In HORNE v. STATE, No. 2D09-4020 (Fla. 2d DCA Mar. 25, 2011), prior to advising the Defendant of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966), detectives showed the Defendant a picture of the victim, played a recorded statement by the Defendant's brother indicating the Defendant admitted to the crime, and showed the Defendant a recovered firearm. The Defendant then confessed that he shot the victim. The trial court denied the Defendant's motion to suppress because his statements were not made in response to any question. The DCA held "that the detectives' pre-Miranda conduct constituted custodial interrogation because the detectives should have known their actions were reasonably likely to elicit an incriminating response" from the Defendant because "the detectives' course of action amounted to the functional equivalent of questioning." Slip opinion at 2, 3. Nevertheless the DCA affirmed the conviction based on harmless error.
In RATLIFF v. STATE, No. 2D09-4852 (Fla. 2d DCA Mar. 25, 2011), the DCA reversed a conviction for keeping a public nuisance pursuant to § 823.10 Florida Statutes (2008). The building in question was a dwelling house. The DCA reasoned that each statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts. A court is required to consider the context of the entire subsection in order to ascertain legislative intent. The second portion of § 823.10(1), which criminalizes keeping or maintaining a public nuisance, mentions only a "warehouse, structure, or building," while the first portion of the statute, which explains what constitutes a "public nuisance," lists "store, shop, warehouse, dwelling house, building, structure, vehicle, ship, boat, vessel, or aircraft, or any place whatever." That indicates that the legislature intended to consider "dwelling house," "building," and "structure" separately. Because the statute prohibits the public nuisance in a "warehouse, structure, or building" and it is undisputed that the subject of this case was a dwelling, the statute did not apply to the Defendant's conduct.
In A.S.B. v. STATE, No. 2D09-5362 (Fla. 2d DCA Mar. 25, 2011), the DCA held that a juvenile disposition order that commits a juvenile for an indeterminate period of time no longer than a specific birthday or the maximum term of imprisonment is error because such language could allow the sentence to be construed as running longer than the statutory maximum provided for the particular offense. The DCA reasoned that when a juvenile is young enough that the statutory maximum for an offense will expire before the juvenile reaches majority, a disposition order that appears to permit the Department of Juvenile Justice to choose between retaining jurisdiction until either the statutory maximum for the offense or the child's twenty-first birthday is ambiguous because it could be construed as extending commitment past the statutory maximum and until the specified birthday. In such circumstances a trial court must enter a disposition order that specifies the period of commitment actually imposed by the court.
In SNYDER v. STATE, No. 2D09-5797 (Fla. 2d DCA Mar. 25, 2011), on a plea of no contest to burglary of a dwelling and two counts of grand theft, the Defendant was sentenced as a youthful offender to a term of ten months incarceration followed by five years probation for the burglary and two concurrent terms of ten months incarceration followed by four years probation for each count of grand theft. The Defendant violated his probation and was then sentenced to three concurrent terms of sixty months incarceration with credit for time served, followed by one year of probation. The DCA held that the sentence imposed for the burglary is a legal sentence. However the concurrent sentences for the two counts of grand theft exceed the five-year statutory maximum for a third-degree felony. The DCA directed the trial court to strike the one-year period of probation as to the grand thefts, leaving the concurrent five-year terms of imprisonment with credit for time served as the total sentence for these offenses.
PIFER v. STATE, No. 2D09-5550 (Fla. 2d DCA Mar. 25, 2011), on remand following appeal from denial of a motion to correct an illegal sentence, the Defendant was resentenced by a successor judge without a showing that a substitution of judges was necessary. The Defendant did not object. The DCA held that resentencing by a successor judge without a showing of necessity, if error at all, was an error in the sentencing process, not in the sentencing order. As such, the Defendant's rule 3.800(b)(2) motion could not preserve this claim of error. It can be reviewed only for fundamental error. Here the Defendant did not show that the resentencing process, which was conducted by the successor judge, was equivalent to a denial of due process. Nor did the resentencing process offend a fundamental constitutional right that would mandate reversal without regard to its effect on the outcome.
In RAWLS v. STATE, No. 2D10-3659 (Fla. 2d DCA Mar. 25, 2011), the DCA reversed denial of the Defendant's second motion for post-conviction DNA testing, holding that the law now allows postconviction DNA testing in cases where a defendant has entered a plea of guilty or nolo contendere to a felony before July 1, 2006. The DCA cited § 925.11(1)(a)(2), Fla. Stat. (2010) and several Florida DCA opinions.
