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An opinion delivered by Chief Justice Roberts, followed by all but Justice Thomas who dissents.

Juan Smith was convicted of 5 counts of murder in Louisiana.  He appealed his conviction which was affirmed and the State Supreme Court and the US Supreme Court denied review.  Mr. Smith then sought post conviction relief in the state court.  It was at this time that Mr. Smith obtained the file of lead investigator Det. John Ronquillo.

Mr. Smith was convicted of five murders by the sole testimony of one eye witness, Larry Boatner.  At trial, Mr. Bostner unequivocally stated that he had “no doubt” that Smith was the gunman that he had stood “face to face” with on the night of the crimes.  No other witnesses or physical evidence implicated Smith to the crime.  Upon the disclosure of Det. John Ronquillo’s investigation file (which was not disclosed prior to trial but upon asking for post conviction relief)) it was discovered that the detective had several conversations with Mr. Boatner.  On the night of the murders Det. John Ronquillo wrote that Boatner “could not . . . supply a description of the perpetrators other than they were black males.”  Five days later Ronquillo’s notes add that Boatner “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.”  Ronquillo’s type written report states that the conversation with Boatner indicated that he “could not identify any of the perpetrators of the murder.”

The Court found that this was clearly a Brady [v. Maryland, 373 U.S. 83 (1963)] violation and the case was reversed and remanded for a new trial.

We have explained that “evidence is ‘material’ within the meaning of Brady when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Cone v. Bell, 556 U.S. 449, 469-470 (2009) [21 Fla. L. Weekly Fed. S795a]. A reasonable probability does not mean that the defendant “would more likely than not have received a different verdict with the evidence,” only that the likelihood of a different result is great enough to “undermine[ ] confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (internal quotation marks omitted).

The majority opinion is short and sweet.  The dissent is much longer and I have yet to read it.  I will update…

Eric J Dirga, PA

Here are the things we are running into in court.  The municipality or county is trying to introduce hearsay through documents they try and enter into evidence through the “business records exception.”  Problem is that hearsay within hearsay, such as this, is inadmissible unless ALL hearsay meets the requirements (predicate) of an exception.  So far, the municipalities and counties have not been able to meet this burden.

Another thing we have run into is the part of the statute (316.0083) that says that certain things are “admissible.”  Sometimes a hearing officer will think that this is a legislative exception to the rules of evidence.  Fortunately, only the Florida Supreme Court can approve a rule of evidence or a modification thereto.  Have case-law on that to back up your argument.

Finally, be prepared to fight the introduction of the video and the photograph.  The enforcement officer may be familiar with the intersection but the date and time are hearsay and only known to the officer by the information header found on the video.  Also notice that the license plate is not readable on the video (at least the ones I have seen).  This means that the photo is the only method of identification.  The photo, however, crops just the area where the plate is located – there is no other information that the enforcement officer could testify to having knowledge of but the back end of the car and the plate itself.

Needless to say, the rules of evidence are alive and well.  Expect some municipalities to fight these with hopes to appeal them (and win).  Get your objections on the record, voir dire the witness (don’t rely on cross-examination), bring case-law. Don’t give the municipality or county the opportunity to appeal AND WIN due to a lack of defense record on appeal.

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Eric J Dirga, PA

Here’s an excerpt:

A New York City subway train holds 1,200 people. This blog was viewed about 4,000 times in 2011. If it were a NYC subway train, it would take about 3 trips to carry that many people.

Click here to see the complete report.

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STATE OF FLORIDA, Appellant, vs. ANGELINE L. BARATTA,  19 Fla. L. Weekly Supp. 13a (9th Jud. Cir., Oct 17, 2011): The State appeals from an order granting Baratta’s pretrial motion to suppress – Reversed.

The issue in this case involved whether or not the defendant’s headlights were off when the law required that they be on and if that was a valid basis for the stop. It was a 2-3 AM stop so the issue seems pretty clear, however that is not the reason why this case is highlighted here. I agree with the Circuit Court’s reversal in this case. I disagree with the reasoning.  The Court found that the LEO’s unimpeached testimony was enough to confirm that the law was indeed broken and the stop was valid. In doing so the court wrote this:

It is well settled that an officer’s observation of a traffic violation establishes the necessary reasonable suspicion for the stop of a vehicle. See Whren v. U.S., 517 U.S. 806 (1996); Hilton v. State, 901 So.2d 155 (Fla. 2d DCA 2005) [29 Fla. L. Weekly D1475b], decision quashed on other grounds, 961 So.2d 284 (Fla. 2007) [32 Fla. L. Weekly S401a]; Holland v. State, 696 So.2d 757 (Fla. 1997) [22 Fla. L. Weekly S387a], State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D1006c].

