APPEALS FOR THE WEEK OF AUGUST 8th, 2011

In WIGGS v. STATE, No. 2D09-3545 (Fla. 2d DCA Aug. 3, 2011), a drug detection dog named Zuul alerted on the Defendant's vehicle after a stop for a traffic infraction. The Defendant moved to suppress the contraband because Zuul's alert did not provide probable cause to search his vehicle. The Defendant challenged Zuul's reliability and cited evidence of numerous "false alerts" by the dog in the field. At the hearing on the motion to suppress, the State presented testimony and documents regarding Zuul's training and field record. The dog handler acknowledged that Zuul had not been trained to refrain from alerting to residual odors.

The DCA held that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person. The fact of the dog's training and certification does not account for the possibility of false alerts, handler error, and alerts to residual odors. The fact that a dog has been trained and certified to provide a prima facie case of probable cause would improperly place on the defendant the burden of production of evidence solely within the control of law enforcement.
The State must present quantification of the dog's success in the field through the dog's field performance records. It is important for the handler to document the history of the driver and vehicle on unverified alerts. The handler had not done so. Without such evidence, the State can not explain the significance of the dog's unverified field alerts.
Similarly, the State must present evidence regarding the dog's ability to detect residual odors and how the dog's alert to a residual odor would provide a fair probability that drugs would be found inside the defendant's vehicle.

In the instant case no evidence was presented about the nature of the alert, the search of the Defendant's vehicle, or the location of contraband therein. Therefore the DCA held that it was impossible to tell if Zuul alerted on a residual odor or whether he alerted on the actual contraband. Therefore the State failed to make a connection between Zuul's alert and the discovery of the drugs. Therefore the trial court erred in determining that the State established probable cause based on Zuul's alert on the Defendant's vehicle.

In GOODWIN v. STATE, No. 2D09-5592 (Fla. 2d DCA Aug. 3, 2011), the Defendant drove a car to the scene of a robbery. A coperpetrator entered the store and demanded drugs while armed with a BB gun; the drugs were handed over. The BB gun was recovered. The Defendant was convicted by a jury as a principal to robbery with a deadly weapon. At trial the Defendant took the affirmative step of providing evidence that the weapon could not easily cause great bodily harm. The DCA observed that "there is a worthy argument that a low-velocity BB gun should be excluded from the definition of a deadly weapon." Slip opinion at 3.
Nevertheless the DCA held that whether a particular BB gun used in a robbery is a deadly weapon remains a jury question.

In DELEON v. STATE, No. 2D09-5740 (Fla. 2d DCA Aug. 3, 2011), the Defendant was charged, inter alia, with carjacking with a firearm. A jury returned a verdict of guilty for carjacking with a deadly weapon.
The DCA held that the trial court erred in instructing the jury on the offense of carjacking with a deadly weapon because the specific offense of carjacking with a deadly weapon was not charged in the information.
The information alleged only that the Defendant possessed a firearm during the offense. Therefore the jury could not find that he possessed a deadly weapon. The DCA reasoned that it is a fundamental principle of due process that a defendant may not be convicted of a crime that has not been charged by the State. Here the information cited the applicable statute, § 812.133 Florida Statutes (2008), however it specifically included the element of a firearm while it specifically excluded the element of a deadly weapon. Therefore the Defendant was not put on notice that he could be convicted of carjacking with deadly weapon. The error was compounded when the jury was incorrectly instructed that carjacking with a deadly weapon is a lesser included offense of carjacking with a firearm. Here, the offense of carjacking with a deadly weapon was not a lesser included offense of carjacking with a firearm; it was an alternative way of committing an offense of the same general character. Therefore it failed to meet the definition of a lesser-included offense.

In WILLIAMS v. STATE, No. 2D10-1301 (Fla. 2d DCA Aug. 3, 2011), the Defendant was charged with aggravated battery following an altercation.
The victim claimed that the Defendant attacked him without provocation and used a knife to cause a laceration in his arm. The Defendant claimed that the victim started the fight and that he simply wrestled with the victim to defend against the attack. The Defendant asserted that he did not use a knife in the fight and suggested that the victim may have acquired the cut from broken bottles or tree roots on the ground where the fight occurred. No other eye witness testified at trial, no knife was admitted to evidence, and no medical evidence as to the cause of the wound was presented.

