Florida District Court of Appeal Criminal Law Update (January 9, 2023 – January 13, 2023)


The “Cite” of the Crime Podcast

Florida Criminal Law Update (January 9, 2023 – January 13, 2023)

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



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

Welcome to the new Sixth District Court of Appeal which consists of the 9th, 10th, and 20th judicial circuits.  And the fourth judicial circuit, Duval, Clay and Nassau are moving from the 1st DCA to the 5th DCA.  So some major moves to start out the new year. 

Case #1 – Washington v. State, No. 1D22-2358 (Fla. 1st DCA)(January 11, 2023)

  • Washington is a “it’s not my job, it’s yours case” out of Escambia County. 
  • §27.51(4) designates that certain public defenders handle all appeals within a specified appellate district. 
  • So, for example the public defender’s office in Pensacola handles the appeals for the public defender’s office in Tallahassee. 
  • A power struggle is going on where a private attorney is moving to withdraw on case and the trial court is granting that motion to withdraw before the private attorney completes the required tasks in § 9.140(d)(1), which includes things like filing a notice of appeal, a statement of judicial acts to be reviewed, directions to the clerk, designations to the court reporter. 
  • So, once the private attorney withdraws, the public defender is appointed.  That public defender then files a designation of the specified appellate public defender without completing the §9.140(d)(1) tasks. 
  • So, in this case, a private attorney moved to withdraw on a case.  The judge granted it.  The Pensacola public defender then filed a designation of the Tallahassee public defender, and the Tallahassee public defender said, “Whoa, not so fast my friend.” 
  • The Tallahassee public defender filed a motion to refuse the designation, arguing that no trial transcripts had been designated.  Basically, that’s your job, Pensacola public defender, not mine. 
  • So, it was up to the First DCA to resolve this squabble. 
  • And basically the First DCA said, “Look, the trial court shouldn’t have allowed the private attorney to withdraw until he or she completed the §9.140(d)(1) tasks, because the rule states that an attorney should not be allowed to withdraw until those tasks are completed except on good cause shown on written motion, which wasn’t done here. 
  • That being said, a motion to refuse designation is not the proper vehicle, according to the First DCA.
  • Instead, the public defenders must work it out amongst themselves. 
  • And although the Court stated that this was not a matter of concern for the Court, it then directed the trial court to oversee that the Pensacola Public Defender file a statement of judicial acts,  to order and file the transcripts and any other ancillary matters. 
  • So, next time you move to withdraw from a case where the client is going to appeal, do your hard working, underappreciated public defender brothers and sisters a solid, and complete the §9.140(d)(1) tasks before moving to withdraw. 
  • Filings Stricken.  

Case #2 – Evans v. State, No. 2D21-3450 (Fla. 2nd DCA)(January 13, 2023)

  • Evans is a waiver of a jury trial case out of Pasco County. 
  • Mr. Evans was charged with criminal mischief and possession of less than 20 grams of marijuana.  
  • He proceeded to have a bench trial and was found guilty by the trial judge. 
  • Problem was that the record did not show that he waived his right to a jury trial.  
  • The record also did not show that the trial court made a specific, independent finding that he was competent. 
  • Florida Rule of Criminal Procedure 3.260 states that a defendant may in writing waive a jury trial with the consent of the state. 
    • So, the operative word there “may” is permissive.  A defendant is permitted to waive the right to a jury trial. 
    • But is a written waiver required?
    • The answer to that question is “no.” There does not have to be a written waiver, but under Johnson v. State, a 2008 Florida Supreme Court case, a defendant must either enter a written waiver or give an oral waiver after a proper colloquy with the trial judge. 
    • Here, there is no indication in the record that there was either a written waiver or an oral waiver after a proper colloquy. 
    • So, the Court reversed and presumably Mr. Evans would be entitled to a new trial. 
  • Apparently, there was some indication that Mr. Evans may have been incompetent to proceed because the trial court ordered a competency evaluation.  
    • But there also was nothing in the record to indicate that the judge made an independent determination of competency.  
    • We see this all the time in these appellate decisions.  
    • There is a competency evaluation from an expert that finds a defendant competent, but the judge never makes a specific finding that the Court finds that the defendant is competent.  
    • Rule 3.210(b) requires that when there are reasonable grounds to believe that the defendant is not mentally competent, the court shall immediately schedule a hearing on competency.  
    • So, a hearing must be conducted and the trial court must make its own independent finding of competence or incompetence.  
    • It is not sufficient to simply enter a competency evaluation into the record along with stipulations from the defense and the state.  The Court must make a finding on the record. 
    • But, where the trial court simply failed to conduct a hearing and make a determination, the proper remedy is to remand for a retroactive determination. 
    • So, if on remand, the trial court holds a hearing and determines that the defendant was competent at the time, then the defendant would not be entitled to a new trial or any other remedy. 
  • Case reversed and remanded. 

