ࡱ>  `bWXYZ[\]^_ bjbj ɜ  OOOOO '*t,4,---- . . ttttttt$wy2tO.--..2tOO--Gthhh.O-O- th. thhrrTs-;?20>/rs]t0trIzp_. IzsIzOsh..h.....2t2th...t....Iz.........  : FLORIDA MISDEMEANOR QUICK LAW REFERENCE A "WORK PRODUCT" OF DON HARTERY, ASA, 12TH CIR. ABANDONMENT OF CRIMINAL ACT: Abandonment of a crime of solicitation or conspiracy is a valid affirmative defense under ' 777.04. Dixon v. State, 559 So.2d 354, 356 (1st DCA 1990). It may also be a defense to inchoate substantive criminal acts. Smith v. State, 424 So.2d at 732. ABANDONMENT: ILLEGAL STOP: If D abandons drugs during illegal stop, the drugs are still suppressed. Clinton v. State, 26 FLW D711 (5th DCA 3-2-01). ABANDONMENT OF MOTEL ROOM: Police may search a motel room that is voluntarily abandoned by D. State v. Williams, 751 So.2d 170 (2d DCA 2000), but not if D is not abandoned or coerced. Paty v. State, 276 So.2d 195 (4th DCA 1973). MOTEL GUEST SEARCH STATUS: Hotel guests: A motel room is considered a private dwelling where the occupant is legally there, has paid for the room, and has not been asked to leave.1. U.S. v. Martinez Fuerte, 428 U.S. 543, 561 (1976)2. Gnann v. State, 662 So.2d 406, 407 (2d DCA 1995)3. Green v. State, 2002 WL 1971886 (1st DCA 2002)(Search valid where defendant had been asked to leave for failure to pay the room rent.)4. McGibiany v. State, 399 So.2d 125, 126 (1st DCA 1981)5. Sheff v. State, 301 So.2d 12, 16 (Fla. 1st DCA 1974), affirmed, 329 So.2d 270, 274 (Fla. 1976)6. Gilbert v. State, 789 So.2d 426, 428 (4th DCA 2001)(Motel's room's protective status does not outlast the guest's right to occupy the room.)The Fourth Amendment does not protect against unlawful searches by private individuals.1. U.S. v. Jacobsen, 466 U.S. 109, 113 (1984)2. Green v. State, 2002 WL 1971886 (1st DCA 2002)(Search valid where defendant had been asked to leave for failure to pay the room rent.)3. Glasser v. State, 737 So.2d 597, 598-99 (4th DCA 1999)4. F.P. v. State, 528 So.2d 1253, 1254-55 (1st DCA 1988)5. State v. Weiss, 449 So.2d 915, 916-17 (3d DCA 1984) ADMINISTRATIVE RULES: Including 11D-8, et. Seq. can be located at http:/fla.dos.state.fl.us/ . challenges to these rules are administrative, not criminal. State v. Gonzalez, 403464X (11th Cir. Miami-Dade, Arzola, 6-19-07) ALCOHOL: UNDERAGE PURCHASE: Now 2d degree M for person < 21 yoa to attempt to purchase alcohol, eff. 7-1-99. Ch. 99-156. APPEAL: ANDERS BRIEF: NO ANDERS REPLY BRIEFS REQUIRED: The State should not respond to an Anders brief (no identifiable issue to argue) unless the appellate court directs a response. If a responsive brief is filed, it is irrelevant and may be stricken. Baldwin v. State, 28 FLW D2297 (1st DCA 10-3-03). Protocol of such an appeal is: 1) defendants attorney files a motion to withdraw w/ an Andersbrief; 2) state does not object to motion to withdraw (stips); 3) court conducts an independent and careful review of the record; 4) Court grants motion to withdraw; 5) Court gives defendant 30 days to file a supplemental brief alleging errors; 6) If no errors identified, appeal affirmed. See, Dowie v. State, 10 FLW Supp 987b (Broward 9-11-03); and Jones v. State, 11 FLW Supp 537b (13th Cir. Hillsboro, Ober, J. 2-27-04). APPEAL: CERTIORARI: Ct. w/o jurisdiction if not filed w/in 30 days. Ashley v. Moore, 24 FLW D2408 (1st DCA 1999). Same re. appeal Peltz v. 3d DCA 605 So.2d 865 (Fla. 1992). Standard for cert is either lower court did not afford procedural due process or if the court departed from clearly established principle of law resulting in a miscarriage of justice. Ross v. State, 29 FLW D1511 (4th DCA 2004). APPEAL: CIRCUIT COURT CONTROLLING AUTHORITY: County court judges are obligated to apply "appellate rulings" from the circuit court if the circuit court was acting within its appellate capacity. Fieselman v. State, 566 So. 2d 768 (Fla. 1990); State v. Lopez, 633 So. 2d 1150 (Fla. 5th DCA 1994). County court is bound by circuit court certiorari rulings of DHSMV administrative hearings w/ defendant. State v. Fila, 10 FLW Supp 876 (17th Cir. 9-3-03). APPEAL: DISPOSITIVENESS REQUIRED: D. may not appeal a ruling on motion to suppress unless dispositive issue. Dispositive does not mean the court's opinion that state could not convince a jury without it, but that the state cannot proceed at all without the evidence. Vaughn v. State, 23 FLW D 892 (1st DCA 3-31-98). Trial court is obligated to determine factually whether the issue is dispositive when D pleas and reserves right to appeal. Baldwin v. State, 5 FLW Supp. 421 (Hardee Co., 3/10/98), or the State must stipulate that it is dispositive. Morris v. State, 24 FLW D1605 (4th DCA 99). APPEAL: J.O.A.: State may not appeal J.O.A. unless it is post verdict of guilt. Hudson v. State, 23 FKW D1354 (1st DCA 6/1/98). APPEAL: LIMINE MOTION DENIED: State entitled to Writ of Cert, vs. direct appeal to correct erroneous ruling in limine. State v. Wood, 24 FLW D980 (1st DCA 1999). State v. Pettis, 520 So.2d 250 (Fla. 1988); State v. Sawyer, 561 So.2d 278 (2d DCA 1990). Order suppressing evidence may be directly appealed if in direct conflict with DCA opinion. See F.S. 924.071(1). APPEAL: MUNICIPALITY TO WRITE BRIEF: the municipality, as the proper party, handles Appeals for UTC infractions. Polyak v. State, 6 FLW Supp 544 (Palm Beach 1999). Also, under same case, ASA has authority to nolle an infraction. See also, State v. Raphan, 9 FLW Supp 327b (15th Cir. Palm Beach County6 2002), and Order Determining Appellate Action is Civil and Manatee County Attorney as Proper Party Respondent, in Alice Kaddatz v. Manatee County Animal Control, App NO. 2003 AC 20, Trial Court NO. 2003 CO 5356, from Judge Dubensky to Jim Minnix, Manatee Co. Attorneys Office. ASA has authority to nolle any infraction that is consolidated with a crime because under F.S. 27.02 the state attorney represents all interests of the state. See, State v. Icitel, Kohlmann and Comerford, 1 FLW Supp 312a (11th Cir. Dade Co. 1993). Note: that case related to the old law of Grady v. Cobin, which is no longer good law re. Double jeopardy as the Blockberger test was reinstated shortly after Justice Marshall retired. APPEAL: PER CURIAM ORDER: Per Curiam Affirmations (without a written opinion) has no precedential value and should not be relied on for anything other than res judicata. State v. Swartz, 24 FLW D1117 (4th DCA 1999). Extraordinary petitions (prohibition) have no prejudice (res judicata or collateral estoppel) to appellant unless the court rules on the merits or cites legal authority. Topps v. State, 29 FLW S21 (1-21-04). APPEAL: STANDARD OF REVIEW: SUPPRESSIONS: Standard of review for suppressions is in the light most favorable to upholding the decision of the trial court. Johnson v. State, 22 FLW D531 (4th DCA 2-26-97). It is clothed with a presumption of correctness, but the trial court's application of the law is subject to a de novo review on appeal. Guidinas v. State, 27 FLW S279 (Fla. 3-28-02); Warren v. State, 701 So. 2d 404, 405 (1st DCA 1997); State v. Ramos, 25 FLW D1108 (5th DCA 5-5-00); State v. Gandy, 25 FLW D2330 (1st DCA 9-25-00). APPELLATE STANDARD OF REVIEW: App. Court should defer to fact findings by trial court, but apply de novo review of law. Guidinas v. State, 27 FLW S279 (Fla. 3-28-02). ASAs should address this standard when writing briefs to 12th Circuit. APPEAL: TIMELINESS: Motion for rehearing of order granting motion to suppress is not an authorized motion, and does not toll time from filing of an appeal. Goodwin v. State, 826 So.2d 1022 (3d DCA 2001); State v. Geeslin, App No. 02-5AC (12th Cir. Gilner.,J. 2-28-03). State must file notice of appeal within 15 days of filing of order, per Rule of App. Proc. 9.140(c)(3), See, Fla. R. App. P. 9.110(m) re. start of timing from written order. The right of appeal of suppression, dismissal or sentence is per F.S. 924.07, may be anytime before the trial, or, if the order directly or expressly conflicts with a DCA or S.Ct. Decision per F.S. 924.071. State should make a jurisdictional statement as to means of timely appeal. State should make a jurisdictional statement as to means of timely appeal. '924.07 controls for appeals from county court to circuit court. See, Blore v. Fierro, 636 so.2d 1329 (Fla. 1994). ARMED ROBBERY: If V. testifies that D had a gun, even if no gun is recovered armed robbery conviction. Flowers v. State, 24 FLW D1492 (5h DCA 1999). ARREST WARRANT: MISDEMEANOR: Eff. 7-1-99, county court judge or magistrate may issue warrant upon complaint of misdemeanor or if misdemeanor summons returns unserved and if believed offense occurred in jurisdiction of court. Ch. 99-169. F.S. 901.02. ASSAULT / AFFRAY / RIOT: Assault and Battery (requiring only one perpetrator) are lesser included offenses of "affray" which requires "the fighting of two or more persons in a public place, to the terror of the people." Scott v. State, 312 So. 2d 303 (2d DCA 1975). A "riot" requires "three or more persons acting with a common intent to mutually assist each other in a violent manner to the terror of the people and a breach of the peace." State v. Beasley, 317 So. 2d 750 (Fla. 1975). ASSAULT: NO FEAR: Victim who intimidated D and testified she had no fear or belief of imminent harm cannot = agg. assault conviction. L.R. v. State, 22 FLW D2074 (4th DCA 9-3-97). Need overt act to place V. in well-founded fear of imminent violence. O.D. v. State, 614 So. 2d 23 (2d DCA 1993). Testimony that V. was scared is not required, only that the circumstances were such as to induce fear ordinarily in the mind of a reasonable person. Biggs v. State, 24 FLW D2498 (3d DCA 1999). BAIL: POST CONVICTION: No right to bail after verdict prior to adjudication or sentencing. Harbaugh v. Cochran, 22 FLW D597 (4th DCA 3-5-97). BAIL: VIOL. CONDITIONS: The Court has authority to re-arrest D. pursuant to 3.131(g)(1) for violating a condition of bond, but "no bond" is not authorized. Metzger v. State, 22 FLW D1377 (4th DCA 5-29-97). If D commits new crime while out on bond does not get automatic revocation of 1st bond, but must comply with 907.041 (pre-trial detention). Paul v. State, 24 FLW D581 (4th DCA 1999); Contra to Houser v. State 23 FLW D1695 (3d DCA 1998) where state must follow detention statute to get no bond on new case. Now, may be held under pre-trial detention for same. Barnes v. State, 25 FLW D2320 (4th DCA 9-27-00). Court may hold w/o bond on own motion based on p.c. of new law violation. Parker v. State, 28 FLW S262 (Fla. 3-27-03) holding that: Where no conditions of release can assure the integrity of the judicial process for the commission of a crime by a pretrial releasee unquestionably impugns the integrity of the judicial process - the defendant in effect is thumbing his nose at the court. The legislature gave teeth to 903.047 with 903.0471 by saying that a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release. Under this provision, a court may summarily revoke pretrial release and order detention upon a finding of probable cause that the releasee committed a new crime. Court may impose weekly urinalysis as a condition of release for possession of cocaine. Hernandez v. State, 30 FLW D98 (3d DCA 12-29-04). Imposition of special bond conditions does not constitute punishment to cause double jeopardy. Parent v. State, 30 FLW D93 (2nd DCA 2004). BAIL ON VOP, NO RIGHT TO BAIL: No constitutional right to bail and judge may reconsider bail upon amended VOP affidavit alleging a new substantive crime. McCarthy v. State, 29 FLW D6 (4th DCA 2004). BAIL REVOCATION: Bond may be revoked pursuant to 903.0471 bases solely on the hearsay information in the pca of a new offense. Perry v. State, 28 FLW D983 (5th DCA 4-17-03). That section is constitutional. Parker v. State, 28 FLW S262b (Fla. 3-27-03). BAIL: 1ST APPEARANCE: RIGHT TO MODIFY: Issuing Court on a Awarrant may not limit the authority of the judge at 1st appearances to modify the bail amount. But if information filed and capias issued, the issuing court may limit the authority of 1st appearance judge to modify the amount. State v. Norris, 25 FLW S714 (Fla. 9-28-00). BATTERY: CLOTHING: Victim's "person" includes clothing or items held (bank bag, cane, coat, etc.) Malczewski v. State, 444 So. 2d 1096 (2d DCA 1984); citing common law tort rule W. Prosser Law of Torts ' 9 at 34; which is applicable in criminal battery prosecution. 6 Am.Jur 2d Assault & Battery ' 37 at 38. Ramming victim in a car with another car = agg. battery. Clark v. State, 25 FLW D78 (1st DCA 1999), but is a jury question, Wingfield v. State, 27 Flw D638 (2d DCA 3-20-02). Pulling on purse can be agg. battery. Nash v. State, 25 FLW D522 (4th DCA 00). BATTERY: FELONY: F.S. 784.041 (effective 10-10-97) is battery + great bodily harm, disability or disfigurement. It will no longer require the specific intent to do great bodily harm, just to batter. Eff. 7-1-01 2d offense battery is felony battery. Agg. Battery can serve as a prior conviction for felony battery. State v. Warren, 26 FLW S434 (Fla. 7-6-01) contra to State v. Smith, 26 FLW D1457 (2d DCA 6-15-01); Hodgdon v. State, 26 FLW S434b (Fla. 01). DEFINITION OF GREAT BODILY HARM: May be distinguished from serious bodily injury as in DUI (which may exclude 2 broken legs) to mean great harm as distinguished from slight, trivial, minor or moderate harm and as such, does not include mere bruises as are likely to be inflicted on a so, i.e. assault and battery. Chesnoff v. State, 840 So.2d 423 (Fla. 5th DCA 2003). BATTERY: VICTIM'S I.D.: Must prove D's i.d. but V's i.d. is not element of battery. Trahan v.State, 5 FLW Supp. 729 (11th Cir Dade, June 1998). BOATING UNDER INFLUENCE: BOARDING: P.C. is not required to board vessel for safety inspection. Once boarded, LEO may develop reasonable suspicion of BUI to tow to shore for f.s.t's.State v. Battle, 6 FLW Supp 139 (Duval 1998). BOND, SUPERCEDEAS: TRIAL COURT HAS DISCRETION TO DENY SUPERCEDEAS BOND: Fla.R.Cr.P. 3.691 allows that a person may be released, at the discretion of either the trial or appellate court. However, the court may determine that the defendant is a danger to the victim of domestic battery and deny any appellate bond. Gayle v. State, 14 FLW Supp 419 (Fla. 17th Cir, Broward, March 2, 2007), following Younghams v. State, 90 So.2d 308, 309 (Fla. 1956). BRADY VIOLATION: To show a Brady violation, the defendant must show (1) that the Government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. Rivera v. State, 23 FLW S343 (Fla. 6-11-98); See also, Way v. State, 25 FLW S309 (Fla. 4-20-00). State is under continuing obligation to disclose recantation or that witness has or will testify differently. Evans v. State, 25 FLW S744 (Fla. 00). Although prosecutors should tend to disclose Brady material whenever you have to ask yourself the question, the determining factor is materiality. That standard applies whenever and only if there is a reasonable probability that the disclosure would have affected the outcome of the proceeding. Here, the fact that the investigators were engaged in criminal activity and drug use during the time period fo the investigation was not sufficiently material to require disclosure, as the conduct had no impact on the evidence. Breedlove v. Moore, fax mail op# 1044 (11th Circuit, Federal, 1-17-02). BURGLARY: STRUCTURE: Carport attached to house is not a "structure" for purpose of burglary to structure, but may be part of the house for burglary to "dwelling." Small