The Florida Supreme Court is in summer recess. The next regular opinions are expected 26 August 2010.
In ARMSTRONG v. STATE, No. 2D09-1033 (Fla. 2d DCA Aug 11, 2010), the Defendant was charged with fraudulent use of a credit card. At trial, the State offered as evidence printouts of the victim's account transactions which the victim had downloaded and printed from her bank's internet site. The State sought to present those documents to the victim for identification and to establish which transactions were unauthorized. Defense counsel objected on hearsay grounds because the State had not produced a records custodian to testify to the authenticity of the records as required by § 90.803(6)(a), Florida Statutes (2007), nor had the State provided an affidavit to self-authenticate the records as permitted by § 90.902(11). The trial court overruled the hearsay objection and allowed the printouts into evidence.
The DCA held that the trial court erred in failing to exclude unauthenticated business records. That erroneously admitted hearsay evidence was the sole basis for the State's case against the Defendant. The victim's testimony relied solely on the hearsay in that unauthenticated printout. Therefore the DCA reversed the conviction and remanded the case for a new trial.
In GONZALEZ v. STATE, No. 2D09-1951 (Fla. 2d DCA Aug. 11, 2010), a jury convicted the Defendant of lewd and lascivious battery based on a charge that he had sexual intercourse with a thirteen-year-old girl. The circuit court summarily denied his motion for postconviction DNA testing pursuant to Fla. R. Crim. P. 3.853.
The DCA held that to determine whether the allegations in a motion for DNA testing are facially sufficient under rule 3.853(b), the trial court must consider the facts of the particular crime for which the movant was convicted. The crime charged in this case did not involve multiple perpetrators or multiple victims; either the Defendant had sexual intercourse with the victim or he did not. His motion asserted his innocence and stated that several hours after the alleged intercourse occurred the victim was taken to a hospital where evidence was obtained through a "rape kit" procedure. He alleged that the State never sought samples of his DNA and never processed the rape kit evidence. The Defendant insisted that if his DNA were compared with the evidence in the rape kit, he would be exonerated of all criminal charges. The DCA held that under the facts of this case, the Defendant's motion was facially sufficient both under rule 3.853(b)(3) and under rule 3.853(b)(4). The latter rule is written in the alternative: the movant must allege that identification is a genuinely disputed issue or he must explain how the DNA evidence would exonerate him. Although the Defendant's motion did not allege that identification was an issue, it did explain how DNA testing would exonerate him. Accordingly, the motion was facially sufficient under rule 3.853(b)(4).
In SANDERS v. STATE, No. 2D09-4013 (Fla. 2d DCA Aug 13, 2010), the court held that convictions on three counts of conspiracy which originated from a single agreement were not proper. At the heart of any conspiracy is an agreement. If there is but a single agreement, then there is but a single conspiracy even though it involves the commission of multiple crimes.
In HENRY v. STATE, No. 2D08-5216 (Fla. 2d DCA Aug 13, 2010), the court held that prior to the 2010 version of rule 3.220(b)(1)(A)(I), failure to designate a witness as an expert witness was a discovery violation that required a hearing pursuant to the rule in Richardson v. State, 246 So. 2d 771 (Fla. 1971).
In HENRY v. STATE, No. 2D09-3285 (Fla. 2d DCA Aug 11, 2010), the DCA held that where a court enters an order converting a preexisting restitution obligation to a judgment lien after the Defendant files a notice of appeal, the court still has jurisdiction to enter the judgment because the court simply had memorialized an oral ruling made by the court prior to the notice of appeal being filed.
In SMITH v. STATE, No. 2D08-5660 (Fla. 2d DCA Aug 11, 2010), the trial court required the Defendant to appear before the jury in bodily restraints as a result of jail policy. The DCA held that the judge should not have allowed jail policy to dictate procedure in her courtroom where the Defendant was not engaging in violent or disruptive behavior while in the courtroom and there was no indication that he would do so.
In STALLEY v. TRANSITIONAL HOSPITALS and KINDRED HEALTH CARE, No. 2D09-5163 (Fla. 2d DCA Aug 11, 2010), the court held that one spouse is not the automatically the agent of the other spouse absent written consent, oral consent, or by implication from the conduct of the parties. An agency by implication, or apparent agency, arises only when there has been (1) a representation by the principal that the actor is his or her agent, (2) reliance on that representation by a third party, and (3) a change in position by the third party in reliance on that representation. The court also recognized the abolition of the doctrine of necessaries in Florida.