I have noticed this in several cases recently – the watering down of the Whren/Holland standard from “probable cause” to this imaginary “reasonable suspicion” standard (BTW, none of the cases cited above support a “reasonable suspicion” standard). The fact is there is no “reasonable suspicion” standard for traffic infractions. Despite the very well settled law (i.e., Whren and/or Holland), this reasonableness “test” has popped up in other traffic stop cases, noteably in State v. Wimberly, 988 So.2d 116 (Fla. 5th DCA 2008).
In Wimberly, the Fifth District goes through fantastical* mental gymnastics to point out why law enforcement can pull a person over for a “suspected” window tint violation regardless of whether there truly was a violation of the law (and absent probable cause as required in Whren and Holland). “A traffic stop based on an officer’s incorrect but reasonable assessment of the facts does not violate the Fourth Amendment.” Wimberly, at 119. That statement is correct however in a window tint scenario the only “reasonable assessment of the facts” would be based on a guess (obvious to all but the court).  The court cites two cases for this quote. First there is Saucier v. Katz, 533 US 194 (2001) – please, if anyone can find anything to do with driving in this case that is not dicta please let us know. This is a civil rights case with no driving involved. Second is United States v. Chanthasouxat, 342 F.3d 1271 (11th Cir. 2003). This case involved a stop of a vehicle without a rear-view mirror. The vehicle did not have a rear-view mirror. This is why the police officer stopped the vehicle. The police definitely had probable cause based on what he saw (or didn’t see) however the lack of a rear-view mirror was not, in itself, a violation of the law (as the police officer thought). This court referred back to the Fourth Amendment’s wording and wrote this:

“The Fourth Amendment protects individuals from unreasonable search and seizure.” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir.), cert. denied, 534 U.S. 830, 122 S.Ct. 73, 151 L.Ed.2d 38 (2001); U.S. Const. amend. IV. However, a traffic stop is a constitutional detention if it is justified by reasonable suspicion under Terry or probable cause to believe a traffic violation has occurred under Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). “The touchstone of the Fourth Amendment is reasonableness . . . .” United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001). Thus, in order to determine whether or not a specific Fourth Amendment requirement such as probable cause or reasonable suspicion has been met, the court must determine if the officer’s actions were reasonable. See Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996).

How this Court (Baratta) or the Wimberly Court could come up with this idea of a “reasonable suspicion” standard for traffic stops is absurd. It does not exist in fact but in our “reality” it sure seems to be creeping upon us (regardless of the law).

*Yes, I made this word up.

Eric J Dirga, PA

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Malloy v. DHSMV, 19 Fla. L. Weekly Supp. 9a (18th Jud. Cir., Jul 1, 2011): Writ of Certiorari Denied – Here we have the case of the Department of Highway Safety and Motor Vehicles [Department] waiting six-years after the predicate third driving while license suspended [DWLS] conviction before they designate the driver as a habitual traffic offender [HTO] and suspend his driving privileges for the required 5-year  suspension starting in 2010.  The driver moved to quash the suspension or make it retroactive to the 2004 conviction date.  His argument was that he did not know the ramifications of his plea upon his driving privileges* and because of the delay it was too late to contest the underlying charge.  The court, in denying the petition, points out that the “long delay in the suspension process, by itself, does not create a basis for relief.” Citing DHSMV v. Hagar, 581 So.2d 214, 217 (Fla. 5th DCA 1991).

*See Bolware v. State, 995 So.2d 268, 276 (Fla. 2008)[33 Fla. L. Weekly S645a] for reasons why this argument no longer works.

Hmm, – a long delay by the Department in implementing a suspension affords the driver no relief.  This glossing over of what is, in essence, the ability of the Department to be  negligent in their duties to the detriment of the people just seems wrong.  We can banter back and forth about it being a collateral consequence, C.J. Quince’s dissent adequately points out the obvious fact that a suspension is punishment. Bolware, at 284-285.   If a person should receive a 5-year suspension when age 55 and needing to drive to work but does not have the suspension implemented until age 65 when retired, that may be a godsend.  If a person should receive a 5-year suspension when age 20 and living at a dorm in college but does not have the suspension implemented until age 30 when just hired to his or her dream job, well that’s just badluck.  I guess you could say it may work both ways under Malloy.  What the Malloy court fails to appreciate is the complete arbitrariness of their ruling and that allowing such lack of efficiency by a governmental agency can have only one possible result – detriment to the people.

Let’s take a look at a similar case that has the opposite result.  In Kuzmicz v. DHSMV, 13 Fla. L. Weekly Supp. 523a (6th Jud. Cir., Jan 27, 2006), the driver petitioned for a Writ of Certiorari when his license was suspended on August 29, 2005 for accumulation of points.  The statutory requirements for the point suspension were met on January 3, 2001.  The driver had elected to take a driving school and was required to submit proof with the clerk by January 2, 2001, but never complied.  The clerk adjudicated the driver guilty and accessed a processing fee.  The driver satisfied the processing fee on August 11, 2005.  The Kuzmicz court looked at the plain language of the law.  When a driver elects driving school but fails to comply the driver shall be deemed to have admitted the infraction and shall be adjudicated guilty.  The clerk is to notify the Department of such failure and assess a processing fee up to $18.  Section 318.15(b), Fla. Stat.  The problem, that the Kuzmicz court pointed out, was the Department waited for the payment of the processing fee before computing the points when it should have computed the points (according to the law) upon the date of the conviction ( four years earlier). See 322.27(4).

