In CABLE v. STATE, No. SC09-1684 (Fla. Dec. 9, 2010) the Court held that the U.S. Supreme Court opinion in Hudson v. Michigan, 547 U.S. 586 (2006), does not prevent Florida courts from excluding evidence obtained in violation of the Florida knock-and-announce statute, § 901.19(1) Florida Statutes (2005). The Court held that under Hudson, "it is clear that the exclusionary rule does not apply to Fourth Amendment knock-and-announce violations. However, Hudson is not automatically dispositive of the question of whether the exclusionary rule may be applied for violations of Florida's knock-and-announce statute". Slip opinion at 14. The Court reasoned that the states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment. In Florida, these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures, but may be imposed by other provisions of Florida law, including a state statute. Therefore as a matter of state law, a state may provide a remedy for violations of state knock-and-announce statutes, and nothing in Hudson prohibits it from doing so.
In HERNANDEZ v. STATE, No. SC08-2321 (Fla. Dec. 9, 2010), the Defendant was charged with two counts of felony murder based on trafficking or attempted trafficking of cocaine. At trial the State failed to present evidence of the quantity of drugs involved in the alleged transaction.The Defendant moved for a judgment of acquittal on both counts of felony murder, which was denied. The Supreme Court held that the Defendant could not be found guilty of first-degree felony murder based on trafficking or attempted trafficking because the State had submitted no direct evidence that the transaction involved at least 28 grams of cocaine. The Court explained that when reviewing the sufficiency of evidence presented to a trier of fact, an appellate court should not retry the case or reweigh the evidence. Rather, the concern on appeal must be whether, after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the decision.
In JAIMES v. STATE, No. SC09-1694 (Fla. Dec. 9, 2010), following a bar fight, the Defendant was charged by information with aggravated battery with a deadly weapon against two victims. At trial, although the Defendant was only charged with the deadly weapon form of the offense, the jury was erroneously instructed that it could also find him guilty if it determined that he had caused great bodily harm to the victims.No objection was made to that instruction. The jury was given a verdict form which allowed it to specifically choose between the two forms of aggravated battery. The jury found the Defendant guilty of aggravated battery with a deadly weapon against one victim, and aggravated battery by causing great bodily harm against the other.
The Supreme Court held that as a general matter, instructions to a jury are subject to the contemporaneous objection rule. However 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 there was no question that the Defendant was convicted of an offense that was never charged - the jury convicted the Defendant based specifically on the fact that he had caused one victim great bodily harm, despite the fact that the extent of the victim's injuries was never an element of the offense as it was charged in the information. Thus the Defendant was convicted of a form of aggravated battery which requires an element not contained in the charging document. His right to due process was therefore violated. Therefore the jury instruction was fundamental error, and the fact that the Defendant's counsel failed to object at trial did not bar its consideration and correction on appeal. The Court remanded the case to the trial court with instructions to enter a verdict for the lesser included offense of simple battery. The Court distinguished State v. Weaver, 957 So. 2d 586 (Fla. 2007).
In DUROUSSEAU v. STATE No. SC08-68 (Fla. Dec. 9, 2010), the Court discussed the admissibility for similar fact evidence pursuant to § 90.404(2) Florida Statutes and the rule in Williams v. State, 110 So. 2d 654 (Fla. 1959).
In FREEMAN v. STATE, No. 2D09-2952 (Fla. 2d DCA Dec. 10, 2010), a prospective juror, in response to several questions, first stated that she could be fair and impartial, but later expressed that she might give law enforcement officers "a little more credibility" than other witnesses. The Defendant challenged that prospective juror for cause, arguing that she had expressed some doubt about her ability to be fair and impartial. After later exhausting his peremptory challenges, defense counsel sought to strike another prospective juror. The trial court denied the defense request for additional peremptory challenges, and that person served on the jury. Defense counsel renewed his previous objection when the jury was sworn.
The DCA held that a juror should be excused for cause if there is a basis for any reasonable doubt as to any juror's possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and the instructions on the law given by the court. A trial court's failure to excuse a juror for cause is manifest error when the juror responds with equivocal or conditional answers, thus raising a reasonable doubt as to whether the prospect possesses the requisite state of mind necessary to render an impartial decision. A juror is not impartial when one side must overcome a preconceived opinion in order to prevail. While this juror first said that she could be fair and impartial when faced with testimony from law enforcement officers, thereafter she was equivocal. Her final answer was that she may give more credibility to police officers. The DCA held that a juror who expresses a bias in favor of the testimony of a law enforcement officer should be excused for cause. The DCA reversed the convictions and remanded the case for a new trial.
