In GREENFIELD v. DANIELS, No. SC09-167 (Fla. Nov. 24, 2010), the Court presented a succinct summary of the critical first step of statutory interpretation under state law as it considered who a person's father may be for the purpose of the Florida Wrongful Death Act: "The questions presented in this case are pure questions of statutory law.
Thus, this Court's review is de novo. Kephart v. Hadi, 932 So. 2d 1086,1089 (Fla. 2006). In this analysis, legislative intent is the polestar by which the Court is guided, and '[t]o discern legislative intent, a court must look first and foremost at the actual language used in the statute.' Larimore v. State, 2 So. 3d 101, 106 (Fla. 2008).
Accordingly, we look first to the actual text of the statutory provisions at issue. '[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.'
Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)); see also Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008). 'If, however, the language of the [statute] is ambiguous and capable of different meanings, this Court will apply established principles of statutory construction to resolve the ambiguity.' Barco v. School Bd. of Pinellas County, 975 So. 2d 1116, 1122 (Fla. 2008) (citing Gulfstream Park Racing Ass'n, Inc. v. Tampa Bay Downs, Inc., 948 So. 2d 599, 606 (Fla. 2006))." Slip opinion at 8.
In STATE v. C.D.M., No. 2D09-4236 (Fla. 2d DCA Nov. 24, 2010), the Defendant was a passenger in a vehicle which was stopped by a sheriff's deputy for a traffic violation. The deputy asked the driver to step out of the vehicle and told the driver that he could smell marijuana coming from his person and coming from the vehicle. The deputy testified that he told the driver "I believe that there might be marijuana inside, and if you're willing, go ahead and voluntarily, you know, if you're willing to voluntarily give it up, you know, go ahead and do so." The driver then walked back to his vehicle and told the Defendant, "Hey, give me it." The Defendant then gave the marijuana to the driver; the Defendant was charged with possession. The Defendant's notion to suppress the marijuana was granted by the trial court and the State appealed.
The DCA held that the deputy's interaction with the driver did not transform the driver into an agent of the police. To establish that the driver was acting as an agent of the police, the Defendant was required to show that the deputy was aware of and acquiesced in the driver's actions. The necessary level of governmental participation involves some amount of knowledge and acquiescence in the search. Here the deputy testified that when he asked the driver to get the marijuana from his vehicle, he had no idea where it was located and he was not attempting to gather evidence against the Defendant. There was no evidence that the deputy knew that the driver was going to ask the Defendant for the marijuana, much less that he acquiesced in the conduct. The driver testified that he asked the Defendant for the marijuana because he thought they would get off easier if he gave it to the deputy. In fact, neither the Defendant nor the driver was arrested at the time and they were allowed to go home after the traffic stop.
The DCA concluded that the trial court erred in finding that the driver was an agent of the police because the deputy did not ask the driver, or even know that he was planning, to tell the Defendant to hand over the marijuana.
In FLOURNOY v. STATE, No. 2D09-4177 (Fla. 2d DCA Nov. 24, 2010), the Defendant made an unequivocal request to represent himself. The trial court failed to conduct the inquiry required by Faretta v. California, 422 U.S. 806 (1975). The State argued that such inquiry would have been futile because the Defendant failed to demonstrate during the pendency of his trial that he had the ability to exercise the necessary restraint to represent himself. The DCA held that the seeming futility of a trial court's Faretta inquiry does not eliminate the requirement that a hearing be held to enable the trial court to make the appropriate determination of whether a defendant can represent himself. Therefore the failure of the trial court to hold a Faretta hearing resulted in per se reversible error; review by the DCA is not amenable to a harmless error analysis.
In TELLO-LUGO v. STATE, No. 2D09-4770 (Fla. 2d DCA Nov. 24, 2010), the DCA reversed a conviction for three counts of lewd or lascivious battery because an alternate juror had been present during jury deliberations. Fla. R. Crim. P. 3.280(a) provides that "an alternate juror who does not replace a principal juror shall be discharged at the same time the jury retires to consider its verdict." That rule is mandatory, not permissive. Therefore, a defendant is entitled to a mistrial upon timely motion when an alternate juror is present during jury deliberations.
