for killing his grandfather. 
  • At a first interview, he was read his Miranda warnings and he told detectives that his grandfather had a gun and pointing it at him.  When questioning persisted, Mr. Knight asked for a lawyer and questioning ceased. 
  • There was a second interview three weeks later, but because no suppression hearing was held, the record is silent on several important facts. 
  • At this second interview, Mr. Knight’s lawyer wasn’t present, but he was read his Miranda rights before questioning.  
  • The detective told Mr. Knight that he could stop answering questions at any time and Mr. Knight stated, “Well, I’ll stop then.”
  • The detective then clarified “if at any point you don’t want to talk anymore, you can stop, okay?” Mr. Knight agreed.
  • The detective then proceeded to ask questions for nearly 30 minutes and Mr. Knight freely answered them. 
  • As the interview grew more confrontational, Mr. Knight stated, “I don’t want to talk no more,” and the interview ended.
  • At trial, the state admitted the recorded interviews with no objection from defense counsel. 
  • When the prosecutor asked the detective if Mr. Knight was given every opportunity to tell his story and the defense attorney objected and the trial court sustained the objection.
  • During closing arguments, the prosecutor argued that Mr. Knight refused to answer certain questions , never denied being guilty, and never answered the hard questions. 
  • Mr. Knight argues on appeal that these arguments were an improper comment on Mr. Knight’s right to remain silent. 
  • The First DCA disagreed however, finding that Mr. Knight waived his right to remain silent. 
  • Had Mr. Knight sat mute, the comments would have been improper.  
  • But because he answered some questions and not others, the State was within its rights to comment on his silence in response to only some of the questions. 
  • Had he indicated an intent to terminate the interviews, then any comment about that invocation or silence afterwards would have been improper. 
  • Refusing to answer only some questions does not re-invoke Miranda rights. 
  • Here, the Court held that the state was merely commenting on Mr. Knight’s voluntarily given statements that were offered after he waived his rights and before he reclaimed them. 
  • Case Affirmed. 

Case #3 – Martin v. State, No. 1D21-2113 (Fla. 1st DCA)(November 9, 2022)

  • Martin is a denial of re-cross examination  and admission of a statement in body cam footage case out of Bradford County. 
  • Mr. Martin was charged with attempted first degree murder when he shot a friend who was also his neighbor several times during an argument. 
  • Mr. Martin claimed that the victim charged him and grabbed his neck and he shot in self defense, but he gave several conflicting statements. Mr. Martin admitted that he had been drinking heavily.
  • The victim testified that Mr. Martin walked up and started shooting him.  
  • Prior to trial, Mr. Martin filed a motion in limine to exclude portions of a recorded 911 call including where the victim, believing he was going to die, could be heard asking to see his children so he could tell them goodbye.
    • The State agreed to redact most of the challenged portions of the 911 call. 
  • During trial, Mr. Martin’s attorney cross examined the victim on the timing of the events and the State on re-direct did not develop any new material or contradict the prior testimony. 
  • Mr. Martin’s attorney asked to re-cross the victim and the trial court stated there is no re-cross. 
  • Mr. Martin’s attorney did not proffer what he was going to ask the victim. 
  • The 1st DCA found that the trial court did not err in denying Mr. Martin’s request to re-cross the victim because no new matter was raised on re-direct.  
  • Mr. Martin next argued that the trial court erred by denying his objection to a portion of the body camera footage where the victim’s wife tells the police that he wants to see his children. 
  • However, the 1st DCA found that the objection was not contemporaneous. 
  • When the State moved to admit the body cam footage, Mr. Martin stated there was no objection. 
  • Once the State started playing the video, defense counsel asked to approach the sidebar and said the audio hadn’t loaded properly when he watched the video and now objected to the video, however he did not state a basis for the objection.
  • The trial court overruled the objection
  • The 1st DCA held that this objection was not sufficient to preserve the issue. 
  • Mr. Martin argued on appeal that he did preserve the issue by objecting to basically the same statements about the victim wanting to see his children on the 911 recording, but the 1st DCA stated that he could not bootstrap his objection to the 911 recording to his argument that the body cam statements should not have come in. 
  • So, the fundamental error standard applies. 
  • And because it was a brief, isolated remark and the evidence was not so weak that it required a jury’s sympathy to convict, there was no fundamental error. 
  • Case Affirmed. 