Case #3 – Gibson-Capo v. State, No. 2D21-2776 (Fla. 2nd DCA)(January 13, 2023)

  • Gibson-Capo is an Anders Brief case out of Manatee County. 
  • An Ander’s brief is an appellate brief filed by an attorney where that attorney believes the appeal is frivolous and wants to withdraw, but the client wants them to file the appeal anyway. 
  • The appellate court then determines whether the attorney is correct or whether there are actual viable issues. 
  • Here, the 2nd DCA agreed for the most part, but actually reversed the decision on a restitution issue. 
  • At the trial level, the trial court ordered Ms. Gibson-Capo to pay $438 in restitution.  Ms. Gibson-Capo was unemployed and asked the trial judge for a payment plan. 
  • The trial judge told her to make arrangements with the probation department; effectively delegating the decision on whether to offer a payment plan and under what terms to the probation department. 
  • Can’t do that. 
  • Setting a restitution payment schedule is a nondelegable judicial task. 
  • The 2nd DCA went on for quite awhile with string citations from the 1st DCA, 2nd DCA and 5th DCA supporting this proposition.
  • So, the Court remanded to the trial court to determine whether a payment schedule is warranted and if so, what that payment schedule should be. 
  • Case affirmed in part, reversed in part, and remanded with directions. 

Case #4 – Mercado v. State, No. 2D21-3444 (Fla. 2nd DCA)(January 13, 2023)

  • Mercado is a case about permissible factors at sentencing case out of Pasco County. 
  • And quite frankly, this is a case where you think to yourself – what are we doing here?  
  • Mr. Mercado’s ex-girlfriend obtained an injunction for protection against him and he was subsequently charged in five separate cases with charges all relating to his interaction with that former girlfriend, which included violation of injunction. 
  • Mr. Mercado pled guilty to each case and he was scheduled for a later sentencing hearing. 
  • At that sentencing hearing, Mr. Mercado, presumably going rogue against his lawyer’s advice, blamed the victim and offered no mitigation. 
  • I’m envisioning the attorney standing there just shaking his or her head as the client says all the things the attorney told the client not to say.  But, I digress. 
  • The State, meanwhile, presented text messages where Mr. Mercado threatened to shoot and kill his former girlfriend’s father and testimony that the former girlfriend’s new boyfriend’s house had been shot up. 
  • But, at the time of sentencing, Mr. Mercado had not been charged with shooting up his girlfriend’s new boyfriend’s house. 
  • So, the trial court sentenced Mr. Mercado to concurrent one year probationary terms. 
  • But, inexplicably, despite the non-jail sentence, and the fact that the State asked for a year in jail followed by consecutive probationary terms, Mr. Mercado appealed arguing that the trial court improperly considered the shooting evidence, which was alleged post-plea misconduct. 
  • So, on appeal, the 2nd DCA acknowledged that a trial court cannot consider alleged post plea conduct in making a sentencing determination. 
  • But, the Court found that the record did not establish that the trial court did consider the post-plea shooting.
  • The trial court did not explicitly or implicitly intimate that the shooting affected its decision. 
  • And, oh by the way, Mr. Mercado requested probation and he got probation.  
  • So, even if the trial court did err in considering the uncharged shooting, it would have been harmless error based on the low sentence imposed. 
  • Case Affirmed.  
Contact Information