Florida District Court of Appeal Criminal Law Update (December 5, 2022 – December 9, 2022)

The “Cite” of the Crime Podcast

Florida Criminal Law Update (December 5, 2022 – December 9, 2022)

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


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

Case #1 – Luster v. State, No. 1D21-2902 (Fla. 1st DCA)(December 7, 2022)

  • Luster is a Burglary of a Dwelling case out of Leon County. 
  • Mr. Luster appealed  his Burglary of a dwelling conviction arguing that the trial court erred in answering a jury question asking whether all dwellings are structures. 
  • When the jury asked the trial court if a dwelling is a structure, the trial court answered yes.  Mr. Luster argues that this was error. 
  • Burglary is defined in §810.02(1)(b)(1) as entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter. 
  • A “structure” is defined in §810.011(1) as a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof. 
  • A “dwelling” is defined §810.011(2) as a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. 
  • The definition of dwelling fully encompasses the definition of structure. 
  • If it is a dwelling, it necessarily is a structure. 
  • So, the trial court did not err in answering the jury question. 
  • Case Affirmed. 

Case #2 – State v. McLaney, No. 1D22-261 (Fla. 1st DCA)(December 6, 2022)

  • McLaney is a downward departure case out of Walton County. 
  • Mr. McLaney was the treasurer at a Baptist Church. 
  • For nearly four years, he stole over $188,000  in church funds by diverting them to his personal use. 
  • He was charged with fraud over $50,000, pled guilty and had a sentencing hearing.
  • At that hearing, the trial court downward departed from the guidelines stating that Mr. McLaney had shown remorse and the event was isolated in that he was only charged with one count of fraud.
  • The trial court sentenced Mr. McLaney to five years probation with a three year suspended prison sentence.  
  • Maybe the fact that Mr. McLaney’s mother paid $165,000 of the restitution before sentencing hearing factored into the court’s decision, but it wasn’t listed as a factor the trial court considered and it wasn’t factored in by the 1st DCA. 
  • At any rate, the State wasn’t happy with the sentence so they appealed.
  • A trial court can’t impose a downward departure unless there are mitigating circumstances or factors that justify it. 
  • A list of permissible mitigating factors are enumerated in §921.0026.   This list is not exhaustive.
  • One of the factors that appears to be what was relied on by the trial court is that the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse. 
  • The 1st DCA has held that a defendant must show all three – unsophisticated manner, isolated incident, and remorse. 
  • Here, the 1st DCA held that competent substantial evidence did not support the trial court’s findings. 
    • The 1st found that the crime was not unsophisticated because it has previously held in State v. Hollinger that a business office manager who stole more than $50,000 by writing petty checks from the employer’s trust account and deposited them in his personal bank account was not unsophisticated because that defendant took several distinctive and deliberate steps  that were repeated on numerous occasions and even though that defendant didn’t take any elaborate steps to hide her actions, it was still not committed in an unsophisticated manner. 
    • Here, Mr. McLaney’s fraud was ongoing for almost four years, he used his position of trust, removed charges from the records to avoid detection and took several distinct and deliberate steps that were repeated on numerous occasions. 
    • So, under Hollinger, Mr. McLaney’s offense was not unsophisticated. 
  • The 1st DCA also found that competent, substantial evidence did not support the finding of an isolated incident.
    • Here the Court found that the fact that Mr. McLaney was only charged with one count did not mean that the underlying acts that were ongoing for almost 4 years can be deemed a single, isolated incident.  
    • Because the incident was ongoing for almost 4 years and involved multiple incidents, this was not an isolated incident for mitigating circumstance purposes.
  • So, because the trial court erred on two of the three factors and Mr. McLaney needed all three to prevail, case reversed and remanded. 