v. State, 23 FLW D487 (4th DCA 2-18-98). CARRYING CONCEALED WEAPON: COMMON POCKET-KNIFE: Folding knife < 4" is common pocketknife, is not vague, but the 1951 AG Opinion re. < 4" is not a "bright line" test. L.B. v. State, 700 So.2d 370 (Fla. 10-2-97). Note: It's still illegal to carry a common pocketknife on school grounds. A.B. v. State, 25 FLW D1020 (4th DCA 4-26-00). CHILD ABUSE: IN LOCO PARENTIS: CHILD ABUSE: AFFIRMATIVE DEFENSE, NOT NON-EXISTENT CRIME: Raford v. State, 27 FLW S781 (Fla. 9/26/02) Person acting as parent can be convicted of third degree child abuse. "Thus, it is not that felony child abuse by a parent is a nonexistent crime, but rather a parent may assert as an affirmative defense his or her parental right to administer 'reasonable' or 'non-excessive' corporal punishment, i.e. a typical spanking, in a prosecution for simple child abuse." A father can be convicted of simple battery or 3d F Child Abuse for spanking his child in a disciplinary setting if the spanking was so severe that it left bruises on the buttocks and required a hospital visit. The fact that the injuries are not permanent injuries, but heal after medical treatment, is not a bar to prosecution because the legislature has placed some restrictions upon the types of physical punishment that can legitimately be imposed as discipline. The recent amendments to the child abuse statutes limit the punishment, but do not bar simple battery prosecution. State v. McDonald, 26 FLW D1165b (2d DCA 5-4-01). Therefore, Kama v. State, 507 So.2d 154 (Fla. 1987) and J.C. v. DCF, 773 So.2d 1220 (4th DCA 2000), no longer controls. This case should control in our district, and is consistent with Raford v. State, 26 FLW D246 (4th DCA 2001). But, it conflicts w/ 1st DCA in Wilson v. State, 744 So.2d 1237 (1st DCA 1999(, and Nixon v. State, 25 FLW D246 (1st DCA 2000). Also, the parental privilege to administer corporal punishment is an affirmative defense that must be asserted before the State must rebut it. Corsen v. State, 26 FLW D1173a 5th DCA 2001); Brown v. State, 26 FLW D2442 (4th DCA 10-19-01). Old 2d DCA ruling was that there is no lesser included charge of battery for agg. child abuse by parent disciplining child. State v. Coffman, 23 FLW D1998 (2d DCA 1998); reaffirming Kama v. State, 506So.2d 154( 1st DCA 1987); State v. Blunt, App 94-6AC (12th Cir, Manatee 1995); Misdemeanor child abuse is also not a lesser incl. of agg. child abuse by agg. battery. A.J. v. State, 23 FLW D2508 (2d DCA 1998). See Standard Jury Instructions 97-2, 23 FLW S407 re. parent must be acting in disciplinary setting to avoid the lesser. However, See, Ovenway v. State, (5th DCA 1998) disagreeing with Kama, and disagreeing with Lowery v State, 641 So.2d 489 (5th DCA 1994); and Moakley v. State, 547 so.2d 1246 (5th DCA 1989). But Marshall v. Reams, 32 Fla 499,14 so.98 (1893) and Jones v. State 5 FLW Supp (Fla. 15th Cir. 1998) agree. Kama also applies to new felony child abuse, where the act is essentially misdemeanor disciplinary battery, in the absence of malice, sufficient to commit agg. child abuse. Wilson v. State, 24 FLW D2592 (1st DCA 11-17-99). Under Wilson simple child abuse is not a non-existent crime, but an affirmative defense to the parent. Nixon v. State, 25 Flw D2862 (1st DCA 00). The mental injury portion of the child abuse statute is unconstitutionally vague, but not the physical abuse sections. State v. Dufresne, FLW (4th DCA 9-13-00). Felony child abuse applies to parents, even w/o malice, conflicting w/ Wilson, except that simple battery remains privileged. Raford v. State, 25 FLW 2271 (4th DCA 2000). State must show parents discipline was excessive, unreasonable or beyond the scope of parental discipline to charge child abuse, even where father struck child twice, causing split lip and forced child to eat dinner resulting in child choking. State v. Figarola, 788 So.2d 1109 (Fla. 3d DCA 01). Mothers spanking w/ marks = felony abuse & simple battery not a lesser. Brown v. State, 26 FLW D2442 (4th 2001). Simple battery, otherwise, may be a level 2 lesser if sustained by the evidence. Dougherty v. State, 27 FLW D142 (2d DCA 1-9-02). Spanking by a school principal that results in significant bruises or welts do not rise to the level of felony child abuse, which requires a more serious beating. State v. McDonald, 785 So.2d 640, 646 (Fla. 2d DCA 2001); King v. State, 903 So.2d 954, 955 (Fla. 2d DCA 2005). However, this defense is still limited to situations of discipline, i.e. in King the child would not eat dinner. In Julius v. State, 32 Fla. L Weekly D794a (Fla. 2d DCA March 23, 2007), the mothers convictions for felony child abuse were sustained because the act was not during discipline, but pure frustration of being late to work and unable to locate her shoes, not due to any child misbehavior. In any event, the use of a table leg with screws sticking out was not an implement of lawful discipline to strike the 8 year old in the arm and legs, nor to strangle the child. Fathers punching, then kicking of a child on the ground may not constitute reasonable corporal punishment, and thus may justify a conviction for felony child abuse. Czapla v. State, 32 FLW D1205a (Fla. 1st DCA 2007). CHILD NEGLECT: The statute that uses "mere negligence" to create a crime w/ no mens rea is unconstitutional. Ayers v. State, 20 FLW D2696 (2d DCA 1995). Persons > 18 yoa who fail to report abuse or neglect in the home commits 3d degree felony unless mitigation of domestic abuse re. F.S. 39.205(2) Kayla McKean Child Protection Act eff. 7-1-99. Unclean house, w/ knife on floor and exposed wiring still requires the State to prove this exposed child to serious injury. Arnold v. State, 25 FLW D931 (2d DCA 00). CITIZEN ENCOUNTER MAY INCLUDE ASKING FOR IDENTIFICATION: re.. Seeing D at a crack house (vacant home). State v. Bryant, 9 FLW Supp 607b (13th Cir. Hillsboro, Fuente, J. 6-4-02). Same re. contacting theft suspect at home, and asking him to step outside and produce identification, is not a stop, but an encounter. State v. McElroym, 9 FLW Supp 609b (13th Cir, Hillsborough, Fuente, J. 5-10-02). Asking for ID does not convert an encounter to a stop, but ordering defendant not to walk away does. Chappel v. State, 28 FLW D592 (5th DCA 2-28-02). An encounter becomes a stop whenever LEO asks a person to exit the vehicle. Popple v. State, 626 So.2d 185 (Fla. 1993); Parsons v. State, 825 So.2d 406, 408 (2nd DCA 2002). Asking for d.l. to run warrants check does not convert an encounter to a stop, Mays v. State, 29 FLW D2239c (4th DCA 2004), conflicting w/ prior 4th DCA opinion in Baez v. State, 814 So.2d 1149. CITIZEN INFORMANT ON DUI / CELLPHONE CALLER: A cell phone caller who only gives her 1st name, but gives detailed current description of drunk driver, is a citizen informant, not an anonymous tipster, and stop is legal. Powell v. State, 9 FLW Supp 582c (17th Cir. Broward 5-20-02). Giving cell # and name = citizen informant. State v. Messick 10 FLW Supp 356b (12th Cir. Sarasota, Denkin, J. 3-17-03). Even first name and phone # that works is a citizen informant, Sprentall v. State, FLW Supp (6th Cir. Pinellas, 2008), but only phone # that does not work = anonymous informant. State v. Goepfert, (6th Cir. Pinellas, 2008). CITY ORDINANCE SEPARATION: Re. Sarasota County Only: If a case is submitted that is only a Sarasota Ordinance Violation, the case will be sent to Whitney Coyne, at the City Attorney's Office. If the cases come to SAO at the same time that involve both a state statute and a municipal ordinance, the SAO will keep the file and prosecute both acts that occurred at the same time out of the same episode, under one clerk case number. If, however, the SPD sends one state statute to the SAO and separately one ordinance violation to the city, AND the cases get two separate clerk's case numbers, then the ordinance case should go to the city attorney and the SAO keeps the state statute. If we have further problems with this protocol, please see Don Hartery in Misdemeanor Division, Gloria Chandler in Records or Whitney Coyne with the City Attorney's Office and we reconcile that case scenario. CLOSING ARGUMENT: Prosecutor may argue that state's analyst testified that D could retest the evidence. Thompson v. State, 647 So. 2d 824 (Fla. 1994). However, ASA may not argue that Defense failed to call experts to refute. Messac v.State, 635 So.2d 89 (4th DCA 1994). COLLATERAL ESTOPPEL: Issue preclusion. Once an issue is finally determined, it cannot be relitigated between the same parties. Ashe v. Swenson, 394 U.S. 436, 443 (1970). Not always applicable, unless issue was clearly precluded. See, State v. Harwood, 26 FLW D2602(c) (3d DCA 2001). Not applicable for VOP in circuit court where underlying charge dismissed in county court. State v. Roesle, 26 FLW D2737 (1st DCA 11-16-01). Acquittal of one count precludes admission of that evidence on retrial of hung jury on 2d count. Hilaire v. State, 26 FLW D2687 (4th DCA 11-14-01). Acquittal on substantive crime does not bar prosecution for VOP. Bond v. State, 28 FLW D672 (1st DCA 3-7-03). Issue is not precluded until the order is final, meaning that jeopardy must have attached for the order to be final. Therefore, ruling in county court as to same search is not binding on circuit as to different drugs. State v. McCord, 402 So.2d 1147 (Fla. 1981). If state loses suppression motion, then enters nolle, then refiles identical information, there is no issue preclusion as to first order as the ruling was not a final disposition. State v. Spence, 658 So.2d 660 (3rd DCA 1995); State v. Kanter, 03-33 AC A02 (15th Cir. 1-29-04). Collateral estoppel does not apply to the State unless the defendant was actually placed in jeopardy at trial. Where the state nolles the case prior to going to trial, the state is not barred from relitigating the identical motions to suppress. State v. Kanter, 11 FLW Supp 208b (Palm Beach 1-29-94); See also State v. McCord, 402 So.2d 1147 (Fla. 1981). A judgment in a civil infraction cannot be used to estop a claim on same issue at suppression hearing in collateral criminal case (absent plea of guilty, as admission of party). Trice v. State, 755 So.2d 808,810 (3rd DCA 2000). Collateral estoppel does not require identity of causes of action, as does res judicata, but requires identity of parties and issue. Therefore, a suppression order on a prior case with a different charge would not be barred by res judicata, and may not involve identical issues, even regarding the same search and seizure. Campbell v. State, 29 FLW D1291 (2nd DCA 5-28-04). Upon severed charges where self defense is litigated = acquittal on first trial, state may not relitigate that issue, but may still prosecute for a collateral crime of possession of a firearm. See, State v. Chambers, 2nd DCA 12-29-04). Appellate panel from certiorari on DWLS hearing that affirms no p.c. to stop, does estop the state from proceeding on the criminal DUI charge. State v. Gentilella, 13 FLW Supp 26 (9th Cir, Orange Co. Aug 30, 2005). A criminal defendant who pleas to a sex crime, even with protestations of innocence, constitutes an admission of guilt for purposes of collateral estoppel for his Civil Commitment under Jimmy Rice Act. Troville v. State, 32 FLW D826a (15th Cir. Palm Beach, March 28, 2007). Forfeiture is estopped by prior collateral ruling on same issue. Bradenton Group v. State, 32 FLW D2665a (5th DCA 2007) CONFESSION: ADMISSION BY SILENCE: If Co-D discusses crime with witnesses, implicating D, while D is present, and D does not object, Co-D's statements are admissible as "admissions by silence of D." Nelson v. State, 24 FLW S250 (Fla. 1999). CONFESSION: 6TH AMDT; APPOINTMENT/INVOCATION: Though D may be appointed counsel after indictment and prior to arrest, D must invoke right to counsel before gieving confession's admissibility. Smith v. State, 22 FLW S (Fla. 7-3-97). If D is appointed counsel for burglary where a homicide occurred, but has not been charged with the homicide, D may be interrogated about the homicide, even if his burglary attorney invoked 5th for D, but D waived. Texas v. Cobb, No. 99-1702 (4-2-01). CONFESSIONS: "BRUTON RULE": If confessing co-D's confession is admitted at joined trial, the confession must be redacted to the point of not identifying non-confessing co-D completely. Merely redacting D's name and replacing it with "deleted" violates the Bruton rule where i.d. of D is inferred by remainder of co-D confession. Gray v. Maryland, U.S. ( 3-9-98). Admission of co-D's confession is harmless error if it is consistent with D's confession that was admitted. Perez v. State, 23 FLW D1127 (3d DCA '98). Admission of Co-D's confession as against penal interests, still violates right of confrontation by D. Lilly v. Virginia, U.S. No. 98-5881 (1999). CONFESSIONS: CO-DEFENDANT: Fact that co-D and D confessions interlock is not sufficient indicia of reliability, but Co-D's self incriminating statement is. Franqui v. State, 22 FLW S (Fla.6-26-97) receding from Grossman v. State, 525 So. 2d 833 (Fla. 1988) and Farina v. State 679 So. 2d 1151 (Fla 1996). Could be harmless error if D's consistent confession is otherwise corroborated. Gonzalez v. State, 22 FLW S593 (9-18-97) so as to not violate Bruton v. U.S., 88 S, Ct. 1620 (1969). CONFESSIONS: COMMENT ON RIGHT TO REMAIN SILENT: Florida courts are consistent with U.S. Supreme Court that PRE-ARREST pre-Miranda silence can be used for impeachment, Rodriguez v. State, 619 So. 2d 1030 (3d DCA 1993), but Florida courts do not follow the U.S. Supreme Court that admits post arrest Pre-Miranda silence for impeachment, as Florida cases applied the "fairly susceptible" test of being construed as comment of the right to remain silent. State v. Hoggins, 23 FLW S467 (Fla 9-17-98), conflicting with Fletcher v. Wier, 447 U.S. 231 (1980) and Jenkins v. Anderson, 447 U.S. 231 (1980). Any fairly susceptible error usually results in mistrial, but may be subject to "harmless error" analysis. Anderson v. State, (4th DCA 5/27/98). May comment on D refusing to answer a single question if D otherwise waives and answers other questions. Thomas v. State, 24 FLW D358 (1st DCA 1999). May comment that D failed to establish an affirmative defense, i.e. self-defense. Delgado v. State, 25 FLW S79 (Fla. 00). CONFESSIONS: CORPUS: Florida maintains the minority rule that corpus must be first established to admit a confession, but that an objection at trial is necessary to preserve the issue because the trial judge does not have an obligation to prohibit inadmissible evidence from the fact finder. Here, the court acknowledges that the "corpus rule" is not fundamental (not constitutionally guaranteed), disagreeing with Johnson v. State, 569 so. 2d 872 (2d DCA 1990). J.B. v. State, 23 FLW S44 (Fla. 1-22-98). Note: J.B. now overturns the longstanding corpus rule of Farley v. Tallahassee, 243 So. 2d 161 (1st DCA 1971). Homicide corpus sufficient if businessman disappears during short trip. Mackerly v. State, 25 FLW D722 (4th DCA 00). The elements of some crime must be established by Asubstantial evidence, direct or circumstantial, but not necessarily the crime charged, and that some person is responsible, but not necessarily this defendant. See, State v. Allen, 335 So.2d 823, 825 (Fla. 1976); and Burks v. State, 613 So.2d 441, 443 (Fla. 1993). However, read, contra, C.W. v. State, 26 FLW D135 (2d DCA 1-5-01) where the Court