Case #4 – McNeill v. State, No. 1D22-942 (Fla. 1st DCA)(November 9, 2022)

  • McNeill is a PRR and HO case out of Duval County. 
  • Mr. McNeill was sentenced to a 30 year minimum mandatory sentence as a prison releasee reoffender and he was determined to be an habitual felony offender, which increased his maximum possible sentence to life in prison.
  • However, because Mr. McNeill was not sentenced to any additional time above the prison releasee offender minimum mandatory sentence, an habitual felony offender sentence becomes illegal. 
  • In Grant v. State, the Florida Supreme Court held that equal, concurrent sentences as a prison releasee offender and an habitual felony offender violates §775.082(8)(c).  
  • Therefore, the 1st DCA vacated in part and remanded for the trial court to vacate and to resentence Mr. McNeil without the habitual felony offender designation. 
  • Case Affirmed in part, vacated in part, and remanded. 

Case #5 – State v. Richmond, No. 1D21-1866 (Fla. 1st DCA)(November 9, 2022)

  • Richmond is a quashing of subpoena for medical records in a DUI case. 
  • Officers conducted a traffic stop on Mr. Richmond after observing Mr. Richmond weaving erratically and veering back and forth abruptly. 
  • The officer observed an open container that smelled of an alcoholic beverage and Mr. Richmond admitted to drinking 3 beers. 
  • Mr. Richmond told the officer he had diabetes and the officer called an ambulance. 
  • Mr. Richmond refused field sobriety tests and he was arrested. 
  • Paramedics arrived and determined that Mr. Richmond needed to be transported to the emergency room due to high blood sugar. 
  • At the hospital, Mr. Richmond’s blood was tested for alcohol. 
  • The State subsequently requested a subpoena duces tecum with the trial court for the medical records. 
  • Mr. Richmond objected and the trial court sustained the objection.
  • The State filed a petition for writ of certiorari with the 1st DCA. 
  • The Florida Supreme Court in State v. Johnson held that a patient’s medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution, and any attempt on the part of the government to obtain such records must first meet constitutional muster.  
  • However, where the State can show a compelling government interest, the individual’s privacy right will be overcome. 
  • Fla. Stat. §395.3025(4)(d), Florida’s Hippa law does not prevent the State from subpoenaing relevant medical records in a criminal proceeding. 
  •  Here, because the medical records which would contain Mr. Richmond’s blood alcohol content level, were directly related to the incident of DUI, the State met its burden of establishing a compelling state interest.  
  • Therefore, the trial court erred in granting the objection. 
  • Petition granted, trial court order quashed  and trial court is directed to authorize the State to issue the subpoena. 

Case #6 – Arroyave v. State, No. 2D21-3497 (Fla. 2nd DCA)(November 9, 2022)

  • Arroyave is a 3.850 case out of Pinellas County. 
  • Mr. Arroyave filed a 3.850 motion for post-conviction relief which was summarily denied by the trial court. 
  • Mr. Arroyave was convicted of two counts of attempted second degree murder with a firearm and sentenced to concurrent terms of 20 years minimum mandatory on Count I and 25 years minimum mandatory on Count II. 
  • Mr. Arroyave claimed in his 3.850 motion that his counsel failed to inform him that he would be subject to a 25 year minimum mandatory sentence and had he known, he would have accepted a State offer of 15 years with a 10 year minimum mandatory sentence. 
  • The trial court summarily denied the motion finding that Mr. Arroyave was on notice that some minimum mandatory applied because the state offer included a minimum mandatory sentence and Mr. Arroyave failed to react when he was sentenced to the 25 year minimum mandatory. 
  • However, the 2nd DCA noted that defense counsel has a responsibility to inform the defendant of the potential penalties he faced. 
  • Mr. Arroyave’s lack of reaction does not refute his claim that defense counsel didn’t inform him that he faced a 25 year minimum mandatory. 
  • And even if he had become aware of the 25 year minimum mandatory sentence after he rejected the plea, the harm was already done. 
  • The later knowledge could not cure defense counsel’s failure to inform him of the minimum mandatory he was facing before he rejected the 15 year plea offer. 
  • Here, the record does not refute Mr. Arroyave’s claims, therefore the case must be remanded for a hearing or for the trial court to attach evidence that refutes Mr. Arroyave’s claims to the record. 
  • Case Affirmed in part, reversed in part, and remanded. 

