In STATE v. BLAIR, No. SC09-1407 (Fla. Jun. 3, 2010), the Court held that the mere fact that a defendant fails to appear for a court proceeding does not allow the court to hold him without bond unless the court makes appropriate findings under § 907.041(4)(c) Florida Statutes.
A trial court may not commit a defendant to custody based solely on the defendant's failure to appear without determining whether conditions of release are appropriate, disapproving Ricks v. State, 961 So. 2d 1093 (Fla. 5th DCA 2007).
In SHELDEN v. STATE, No. 2D08-5102 (Fla. 2d DCA Jun. 11, 2010), the Defendant was convicted of shooting within or into a building, a second-degree felony, in violation of § 790.19 Florida Statutes (2007).
The elements of the offense are that the defendant (1) shot a firearm; (2) at, within, or into a building, occupied or not; and (3) did so wantonly or maliciously. The DCA held that the State's evidence amply demonstrated that a firearm was discharged inside the Defendant's house, thus establishing the first two elements of the corpus delicti. To establish the third element, the trial court admitted the Defendant's statements to the arresting deputy. Absent the statement, the State's evidence of the third element was wholly lacking. The trial court erred by permitting evidence of the Defendant's statements over defense counsel's objection that the State had not proved the corpus delicti.
In BROWN v. STATE, No. 2D09-262 (Fla. 2d DCA Jun. 11, 2010), the court held that absent a finding of prejudice or injustice to the State, the Defendant was entitled to a continuance to obtain private counsel of choice. A defendant in a criminal proceeding has a presumptive right to counsel of his or her choosing under the Sixth Amendment to the United States Constitution. Denying a defendant the right to counsel of his choice, without good cause, is prejudicial per se. Here the trial court abused its discretion in denying the Defendant's request for a continuance.
In McGARRAH v. STATE, No. 2D08-3262 (Fla. 2d DCA Jun. 11, 2010), the Defendant was sentenced to seventeen years incarceration following a plea of no contest to DUI manslaughter, a second-degree felony. She moved pursuant to Fla. R. Crim. P. 3.800(b)(2) in the trial court contending that her sentence was illegal because it exceeded the fifteen-year statutory maximum for the offense. The trial court eventually granted the Defendant's motion and amended her judgment and sentence, but it did so outside of the sixty-day time period set forth in the rule, rendering the amended judgment and sentence a nullity. The Defendant appealed; the DCA remanded the case for resentencing.
In KRAUTHEIM v. STATE, No. 2D09-1216 (Fla. 2d DCA Jun. 11, 2010), the court held that a defendant may properly move to withdraw an admission to violation of probation under Fla. R. Crim. P. 3.170(l). Moreover a motion to withdraw plea is a critical stage of the proceedings at which a defendant is entitled to be present and to have counsel represent him and at which an indigent defendant is entitled to court-appointed counsel. In addition a defendant is entitled to conflict-free counsel once it becomes clear that a defendant and his counsel are in an adversarial relationship with respect to the defendant's entry of his plea.
In THOMPSON v. STATE, No. 2D09-2456 (Fla. 2d DCA Jun. 11, 2010), the Defendant attempted to exercise his constitutional right to represent himself in a probation revocation proceeding. The trial court forced him to continue with appointed counsel out of a concern that the Defendant lacked sufficient facility in legal matters. The DCA held that to be error, and reversed the revocation of probation. So long as the election is made knowingly and intelligently, a criminal defendant's constitutional right to self-representation is unfettered. "The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage." Faretta v. California, 422 U.S. 806, 834 (1975).
In GEE v. STATE, No. 2D09-3877 (Fla. 2d DCA Jun. 11, 2010), the trial court deferred the Defendant's sentencing date after approving a negotiated plea of 364 days in county jail. The Defendant failed to appear on the date set for sentencing. The trial court abused its discretion by imposing the much harsher sentence of forty-eight months in prison. The DCA held: "If a defendant fails to timely appear for sentencing as required by a plea agreement, the trial court is not permitted to ignore the agreement and impose a harsher term unless the evidence supports a finding that the defendant's failure to appear was willful." Slip opinion at 2.
