The next regular opinions from the Florida Supreme Court are expected 26 August 2010 following its return from summer recess.
In HARRISON v. STATE, Nos. 2D09-3556 and 2D09-3869 (Fla. 2d DCA Aug. 18, 2010), Harrison, McClendon, and Phillips were charged with attempted first-degree murder arising from a shooting in a neighborhood allegedly rife with illegal drug activity. No one was hurt, but bullet holes were found in two homes and in two vehicles. Eyewitnesses identified Harrison, McClendon, Phillips, and others as the culprits. The jury returned verdicts on lesser included offenses for Harrison and McClendon, and acquitted Phillips. The jury found that Harrison, but not McClendon, actually possessed and discharged a firearm.
Instead of focusing on the straightforward facts, the State sought to admit extensive collateral crimes evidence. That evidence included involvement of Harrison and McClendon in drug deals which had occurred in the neighborhood two weeks prior to the shooting. The State argued that that evidence was "inextricably intertwined" with the pending charges. Over objections by Harrison and McClendon, the trial court ruled that the evidence of the defendants engaging in drug or illegal activities was admissible, but evidence that the defendants were drug dealers was not. The State also sought to admit collateral crimes evidence of involvement of Harrison and McClendon in a high-speed chase and subsequent stand-off with a SWAT team two months after the shooting. The State argued that the high-speed chase and stand-off evidence should be admitted based on a "consciousness of guilt" theory. Apparently there were outstanding warrants for Harrison and McClendon before the chase. Neither Harrison nor McClendon drove the car that sped from the police. The trial court allowed admission of that evidence without elaboration.
The DCA observed that relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence. A trial court must weigh the danger of unfair prejudice against the probative value of the evidence in determining its admissibility. Under the balancing test, the trial court necessarily exercises its discretion. The same item of evidence may be admissible in one case and not in another, depending upon the relation of that item to the other evidence. The DCA opined that the trial court found the collateral crimes evidence relevant but failed to balance its prejudicial effect. The evidence was not altogether relevant and was highly prejudicial. Much of the State's case focused on the collateral crimes, especially the car chase and SWAT team encounter; the jury heard an exhaustive and unnecessarily detailed blow-by-blow recounting of the four-hour stand-off. The State stressed this evidence in closing argument to paint Harrison and McClendon as drug dealers who would do a "planned execution." The State characterized the car chase and stand-off as "that's your fingerprint and that's your DNA."
The DCA held: "We fail to see why the State seems to maintain that collateral evidence automatically renders it relevant to establish guilt for the charged offenses. The State actually jeopardizes its cases when it does so and ignores the appropriate balancing between relevance and undue prejudice. The State's case at trial should have been simple and straightforward. Several eyewitnesses identified Harrison and McClendon as the shooters. Eschewing simplicity, the State interjected numerous irrelevant and prejudicial facts. We are mindful that some evidence of the neighborhood setting and dynamics was relevant. Even some evidence related to the traffic stop was admissible to show that a gun belonging to Harrison, which matched casings found at the shooting scene, was recovered at that time. Beyond that, the collateral crimes evidence should have been excluded." Slip opinion at 4.
Nevertheless, despite the evidentiary error, the DCA was convinced beyond a reasonable doubt that the error was harmless "in light of the quality and quantity of the evidence." Slip opinion at 4.
In STATE v. WALTON, No. 2D09-750 (Fla. 2d DCA Aug. 20, 2010), the court considered in a very lengthy opinion when it is and is not critical to establish the identity of the driver for the purpose of establishing corpus delicti in a DUI case. In summary, the court held that identification of a defendant as the driver is not generally a necessary predicate to the admission of the defendant's confession. But under certain circumstances, the defendant's identity as the driver is critical to establishing that a crime occurred. For example if the defendant were a passenger and the driver were killed by his own error, then there would be no crime. In such situations the defendant's identity as the driver is a necessary part of the corpus delicti.
In JOHNSON v. STATE, No. 2D09-1189 (Fla. 2d DCA Aug. 20, 2010), the Defendant was charged with possession of a firearm by a convicted felon. The DCA held that the trial court erred by submitting to the jury, in addition to certified copies of the Defendant's felony convictions, extensive information about his prior felonies.
In ALDACOSTA v. STATE, No. 2D09-2797 (Fla. 2d DCA Aug. 18, 2010), the Defendant was convicted of felony battery. He had a prior conviction for lewd or lascivious battery. The DCA held that such as a prior conviction can not properly be used as a qualifying offense to transform misdemeanor battery into felony battery. The DCA reasoned that lewd or lascivious battery is not among the qualifying convictions expressly enumerated in the felony battery statute. Courts are obliged to construe criminal statutes strictly.
In R.F. v. STATE, No. 2D09-689 (Fla. 2d DCA Aug. 18, 2010), the Defendant was thirteen when the trial court withheld adjudication for a third degree felony and imposed juvenile probation not to exceed his nineteenth birthday. Thus the disposition imposed more than five years of probation. On appeal the Defendant argued and the State conceded that the offense was a third-degree felony that carries a statutory maximum penalty for an adult of five years in prison, and juvenile probation cannot exceed the term that the court could impose if it committed the juvenile, and a commitment may not exceed the maximum term that an adult could serve for the same crime. Nevertheless the DCA held that that limitation on the period of juvenile probation specifically applies when the court adjudicates a child delinquent, not when the court withholds adjudication of delinquency. Therefore, because adjudication of delinquency was withheld, the trial court properly imposed the probationary term until the Defendant's nineteenth birthday.