In Malloy, the court completely overlooks the plain meaning of the statute.  A habitual traffic offender is any person whose record shows that such person has accumulated the specified number of convictions for offenses within a 5-year period. Section 322.264.  The Department is authorized to suspend the license of any person without preliminary hearing upon a showing of its records that the licensee has committed an offense for which mandatory revocation of license is required upon conviction. See section 322.27(1)-(1)(a).  The Department’s ability to automatically suspend driving privileges is premised that by quickly doing so it will be protecting the public from the immediate harm posed by the driver that is guilty of such recent poor behavior.  See Kuzmicz (stating that the Department failed to adhere to the plain language of the statute by arbitrarily picking a date of conviction thus failing to promote public safety by an immediate suspension).  By allowing the Department to impose a delinquent suspension, neither public safety nor intent of the law are addressed.  The only thing promoted by the Malloy decision is the continuing inefficiency of the Florida Department of Highway Safety and Motor Vehicles.

The December Updates will be out soon.

Eric J Dirga, PA

The 4th in Meme cited to Henley v. State, 23 Fla. L. Weekly D2421 (Fla. 4th DCA, Oct 28, 1998) to support it’s decision not to address the “ineffective assistance” claim and stated “[t]his is not one of those claims so apparent on the face of the record that it may be addressed on direct appeal.”  This makes one think what could possibly be “so apparent” that an ineffectiveness claim could be raised on direct appeal.  This question, of course, begs for a reading of Henley.

Henley is a short opinion which gives us the answer.  Apparently, if the State concedes “ineffectiveness” as an error that occurred, then it may be considered on direct appeal (citing to Reaves v. State, 669 So.2d 352 (Fla. 4th DCA 1996).  The 4th then cites to Judge Anstead’s special concurrence in Gordon v. State, 469 So.2d 795 (Fla. 4th DCA 1985) to clarify the necessity for a showing of both concession and “gross ineffectiveness” before such a claim is considered on direct appeal.

Having the State concede to anything is rare enough.  It may be that conceding that the defense attorney was ineffective may not be such a bitter pill to swallow for them.  The majority of ineffective assistance claims go through the 3.850 route to which there are voluminous cases regarding just about every possible issue (see The Florida Criminal Cases Notebook, by Kurt Erlenbach).  The standard for the 3.850 claim is set forth in Strickland v. Washington, 80 L. Ed. 2d 674 (1984) although there is a lot of wiggle room that subsequent cases have tried to fill.

Finally, don’t call me for help in the 3.850 realm.  This is my Planet of the Apes forbidden zone.

Eric J Dirga, PA

Fundamental error can be (and should be) but need not be raised at the trial court level.

Often, when an issue is not preserved (no record is made and/or the objection was not raised in the trial court) the avenue taken by the appellant is to argue on appeal that the issue is fundamental to due process.  This is an extremely high hurdle to jump over.  The way for a party to better their odds on appeal is to raise the issue by objection or motion at the trial court level AND have the court rule.  The error standard on appeal is no longer “fundamental” but instead turns into “reversible” or “harmless” error standard.

See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986) for insight into the harmless error standard.

Eric J Dirga, PA

I’m no expert on appellate law so if you have knowledge to pass on please comment below.  Thanks.

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Happy Thanksgiving 2011!

STATE v. HEFFRON, 18 Fla. L. Weekly Supp. 1088a (6th Jud. Cir., Aug 10, 2011) – THIS MATTER is before the Court on Appellant, State of Florida’s appeal from an order of the Pinellas County Court granting Appellee’s Motion to Suppress.  After reviewing the briefs and record, this Court reverses the order of the trial court.

Under a judicially created exclusionary rule, known as the confusion doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Ringel v. State, 9 Fla. Supp. 678a (Fla. 18th Cir.Ct.2002). The confusion doctrine is not clearly recognized in Florida. “Our research has not yielded any clear indication that the confusion doctrine is a recognized exclusionary rule or defense to a license suspension in Florida.” Kurecka v. State, 2010 WL 3766727, 9 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b].  A licensee, when asked to take a breath test, has an affirmative duty to make any confusion about his or her rights known to law enforcement, so that law enforcement is aware that further explanation is needed. Bolek v. Department of Highway Safety and Motor Vehicles, 13 Fla. L. Weekly Supp. 215a (Fla. 6th Cir. App. Ct. 2005); see Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. 2005). “If, after receiving the implied consent warning, the licensee is still confused about the applicability of Miranda rights to the decision to take a breath test, the licensee should make that confusion known to law enforcement, so that law enforcement is aware that further explanation is necessary.” Ringel v. Department of Highway Safety and Motor Vehicles, 9 Fla. L. Weekly Supp. 678a (Fla. 18th Cir. App. Ct. 2002). State v. Alves, is a trial court order granting a motion to suppress. 3 Fla. L. Weekly Supp. 553a (Fla. Orange Cty. Ct. 1995). “In Alves, the county court found that the confusion doctrine applied to the facts in that case because the defendant was read his Miranda rights, emphatically requested the opportunity to speak to a lawyer when he was requested to take a breath test, and it was never explained that the Miranda rights previously read were not applicable to the implied consent procedure for the breath test.” Kurecka, 2010 WL 3766727 at 6. This court has previously explained and by this opinion we say again that the Alves trial court order is not binding on this Court. See Beyer v. Department of Highway Safety and Motor Vehicles, 12 Fla. L. Weekly Supp. 1117a (Fla. 6th Cir. App. Ct. Sept. 7, 2005). The trial court’s ruling that “[t]here [was] no clear refusal” was error. A driver cannot lawfully avoid the requirements of Florida’s implied consent statute by simply giving a blank look or no response. Secondly, the Alves trial court order is not binding or controlling authority.