held that confession of theft of ice cream is not admissible when corpus showed burglary, but admitted confession of stealing a steak knife as that act only enhanced the degree of the offense (See, Harbaugh re. elements if it enhances the degree of the offense is an element)?? State may not alternatively prove that either a DUI manslaughter OR a DUI injury occurred if both the passenger or driver were drunk because the corpus must be of the crime charged, not just any criminal agency ?? Wow? See, State v. Colorado, 30 FLW D83 (2nd DCA 12-29-04), citing long string of corpus DUI Cases. CONFESSION: CORPUS: C-4 MOTION: State may use defendants sworn c-4 motion as evidence to convict D if corpus is established. Brown v. State, 26 FLW D662 3d DCA 01). CONFESSION: CUSTODY: Briefly detained driver is not in custody when asked if he had a gun. Watson v. State, 22 FLW D816 (5th DCA 3-7-97). Unarticulated plan of LEO does not determine custody, but reasonable person in D's position if restraint to degree normally assoc. w/ formal arrest. See, Stansbury v. California, 511 US 318 (1994). Once read Miranda, may not have to later re-read, but Q is voluntariness. Davis v. State, 22 FLW S331 (Fla. 6-5-97). Even if properly Mirandized, but fruit of illegal arrest = suppression. J.P. v. State, 22 FL W D1432 (2d DCA 6-11-97). Illegal detention does not necessarily cause suppression under Wong Sun. The confession may be admissible if otherwise "voluntary" . Factors include temporal proximity of arrest, Miranda warning, intervening circumstances and the purpose and flagrancy of officer misconduct. Voorhees v. State, 22 FLW S357 (6-19-97). See also, State v. Maloy (2d DCA 7-11-97). D at PD for interrogation is not custody, but once interrogation starts with accusatory manner and strong evidence and not likely to let D go = custody. Mansfield v. State, 25 FLW S254 (2000). DUI person at roadside in handcuffs is in custody. State v. Alvarez, 27 FLW D386 (2d DCA 2-7-01). There are 4 factors to use in determining actual arrest: 1) The manner in which the police summon the defendant for questioning; 2) The purpose, place and manner of the questioning; 3) The extent to which the suspect is confronted with evidence of his guilt; and 4) Whether the suspect is informed that he is free to leave. See, Bedova v. State, 26 FLW D434 *5th DCA 2-9-01). Roadside questioning is not custody to degree of formal arrest and suppression is reversed. State v. Tassi, 8 FLW Supp 226 15th Cir. Palm Beach 01). Reading of Miranda does not cause refusal] to SFST or breath test to become inadmissible. State v. Fara, 9 FLW Supp 88 (12th Cir. Manatee, Gilner, J. 12-18-01); State v. Burns, 661 So.2d 842, 847 (Fla. 5th DCA 1995); State v. Hoch 500 So.2d 597, 602 (3d DCA 1986); Weaver v. DHSMV, 10 FLW Supp 161 (13th Cir, Hillsborough, Holder, J. 1-8-03). (See State v. William F. Geeslin, III, Ap. No 02-5AC brief re. SFST is not voluntary.). SFST is not a voluntary test and D has the option to refuse, but no right to refuse breath test. State v. Baines, 10 FLW Supp. 371 (18th Cir Brevard Mar. 24-03), see also Sambrine v. State, 386 So.2d 546 (Fla. 1980) and State v. Young, 483 So.2d 31, 33 (5th DCA 1985). Refusal to submit to gun powder swab could be suppressed IF the LEO fails to tell the suspect that the test is mandatory and refusal could be used against the suspect at trial. Menna v. State, 28 Flw S340a (Fla. 2003). No Miranda requirement at DUI checkpoints. See, US v. Jackson, 280 F. 3d 403 (4th Cir. 2002). A driver may be compelled to perform sfsts if the LEO has probable cause of DUI, but the sfst is only voluntary if the LEO only has a reasonable suspicion to request sfsts. State v. Carney, 13 FLW Supp 287a (13th Cir. Hillsborough, Dec. 7, 2006). CONFESSION: DUE PROCESS: Confession to employer induced by promise not to call police is suppressed under state due process. Mirabal v. State, 22 FLW D1979 (8-20-97). CONFESSION: EQUIVOCAL INVOCATION OF MIRANDA: Receding or equivocating somewhat from Almeida v. State, 737 So.2d 520 (Fla. 1999) where Sup. Ct. held that under Fla. Constitution, Following Traylor the police must answer Ds questions at critical stages truthfully, now permits the police to answer Ds question of What good would a lawyer do me? by saying thats for him to determine, as this is a truthful answer. State v. Glatzmayer, 26 FLW S279a (Fla. May 3, 2001). Florida had followed the equivocation rule by following Traylor v. State, 596 So. 2d 957 (Fla. 1992), not Davis v. U.S. 512 U.S. 452 (1994); Almelda v. State, 687 So. 2d 34 (4th DCA 1997); Weber v. State, 22 FLW D915 (4th DCA 4-9-97). Florida used to follow Davis in that "police are no longer required to clarify equivocal requests for the rights accorded by Miranda. The suspect would have to "clearly" invoke his right to terminate questioning or see a lawyer. Sapp v. State, 22 FLW S115a (3-23-97); State v. Owen, 5-8-97. However, if D makes a "clear question" re. his rights, i.e. "would a lawyer help me?" LEO must cease interrogation and make a good-faith effort to give a simple and straightforward answer before proceeding on the waiver. Almeida v. State, 737 sO.2D 520 (Fla 1999). But, Fla. Sup. Ct. receded somewhat in State v. Glatzmayer 26 FLW S279a (May 3, 2001) where its okay for police to answer Ds Question, "Should I have a lawyer?" by saying that its Ds decision (after he already properly waived Miranda). However, if D is not in custody and asks, Shouldnt I have a lawyer with me? it is proper for the LEO to respond that it is a decision for defendant to make and that he was able to call an attorney if he wished. State v. Seaton, 26 FLW D273 (5th DCA 1-19-01). Invocation of right to remain silent is not foreclosed unless request for counsel. If only the former, interrogation must stop, but police may reinitiate interrogation several hours later after receiving a Miranda waiver and the confession may be admissible. A defendant may also adopt the codefendants statement as his own without violating Bruton. Globe v. State, 29 FLW S119) Fla 3-18-04). CONFESSION: INVOCATION OF RIGHT: NO IMMINENT INTERROGATION: Public Defender supplied invocations of 5th and 6th amdt at advisory is not effective to prevent interrogation on another offense when no interrogation is imminent. Sapp v. State, 22 FLW S115 (Fla. 3-13-97). D may invoke 5th in any civil, criminal, administrative, judicial, investigative or adjudicative proceeding upon belief that statement could be used in any subsequent state or federal criminal proceeding, but not foreign court. U.S. v. Balsys, 118 S. Ct. 2218 (1998). CONFESSION: JUVENILE: Failure to notify parent does not cause confession to be involuntary, not even w/ IQ of 73. Brookins v. State, 22 FLW D2058 (1st DCA 8-26-97). But see, Ramirez v. State, 739 so.2d 568 (Fla. 1999) where failure to notify parents and failure to let parents talk with child (headnote 13) + downplaying the significance of the warning and waiver were factors in determining involuntariness. If juvenile asks to speak with his father and LEO does not wait, confession is suppressed, even if LEO responds, If you want to wait for your dad, we can wait for your dad. Thats fine. I dont have a problem. If you want to talk to me, thats fine. D confesses. B.P. v. State, 27 FLW D962a (5th DCA 2002). Now, custody is not a special review for a child, but objective standard is the same as an adult, so no need to factor in the youthful age in determining whether he felt free to leave the police station or talk w/ his parents in the waiting room. Yarborough v. Alvarado, OP# 6001 (6-1-04). CONFESSION: MIRANDA DOES NOT CONFER RIGHT TO LIE: Neither the text nor the spirit if 5th Amendment confers a privilege to lie. Brogan v. U.S. 11 FLW Fed. S322 (1998); See, Harris v. New York, 401 U.S. 222 (1971). Although non-Mirandized confession may be used for impeachment, an involuntary statement can not. Melendez v. State, 24 FLW D2733 (2d DCA 1999). CONFESSION: MIRANDA WAIVER + REFUSAL TO ANSWER: If D waives Miranda and talks, but refuses to answer a particular question during the interview, the refusal to answer is admissible. Thomas v. State, 24 FLW D358 (1st DCA 1-29-99). CONFESSIONS: MIRANDA REQUIRED FOR CONSECUTIVE INTERROGATIONS: FRUITS NOT SUPPRESSED; PUBLIC SAFETY EXCEPTION: The police practice of obtaining a non-Mirandized confession, then taking a confession w/ Miranda warning and reminding the person of their previous confession is unconstitutional. Both confessions are inadmissible. Missouri v. Seibert. (6-28-04). However, if D stops LEO from reading the full warning by saying AI know my rights then confesses, the confession is not necessarily suppressed. Further, the fruits of a non-Mirandized statement are admissible (the gun from DV Injunction) unless the statement of location of the gun was coerced, though the statements only may be subject to suppression. U.S. v. Patane, 2004 WL 1431768 (6-28-04). The Court previously held there to be a public safety exception to Miranda re. the whereabouts of weapons where officers have a legitimate concern for safety of persons in the area. Under that exception, even the pre-Miranda statements may be admissible. New York v. Quarles, 467 US 649 (1984). Coercion: In pre-trial motion to suppress a statement on a claim of coercion, the court must rule on the credibility of conflicting statements between police and defendant. Although defendant, at trial, may also ask the jury to make the same determination, the court is bound to make the pre-trial judgment for admissibility. Dillow v. State, 29 FLW D2269 (2nd DCA 10-13-04). CONFESSION: PRE-MIRANDA SILENCE: Applying Florida law, prosecutor may not use pre-Miranda silence for impeachment. Contra. to U.S. S. Ct Rulings of Jenkins v. Anderson, (1980) and Fletcher v. Weir, (1982). Hogins v. State, 22 FLW D 522 (4th DCA 2-26-97). However, pre-Miranda omissions may be used. Rodriguez v. State, 619 So. 2d 1031 (3d DCA), but post-Miranda silence is not. State may not use prior inconsistent statement to impeach pre-arrest silence. State v. Calhoun, 502 So. 2d 1364. CONFESSION: PUBLIC SAFETY EXCEPTION: Pre or Post Miranda (invocation) statements, i.e. "the gun is over there" fall within the public safety exception to the prophylactic protections of Miranda. Borrell v. State, 24 FLW D1150 (3d DCA 1999); Pre-Miranda falls under N.Y. v. Quarles, 467 US 649 (1984). Post Miranda falls under U.S. v. DeSantis, 870 F2d 537 (9th Cir. 1989). CONFESSION: VOLUNTARINESS: D bears initial burden to show confession was not voluntary. Chambers v. State, 24 FLW D1537 (3d DCA 1999). CONFESSION: VOLUNTARINESS: INTOXICATION: The rule of law seems to be well settled that the drunken condition of an accused when making a confession, unless such drunkenness goes to the extent of mania, does not affect the admissibility in evidence of such confession, but may affect its weight and credibility with the jury. Lindsey v. State, 66 Fla. 341 (Fla. 1913). Youth and intoxication does not make defendant incapable of validly waiving rights and knowingly making voluntary incriminating statements, but are factors. Thomas v. State, 456 So.2d 454 (Fla. 1984). Even if defendant is highly intoxicated, but understands questions and can give answers, the confession may still be voluntary. Simpson v. State, 562 So.2d 742 (1st DCA 1990). CONSENSUAL ENCOUNTER: CUSTODY: The mere reading of Miranda Rights does not convert a consensual encounter into custody. Moscowitz v. State 23 FLW (4th DCA 2/11/98); Chappel v. State, 28 FLW D592 (5th DCA 2-28-03). LEO may approach car and begin conversation = encounter, but requires reas. Susp. If LEO asks D to get out of car. Lopez v. State, 26 FLW D124 (2d DCA 00), or to not walk away, see Cahppel. However, if LEO turns on blue lights or otherwise causes D to feel not free to leave, the encounter is converted into an investigatory stop. Hrezo v. State, fax mail op#2009 (2d DCA 1-31-01). 3 LEOs in marked cars, asking D for ID is a stop, even if not told he was free to leave or restrained in any way. J.N. v. State, 26 FLW D460 (3d DCA 2-14-01). If the initial encounter is unlawful, state must show consent to search is not the product of illegal police action by clear and convincing evidence (here, warrantless entry into Ds house on p.c. tip = to search). State v. Sakezeles, 778 So.2d 432 (3d DCA 2-7-01). If D already got out of car, encounter leading to arrest does not justify a search of the car. Kavallierakis v. State, 26 FLW D1887 (2d DCA 01), but see U.S. S. Ct. case in April 2004. If LEO holds Ds d.l. then gets consent to search, the consent must be attenuated from the detention, as this is not a mere encounter, even if LEO is just using the d.l. to do a warrants check. Perko v. State, 874 So.2d 666 (4th DCA 2004). CONSTITUTIONAL CHALLENGES: SINGLE SUBJECT RULE: Such challenge is moot after biennial reenactment of bill as it is then only a single subject. Only persons who may qualify to challenge is between multi-subject bill and biennial publication. Lee v. State, FLW (5th DCA 7-21-99). CONSTRUCTIVE POSSESSION: May be established if gun is partially visible, Defendant ran from car and owner of car testifies that gun is not hers. Jacobs v. State, 24 FLW D1761 (3d DCA 99). If D is in exclusive possession of brick of cocaine wrapped in duct tape = sufficient to infer knowledge that the substance is controlled substance. State v. White, 25 FLW D911 (4th DCA 00). But, m.j. found in D's backpack, even w/ D's other possession does not. EHA v. State, 25 FLW D1629 (4th DCA 7-5-00). Constructive possession is established if contraband is in plain view of an occupant or owner. State v. Reese, 26 FLW D203 (5th DCA 1-12-01). Where defendant does not own or occupy the house, but is found within close proximity to plain view cocaine, does not establish his ability to maintain control of the drug because the state must establish substantial and conscious possession, as distinguished from mere involuntary or superficial possession. Person v. State, 32 FLW D756 (Fla. 2d DCAA 3-21-07). If drugs are not in plain view, in glove box of Ds own car, w/ other passengers present, constructive possession is not established. K.A.K. v. State, 29 FLW D2302 (2nd DCA 10-15-04). Search warrant for house where LEO found contraband in defendants clothing hanging in closet. At trial, girlfriend testified that it was her contraband that she hid in his clothes that he hardly ever wore. This was a reasonable hypothesis of innocence, which reversed the conviction. Wagner v. State, 32 FLW 673b (2d DCA 2007). CONTEMPT: JURY TRIAL: D entitled to jury trial for 5 counts of indirect criminal contempt to get consecutive sentences > 5 months, 29 days. Attwood v. State, (4th DCA 1-2-97). Section 38.22 permits court to punish for contempt, but under '775.02 the max. fine for a crime w/o a sentence provision is $500, and the max imprisonment is 12 months. Kramer v. State, 26 FLW D2661 (2d DCA 11-9-01). CONTINUANCE OF TRIAL OR HEARING: Trial court would err to deny a continuance for defendant if new lawyer on case, LEOs FTAd for deposition and attorney represents a need to locate a rebuttal witness. Trocola v. State, 29 FLW D636a (5th DCA 2004). The State is also entitled to a continuance if they tried to subpoena an officer w/ due diligence. Court abused its discretion to deny a continuance for a suppression hearing requested by ASA because for an unknown reason the officer never received his