Florida Criminal Case Law Update (October 3, 2022 – October 7, 2022)

The “Cite” of the Crime Podcast



Florida Criminal Case Law Update (October 3, 2022 – October 7, 2022)

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


OVERVIEW – 10 Cases

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

Case #1 – Brown v. State, No. 1D21-0597 (Fla. 1st DCA)(October 6, 2022)

  • Brown is an objection preservation and Faison Kidnapping case out of Alachua County. 
  • Mr. Brown was convicted by a jury of armed robbery, three counts of kidnapping, conspiracy to commit robbery and possession of a firearm by a convicted felon. 
  • Evidence at trial established that Mr. Brown and a co-defendant waited in the parking lot of a Bojangles until employees came out of the business at closing. 
  • Mr. Brown and the co-defendant forced the employees back into the restaurant at gunpoint, robbed the store, and fled. 
  • It turned out that one of the employees was in on the robbery as well. 
  • The entire robbery took 5 minutes. 
  • On appeal, Mr. Brown challenged the kidnapping convictions, but not the armed robbery conviction. 
  • Mr. Brown argued that the three kidnapping convictions did not pass the Faison test. 
  • In Faison, the Florida Supreme Court adopted Kansas’s test for determining whether a defendant could be convicted of kidnapping, in addition to the primary offense, when the taking or confinement was alleged to have been done to facilitate the primary offense. 
  • The Faison test requires the State to show that the defendant moved or confined the victim in a way that:
    • Is not slight, inconsequential and merely incidental to the other crime
    • Is not of the kind inherent in the nature of the other crime, and
    • Has some significance independent of the other crime by making the other crime substantially easier to commit or by substantially lowering the risk of detection. 
  • In this case, the 1st DCA held that forcing the three employees back into the restaurant was not slight, inconsequential or merely incidental to the commission of the robbery.
  • And forcing them back in, taking their cell phones, and sequestering the women for five minutes, while moving the manager into the office at gunpoint were actions not inherent to the nature of the type of robbery. 
  • And even though the actions did make committing the robbery substantially easier and substantially lessened the risk of detection, the 1st DCA held that the Faison test was satisfied and therefore there was not error in upholding the three kidnapping convictions in addition to the robbery conviction. 
  • Not sure I understand the Courts logic because it seems like forcing the victims inside, taking their cell phones and the other actions are all incidental to the robbery, but the 1st DCA says otherwise, so it appears that a kidnapping conviction will be pretty easy to support in most robbery cases in the 1st DCA. 
  • The next issue on appeal was whether the Court erred in allowing the employee who was in on the robbery to testify to statements made to her by the co-defendant. 
  • The employee testified that the co-defendant told her someone named Kenneth wanted to make some money and that they decided to rob the Bojangles. 
  • Mr. Brown’s first name is Kenneth.
  • Mr. Brown objected to the admission of the statement as hearsay. 
  • The trial court denied the objection, admitting the statement under Rule 90.803(18)(e) as a co-conspirator statement. 
  • A co-conspirator statement is admissible if offered against the defendant by a person who was a co-conspirator of the party during the course and in furtherance of the conspiracy.
  • The State must show that a conspiracy existed, that the declarant and the party against whom the statement is offered were members of the conspiracy, and that the statement was made during the course and in furtherance of the conspiracy.
  • On appeal, the State conceded that Mr. Brown preserved the issue on appeal, but the 1st DCA was not so gracious. 
  • The 1st determined that Mr. Brown failed to preserve the issue because although he objected based on hearsay, he did not specify that the objection was specifically for failure of the State to lay the proper predicate to admit the statements. 
  • Here, before the State asked the witness about the statement, they did not establish that the witness was a co-conspirator but Mr. Brown failed to specify in his objection was related to the lack of foundation. 
  • So, the 1st DCA applied the fundamental error standard and found no fundamental error noting that if the State had laid the proper foundation, the statements would have come in because the evidence established that the witness was a co-conspirator.
  • So, although the failure to make a specific enough objection didn’t affect the outcome here, this is a good reminder that the Florida appellate courts are not going to give defendants the benefit of the doubt for appeal preservation purposes, so it is important to make specific objections to preserve the issue for appeal. 
  • Case Affirmed. 