HENDRIXSON vs. STATE, 18 Fla. L. Weekly Supp. 1090a (5th Jud. Cir., Sep 6, 2011) – Following the trial court’s denial of his motion to suppress, the Appellant tendered a nolo contendre plea to the charges of Driving Under the Influence of Alcohol to the extent that his normal faculties were impaired and Possession of Marijuana under twenty grams, reserving his right to appeal the denial of his motion to suppress.
The material facts in this case are essentially undisputed. The Appellant was sitting behind the wheel of his motor vehicle on an apartment complex roadway with his high beam headlights on. An officer with the Ocala Police Department was approaching the Appellant’s stationary vehicle. When the officer was approximately two hundred to three hundred feet away, he “flashed” his lights as a signal to the Appellant to reduce his lights to “low beam”. The Appellant did not dim his lights. When the officer neared to within one hundred feet of Appellant’s vehicle, Appellant reduced his lights to low beam and began to drive away. At that point, the officer, believing the Appellant had violated Sec. 316.238, Fla. Stat. (2010), initiated a traffic stop and, during the stop, determined that probable cause existed to arrest Appellant on the above charges. With no factual dispute, the question before us is the construction or interpretation of this statute. We agree with Appellant. When the language of a statute is clear, unambiguous and conveys a clear and definite meaning, there is no occasion for a Court to resort to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning. Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984). A Court is without power to construe an unambiguous statute in a way which would extend, modify or limit the express terms or its reasonable and obvious implication because to do so would be an abrogation of legislative power. Id. The unambiguous language of this statute requires that a driver must be approaching an oncoming vehicle before being required to reduce his or her head lights from high beam to low beam. A stationary driver, such as Appellant, is not an approaching driver. Because the evidence conclusively established that Appellant had reduced to “low beam” prior to approaching the officer, we find that there was no traffic violation and therefore no probable cause for the traffic stop. As a result, the evidence obtained from this stop is inadmissable “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83, S.Ct. 407 (1963).
For the reasons set out above, we REVERSE the trial court’s denial of the Appellant’s motion to suppress and because the motion is dispositive, we REMAND this case to the Trial Court with directions to grant the motion to suppress, vacate the Judgment and Sentence, and DISCHARGE the Appellant.

STATE vs. COLANTONIO, et al., 18 Fla. L. Weekly Supp. 1100a (18th Jud. Cir., Aug 31, 2011) – A trial court’s determination with regard to a discovery request is reviewed under an abuse of discretion standard. Overton v. State, 976 So.2d 536, 548 (Fla. 2007) [32 Fla. L. Weekly S775a]. The lower court granted the defendants’ request upon the Defendants’ Motions for Production of Intoxilyzer 8000 for Purposes of Inspection and Testing, filed in the above-styled cases, which have been consolidated for the disposition of this issue only. Based upon a review of the Defendants’ Motions and the official Court files, and being otherwise fully advised in the premises, the Lower Court made the following findings.
The Defendants’ Motions for Production of Intoxilyzer 8000 for Purposes of Inspection and Testing are GRANTED. The Defendants shall be given an opportunity to inspect and test an Intoxilyzer 8000. A representative of the State may be present during the inspection and testing to ensure that the testing does not result in damage to the machine. The State may require the examiner to sign a non-disclosure agreement before the inspection and testing in order to protect the intellectual property. The Defendants shall be responsible for all costs associated with the inspection and testing of the Intoxilyzer 8000.
This Court finds no abuse of discretion, the orders of the trial courts are AFFIRMED.

STATE v. VOLARE 18 Fla. L. Weekly Supp. 1104b (11th Jud. Cir., Sep 21, 2011) – Under the community caretaking doctrine, an officer may stop a vehicle without reasonable suspicion of criminal activity if the stop is necessary for public safety and welfare. Shively v. State, 61 So.3d 484 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1111b]. For example, an officer is permitted to stop a vehicle when it is being operated in an unusual manner even though no traffic violation is suspected. State v. Rodriguez, 904 So.2d 594, 598 (Fla. 5 thDCA 2005) [30 Fla. L. Weekly D1525a]. The purpose of such a stop is to ascertain whether the driver of the vehicle is in need of assistance due to illness, tiredness, or impairment and to protect the motoring public from harm. See, Shively, 61 So.3d at 484; Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Such a stop is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady, 413 U.S. at 441.
While not citing Cady v. Dombrowsky, supra, which had been issued two years previously, the Florida Supreme Court’s decision in Bailey v. State, 319 So.2d 22 (Fla. 1975), and its progeny, control this case and demonstrate the error in the trial court’s ruling, which, we conclude is unsupported by any competent substantial evidence and misapplies Florida law. The Bailey Court upheld a stop in nearly identical circumstances to those in the instant case, stating:
Because of the dangers inherent to our modern vehicular mode of life, there may be justification for the stopping of a vehicle by a patrolman to determine the reason for its unusual operation. In this instance, although no vehicular regulation was being violated, it seemed strange to the officer that the vehicle was proceeding at only 45 miles per hour and was weaving, although not so much as to move out of its lane on one side or the other. Perhaps some of the possibilities occurring to the officer were defective steering mechanism or that the operator was driving under the influence of alcohol or some other drug.
Bailey v. State, 319 So.2d at 26.
Clearly the Bailey rationale employed Cady’s “community caretaking function” in validating the stop there notwithstanding that Mr. Bailey’s vehicle never strayed out of its lane of traffic, violated no traffic law, but demonstrated an “unusual operation” that caused concern in the officer’s mind justifying his stop of the vehicle.
Accordingly, we find that whether Volare’s car was statutorily-compliant, is not the determinative and controlling issue in this case. We find that the record supports the officer’s observation of the vehicle straddling the right lane as well as the inoperative brake light. The law supports the officer making a stop to determine the reason for its unusual operation, i.e. straddling the right lane. The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop and the facts in this case support the officer’s action. Therefore we find that the court below improperly suppressed the evidence and this cause is reversed and remanded.

