Saturday, October 22, 2011

Ineffective assistance of counsel, grand theft, and chocolate biscotti with almonds and sambuca


Criminal law -- Grand theft -- Limitation of actions -- Trial court properly dismissed grand theft charge where capias was issued within limitations period but was not executed until almost eight years after state filed information -- Section 812.035(10) provides five-year limitations period for theft, and that period could be extended for no more than one year based on defendant's continuous absence from state -- Specific statute setting forth statute of limitations for theft controls over provisions of general statute of limitations for third-degree felonies
STATE OF FLORIDA, Appellant, v. MARGARITA PEREZ, Appellee. 2nd District.

Criminal law -- Probation revocation -- Discrepancy between oral pronouncement and written sentence -- Remanded with directions to correct written order to conform to oral pronouncement
JEFFREY W. SIMPSON, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Post conviction relief -- Trial court abused its discretion in summarily denying defendant's claim of ineffective assistance of counsel because it was facially insufficient without providing defendant at least one opportunity to amend
DANIEL BRIAN EMMERT, Appellant, v. STATE OF FLORIDA, Appellee. 2nd District.

Criminal law -- Restitution -- Error to hold restitution hearing in absence of defendant without showing that defendant knowingly, intelligently, and voluntarily waived right to be present
KEITH KNESPLER, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Delivery of cocaine -- Speedy trial -- Error to find that speedy trial period for charges of delivery of cocaine commenced on date defendant was taken into custody for acts of using a false name and riding his bicycle without a light -- Trial court misapplied “criminal episode” standard of speedy trial rule by placing great emphasis on ongoing investigation of police officers, rather than actions of defendant
STATE OF FLORIDA, Appellant, v. TILFORD BAYNHAM, Appellee. 4th District.

Criminal law -- Habeas corpus -- Ineffective assistance of appellate counsel -- Petition claiming ineffective assistance of appellate counsel during appeal from resentencing proceeding was untimely, successive, and frivolous -- Further pro se filings barred
ALFRED WILCHER, Petitioner, v. STATE OF FLORIDA, Respondent. 4th District.

Criminal law -- Juveniles -- Habeas corpus -- Court did not exceed its authority in placing juvenile on home detention with electronic monitoring and imposing 8 p.m. curfew pending placement in moderate risk residential program -- Statute does not place specific limit on home detention pending placement in moderate-risk residential program -- Provision that child who is awaiting placement in a moderate-risk residential program must be removed from detention within five days refers to secure detention
V.P., a child, Petitioner, v. STATE OF FLORIDA and DEPARTMENT OF JUVENILE JUSTICE, Respondents. 4th District.

Criminal law -- Second degree murder -- Evidence -- Sufficiency -- Defendant convicted of second degree murder for the shooting deaths of two victims after the victims and several others had surrounded defendant, defendant and victim began cursing at one another, and one victim struck defendant after being encouraged by second victim -- Evidence warranted conviction for manslaughter but was insufficient to sustain convictions of second degree murder because defendant's shooting of the victims was an impulsive overreaction to the victim's attack rather than an act out of ill will, hatred, spite, or evil intent where defendant was backed up against his vehicle when he was confronted by multiple men, victims had both been drinking, and defendant was struck by victim causing him to fall back against the vehicle -- State's argument that defendant's demeanor before the confrontation was sufficient to prove that he acted with a depraved mind is rejected -- Defendant's use of deadly force occurred after he was attacked, and state pointed to no evidence that defendant had a previous grudge or ongoing dispute with the victims -- Jury instructions -- Stand Your Ground law -- Trial court erred in instructing jury as to the Stand Your Ground law over defendant's objection and in rejecting defendant's requested special instruction where there was evidence that defendant was engaged in unlawful activity at the time of the shooting and defendant's special instruction adequately addressed the scope of the duty to retreat in such cases, was a correct statement of the law, and was not misleading or confusing -- New trial is warranted, rather than remand with instructions to reduce murder convictions to manslaughter convictions, given error in jury instruction on self-defense
JOHN THOMAS DORSEY, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.



Criminal law -- Plea -- Withdrawal -- Counsel -- Adversarial relationship -- Trial court erred in summarily denying pro se motion to withdraw plea alleging that counsel did not handle the case properly, that defendant was lied to, pressured and frightened into taking the plea deal, and that defendant was unaware of his option to dismiss counsel -- Remanded for evidentiary hearing to determine the nature of defendant's attorney-client relationship and whether conflict-free counsel should be appointed before the issue of withdrawing defendant's plea is considered
DELBERT G. HALL, Appellant, v. STATE OF FLORIDA, Appellee. 4th District.