subpoena for the hearing. The court required the state to proceed, and then suppressed the evidence because the officer was not present to testify regarding consent and p.c. to search. This was tantamount to dismissing the states case. State v. Humphreys, Op# 3016 (2nd DCA 3-5-04). When defendant had served a material witness, but the witness refused to comply with the subpoena, it was error for the judge to refuse to grant a continuance. Ostalaza v. State, 31 FLW D3107d (2nd DCA 2006). If the State locates a witness just prior to trial and adds him to discovery, the court did not abuse discretion to deny defense continuance by letting defense depose the witness. This inconvenience does not transcend into undue prejudice, which is required to show for a reversal. Wood v. State, 31 FLW D 3146d (5th DCA 2006). CONTINUANCE OF TRIAL: MID-TRIAL: Court may deny D continuance mid-trial for absent unsubpoenaed witness / for discussion on mid-trial continuances. Austin v. State, 22 FLW D2142 (9-10-97) CONTRIBUTING TO DELINQUENCY: IS CONSTITUTIONAL: The offense was not constitutional. State v. Fuchs, 24 FLW D2310 (5th DCA 1999), but reversed. See. 769So.2d 1996 (Fla. 2000). CORAM NOBIS, WRIT OF: TIMELINESS: Not only barred by "laches" but limited to the 2 year period for 3.850 when D not in custody as 3.850 now codifies the common law writ, and the writ is no longer available. Wood v. State, 24 FLW S240 (Fla. 1999); State v. Taylor, 23 FLW D2635 (4th DCA 12-2-98); State v. Elise, 24 FLW D464 (4th DCA 1999). The two-year limit is not applicable if there is newly discovered evidence, but D still must demonstrate a "manifest injustice." State v. Hicks, 6 FLW Supp 243,244 (9th Orange 1999). The 2 year limit is only prospective, but may still be barred by laches. Nester v. State, 6 FLW Supp 588 (Orange 1999). CORAM NOBIS: FACTUAL PLEADING, NOT LEGAL PROCEDURES: 3.850 is proper pleading to allege failure to inform of immigration consequences, not writ or error coram nobis. Eusse v. State, 23 FLW D1699 (3d DCA 1998). Writ is to correct fundamental errors of "fact" not law / mere claim of procedural errors (no lawyer, didn't understand consequences, etc. are insufficient. Witt v. State, 465 So.2d 510 (Fla. 1985); State v. Frink, 6 FLW Supp. 332 (20th Cir. 1998). The verified pleading must allege: 1) specific facts of such a vital nature as to conclusively prevent entry of judgment; 2) that these facts were unknown and could not have been learned w/ diligence by D and court; and 3) D must allege that he was innocent or pled to the "wrong offense" to show "actual prejudice." Malcolm v. State, 605 So. 2d 945 (3d DCA 1990); State v. Fox, 659 So. 2d 1324 (3d DCA 1995); Gore v. State, 552 So. 2d 1185 (5th DCA 1989). Lack of knowledge of deportation consequences is a question of fact, not law, permitting a coram nobis challenge. Kibbs v. State, 24 FLW D2730 (2d DCA 1999). Major v. State, 27 FLW S269 (Fla 3/29/02) neither the trial court nor counsel has a duty to advise a defendant that the defendant's plea in a pending case may have sentencing enhancement consequences if the defendant commits a new crime in the future. A judge is required to inform a defendant only of the direct consequences of his plea and is under no duty to aprise him of any collateral consequences. A direct consequence is one that has definite, immediate, and largely automatic effect on the range of the defendant's punishment. Not a valid 3.850 motion to allege that defendant was unaware that his plea would cost him his job, as this is only a collateral consequence of the plea. Murphy v. State, 29 FLW D518a (2nd DCA 2004). If D pleas to cocaine possession, triggering d.l. suspension under 322.055(1) Court must inform of same during plea colloquy as this is a direct, not collateral consequence of the plea. Daniels v. State, 23 FLW D1994 (4th DCA 1998). However, administrative suspensions of DUI are collateral consequences of the plea. See, DHSMV v. Gordon, 860 So.2d 469 (1st DCA 2003); State v. Bolware, 28 FLW D2493 (1st DCA 2003); and Case v. State, 865 So.2d 557 (1st DCA 2003). Failure to allege that offense was 2nd or subsequent DUI is insufficient to get hearing, as not entitled to writ for plea w/o lawyer unless subject to > 6 months in jail, per Baldazar v. Illinois, 446 US 222,229 (1980). Rogers v. State, 11 FLW Supp 871a (9th Cir. Orange Co.2004). CORPUS: BATTERY: Injuries may be sufficient to establish corpus of a battery. State v. Carwise, 846 So.2d 1145, 1146 (Fla. 2003). COURT COSTS ARE MANDATORY: Court may not waive all court costs, even upon nolo plea and withold adjudication to a traffic misdemeanor. State v. Bouza, 10 Flw Supp 987d (17th Cir. Broward, 9-19-03), citing Reyes v. State, 655 So.2d 111, 117 (2nd DCA 1997). Not even for a time served plea. State v. Poter, 11 FLW Supp 104b (Broward Co. 17th Cir. 11-12-03); See also: Anderson v. State, 739 So.2d 601 (2d DCA 1997); Burns v. State, 683 So.2d 1157 (5th DCA 1997) and Beaver v. State, 588 So.2d 659 (1st DCA 1991). Court may not w/h adj. and only imposes a fine, as D must either be adjudicated or given a probationary sentence. State v. Penn, 29 FLW D1927 (5th DCA 8-20-04). CREDIT FOR TIME SERVED: D is entitled to credit for prison time served on one count toward time for a VOP on another count. Burnett v. State, 24 FLW D2479 (2d DCA 1999). However, a D is not entitled to credit for county jail toward any other counts. Keene v. State, 500 So.2d 592 (2d DCA 1986). D is not entitled to credit for prison on one count toward a VOP that is consecutive to the first count under new guidelines where only the minimum counts, not the maximum time, contra to former Tripp rulings. Moore v. State, 29 FLW S432 (Fla. 8-26-04). CRIMINAL MISCHIEF: Eff. 7-1-98 may aggravate to felony by including several victims in one course of conduct. F.S. 806.13. Eff. 10-1-98 felony for crim. misch. after prior conviction. LEO may make p.c. arrest for crim. misch. Or graffiti offense. CUSTODY: MIRANDA: Ct. should consider all the surrounding circumstances to see if custody is degree normally associated with formal arrest. State v. Gilles, 22 FLW D2500 (3d DCA 10-29-97). CUSTODY: SPEEDY TRIAL: D is not in custody for speedy trial purposes who cooperated with LEO for 7 hours at PD, incl. 2 hours locked in holding cell while LEO collect evidence. State v. Lail, 22 FLW D277 (2d DCA 1-22-97). Standard of custody may be different for s/trial vs. Miranda. State v. Rivas-Marmol, 679 So. 2d 808 (3d DCA 1996); State ex rel Dean v. Booth, 349 So. 2d 806 (2d DCA 1977). If LEO issues D a UTC, but does not arrest and does not give an appearance date, only to be notified D is not in custody, and s/t has not begun to run. State v. Coughlin, 29 FLW D749a (5th DCA 3-26-04). This is distinguishable from Rodriguez v. State, 453 So.2d 175 (2nd DCA 1984) where D was issued a UTC w/ a date to appear for WWRD, and DWLS/R, then the state later filed a information for 2 counts manslaughter, arising from the same incident, but failed to bring D to trial w/in 180 days of the UTC. DECEPTION BY POLICE / VOLUNTARINESS OF CONSENT TO SEARCH: If the police deceive a person into thinking they want consent to search for weapons, but they are really looking for cash, the search into a metal cash box (for weapons or cash) was okay and the deception did not make the consent to search involuntary. Miami-Dade Police Department v. Martinez, 28 FLW D614b (3d DCA March 2003). DEFACTO OFFICERS: D lacks standing to challenge Deputy's authority to search based upon improper bond or oath of office after the search. Deputy may be de facto officer. Exclusionary rule is not intended for this purpose, "particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system." In Re. R.J. v. State 5 FLW Supp. 606 (12th Cir, Manatee, Brownell 5/14/98) citing Johnson v. State 660 So.2d 648 (Fla. 1995). DEFENSE: ABANDONMENT: D, who spots LEO in store, then dumps concealed stolen items "involuntarily" abandoned the theft, thus is not entitled to the common law abandonment instruction. Carroll v. State, 680 So. 2d 1065 (3d DCA, 1996). DEFENSES: VOLUNTARY INTOXICATION: Is a valid defense for specific intent crimes. The state need not disprove intoxication, but must prove intent, which can be diminished by intoxication. Redwitz v. State, 23 FLW D987 (2d DCA 4/17/98). DESTRUCTION OF EVIDENCE: To violate due process, the evidence must have been exculpatory + D must prove actual bad faith on part of police or prosecution, not mere failure to follow procedure regarding preservation of evidence. Guzman v. State, 28 Flw S829 )Fla. 11-20-03). DISCOVERY: D'S FAULT: "A defendant should not be permitted to wait until the eve of trial, request a large number of documents from the State and then accuse the State of inexcusable delays in providing those documents. Nor should a defendant be permitted to blame his unreadiness or unavailability for trial on the State, where the defendant is tardy in his discovery request. Zyla v. Cohen, 21 FLW D1767 (3d DCA 1996); State v. Harrill, 679 So. 2d 34 (3d DCA 1996). DISCOVERY: DEFENDANTS DUTY TO INVESTIGATE: CRIMINAL HISTORY TO DEFENSE? The discovery rules were drafted to balance the scales, to require disclosure of material not otherwise available to the defense. They were not meant to supplant the defendants obligation to investigate the case and prepare a defense. The State has no duty to do for the defense work which the defense can do for itself. Matheson v. State, 468 So.2d 1011 (4th DCA 1985). TRIAL COURT MAY NOT COMPEL SAO TO RUN CRIMINAL HISTORIES ON WITNESSES FOR DEFENSE: The court may compel SAO to provide criminal histories in its possession. This will require a court order so that SAO is not in violation with its user agreement with FDLE. However, the Court may not order SAO to secure such information for defendants. State v. Crawford, 257 So.2d 898 (Fla. 1972). In Florida, any person, whether an attorney for a defendant or not, may obtain, under our public records law, the criminal history of any person. They may access www2.fdle.state.fl.us and pay a $15 fee via Visa, M.C. or Discover card. Also, Public Defenders dont even have to pay the fee, as they can call 1-850-410-8107 through P.D. coordinator Martha Wright. The ASA may offer to take witnesses fingerprints for criminal history search, and then supply this to defense, but ASA is not required to actively assist defendants attorney in investigation of the case. State v. Coney, 294 So.2d 82. The State need not provide information to defendant that is otherwise accessible to the defendant. State v. Gillespie, 227 So.2d 550 Fla. 2d DCA 1969). Therefore, Defendant must demonstrate that he is not able to obtain the information for himself. Due to the website and open chapter 119 laws in Florida, this cannot be established as to FCIC information. NCIC information from the FBI fingerprint section may be shared, upon court order, in discovery, if already in ASAs possession, not as a matter of law but comity, according to FBI memos (attached). However, SAO may not be compelled to run an NCIC check for a defendant, as this will violate federal law. Should that event occur, ASA should resist the motion, and notify the Special Correspondence Unit, Module E2, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306 or call Ms. Donna S. Gomez or David R. Loesch, Deputy Assistant Director Policy, Administrative and Liaison Branch CJIS division of FBI. For questions re. FCIC or FDLE criminal histories, call local FDLE agent, Dan Brinson at 359-5655. SAO only needs to provide criminal histories (convictions) of the witnesses the state actually intends to call as witnesses, who would be subject to impeachment, and then ONLY upon defendants showing that the information sought was not readily available to the defense through due diligence and whether defendant had exerted and exhausted efforts to obtain the information. See, Wright v. State, 803 So.2d 793 (Fla. 4th DCA 2001) Criminal Records of Witnesses: "The State has no duty 'to actively assist the defense in investigating the case'". Hansbrough v. State, 509 So.2d 1081 (Fla. 1987)("the defense has the initial burden of trying to discover impeachment evidence, and the state is not required to prepare the defense's case. This is especially true when the evidence is as accessible to the defense as to the state".) Smith v. State, 641 So.2d 1319 (Fla. 1994)(No discovery violation occurred when State failed to disclose criminal record of defense witness.) State v. Crawford, 257 So.2d 898 (Fla. 1972)("...the prosecuting attorney should not be required to actively assist defendant's attorney in the investigation of the case. ... it would be contrary to the general principle of advocacy, as well as fairness itself, to require the prosecuting attorney to perform any duties on behalf of the defendant in the preparation of the case.") "The discovery rules were drafted to balance the scales, to require disclosure of material not otherwise available to the defense. They were not meant to supplant the defendant's obligation to investigate the case and prepare a defense. 'The State has no duty to do for the defense work which the defense can do for itself.'" Matheson v. State, 468 So.2d 1011, 1013 (4th DCA 1985) See also: Stewart v. State, 26 FLW S615 (Fla. 2001)(Inmate jail records equally available to prosecution and defense.) Provenzano v. State, 616 So.2d 426, 430 (Fla. 1993)("There is no Brady violation where the information is equally accessible to the defense and the prosecution, or where the defense either had the information or could have obtained it through the exercise of reasonable diligence.") The State Attorney only needs to permit the defendant to inspect [and] copy any witness statements within the states possession or control. per Rule 3.220(b)(1). However this is coupled with the Defendants obligation to be reasonably diligent in the preparation of his defense, per. State v. Coney 272 So.2d 550, 553 (Fla. 1st DCA 1973, writ discharged 294 So.2d 82 (Fla. 1973). The SAO does not need to copy a witness statement held by the police unless defendant makes a good faith showing of a failed attempt to obtain the statement from the police himself. SAO is only responsible if the evidence is withheld by the police, per State v. DelGaudio, 445 So.2ed 605 (Fla. 1984). See, State v. Cardoso, 9 FLW Supp 136 (17th Cir. Palm Beach, 12-28-01). In State v. Williams, 678 So.2d 1356 (3d DCA 1996) the trial court departed from essential requirements of law when it ordered the state to photocopy at its own expense, documents that were freely available for defendants to photocopy. States only obligation is to allow defense counsel access to the records. Matheson v. State, 468 So.2d 1011, 1013 (4th DCA 1985)"The discovery rules were drafted to balance the scales, to require disclosure of material not otherwise available to the defense. They were not meant to supplant the defendant's obligation to investigate the case and prepare a defense. 