Notable Recent Cases in the 5th District Court of Appeals

In Boaz v. State, the 5th DCA reversed on the trial court’s failure to conduct a Nelson hearing (to establish grounds to discharge and replace counsel after deficient performance); failure to hold hearing was error where defendant had alleged specific instances of deficient error, and “open and voluntary” nature of guilty plea could not render error harmless.

Note Sean Wagner’s interesting commentary on exploiting the Nelson/Faretta procedures to replace counsel even though counsel’s performance was not deficient here:

In Bainter v. State, the 5th DCA reversed the denial of a motion to suppress, finding that the defendant’s subjective reasonable expectation of privacy gave 4th Amendment right to not have police enter fenced property posted with “No Trespassing” signs through open gate.

In Collins v. State, the 5th reversed based on prosecutorial misconduct during closing argument.  Although counsel did not object at trial, the unsupported assertion that the defendant had pressured the victim to testify favorably rose to the level of fundamental error, and warranted reversal despite counsel’s failure to preserve the error.

Pro se appellant Jason Scott Downs won a nice procedural victory for postconviction review.  The 5th DCA found that a recent amendment to Rule 3.850 (here, the two-year limitations period added June 30, 2011) did not apply retroactively, but only began to run on the effective date ; thus, Mr. Downs’s petition challenging his 2001 conviction was timely filed because the limitations period began to run on June 30, 2011, not the date of his conviction and sentence.

In Heilman, the 5th DCA held that, as a matter of statutory interpretation, a corrections officer was entitled to assert the stand-your-ground defense with respect to an assault charge based on an altercation with an inmate. Note that, because stand your ground is a defense to prosecution rather than merely liability, review here came on a writ of prohibition directly from the pretrial order denying the defendant’s defense.

In Medina, the 5th DCA reversed a summary denial of a Rule 3.801 motion for jail credit because the trial court did not give Mr. Medina an opportunity to amend the facially insufficient motion.

In Mann v. State, the 5th reversed on a jury instruction issue where the state did not establish harmlessness of erroneous instructions.  Here, where the defendant was charged with stabbing the victim and the victim contended that the defendant had attacked his wifes cat, the court erred by giving a jury instruction on whether victims use of force was justified and thereby creating an improper presumption that the victim was provoked.  Victim was not on trial, rendering his right to use force irrevelvant; moreover, other jury instructions adequately conveyed limits on defendant’s invocation of the right to self defense.

In Melendez v. State, the 5th vacated two of defendants three convictions.  The conviction for grand theft was dismissed on double jeopardy grounds owing to the conviction for trafficking in stolen goods; because the objection had not been raised at trial, the lesser conviction (3d degree felony grand theft) was vacated.  A robbery conviction was also vacated where trial court permitted the prosecution to exceed the necessary scope of cross-examination and present testimony from detectives regarding confession of non-testifying co-defendant; the error was not harmless based on the circumstantial and not compelling nature of the other evidence.

In Moore v. State of Florida, up on certiorari review of the trial courts order denying a motion to depose members of a Child Protection Team, success was achieved despite dismissal of the petition.  The issue here is the unofficial practice of the Ninth Circuit in requiring a court order for discovery from the Department of Children and Families due to the confidentiality concerns.  Observing that no such requirement existed in the law, the 5th DCA held that the defendant nevertheless had not established uncurable prejudice because the trial court had not issued a final order denying the discovery.  The 5th did, however, strongly encourage the lower court to reconsider its position that written interrogatories should be submitted along with such a motion, or in the alternative grant the motion for deposition after reviewing the interrogatories.

In the unfavorable decision Hampton v. State, the 5th receded from its earlier holding in Davis v. State, 95 So. 3d 340 (Fla. 5th DCA 2012) (holding that conviction for conspiracy to traffic in drugs required proof that the conspirators intended to commit the same act specific illegal act, precluding liability for a single buy-sell transaction).  The Court explained that the cases it relied on in Davis related to charges for conspiracy to purchase, not the alternative-conduct charge of trafficking. Thus, a single buy-sell transaction established a mutual conspiracy to traffic drugs.

The Defendant in Simplice v. State was able to obtain resentencing before a different judge where the original judge participated in plea discussions, offering a 15.25 year term; upon defendants conviction at trial, the judge imposed a total sentence of 40 years.  This 262% increase (which was not explained by the court) created a presumption of vindictiveness which the state had failed to rebut.  Because vindictiveness is a fundamental error, trial counsel’s failure to raise the issue did not forfeit appellate review.

The 5th reversed on double jeopardy grounds convictions for kidnapping and false imprisonment committed during the same criminal episode in Jones v. State.

In Wahid v. State, the 5th reversed a forfeiture award with respect to certain vehicles, holding that forfeiture was not appropriate because (1) property connected to or derived from proceeds of violations of gambling laws was not necessarily forfeitable; and, (2) the state had not shown that the vehicles were used as instrumentalities in the commission of a felony.

In Pylant v. State, the 5th reversed a summary denial of a 3.850 motion; the trial court should have held a hearing on the issue of whether counsel affirmatively misadvised defendant that, on sentence for violation of parole, the DOC would give credit for 547 days of gain time.  The acknowledgment at a plea colloquy that no promises have been made is insufficient to conclusively rebut a claim of affirmative misadvice.

In Dawes v. State, the 5th affirmed the denial of a motion to dismiss based on failure to timely charge a defendant under the Interstate Agreement on Detainers Act (IADA); defendants one-year Massachustts sentence, served in a county jail, was not a penal or correctional institution under the Act, rendering the 180-day period in the Act inapplicable.

In Reidy v. State, the 5th remanded a 3.850 motion for further proceedings after summary dismissal of claim that attorney incorrectly informed petitioner that he would lose advantage of first and last closing argument if he testified (under the law at the time, defendants were entitled to first and last closing argument unless they presented evidence other than their own testimony) and that his trial attorney committed ineffective assistance by opening the door to otherwise inadmissible hearsay statements.

In Potts v. State, the 5th held that the lower court erred in revoking probation when, after the initial sentence was pronounced, it added a requirement that defendant complete a drug program, then revoked probation on the illegally added condition.

In Barker v. State, a writ of habeas corpus was granted and the 5th ordered the immediate release of a prisoner who had been sentenced to a probationary split sentence but did not receive credit for incarceration on the initial sentence; "A defendant sentenced to a probationary split sentence who violates probation and is resentenced to prison is entitled to credit for all time actually served in prison prior to his release on probation unless such credit is waived. Mann v. State, 109 So. 3d 1202, 1203 (Fla. 5th DCA 2013)"


© Gray Proctor 2016