Case #2 – McClendon, Jr. v. State, No. 1D21-1565 (Fla. 1st DCA)(October 6, 2022)

  • McClendon is a failure to grant a downward departure case out of Duval County.
  • Mr. McClendon pled guilty to felony battery, felony aggravated assault, and criminal mischief and was sentenced to 12 months in jail followed by 2 years of probation.
  • During his probationary term, he violated several conditions and was found in violation. 
  • Mr. McClendon asked for a departure from the lowest permissible sentence, but the Court stated on the record that it did not find any reason to depart and orally announced a sentence of 44.275 months in prison. 
  • The lowest permissible sentence was actually 49.275 months. 
  • When the State brought this to the Court’s attention, the judge stated that it could not correct the sentence because he already made an oral pronouncement. 
  • Mr. McClendon appealed arguing that the trial court failed to properly consider his arguments in support of a downward departure. 
  • The 1st DCA first noted that the trial court was incorrect in determining that it could not correct its oral pronouncement of sentence. 
    • The oral pronouncement of sentence is not final and may be altered until the sentencing hearing is concluded. 
  • The Court also discussed Wilson v. State, which is currently pending review before the Florida Supreme Court. 
    • In Wilson, the issue involved the trial court’s denial of a motion for downward departure and imposition of sentence that was not illegal, below the lowest permissible sentence, or above the statutory maximum.
    • The 1st DCA determined that the Wilson decision did not apply to this case because the Wilson case was reviewing a sentence that was not departure, where here, the trial court did depart below the lowest permissible sentence. 
  • In this case, the Court noted that it was the State who could have appealed the departure below the lowest permissible sentence under §921.002(1)(h). 
  •  And because Mr. McClendon received a downward departure and his only complaint can be the extent of the downward departure which is strictly prohibited by 921.0026(1), his argument is meritless. 
  • Case Affirmed. 

Case #3 – Morris v. State, No. 1D21-1689 (Fla. 1st DCA)(October 6, 2022)

  • Morris is a legally inconsistent verdict case out of Alachua County. 
  • Mr. Morris was charged with first degree felony murder and attempted robbery with a firearm. 
  • The State alleged that Mr. Morris killed the victim while engaged in the perpetration of, or attempt to perpetrate, a robbery. 
  • At trial, the jury convicted Mr. Morris of the first degree murder and specifically found that he possessed and discharged a firearm resulting in death or great bodily harm, but acquitted him on the attempted robbery count.
  • Mr. Morris moved for arrest of judgment based on the inconsistent verdicts. 
  • The trial court denied the motion and Mr. Morris appealed. 
  • The appellate court reviews a claim of inconsistent verdicts de novo. 
  • While factually inconsistent verdicts are permissible in Florida because they result from a jury’s inherent authority to acquit, a legally inconsistent verdict cannot stand. 
  • A legally inconsistent verdict occurs when a finding of not guilty on one count negates a necessary element for conviction on another count. 
  • Here, the State conceded that the jury returned true inconsistent verdicts by finding him guilty of felony murder, but acquitting him of the underlying felony. 
  • The 1st DCA concurred and remanded for the trial court to reverse the 1st Degree Murder conviction and to adjudicate Mr. Morris on the lesser included offense of second degree murder. 
  • Reversed and remanded. 

Case #4 – Lamberson v. State, No. 2D21-1557 (Fla. 2nd DCA)(October 7, 2022)

  • Lamberson is a 775.082(10) sentencing case involving retroactivity of the Florida Supreme Court’s decision in Brown
  • Mr. Lamberson was given a new direct appeal after the 2nd DCA held that his appellate counsel was ineffective for failing to file a 3.800(b)(2) motion to preserve the issue of illegality of Mr. Lamberson’s sentence. 
  • In that previous decision, the 2nd DCA held that Mr. Lamberson’s 5 year prison sentence for 3rd Degree felonies violated §775.082(10) because he only scored 18 points on his scoresheet. 
  • §775.082(10 states that if the sentence pointes are 22 points or fewer, the court must sentence the offender to a non-state prison sanction unless the court makes written findings that a non-state prison sanction could present a danger to the public. 
  • The trial court made no written findings in Mr. Lamberson’s case.
  • Therefore, the 2nd DCA remanded for the trial court to enter a non-state prison sanction. 
  • After the mandate in the prior Lamberson decision, the Florida Supreme Court held in Brown v. State, that §775.082(10) is unconstitutional because it requires the judge rather than a jury to make a finding of dangerousness that would allow for a prison sentence. 
  •  On his new appeal, the 2nd DCA limited review to whether the Brown decision applies retroactively to his case. 
  • Mr. Lamberson argued that the Brown decision is not retroactive and therefore he is entitled to a remand for entry of a non-state prison sentence. 
  • The government and 2nd DCA agreed and the Court held that the Brown decision does not apply retroactively. 
  • Case Reversed and remanded for entry of a non prison sentence. 

