In FRANQUI v. STATE, No. SC05-830 (Fla. Jan. 6, 2011), the Court held that the test for mental retardation in § 921.137(1) Florida Statutes (2009) and Fla. R. Crim. P. 3.203 provides that a defendant may establish mental retardation by demonstrating all three of the following factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. A lack of proof of any one component of mental retardation would result in the defendant not being found to suffer from mental retardation. The "significantly subaverage general intellectual functioning" component is a bright line determination requiring a strict cut-off score of 70 or below on an approved standardized test in order to establish significantly subaverage intellectual functioning. Language in Atkins v. Virginia, 536 U.S. 304 (2002)(holding that execution of the mentally retarded is prohibited under the Eighth Amendment) which suggests that a wider range of IQ test results that can meet the test for mental retardation does not overcome the broad authority given in Atkins to the states to enact their own laws to determine who is mentally retarded, without any requirement that the states adhere to one definition over another.
In IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES - REPORT NO. 2010-04, No. SC10-1644 (Fla. Jan. 06, 2011), the Court amended Fla. Std. Jury Instr. (Crim.) 7.3, Felony Murder - First Degree, by changing second-degree (depraved mind) murder in the table of lesser-included offenses from category one (necessarily lesser included to) to category two (permissive lesser-included).
In STATE v. WHITESIDE, No. 2D10-339 (Fla. 2d DCA Jan. 7, 2011), the Defendant was convicted of burglary and dealing in stolen property. The minimum guidelines sentence was 28.1 months DOC incarceration. The trial court sentenced the Defendant to two concurrent 18 month terms; the State appealed. The DCA observed that a trial court's decision whether to depart from the guidelines is a two-part process. First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it. Second, where the first step requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. Here the DCA held that the trial court failed to satisfy step one of the departure process because it did not articulate a valid legal ground for the departure sentence. The reasons stated on the record for the departure were that the crime was a "factually mitigated burglary" and the guidelines "overaccentuate."
Although the trial court pointed out that the burglary was a "crime of opportunity" and one of the "least aggravated" burglaries the court had seen, the DCA held that those factors do not satisfy the enumerated reasons for departure listed in § 921.0026(2) Florida Statutes 2009).
In LEE v. STATE, No. 2D10-2400 (Fla. 2d DCA Jan. 7, 2011), the Defendant was arrested while in possession four baggies of cocaine weighing a total of approximately 1.5 grams. He entered a plea to possession with intent to sell; he later sought post-conviction relief.
The DCA held that possession individually packaged narcotics does not automatically establish intent to sell. The packaging or quantity of drugs found in the defendant's possession may be circumstantial evidence of an intent to sell it, but only if they are inconsistent with personal use. In this case, although the arresting officer reported that the cocaine was carried in a manner consistent with street level sales, nothing else in the report indicated that the cocaine was intended for sale and not for the Defendant's personal use. The DCA remanded the case for an evidentiary hearing.
In VAZQUEZ v. STATE, No. 2D10-2641 (Fla. 2d DCA Jan. 7, 2011), the court dismissed an appeal of a motion for post-conviction relief under Fla. R. Crim. P. 3.850 which had be stricken in the trial court for an insufficient oath. The DCA reminded the trial court that a "postconviction court should advise a claimant, in circumstances involving a nonfinal order such as the one present here, that the order is 'not appealable at this time.'" Slip opinion at 2.