The Defendant requested jury instructions on the justifiable use of deadly force on the charged offense and on the justifiable use of nondeadly force on the two lesser included offenses (felony battery and simple battery). Because the Defendant denied using a knife in the fight, the trial court properly denied the request for the instruction on the justifiable use of deadly force for the aggravated battery charge. However if the jury had found the Defendant's testimony at trial was credible, it could properly have concluded that he did not have a knife and was merely defending himself from an attack by the victim, during which time the victim's arm was cut by debris on the ground. Where there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense when he so requests. Therefore the trial court erred by not giving the requested instruction on the justifiable use of nondeadly force.

In M.P. v. STATE, No. 2D10-2046 (Fla. 2d DCA Aug. 3, 2011), the Defendant gave a ride to a codefendant to a place where the codefendant stole a motorcycle. The Defendant was charged as an accessory after the fact because he left the scene before the police arrived. No evidence suggested that he acted in concert with the codefendant to steal the motorcycle. However the Defendant pled no contest to accessory after the fact to grand theft of the motorcycle. Restitution was imposed.
The DCA held that when evidence does not show that a defendant acted in concert with a codefendant in causing damages, the trial court should not impose restitution. Here the trial court found "that his criminal conduct led - that the loss was a consequence, at least, in part of his criminal conduct in the case in which he pled." The DCA held that finding to be error. The damages arising from the motorcycle theft would have occurred regardless of whether the Defendant was found an accessory after the fact.

In SASSER v. STATE, No. 2D09-152 (Fla. 2d DCA Aug. 5, 2011), a fish story was unraveled. An officer of the Florida Game and Wildlife Conservation Commission came upon two boats sitting alongside one another in a mangrove area. The Defendant was standing on his boat, a white skiff; the other boat, a green boat, was vacant. The officer heard people fleeing through the mangroves, presumably the operators of the green boat. Both boats contained a substantial amount of mullet.
The green boat harbored a proscribed gill net on its deck. The Defendant was charged with one count of simultaneous possession of mullet in excess of the recreational daily bag limit and any gill or other entangling net, and one count of improper carriage of a proscribed net across Florida waters pursuant to § 370.021 Florida Statutes (2007).
The only issue was whether the Defendant had possession of the net.

The DCA held that no evidence established that the Defendant had actual possession of the net. To establish constructive possession, the State must prove beyond a reasonable doubt (1) that the defendant had knowledge that the contraband was within his presence and (2) that the defendant had the ability to exercise dominion and control over the contraband. Here the State offered no evidence to demonstrate that the Defendant had knowledge of or dominion and control over the net on the green boat. The evidence did not show that the Defendant owned the green boat, was piloting the green boat, or had ever been aboard the green boat. While there was some evidence suggesting that the fish on the Defendant's boat were caught with a gill net, it did not show that they were caught with the net on the green boat or that the Defendant knew that they were caught with that net.

The DCA observed that the State could have established that the Defendant had possession under a third definition which is specific to § 370.021(3). Offenders may be in "simultaneous possession" of the requisite fish and net if they are in "possession of mullet and gill or other entangling nets on separate vessels or vehicles where such vessels or vehicles are operated in coordination with one another including vessels towed behind a main vessel." § 370.021(3). However the State did not present any evidence to show that the two vessels were "operated in coordination with one another" at any time. What each boat did prior to the arrival of the officer was unknown. To conclude that the Defendant coordinated with operator of the green boat to go fishing with the gill net would require an impermissible pyramiding of inferences.

To succeed on a principal theory, the State would be required to prove that the Defendant aided, abetted, counseled, hired, or otherwise procured another to commit the offense of simultaneous possession of the gill net and the mullet. However no evidence established that another specific person ever simultaneously possessed the gill net and the mullet or that the Defendant ever helped another person to do so.
Therefore the State's inclusion of the principal theory in the charging document was unwarranted. The same fatal flaws prevent conviction for carriage of a proscribed net across Florida waters.

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