Florida Weekly Appellate Review – August 25-29 Edition

Florida Appellate Law Review: August 25-29 Edition.

Supreme Court: Back from the break with new opinions.

Deparvine v. State of Florida:

In this death penalty case, the court denied the defendant’s ineffective assistance of counsel and habeas corpus appeal. The defense attorney was not ineffective for declining to present witnesses who had given contradictory testimony.

Bailey v. State of Florida:

The defendant’s attorney was not ineffective for failing to strike one juror, failing to adequately voir dire jurors regarding pretrial publicity, or for relying on expert testimony to the exclusion of testimony of the defendant’s family and lay witnesses on the issue of mental health mitigation.

First DCA: 

Floyd v. State of Florida:

In this second degree murder case, the appellate court held that the trial court’s conflicting instructions to the jury amounted to fundamental error, reversed the conviction and remanded for a new trial. The defense argued at trial that he shot the victim in self defense, and “the jury instruction here provided that Floyd did not have to retreat before meeting deadly force with deadly force if in fear of death or great bodily harm and did have a duty to try to retreat before using deadly force if in fear of death or great bodily harm.”

Weeks v. State of Florida:

The appellate court held that Section 790.23, Florida Statutes, which prohibits the possession of a firearm by a convicted felon, is unconstitutionally vague with respect to possession of a replica of an antique firearm.

Cahours v. State of Florida:

Appellate court held that the standard jury instruction for the offense of leaving the scene of a crash involving death misstates the law with regard to the requisite level of knowledge that a crash occurred.

Howard v. State of Florida:

The trial court committed fundamental error in allowing the defendant to proceed in the sentencing phase of his trial after conviction without renewing the offer of counsel and conducting a Faretta inquiry.

Kish v. State of Florida:

The evidence was insufficient to convict a mother of three of culpable negligence for sending her children to a friend’s house where they were unsupervised until the friends came home. There was no evidence that the mother acted in grossly negligent or flagrant manner.

Second DCA: 

No interesting decisions this week.

Third DCA: 

State of Florida v. Edwards:

Appellate court held that the defendant’s confession could be admitted at trial, because the state could present circumstantial evidence of the criminal conduct sufficient to pass the corpus delicti test.

Lakechea v. Magnolia Insurance Co.:

Appellate court reversed an order transferring the case to Leon county so that the court there could substitute in FIGA for the insolvent insurer. There is no authority holding that a case has to be transferred to Leon county in order for FIGA to substitue in as the insolvent insurer.

Fourth DCA:

Roundtree v. State of Florida:

Trial court erred in admitting a police interrogation of the defendant which was mostly the police officer expressing his personal opinion of the defendant’s guilt, and the defendant denying it. The interrogation did not provoke any relevant responses from the defendant, and was inadmissible.

Baccari v. State of Florida:

Defendant’s attorney did not preserve an objection to the composition of the jury where he failed to object when the jury was sworn, and the attorney could not cure the untimeliness by addressing it with the judge later.

Brown v. Mittelman:

The defendant in an auto negligence case sought discovery of the plaintiff attorney’s business and financial relationship with Dr. Brown by seeking documents regarding other clients previously referred to Dr. Brown. Dr. Brown appealed the overruling of his objections to the discovery request. The appellate court held the defendant was entitled to the discovery, because the discovery was not overbroad and was not financially intrusive.

Fifth DCA:

State of Florida v. Bosompem:

A downward departure in sentencing after a conviction for attempted second-degree murder was not supported by competent, substantial evidence where the defendant was intoxicated during the crime. Intoxication cannot be used to justify a downward departure.

Crew v. State of Florida:

Trial court erred in denying the defendant’s request for a special “afterthought” jury instruction in a felony murder case, where the factual testimony supported the defense. Appellate court also held that the prosecutor’s comments in closing were fundamental error requiring a new trial, where the prosecutor described the defendant’s “beady crackhead eyes” and that “Christmas came early for a crackhead.”

Taylor v. State of Florida:

Statements of a witness to a police officer that the defendant was standing in the middle of the road holding a gun, and fired shots at her car were admissible under the “excited utterance” exception to the hearsay rule.

Thermidor v. State of Florida:

Trial court abused its discretion in denying a bond to defendant on a robbery with a firearm charge, where the state did not show that the proof of guilt was evident or that the presumption was great. The state’s burden of proof for a denial of bond is greater than the burden required to prove the case beyond a reasonable doubt.