In CROMARTIE v. STATE, No. SC09-1868 (Fla. Aug. 25, 2011), when the trial judge sentenced the Defendant she said "I round off in years. What can I tell you? .... I always round up. If it's over the years – because I never go below the minimum that I feel I'm required to. And if I – really doesn't make a difference. I mean, I know it matters to your client, every month and every day he does. But I'm telling you in the real world whether you give somebody nine years or ten years doesn't much matter, you know. It just doesn't. And to have – that's an argument over minutia." Slip opinion at 4. The Defendant moved to correct his sentence under Fla. R. Crim. P. 3.800(b), raising the claim that the policy of the trial court of rounding up violated due process of law. The Supreme Court held that "the trial court's policy is arbitrary and constitutes a violation of due process." Slip opinion at 8. Here "the sentence imposed was within the legal guidelines – it was above the minimum required by the scoresheet and below the statutory maximum, but the trial judge's stated policy 'improperly extended' [the Defendant]'s incarceration in an arbitrary manner." Slip opinion at 10.
In DUFOUR v. STATE, No. SC09-262 (Fla. Aug. 25, 2011) the Court considered at length the proper basis for determination of a motion for postconviction relief under Fla. R. Crim. P. 3.203, which bars imposition of the death penalty on a defendant who is mentally retarded. Of more general interest is an issue of procedure considered by the Court. In the trial court the "State introduced copious documents that the experts relied upon during their evaluation of [the Defendant] and, during the expert testimony, projected these documents on a screen in the courtroom where the trier of fact (i.e., the judge in this bench proceeding) could view the entirety of the substance of the document.
The documents came from many unidentified sources and included prior psychological evaluations, inmate grievance requests, multiple police reports, and evidence from the 2002 proceeding. [The Defendant] challenged the use of these documents, asserting that the State was utilizing the expert witness as a conduit to introduce otherwise inadmissible evidence and that the State had not established a foundation for the documents' admissibility outside the fact that the documents were possibly consulted by the expert witness as a basis for an opinion. In addition, [the Defendant] advanced that publishing the documents through the projector screen amounted to the documents' admission in open court for everyone to read without the proper predicate being established, and that the projection of the documents with altered highlighted portions constituted improper bolstering and leading." Slip opinon at 37-38. The Court held that "the continuous failure to state on the record the identification and exhibit numbers for evidence, along with the references to evidence from prior proceedings without any indication of its identifying information, created unnecessary hardship for this Court in conducting our review.
Without an attorney's diligence in creating a clear and comprehensible record, an appellate court is left to piece together the evidentiary record to properly review the proceeding. Thus, it is important for attorneys to ensure that the record reflects identifying information as to which piece of evidence is being referenced and addressed during the proceeding because an appellate court's perspective of a proceeding is limited by the contents of the record." Slip opinion at 40.
In HYDEN v. STATE, No. 2D10-1184 (Fla. 2d DCA Aug. 24, 2011), the DCA held that the State is precluded from using prior misdemeanor DUI convictions to support a felony DUI conviction under § 316.193(2)(b)(3) Florida Statutes (2008) if (1) the prior convictions were uncounseled,
(2) the defendant was indigent and entitled to court-appointed counsel,
(3) the defendant did not waive the right to counsel, and (4) the convictions were punishable by imprisonment. The defendant bears the initial burden of making these allegations under oath. The burden then shifts to the State to present evidence to the contrary. An oath signed by the Defendant stating "Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true" is sufficient to meet the defendant's initial burden.
In HOPPERT v. STATE, No. 2D10-4551 (Fla. 2d DCA Aug. 26, 2011), the Defendant was convicted of burglary of an occupied structure. In a motion for postconviction relief under Fla. R. Crim. P. 3.800(a), he alleged that the public women's restroom he burglarized was unoccupied because each stall is a structure of its own and the victim did not exit her stall until after Hoppert had exited the restroom. The postconviction court found that the Defendant's motion was without merit because the restroom was occupied when the Defendant entered the women's restroom and photographed the victim with his cell phone camera by reaching under the stall. The DCA held that the Defendant's motion was improper as a motion to correct illegal sentence. Because the motion was timely filed and properly sworn under Fla. R. Crim. P. 3.850, the postconviction court should have analyzed it as such. While the postconviction court was correct in denying the motion for postconviction relief, it should have done so on the ground that claims of insufficiency of the evidence are not cognizable in a rule 3.850 motion and should be raised on direct appeal.
In 1321 WHITFIELD v. SILVERMAN, No. 2D10-4766 (Fla. 2d DCA Aug. 24, 2011), the trial court entered a final judgment of foreclosure on the defendant LLC following constructive service of process by publication.
The DCA affirmed, holding that constructive service of process by publication upon a limited liability company is permitted under § 49.021(2), Florida Statutes (2009).
