In DARLING v. STATE, No. SC09-555 (Fla. Jul. 1, 2010), the Court held that Capital Collateral Regional Counsel attorneys are permitted to file federal 14 U.S.C. § 1983 claims on behalf of capital defendants if, and only if, they are challenging and seek to enjoin the State's intended method of execution, which is an integral part of the judgment and sentence.
In IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES - REPORT NO.
2010-02, No. SC10-151 (Fla. Jul. 1, 2010), the Court adopted revisions to current standard criminal jury instruction re. Criminal Mischief, and five new instructions re. Discharging a Firearm from a Vehicle Within 1000 Feet of a Person, Offenses Against Computer Users, and Tampering with or Fabricating Physical Evidence.
In CANAVAN v. STATE, No. 2D08-5182 (Fla. 2d DCA June 30, 2010), on rehearing, the Defendant was charged with aggravated stalking in violation of § 784.048(4) Florida Statutes (2007), based on allegations that he harassed his former wife after entry of a final injunction against domestic violence. To convict the Defendant of this offense, the State had to prove beyond a reasonable doubt that the Defendant continued to harass the victim despite knowledge of the injunction upon which the charge was premised.
The Defendant did not attend the hearing where the permanent injunction was granted. It was undisputed that the permanent injunction was not served on the Defendant until he was arrested for the stalking charge at issue in this case. The DCA held that proof of service is sufficient to prove that a person has knowledge of an injunction. It is also reasonable to permit the State to prove actual knowledge of a permanent injunction as a result of actions other than service of process. Here, however, the State simply failed to provide any evidence that the Defendant knew of the entry of the permanent injunction. Because the State failed to prove that element of the charge of aggravated stalking, the Defendant's motion for judgment of acquittal should have been granted. The DCA remanded for entry of a judgment of guilt for the lesser included offense of simple (misdemeanor) stalking.
In GONZALEZ v. STATE, No. 2D08-5944 (Fla. 2d DCA Jul. 2, 2010), the Defendant was charged with attempted first-degree murder of a law enforcement officer, and convicted of attempted second-degree murder.
The jury was instructed on attempted first-degree murder, attempted second-degree murder, and attempted manslaughter by intentional act.
Because the use of the standard jury instruction for manslaughter by intentional act constituted fundamental error in State v. Montgomery, 35 Fla. L. Weekly S204, S205 (Fla. Apr. 8, 2010), the DCA held that the conviction for attempted second-degree murder must be reversed due to use of the then-standard jury instruction for attempted manslaughter by intentional act.
In LOWE v. STATE, No. 5D09-3028 (Fla. 3d DCA Jul. 2, 2010), witnesses observed the Defendant in the parking lot of a convenience store when a vehicle occupied by a seven-year-old child and two adults pulled into the next parking space. A witness observed the Defendant place a dildo into his mouth. As she approached the vehicle, she saw the Defendant wave the dildo in view of another woman and again put the object into his mouth. The child also saw the Defendant waving the dildo around and putting it into his mouth. Police were called, who stopped the Defendant and found the dildo in his truck. The Defendant was charged with lewd or lascivious exhibition in violation of § 800.04(7)(a) Florida Statutes (2009). He moved to dismiss the information, claiming that his acts did not violate the statute.
The DCA agreed, reasoning that § 800.04(1)(a) defines the term "sexual activity" as "the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object." Here the charged conduct involved oral penetration with an object. A dildo is an object, whether or not it resembles a sexual organ. The Defendant's actions did not infer that he was simulating oral sex with another person; it was apparent he was simulating oral sex with an object. His actions, though clearly rude and offensive, did not violate the express terms of the statute.
