The Florida Supreme Court will be in summer recess until August 15, 2011. Release of regular opinions will resume August 25. Bar discipline and case disposition orders may be released in the interim.
In CUBERO v. STATE, No. 2D10-2950 (Fla. 2d DCA Jul. 27, 2011), the DCA reversed a violation of probation because the probationary period had ended before the affidavit alleging the violation was filed.
In BRAVO v. STATE, No. 1D10-5477 (Fla. 1st DCA Jul. 26, 2011), the Defendant was charged with aggravated assault. Three days after the incident giving rise to the charge, a law enforcement officer requested the Defendant's consent to search his residence. The Defendant refused consent and responded that the officer would have to get a search warrant. At trial, over objection, the State introduced evidence of the Defendant's refusal and argued that the Defendant refused because he had something to hide. The DCA held that the testimony regarding the refusal, combined with the prosecutor's closing argument, amounted to an improper comment on the Defendant's right to be free from unreasonable searches and seizures. The trial court abused its discretion in allowing the State to take testimony commenting on the Defendant's exercise of his Fourth Amendment right, and in allowing the State to comment on his exercise of that right in closing argument.
In PARRISH v. STATE, Nos. 1D10-5606 & 1D10-5608 (Fla. 1st DCA Jul. 26, 2011), an officer went to the Defendant's residence after receiving a call regarding a fight in progress. The officer saw the Defendant seated on a table in his carport and he approached the Defendant with his gun drawn. At gunpoint the officer ordered the Defendant to keep his hands on the table. During the confrontation, the Defendant's five-year-old daughter ran out of the house and stood in front of her father. The child cried and screamed, "Don't hurt my daddy." The officer lowered his weapon and ordered the Defendant to tell his daughter to go back inside. The Defendant refused and said she was not going anywhere. The Defendant was arrested. Officers found the house to be dirty and in disarray, however there was no evidence that the child was unclothed, unsupervised or unfed. The Defendant was convicted of child neglect and his probation was revoked based on possession of a weapon (a BB gun) and new law violations.
The DCA held that on the child neglect charge there was insufficient evidence that the confrontation between the Defendant and the officer created a risk of serious physical or mental injury to the child to support a conviction. The officer specifically testified that the child was not at risk of being shot. The Defendant complied with the officer's commands to keep his hands on the table. Neither the Defendant nor the officer presented a physical threat to the child. The trial court also erred in revoking the Defendant's probation based on possession of a weapon. No evidence was presented establishing that the BB gun was functional. Where a BB gun is not loaded, and no additional evidence is introduced to establish its capacity to inflict death or great bodily harm, the evidence is insufficient to establish that it a "deadly weapon".
In GRIFFIN v. STATE, No. 1D09-5986 (Fla. 1st DCA Jul. 26, 2011) the court held that constitutional double jeopardy precludes more than one conviction for the possession at the same time of multiple firearms by a convicted felon. The double jeopardy claim was properly raised for the first time on appeal even though the conviction is the result of a plea.
In WESS v. STATE, No. 1D10-1724 (Fla. 1st DCA Jul. 28, 2010), the Defendant was convicted of robbery by sudden snatching. The victim was sitting on a bench at a bus stop; her purse was on the bench, touching her hip. The Defendant asked the victim a question about the bus schedule; she responded, then resumed looking straight ahead at the road. The victim then felt her purse "moving" and when she turned around, she saw the Defendant running away with it. The DCA held that § 812.131 Florida Statutes (2010) provides that "robbery by sudden snatching" means the taking of money or other property from the victim's person but does not include taking a victim's property when it is simply close to the victim or within the victim's reach or control. A taking "from the victim's person" requires that the property requires that the property be actually "on" the victim's person, not simply next to the victim, even though it may be in "contact" with the victim. Therefore the Defendant was not guilty of robbery by sudden snatching, but of theft.
In ADERS v. STATE, No. 4D10-2074 (Fla. 4th DCA Jul. 27, 2011), the court held that "a color discrepancy between a car and its computer registration creates sufficient reasonable suspicion to justify a traffic stop for further investigation." Slip opinion at 3. The court reasoned that no regulation or statute is violated by failing to notify the Division of Motor Vehicles that a car has been painted a different color. However a color discrepancy is enough to create in the mind of a law enforcement officer a reasonable suspicion of the violation of § 320.261 Florida Statutes (2010), a criminal law which prohibits improperly transferring a license plate.