STATE vs. RAZZANO, III, 18 Fla. L. Weekly Supp. 1119a (9th Jud. Cir., Sep 19, 2011) – The State appeals from an order granting Appellee Razzano’s pretrial motion to suppress. We conclude the trial judge erred in granting the motion, and reverse.
Two police officers were investigating an anonymous Crimeline report that drugs were being sold at a certain address; that one Anthony Razzano was one of the parties dealing the drugs along with roommates, and that there was a lot of foot and vehicle traffic coming and going from the apartment all times of the night and day. The officers went to the address to conduct a “knock and talk.” Upon arriving at the two story house, they knocked at the front door. Razzano opened the door. Officer Ochiuzzo, a trained and experienced officer, from outside the door where he was standing immediately smelled the odor of burnt marijuana and observed a white bag on a table in the middle the living room. The bag had a green leafy substance protruding out of it which he suspected was marijuana. The two officers entered, handcuffed Appellee, and while Officer Roman detained him, officer Ochiuzzo seized the white bag and a set of weighing scales containing marijuana residue sitting next to it. Without making a sweep of the other rooms in the house, the two officers then immediately left with Razzano in custody and the bag and scales. The whole encounter was a comparatively minimal intrusion, taking approximately two and a half minutes.
It is clear from the trial judge’s ruling that he determined as a matter of law that suppression was required because of two factors in Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D713b]: (1) another person was in the room at the time of the entry and (2) the contraband was cocaine, a serious offense. The other factor the trial judge determined was controlling was the gravity of the offense underlying Razzano’s arrest — possession of less than 20 grams of marijuana. The trial judge followed several cases originating with Welsh v. Wisconsin, 466 U.S. 740 (1984), relied upon by Appellee’s counsel in argument at the hearing and in his briefs. In Welsh, the United States Supreme Court held that the gravity of the offense was an important, but not an absolute factor in determining whether a warrantless, non-consensual entry of a home and an arrest and/or seizure of contraband in plain view was constitutionally permissible. Since Razzano’s arrest was for what he felt was a minor offense (“$10 worth of cannabis?” as he put it), not a felony such as possession of cocaine, the trial judge concluded that Welsh and the cases following it required suppression.
Under Florida law possession of less than 20 grams of marijuana is a misdemeanor of the first degree punishable by imprisonment in county jail for up to 12 months, and thus not a “minor” offense. We hold that the entry, arrest and seizure of the bag of marijuana and the weighing scales here was reasonable and lawful, and that the trial court erred in suppressing the evidence. Consequently, the order appealed from is reversed, and the case remanded for further proceedings with directions to deny Appellee’s motion to suppress. REVERSED and REMANDED with directions.

Eric J Dirga, PA

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STACHURA  v. STATE, DHSMV, 18 Fla. L. Weekly Supp. 1073a (15th Jud. Cir., Aug 25, 2011) – Defendant seeks review of the suspension of his driver’s license based upon his refusal to submit to a breath test. Defendant argues that the suspension should be quashed because the law enforcement officer who requested the breath test did not suspect that Stachura was under the influence of alcohol.

The Deputy Sheriff specifically stated that based upon his observations:

I did not suspect alcohol but rather drugs, particularly a CNS depression due to his above-mentioned indicators such as being very drowsy, dazed, disoriented, and extremely uncoordinated. Again, it should be noted that I did not suspect ETOH1 since I did not observe any odors of alcohol.

The Court is to strictly interpret Florida’s implied consent laws. State v. Demoya, 380 So. 2d 505 (Fla. 3d DCA 1980). The Implied Consent Law clearly states that the consent to a breath test is for the purpose of determining the alcoholic content of the driver’s breath. The Implied Consent Law further states that the law enforcement officer requesting the breath test must have reasonable cause to believe the driver was under the influence of alcoholic beverages.

It is clear from the record that the Stachura’s license was suspended based solely upon his refusal to submit to a breath test, despite the fact that the law enforcement officer who requested the test did not suspect that Stachura was under the influence of alcohol. Based upon the foregoing, the Petition for Writ of Certiorari is hereby GRANTED and the order of suspension is QUASHED.