Case #5 – White, Jr. v. State, No. 2D21-1713 (Fla. 2nd DCA)(October 7, 2022)

  • White is a downward departure case out of Pinellas county.
  • Mr. White was convicted of leaving the scene of an accident involving death.  
  • Mr. White asked the court for a downward departure which the trial court denied.
  • Mr. White appealed the trial court’s denial of his motion for downward departure. 
  • The State argued that Mr. White could not appeal the denial of a motion for downward departure after entering a plea. 
  • The 2nd DCA noted that this issue is currently before the Florida Supreme Court.
    • In Wilson v. State, the 1st DCA held that a defendant cannot appeal the denial of a motion for downward departure after entering a plea. 
    • The 1st DCA certified conflict to the Florida Supreme Court because the 2nd, 4th, and 5th have all held that defendants can appeal a denial of a motion for downward departure after a plea. 
    • Because the Florida Supreme Court has not yet released its opinion, the law in the 2nd DCA allows a defendant to appeal this issue.  
  • In determining whether to grant a motion for downward departure, the trial court must engage in a two part process laid out in State v. Banks. 
    • First, the court must determine whether it can depart. 
      • Legal grounds are set forth in case law and statute and must be proved by a preponderance of the evidence.  
    • Second, where the court can depart, it must determine whether it should depart. 
      • This is a totality of the circumstances determination left to the judgment of the trial court. 
      • A court’s discretion is abused only where no reasonable person would agree with the trial court’s decision.
  • Here, the trial court failed to apply the Banks test when it denied Mr. White’s motion. 
  • Therefore, the 2nd DCA remanded for resentencing before a different judge. 
  • Reversed and remanded. 

Case #06 – Morrow v. State, No. 2D22-686 (Fla. 2nd DCA)(October 7, 2022)

  • Morrow is a credit for time served case out of Polk County.
  • Mr. Morrow filed a Rule 3.801 motion to correct jail credit. 
  • Mr. Morrow claimed that he was entitled to 126 additional days of jail credit. 
  • The motion was denied and Mr. Morrow appealed. 
  • While the 3.801 motion was on appeal, Mr. Morrow then filed a motion to correct illegal sentence under Rule 3.800(a) arguing that the written judgment which provided for 1 day of credit for time served did not conform to the oral pronouncement that stated he was entitled to credit for all time served in jail. 
  • The motions were denied and Mr. Morrow appealed. 
  • A trial court has authority to consider a subsequently filed postconviction motion that raises unrelated issues notwithstanding the pendency of an appeal of an order on a previously filed postconviction motion. 
  • But if the subsequent motion raises the same or related issues on appeal, the trial court may not consider the merits while the related appeal is pending. 
  • An appeal of an order divests the trial court of jurisdiction except to those matters which do not interfere with the power of the appellate court to determine the issues which are on appeal. 
  • Here, although the two motions were brought under different rules, the claims were the same as both sought additional jail credit for the exact same dates and locations of incarceration.
  • Therefore, the post-conviction court lacked jurisdiction to rule upon the merits of the illegal sentence motion.
  • So, the 2nd DCA reversed the order denying the 3.800(a) motion to correct illegal sentence to allow the post-conviction court to reconsider the motion now that it has jurisdiction. 
  • Case Reversed and remanded.

Case #7 – L.A. v. State, No. 3D20-1856 (Fla. 3rd DCA)(October 6, 2022)

  • L.A. is a juvenile case out of Miami-Dade County involving a witness testifying at an adjudicatory hearing by Zoom.
  • L.A. was charged in juvenile court with battery.  
  • The trial court allowed witnesses to testify via zoom during a bench trial after L.A. filed a written objection.
  • For there to be an exception to the right of confrontation in a remote proceeding, the trial court must make a case specific finding, based on important state interests, public policies, or necessities of the case and must satisfy the other three elements of confrontation – oath, cross-examination, and observation of the witness’s demeanor. 
  • In this case, as in several others that have been released recently, the trial court did not make a case-specific finding of necessity, which is required. 
  • Case Reversed and remanded.