Case #3 –  Williams v. State, No. 1D22-1642 (Fla. 1st DCA)(December 8, 2022)

  • Williams is a 3.850  “comment on a defendant’s right to remain silent” case out of Nassau County. 
  • Mr. Williams was convicted of sexual battery and his case was affirmed on direct appeal. 
  • Mr. Williams subsequently filed a 3.850 motion for post-conviction relief based on ineffective assistance of counsel claiming that his attorney failed to object and move for a mistrial when the prosecutor commented on his right to remain silent. 
  • The post-conviction court denied the motion and Mr. Williams appealed to the 1st DCA. 
  • At trial, two officers testified that when they responded to Mr. Williams home regarding the allegations of sexual battery, Mr. WIlliams walked away, went inside his residence and refused to allow the police to enter the residence. 
  • Mr. Williams’ attorney objected to relevance. 
  • The State argued that the evidence went towards Mr. Williams’ consciousness of guilt. 
  • The trial court overruled the objection.  
  • The Florida Supreme Court held in State v. Horwitz that a defendant’s pre-arrest pre-Miranda silence cannot be used against him as substantive evidence of consciousness of guilt. 
  • So here, Mr. Williams’ attorney was deficient for failing to object to the prosecutor’s comment that was made in front of the jury, but that is only the first prong of the Strickland standard for ineffective assistance of counsel cases. 
  • The second prong is prejudice.  And here the 1st DCA found that there was no prejudice. 
  • There was testimony from two victims of charged offenses and one collateral evidence victim and evidence that Mr. Williams sent a letter to his baby’s momma asking her to contact the victims to apologize and to ask them to change their stories. 
  • So, the 1st DCA found this to be strong evidence of guilt that would not have been affected by the error of his attorney in failing to object to the comment on silence because even if his attorney had objected and asked for a mistrial, there is no reasonable probability that a mistrial would have been granted. 
  • Case Affirmed. 

Case #4 – Cabrera v. State, No. 2D22-1378 (Fla. 2nd DCA)(December 7, 2022)

  • Cabrera is a 3.800(a) motion to correct illegal sentence case out of Manatee County involving 10-20-Life. 
  • Mr. Cabrera was charged with second degree murder with a firearm and aggravated battery with a firearm.  
  • A jury convicted him as charged and made a specific finding that he discharged the firearm resulting in death or great bodily harm. 
  • The trial court sentenced Mr. Cabrera to life on the second degree murder count and 30 years concurrent with a 25 year mandatory minimum on the aggravated battery count. 
  • Mr. Cabrera filed a 3.800(a) motion arguing that the mandatory minimum sentence is illegal because the information as it related to the aggravated battery count only alleged that Mr. Cabrera discharged a firearm, which comes with a 20 year mandatory minimum, and it did not allege that the discharge resulted in death or serious bodily harm, which comes with a 25-life mandatory minimum. 
  • Unfortunately for Mr. Cabrera, the 2nd DCA found that he used the wrong tool for his labor. 
  • A Rule 3.800(a) motion must involve a court’s patent lack of authority or jurisdiction, a violation of the sentencing maximums provided by the Legislature, or a violation of some other fundamental right resulting in a person’s wrongful imprisonment. 
  • In Martinez v. State, the Florida Supreme Court held that this type of error in a charging document does not result in an illegal sentence as contemplated in Rule 3.800(a). 
  • Rather than a 3.800 Motion, Mr. Cabrera should have challenged the error on direct appeal. 
  • Case Affirmed. 

Case #5 – Roberts v. State, No. 2D21-2139 (Fla. 2nd DCA)(December 7, 2022)

  • Roberts is a waiver of a jury trial case out of Hillsborough County. 
  • Mr. Roberts was charged with battery. 
  • At a status hearing where Mr. Roberts was not present, his attorney requested a bench trial. 
  • Mr. Roberts was subsequently convicted and sentenced to 270 days following his trial before the trial court. 
  • Mr. Roberts appealed to the 2nd DCA arguing that the trial court erred by accepting his waiver of his right to a jury trial without his presence. 
  • A defendant’s right to a jury trial is constitutionally protected under the 6th Amendment and Article I, §22 of the Florida Constitution.
  • For a waiver to be effective, it must be knowing, voluntary and intelligent and requires either a written waiver signed by the defendant or an oral waiver after a proper colloquy with the trial court. 
  • At a colloquy, a judge should focus on the value of a jury trial and make the defendant aware of the likely consequences of the waiver. 
  • An attorney cannot waive a client’s right to a jury trial on the client’s behalf.
  • Here, there was no colloquy with Mr. Roberts or written waiver signed by him. 
  • Case reversed and remanded for a new trial. 