RIVERO vs. STATE, 18 Fla. L. Weekly Supp. 1075b (11th Jud. Cir., Aug 23, 2011) – The Defendant appeals a final judgment from a finding of guilt, a withhold of adjudication and a restitution order following a bench trial.
The Defendant was charged by information with criminal mischief, causing damage of $200 or less to a motor vehicle a second degree misdemeanor. A bench trial was held and the Defendant was found guilty and adjudication withheld. The court ordered an amount of $100 as partial restitution “to hire an expert.”
On appeal, the Defendant asserts that the trial court erred in conducting a bench trial in the absence of any written or oral waiver by the Defendant of her right to a jury trial – The trial court misapplied the burden of proof in requiring the Defendant to present evidence of her innocence – Imposing restitution of $100 in the absence of competent evidence.
The trial court’s announcement that this was a “minor crime” incorrectly construed the charge as a petty offense precluding a jury trial. The Florida Constitution recognizes the right to a trial by jury in those cases “in which the right was recognized at the time of the adoption of the State’s first Constitution.” State v. Webb, 335 So. 2d 826 (Fla. 1976). The Supreme Court of Florida has expressly recognized that criminal mischief is a malem in se crime, indictable at common law. As such, a defendant has a right under our U.S. and Florida Constitutions to a jury trial. Reed v. State, 470 So. 2d 1382 (Fla. 1985).
A defendant may waive his/her constitutional right to a jury trial either in writing or orally. However, the record must contain a sufficient showing that the waiver was knowingly, intelligently and voluntarily made. State v. Upton, 658 So.2d 86(Fla. 1995) [20 Fla. L. Weekly S387a]; Tucker v. State, 559 So. 2d 218 (Fla. 1990). The record fails to disclose a written waiver of the Defendant’s right to a jury trial. Equally absent is an in-court colloquy regarding the Defendant’s waiver of a jury trial. Absent a valid waiver of the Defendant’s fundamental right to a jury trial, the error cannot be deemed harmless or considered a procedural right that has been waived.
Because we find that the trial court committed reversible error requiring a new trial, we do not need to address the claim of improper shifting of the burden of proof to the Defendant. As restitution must again be addressed during a retrial, we also address that issue here. No evidence was presented during the trial on the issue of damages, nor was a restitution hearing held after trial. The court simply ruled that the victim would require at least one hundred dollars ($100) to secure an expert to testify on damages at a future restitution hearing. This was error. Substantial competent evidence must be presented to justify an award of restitution. Koile v. State, 902 So. 2d 822 (Fla. 5 DCA 2005) [30 Fla. L. Weekly D168a]. Such an award must be based upon evidence of actual losses incurred by the victim due to the defendant’s criminal conduct. Glaubius v. State, 688 So. 2d 913 (Fla. 1997) [22 Fla. L. Weekly S83c]. The final judgment is reversed and the matter remanded to the trial court for a new trial.

CHOI vs. STATE, 18 Fla. L. Weekly Supp. 1076b (17th Jud. Cir., Aug 5, 2011) – Defendant appeals the Court’s denial of his motion to suppress predicated upon lack of probable cause for the traffic citation of improper backing and his judgment and sentence for DUI blood alcohol above 0.20.
On the morning of January 25, 2009 a Law Enforcement Officer [LEO] of the Sunrise Police Department was standing near a marked police car which was parallel parked to the curb. At approximately 12:22 a.m. Defendant attempted to back his vehicle out of a parking spot which was perpendicular to the police car. At the hearing on the Motion to Suppress LEO testified that the Defendant backed his vehicle to within an inch or half an inch of the officer’s police vehicle. The officer testified that he screamed and slapped the back of the Defendant’s vehicle to get him to stop. The officer then directed the Defendant back to his parking spot. The Defendant was subsequently arrested for DUI blood alcohol above 0.20, driving under the influence and cited for improper backing.
The predicate for the DUI arrest was the improper backing citation. Defendant moved to suppress based upon the lack of probable cause for the issuance of the traffic citation. The underlying facts in this case are virtually indistinguishable from the facts in Nelson v. State, 922 So.2d 447 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D794a]. In Nelson the defendant was parked in a parking area of an apartment complex that connected to an alley. The police officer started to proceed through the alley with his vehicle. The officer stopped to see if the defendant’s vehicle was going to exit. The defendant’s vehicle did not and the officer proceeded. At that point the defendant’s vehicle started to back up. The officer stopped his vehicle suddenly and activated his emergency lights. Id. at 449. The issue in Nelson, as well as here, was whether the defendant “interfered with other traffic” in violation of section 316.1985 (1).
The trial court specifically noted there was “no traffic here. He’s parked”. Based on the trial court’s factual finding of “no traffic here” there can be no violation of section 316.1985 (1) since there was no traffic with which to interfere. Accordingly, there was no probable cause for the vehicle stop; the stop was invalid. Since the stop was invalid the trial court erred in denying the motion to suppress. See Nelson at 450. The judgment and sentence are reversed.

