In COOPER v. STATE, No. SC09-1169 (Fla. Aug. 26, 2010), the Court reviewed the standard for analysis of harmless error. Affirming the rule in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Court held "the applicable test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.... Likewise, it is not a strong evidence test. Rather, the test is 'whether there is a reasonable possibility that the error affected the verdict.'" Slip opinion at 2.
In SCOTT v. STATE, No. 2D08-2945 (Fla. 2d DCA Aug. 27, 2010), the Defendant was accused of spraying automatic weapons fire at nine people in a single episode but, fortunately, hit none of them. He was found guilty by a jury of nine counts of attempted second-degree murder and sentenced to a twenty-year mandatory minimum prison term on each count in accordance with § 775.087(2) Florida Statutes (2007)(the "10-20-LIFE" law). The DCA held that the trial court could properly designate the nine mandatory minimum sentences to run consecutively because the Defendant fired his weapon at multiple victims.
In MERRIEX v. STATE, Nos. 2D09-5171 and 2D09-5483 (Fla. 2d DCA Aug. 27, 2010), the Defendant fled from officers following a drug sale and crashed the vehicle he was driving into another vehicle, killing one person and injuring three others. The Defendant plead guilty in the circuit court to leaving the scene of a crash involving a death, third-degree felony murder of the decedent, and three counts of reckless driving with bodily injury. Later one of the injured persons died. The State then charged the Defendant with vehicular homicide and third-degree felony murder under a different case number. The trial court granted the Defendant's motion to dismiss the vehicular homicide charge, reasoning that double jeopardy barred the vehicular homicide charge because the Defendant had already been convicted of the lesser included offense of reckless driving with serious bodily injury for the same underlying act. The State appealed.
The DCA affirmed the dismissal. The DCA reasoned that conviction of third-degree felony murder bars a vehicular homicide conviction for the same death - only one homicide conviction and sentence may be imposed for a single death. Even if the trial court had considered alternative charges or theories for the single death no which the new charge was based, a conviction for the highest-degree crime would stand and the lesser crime would be set aside. Because both offenses were second-degree felonies subject to the same sentence, the conviction of felony murder rather than vehicular homicide did not prejudice the State.
In ADDERLY v. STATE, No. 4D08-4706 (Fla. 4th DCA Aug. 25, 2010) the court held that a live showup is inherently suggestive because the witness is presented with only one suspect for identification. However a showup identification is not invalid if it does not give rise to a substantial likelihood of irreparable misidentification at trial given he totality of circumstances. The court should consider the opportunity of the witness to see the defendant, the witness' degree of attention, the accuracy of the description given after the event, the level of certainty demonstrated at the confrontation, and the length of time between the event and the confrontation.
In this case the DCA reversed the conviction because the trial court admitted evidence that the Defendant gave a false name and ran from a police officer four months after the crime. The DCA held that that "evidence was simply not relevant to any issue at trial." Slip opinion at 5.
In CLARK v. STATE, No. 1D09-5739 (Fla. 1st DCA Aug. 25, 2010), a robbery victim was walking when the Defendant grabbed her purse, throwing her to the ground. She sustained scratches in the scuffle, two of her sweater buttons came off, and her watchband broke. The Defendant was charged with strong-arm robbery under § 812.13 Florida Statutes (2008). The DCA held that evidence of each element of robbery, including each prong of the disjunctive "force, violence, assault, or putting in fear" element, was plainly sufficient. Under those circumstances, the Defendant was entitled to an instruction on robbery by sudden snatching pursuant to § 812.131 as a category II lesser included offense, and the court erred in refusing to give it. (Note the hypothetical exceptions suggested in footnote 3.)