In MONTGOMERY v. STATE, No. 2D09-4329 (Fla. 2d DCA Jun. 11, 2010), the Defendant was sentenced for lewd or lascivious molestation in violation of section 800.04(5)(b), Florida Statutes (2008). The trial court properly imposed a sentence of twenty-five years in prison, followed by sex offender probation for the remainder of his life pursuant to § 775.082(3)(a)(4)(a)(II), Fla. Stat. (2008). However that sentence is not a minimum mandatory sentence. The legislature did not include specific language to that effect in the statute.
In DIXON v. STATE, No. 4D09-234 (Fla. 4th DCA Jun. 9, 2010), an officer, who was investigating a home-invasion robbery, knocked on the door of the Defendant's apartment. The officer had no warrant to search. The Defendant answered the door. As the officer began questioning the Defendant about the robbery, he walked into the Defendant's apartment. The officer did not ask for permission to enter, and the Defendant did not object. The DCA held that the Defendant's failure to protest the officer's entry into his apartment did not constitute consent to enter. "The government may not show consent to enter from the defendant's failure to object to the entry. To do so would be to justify entry by consent and consent by entry. This will not do." Slip opinion at 4. The State did not meet its burden of proving consent; thus the officer's entry was legal only if exigent circumstances existed at the time he entered the apartment. No exigent circumstance existed here.
In T.M. v. STATE, No. 4D09-1629 (Fla. 4th DCA Jun. 9, 2010), a sheriff's deputy entered a residential neighborhood located in a high crime area and passed two black juvenile males, one of whom was the Defendant. The deputy testified their presence was suspicious because it was 11 a.m., during school hours, and because the area where they were located had a high rate of drug sales and burglaries. A short time later the deputy again saw the same two juveniles coming from a path adjacent to a residence. Because he suspected they were either unlawfully missing school or were about to commit a burglary or drug sale, Bailey stopped the two juveniles. The juveniles did not act suspiciously or attempt to flee. The juveniles were cooperative and respectful, and there was no indication that they were carrying a concealed weapon; the deputy saw no bulges on their persons resembling a weapon. Nevertheless the deputy proceeded to pat-down the juveniles for what he termed "officer safety." The deputy attested that the basis of his fear for officer safety was that there were two of them and, therefore, he was outnumbered. However, there was no indication that either juvenile made any threatening, furtive, or nervous gestures. The deputy discovered contraband in the pat-down of the Defendant.
The DCA held that under these circumstances, the deputy did not have the requisite suspicion needed to justify the pat-down. Before patting down the Defendant, the deputy did not observe anything that resembled a weapon. The Defendant did not attempt to grab anything from his pockets. The deputy had no knowledge linking the Defendant to criminal activity involving a weapon. Therefore the DCA reversed the denial of the Defendant's motion to suppress and directed the trial court to vacate the adjudication of delinquency.
In SIMON v. STATE, Nos. 4D08-2903 and 4D08-2904 (Fla. 4th DCA Jun. 9, 2010), the Defendant sought to admit certain reputation testimony concerning the victim's propensity for violence. The DCA held that before admitting evidence as to a victim's propensity for violence, the proper predicate requires that a witness must establish that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment. Reputation evidence must be based on discussions among a broad group of people so that it accurately reflects the person's character, rather than the biased opinions or comments of a narrow segment of the community. All doubts as to the admission of self-defense evidence must be resolved in favor of the accused.
Here the witness' proffered testimony indicated that she had heard from others in the community that the victim had a reputation for being violent. On cross-examination however, the witness acknowledged that her basis of knowledge as to the victim's reputation was one brief meeting with the victim, and a remote conversation with the victim's ex-girlfriend. Until the time of trial, the witness did not know the victim's real name. Therefore the DCA held that the witness' knowledge of the victim's reputation for violence derived from too narrow a segment of the community to be sufficiently reliable.