STATE v. DICKEY, 18 Fla. L. Weekly Supp. 1077b (17th Jud. Cir., Jul 28, 2011) – THIS CAUSE comes before the Court, sitting in its appellate capacity, upon Appellant’s timely appeal of the trial court’s non-final order granting Defendant/Appellee’s motion to suppress. The motion contended that any evidence obtained by the police officer was obtained as a result of an unlawful stop of the defendant’s vehicle.
The officer observed that once the Appellee reached the intersection, the traffic light remained green and the Appellee did not move for possibly a few seconds to make the right turn while there was another vehicle behind him. The one vehicle behind the Appellee started honking and the Appellee proceeded to make the right turn. The Officer had positioned his patrol vehicle behind the Appellee’s vehicle to conduct a traffic stop. The Officer observed that as the Appellee made the right turn, Appellee’s headlights were turned off. The Officer proceeded to make a right turn behind the Appellee’s vehicle and activated his emergency lights to conduct a traffic stop. The Appellee proceeded to pull into a Wal-Mart parking lot about 200 to 300 feet away. As the Appellee was pulling into the Wal-Mart parking lot, his lights came on. Once the Appellee’s vehicle came to a complete stop, the Officer approached the Appellee’s vehicle and asked the Appellee for his license, registration and insurance. As the officer approached the vehicle, he noticed that the left rear tire was flat. The Officer stated that he was not sure how long the Appellee’s headlights were off and admitted that they could have been off for half a second.
Appellant’s sole point on appeal is that the trial court erred in granting Appellee’s motion to suppress, where the police officer had reasonable suspicion to believe that the Appellee, driving after midnight without headlights, violated the traffic laws.
The Florida Supreme Court has recognized that a police officer, in order to conduct a lawful traffic stop, must have at least an articulable and reasonable suspicion that either the vehicle or an occupant is otherwise subject to seizure for violation of law. Hilton v. State, 961 So.2d 284, 294 (Fla. 2007) [32 Fla. L. Weekly S401a]. “While reasonable suspicion is a less demanding standard than probable cause . . . the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” Id. A court determining whether an officer had reasonable suspicion of criminal activity must look at the totality of the circumstances. Id. The totality of the circumstances analysis requires that, “[b]ased upon the whole picture . . . detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 418 (1981). Thus, the correct test to determine the validity of a traffic stop is “[w]hether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop.” Dobrin v. Florida Department of Highway Safety and Motor Vehicles, 874 So. 2d 1171, 1174 (Fla. 2004) [29 Fla. L. Weekly S80a]; See Whren v. United States, 517 U.S. 806, 813 (1996) (the reasonableness of a traffic stop depends solely on the validity of the basis asserted by the officer involved in the stop). Based on the evidence presented in the court below, this Court finds no error in the trial court’s finding that Officer Escobar did not have the requisite reasonable suspicion to perform the traffic stop. First, there were no actions on the part of Appellee that would have raised a reasonable concern for his safety or create a presumption that he might be sick. As it relates to the driving without lights for a short period of time, the Officer himself admitted that the lights could have been off for half a second. The enforcement of the law has to be reasonable within the totality of the circumstances. As such, this court does not find error in the trial court’s determination that the Officer did not develop reasonable suspicion that a criminal offense had been committed when the Appellee was driving without lights for possibly half a second, even when combined with the slow driving pattern.
While the Appellant further contends that Appellee’s slow driving pattern impeded traffic, which created another factor to justify the traffic stop, this Court disagrees. The Officer admitted that he observed the Appellee’s slow driving pattern as he was approaching the right turning lane, and there was only one vehicle behind the Appellee when he stopped at the intersection. The totality of the circumstances indicates that there was nothing unusual about a car driving below the speed limit. Appellee was approaching an intersection where he stopped for a short period of time and proceeded to complete the turn as another vehicle honked at him. It was reasonable for the Appellee to approach an intersection in which he was planning to make a turn at a reduced speed. Furthermore, the Appellee did not impede any traffic because there was only one vehicle behind the Appellee who was able to continue as soon as the Appellee’s vehicle completed the turn.
ORDERED AND ADJUDGED that the trial court’s order granting Appellee’s motion to suppress is hereby AFFIRMED.

