IMG_1930A recent 2d District case affirmed the lower court’s denial of eight of a defendant’s claims, while reversing and remanding for the court to provide the defendant an opportunity to amend another claim. The defendant’s facially insufficient claim concerned his decision not to testify at trial and whether he had waived the right to claim ineffective assistance of counsel concerning that right.

In this case, Anthony Riggins was charged with one count of aggravated battery with a firearm and one count of shooting at or into a dwelling. Mr. Riggins presented an alibi defense at trial, supported by witness testimony. He elected not to testify in his own defense. He was convicted as charged.

Mr. Riggins moved for post-conviction relief and alleged ineffective assistance of counsel. He claimed that his trial counsel failed to properly advise him concerning his right to testify, and his decision not to testify was therefore not made knowingly, intelligently, and voluntarily.

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file000106872276In a recent case before the 2d District Court of Appeal, the court agreed that the State failed to prove a juvenile’s involvement as a principal to burglary. The defendant appealed following a withheld adjudication for burglary of an unoccupied structure. In this case, the defendant was accused of involvement in the burglary of a portable storage unit. The storage unit was located in the fenced backyard of a vacant house. On the day before the crime, the homeowner visited the property, and the storage container was intact. The next evening, a neighbor spied three young men walking into the victim’s yard, headed towards the storage container. The neighbor heard a loud bang and called 911. While waiting for the police, the neighbor saw two of the men going in and out of the container. The neighbor did not see the defendant enter the container, nor did he see any of the men take anything.

After about seven minutes, the young men jumped over the fence and away from the storage unit. The police responded and stopped the three men a short distance away, and the neighbor identified the defendant.

At the close of evidence, the defendant moved for a judgment of dismissal based on his claim that the evidence showed only his presence at the scene. The juvenile court disagreed and ruled that he acted as a lookout and was guilty as a principal. The defendant appealed, renewing his argument.

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Statutes of limitations are deadlines for filing a lawsuit.   In criminal cases, a prosecutor cannot charge someone with a crime committed more than a certain period of time in the past. In a recent case, the 2d District Court of Appeal addressed the statute of limitations for prosecuting a crime of leaving the scene of a car accident that results in death or injury.   The defendant, Mr. Escalante, sought a writ of prohibition to prevent the trial court from moving forward with his prosecution. He argued that the statute of limitations, or time period for bringing the charges, had expired.

In this case, the limited record before the court included allegations that in September 2005, Mr. Escalante struck a parked car. That struck car was parked in front of a parked truck, and at the time of the accident, a man had been standing between the two parked vehicles. He was fatally injured, and allegedly Mr. Escalante fled the scene. Months later, the sheriff obtained a warrant for Mr. Escalante’s arrest, charging him with leaving the scene of a crash involving death or injury.


More than six years later, Mr. Escalante was arrested and charged with leaving the scene of a crash involving death as a first-degree felony, later amended to a second-degree felony. Mr. Escalante filed a motion to dismiss and an amended motion to dismiss, arguing that the statute of limitations for the second-degree felony had expired, and that even if the State could establish it was entitled to the three-year tolling period, the statute of limitations would still have expired.

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A recent 2d District Court of Appeal case recently addressed whether items found during a non-criminal search can result in a criminal prosecution.  Public policy promotes the ability of law enforcement to place dangerous or seemingly dangerous individuals into protective custody. But in the course of doing so, the courts must address what happens to items discovered during inventory searches of their persons.

In this case, Mr. White appealed his judgment and sentence for possession of ammunition by a convicted felon. Procedurally, the trial court had denied his motion to suppress, and he then entered a plea. He was sentenced to four years’ imprisonment, followed by six years’ probation.


On appeal, Mr. White argues that the contraband discovered during a civil detainment should not be used to prove a criminal charge.  In this case, a citizen called the police, concerned about a man (Mr. White) lying in the road. A deputy responded to the call and located Mr. White, lying with part of his body on the road, and his backpack next to him. Mr. White did not initially respond to the officer and was unable to get up. He appeared confused and smelled of alcohol.

