Florida District Court of Appeals Criminal Law Update (January 23, 2023 – January 27, 2023)

The “Cite” of the Crime Podcast

Florida Criminal Law Update (January 23, 2023 -January 27, 2023)

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


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

Case #1 – Susick v. State, No. 1D21-2070 (Fla. 1st DCA)(January 25, 2023)

  • Susick involves a defendant in federal custody seeking to resolve his state violation of probation case. 
  • Mr. Susick was in federal custody and he had a detainer for a state violation of probation.  The detainer was causing him to be ineligible for some of the federal prison programs. 
  • Mr. Susick filed a petition for writ of habeas corpus with the trial court, which was denied. 
  • He appealed to the 1st DCA asking that court to compel the trial court to either transfer him to state custody or to set aside the detainer. 
  • As an initial matter, the 1st DCA noted that the proper vehicle to challenge a detainer is a petition for writ of mandamus, which asks an appellate court to order a lower court to do something.  A petition for writ of habeas corpus asks the court to bring the defendant before the court to review whether that person is being illegally detained.
  • Here, Mr. Susick’s argument wasn’t that he was being legally detained.  He just wanted the trial court to act – to either transfer him or to set the detainer aside.  
  • But despite filing the wrong petition, Article V, §2 of the Florida Constitution says that no cause shall be dismissed because an improper remedy has been sought.  So, the 1st DCA considered his appeal.
  • So, what authority does a state court have over a state detainer lodged on a federal inmate?
  • We first must answer the question – what is a detainer, exactly.  A detainer is an informal request filed by a criminal justice agency asking the detaining authority to notify the agency when the prisoner is about to be released. 
  • But, the person is not in custody pursuant to the detainer until he is subject to release on the case he was already incarcerated for. 
  • And the 1st DCA determined that it has no authority to set aside a detainer because it doesn’t implicate a liberty interest and therefore doesn’t implicate due process. 
  • A detainer is simply an agreement between two executive law enforcement agencies that when a prisoner is about to be released by one agency, it will hold that prisoner for a certain amount of time until the other agency can decide whether to come get him. 
  • So, according to the 1st DCA, it has no authority to intervene in that executive agreement.
  • So, Mr. Susick is going to have to wait until his federal criminal sentence is complete before he can resolve his state violation of probation case. 
  • And if the federal prison determines he is ineligible for certain programs simply because he has a detainer, that is an exercise of their executive discretion. 
  • Case Affirmed. 

Case #2 – Corona v. State, No. 2D21-1162 (Fla. 2nd DCA)(January 27, 2023)

  • Corona is a lesser included offense case out of Manatee County. 
  • Mr. Corona was charged with robbery and other counts. 
  • The other counts were affirmed without discussion and the Court addressed the robbery count.
  • At trial, Mr. Corona requested the lesser included offense instruction for Robbery by sudden snatching. 
  • The trial court denied the request and Mr. Corona was convicted of robbery. 
  • Robbery by sudden snatching is a category 2 permissive lesser included offense of robbery.  
  • A category 2 permissive lesser included offense instruction must be given when the pleadings and the evidence demonstrate that the lesser offense is subsumed in the charged offense. 
  • So, if Mr. Corona necessarily committed robbery by sudden snatching while committing the robbery, the judge must give the robbery by sudden snatching lesser included offense instruction. 
  • Robbery is defined as the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear. 
  • Robbery by sudden snatching is defined as the taking of money or other property from the victim’s person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when in the course of the taking, the victim was or became aware of the taking. 
  • So robbery requires the use of force, violence, assault, or putting in fear.  And robbery by sudden snatching requires the victim to become aware of the taking. 
  • The information in this case alleged that Mr. Corona used force, violence, assault, or put the victim in fear. 
  • So the question is whether putting the victim in fear necessarily requires the victim to become aware of the taking.  
  • And the 2nd DCA said yes, an allegation that the victim was put in fear necessarily alleges that the victim became aware of the taking.  
  • Therefore, the robbery by sudden snatching instruction should have been given. 
  • Case affirmed in part, reversed in part, and remanded. 

Case #3 – N.D., III v. State, No. 2D21-2660 (Fla. 2nd DCA)(January 27, 2023)

  • N.D. is a guilt by association juvenile case out of Hillsborough County.
  • A woman was coming home from work at 1:00 am when she noticed three juvenile males walking in her apartment complex parking lot. 
  • One of the males was walking towards her and the other two were trying to open car doors.  
  • It appeared to the witness that the three juveniles were together. 
  • The witness drove away and came back a few minutes later and she observed two of the juveniles rummaging through the trunk of a parked car. 
  • She called police and when officers arrived, they found three male juveniles matching the description who all fled when police arrived. 
  • The officers took all three juveniles into custody and found the credit card of one of the vehicle’s owner near where the juveniles were apprehended.
  • N.D. was one of those juveniles.  The witness was unable to identify any of the juveniles’ faces, but said that they were the ones she saw based on their clothing. 
  • She was not able to determine which two were rummaging through the trunk. 
  • N.D. moved for a judgment of dismissal which was denied by the trial judge, who then found N.D. guilty of burglary of an unoccupied conveyance. 
  • N.D. appealed arguing that the evidence was insufficient to prove he committed the burglary. 
  • And the 2nd DCA agreed.  
  • In order to prove burglary of a conveyance, the State must prove that a defendant entered the conveyance with the intent to commit a crime therein. 
  • You can be found guilty as a principal to the crime, but only if you are a participant in a common scheme to commit the crime. 
  • And you have to have the conscious intent that the crime be committed. And you must do something or say something to incite, cause, encourage or assist or advise someone else to actually commit the crime.  
  • So, the State has to prove that you, the defendant, said something, like, “Go ahead, break into that car. Come on, hurry up.  Take the radio.” Something. 
  • Mere presence at the scene, knowledge of the crime and running away are all insufficient to show a defendant is an aider or abettor.  
  • Here, the State failed to show which person N.D. was.  Was he the one that was walking toward the witness or was  he one of the two that were near the cars?  Was he one of the two that was rummaging through the trunk or the third one that nobody observed near the cars? 
  • No evidence answered those questions, so basically N.D. was guilty by association.  The three of you were together and we know two of you were burglarizing the cars, so the third one must be in on it as well. 
  • But that is not legally sufficient.  So the 2nd DCA sent it back. 
  • Case reversed. 