CHERRY v. DHSMV, 18 Fla. L. Weekly Supp. 1079b (9th Jud. Cir., Aug 23, 2011) – Petitioner timely filed this petition seeking certiorari review of the Florida Department of Highway Safety and Motor Vehicles’ (“Department”) Final Order of License Suspension. In the Petition for Writ of Certiorari, Petitioner argues the following: 1) The arresting law enforcement officer [LEO] never advised her that her failure to submit to the field sobriety exercises would be used against her thus, creating a “safe harbor” situation. LEO used the field sobriety exercise refusal as part of his factual basis to arrest Petitioner. Because Petitioner was in a safe harbor situation, her refusal to submit to the field sobriety exercises did not provide an adequate basis, rising to a probable cause level, to arrest her; 2) Under the totality of the circumstances, when making the arrest, LEO did not have probable cause to believe that Petitioner was driving or in actual control of a motor vehicle while impaired; 3) When Petitioner requested her attorney and requested a blood test, LEO improperly read the “Hoch” form, per Hoch v. State, 500 So. 2d 597 (Fla. 3d DCA 1986); 4) When Petitioner requested a blood test, she was not provided with assistance as required under section 316.1932(1)(f)3., Florida Statutes; 5) Petitioner did not refuse to take the breath-alcohol test because she provided two breath samples as evidenced by the video tape; and 6) Petitioner was denied her right to counsel. From review of the court record, this Court finds, as stated below, that Petitioner’s arguments IV and V are clearly with merit and dispositive as to the other arguments.
Petitioner cites the case Unruh v. State, 669 So. 2d 242 (Fla. 1996) [21 Fla. L. Weekly S104a] where the Florida Supreme Court held that law enforcement officers are required to render reasonable assistance in helping motorists arrested for driving under the influence to obtain an independent blood test upon request. The Department argues that before Petitioner had the right to request a voluntary blood test, she was required first to submit to the breath-alcohol test. According to the Department, Petitioner’s failure to provide valid samples resulted in a refusal to submit to the breath-alcohol test and thus barred her from obtaining a blood test.
This Court reviewed the video at the DUI testing center where Petitioner repeatedly requested a blood test and was not provided with any assistance from the LEO, the breath technician, or anyone at the DUI testing center such as providing her with telephone access to make arrangements for the test. Further, this Court finds that the Department’s response to this argument is without merit because competent substantial evidence is lacking that Petitioner refused to submit to the breath-alcohol test as addressed in argument V of her Petition.  The Supreme Court of Georgia in Burson v. Collier, 226 Ga. 427; 175 S.E. 2d 660 (Ga. 1970) held that suspending a person’s driver’s license greatly hinders that person’s use and enjoyment of an item of that person’s personal property and thus, the statute providing the authority for the license suspension should be strictly construed. When statutes do not explain what constitutes a “complete” breath-alcohol test, a showing that a person did not complete the test (within the judgment of the operator) is not evidence of a refusal to submit to a breath-alcohol test within contemplation of the statute. To consider this information as evidence, would provide the operator with an unfettered right to determine what is and what is not a complete test. Burson, 175 S.E. 2d at 662.
In the instant case, the applicable Florida statutes under chapters 316 and 322 do not explain what constitutes a “complete” breath-alcohol test. The breath technician and the LEO decided to determine an “implied refusal” after the second breath-alcohol test time frame. The Department’s argument that the samples are invalid solely because Petitioner did not perform the test to the breath technician’s satisfaction is not persuasive. To apply the Department’s argument could open the door to a pattern of providing breath technicians and law enforcement officers with unrestrained power when determining what is and what is not a complete test. Therefore, a showing that Petitioner did not complete the test (within the judgment of the breath technician) should not be considered as evidence of a refusal to submit to a breath-alcohol test within contemplation of the statutes. Accordingly, the Department failed to meet its burden as to the required element under section 322.2615(7)(b)2., Florida Statutes, because it did not show by a preponderance of the evidence that Petitioner’s driver’s license was suspended because she refused to submit to the breath-alcohol test after being requested to do so by the law enforcement officer.
Based upon the court record, this Court concurs with Petitioner’s arguments IV and V and finds that the hearing officer’s decision to sustain Petitioner’s license suspension departed from the essential requirements of the law and was not based on competent substantial evidence. Petition for Writ of Certiorari is GRANTED and the hearing officer’s Final Order of License Suspension is QUASHED.

Eric J Dirga, PA

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GIZAW v. STATE, 36 Fla. L. Weekly D2173b (Fla. 2nd DCA, Oct 5, 2011) – In order to prove the felony charges in this case, the State was required to establish that Gizaw knowingly possessed the cannabis. See §§ 893.135(1)(a)(1), 893.1351(2), 893.147(1)(a), Fla. Stat. (2008). Because Gizaw was not in actual possession of the cannabis, the State was required to prove her constructive possession of the suitcase containing the cannabis. See Culver v. State, 990 So. 2d 1206, 1208 (Fla. 2d DCA 2008). The State thus had to prove that Gizaw knew of the presence of the suitcase with the cannabis inside and was able to exercise dominion and control over it. Id.

If the area in which the drugs were found had been in Gizaw’s exclusive possession, then knowledge and control could have been inferred. See Earle v. State, 745 So. 2d 1087, 1089 (Fla. 4th DCA 1999). However, Gizaw and Nelson were traveling together in her car, and Nelson had access to the trunk during the visit to Miami. As a result, the State had to establish Gizaw’s knowledge of the cannabis and dominion and control over it by independent proof. See S.B. v. State, 657 So. 2d 1252, 1253 (Fla. 2d DCA 1995) (concluding that knowledge and dominion and control could not be inferred because the contraband was in a car trunk that was accessible to all of the occupants). This independent proof must establish more than a mere proximity to the drugs. Culver, 990 So. 2d at 1209. In cases relying on circumstantial evidence, such as this one, the evidence must also exclude any reasonable hypothesis of innocence propounded by the defense. See Pagan, 830 So. 2d at 803. The evidence must “lead ‘to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.’ ” Lindsey v. State, 14 So. 3d 211, 215 (Fla. 2009) (quoting Frank v. State, 163 So. 223, 223 (Fla. 1935)).

In summary, the State failed to present any evidence linking Gizaw to the cannabis other than her mere proximity to it. The State’s evidence failed to establish that Gizaw had knowledge of the presence of the cannabis or dominion and control over the suitcase containing the cannabis. Accordingly, the trial court erred in denying Gizaw’s motion for judgment of acquittal, and we reverse and remand with directions for the court to discharge Gizaw.

Eric J Dirga, PA