In TORRES v. STATE, No. 2D08-3861 (Fla. 2d DCA Aug. 20, 2010), the Defendant, prior to trial, had filed a motion to discharge his assistant public defender Smith alleging that the attorney was providing ineffective assistance because he failed to (1) obtain transcripts or call a witness with exculpatory evidence, (2) obtain an expert witness to explore the Defendant's physical condition, and (3) adequately communicate with the Defendant or file a motion to suppress as requested. On the day of trial the Defendant told the court that he had a conflict of interest with his attorney and that that he wanted a new attorney appointed. Instead of inquiring as to the basis for the alleged conflict of interest, the court immediately responded, "You're not entitled to another lawyer." Despite repeated entreaties, the court refused to conduct a hearing as required by Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), for addressing a criminal defendant's request to discharge court-appointed counsel, but instead proceeded under Faretta v. California, 422 U.S. 806 (1975).
The DCA held that it was clear from the transcript that the Defendant would have liked the opportunity to explain the bases for his assertions that counsel was ineffective, but the court refused to allow him to do so. Furthermore, the allegations in the Defendant's motion to discharge counsel were more than generalized complaints about trial preparation or strategy or a general loss of confidence in defense counsel. Instead he had set forth specific claims of ineffective assistance of counsel that the court refused to hear or consider.
The DCA reviewed the proper procedure for a hearing addressing a criminal defendant's request to discharge court-appointed counsel: Preliminarily, the court must determine whether the defendant's request to discharge counsel is unequivocal and, if it is, the court must ascertain the reason for the request. If the request is unequivocal and the defendant asserts counsel's ineffective assistance as the reason for the request, the court must conduct an inquiry to determine if there is reasonable cause to believe that court-appointed counsel is not rendering effective assistance and, if so, appoint substitute counsel. If the court determines there is no such reasonable cause, then it need not pursue further inquiry. If the defendant pursues his request to discharge counsel, the court must inform him he is not entitled to court-appointed substitute counsel and that he must represent himself. If the defendant seeks to represent himself, the court must conduct a Faretta inquiry to determine that the defendant is knowingly and intelligently waiving his right to counsel.
In STANLEY v. STATE, No. 2D09-3736 (Fla. 2d DCA Aug 18, 2010), the Defendant appealed from an order to modifying his probation to require all future restitution payments to be made to the Florida Crimes Compensation Trust Fund rather than to the actual victim. The DCA was not completely certain that the Defendant was harmed by the order, but held that the irregularities associated with the order are substantial and the entities that may have been harmed by the order have had no notice of the order. Therefore the DCA reversed.
In HANKINS v. STATE, No. 2D09-5056 (Fla. 2d DCA Aug. 18, 2010), the narrow issue presented was whether a specific offense under New York law could serve as the predicate offense for Prison Releasee Reoffender sentencing under § 775.082(9)(a) Florida Statutes (2002). It was apparent from the record that the trial court and others who examined the case had assumed that this issue could be determined based upon a factual description of the acts of the Defendant in New York, rather than upon the elements of the New York offense. The DCA held that to be error. Under Florida sentencing law, the question of whether the offense in New York qualified the Defendant for PRR sentencing is determined by an examination of the legal elements of the New York offense. The court reasoned that in the context of criminal scoresheets, the Florida Supreme Court has held that only the elements of an out-of-state conviction, and not the facts underlying the conviction, can be considered in determining whether the out-of-state conviction is analogous to a Florida offense. The Supreme Court has counseled that in making comparisons between out-of-state and Florida offenses, the statutory language must be strictly construed in favor of the defendant. Especially in light of the statutory requirement that criminal statutes be construed strictly in favor of the defendant the court concluded that the out-of-state offense referred to in § 775.082(9)(a) must be interpreted to require that the elements of the out-of-state offense would be sufficient for a conviction under a Florida statute that is punishable as a felony.
In JONES v. STATE, No. 2D10-1172 (Fla. 2d DCA Aug. 18, 2010), the DCA considered a summary denial of a motion for return of property pursuant to § 705.105(1), Florida Statutes (2009). The motion did not describe the crimes with which the movant was charged or convicted but recites only that the motion was timely as it was filed within sixty days of the issuance of the mandate on direct appeal. The circuit court issued an order summarily denying the motion without any explanation or record attachments to refute the claim that the movant is entitled to return of his property.
The DCA reviewed the proper procedure for resolution of such motions by trial courts. The circuit court should have first made a decision on the facial sufficiency of the motion. "A facially sufficient motion for return of property must specifically identify the property and allege that it is the movant's personal property, that the property is not the fruit of criminal activity, and that the property is not being held as evidence." Wilson v. State, 957 So. 2d 1264, 1265 (Fla. 2d DCA 2007; Justice v. State, 944 So. 2d 538, 539 (Fla. 2d DCA 2006). If the motion is facially sufficient, several courses of action were available. The court could have denied the motion on its merits with attachments to its order that conclusively refute the movant's entitlement to return of the property, perhaps after ordering a response from the State. Alternatively, the court could have granted or denied the motion after holding an evidentiary hearing. The DCA held that in any event, a bare summary denial, without explanation or attachments, was improper.