'The State has no duty to do for the defense work which the defense can do for itself. State v. Wright, 803 So.2d 793 (4th DCA 2001) "We find no authority within the criminal discovery rules that requires the state to disclose the criminal histories of all listed witnesses, including those who will not be called to testify. Before requiring the state to secure this information for defense counsel, the trial court should have first ascertained whether the defendant could have obtained the requested criminal records from other sources through due diligence and determined whether the defendants had exhausted other available means to procure the information. "State has no duty to under Rul3 3.220(b)(1)(k) to furnish defendant with maintenance documents that the state does not intend to use in proving its case. See State v. Henrichsen, 10 FLW Supp 114b (11th Cir. Miami-Dade, 2002). The State is not obligated to produce something that it does not have. Barron v. State. 32 FLW D2002 (Fla. 3d DCA 8-22-07) The State has no duty to provide for the defense matters that are public record (speedometer calibration). State v. Bagnell, 10 FLW Supp 204a (11th Cir, Dade, 1-31-03), following State v. Counce, 392 So.2d 1029, 1031 (4th DCA 1981); and Yanetta v. State, 320 So.2d 23 (3d DCA 1975). DISCOVERY: UNWRITTEN STATEMENTS NOT DISCOVERABLE: Since Rule 3.220(b)(1)(B) provides for the discovery of written or recorded witness statements, the implication is that unwritten or unrecorded statements are not discoverable, (except D or Co-D statements or Brady). Olson v. State, 705 So.2d 687 (5th DCA 1/30/98). Here, the oral, unrecorded statements were made to the prosecutor are not subject to discovery as they are privileged "work product" and the ASA should not have been subject to deposition or testimony at trial. The invited error was by the court permitting the testimony resulting in reversal when the ASA testified that D was believed to be guilty. Even statements to prosecutor after suppression hearing are not discoverable. Whitfield v. State, 479 So.2d 208 (4th DCA 1985). But if oral statements material amends prior written or recorded statements they must be disclosed. State v. Evans, 25 Flw S744 (Fla. 00). DISCOVERY: MEDICAL RECORDS: State may not compel D. to provide medical records in discovery as D may decide not to use the privileged information. Rather, the State must give subpoena w/ notice to object. Rivera v. State, 5 FLW Supp 568 (9th Cir, Orange Co. 3/16/98). Atty- Client privilege will protect psych records unless waived, even if D. lists the expert as a potential witness = no waiver. Sagar v. State, 727 So.2d 1118 (5th DCA 1999). A psychological history report prepared for the defense is work product, even if it is disclosed to defense expert for use in testifying at trial, thus not discoverable by the state. Letters to expert by defense counsel w/ summaries of witness statements and doctors report may be learned IN TRIAL about matters relied upon by the expert in formulating his opinion; the opposing side has no right to pre-trial disclosure. Smith v. State, 29 FLW D206a (3rd DCA 2004). HIPPA rules must be followed for state and defense subpoena of victims medical records. If victim does not to release to public, states protective order is proper, and court may limit access to records to defendant and state. State may represent victims wishes in not disclosing patient records as public records, as they are not subject to further disclosure to the public or third parties w/o compliance FS 456.057. State v. Alvarez, 11 FLW Supp 327b (13th Hillsborough 1-15-04). Floridas statute is substantively more stringent than HIPPAs requirements of 45 CFR 164.512 (c) and (f), but not procedurally more stringent. Therefore, state statute applies re. substantive access to records (exempting SAO as law enforcement) , but HIPPA applies to the procedure (re. civil attorneys access?). See, Lemieux v, Tandem Health Care of Florida Inc.., 862 So.2dc 745 (2nd DCA 10-29-03). MEDICAL RECORDS HEARING: HEARSAY PERMITTED: If the ASA properly gives notice of intent to subpoena medical records, the state may satisfy its burden of production and showing of relevance by the PCA, as no testimony is required. McAlvey v. State, 32 FLW D80c (4th DCA 12-20-06), like the state may also do for application for a search warrant. State v. Sandini, 395 So.2d 1178 (Fla. 4t5h DCA 1981). DISCOVERY: DEFENDANT'S STATEMENTS: It is not a discovery violation to give police report containing D's statement and no Richardson hearing is necessary w/o a Richardson violation. (Note: contra cases where statement hidden in bulk police reports). Freeman v. State, 494 So. 2d 270 (4th DCA 1996) Also, informant statement leading officer to location admissible as not hearsay (not for truth of matter asserted), following Johnson v. State, 456 So. 2d 529 (4th DCA 1984) and U.S. v. Walling, 486 F.2d 229 (9th Cir.1973). But note: post Johnson cases hold that prejudice outweighs probative value, except that bolo w/o accusatory info is admissible as not to prove truth of matter asserted. Collier v. State, 22 FLW D2617 (3d DCA, 11-19-97). It is not a discovery violation for ASA to disclose Defendant's statements until the day of trial IF the ASA did not know of the statement until that time. Cortez v. State, 25 FLW D2044 (5th DCA 8-25-00). DISCOVERY: DEFENSE DUCES TECUM: Defendants may not issue a subpoena duces tecum without leave of court, with or without deposition. Heath v. Becktell 327 So. 2d 3 (Fla. 1976). This is also true in juvenile proceedings. State v. R.S., 22 FLW D2530 (3d DCA 1997). DISCOVERY: EXCLUSION OF DEFENSE WITNESS: If D discloses his witness on the day of trial, but subpoenaed the witness 4 days prior = violation + where testimony irrelevant = exclusion of witness. McClaran v. State, 6 FLW Supp 337 (20th Cir. 1999). See, Comer v. State, 24 FLW D807 (1st DCA 1999). If witness is located just prior to trial, defense moves for cont. = denied, and D. deposes witness during trial, then asks for a continuance to get a transcript for cross X, court errs in denying the continuance. (Does this work for ASA when D gives last minute witness to depose in hallway?) Medina v. State, 25 FLW D92 (4th DCA 2000). DISCOVERY: EXCLUSION OF DEFENSE EXHIBITS: If Defense atty. has nurses report for 2 weeks, but gives to ASA after jury is sworn, D may be excluded from using the evidence as a willful violation, even though the nurse was a listed state witness. Lafamboy v. State, 7 FLW Supp 653 (Hillsborough Co. Fuente, J. 2000). DISCOVERY: IMPEACHMENT: If ASA impeaches a witness with a transcript or report prepared in a different case, the foreseeable impeachment is required to be disclosed in discovery. A Richardson hearing is required. Shibble v. State, 29 FLW D429 (4th DCA 2-18-04) DISCOVERY: PREMATURE FILING: If D requests discovery before information is filed, it is not a nullity, but should be held in abeyance until information is filed, then state must respond w/in 15 days of filing. Pura v. State, 26 FLW D1567 (5th DCA 01). DISCOVERY: PUBLIC RECORDS REQUEST: Public records request in lieu of election to participate in discovery vests reciprocal discovery requirement. Henderson v. State, 23 FLW D890 (1st DCA 4-2-98). DISCOVERY: WITNESS TESTIMONY CHANGES: If witness had nothing relevant, then changes testimony to be relevant, ASA must disclose change. State v. Evans, 25 FLW S744 (Fla. 10-5-00). DISMISSAL OF CHARGES: NO COURT AUTHORITY: Court is without authority to dismiss a charge sua sponte without a pending motion and notice to be heard by the state. State v. Ryan New, No. AP, 00-5AC (12th Cir. 2000); State v. Stecher 5 FLW Supp 592 (17th Cir, Broward 5/6/98); State v. Ochoa 576 So. 2d 854 (3d DCA 1991); State v. Sandford, 9 FLW Supp 97 (20th Cir. Lee Co., Sturgis, J. 10-17-01); State v. Roque, 13 FLW Supp 34b (11th Cir. Miami, Oct. 14, 2005), even if the court believes that the dismissal is in the best interests of the parties and the public. State v. Patrick McDonnell, FLW Supp (17th Cir, Broward). The court errs in granting an oral motion to dismiss prior to trial w/o timely written motion to permit the state to prepare. State v. Reedy, 29 FLW D221 (2d DCA 1-14-04). Court may not dismiss misdemeanor battery charge based on State's failure to produce a witness as there are other options, incl. continuance, nolle and refile or trial w/o witness. State v. JG, 24 FLW D1625 ( DCA 99) State v. Ballentine, 6 FLW Supp 17 (11th Cir. Dade Co. 1998); State v. Abad, 6 FLW Supp 72 (11th Cir. Dade, 1998); State v. Moore, 7 FLW Supp. 416 (20th, Lee, 1999). Court abuses its discretion to deny States good faith motion to continue after granting 3 to defense, unless prejudice is shown to D. Court is w/o authority to enter a JOA where the state cannot call any witnesses, but requests a continuance. State v. Mezias, 8 FLW Supp 76 (Broward 10-4-2000). If Court refuses to dismiss the case, but orders the ASA to start the trial w/o a material witness, then finds defendant not guilty, is the same as a dismissal, and the State retains the right to appeal. State v. T.D., 837 So.2d 551, 4th D.C.A (2003). The proper procedure is to have defendant file a motion under 3.190, not for the Court to dismiss a case at a pre-trial plea conference. State v. Calixte, 28 FLW D559a (4th DCA March 2003). Court errs in dismissing the charge merely because the arresting officer was not in the courtroom at the moment when the case was called. State v. C.R.K. 28 FLW D1455 (5th DCA 6-20-03). DISMISSAL: MOTIONS: State's traverse generally stating no material disputed facts listed on c-4, but there are additional material omitted facts that are in dispute is not legally sufficient as without specificity of disputed facts. State must specify additional facts that would show a prima facie case. State v. Klalogeropoulos, 25 FLW S360 (Fla. 5-11-00); conflicting with Branciforte v. State, 678 so. 2d 426,427 (2d DCA 1996); and State v. Blanco, 432 So. 2d 633,634 (3d DCA 1983). Failure to traverse = hearing on demurrer, not automatic dismissal. Not dismissed, even if judge feels State will not survive a JOA, i.e. "knowledge" on possession case. State v. Paleveda, 24 FLW D2414 (2d DCA 1999). A specific traverse w/ additional acts that creates a material issue of facts should compel a denial of motion to dismiss. Allen v. State, 28 FLW D1943 (4th DCA 8-20-03). If D files a c-4 motion under 3.190(c)4, and the state fails to traverse, resulting in the court granting the dismissal, if the Court indicates it is with prejudice the state may not refile, then traverse next time. State v. Sadler, 30 FLW D2843a (5th DCA 2005) DISMISS: MOTION: ILLEGAL ARREST: An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. Gerstein v. Pugh, 420 U.S. 103, 119 (1975); Frisbie v. Collins, 342 U.S. 519 (1952); Kerr v. Illinois, 119 U.S. 436 (1986); U.S. v. Crews, 445 U.S. 463, 474 (1980); See also: State v. Ostrow, 579 So.2d 292 (3rd DCA 1991); State v. Stevens, 574 So.2d 197 (1st DCA 1991); Spencer v. State, 443 So.2d 1087 (3rd DCA 1984); Perry v. State, 874 So.2d 494 (5th DCA 1985). DISORDERLY CONDUCT: D's tirade toward LEO is Dis. Conduct if it excites a crowd to extent of officer safety concerns. Marsh v. State, 24 FLW D214 (5th 1999). In the case of "verbal conduct" the statute only applies to words, which by their very utterance tend to inflict injury or tend to incite an immediate breach of peace. State v. Sanders, 339 So. 2d 644 (Fla 1979); State v. Hernandez, 6 FLW Supp 156 (Dade 1999); Chandler v. State, 744 So.2d 1058. Words alone cannot constitute disorderly conduct unless they are >fighting words= or words like shouts of >fire= in a crowded theatre. See, Wiltzer v. State, 756 So.2d 1063 (Fla. 4th DCA 2000). Disorderly Intoxication is limited to situations where the pubic safety is endangered. Jernigan v. State, 566 So.2d 39, 40 (Fla. 1st DCA 1990). Note: this "free speech" analysis is not otherwise applicable to disturbing "peace and quiet of another" if causation is i.e. loud music. If D is so loud and persistent that it interrupts police station function or other citizens, it may not be protected speech. White v. State, 330 So.2d 3 (Fla 1976); Owenby v. State, 6 FLW Supp 533 (Polk, 1999). D's act of yelling to crowd that restaurant owners are "Jews, God Haters, who serve bad food" is disorderly conduct as the speech constitutes "fighting words." Chamblee v. State, 7 FLW Supp 662 (Hillsborough Co. Fuente, J. 2000). Self defense is applicable for disorderly conduct by fighting. DML v. State, 25 FLW D2827 (3d DCA, 12-13-00). DISQUALIFICATION OF STATE ATTORNEYS OFFICE: A defendant must show actual specific prejudice, not just an appearance of impropriety when an ASA may have to testify. State v. Lewis, 32 FLW D1005a (Fla. 3d DCA April 18, 2007). There is no inherent right to disqualification when a member of the state attorneys office is called as a witness in a case prosecuted by a state attorney in the same office. That is because any enhancement of credibility of the witness is because the witness is a prosecutor, not because the same office introduces the testimony. State v. Clausell, 474 So.2d 1189, 1191 (Fla. 1985). DOMESTIC VIOLENCE: ADDRESS CONFIDENTIALITY PROGRAM: F.S. 741.465 permits a.g. to accept mail for d.v. victims who qualify. F.S. 741.401 - 741.409 permits public records disclosure of d.v. victim to exclude victim's address. DOMESTIC VIOLENCE: BATTERED SPOUSE SYNDROME: Prosecution barred from syndrome testimony to show victim did not consent to sex. Williams v. State, FLW (2d DCA 7-21-99). DOMESTIC VIOLENCE: CONSENT TO BATTERY: A...[C]ivilized society cannot permit individuals to >consent= to the type of injury inflicted in this case. While the victim recanted her statement to the police regarding her injuries, a common occurrence in domestic violence situations, those issues are for the trier of fact to sort through in light of all the evidence in the case. Court cannot dismiss case at conclusion of adversarial probable cause hearing. State v. Conley, 26 FLW D2684 (4th DCA 11-14-01). If 911 call does not establish the lack of consent or intent to cause harm, the case may be JOAd. Baker v. State, 32 FLW D1617a (Fla. 2d DCA June 29, 2007). DOMESTIC VIOLENCE: EVIDENCE: EXCITED UTTERANCE: Victim may provide time element to LEO by saying that the police arrived "almost immediately" during excited statement. Rivera v. State 23 FLW D 1991 (4th DCA 1998). 911 call may be excited. utt. Williams v. State, 714 So.2d 464 (3d DCA 1997), even if declarant is unavailable to testify or cross-x as it is a "firmly rooted exception" requiring no corroboration, even as to D's i.d. State v. Frazier 26 FLW D553 (5th DCA 3-3-00) Frazier v. State, 25 FLW D553 (5th DCA 00). The court must still make the findings of 3 pronged test: 1) startling event to cause nervous excitement; 2) no time to contrive a story; 3) statement made while the person is still under the duress of the event. Tucker v. State, 29 FLW D1702 (2d DCA 7-23-04). Although "prior inconsistent statement" may not be the only evidence of an element (intent), RTL v. State, 25 FLW D1867 (4th DCA 2000), if the trial testimony conflicts with excited utterances, JOA should not be granted. Williams v. State, Id. citing Rivera v. State, 718 So.2d 856 (4th DCA 1998); Lopez v. State, 716 So.2d 301 (3d DCA 1998) and Willis v. State, 23 FLW D108 (4th DCA 1999)(applies to VOP's). 