Case #6 – Rubright v. State, No. 2D22-2008 (Fla. 2nd DCA)(December 7, 2022)

  • Rubright is a 3.850 case out of Pinellas County involving failure to instruct the client on PRR consequences resulting in rejection of a plea offer. 
  • Mr. Rubright was charged with attempted robbery and the State offered him 72 months on the day of trial.  
  • Mr. Rubright rejected the offer and entered a plea straight up to the trial court instead. 
  • So, Mr. Rubright pled guilty and he was passed for sentencing. 
  • Before sentencing, the State notified the court that Mr. Rubright was prison releasee reoffender eligible , so Mr. Rubright moved to withdraw his plea and the trial court granted the motion. 
  • The prosecutor then offered Mr. Rubright 15 years which was the mandatory minimum as a prison releasee reoffender and that sentence would run concurrent with three other cases, Mr. Rubright pled guilty and was sentenced to 15 years as a PRR.  
  • He then filed a 3.850 arguing that his attorney was ineffective for not advising him that he qualified as a PRR and faced a 15 year mandatory minimum and had he known, he would have accepted the 72 month state offer. 
  • The postconviction court denied the motion finding that it could not bind the State to its original 72 month offer. 
  • On appeal, the 2nd DCA began with analyzing its decision in Kohutka v. State, where it held the postconviction court erred in that case by concluding that events that happened after Mr. Kohutka rejected the State’s offer overcame any prejudice that might have been caused by the attorney’s deficient performance. 
  • The postconviction court must look at whether there was prejudice at the time of the deficient performance.
  • So here, the postconviction court should have determined whether Mr. Rubright was prejudiced when the State offered him 72 months, which it didn’t do, so there was error. 
  • But the Court warned Mr. Rubright.  Beware of what you ask for.  In pleading guilty to the attempted robbery pursuant to a plea agreement, he also pled guilty to three other cases and all sentences were run concurrent for a 15 year sentence. If Mr. Rubright wins on his 3.850 motion on remand and withdraws his plea, the State is not bound by any of the terms of that plea agreement for any of the four cases. 
  • And Judge Lucas gave a concurring opinion addressing his displeasure with the current state of the law as it relates to the prejudice prong of Strickland
  • Quoting Justice Scalia in Frye, he sympathized with trial courts and attorneys who must, on remand, look into a crystal ball to try to predict how things would have played out if counsel’s performance hadn’t been deficient to determine whether the defendant was prejudiced under the second prong of Strickland. 
  • But, in this case, that is exactly what the trial court is going to have to determine upon remand in Mr. Rubright’s case. 
  • Case Reversed and remanded. 

Case #7 – Wagner v. State, No. 4D21-3387 (Fla. 4th DCA)(December 7, 2022)

  • Wagner is a fellow officer rule, lawfulness of the DUI stop case out of Broward County. 
  • Ms. Wagner was involved in an accident where a public safety aide first arrived on the scene. 
  • The public safety aide requested an officer, who arrived shortly thereafter,  conducted a DUI investigation and arrested Ms. Wagner for DUI with property damage based on his observations and what the public safety aide told him. 
  • A public safety aide is not a deputized police officer and they do not have powers to arrest. 
  • The fellow officer rule, codified for DUI purposes in §901.15(5), which allows one officer to rely on the information provided by another law enforcement officer to develop probable cause for a warrantless DUI arrest does not extend to non-deputized public safety aides that do not have the power to arrest. 
  • Here, no law enforcement officer saw Ms. Wagner behind the wheel, therefore there was no probable cause to arrest her for DUI.  
  • Case Reversed and remanded. 
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