Criminal law -- Providing a false name to a law enforcement officer -- Conviction reversed where defendant was charged with providing a false name to a particular officer, but state presented only evidence that he provided a false name to a second officer -- It is fundamental error to convict a person of an uncharged crime -- Error was not harmless because defendant could, in theory, yet be convicted of providing a false name to the second officer -- Grand theft -- Burglary of a structure -- Evidence -- Taped interview -- Where pro se defendant, while cross-examining investigator, informed the court he wanted to impeach investigator's testimony using recording of interview with investigator, and prosecutor and standby counsel informed the court that the recording would need to be redacted to remove references to defendant's criminal history, trial court erred in finding, out of concern over making the jury wait, that there was insufficient time to redact the recording, giving defendant the option of playing the recording in its entirety or not at all, with the defendant choosing the latter -- This ruling prevented the defendant from exercising his constitutional right to impeach witnesses against him and was not harmless error as the jury's verdict could have been affected by impeachment of investigator's testimony with the recording
JUSTIN WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Trafficking in cannabis -- Search and seizure -- Warrant -- Where warrant authorized officers to enter and search the premises and curtilage, including any vehicles and/or temporary structures within the curtilage and all persons found on the premises, for certain items, including “titles, receipts and any other documents and records evidencing illegal activity, or that would lead to the identification of persons responsible for the unlawful possession or distribution of controlled substances,” officers were authorized to search truck and mailbox -- Officers could properly seize utility bills for property located at a different address as documents that would lead to identification of persons responsible for the unlawful possession of controlled substances, particularly when defendant's wallet contained receipt for payment of electric bill for that second property -- Error to grant motion to suppress evidence seized from mailbox and truck at first property and all evidence found at second property, which was searched pursuant to a warrant based upon affidavit the crux of which was the utility bills found at the first property
THE STATE OF FLORIDA, Appellant, vs. GUILLERMO MARTINEZ, Appellee. 3rd District.



Criminal law -- Juveniles -- Battery -- Closing argument -- No abuse of discretion in trial court's not allowing defense to argue self-defense in closing argument, a defense not previously raised, where defense could not reasonably have been inferred from any evidence at trial
M.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Sexual offenders -- Violation of registration and reporting requirements -- Trial court correctly concluded that the rule of criminal procedure which extends a deadline where the deadline falls on a weekend or holiday is not applicable to reporting requirements for sexual offenders, which are not based on a computation of time
ALVIN WILLIAMS, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District.

Criminal law -- Discovery -- State's failure to comply -- Trial court erred in failing to conduct Richardson hearing when state failed to disclose relevant evidence until second day of trial, in denying defendant's request to recall witnesses to question them about this new evidence, and in questioning jury about whether defendant's booking sheet, which was located in the jury room without being admitted into evidence, influenced its verdict
JAMEL RA SHAUD WESCOTT, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Appeals -- Order denying motion for appointed counsel for post conviction purposes is not among class of orders appealable pursuant to rule 9.140(b)(1) -- Appeal dismissed without prejudice to right to file petition for writ of mandamus seeking to compel ruling by circuit court on pending motion(s) requesting that defendant be granted relief from his conviction
DELMART E.J.M. VREELAND, II, Appellant, v. STATE OF FLORIDA, Appellee. 1st District.

Criminal law -- Double jeopardy -- Retrial after reversal by appellate court -- Where petitioner was prosecuted for first-degree murder based on alternative theories of premeditation and felony murder, jury returned guilty verdict without specifying the theory on which it relied, and state court reversed and remanded for retrial after finding that conviction for underlying felony was based upon legally insufficient theory and could not stand, retrial of defendant for premeditated murder did not violate Double Jeopardy Clause -- Petitioner failed to establish that state court's denial of relief was contrary to, or involved unreasonable application of, clearly established federal law
JESUS DELGADO, Petitioner-Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee. 11th Circuit.

Aliens -- Removal -- Conviction of crime involving moral turpitude -- Board of Immigration Appeals and Immigration Judge erred by considering extraneous evidence outside record of alien's false imprisonment conviction to determine that his false imprisonment conviction qualified as conviction of a crime involving moral turpitude -- Congress unambiguously intended adjudicators to use categorical and modified categorical approach to determine whether a person was convicted of crime involving moral turpitude
CAMILO ERNESTO SANCHEZ FAJARDO, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. 11th Circuit.

Criminal law -- Indictment -- Failure to state an offense -- Counts of indictment alleging state correctional officers knowingly falsified records with intent to impede, obstruct, and influence the investigation and proper administration of matter within jurisdiction of United States are insufficient as matter of law where indictment fails to identify “department or agency of the United States” conducting an investigation or for which administration would be impeded by defendants' alleged falsification of records -- Counts for falsification of records must be dismissed, because indictment neither tracks statutory language nor contains essential facts constituting the offenses charged -- Count alleging state correctional officer knowingly tampered with fellow correctional officer with intent to hinder, delay and prevent communication to federal law enforcement officer of information relating to commission of federal offense was insufficient and must be dismissed, where indictment fails to provide factual basis for charged offense
UNITED STATES OF AMERICA, Plaintiff, v. ALEXANDER MCQUEEN, et al., Defendants. U.S. District Court, Southern District of Florida, Miami Division.

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