50 minutes between kidnapping and victim finally calming down enough to make a statement indicates she was still under the stress of the act. Bell v. State, 28 FLW D1365a (3rd DCA 6-11-03). Statements may still qualify as e.u. even if responses to LEO questions if the time delay is brief (25 minutes), per Pressley v. State, 28 FLW D1610 (4th DCA 7-9-03), following Cotton v. State, 763 So.2d 437 (4th DCA 2000), holding that the distinction is a preliminary fact to be determined by the trial court. DOMESTIC VIOLENCE: EVIDENCE: IMPEACHMENT: Prior uncharged false reports of a different D. of d.v. is admissible re. credibility & motive. Cliburn v. State, 23 FLW D1057 (2d DCA 1998); See Nelson v. State, 23 FLW D362 (5th DCA 1998). DOMESTIC VIOLENCE: DUTY TO RETREAT: Co-occupants of a home need not retreat from the castle before using deadly self defense. Weiland v. State 732 So.2d 1044 (Fla 1999). DOMESTIC VIOLENCE: I.D. OF VICTIM NOT AN ELEMENT: No ID of victim is required as the element is another person, not any particular person. State v. Trehen, 5 FLW Supp 729 (1998), citing State v. Moultsby 688 So. 2d 1010 (3d DCA). DOMESTIC VIOLENCE: INJUNCTIONS: State must prove D was served injunction. Court may not take judicial notice of personal service. Hernandez v. State, 23 FLW D1749 (3d DCA 7/29/98). Permissive inference w/o burden shifting is allowed w/ judicial notice. Cordova v. State, 675 So. 2d 632 (3d DCA 1996). Personal service on the permanent injunction is required or = JOA as it is insufficient that D was served the temporary injunction, even if the temporary compelled D's appearance at the permanent hearing and though the clerk mailed the permanent order to D's last known address, per F.S. 741.30 and Family Law Rule 12.610. Silas v. State, 6 FLW Supp 628 (Lee Co. 1999). Notice of injunction is sufficient proof of notice not to trespass at prohibited place. Jordan v. State, 27 FLW D56 (3d DCA 2002). DOMESTIC VIOLENCE: INJUNCTIONS: PROCEDURES: Must be initiated by service of order to show cause; hearing must be on record; all ordinary criminal proceeding protections; = max 6 mos. jail w/o jury or 11-29 jail if jury tried or D. waived jury. Blalock v. Rice, 22 FLW D2169 (2d DCA 9-10-97). D may violate extension of injunction if notice of hearing, but did not appear, if got served extension. Also indirect communication w/ ex-wife is viol. of inj. and not protected free speech. Nelson v. State, 5 FLW Supp 48 (10th Cir. 9-112-97). DOMESTIC VIOLENCE: INJUNCTIONS: PROSECUTOR: This interesting case quotes from recent case of Gordon v. State, 32 FLW D1334a (Fla. 4th DCA may 23, 2007): stating that FS 741.30(9)(a) that the legislature intended that the beneficiary of a civil protective order should be permitted to enforce the order through an intrafamily contempt proceeding, quoting Green and then Wilson because "the trial judge, and not a private attorney, is the one to determine whether a contempt action may proceed, there is little risk that a defendant's liberty interest will be erroneously deprived by allowing the plaintiff's / petitioner's attorney to prosecute the contempt charge/ Second, the court pointed to the "tremendous fiscal and administrative burdens" that would result from a rule barring a party's attorney from prosecuting a criminal contempt in a family law case: then quotes Wilson at p. 903 as: Contempt proceedings often arise in domestic relations cases in state courts. However, unlike the federal system, there is no fund in Tennessee from which to compensate private counsel appointed to prosecute civil contempt actions. IT IS UNREALISTIC TO EXPECT DISTRICT ATTORNEYS TO PROSECUTE CONTEMPT ACTIONS ARISING FROM ALLEGED VIOLATIONS OF CIVIL COURT ORDERS. DISTRICT ATTORNEYS ALREADY HAVE A HEAVY CASELOAD OF PROSECUTING VIOLATIONS OF THE GTENERAL CRIMINAL LAWS. WERE WE TO HOLD THAT DUE PROCESS PRECULDES A LITIGANT'S PRIVATE ATTORNEY FROM PROSECUTING CONTEMPT PROCEEDINGS, MANY CITIZENS WOULD BE DEPRIVED OF THE BENEFITS TO WHICH THE ALREADY HAVE BEEN ADJUDGED ENTITLED BY STATE COURT AND MANY STAT COURT ORDERS WOULD REMAIN UNENFORCED." Note: Whenever the court appoints the prosecutor on a contempt case the effect of the order is to appoint the prosecutor to assist the court within the meaning of Rule 3.840(d) by calling witnesses at the contempt hearing. This was not a case where the courts order bestowed on the prosecutor (the petitioners civil attorney) all the powers of a prosecutor, and the rule in Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) where in federal court a U.S. attorney should be appointed to do so did not apply to such contempt prosecution arising out of a state civil case. DOMESTIC VIOLENCE: FIREARM / INJUNCTION: M1 to possess firearm or ammo during d.v. injunction, eff. 7-1-98 ' 741.30(6)(b) or repeat violence injunction ' 790.233. Also, Title 18 USC ' 921 creates a federal misdemeanor to posses firearms upon conviction of an act of domestic violence. A conviction in a state court may (or may not) include a withhold adjudication. 11th Circuit just held that a Florida w/h counts as a conviction for purposes of element of Aprior conviction to prosecute Defendant for possession of a firearm by a convicted felon. U.S. v. Chubbuck, 2001 WL 589088 (11th Cir. 2001). DOMESTIC VIOLENCE: EXCITED UTTERANCE: UNKNOWN TIME LAPSE: Even if State is unable to establish the time of the battery, a victim who is still crying and appears to be afraid may sufficiently establish lack of opportunity to reflect or deliberate prior to making the statement as a spontaneous statement. Lyles v. State, 412 So. 2d 458 (2d DCA 1982). If she is still under the stress of the excitement, the state need not establish the time of the exciting event. Jano v. State, 524 So. 2d 660 (Fla. 1988); Canady v. State, 5 FLW Supp 102 (Hillsboro Co. 10-21-97). But see, State failed to prove an act of DV at a VOP hearing based upon an excited statement from victim (intoxicated, hysterical, very frantic and excited, but not crying) that her husband just grabbed her throat and she was afraid to return to the house, corroborated by a faint red mark on victims neck. The Court reasoned, that even though the trial court did not rule this was an excited utterance, and the Court found D in VOP with the additional non-hearsay evidence of the red mark, the evidence would not have been an excited utterance and the red mark alone failed to show D did the strangling. This was based upon a lack of proof of timeliness, as victim only said that it had just occurred, yet she had time to go to a nearby phone booth, call 911, and wait for the deputy, thus she could have reflected upon her report. See, Coldwell v. State, 28 FLW D647a (2nd DCA 3-5-03, Casaneuva). This case followed other 2d DCA cases of Blair v. State, 805 So.2d 873 (2d DCA 2001) and Bales v. State, 793 So.2d 87 (2d DCA 2001). DOMESTIC VIOLENCE: RECANTATION: PRIOR INCONSISTENT STATEMENTS: Explanation that prior statement changed due to fear or threat, even not linked to Defendant is generally admissible. Lopez v. State, 23 FLW D1752 (3d DCA 1998). DOMESTIC VIOLENCE: RECANTATION: Where police observed physical injuries to victim and defendant, hiding on roof said the victim aggravated him into doing what he did, and then victim recants battery at trial, is sufficient to go to jury. State v. Bagley, 22 FLW D1732 (5th DCA 7-18-97). If the only evidence of battery is prior inconsistent statements of victim, who recants at trial, may not convict, but if there is other corroborating evidence, may = guilty. State v. Green, 667 So. 2d 756 (Fla 1995). If prior inconsistent statement is corroborated w/ injuries observed by LEO and victim and son recant at trial = suff. to sustain conviction. Note, here the prior inconsistent statements were admissible "excited utterances", thus substantive evidence. Williams v. State, 22 FLW D2410 (3d DCA 10-15-97, receding from its opinion a month ago based upon mere "inconsistent statements") However, mere inconsistencies or lack or recollection vs. contradictory statements will be admissible and sustain a conviction. HRS v. MB, 22 FLW S295 (1997). DOMESTIC VIOLENCE: REPORTING: E.R. no longer required to report all wounds of violence, only the "life threatening" injuries. F.S. 790.24, eff. 7-1-99. DOMESTIC VIOLENCE: SELF DEFENSE: BATTERED SPOUSE SYNDROME: Though D. may use syndrome for her own self defense, a defendant may not admit evidence of the syndrome in claim that victim suffered. Trice v. State, So. 2d (2d DCA 9/11/98). DOMESTIC VIOLENCE: SELF DEFENSE: VICTIM'S REPUTATION: Victim's reputations for violence specific prior acts of violence are admissible to show victim's dangerous character, but defendant must show that he knew of this prior to the self defense. Testimony by non-defendants is not relevant. Johnson v. State, 23 FLW D1947 (5th DCA 8/21/98). Defendant must also show that the victim committed an overt act at the time of the present confrontation to justify a need for self defense, and there must be testimony that the victims prior acts occurred prior to the date of this current offense. Brown v. State, 11 FLW Supp 209c (Palm Beach 1-22-04). DOMESTIC VIOLENCE: SELF DEFENSE: COMMENT ON D. NOT CALLING WIFE: If D claims self defense and missing witness is Ds wife, who visited D in jail, etc. State may comment on failure to call the wife, as she is not equally unavailable to the State. Reid v. State, 26 FLW D2711 (4th DCA 11-14-01). DOMSTIC VIOLENCE: SENTENCING MULTIPLIER: Amdt. to Fla.R.Crim.P. 3.704(d)(23) for in the presence of a child is mandatory, not discretionary. 24 FLW S570 (Fla. 12/10/99). DOMESTIC VIOLENCE: TAMPERING BY DEFENSE ATTORNEY: DISCIPLINE: The Lawyer may be disciplined by the Florida Bar by calling victim and attempting to dissuade prosecution for domestic battery and for following up the calls with a letter that threatens to expose the victim and her children to ridicule, contempt and hatred. This type of conduct violates Rules 4-4.4, 4-8.4(a) and 4-8.4(d). The Florida Bar v. Buckle, 25 FLW S815 (Fla. 10/12/00). DOMESTIC VIOLENCE: VICTIM TESTIFYING: CORROBORATION: No corroboration required to survive J.O.A. Saleem v. State, 25 FLW D2352 (5th DCA 9-29-00). DOMESTIC VIOLENCE: VIOLATION OF PRE-TRIAL RELEASE: 741.29(6) Creates a new 1st degree Misdemeanor to violate conditions of pre-trial release for d.v. and permits a p.c. arrest w/o bond. Note: The Court must pronounce no contact as a special condition of pre-trial release, to authorize the arrest for violating the no contact provision. FS 903.047 states that the Court (1)shall require that (b) the defendant refrain from any contact of any type with the victim, except through pretrial discovery, This must be a pronounced special condition, compared with the general condition of probation of no victim contact for sentencing under FS 948.948.03(1). If the no contact provision is not pronounced at bond hearing, it has no effect on a substantive violation of 741.29. Pilorge v. State, 29 FLW D1349 (5th DCA 6-4-04); also F.S. 784.03(2) creates felony for 3d offense battery, effective October 1, 1997. DOMESTIC VIOLENCE VOIR DIRE (cycle): May be prohibited from suggesting that d.v. is cyclical or tends to recur; that the epidemic of d.v. should be stopped; etc. Sackett v. State, 764 So.2d 719 (2d DCA June 28, 2000, Whatley, J.). DOMESTIC VIOLENCE: WILLIAMS RULE: Similar fact of d.v. may be admissible in murder case to show motive, intent and premeditation. Burgal v. State, 24 FLW D1629 (3d DCA 99). DOMESTIC VIOLENCE: STALKING: If, during injunction, D calls V. in January, then looks in her window in October = sufficient course of conduct and continuity of purpose to = agg. stalking. McKinnon v. State, 23 FLW D1723 (1st DCA 1998). DOUBLE JEOPARDY: MISTRIAL: Court must consider all possible alternatives, including continuance, before sua sponte ordering mistrial, even if domestic violence victim fails to appear, unless defendant consents, as is not "manifest necessity." Otherwise, retrial is barred by double jeopardy. State v. Richardson, 4 FLW Supp 798 (Hillsboro, 1997). DOUBLE JEOPARDY: EPISODE: Not double jeopardy to convict for breaking rear window, then going to front yard and breaking front window as there was a separation in time and location. Nicholson v. State, 25 FLW D970 (4th DCA 4-19-00). 2 counts stalking during the same period is barred by double jeopardy since it is a "course of conduct" crime. Marinelli v. State, 23 FLW D591 (2d DCA 2-25-98). May not convict of battery and violation of injunction for same act of battery. Young v. State, 27 FLW D2239aa (5th DCA 2002); Doty v. State, 29 FLW D2129 (4th DCA 9-22-04)s. The Blockburger test is reinstated when U.S. Sup. Ct. overruled Grady v. Corbin, 495 US 508 (1990) with U.S. v. Dixon, 509 US 688 (1993); See, Gordon v. State, 26 FLW S90 (Fla. 2-22-01). This should overturn Carawan v. State, 515 So.2d 161, 167 (Fla. 1987) re. Doctrine of lenity for same conduct under 2 separate statutes CONSTRUCTIVE POSSESSION: May be established if gun is partially visible, Defendant ran from car and owner of car testifies that gun is not hers. Jacobs v. State, 24 FLW D1761 (3d DCA 99). If D is in exclusive possession of brick of cocaine wrapped in duct tape = sufficient to infer knowledge that the substance is controlled substance. State v. White, 25 FLW D911 (4th DCA 00). But, m.j. found in D's backpack, even w/ D's other possession does not. EHA v. State, 25 FLW D1629 (4th DCA 7-5-00). Constructive possession is established if contraband is in plain view of an occupant or owner. State v. Reese, 26 FLW D203 (5th DCA 1-12-01). If drugs are not in plain view, in glove box of Ds own car, w/ other passengers present, constructive possession is not established. K.A.K. v. State, 29 FLW D2302 (2nd DCA 10-15-04). Search warrant for house where LEO found contraband in defendants clothing hanging in closet. At trial, girlfriend testified that it was her contraband that she hid in his clothes that he hardly ever wore. This was a reasonable hypothesis of innocence, which reversed the conviction. Wagner v. State, 32 FLW 673b (2d DCA 2007). DOUBLE JEOPARDY: DUI / DL SUSPENSION: It is not double jeopardy to give roadside suspension + dui prosecution, as such roadside suspension is a public safety suspension vs. DUI conviction = punishment. Also, detention of D for 8 hours for b.a.c. is not double jeopardy. State v. Atkinson, 25 FLW D1107 (5th DCA 5-5-00). Also, Circuit Court may not stay the roadside suspension pending appellate review as this "privilege" is legislative providence, not Rule of Court. DHSMV v. Begley, Faxmail#5021 (1st DCA 5-8-00). DOUBLE JEOPARDY: PRE-TRIAL RELEASE CONDITIONS: State v. Torres, 29 Fla. L. Weekly D2726 (2d DCA 12/8/04); Parent v. State, 30 FLW D93 (2nd DCA 2004) (2d DCA 12/29/04). Holding that the imposition of reasonable pretrial release conditions does not constitute punishment for purposes of the Double Jeopardy Clause. DRUGS: PROOF OF ILLICIT NATURE: Defendant is entitled to an instruction that the Defendant knew of the illicit nature of the substance in question, even if he presents no evidence. If such an instruction is given, the State is then entitled to an instruction that knowledge of the illicit nature can be inferred from the fact of the possession. Washington v. State, 27 FLW S186b, State v. Williamson, 27 FLW S181a (Fla. 2002). DRUGS: TRACE AMOUNT: A trace amount of heroin found in a common object (plastic bag) is now sufficient to establish possession. Gilcrest v. State, 26 FLW D1416 (3d DCA 6-6-01) reversing, Gilcrest at 26 FLW D329 (3d DCA 01). Trace amounts of cocaine on a non-drug related item, such as currency, may not establish knowledge of the presence. Lord v. State, 616 So.2d 1065. Trace amounts of crack in a crack pipe is sufficient for the conviction. Andres v. State, 26 FLW D559 (2d DCA 2-23-01). However, the residue in