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Search and seizure cases are specific to the circumstances, meaning that small details can determine an outcome.  In a recent case before the 2d Court of Appeal, the court ruled that the trial court should have granted the defendant’s motion to suppress, based on the facts at hand.  Procedurally, the defendant, Mr. Robinson, appealed a withhold of adjudication and a three-year probation term for the offense of manufacturing marijuana, a violation of Florida law. A withold of adjudication means that the court does not convict the defendant. Instead, the defendant consents to a term of probation. Upon completion of probation, the court cannot sentence the defendant for the offense. Here, the court imposed Mr. Robinson’s withhold of adjudication after a plea, following the denial of his motion to suppress.

Mr. Robinson’s motion to suppress was based on the circumstances surrounding the detectives’ entry of his property without a warrant, or Mr. Robinson’s permission.  He lived on a semirural homestead, surrounded by a chain-link fence, which was enclosed by a gate with a “no trespassing – violator will be prosecuted” sign and a “beware of dog sign.”  Additionally, Mr. Robinson’s mailbox was accessible from outside the fence, so the mailman did not need to enter the property.

Chain link fence against a deep blue sky

The appellate court held that the detectives could not enter the property without a warrant or permission.  Furthermore, the detectives could not enter the property to conduct a knock and talk.  Nor could the detectives pursue a consensual encounter with Mr. Robinson without first obtaining his permission to enter the property.  In reaching this conclusion, the court relied on the specifics of this case. The private nature of the house included the fence, the signage, and the accessibility of a mailbox outside the fence.

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The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution and the Double Jeopardy Clause in article 1, section 9 of the Florida Constitution prohibit a person to be subjected to multiple prosecutions, convictions, and punishments for the same offense. In a recent 2d District Court of Appeal decision, the court held that a defendant who pled guilty to possessing a controlled substance and was placed in jeopardy cannot then be tried for the offense.


In this case, Mr. Hutto was issued a Pasco County ordinance citation for possession of illicit synthetic drugs, specifically synthetic marijuana. Mr. Hutto paid the citation, and in doing so he pled guilty or no contest. Then, an information was filed by the State of Florida, charging Mr. Hutto with possession of a controlled substance. This information was based on the exact same substance, the marijuana, he had already pled guilty to possessing. Mr. Hutto alleged a double jeopardy violation and moved to dismiss the information. His motion was denied, and he challenged the circuit judge’s jurisdiction based on the Double Jeopardy Clauses of the U.S. and Florida Constitutions.

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After a conviction of a crime, the trial court sentences the defendant. In Florida, felony convictions are determined through the use of a “scoresheet,” a document completed by the State Attorney. While the scoresheet is significant, a criminal sentence depends on many factors, and the trial judge may depart from the guidelines at their discretion.  However, certain considerations, including a defendant’s failure to show remorse during trial, are constitutionally impermissible during sentencing because they violate due process. In a recent case before the 2d District Court of Appeal, the court held that a fundamental error and a denial of due process occurred during sentencing when the trial court expressly considered the defendant’s failure to show remorse.mconnors

In this case, the defendant, Mr. Williams, appealed his judgments and sentences for sexual battery with a deadly weapon and robbery with a weapon, a lesser-included offense of robbery with a firearm. His criminal punishment scoresheet indicated a minimum prison sentence of 14 years and a maximum sentence of life. Mr. Williams requested the minimum allowable prison sentence.

Rejecting Mr. Williams’ request for the minimum allowable prison sentence, the trial court commented on the overwhelming evidence against him and his implausible defense. The trial court stated, “[T] hen you stand before this court and say in the face of the evidence which is overwhelming that you’re not guilty, you have absolutely no remorse whatsoever. [] And that is more of an impact on this court’s reasoning for the sentence that I’m about to impose than any other reason.” Mr. Williams was sentenced to life in prison on the sexual battery charge, followed by 30 years in prison for the robbery.

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Evidence of a crime must be obtained lawfully, without violating the rights of the accused. In a recent 2d District Court of Appeal case, a search and seizure was held lawful when two officers handcuffed a suspect and detained him until a citizen informant arrived to identify him. The detention was reasonable, according to the court, and the evidence obtained during and after the search and seizure admissible.


