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The Fifth Amendment to the U.S. Constitution provides protection against compelled self-incrimination.  Police are required to use certain procedural safeguards to secure this protection, including warning individuals involved in a custodial interrogation that they have the right to remain silent and that any statement made can be used against them.  A failure to provide this warning, called the Miranda warning, prior to custodial interrogation can result in suppression of the statements made during the interrogation, unless there is an applicable exception.  The Fifth District recently considered the application of the public safety exception to Miranda in State v. Maloney.

knifeThis case arose from a shootout between two rival motorcycle gangs in a VFW parking lot.  The first police officer to arrive on the scene saw several people in the parking lot, some who were seriously injured and two who were dead.  He requested assistance from all available officers and deputies.  The dispatch request indicated there was ongoing shooting. To secure the scene, police handcuffed between 30 and 40 people and had them lie on the ground. They roped off the parking lot and controlled access to the scene.

The defendant was among those who were handcuffed.  He was patted down and searched.  Another officer seized a knife and a .22 caliber pistol from him and placed them near the defendant so that they could be collected and inventoried later.

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It is not uncommon for police to find drugs in vehicles or homes where multiple people may have equal access to them. In cases in which the prosecution cannot show that the defendant had actual possession of the drugs, the prosecution must show that the defendant had constructive possession of the drugs to support a possession charge.  Simply showing that the defendant was near the drugs is not sufficient to prove a possession case.

file000346334958The Fifth District recently considered whether the prosecution’s evidence was strong enough to support a possession charge in the case of Session v. State.  In this case, police officers observed the defendant and another person in a vehicle that neither of them owned.  The court stated that the defendant “was rolling a joint” in the driver’s seat.  The other person was in the passenger seat.  The officer saw a baggie of morphine and several baggies of crack on the center console between them.  The bags were in reach of both people, and there was no physical evidence showing that either of them had touched the bags.  Neither of them confessed or made inculpatory statements.  The defendant moved for judgment of acquittal on the possession of a controlled substance charge, but the trial court denied the motion.  The defendant appealed the denial of his motion, but he did not appeal his conviction for possession of cannabis.

The appeals court noted that Florida case law has established two elements that must be proven to show constructive possession when the drugs are within reach of multiple possible possessors.  The prosecution must prove that the defendant knew the drugs were present and that he “had the ability to exercise dominion or control over it.”  On appeal, the defendant did not argue that the state failed to prove he had knowledge of the presence of the drugs.  In this case, it was the dominion or control element that was at issue.

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Jurors in a criminal case should not form definite opinions on the case before hearing all of the evidence.  Jurors are not supposed to discuss a case with each other until all of the evidence has been presented.  The standard jury instructions direct jurors not to form a fixed opinion or discuss the case before all of the evidence has been presented.  The Florida Supreme Court has held that a premature discussion of the case by jurors is improper.  If a party believes there was a premature discussion, that party may move to interview one or more jurors to determine if the verdict is subject to a legal challenge.  This issue was recently before the Fifth District in the case of Phelps v. State.

file5601297827370In this case, the trial court had ordered the jury not to deliberate before all of the evidence had been heard, but the defendant’s mother stated an alternate juror told her that there had been discussions before the case was submitted to the jury.  After the verdict was entered, the defendant moved to interview an alternate juror, based on information from the defendant’s mother.  At the hearing, the mother testified that the alternate had told her that the jurors talked during lunch and breaks.  The defendant’s mother also stated that the alternate told her that jurors had said that they wanted to hear the defendant testify and questioned why an innocent defendant would not testify.

The trial court denied the motion, finding that the evidence did not indicate that the jurors had both discussed the case and formed an opinion before all of the evidence was presented.  Previous case law, however, has held that an inquiry is appropriate to determine if premature deliberations occurred.  The Fifth District cited several similar cases in which the appeals court found an abuse of discretion in the trial court’s denial of a motion to interview jurors.