In AUSTIN v. STATE, No. 2D09-645 (Fla. 2d DCA Dec. 8, 2010), the Defendant was charged with lewd and lascivious molestation pursuant to § 800.04(5) Florida Statutes (2006), and lewd and lascivious exhibition pursuant to § 800.04(7) Florida Statutes (2006). At the trial, the father of the victim testified that he occasionally smoked marijuana with the Defendant and that they sometimes would split the cost of purchasing a small amount. The Defendant's objection to that testimony was overruled, and his motion for mistrial denied. The DCA held that the testimony about the Defendant's past use and purchase of an illegal drug was inadmissible character evidence that had no relevance to a material fact in issue. The evidence did not bear on motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See § 90.404(2) Fla. Stat. (2008). Moreover, the State failed to give the required pretrial notice of its intention to employ such evidence rule evidence pursuant to § 90.404(2) and so the trial court was not afforded an opportunity to make the necessary determinations before admitting it. The DCA reversed the convictions and remanded the case for a new trial.
In C.N. v. STATE, No. 2D09-3828 (Fla. 2d DCA Dec. 8, 2010), the juvenile defendant was part of a crowd of teenagers that spilled into the streets around the Boys and Girls Club in Lakeland after a dance.An officer testified that he observed the Defendant shouting and using foul language. He feared that the Defendant's actions might instigate fights. According to his testimony, the officer instructed the teens in the vicinity to move along, but the Defendant failed to do so and rolled her eyes. He told her to leave or he would arrest her. She did not move so the officer attempted to take her into custody for committing the crime of disorderly conduct. The Defendant pulled away from his grasp and tightened her arms at her side, all the while continuing to curse. The officer was finally able to put her in a police vehicle and drive away from the crowd. She was charged with disorderly conduct, § 877.03, Fla. Stat. (2008), and resisting an officer without violence, § 843.02, Fla. Stat. (2008).
The DCA held that the Defendant's actions did not constitute disorderly conduct. In order to prove disorderly conduct based on words alone, the State must show that the words either caused a crowd to gather, thereby resulting in safety concerns, or that the words incited a crowd to engage in an immediate breach of the peace. The evidence presented to the trial court did not support either alternative. The officer testified that no one was fighting in the area he was patrolling. In fact, he ventured that if he had seen a fight, he would not have been concentrating on the Defendant's activities. The crowd had spontaneously come together after a party. No evidence suggested that the Defendant instigated the gathering. Therefore the evidence presented at the adjudicatory hearing was insufficient to support the circuit court's finding that the Defendant engaged in disorderly conduct. Because the police officer who arrested her did not have a reasonable suspicion that she was committing a crime, she did not commit the charge of resisting without violence.
In POWERS v. STATE, Nos. 2D09-4571 and 2D09-4572 (Fla. 2d DCA Dec. 10, 2010), the Defendant was sentenced to two concurrent sentences of forty-eight months imprisonment, with the sentences suspended and served as two years probation. The Defendant violated her probation and the court sentenced her to thirty months incarceration followed by eighteen months probation. Then, having completed the incarcerative portion of her sentences, the Defendant was charged with several new violations of her probation. After accepting admissions to these violations, the trial court sentenced the Defendant to consecutive terms of five years imprisonment, for a total sentence of ten years imprisonment.
The DCA held that by imposing a true split sentence, the original sentencing judge predetermined the sanction the Defendant would incur upon a violation of probation. Upon any such violation, the trial judge was limited to imposing sentences that would not exceed the remaining balance of the concurrent, forty-eight month suspended sentences. The DCA observed: "Admittedly, there are times when a defendant loses the benefit of a true split sentence by accepting a more favorable sentence on an initial violation of probation. This occurs when the more favorable sentence is not compatible with the terms of the true split sentence.... As the State concedes, however, the short term of imprisonment followed by probation imposed on the first violation of probation in this case was not incompatible with the longer term of imprisonment that had been originally suspended." Slip opinion at 3 (citation omitted). Therefore the DCA concluded that the Defendant did not lose her right to receive the incarcerative portion of the true split sentences at the sentencing hearing following the second VOP.
In N.B. v. STATE, No. 2D09-1293 (Fla. 2d DCA Dec. 10, 2010), the juvenile defendant committed the offense of obstructing or opposing an officer without violence. Adjudication was withheld, and he was placed on probation. The court reporter was unable to provide a transcript for use on appeal, and the parties were unable to reconstruct a record. The DCA applied the same rule as in criminal court, holding that to obtain a new trial based on a missing transcript, a criminal defendant must show prejudice. In this case, but for the lack of the transcript, the Defendant argued that the trial court erred by denying his motion to dismiss for insufficient proof; the same was listed in the statement of judicial acts to be reviewed on appeal. The DCA concluded that the Defendant has shown prejudice because the DCA was unable to review that issue without a transcript.