In this case, two police officers responded to a BOLO – “be on the lookout” – report issued from details provided by an informant who phoned 911 and described a crime in progress. Someone was breaking into a work truck, carrying a white bucket, and driving a newer-model white vehicle. The officers located a parked vehicle matching the description in the BOLO and saw a man crouching behind it, in a driveway. They drew their weapons and repeatedly warned him to rise and show his hands. The man stood, and the officers immediately noted that he matched the described perpetrator in the BOLO. They handcuffed him, read him his Miranda rights, and questioned him as they waited for the eyewitness informant to arrive. The informant finally arrived and identified this man as the person he had seen breaking into a vehicle.  Additionally, the officers saw, through the open windows of the suspect’s car, a white bucket and several tools in the backseat. The suspect was arrested and charged with burglary of an unoccupied vehicle, a third-degree felony.

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A conviction for a crime involving property damage often includes a restitution order, an amount that must be paid to the victim. In a recent 2d District Court of Appeal restitution case, a victim’s testimony as to costs was inadmissible hearsay because it was not based on her personal knowledge. While hearsay may be used at a restitution hearing to establish the value of damaged items, in this case there had been an objection to the evidence, and so it could not be used to show the amount of loss.

Michael Allen pled guilty to grand theft of a motor vehicle, and he was placed on probation. As a condition of his probation, he was ordered to give restitution. A restitution hearing was held to determine how much Allen owed.

During the restitution hearing, the victim testified that her Coach-brand purse and wallet were inside the stolen vehicle.  She also testified that in the process of committing the crime, her vehicle had been damaged.

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In our practice we hear from clients all the time that the police did not read them their rights, meaning Miranda rights, when they are arrested.  Contrary to every television show and most people’s belief – the police don’t have to read you your rights in all arrests.  The police only read you your rights when:

  1. You are in custody – that means physically not free to leave, handcuffed, in an interrogation room, in the back of a police cruiser, etc.

AND – AND – AND – AND (not to be confused with OR)

2.  They ask you questions.

Therefore, if you are merely being arrested and no one asks you anything – Miranda rights do not apply.  OR If you are not in custody and you volunteer information, or they ask you questions; Miranda rights do not apply.


So in sum – there must be two events present – CUSTODY and INTERROGATION.


So what happens if you remain silent through any police questioning whatever the circumstances – GOOD FOR YOU.  That’s what you should do.



If you are stopped by the police on the street, at your house, in your car – you must give the police your name and identification if you have it – BUT THAT’S IT.  You are not required to do anything else.

In a recent first degree murder case out of Palm Beach County, Florida; a woman was on trial for shooting her husband.  When the police arrived at the house, she was sitting in her son’s car and made no response to the officer’s questions of whether she needed anything or would like a bottle of water.  She was not yet under arrest (or in CUSTODY) nor were those questions likely to be confused with an interrogation.  During her trial, she choose not to testify – yet the prosecutor said on several occasions, including closing argument, that because she said nothing, this concluded she was guilty since an innocent person would have protested their innocence.  Ultimately she was convicted of murder and sentenced to life and currently resides in the Lowell Correctional Facility.

She appealed her conviction, arguing that the prosecutor could not comment on her PRE ARREST silence, since she never testified at trial.  If she had, and had said something contrary to her pre or even post arrest statements, this could be used against her to “impeach” her trial testimony.  But she didn’t testify and therefore any comment on her silence could not be used against her.  (Some courts including the US Supreme Court have distinguished this from POST arrest testimony and the prosecutors ability to comment which is a blog for another day – )

The Fourth DCA overturned her conviction and said that the prosecutors comments on Mrs. Horwitz’s silence were improper and have remanded the case for a new trial.  Note that just because there is error in a trial the appeallate courts do not have to grant a new trial – only when the error is “harmful” meaning that the error was so severe that it potentially caused the jurors to be swayed by the error.  In some cases, not this one, but some, the evidence is SO OVERWHELMING that regardless of the error, the courts do not grant a new trial.  But in Mrs. Horwitz’s case, she’s getting a new trial – if she’s convicted again of murder, she’ll probably get the same sentence – Life.  She has nothing to lose, so she might as well go for it again.  Good luck Mrs. Horwitz!