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Florida law requires a court to order a criminal defendant convicted of a crime to pay restitution to the victim for any damage or loss caused by the offense or “related to the defendant’s criminal episode” unless there are clear and compelling reasons not to require restitution.  Restitution can be a condition of probation or parole, and the probation or parole can be revoked if the defendant does not pay the restitution as ordered.  A defendant can face serious consequences as the result of a restitution order, particularly if the amount is more than the defendant is able to pay.  Thus, there must be competent, substantial evidence that establishes the amount of the award by the greater weight of the evidence.

file000853189184The Second District recently considered a defendant’s challenge to the amount of a restitution order in Danzey v. State.  Restitution was ordered after the defendant entered a guilty plea to third-degree grand theft and giving false verification of ownership to a second-hand dealer.  The court ordered him to pay $108,755 in restitution.  The defendant appealed, challenging the $19,800 he was ordered to pay for a canary diamond ring, a watch, and a diamond and ruby ring.  He also argued on appeal that the trial court abused its discretion by not reducing the restitution by the amount the insurance company had paid the victim.

The value of the rings and watch in question were only established through the victim’s testimony as the purchase price.  The victim testified that she received the canary diamond ring as a gift in 1980, and it had been purchased for $11,500.  She testified that the purchase price of the watch was $5,500 in 1979.  She further testified that the purchase price of the ruby ring was “…something like I don’t know $27 or $800.00” in 1977.

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In Florida, a sentencing court has broad discretion to impose special probation conditions.  Those conditions must have a reasonable relationship to rehabilitation.  Courts often impose limitations on the use of alcohol, but when such limitations do not have a reasonable relationship to rehabilitation, they are not valid.

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The Second District recently considered whether a condition ordering the defendant not to consume or possess alcohol was valid in the case of Williams v. State.  The defendant was convicted of grand theft related to merchandise stolen from a store.  The trial court found him to be a habitual felony offender and imposed an 18-month prison sentence and four years of probation.  At sentencing, the judge stated that the defendant had said he was using marijuana daily at the time he went to jail.  The judge said the defendant also used cocaine daily and “mollies” on weekends.  The judge further said that the defendant “also stated that he would drink alcohol every other day and on the weekends.”  The appeals court opinion states that there was not any evidence presented that addressed the role alcohol had played in the defendant’s life.  The trial court placed special conditions as part of the defendant’s probation that required him to have a drug and alcohol evaluation and complete treatment if deemed necessary.  The defendant would also be required to pay any costs for the evaluation and treatment, unless the court waived them.  The trial court also “ordered no alcohol while on probation.”  The parties and the appeals court interpreted this condition to mean the defendant would be prohibited from possessing or consuming alcohol during his probation.

The defendant moved to correct the sentencing error, but the trial court denied the motion and held that the special conditions were related to criminal conduct and that they restrained conduct that was related to future criminal behavior.

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A criminal defendant has the right to maintain his or her innocence and should not be punished for doing so. A defendant has the constitutional right not to incriminate himself or herself, as well as the right to a jury trial. Florida courts have held that punishing a defendant for exercising those rights, either during trial or sentencing, is a violation of the defendant’s right to due process.

file9281261951016.jpgThe Florida First District Court of Appeals recently reviewed a case in which the trial court had repeatedly mentioned the defendant’s lack of remorse. The defendant in Macan v. State was convicted of neglect of an elderly person without great bodily harm, possession of a controlled substance, and petit theft. Her convictions were based on her theft of morphine from an elderly hospice patient while the defendant was working as a nurse. The victim did not respond to morphine that was administered to her, and it was discovered that the medication had been watered down. The defendant provided signed statements to her employer and law enforcement that she had taken the morphine, but she testified that those written statements were not true. The jury found her guilty on all counts.

At the defendant’s sentencing, the court repeatedly referred to the defendant’s lack of remorse and failure to take responsibility or apologize to the victim’s family. Defense counsel pointed out that the defendant had maintained that she was innocent, but the court continued to make comments regarding the lack of remorse. The court sentenced the defendant to five years’ probation for neglect, with 364 days in jail as a condition of probation, a consecutive term of four years’ probation for the possession charge, and time served for the petit theft.
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A criminal justice process should be fair to defendants. A defendant is entitled not only to a fair trial but also to a fair sentencing hearing. In the recent case of Mosley v. State, the Second District reviewed whether the trial court had erred in allowing testimony regarding unsubstantiated allegations unrelated to the case before the court.