Case #4 – Bernabeu v. State, No. 3D22-91 (Fla. 3rd DCA)(January 25, 2023)

  • Bernabeu is a case about trial counsel’s advice to a client on whether to testify out of Miami-Dade County. 
  • Mr. Bernabeu stabbed the mother of his two children to death in front of them. 
  • At trial, his defense attorney argued that he committed second degree murder, not first degree murder, because it was a crime of passion, rather than a premeditated murder. 
  • The jury convicted him of first degree felony murder, but not first degree premeditated murder, and the judge sentenced him to life.  
  • His conviction was affirmed on direct appeal.
  • Mr. Bernabeu filed a 3.850 motion which was denied by the postconviction court and Mr. Bernabeu appealed. 
  • He alleges that his attorney was ineffective for not calling him as a witness. 
  • When a  defendant alleges that a lawyer was ineffective for interfering with his right to testify, the court must determine first whether the defendant voluntarily agreed not to testify and if so, then whether the lawyer’s advice was deficient because no reasonable attorney would have discouraged him from testifying.  
  • A defendant establishes an ineffective assistance of counsel claim when the attorney’s performance was deficient, the first Strickland prong, and the defendant was prejudiced by that deficient performance, the second prong of Strickland. 
  • Here, Mr. Bernabeu conceded that he voluntarily agreed not to testify, but argues that no reasonable attorney would have discouraged him from testifying. 
  • At the 3.850 hearing, Mr. Bernabeu’s attorney testified that she advised him not to testify for strategic reasons. 
  • Mr. Bernabeu conceded at the hearing that he stabbed the victim and the jury acquitted him on the first degree premeditated murder charge, so even if the attorney was deficient, there was no prejudice. 
  • Case Affirmed. 

Case #5 – Holmes v. State, No. 3D22-1363 (Fla. 3rd DCA)(January 25, 2023)

  • Holmes is a 3.850 motion case out of Miami-Dade County involving failure to raise an insanity defense. 
  • The trial court summarily denied the motion for failing to assert a legally sufficient claim. 
  • Apparently, Mr. Homes alleged in his motion that he lacked capacity to appreciate the criminality of his conduct. 
  • Insanity requires proof that the defendant had a mental infirmity, disease, or defect and that because of this condition, he did not know what he was doing or its consequences or although he knew what he was doing and its consequences, he did not know it was wrong. 
  • Florida case law precedent has established that lack of appreciation of criminality does not constitute insanity. 
  • So, Mr. Holmes’ motion was insufficient.  
  • But, the trial court should have given Mr. Holmes an opportunity to correct the motion. 
  • Case affirmed in part, reversed in part and remanded. 

Case #6 – Randolph v. State, No. 4D21-3052 (Fla. 4th DCA)(January 25, 2023)

  • Randolph is a case out of St. Lucie county involving evidence of a new arrest being considered during a probation revocation hearing. 
  • Mr. Randolph pled guilty to a firearm and various drug related offenses and was sentenced to prison. 
  • When he got out, he was placed on probation and subsequently violated that probation by failing to pay costs of supervision and committing 11 new crimes. 
  • Mr. Randolph entered an open plea to the violation only to the failure to pay costs of supervision allegation. 
  • His attorney told the judge that it was strategically better not resolve all of the cases at once because of the guidelines.  
  • So, the trial court set Mr. Randolph for sentencing on the VOP after finding that he failed to pay costs of supervision.  
  • The remaining allegations just kind of sat there, unresolved. 
  • At the sentencing hearing, the State presented evidence of the new law violations and Mr. Randolph’s attorney didn’t object. 
  • On appeal, Mr. Randolph argues that the trial court fundamentally erred by failing to hold a violation hearing on the new law violations and by allowing evidence of those new law violations during his sentencing hearing. 
  • There is a two step process for alleged violations of probation.  
    • First, the court determines whether, by a preponderance of the evidence, the defendant willfully and substantially violated a condition of probation. 
    • Second, whether probation should be revoked. 
  • A trial court can revoke probation based on a single violation. 
  • So, what happens when a trial court addresses one allegation, but doesn’t address the remaining allegations. 
    • The 4th DCA noted that this question has not been answered, but then decided not to answer it here because Mr. Randolph invited the error. 
  • Mr. Randolph made a strategic decision not to resolve the new law violation allegations, so he can’t now complain. 
  • As for Mr. Randolph’s allegation that the trial court erred by considering new law violations in its sentence, the Florida Supreme Court created a bright line rule in Norvil that a trial court cannot consider a subsequent arrest without conviction during sentencing for the primary offense.  
  • This bright line rule applies to an initial sentencing on a charge as well as to VOP hearings. 
  • But, the trial court can consider a defendant’s conduct while on probation to determine whether to revoke and what the appropriate sentence should be, even when the defendant hasn’t admitted to the new law violations. 
  • Case Affirmed.

Carballo v. State, No. 3D21-1583 (Fla. 3rd DCA)(January 25, 2023)

  • On motion for rehearing denied.
  • Covered in Episode #31, Case #19
Contact Information