a pipe must be tested to verify that its cocaine to show that the pipe was used for illicit purposes. Goodroe v. State, 27 FLW D772a (4th DCA 2002). DUI: ACCIDENT PRIVILEGE: It is back. If LEO indicates in any way that driver must say anything at scene of crash, the LEO must not only switch hats, per State v. Norstrom, 613 So. 2d 437 (Fla. 1993), but read Miranda. Failure to do so will result in suppression of post "accident investigation" statements. State v. Marshall, 695 So.2d 686 (Fla. 1997) overturning State v. Riley, 617 So. 2d 340 (1st DCA 1993). The question is "custody" and D not in custody at crash during DUI investigation, even when blood is drawn. State v. Johnson, 96-2041, 22 FLW D1062 (5th DCA 4-25-97). D. is in custody if told LEO investigating DUI and D cannot leave scene, and statement of driver identity may be suppressed. State v. Evans, 22 FLW D1084 (4th DCA 4-30-97). But see Contra, Combs v. State, 436 So. 2d 93. (Fla.1984). Other exceptions to the "privilege" include refusal to take fst or breath test as "non-testimonial." State v. Taylor, 648 So. 2d 701 (Fla.1995); State v. Zamborac, 3 FLW Supp 141 (9th Cir., Orange, Russell); State v. Marlow, 3 FLW Supp 142 (9th Cir. Orange, Conrad); South Dakota v. Neville, 459 US 553, 103 S.Ct. 916 (1983); adopted by State v. Pagach, 442 So.2d 331 (2d DCA 1983). Voluntary statements are not protected by the "privilege." Connor v. State, 398 So.2d 983 (Fla.1981). The "privilege" is not applicable if defendant's 5th amendment rights are not impacted. State v. Johnson, 22 FLW D1062 (5th DCA 1997). One who left scene of accident and is not reporting the accident is not privileged. Cummings v. State, 26 FLW D126 (2d DCA 01); See, State v. Smity, 7 FLW Supp 274 (Hillsboro, Fuente, J. 2000); State v. Knotts, 7 FLW S. 479 (Palm Beach 00); State v. Ferguson, 405 So.2d 294 (4th DCA 1981); Hepburn v. State, 460 So.2d 422 (5th DCA 1984). Accident privilege does not bar any aspect of FST. State v. Whelan, 24 FLW D640 (3d DCA 99). Privileged statement of driving is suppressible at trial, but may be used under "fellow officer rule" to establish p.c. to arrest. State v. Ledegang, 6 FLW Supp 441 (17th Cir., Broward 1999). Spontaneous admissions are not protected by the privilege. Sullivan v. DHSMV, 10 FLW Supp 148b (Duval, 4th Cir. 1-28-03); Anderson v. DHSMV, Perez v. State, 630 So.2d 1231 (2d DCA 1994). Privileged information may still be used at suppression hearing to determine p.c. State v. Lawson, 10 Flw Supp 400b (17th Cir. Broward, 2003). Immediate report to trooper arriving at the scene is spontaneous, not under compulsion to report the accident. State v. Walker, 11 FLW Supp 311b (Seminole 2-2-04). Similarly, statements made to LEO who is not investigating the accident are not privileged. State v. Escobar, 11 FLW Supp 314b (Miami-Dade 2-18-04). A statement to LEO in response to LEOs question of passenger is not privileged. State v. Dukate, 11 FLW Supp 346c (14th Bay Co. 1-29-04). Privilege is not breached to establish probable cause. State v. Zachary, 11 FLW Supp (17th Cir. 2004). DUI: AFTER PRIORS: MANDATORY SANCTION: The mandatory sanction of jail or in house treatment and the mandatory sanction of fine or work off as psw are mandatory. See, State v. Self, 504 so.2d 810 (2d DCA 1987); State v. Muoio, 438 So.2d 160 (2d DCA 1983); and State v. Rowell, 669 so.2d 1089 (2d DCA 1996). Court does not have authority to sentence to less or suspend the mandatory sanction, not even to give felony drug offender probation in lieu of jail or prison. State v. Line, 698 so.2d 318 (4th DCA 7-30-97). Court may not impose house arrest in lieu of 30 day mandatory jail for 3d offense w/in 10 years. McCarthy v. State, 689 so.2d 1095 (5th DCA 1997)'; State v. Goodman, 7 FLW Supp 97 (Palm Beach Co. 1999); State v.Foster, 7 FLW Supp 252 (Palm Beach 2000); State v.Shatney, 5 FLW Supp 641 (9th Cir. 1998). Mandatory DUI penalties must be applied. State v. Haddix, 668 So.2d 1064, 1067 (4th DCA 1996). However, if long prison sentence is imposed, court may omit psw or impound, but still is required to impose DUI school. McGhee v. State, Fax mail op# 3060 (4th DCA 3-19-03). Ignition interlock is a mandatory sanction of a DUI after prior or > .20 b.a.c. If court refused to order this, the sentence should be reversed on appeal. State v. Bonita Burton-Zeini, 11 FLW Supp 309c (Broward 1-15-04). Ignition interlock is a mandatory condition of the criminal sentence that is still required even though the 1st DUI conviction was in 1979. State v. Laird, 11 FLW Supp 417c (17th Cir., Broward 2-3-04). However, if court did not order ignition interlock as a criminal sanction, and the state did not appeal or object, DHSMV is not authorized to do so. Barry v. DHSMV, 11 FLW Supp 379a (2nd Circuit, Leon 4-2-04). Nichole Stoletz was found not guilty in Manatee County for DUI manslaughter, but found guilty of plain DUI and felony DWLS, then was given a lifetime revocation. She complained that 322.28(2)a)2 only permits a 5 year revocation as a more specific sanction for DUI than the broad discretion of the court under 316.655(2) to revoke the d.l. for any 316 violation. Although the court should apply the narrow, more specific DUI penalty, it permits a suspension longer than the minimum 5 years (including lifetime revocation) and when there is another 316 violation, the court has discretion to revoke permanently. Stoletz v. State, 875 So.2d 572 (Fla. 5-20-04), overturning Whipple v. State 789 So.2d 1132 (4th DCA 2001). DUI: AFTER PRIOR CONVICTION: PROOF BY C.D.R.: A certified driving record is self-authenticating and admissible to establish a prior driving conviction per F.S. 322.201. See Lee Cohens response and court affirmation that the statutory rebutable presumption of admissibility is not unconstitutional in State v. Taylor, 12 FLW Supp 1163b (17th Cir. Broward, 2005); Caruthers v. DHSMV, 13 FLW Supp 39b (20th Cir. Charlotte Co. Oct. 10, 2005). However, a defendant may object or require the state to establish that the conviction occurred, the conviction was for a similar charge, that the conviction was not overturned, that the defendant was the person convicted, or that a prior conviction was uncounselled or not knowingly waived rights. Even if no objection, the CDR may not be sufficient evidence to sustain a conviction without additional proof that the defendant is the person that the CDR or certified copy of conviction shows a conviction of. State v. Pelicane, 740 So.2d 529 (Fla. 1999).and Sylvester v. State, 25 FLW D2561 (5th DCA 2000), conflicting with Kohler v. State, 534 So.2d 1213 (1st DCA 1988). 5th DCA disagreed, holding that the CDR is admissible as evidence of suspension on certified machine imprint unless genuine issue of authenticity is raised. Gowins v. State, 25 FLW D132 (5th DCA 1/14/00), following Kohler. 2d DCA agrees w/ 4th DCA that CDR is sufficient proof of prior convictions w/o ASA proving each prior as an element. State v. Fields, 27 FLW D476, agreeing with Rogers v. State, 26 FLW D2886 (4th DCA 12-5-01), but conflicting with Sylvester v. State, 770 So.2d 249 (5th DCA 2000). Also, HTO does not require certified copies of prior convictions either. Gouion v. State, 25 FLW D503 (5th DCA 2000) found that the priors for a Habitual Offender was sufficient to shift the burden to D. to show misidentification by submitting Alabama J&S with D's name and SSN. See also, Smith v. State, 25 FLW D664 (5th DCA 2000) where cert. conv. shifts burden to D. to prove that he did not serve prison time on a PRR hearing. Fingerprinting is not necessary, though it is good proof, it is not the only method of proof. The Fla. Sup. Ct. now permits proof of priors by J&S only, unless D challenges the validity of the conviction (but not by collaterally attacking the conviction during subsequent trial). State v. Harbaugh, 754 So.2d 691 (Fla. 3-9-00), following State v. Vasquez, 419 So.2d 1088, 1091 and Parker v. State, 408 So.2d 1037,1038. Also, if the second or subsequent conviction was w/o an attorney,, and D shows 1) punishable > 6 mo.; 2) indulgency; 3) no atty; and 4) no waiver of counsel = State may not use the prior to enhance. State v. Beach, 592 So.2d 237 (Fla. 1992); Kirby v. State, 24 FLW D1954 (1st DCA 1999). Photographs may sufficiently prove identification of D to prior offense w/o fingerprint comparison on a PRR case (requiring only proof by preponderance for sentencing purposes only). Wencel v. State, 25 FLW D1993 (4th DCA 8-23-00), but state must show a link between CDR and D. Coyne v. State, 25 FLW D2063 (4th DCA 8-30-00). Now, fingerprints may not even be enough to score a prior conviction on felony sentencing guidelines if the booking prints do not show a nexus with the conviction. Newman v. State, 26 FLW D808 (2d DCA 3-21-01). Although certified convictions are necessary proof of a prior conviction, they do not establish proof of Ds i.d. and may not, on their own, prove the element of Aprior conviction. However, D must object to preserve a claim on appeal. Jackson v. State, 26 FLW D1129b (4th DCA 2001). Now, Fender v. State, 32 FLW D2163 (Fla. 4th DCA, Sept. 12, 2007) held that the new statute invalidated the holdings in Pelicane and Jackson and establishes presumptive proof of the prior DUIs. If proof of priors is not an element of the charge (felony DUI) but to deny hardship (or enhance misdemeanors [Haddix]) the CDR is sufficient proof by preponderance. See, Mikesell v. State, 9 FLW Supp 231 (20th Cir, Lee Co. 2-11-02). It was sufficient proof of ID of prior conviction as an element of felony DUI for the court to take judicial notice of a prior file containing Ds photograph and an arrest affidavit that contained detailed descriptions of the defendant. Ward v. State, 27 FLW D491b (4th DCA 2002). An additional holding in Arthur v. State, 27 FLW D963 (5th DCA 4-26-02) that State need not prove underlying cause of HTO: Court also said the CDR was sufficient proof of ID of D because it included his name, address, birth date and SSN. The only thing lacking was DNA. This case receded from Sylvester v. State, 770 So.2d 249 (5th DCA 2000) for proof of ID on HTO for DWLS. ASA should consider this as argument that the CDR MAY establish sufficient proof of defendants identification for DWLS, but see the Supreme Court ruling on Pelicane. CDR is sufficient proof of the revocation w/o proof of the underlying offense on felony DWLS. Sorrell v. State, 28 FLW D1998 (4th DCA 8-27-03). However, proof of prior convictions by J&S that excludes the middle initial, fingerprints, or other identifying information is insufficient proof of i.d. for the element of prior conviction. Mason v. State, 28 FLW D2021 (1st DCA 8-29-03). CDR is sufficient proof of prior out of state convictions by a preponderance to suspend the Florida D.l. Littman v. DHSMV, (1st DCA 4-6-04). DUI AFTER PRIOR CONVICTION: TRIAL PROCEDURE: The state must accept a defendant's offer to stipulate to the element of "prior conviction" for the purposes of possession of firearm by convicted felon, where the jury is told that they may consider the convicted felon status element of the crime as proven by agreement of the parties in the form of a stipulation. Brown v. State, 23 FLW S535 (Fla. 10-15-98). The rule of Rodriguez, whereby the prior convictions should be heard separately by the trial court after the jury finds DUI, is now reconsidered in light of U.S. v. Gaudin, 115 S. Ct. 2310 (1995), which requires that the jury determine all the elements of a crime. Federal Courts reaffirmed the due process requirement that the jury consider proof beyond reasonable doubt if the proof of prior conviction increases the penalty beyond the prescribed statutory penalty. Apprendi v. N.J., 12- S.Ct. 2348 (2000). Since the prior convictions of a felony DUI is an "element" of the offense, Lewellen v. State, 682 So. 2d 186 (2d DCA 1996); Gayman v. State, 616 So. 2d 17, 19 (Fla. 1993); Woodruff v. State, 676 So.2cd 975, and since Gaudin requires the jury to determine this element, must the procedure become a bifurcated trial (similar to Rodriguez) only before the jury? Harbaugh v. State, 711 So.2d 77 (4th DCA 4-15-98)? Yes, jury determines elements in a bifurcated trial. Harbaugh Case 754 So.2d 691 (Fla. 2000). The bifurcated procedures created by Rodriguez for DUI and State v. Harris, 356 So. 2d 315 (Fla. 1978) for petit theft (where the trial court determines the prior convictions, concealing this element from the jury) were not applied to the crime of possession of firearm by a convicted felon. Parker v. State, 408 So. 2d 1037 (Fla. 1982). Note: Parker is now overturned by Brown, Id. Gaudin is applied retroactively, even where the defendant did not object to the determination by the trial court. Johnson v. U.S. 117 S. Ct 1544 (1997). However, in the Twelfth Judicial Circuit, unless the defendant demands this right at jury trial, the Rodriguez procedure controlled, Johnson v. State, Ap. No. 96-22AC, 96-2228T (Dubensky, 5-18-98), at least until the Harbaugh certified question was ruled upon by the Florida Supreme Court. The state now must accept a defendant's offer to stipulate to the prior conviction for the same offense that the Defendant is presently standing trial, as was required in Sumpter v. State, 635 So. 2d 635 (4th DCA 1993) and Old Chief v. U.S., 117 S. Ct 644 (1997). Florida now follows Old Chief re. offer of stip to prior conviction for same offense as presently charged. Brown v. State, 719 So.2d 882 (Fla. 10-15-98). If state refused to accept defendant's offer to stipulate to 5 prior convictions, Defendant must object at trial to preserve appeal. Ellis v. State, 24 FLW D1051 (5thd DCA 4-30-99). Effective 3-9-00, the Rodriguez bifurcated trial procedure must occur; only now, the jury, not the trial court, determines the element of after 3 prior convictions. D's offer to stipulate to the priors must still be accepted by the State and the Defendant may not collaterally attack the prior convictions in the second phase of the trial. State v. Harbaugh, No SC 93037 (Fla. 3-9-00). Defendant may not challenge the legality of a prior conviction from a foreign court in the new court on the new charge. State v. RothenBush, 5 FLW Supp 91 (13th Cir, Hillsboro, 8-27-97). The State need not stipulate to other evidence upon defendant's offer to stip, i.e. driving element of DWLS. James v. State, 6 FLW Supp 615 (Dade 1999). : Defendant has the right to a bifurcated trial on a 4th offense DUI as the prior convictions are elements, as opposed to the sentencing enhancements in a misdemeanor DUI. However, the defendant may waive the jury trial on that part and agree to have the court sentence him based on proof of the prior convictions. Johnson v. State, 31 FLW D2991 (4t5h DCA 11-29-006). However, a defendant is not entitled to a bifurcated trial on HTO DWLS. Arino v. State 31 FLW D2997 (5th DCA 2006). DUI: AFTER PRIORS: UNCOUNSELLED: Uncounselled 3d offense may be a defense to felony DUI. Davis v. State, 23 FLW D977 (2d DCA 1/15/98). But caution; Baldazar attacks do not apply to 1st offense DUI and coram nobis attacks must go to original court and may be barred by laches. Convictions from 25 years ago still count as priors for felony DUI / not too remote. State v. Swartz, 24 FLW D1117 (4th DCA 1999). Prior conviction that is on appeal can not serve as an underlying conviction for felony DUI. State v. Finelli, 24 FLW D2025 (4th DCA 1999). If D swears to c-4 motion