Case #8 – Walk v. State, No. 4D21-557 (Fla. 4th DCA)(October 6, 2022)

  • Walk is a case out of Palm Beach County that addresses credit time for probation time served. 
  • This decision was originally released on August 10th, but the 4th DCA reissued the opinion here on Appellant’s Motion for Clarification. 
  • Mr. Walk was sentenced to 18 months in prison followed by 10 years probation on three third degree felonies. 
  • The oral pronouncement did not state whether the sentences were concurrent or consecutive, but the written order did provide for concurrent sentences. 
  • Mr. Walk served the prison portion of his sentence and then filed a motion to correct an illegal sentence because if all three counts were concurrent, the court only had 5 years of jurisdiction, yet he was sentenced to 10 years probation. 
  • The trial court sentenced Mr. Walk to 18 months in prison on count I, Five years probation on count II and five years probation on Count III all to run consecutively.
  • Mr. Walk asked for thirty months credit against his probation sentence on Counts II and III, which is what he had already served. 
  • The Trial Court granted credit on Count II, but not on Count III.
  • On appeal, Mr. Walk argued that because Count II and Count III ran concurrently, he was entitled to 18 months credit in both cases. 
  • The 4th DCA agreed.  
  • When a criminal defendant is sentenced after being convicted of a crime and serves some portion of that sentence, he or she is entitled to receive credit for the actual service of that sentence, or any portion thereof, in a resentencing for the same crime.  
  • Likewise, if multiple convictions result in concurrent sentences, credit must be awarded for time served on each sentence in any resentencing for the multiple convictions. 
  • The word concurrently simply means at the same time, and by imposing sentences to be served concurrently, a trial court is permitting a defendant to serve multiple sentences at the same time. 
  • Case reversed. 

Case #9 – Glispy v. State, No. 5D21-2172; 2173 (Fla. 5th DCA)(October 3, 2022)

  • Glispy is a failure to remain confined at home violation of community control case out of Brevard County. 
  • Mr. Glispy, who was on community control, was found in violation of several conditions, including failing to remain confined in his home. 
  • The 5th DCA upheld new law violations because they were supported by competent, substantial evidence. 
  • However, as it related to the violation for failing to remain confined in his home, the Court found that the State did not meet its burden of proof. 
  • The condition to remain at home had exceptions for work related travel, public service work, or special activities. 
  • The State did not call the community control officer and presented no evidence that Mr. Glispy’s absence from the home had not been approved. 
  • Therefore, there was no competent, substantial evidence that he violated that condition. 
  • However, because it was clear that the trial court focused on the new law violations, a remand for resentencing was not necessary.
  • Rather, the 5th DCA affirmed the revocation but remanded to strike the finding that Mr. Glispy violated the condition of failing to remain at home. 
  • Case affirmed and remanded. 

Case #10 – Smith v. State, No. 5D22-1663 (Fla. 5th DCA)(October 3, 2022)

  • Smith is a credit for time served towards probation term case.
  • Mr. Smith filed Petitions for Writ of Prohibition on his two violation of probation cases arguing the trial court lacked jurisdiction on the violation cases. 
  • Under §948.04(2), when a defendant has been placed on probation, the sentencing court loses jurisdiction over the defendant once the probationary period expires unless proceedings to modify or revoke probation have been instituted in the interim.
  • Therefore, if the affidavits or probation violation were filed after Mr. Smith’s probation ended, the trial court had no jurisdiction to rule on the alleged violations, and Mr. Smith’s motions to dismiss were erroneously denied. 
  • Mr. Smith was given 24 months of probation in two separate cases with a condition to complete 6 months in jail with credit for time served.
  • A period of confinement as a condition of probation is authorized by §948.03(2).
  • No statute expressly directs that jail credit is to be applied to the entire probationary period.  
  • However, the Florida Supreme Court held in Van Tassel v. Coffman, that the legislative intent was to grant gain time to the prison punishment of all offenders, whether by the historic straight sentence, the now authorized split sentence, or probation which contains a condition of imprisonment. 
  • And the 5th DCA held in Griner v. State that jail credit for prior jail time should be applied when it is a condition of probation. 
  • And here, the 5th DCA stated that it has concerns with awarding jail time credit to the entire probationary period without statutory authority, but it was bound to follow case law precedent.
  • Therefore, where probation has been imposed with jail time as a condition thereof, any jail time for time served is to be applied to the entire term of probation. 
  • Here, Mr. Smith was placed on probation for 24 months on May 21, 2020. 
  • The last day of his probationary term was May 20, 2022. 
  • Mr. Smith had 116 days in jail while on probation, so the last day on probation was January 23, 2022. 
  • The affidavit of violation was filed over two months after January 23, 2022, therefore the trial court had no jurisdiction to proceed on the violation.
  • Petitions granted. 
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