Updates From Circuit Appeals, October 2013

Florence Ellinwood Allen (1884 - 1966)

More hilarity from the courts…

Thompson v. DHSMV, 20 Fla. L. Weekly Supp. 837 (4th Jud. Cir., Aug. 31, 2012)

In this case, the court granted the Writ of Certiorari starting that “the hearing officer failed to follow the essential requirements of law…” To put this in perspective, the petitioner was trying to get his driving privileges reinstated (partially) after they were permanently revoked. Section 322.271(5), Florida Statutes, sets forth said procedure. The date this “mandate” was rendered was August 31, 2012. The date Mr. Thompson asked for his driving privileges back was October 15, 2010. Has not this court failed to follow the essential requirements of law with so long a delay? Hasn’t the Department’s decision been, in effect, granted by this delay? Anyhoo, I digress…

So section 322.271(5) allows a person to petition the Department for reinstatement of his/her driving privileges and requires that, to be considered for reinstatement, the person must demonstrate that he/she meets certain statutory criteria. This “criteria” is specifically and legibly spelled out in the statute. It cannot be missed or overlooked.

Mr. Thompson meet all the criteria except the one regarding not drinking in the last 5-years. After the hearing concluded, Mr. Thompson wanted to reopen the hearing because he realized that he was wrong on the date of his last drink because he was in prison on that date. The Department confirmed that he was indeed in prison on that date. Despite this the Department decided not to reinstate Mr. Thompson’s driving privileges for many reasons – none of which were the criteria required by statute.

The benevolent court has, almost 2 years later, granted Mr. Thompson’s petition, quashed the Department’s order denying his request, and has thrown him back into the ring with the lions for rehearing. Department 1 – Mr. Thompson 0.

State v. Abraham, 20 Fla. L. Weekly Supp. 843 (6th Jud. Cir., Jun 10, 2013)

Mr. Abraham was charged with “possession of simulated drugs” (A PEZ dispenser with candy shaped like pills with letters on them – just kidding). When the case was set for a non-jury trial the state’s witnesses did not appear because the law enforcement agency refused to accept the subpoenas (I’m guessing the subpoenas were served late). The state asked for a continuance. The court denied the continuance and the defense asked for dismissal based on “lack of prosecution,” which it got. The state appeals.

The appellate court reversed. Trial courts “do not have absolute discretion to deny a prosecution motion for continuance based on the absence of a witness.” The record revealed no lack of diligence or dilatory tactics on the part of the State Attorney and “no discernible prejudice or injustice to Mr. Abraham” if it had been granted. Moreover, there was no evidence that the prosecution had abandoned its prosecution. Therefore, the appellate court found that the lower court had abused its discretion.

Good case for prosectors to keep in their briefcase for those times when justice must prevail.

Moore v. State, 20 Fla. L. Weekly Supp. (6th Jud. Cir., May 13, 2013)

Poor Mr. Moore was found guilty of battery at trial. He had apparently touched somebody against their wishes and caused $11,000 in costs to the victim. Note: I did not say “damages” because that is usually much higher – just the victim’s out of pocket expenses (costs).

At sentencing the court ordered $11,001.08 in restitution and imposed it as a lien since the defendant was not going to be placed on probation (and, as the court noted, there was little chance of the defendant paying it within a year). The Defense did not “necessarily dispute the amount” but was concerned  about documentation. The court ordered the amount and allowed the defense to have time for a hearing to dispute the amount if they wanted to. The defendant never asked for the hearing.

The defendant appeals the imposition of restitution. Because the defense never raised the question regarding “amount” at a hearing where the opportunity existed – it was not preserved. Amount of restitution – affirmed.

Lesson: “Fat, drunk and stupid is no way to go through life.” -Dean Vernon Wormer.

Elam v. State, 20 Fla. L. Weekly Supp. 856 (11th Jud. Cir., Jul 5, 2013)

Defendant was brought up on a violation of probation. The reasons alleged for violating said probation were for:

  • Failure to enroll in Domestic Violence Class (BIP), and
  • Complete 50 hours of community service at a rate of 5 hours per month.

The court found that he willfully violated his probation and sentenced him to 330 days in jail. This appeal ensued…

Mr. Elam’s special conditions he failed to do were as follows:

  1. You must pay for and complete the Domestic Violence Batterer’s Assessment and the Batterer’s Intervention Treatment Program …
  2. You shall successfully complete 50 hours of community service, at a rate of 5 hours per … month.

On appeal, the appellate court reversed the lower court finding that the state failed to establish that the defendant could actually afford to pay for the Domestic Batter’s Assessment and classes and because, despite having not complied with the schedule, there was still plenty of time to complete the community service.

Of note, Mr. Elam was violated 34 days into a 24 month period of supervision.

Great case for VOP case law re willfulness.


is a small time practicing attorney in Orlando. He primarily helps people with traffic related issues such as DUIs, racing, traffic tickets, and suspended driver’s license.