Case #7 – Landrum v. State, No. 2D20-3480 (Fla. 2nd DCA)(November 9, 2022)

  • Landrum is a Miller/Atwell resentencing case out of Hillsborough County. 
  • Ms. Landrum was originally convicted of second degree murder with a deadly weapon and sentenced to life without the possibility of parole.
  • On direct appeal, the Florida Supreme Court remanded the case for resentencing under §775.082, 921.1401, and 921.1402.
  • During the resentencing, under §775.082(3)(a)(5), the trial court had to determine whether Ms. Landrum actually killed, intended to kill, or attempted to kill the victim in order to determine whether she was entitled to review after 25 years or after 15 years. 
  •  If she did actually kill or intend to kill, she would be entitled to review after 25 years. 
  • If she did not actually kill or intend to kill, she would be entitled to review after 15 years. 
  • The original jury made no such finding.  So, Ms. Landrum could have been convicted under the principal theory and the jury may have determined that she was a principal to the murder, but did not actually kill or intend to kill the victim. 
  • So, what to do? 
  • The trial court decided to look at the record and determine for itself that a rational jury would have found that Ms. Landrum actually killed, intended to kill, or attempted to kill the victim and therefore sentenced her to life with the review after 25 years.
  • Ms. Landrum appealed and the 2nd DCA looked at whether the trial court could make that jury determination in light of the Alleyne case and if the trial court erred, whether it was reversible error. 
  • Here, the 2nd DCA determined that the trial court erred by considering the record and making a finding that the jury would have found that Ms. Landrum actually killed, intended to kill, or attempted to kill the victim.
  • But isn’t this harmless error?  Doesn’t matter, says the 2nd. 
  • A trial court can’t commit its own error and then have its decision saved by the harmless error standard. 
  • Once the trial court determined that there was no jury finding as to whether Ms. Landrum actually killed, intended to kill, or attempted to kill the victim, the trial court was required to sentence her to life with review after 15 years, under §775.082(5)(c), which states that a person who did not actually kill, intend to kill, or attempt to kill the victim and is sentenced to more than 15 years is entitled to review after 15 years.  
  • So, Ms. Landrum will get review of her sentence after 15 years rather than after 25 years. 
  • Case Reversed and remanded. 

Case #8 – Stroud v. State, No. 2D21-2234 (Fla. 2nd DCA)(November 9, 2022)

  • Stroud is a suppression of evidence case out of Pinellas County. 
  • Law enforcement got a call that Mr. Stroud was walking around some businesses and a parking lot acting very strangely, talking to himself, flailing his arms and walking around in circles.  
  • Upon arrival, an officer saw Mr. Stroud put a pocket knife in his front pocket. 
  • The officer told Mr. Stroud to put his hands up and to sit down.  Mr. Stroud complied and sat on the curb. 
  • The officer asked Mr. Stroud what he put in his pocket and Mr. Stroud answered that he had a pocket knife. 
  • The officer reached into Mr. Stroud’s pocket and took out the knife.  
  • The officer reached into Mr. Stroud’s pocket a second time and asked what Mr. Stroud had in there. 
  • Mr. Stroud answered that he had tobacco in his pocket. 
  • The officer asked if he could check and before Mr. Stroud could fully answer, the officer pulled out a phone charger and loose cigarettes. 
  • Another officer reached into Mr. Stroud’s other pocket and took out his wallet.  
  • Mr. Stroud told the officer that there was a tiny bit of meth in his wallet. 
  • Mr. Stroud was subsequently arrested for possession of meth. 
  • Mr. Stroud filed a motion to suppress the meth and the trial court denied the motion finding that the entire encounter was consensual.
  • Mr. Stroud appealed and the 2nd DCA found that Mr. Stroud was detained during the entire encounter. 
  • Because the officers didn’t suspect Mr. Stroud of any criminal activity when they approached him, they lacked reasonable suspicion to detain him for an investigatory stop and therefore this was an unlawful seizure. 
    • And even if the officers did have reasonable suspicion that Mr. Stroud was committing a crime, they exceeded the search by continuing after they secured the pocketknife.  
  • And even if Mr. Stroud did consent to the search, it was not voluntary.
  • Consent is presumptively tainted and rendered involuntary unless there is an unequivocal break in the chain of illegality to dissipate the taint of prior official illegal action.  
  • Here, the State failed to show an unequivocal break between the unlawful detention and the consent. 
  • Therefore, the trial court is instructed to vacate the judgment and sentence for discharge.
  • Case Reversed and remanded. 

