In STATE v. McCULLOUGH, No. 2D10-3180 (Fla. 2d DCA Dec. 30, 2011), the Defendant was arrested on a warrant after she pulled her car into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. After the Defendant locked the vehicle door, the officer effectuated the arrest under the outstanding warrant by instructing her to put her hands behind her back for handcuffing. Before being handcuffed, the Defendant threw her vehicle keys to her son, who entered the residence at which the car was parked. The Defendant was then escorted into the patrol car without incident. Officers searched the Defendant's car and found contraband.
The Defendant moved to suppress the results of the search, arguing that the officer did not have probable cause to search her car. The trial court granted the Defendant's motion, finding the search of her vehicle to be in violation of the rule in Arizona v. Gant, 556 U.S. 332 (2009), because it was unreasonable to believe that her vehicle contained evidence of an offense allegedly committed months prior. The DCA affirmed, observing that Gant holds that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." 129 S.Ct. at 1723. Because it is undisputed that the Defendant was secured in handcuffs in the arresting officer's patrol car when her car was searched, this case concerns only the second prong of Gant's holding. Accordingly, the search could withstand constitutional scrutiny only if it was reasonable to believe the Defendant's vehicle contained evidence of the offense underlying her arrest. Here there was none. The DCA distinguished, and certified conflict with, Brown v. State, 24 So. 3d 671 (Fla. 5th DCA 2009).
In WILSON v. STATE, No. 2D10-215 (Fla. 2d DCA Dec. 28, 2011), the Defendant proceeded pro se with standby counsel on a charge of robbery with a firearm following a detailed inquiry pursuant to Faretta v. California, 422 U.S. 806 (1975). On the day of trial the trial court conducted a final pretrial hearing outside of the Defendant's presence in which it formally denied his motion to suppress. The trial court instructed that the Defendant, who was in the process of being transferred to a different courtroom before a different judge for trial, be provided with its written order of denial. The Defendant's nonappearance at this hearing made it impossible for the trial court to determine if he wanted to continue to proceed pro se. Once the Defendant arrived in the other courtroom and learned that his motion had been denied, he raised several ore tenus motions before the new judge, including a motion to continue the trial by waiving his right to a speedy trial. However, the trial court summarily denied all of the Defendant's motions, and, like the judge before him, did so without renewing an offer of assistance of counsel in accordance with Fla. R. Crim. P. 3.111(d)(5). The DCA reversed the conviction, holding that a failure by a trial court to conduct a Faretta hearing at each critical stage of the criminal proceedings constitutes per se reversible error.
In HARRIS v. STATE, No. 2D10-3664 (Fla. 2d DCA Dec. 28, 2011), the Defendant was charged by information with attempted robbery with a firearm. At trial evidence pas presented that the robbery had been completed, and the Defendant was convicted of robbery with a firearm. The trial court sentenced him to life in prison as a prison release reoffender for robbery with a firearm. The DCA reversed the conviction, holding that it is a denial of due process to convict a defendant of a crime that the State has not charged. The State argued that the case should be remanded for sentence on the lesser included offense of attempted robbery. However the DCA held that the evidence did not support and the jury obviously did not find that someone prevented the Defendant from committing the robbery or that he failed to commit the robbery. Therefore, the jury did not find beyond a reasonable doubt that the Defendant committed an attempted robbery. Therefore the DCA remanded the case for a new trial. The DCA was careful to point out that the State may not be limited to proceeding on the existing charge of attempted robbery with a firearm. In a concurring opinion, Judge Villanti also pointed out that on remand the State may elect to amend the information to charge the completed robbery. Should the State elect to file such an information, the Defendant would be exposed to the same mandatory life sentence he is currently serving.
In D.W. v. STATE, No. 2D10-5267 (Fla. 2d DCA Dec. 28, 2011), a juvenile delinquency case was referred to a magistrate for a restitution hearing. The magistrate's report informed the Defendant that she could file exceptions within ten days "in accordance with the Florida Rules of Juvenile Procedure 8.257(f)." Nevertheless, the order directing restitution was signed and filed by the juvenile court the following day. The DCA held that rule 8.257(f) is a rule applicable to dependency and termination of parental rights proceedings. No authority would allow for the application of that rule in delinquency proceedings. Furthermore no other authority would allow the juvenile court to delegate its judicial determination of the amount of restitution to a magistrate; such determination is generally deemed to be nondelegable. The DCA also held that the fact that the juvenile court immediately signed and recorded the restitution order "would be troubling to this court even if the magistrate had been authorized to conduct this hearing." Slip opinion at 3. The restitution order was reversed and the case remanded for a restitution before the juvenile court.
In BAZEMORE v. STATE, No. 2D10-2254 (Fla. 2d DCA Dec. 30, 2011) the DCA held that a person can not be guilty both as a principal and ad an accessory after the fact to the same offense. The DCA also held that even though there is no standard instruction for this circumstance, the Defendant was entitled to an instruction explaining that the jury could convict him of only one of these offenses.
In addition, over objection at trial, the court allowed the State to include portions of an interview by police in which the Defendant explained that he had contacted an attorney and had been advised to "lay low." The trial court was apparently persuaded by the State's argument that these statements were evidence of consciousness of guilt. The DCA observed that the state can not properly argue that a defendant's request for a lawyer prior to arrest is evidence of consciousness of guilt, and warned "that this evidence should not be reintroduced at any subsequent trial in this case." Slip opinion at 6.
In AMASON v. STATE, No. 2D10-5486 (Fla. 2d DCA Dec. 28, 2011), at a hearing on a violation of probation, defense counsel was not given an opportunity to cross-examine witnesses. Defense counsel was also not allowed to make any argument responding to the trial court's conclusion that the Defendant was committing fraud regarding restitution and that the statutory maximum sentence was warranted. The DCA concluded that under the circumstances the Defendant was denied due process. Therefore the DCA reversed the order revoking probation and resulting sentence and remanded the case for a new revocation hearing before a different trial judge at which the Defendant would be allowed to present mitigating evidence.
