In JACKSON v. STATE, No. SC09-2383 (Fla. Feb. 17, 2011), the Court held that when a departure sentence is reversed on appeal, nothing in the Criminal Punishment Code (§§ 921.002 - 921.0027 Florida Statutes) precludes the imposition of a downward departure sentence on resentencing following remand. If a trial court resentences a defendant to a downward departure sentence on remand, the trial court still must ensure such sentence comports with the provisions of the Criminal Punishment Code.
In HERNANDEZ v. STATE, No. SC09-2225 (Fla. Feb. 17, 2011), the Defendant, then a fourteen-year-old middle school student, was indicted for first degree murder and attempted first degree murder. The Eleventh Judicial Circuit trial judge in Miami granted the Defendant's motion for a change of venue due to pre-trial publicity and transferred the case to the Ninth Judicial Circuit in Orange County. The trial was held in Orlando before the original circuit judge from Miami. The Miami prosecutor represented the State, and the Defendant was represented by private counsel. The Defendant was convicted; the next day the trial judge entered an order transferring venue back to Miami. The Defendant filed a notice of appeal with the circuit court in Miami, seeking review of the judgment and sentences in the Third District Court of Appeal, which sits in Miami. Subsequently, the Defendant filed a motion in the Third District Court requesting that his appeal be transferred to the Fifth District Court of Appeal. He argued that because his trial was held in Orlando, the Fifth District Court, which has jurisdiction over the Ninth Judicial Circuit in Orange County, was the proper court of appellate jurisdiction.
On certified conflict review, the Supreme Court held that appellate jurisdiction follows the jurisdiction of the trial court. Appellate jurisdiction is determined at the time the notice of appeal or petition for extraordinary writ is filed. In determining appellate jurisdiction, the relevant issue is not where the defendant was tried and convicted, but rather whether a transfer of venue was complete at the time the notice of appeal was filed. In the instant case, despite the fact that the Defendant was tried and convicted in the Ninth Judicial Circuit in Orlando, the trial judge entered an order returning venue to the Eleventh Judicial Circuit in Miami immediately after the trial was completed. Once that order was issued and the court file was received by the clerk of the Eleventh Circuit, the Ninth Circuit was divested of authority to take any action at the trial level. Likewise, the Fifth District Court was divested of appellate jurisdiction, which thereafter rested with the Third District Court for all subsequent matters in the case. Therefore review of the judgment and sentences in this case is within the appellate jurisdiction of the Third District.
Thus appellate jurisdiction is determined by what trial court has jurisdiction at the time of filing an appeal. Following a change of venue, once a case is transferred back to the original county, the appellate district for the county in which the trial was conducted loses jurisdiction over the matter.
In HENDLEY v. STATE, No. 2D09-2890 (Fla. 2d DCA Feb. 18, 2011), the Defendant moved to suppress the warrantless seizure of his prescription records from a pharmacy by law enforcement officers. The DCA held that § 893.07(1)(b) Florida Statutes (2008) requires persons engaged in the dispensing or distribution of controlled substances to "maintain, on a current basis, a complete and accurate record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him or her." Section 893.07(4) further provides in pertinent part that "[e]very inventory or record required by this chapter, including prescription records, shall be maintained... and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances." Here the DCA recognized that individuals have a privacy interest in their prescription records, but concluded that the State has a compelling competing interest in regulating controlled substances and that § 893.07(4) is narrowly tailored to accomplish that goal. Therefore, under these circumstances, a law enforcement officer could properly obtain the Defendant's prescription information from a pharmacy. Therefore the circuit court properly denied the Defendants's motion to suppress under the authority of § 893.07(4).
The DCA also held that for a defendant to have standing to challenge a search, he or she must show a proprietary or possessory interest in the area of search or that there are other factors which create an expectation of privacy which society is willing to recognize as reasonable. Here the Defendant filled a prescription for a controlled substance at a pharmacy which was purportedly written by a physician whose name was misstated on the prescription. Therefore the DCA held that the prescription was indisputably fraudulent. The DCA analogized to the lack of a reasonable expectation of privacy in stolen property, reasoning that the passing of fraudulent prescriptions obviously contributes to the illegal sale and to the abuse of controlled substances, and concluding that society would not recognize as reasonable any asserted expectation of privacy in a fraudulent prescription. The Defendant did not offer any evidence to establish that he had a reasonable expectation of privacy in the prescription.
Therefore he did not have a reasonable expectation of privacy in it, and thus lacked standing to challenge the seizure.
In STATE v. GARNER, No 2D10-582 (Fla. 2d DCA Feb. 16, 2011), the Defendant was charged with resisting arrest with violence, but a jury found him guilty of the lesser-included offense of resisting arrest without violence. The trial court granted the Defendant's motion for judgment of acquittal after the verdict based on the insufficiency of the evidence to support the lesser-included offense. The State appealed. The DCA held that when a defendant seeks an instruction on a lesser included offense and is found guilty of the lesser offense, the court must review the evidence to determine if it is sufficient to support the greater offense, not the lesser included offense. The DCA reasoned that by requesting the instruction on the lesser-included offense, a defendant waives any argument as to the sufficiency of the evidence as to the lesser offense. The DCA reversed and remanded the case for the trial court to reinstate the conviction for resisting arrest without violence.