The Second DCA issued no opinions in the past week.
In SMITH v. STATE, No. 1D09-1960 (Fla. 1st DCA Sep. 13, 2010), a police officer testified that he observed the Defendant chewing and attempting to swallow several pieces of crack cocaine. He alerted the other officers on the scene, and together they attempted to convince the Defendant to spit out the substance, advising him that he could die from ingesting too much of the substance. One of the officers physically tried to stop him from swallowing the pieces. Another officer testified that he asked the Defendant if he had any more crack cocaine in his system out of concern that he might overdose, knowing that the officers would need to get the Defendant medical assistance if he had ingested the cocaine. Prior to the advice or rights required by Miranda v.
Arizona, 348 U.S. 436 (1966), the Defendant stated that he did not have "any more crack cocaine in him".
The DCA held that the Defendant's statement was admissible absent the Miranda warning. In New York v. Quarles, 467 U.S. 649 (1984), Court held that statements obtained without Miranda warnings are admissible when immediate questioning is necessary to secure the safety of the public. In Benson v. State, 698 So. 2d 333 (Fla. 4th DCA 1997), the court extended the Quarles public safety exception to include a private safety exception or a rescue doctrine. Here the court extended the Benson exception to the circumstances of the instant case, holding that the Defendant's argument that there appeared to have been time to administer Miranda warnings was without merit in light of the facts and circumstances of this case. The right to remain silent would be of little practical value to a defendant who becomes comatose from a drug overdose while being read his Miranda rights.
In LAVRRICK v. STATE, No. 3D09-881 (Fla. 3rd DCA Sep. 15, 2010), the DCA reversed a life sentence imposed following a VOP following a robbery when the Defendant was 16. The court relied on Graham v. Florida, 130 S.Ct. 2011 (2010), where the Supreme Court held that a sentence of life without possibility of parole violates the Eighth Amendment prohibition against cruel and unusual punishment when imposed on a juvenile.
In PERRY v. BRADSHAW, No. 4D10-3207 (Fla. 4th DCA Sep. 15, 2010), the court considered what evidence a trial court might consider at an adversary preliminary hearing pursuant to Fla. R. Crim. P. 3.133(b).
The DCA held that a trial court may not properly consider hearsay that is not within a hearsay exception when determining probable cause.
In J.M.P. v. STATE, No. 4D09-3783 (Fla. 4th DCA Sep. 15, 2010), the Defendant was charged with bringing an unloaded BB gun to school pursuant to § 790.115(2) Florida Statutes (2008). The court held that where the charged weapon is not one of those in the statutory definition, the State must prove that it is a "deadly weapon" which is a weapon likely to produce death or great bodily harm. Here the evidence was insufficient to do so.
In V.M.S. v. State, No. 4D09-1831 (Fla. 4th DCA Sep. 15, 2010), the DCA held that an amendment to the Defendant's probation requiring him to attend a specific school violated the Fifth Amendment protection against double jeopardy absent a finding that the Defendant had violated his probation.
STATE v. AVILA, No. 3D09-1431 (Fla. 3d DCA Sep. 15, 2010), the DCA held that as a hearing on a motion to vacate a plea, the Defendant has the burden to show that he was not told of the immigration consequences of his plea by the trial court.