Criminal Record Expungements: More Good Stuff

In the realm of law, in between the nether world and the iclouds, there is a place where things sometimes seem pretty darn good. Doesn’t mean it is! Or forever will be – but, for now, good. This This is where we find the following two cases (case law):

Shanks v. State, 83 So.3d 1226 (Fla. 1st DCA 2012)

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011)

Both of these cases, for the time being, stop the practice of the State Attorneys going to court unarmed and arguing away a client’s chance to seal or expunge their criminal record without producing a single shred of evidence on which the Court could hang its hat.  With these cases (and others) defense counsel is now sitting in the cat-bird’s seat!

Er, ahh, … for now…

English: Excerpt from the swiss criminal recor...
Redacted Record.

Juvenile Search Illegal

D.S. Eaton - NARA - 525516
D.S. Eaton - NARA - 525516 (Photo credit: Wikipedia)

D.S. (Juvenile) v. State, 37 Fla. L. Weekly D825 (Fla. 3d DCA, Apr 11, 2012): Motion to Suppress denied, Reversed and Remanded.

D.S. appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing.

D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search. She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.

The trial court erroneously denied D.S.’s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers’ investigation into the burglary call.

Officer Lambert’s search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee’s outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:

Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.

Hmm, sounds like how Resisting Without Violence is used today…

We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.’s adjudication of delinquency and remand with directions that he be discharged.

Another Good Case on Sealing Records

A rejected petition to the Tsar of Russia by U...
A rejected petition to the Tsar of Russia by US citizens, 1903, now kept at the US National Archives (Photo credit: Wikipedia)

SHANKS v. STATE, 37 Fla. L. Weekly D728a (Fla. 1st DCA, Mar 28, 2012)

Mr. Shanks had entered a plea of nolo contendere to a charge of possession of cocaine, in violation of section 893.13(6)(a), Florida Statutes (2009). The trial court withheld adjudication of guilt and sentenced him to twelve months’ drug offender probation with the special condition that he complete a six-month recovery program. Upon request of his probation officer, Mr. Shanks’ probation was terminated early. He then filed his petition to expunge or seal, which meets all rule and statutory criteria.

(Here is the problem with appealing a petition to seal or to expunge – it defeats the purpose to some degree especially with Google Scholar)

“[O]nce an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records. However, the petition is addressed to the sound discretion of the trial court, and the petition may be denied if there is good reason for denial based on the facts and circumstances of the individual case.” Anderson v. State, 692 So. 2d 250, 252 (Fla. 3d DCA 1997) (citation omitted). Here denial in the exercise of sound discretion would have required some good reason based on facts and circumstances of Mr. Shanks’ individual case.

But “[w]ithout [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks’] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks’] request to seal his records.” Cole v. State, 941 So. 2d 549, 551 (Fla. 1st DCA 2006). Accordingly, we reverse and remand for further proceedings. See Light v. State, 37 Fla. L. Weekly D386 (Fla. 1st DCA Feb. 14, 2012); Hobbs v. State, 37 Fla. L. Weekly D397 (Fla. 1st DCA Feb. 14, 2012); Baker v. State, 53 So. 3d 1147, 1148-49 (Fla. 1st DCA 2011); VFD v. State, 19 So. 3d 1172, 1175 (Fla. 1st DCA 2009).

(Note: VFD was not a juvenile. It requested this designation on appeal and the District Court followed it)

New Florida Supreme Court Case on Peremptory Challenges


"Court Trial of Witches", illustrato...
"Court Trial of Witches", illustrator unknown (Photo credit: Wikipedia)

HAYES vs. STATE, 37 Fla. L. Weekly S253a (Fla., Apr 5 2012)

Peremptory challenges during jury selection are once again the subject of this Court’s review. More specifically, we address the misapplication by both the trial court and the First District Court of Appeal in Hayes v. State, 45 So. 3d 99 (Fla. 1st DCA 2010), of the procedure this Court set forth in Melbourne v. State, 679 So. 2d 759 (Fla. 1996), for eliminating discrimination during the exercise of peremptory challenges.

In this case, the trial court erred in denying defense counsel’s peremptory challenge to a female juror, notwithstanding the undisputed gender-neutral reason counsel proffered (her relationship to law enforcement officers). The trial court mistakenly assessed defense counsel’s reason as if it were assessing a challenge for cause and failed to perform the critical third step of the Melbourne procedure, which requires an assessment of the genuineness of counsel’s proffered reasons for the strike. Further, the trial court erroneously relieved the State — the opponent of the strike — of its burden to establish that the reason for the challenge, despite being gender-neutral, was pretextual.

On appeal, Hayes argued that the trial court erred in denying his peremptory challenge of juror Haupt, warranting a new trial. He specifically asserted that the trial court’s basis for denying the strike was inapplicable to peremptory challenges because it related to a challenge for cause and that the record did not support the court’s finding that defense counsel’s gender-neutral reason was pretextual under step three of the three-part procedure this Court set forth in Melbourne. The State conceded error, agreeing with Hayes that the trial court engaged in the wrong inquiry and urging the First District to remand for a new trial. Without referencing either Hayes’s contention or the State’s concession that the trial court mistakenly considered the challenge as if it were one for cause, the First District affirmed the trial court’s decision to disallow defense counsel’s strike of juror Haupt.

