In A.B.S. v. STATE, No. 2d10-273 (Fla. 2d DCA Dec. 29, 2010), the juvenile Defendant was taken into custody as a possible runaway in need of services pursuant to § 984.13, Florida Statutes (2009). The officer who took the Defendant into custody stated that, at a minimum, he was going to take the Defendant home. Before the officer placed the Defendant inside his police cruiser, he handcuffed and searched the Defendant as was his practice. During the search, the officer retrieved a set of keys from the right, front pocket of the Defendant's pants. The keychain had an aluminum screw-top container on it that the officer stated was of the type commonly used to store illegal drugs. The officer shook the container, and it rattled in a way that made the officer suspect there were pills inside. The officer then opened the container and discovered a controlled substance. The officer acknowledged that he did not conduct a pat down before reaching into the Defendant's pocket. The Defendant's motion to suppress the evidence was denied.
The DCA reversed, reasoning that circumstances that allow a juvenile to be taken into custody under § 984.13 are not crimes; therefore, the search incident to arrest exception to the warrant requirement did not apply. In addition the officer had no indication that the Defendant was in possession of either a weapon or contraband when he conducted the search. He admitted that he searched the Defendant solely because it was his policy to search people before transporting them in his cruiser.
A concern for officer safety does not allow an officer to search an individual without having performed a pat-down simply because the individual is being placed in a police vehicle. Because the search was conducted without a legal basis, the trial court erred in denying the motion to suppress.
In CASEY v. STATE, No. 2D10-498 (Fla. 2d DCA Dec. 29, 2010), the Defendant was sentenced on a plea to five years in prison, suspended, and five years of probation. He thereafter admitted violating his probation and the suspended sentence was imposed. At sentencing the trial court told the Defendant that if he violated the terms of his probation, "you're going to get five years Florida State Prison because I've suspended it.... Because I've suspended it, so I won't have any discretion. Unless the State agrees, I've pretty much bound my hands".
The DCA reversed the sentence because the trial court was under the mistaken belief that it was mandatory to impose the previously suspended prison term, citing Nadzo v. State, 24 So. 3d 690, 691-92 (Fla. 2d DCA 2009); Cowart v. State, 860 So. 2d 1041, 1042 (Fla. 5th DCA 2003); Lacey v. State, 831 So. 2d 1267, 1270 (Fla. 4th DCA 2002). [Editor's note: the plain language of § 948.06(2) Florida Statutes is absolutely clear on that point. On a VOP or VOCC, a court may "impose any sentence which it might have originally imposed". Such sentencing is "uncompromised by the sentencing guidelines." State v. Watson, 909 So. 2d 942, 945 (Fla. 5th DCA 2005); see also Griffin v. State, 783 So. 2d 337, 338 (Fla. 5th DCA 2001).]
In GILL v. GILL, No. 2D09-2746 (Fla. 2d DCA Dec. 29, 2010), the court addressed the standard of proof necessary for a trial court to grant a domestic violence injunction.
In McCOY v. STATE, No. 1D09-5819 (Fla. 1st DCA Dec. 21, 2010), the Defendant was arrested and charged with trafficking in hydrocodone based on her actual possession of a pill bottle, labeled as belonging to her husband, which contained Lorcet tablets. The Defendant proceeded on the sole defense theory that she was holding the pills for her husband, and was convicted. The DCA reversed, reasoning that schedule III controlled substances may be "lawfully obtained" by an agent of the prescription holder who can provide "satisfactory patient information." Here the Defendant asserted she was holding her husband's pills on his behalf, and that allegation, if taken as true, would have established an agency relationship authorizing her possession of the pills pursuant to Florida law. Although defense counsel failed to request the prescription defense instruction, the DCA held that failure of the trial court to instruct the jury on the asserted defense was fundamental error.