DSC_0289.JPGThe defendant was convicted of possession of cannabis with intent to sell/manufacture/deliver within 1,000 feet of a public housing project, one count of misdemeanor cannabis possession, one count of possession of drug paraphernalia, and four counts of felony drug possession. Following a sentencing hearing, the circuit court sentenced him to seven years in prison. He appealed both the convictions and the sentence. The Second District affirmed the convictions without discussion but addressed his argument regarding the sentencing.

The State requested no less than a 10-year prison sentence, while the defendant asked for probation. The defendant’s Criminal Punishment Code scoresheet indicated “any non-state prison sanction” as the lowest possible sentence.
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Most drivers are aware that their licenses are subject to suspension as the result of a DUI, but they may not be aware of the process that occurs and the procedural requirements. Under Florida law, a police officer can immediately suspend the driver’s license of a person with a blood-alcohol level or breath-alcohol level of 0.08 or higher, or of a person who refuses to take a urine, blood-alcohol, or breath-alcohol test. The officer confiscates the driver’s license and issues a 10-day temporary permit if the person is otherwise eligible to drive. A suspension for the refusal of a test is one year for the first refusal and 18 months if the driver’s privileges had previously been suspended for a refusal. A suspension for an alcohol level of 0.08 or greater is six months for the first offense and one year if the license has previously been suspended. The driver may request a formal or informal review by the Department of Highway Safety and Motor Vehicles within 10 days of the issue of notice of suspension.

car-keys-1307200-640x480.jpgWhat are the requirements for the administrative hearing? The Third District recently considered whether the police officer has to appear in person and whether the Department must authenticate a video of the driver in a recent case. In Dept. of Highway Safety and Motor Vehicles v. Canalejo, the driver requested a formal administrative review after his license was suspended for a DUI. The driver’s attorney tried to issue subpoenas for the officers who arrested him, but the Department issued modified subpoenas for telephone appearances instead. At the hearing, the driver tried to submit a video of the 20-minute waiting period after his arrest, but he claimed he could not authenticate the video without an officer present. He rejected an offer to continue the hearing. The hearing officer upheld the decision.

The driver then filed a petition for a writ of certiorari to quash the hearing officer’s decision. The circuit court found that the Department had not complied with due process because it refused to issue a subpoena for personal attendance when the officer’s presence was required to authenticate the video. The circuit court remanded.
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pills-out-of-bottle-1244422-1279x1910.jpgThe Florida and U.S. Constitutions and other state and federal laws protect people suspected or accused of criminal acts from improper behavior by police and prosecutors. People have the right not to incriminate themselves, the right to be free from unreasonable searches and seizures, and the right to a speedy trial. Additionally, criminal cases may be subject to statutes of limitations. A failure of the prosecution to bring the case within the applicable statute of limitations will result in the case being dismissed. Such was the case in Norton v. State, recently decided by the Second District.

In Norton, the State filed an information against the defendant for a violation of §893.13(7)(a)(8)(c), Florida Statutes. The “doctor-shopping” statute, as it is known, prohibits a person from withholding information about receiving or being prescribed a controlled substance in the last 30 days when that person is seeking a controlled substance or prescription for one with a similar therapeutic use from another health care provider. A violation of this statute is a third-degree felony.

The State alleged the offense occurred between June 2009 and March 2010. The State filed the information in late July 2010 and issued a capias on that same day. The defendant was not arrested until July 30, 2014.
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Generally, police must have a warrant to conduct a search, unless the search falls under a constitutional exception to the warrant requirement. One such exception is voluntary consent. In the recent case of Thompson v. State, the issue was whether consent to search had been given, but often the issue is whether consent was given voluntarily. The Third District recently considered whether a trial judge erred in finding that consent had not been voluntarily given, even though the police had not been rude or aggressive, in the case of State v. Hall.
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The police in Hall were on a “be on the lookout” alert (“BOLO”) for two burglary suspects and a vehicle when they discovered a car parked in a driveway about a mile from the burglary and two men meeting the description of the suspects. Three police cars pulled up, with one blocking the driveway. Several officers, wearing clothing that identified them as police officers, got out of the vehicles. They all had holstered guns.

The officers testified that the men did not seem nervous when they arrived. One of the men was the homeowner, and the other man owned the vehicle in the driveway. While one of the officers talked to the homeowner, some of the others patted down the vehicle owner, took his keys, and asked to search his car. The man agreed to the search but was upset.
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