Case #9 – Coley v. State, No. 3D21-2439 (Fla. 3rd DCA)(November 10, 2022)

  • Coley is a Motion withdraw plea case out of Miami-Dade County. 
  • Mr. Coley filed a motion to withdraw his plea which alleged allegations that put his interests in direct conflict with his attorney’s. 
  • At the motion to withdraw plea hearing, the trial court had Mr. Coley represent himself and the State cross examined Mr. Coley and called Mr. Coley’s defense attorney to testify in opposition to Mr. Coley’s motion to withdraw plea. 
  • The trial court denied the motion to withdraw the plea. 
  • Mr. Coley appealed and the government conceded on appeal that the trial court should have appointed conflict free counsel once it became apparent that Mr. Coley’s trial counsel had taken an adversarial position to Mr. Coley. 
  • The 3rd DCA agreed and reversed the order denying the motion to withdraw the plea with instructions to appoint conflict-free counsel to represent Mr. Coley on the Motion to withdraw plea. 
  • Case reversed and remanded. 

Case #10 – State v. Demons, No. 4D22-1874 (Fla. 4th DCA)(November 9, 2022)

  • Demons is a notice of intent to seek the death penalty case out of Broward County. 
  • Mr. Demons, a rapper that goes by the name YNW Melly, was indicted on first degree murder charges. 
  • The State filed a notice of intent to seek the death penalty within 45 days of arraignment, as is required under §782.04(1)(b). 
  • The State subsequently filed a superseding indictment that added a sentencing enhancement for benefitting, promoting, or furthering the interests of a criminal gang. 
  • Mr. Demons was arraigned on the superseding indictment.
  • After more than 45 days passed, Mr. Demons attorney filed a motion to preclude the state from seeking the death penalty arguing that the state failed to comply with §782.04(1)(b)’s notice requirement when it did not file a new notice of intent to seek the death penalty within 45 days of Mr. Demon’s arraignment on the superseding indictment. 
  • The trial court granted the motion relying on State v. Chantiloupe, which held that the trial court could preclude the state from seeking the death penalty when proper notice is not given.  
  • The trial court determined that once a superseding indictment was filed, the legal proceedings related to the initial indictment were ended and therefore the original notice to seek the death penalty had no legal affect. 
  • The State filed an emergency petition for writ of prohibition. 
  • §782.04(1)(b) states that, “If the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant and file the notice with the court within 45 days after arraignment.” 
  • So, the question is, does notice after an indictment suffice when a superseding indictment is later filed, or must notice be given within 45 days of the arraignment on any superseding indictment as well?
  • The 4th DCA held that notice must only be given once within 45 days of the original arraignment. 
  • The Court noted that nowhere in the statute or corresponding rule 3.181 is it required additional notification after an initial arraignment as they are both silent on superseding indictments. 
  • The Court also noted that an amended or superseding indictment does not nullify or void the original indictment and it does not void any notices previously filed. 
  • And although the Florida Supreme Court in State v. Anderson said that it is well settled that the filing of an amended information purporting to be a complete restatement of the charges supersedes and vitiates an earlier information, the superseding indictment here merely added a sentencing enhancer and was not a complete restatement of the charges. 
  • Speedy trial waivers, statute of limitations, and discovery obligations are all tied to the original indictment or information and are not affected by the later filing of a superseding or amended indictment or information. 
  • In Chantiloupe, the defendant was never put on notice of the state’s intent to seek the death penalty within 45 days of arraignment. 
  • Here, Mr. Demons was placed on notice within 45 days of his initial arraignment. 
  • Therefore, the 4th DCA held that the state does not need to renotice a death penalty defendant after a superseding indictment is filed when that superseding indictment only adds a statutory sentencing enhancement.
  • However, the 4th did leave the door open to challenging the states ability to seek the death penalty when it fails to provide notice within 45 days of arraignment after a superseding indictment that restates the charges.   
  • And the 4th did certify the question to the Florida Supreme Court.  Specifically, “Whether the filing of a superseding indictment which adds only a statutory enhancement, requires re-notice of an already timely filed notice of intent to seek the death penalty?” So stay tuned for this evolving area of law. 
  • Petition granted and remanded; question certified. 
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