Without referencing either Hayes’s contention or the State’s concession that the trial court mistakenly considered the challenge as if it were one for cause, the First District affirmed the trial court’s decision to disallow defense counsel’s strike of juror Haupt. In doing so, the district court initially noted that the trial court complied with the first two steps of the Melbourne procedure because the prosecutor requested a gender-neutral reason for the peremptory strike of juror Haupt (step one), and defense counsel offered a facially gender-neutral explanation after the trial court requested that he do so (step two). In turning to step three — the trial court’s assessment of the genuineness of the reason given for the strike — the First District rejected the State’s concession of error and affirmed the trial court’s decision to disallow defense counsel’s challenge since, in the district court’s view, it was not clearly erroneous under the Melbourne standard of review. The district court recognized that under Melbourne, a determination of genuineness turns primarily on credibility and takes into account “all the circumstances surrounding the strike.”

To resolve this issue, we review our precedent regarding peremptory challenges, discuss the applicable standard of review, and then apply our precedent to the facts of this case.

Peremptory and for-cause challenges constitute distinct, but complementary, methods to aid those facing criminal charges in achieving the constitutional right of trial by an impartial jury. While the two types of challenges work in tandem to permit the removal of a potential juror in whom the striking party perceives a certain bias or hostility, peremptory challenges differ considerably from challenges for cause. Affording a criminal defendant the full use of his or her allotted peremptory challenges is an essential part of securing a fair and impartial jury under Florida’s constitution, and his or her use of peremptory challenges is limited only by the rule that such challenges may not be used to exclude prospective jurors because of their race, ethnicity, or gender. to strike the appropriate balance between a party’s right to exercise peremptory challenges and the attempt to eliminate invidious discrimination in juror selection, this Court in Melbourne enunciated a three-step procedure to be followed when a party objects to the exercise of a peremptory challenge on the ground that it was made on a discriminatory basis. First, the objecting party must make a timely objection, show that the venireperson is a member of a distinct protected group, and request that the trial court ask the striking party to provide a reason for the strike. Second, if these initial requirements are met, the court must ask the proponent of the strike to explain the reason for the strike, and the burden shifts to the proponent to come forward with a race-, ethnicity-, or gender-neutral explanation. Third, if the explanation is facially race-, ethnicity-, or gender-neutral, the court must determine whether the explanation is a pretext “given all the circumstances surrounding the strike,” with the focus of this inquiry being the genuineness of the explanation. Compliance with each step is not discretionary, and the proper remedy when the trial court fails to abide by its duty under the Melbourne procedure is to reverse and remand for a new trial.

The proper test under Melbourne requires the trial court’s decision on the ultimate issue of pretext to turn on a judicial assessment of the credibility of the proffered reasons and the attorney or party proffering them, both of which must be weighed in light of the circumstances of the case and the total course of the voir dire in question, as reflected in the record. Despite the need of appellate courts to defer to a trial court’s credibility assessment, this Court has recognized that the clearly erroneous standard is not a mechanism through which appellate courts can simply rubber-stamp the trial court’s ruling. For instance, in Nowell v. State, 998 So. 2d 597 (Fla. 2008), when reversing a trial court’s finding of genuineness because it was unsupported by the record, we explained that although “the trial court is in the best position to assess the genuineness of the reason advanced, and the decision will be affirmed unless clearly erroneous . . . ‘deference does not imply abandonment or abdication of judicial review,’ . . . because ‘[d]eference does not by definition preclude relief.’ An appellate court’s inability to review a trial court’s genuineness inquiry is of particularly great concern when the trial court prohibits a party from striking a juror despite the absence of evidence of discriminatory intent. A trial court’s refusal to permit a peremptory challenge is tantamount to a finding that the strike was being exercised for a discriminatory purpose. Yet, in Melbourne, this Court emphasized the presumption that peremptory challenges are exercised in a nondiscriminatory manner and that the burden of persuasion is on the opponent of the strike to establish support for purposeful discrimination. Therefore, where the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. Deferring to the trial court’s genuineness determination on appeal when no such determination has been made invites an arbitrary result. Conversely, where the record supports the conclusion that the trial court has actually considered relevant circumstances surrounding the strike, it is proper for the reviewing court to conclude that a finding has been made, notwithstanding that the trial court did not recite a perfect script or incant “magic” words.

Here, although the defendant sought to strike a juror who had ties to law enforcement, that juror remained on the jury panel. Thus, the defendant’s right to exercise a peremptory challenge was denied absent a concomitant benefit of preventing discrimination in jury selection. Because it misapplied and frustrated the original purpose of Melbourne, we quash the decision of the First District Court of Appeal in Hayes.