In HODGES v. STATE, No. SC09-468 (Fla. Dec. 02, 2010), the court extensively addressed admission of collateral crime evidence, and the criteria for determination of mental retardation as a bar to the death penalty pursuant to Fla. R. Crim. P. 3.203.
In STELMACK v. STATE, No. 2D09-3354 (Fla. 2d DCA Dec. 5, 2007), the Defendant possessed "composite images which were crudely prepared by cutting and pasting a photocopy of the head of a minor onto a photocopy of an adult female. The adult in all five images is a topless nineteen-year-old model squatting with her skirt raised over her hips to lewdly expose her genitals." Slip opinion at 2. The Defendant was charged with possession of child pornography under § 827.071(5) Florida Statutes (2007). On a motion for judgment of acquittal, the Defendant argued "that the images did not constitute child pornography as a matter of law because the genitals in the images were that of an adult." Slip opinion at 3. The DCA held that reading the two provisions of the statute together, "section 827.071(5) requires that the images in question include actual lewd exhibition of the genitals by a child. There is no dispute in this case that the genitals in the images are exhibited by an adult. Thus, possession of these images is not a violation of section 827.071(5)." Slip opinion at 4. The DCA reasoned that "composite images must include actual lewd exhibition of the genitals 'by a child' in order for their possession to be proscribed by section 827.071(5). Unseemly as the images in this case may be, their possession is not proscribed by section 827.071(5) because the only sexual conduct in the images is that of an adult." Slip opinion at 7-8.
In BURKE v. STATE No. 2D08-6329 (Fla. 2d DCA Dec. 1, 2010), the Defendant was charged under § 827.03(1), Florida Statutes (2007), which makes it a third-degree felony for anyone to "knowingly or willfully abuse a child without causing great bodily harm, permanent disability or permanent disfigurement to the child." The DCA held that to determine whether the State has proved that a child was injured for purposes of a criminal conviction under section 827.03(1), "we can be guided by the definition of 'harm' in section 39.01(31).... Subsection 39.01(31)(a) suggests that the following facts be considered: 'the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted.' Injury includes, but is not limited to, willful acts that result in, for example, '[s]prains, dislocations, or cartilage damage.'" Slip opinion at 3-4. The DCA concluded that "considering the concepts in Chapter 39 in pari materia with section 827.03, it is apparent that for purposes of a criminal prosecution under the latter statute, a 'physical injury' requires something more than mild or passing discomfort." Slip opinion at 4. See also the concurring opinion of Altenbernd, J.
In CAMPBELL v. STATE, No. 2D09-708 (Fla. 2d DCA Dec. 1, 2010), the court considered downward departures from the sentencing guidelines.The DCA held that the decision to depart from the minimum sentence mandated by the Criminal Punishment Code is a two-part process. First, the trial court must decide whether it can depart by determining if there is a valid legal ground and adequate factual support for that ground. That decision will be affirmed on appeal if the valid legal ground provided by the trial court is supported by competent substantial evidence. Next, the trial court must determine whether departure is the best sentencing option for the defendant. This decision is reviewed under an abuse of discretion standard. An appellate court will uphold a departure sentence if any reason given by the trial judge is a valid reason for departure.
In WILLIAMS v. STATE, No. 2D07-3709 (Fla. 2d DCA Dec. 1, 2010), the Defendant, a convicted felon, was charged with possessing a box cutter under § 790.23, Florida Statutes (2007). The DCA held that § 790.23(1) contains two subparts. First, it is illegal for a convicted felon to have in his or her "care, custody, possession, or control" any firearm or certain other weapons. Second, it is illegal for a convicted felon to "carry a concealed weapon." In this case, the trial court gave instructions based on Florida Standard Criminal Jury Instruction 10.15(2)(a) rather than 2(b). Accordingly, the trial court instructed the jury that the offense had two elements: (1) that the Defendant was a convicted felon and (2) that after the conviction he "knowingly had in his care, custody, possession, or control a concealed weapon." The trial court gave the standard supplemental instructions on care, custody, and control, including an instruction on actual or constructive possession. It gave no instruction on "carrying" a concealed weapon.
Thus, the trial court instructed the jury on the wrong elements of the offense, over the Defendant's objection. The DCA concluded that it was up to the jury to determine beyond a reasonable doubt that the Defendant knowingly carried the box cutter as a concealed weapon, and the jury instructions simply did not give them the guidance they needed to make that determination.
