In STATE v. FLEMING, No. SC06-1173 (Fla. Feb. 3, 2011), the Florida Supreme Court held that the trial courts must apply the rules in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), to resentencing proceedings that became final after Apprendi and Blakely issued, where the conviction and the original sentence were final before they issued. The Court reasoned that "(1) when a sentence is vacated, the defendant is resentenced at a new proceeding subject to the full panoply of due process rights, and (2) the decisional law in effect at the time of a de novo resentencing or before that resentencing is final applies to those proceedings and the issues raised on appeal." Slip opinion at 21.
In STATE v. DELRIO and DELGUY, No. 2D10-182 (Fla. 2d DCA Feb. 4, 2011), a sheriff's detective observed a truck at a hydroponic retail store. The detective photographed the truck, noted its license plate number, and relayed the information to the sheriff's office. Four months later another detective, who was a member of a task force investigating grow houses, noticed that the tag on the truck was assigned to a different vehicle. He went to the registered address, observed the truck outside a house, and determined that one defendant owned the truck and the other owned the house. That detective contacted the electric utility and determined that electrical consumption at the house was in the normal range. Yet, he suspected indoor marijuana cultivation. He arranged for an electric company investigator to inspect the property for signs of electricity theft. The investigator discovered a tap that allowed unmetered electricity to enter the home. The investigator relayed his findings to the task force members who were on the street. The officers entered the back yard and saw other evidence of a grow house operation. When the Defendants refused the officers' request to search the house, the officers detained the Defendants and obtained a search warrant.
The trial court concluded that the historic facts, the information that the truck was seen at the residence, and the electric company investigator's suspicions of electricity theft did not, without more, establish probable cause for issuance of a search warrant. The trial court also found that the officers' entry into the Defendants' back yard and inclusion of the officers' observations in the affidavit rendered the warrant defective.
Citing a Federal circuit case, the DCA held that the trial court correctly found that the TECO investigator had authority to enter the back yard and was not acting as a law enforcement agent. A search by a private party not acting as an agent for law enforcement does not implicate the Fourth Amendment; where electric company intended to further its own ends by private search, that motivation is not negated by dual motive to detect or prevent crime or assist police, or by presence of police nearby during the search. The DCA concluded that, ignoring everything in the affidavit concerning the observations made by officers after entering the back yard, there are still sufficient factual observations, including those of the electric company investigator, to establish probable cause for issuance of the warrant.
In STIEH v. STATE, No. 2D09-3158 (Fla. 2d DCA Feb. 2, 2011), the victim entered a hotel room occupied by the defendant and initiated a fight.
In the course of the fight, the defendant stabbed the victim. The DCA held that § 776.013(3) Florida Statutes (2007) provides that a "person who is not engaged in an unlawful activity and who is attacked in [a] place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony." The statutory presumption that a defendant has a reasonable fear of great bodily harm sufficient to justify the use of deadly force applies when "[t]he person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle." § 776.013(1)(a). The State is required to rebut the presumption beyond a reasonable doubt. Where, as here, the evidence leaves room for more than one inference of fact, at least one of which is consistent with the defendant's hypothesis of innocence, the court erred by failing to grant a Judgment of Acquittal on self-defense grounds.
In GREENWOOD and RICE v. STATE, No. 2D10-4143 (Fla. 2d DCA Feb. 2, 2011), the Defendants challenged the sufficiency of their first appearance hearing, contending that the trial court would not allow them to address certain factors set forth in Fla. R Crim. P. 3.131(b)(3). Instead of allowing the Defendants to testify under oath, the court directed them to file motions for bond reduction, at which time they would be given a much greater opportunity to present evidence so that the matter could be more carefully considered by the court. At Greenwood's first appearance hearing, the trial court heard argument from trial counsel regarding the Defendant's employment history and his status as the sole provider for his family. With regard to Rice, in denying trial counsel's request that he be put under oath to testify, the court stated, "[The] court has concerns that you might say something also to violate your Fifth Amendment right to remain silent."
The DCA held that the trial court's obligation is to hold a first appearance hearing. The court may exercise reasonable discretion in determining the appropriate amount of time for the hearing and the number of witnesses who may testify. Nevertheless, the court must at least give the defense a reasonable amount of time to respond to the State's presentation and, at the very least, must allow the defendant, upon request, to be sworn in and to briefly testify as to the relevant factors.
In HAYGOOD v. STATE, No. 2D09-4769 (Fla. 2d DCA Feb. 4, 2011), the court held that giving the erroneous standard manslaughter by act instruction (see State v. Montgomery, 39 So. 3d 252 (Fla. 2010)), is not fundamental error where the jury is also instructed on manslaughter by culpable negligence. Note Judge Altenbernd's concurring and dissenting opinion.
In JONES v. STATE, No. 2D10-2454 (Fla. 2d DCA Feb. 4, 2011), the court held that where a person is held in juvenile detention prior to his case being transferred to the criminal division of the circuit court, he is entitled to credit against a prison sentence for the time he spent in juvenile detention. Time spent in such detention is credited like time spent in county jail.
