FLORIDA WEEKLY APPELLATE LAW REVIEW
Florida Appellate Law Review: July 21-25 Edition.
Florida Supreme Court: No opinions this week.
Mitchell v. State of Florida:
Appellate court affirmed a life in prison sentence for defendant and ruled that it was not an illegal sentence. Because the defendant’s sentence was finalized before the U.S. Supreme Court decision in Blakely v. Washington, 542 U.S. 296, and because the Florida Supreme Court held that Blakely is not retroactive, the defendant was not entitled to have the jury determine the factors for an upward departure beyond a reasonable doubt.
First DCA reaffirmed that an indictment does not need to allege a defendant’s status as a Prison Releasee Reoffender in order for the defendant to be sentenced under the PRR rules.
Second DCA found that there was no probable cause for the Court to issue a search warrant when, at a motion to suppress hearing, the detective who completed the affidavit for the warrant testified as follows:
Court: What did you corroborate to put a connection, a nexus, between a tip and actually drug sales going on at the location?”
The appellate court also found the good-faith exception did not apply based on the same testimony.
Hatton was convicted and sentenced to a prison term of 30 years (two concurrent sentences of 30 years and 15 years). He then moved for a new trial and was convicted again, but this time the judge held his sentences of 30 and 15 years would be consecutive, not concurrent, resulting in a sentence of 45 years. Hatton then asserted ineffective assistance of counsel for his lawyer failing to inform him of the possibility of a longer prison sentence if he moved for a new trial and lost. The appellate court held that Hatton established that his lawyer was ineffective, but he was not entitled to a third trial, only to have the first 30-year sentence reinstated.
Defendant was entitled to amend his Rule 3.850 motion where he alleged a facially valid reason for post-conviction relief due to ineffective assistance of counsel (his lawyer told him to turn down a plea deal because he would “destroy” the victim at trial, which didn’t really turn out).
Appellate court held that the state could not charge the defendant with felony DUI where it could not show that the prior DUI convictions were the result of counseled pleas.
Appellate court held that a search of Ojeda’s home was voluntary where Ojeda was read Miranda, verbally agreed to the search, and signed voluntary consent forms, even though seven policemen were at his home. Notably, the appellate court found that this number was reasonable because narcotics investigations are “inherently dangerous.”
Appellate court held that the trial court erred in not dismissing a juror who, in the middle of the trial, told the court that he knew the state’s blood draw witness, did handyman work for her, and knew she had cancer. The juror did not reveal his relationship with the witness during voir dire, and thus deprived the defense from the opportunity to strike him for cause from the panel.
Trial court erred in a drug possession case permitting the state to publish a gun to the jury, and to have the arresting officer testify that he arrested the defendant for a drug charge where the gun charges had been severed from the drug possession case. Although the evidence that the police found a gun was inextricably intertwined with the drug case because it let to the initial arrest and search which produced the drugs, the state should not have gone so far as to introduce it into evidence.
Trial court did not err in allowing the state to use the testimony of a witness from a suppression hearing at trial where the defendant had the opportunity to cross examine the witness at that hearing, and the witness was murdered prior to trial. The appellate court also held that the trial court did not err in allowing the state to introduce two rap videos of the defendant.
More importantly, the appellate court held that the trial court erred in sentencing the defendant to two concurrent mandatory minimum sentences instead of consecutive where the statute under which the defendant was convicted says “The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.” F.S. 775.087(2)(d).
The appellate court held that a non-consensual stop occurred between the defendant and the police when the policeman put his hand on the defendant’s chest to see if he heart was beating rapidly, during an investigation of a convenience store robbery where the suspect fled on foot. The appellate court thus held that the trial court should have suppressed any evidence found after this stop.
The strong smell of marijuana combined with the defendant holding a cigar which was rolled while the officer was watching was enough to constitute probable cause for arrest and a search incident to arrest of the defendant.
Where the violation of probation affidavit stated that the probationer “purchased/possessed” pseudoephedrine, and the conditions of probation prohibited taking pseudoephedrine, the affidavit was incomplete and the court erred in finding that the probationer violated his probation based on this affidavit.
Trial court correctly denied a motion to dismiss based on violations of the right to a speedy trial where the defendant was arrested 22 months after the information was filed, but once represented by counsel waited nearly 5 months before asserting his right to a speedy trial and did not show any particularized evidence as to how his defense was impaired by the speedy trial violation.