of priors, State may prove priors by Ds statement. State v. Palmore, 510 So.2d 1153 (3d DCA 1987). Any challenge to set aside priors, D must swear that: 1) prior subj. to > 6 mo. Jail; 2) D was indigent, and entitled to PD; 3) Counsel not appointed, and 4) D did not waive counsel. Angel v. State, 25 FLW D2479 (4th DCA 10-18-00), following State v. Beach, 592 So.2d 237 (Fla. 1992) and Hlad v. State, 585 So.2d 928, 930 (Fla. 1991). FELONY DUI PRIORS: MAY NOT INCLUDE UNCOUNSELLED PRIOR CONVICTION WHERE DEFENDANT WAS SUBJECT TO > 6 MONTHS JAIL: Even if he did not actually receive a 6 month sentence. State v. Kelly, 32 FLW D83a (4th DCA Dec. 20, 2006. Most interesting, in Kelly, the court relied upon Hlad v. State, 585 So.2d 928 (Fla. 1991). Hlad had followed Baldasar v. Illinois, 446 551 U.S. 738 (1991). Subsequent to Baldasar, the U.S. Supreme Court overruled Baldasar, in Nicholas v. U.S. 511 U.S. 738 (1994) to clarify that it was only actual imprisonment which would preclude a prior uncounseled misdemeanor conviction from being used to enhance. However, since the Florida Supreme Court relied on the older U.S. Supreme court case, the Florida law still stands, permitting Florida to be more constitutionally restrictive. The case was certified as a question of great public importance to the Florida Supreme Court. DUI: INDEPENDENT TEST: If D refuses breath and urine, but requests and is given a blood draw at hospital, LEO may not seize this blood w/o warrant. State v. Lane, 5 FLW Supp. 496 (Broward, 2/5/98). But, SAO may give notice and subpoena the independent blood result from hospital. State v. Kleiman, 7 FLW Supp 544 (Dade, 2000). DUI: BLOOD DRAW: P.C.: Finally, a court directly addressed the distinction between 316.193 requiring causation by the driver's operation for the injury from 316.1933 re. seizure of blood if the vehicle driven caused the injury or death. Here, D's driving was not a contributing cause of the death, but D was impaired. The seizure of the blood is lawful as it is the vehicle that causes the death to justify the seizure, vs. the proof of the enhanced charge. State v. Kern, 5 FLW Supp 295 (Brevard Co. 12-31-97). But see, State v. Serrago, 875 So.2d 815 (2nd DCA 2004) indicating p.c. of impaired driving and causation is required to draw the blood / however, in this case there was no question of causation. Mere fact that crash caused serious injuries is not sufficient to draw blood as LEO must have p.c. that D drove and is impaired under implied consent, or must have voluntary consent. State v. Catone, 5 FLW Supp. 539 (Volusia, 2/27/98); State v. Webb, 25 FLW D410 (3d DCA 00). Mere odor of alcohol is not sufficient p.c. of impairment, where no bad driving and driver is unconscious. State v. Kliphouse, 25 FLW D2309 (4th DCA 9-27-00). Mere odor + indicia of bad driving is sufficient p.c., distinguishing Kliphouse re. p.c. of serious injury (conceded not a fact in Kliphouse). State v. Serrago, 875 So.2d 815 (Fla. 2nd DCA 2004). Delay of 7 hours to find and arrest D. still = p.c. to draw blood, though D only had slight smell of alcohol. State v. Henderson, 23 FLW D2211 (5th DCA 1998). P.C. of serious injury can be established by officer A telling officer B that the occupants of crashed car were all taken to the hospital on a stretcher and "it doesn't look good for the young child." Simonton v. State 7 FLW Supp 664 (Broward Co., Backman, J. 2000). Although the US Supreme Court (Schmerber v. California) permits forcible bloods draw only on p.c. of DUI, and Art. 1 Sec. 12 of Fla. Constitution requires Fla. to follow US Sup. Ct., the Florida Legislature expanded the protection for drivers in Florida to require either consent or p.c. of both DUI and death or serious injury. State v. Langsford, 27 FLW D713 (4th DCA 3-27-02). A. DUBAL INSTRUCTION IS APPROPRIATE, EVEN W/ TRADITIONAL PREDICATE RE. BLOOD TESTING: HOWEVER, IF BLOOD DRAW IS NOT CONSENSUAL THE SEIZURE IS ILLEGAL IF DEFENDANT HAS ONLY 2 BROKEN LEGS THAT LATER HEAL AS NOT SERIOUS BODILY INJURY. 4th DCA revised its opinion in State v. Schreiber, 28 FLW D278b (4th DCA, Jan 22, 2003) following Dodge that DUBAL instruction (and the rebutable presumption > .08) is appropriate, even if the blood test fell within the Miles window (no valid FDLE ATP Rules) and State had to predicate the blood test with the Atraditional scientific predicate. But, 4th DCA reaffirmed portion of ruling that held that the Aconsent was not Aknowing and voluntary and that the seizure was illegal because the LEO did not have p.c. to draw the blood as there was no p.c. as to Aserious bodily injury because, although both of defendants legs were fractured, they completely healed within six months. This case followed Galgano v. Buchanan, 783 So.2d 302 (4th DCA 2001) which held that a broken leg, resulting in 5% permanent impairment did NOT constitute Aserious bodily injury under 316.1933(1). This opinion did not address the prior holding from the 4th DCA in Carbone v. State, 564 So.2d 1253 (4th DCA 1990) that the determination of p.c. is made at the time of the blood draw, based on the total circumstances known, not whether, in fact, the injuries were determined to be not serious. The 13th Circuit (not binding) held that the subsequent determination that a collar bone was not broken did not remove the p.c. of the officer at the time of the seizure. See, State v. Burns, 43 Fla. Supp 2d 17 (13th Cir. 1990). It is also, not just the p.c. of the LEO who drew the blood, but the cumulative knowledge of all the officers, See State v. Johnson, 695 So.2d 771, 774 (5th DCA 1997). See also, State v. Emanuel Johnson (Fla 1995) and Henniger v State, 667 So.2d 488 (1st DCA 1996). Note: any motions or proposed declines or reductions should be carefully considered by yourself with your division chief. If any cases must be fought, Don Hartery has argument, including the above that the Schreiber case is not binding and is wrong. BUT, 2D DCA HAS DIFFERENT STANDARD: Where EMT said there is a possibility of serious injuries on a child (who could not communicate injuries) but the nature of the crash (child ejected from car) and LEO noticed an odor of alcohol on the breath, was sufficient p.c. to draw the blood, even where the seriousness or permanence of the injury was unknown at the time. State v. Catt, 28 FLW D341 (2d DCA 1-31-03). Also, the mere odor of alcohol w/ some bad driving may be sufficient p.c. that a person was under the influence of alcohol, not the greater standard of Aimpaired See, also, Jackson v. State, 456 So.2d 916 (1st DCA 1984).: Contra to Kliphouse above?? Hearsay is admissible to establish probable cause: Brinegar v. U.S. , 338 US 160 (1949); Ornelas v. US, 517 US 690 (1996). The Idaho Supreme Court held that the Implied Consent Law only gives LEO authority to order blood drawn and use force for felony DUIs w/ injury, etc. However, it is the officers election as to the type of seizure and whether that is constitutionally protected from search and seizure, so that the LEO may request a blood draw without use of force under ICW, which is not violative of the statute or constitution. Idaho v. Diaz, Docket No. 32422, Boise, March 29, 2007) DUI: BLOOD TESTING: Even if the control whole blood is out of date, the testing substantially complied with 11D-9.013(1)(e)2(a). Even if not, may establish "traditional predicate" for admissibility. State v. St. Pierre, 22 FLW D1181 (5th DCA 5-9-97). Substantial compliance" with 11D8.012 is insufficient to establish reliability (denial of due process) when Rule fails to address storage and chain of custody. However, if State can show the Strong, Bender Robertson v. State, 604 So.2d 783 traditional predicate the results then become admissible, and along with substantial compliance, the presumptions of impairment are properly instructed. State v. Miles, 732 So.2d 350 (1st DCA 1999); State v. Townsend, C#99-275 (2d DCA 11-17-99). Note: Non-DUI issue where Court refused to enact legislative measures in the guise of injunctive relief because the power to legislate belongs to the legislative branch, not the judicial branch. Miami-Dade County vs. Arms Technology, Inc., et.al., Fax Mail Op#2029 (3d DCA 2-14-01). Also note: the 11D Rules will amend to include storage and chain of custody in the summer of 2001. Practicality: Urine is never practical for purposes of b.a.c. Practicality is not in seizing the urine, but its use for b.a.c. State v. Lear, 7 FLW Supp 509 (Brevard 2000). Failure to store blood properly = no presumptions. Rafferty v. State, 26 FLW D1864 (2d DCA 8-1-01). But see State v. Bodden, 29 FLW S153 (Fla. 4-15-04 and State v. Montello, 29 FLW D597c (4th DCA 2004) and State v. Piere, 854 So2d 231 (5th DCA 2003) that no administrative rules are required for urine testing. DUI: BLOOD DRAW: VOLUNTARY: Though ambulance is now a "medical facility" the breath or urine must be impractical or impossible in fact, not trooper's belief at the time. Voluntary consent to take a test is admissible apart from "implied consent" State v. Slaney, 653 So. 2d 422 (3d DCA 1995), and are clearly admissible if the officer advises that the "implied consent" only requires submission to breath or urine tests and that the blood test is offered as an alternative. Chu v. State, 521 So. 2d 330 (4th DCA 1988). However, failure to mention "implied consent" may cause a voluntary blood test to be considered involuntary (?). See, State v. Mueller, 5 FLW Supp 123 (Alachua, 10-3-97). Blood test w/o death or serious injury must be either "voluntary" or under "implied consent" as impracticable or impossible. To be voluntary, LEO must advise that "implied consent" does not require the submission. State v. Zeigler, 7 FLW Supp 684 (17th Cir. Broward 1999). However, 4th DCA held, consistent w/ Gunn and Pardo, that the reading of the ICW is not required to obtain a voluntary blood test, the same as it did in breath tests under State v. Iaco, 906 So.2d 1151 (Fla. 4th DCA 2005). State v. Dubiel, 32 FLW D1338a (Fla. 4th DCA May 23, 2007). Note: requirement to read ICW is contra to Gunn 408 So.2d 647 (4th DCA 1981). If the person is capable of refusing, the defendant must be read ICW, if proceding under the ICW statute. See, State v. Slaney, 653 So.2d 422, 426 (3d DCA 1995). Need p.c. to draw blood, but mere odor of alcohol w/o bad driving is not p.c. State v. Kliphouse, 25 FLW D2309 (4th DCA 9-27-00). DUI: BREATH TESTING: ACCURACY: Defendant's speculative, theoretical and hyper-technical complaint that there could have been a better rule is insufficient to get breath tests suppressed. Wissel v. State, 22 FLW (2d DCA 3-7-97). Defendant without standing to challenge promulgation or validity of a rule unless D can establish that he was actually prejudiced, not a mere remote possibility that some prejudice could occur, such as the process of using Guth solutions as Alcohol Reference Samples for Intoxilyzer not being defined in the rules. Lanoue v. FDLE, 6 FLW Supp 301 (Hood, J.12-24-98). The mere claim that there should have been a better rule is not legally sufficient pleading to suppress evidence, and should be stricken. State v. McArthur, 7 FLW Supp 114 (12 Cir. Dunnigan, J. 1999). Acts beyond requirements are inherent and implicit in the Rules. State v. Curtis Smith, 7 FLW Supp 135 (Sarasota Co. LoGalbo, J. 1999). State may strike Defendant's speculative challenge that the rules are inadequate or vague. D must present evidence that places actual doubt of procedure, not merely speculate that they could be better. State v. Sandt, 5 FLW Supp 811 (Pinellas 8/98). No need to adopt CMI manual as part of the breath rules and the absence of a regulation on ambient air temperature is results only in a possible effect, not a fundamental quality control requirement, as in Miles. State v. Janet Henderson, et. al., Case No. 02-4899 CT (Sarasota Co. Briggs, Bonner, Denkin, 6-24-03). Rules Challenges are administrative, not criminal. State v. Gonzalez, 403464X (11th Cir. Miami-Dade, 6-19-07); State v. Hasety, Hudson and Hayes, 10 Fla. L. Weekly Supp. 942a (17th Cir. Broward Co., Dale Ross, J., Sept. 1, 2003). DUI: BOATING: BOARDING VESSEL: U.S. Coast Guard may make administrative boardings in U.S. waters and bring Fla. law enforcement with them. Fla. L.E. could then make a BUI arrest, even w/o reasonable suspicion for the stop. Saunders v. State, 25 FLW D1147 (2d DCA 00). DUI: BREATH TEST: "APPROVED INSTRUMENT"? Whether the Intoxilyzer is approved is irrelevant if Defendant refuses a breath test as it does not tend to prove or disprove any material fact. State v. Kline, Slip Op. 2000 WL 799345 (5th DCA 2000); Mahoney v. State, 4 FLW Supp 624 (Dade 3-14-97). See also, DHSMV v. Berry, 619 So. 2d 976 (2 DCA 1993); Conahan v. DHSMV, 619 So.2d 988 (2d DCA 1993); State v. Kline, 764 So.2d 716 (5th DCA 2000) ("Where a defendant refuses to take a test designed to determine whether he is intoxicated, his refusal should not be suppressed. Instead, the implied consent law requires that it be admitted. The defendant is thereafter free to argue that the jury should draw the inference not that he refused because he was guilty but that he refused because he did not trust the test." State v. Davila 3 FLW Supp 192,196 (Duval Co. 1995), State v. Addenbrooke, 3 FLW Supp State v. Dedman, 102 P.2d 628 (N.M. 2004)(a blood alcohol report is admissible as a public record and presents no issue under the Confrontation Clause). 485 (9th Cir.); State v. Hicks, 6 FLW Supp 243,245 (9th Orange 1999). But See, dicta of n. 14 State v. Polak, 598 So.2d 150 (1st DCA 1992). Test taken 3 hours 55 minutes after driving is admissible w/o relating back testimony. State v. Banoub, 22 FLW D2074 (2d DCA 9-3-97). DUI: BREATH TEST AFFIDAVIT: Not admissible unless properly sworn to. State v. Landis, 5 FLW Supp. 553 (Dade, 3-17-98). Otherwise, hearsay in affidavit of last inspection does not preclude admissibility of affidavit. Wooster v. State, 6 FLW Supp 59 (9th, Orange, 10-21-98). State may introduce affid. at pre-trial hearings to establish any burden re. b.a.c. on Hyman's "Guth" challenge. State v. Crane, 6 FLW Supp. 759 (18th Cir. Seminole 1999). Proper breath test affidavit = admissibility of result w/o proof of maintenance records. State v. Irizarry, 698 So.2d 912 (4th DCA 9-3-97). Now, the technician and monthly inspection are hearsay, so must have the testimony, but the annual inspection is a business record, not hearsay, intended for trial, so that evidence does not require testimony. Now, the technician and monthly inspection are hearsay, so must have the testimony, but the annual inspection is a business record, not hearsay, intended for trial, so that evidence does not require testimony. State v. Pflieger, 32 FLW D931b (Fla. 4th DCA April 11, 2007).State v. Tavernia, 14 FLW Supp 290b (17th Cir. Broward Jan. 4, 2007), State v. Evanchyk, 14 FLW Supp 392b (17th Cir. Broward, Jan 10, 2007), as in State v. Tapp, 12 FLW Supp 978a (12th Cir. Sarasota Co., Bonner, J. 2005); State v. Bookspan, 13 FLW Supp 630a. See, State v. Penna, 14 FLW Supp 182 (17th Cir.) DUI: BREATH TESTING: CONTROL TEST: FDLE Rules re. "control test" are discretionary, not mandatory. State v. Rodway, 4 FLW Supp 652 (15th Cir 1997). A defendant alleging equal protection for breath testing bears the burden of proof that the test was done or not done on select defendants for an unjustifiable reason. State v. Katsikas, 4 FLW Supp 861 (4th Cir. Duval 1997); See also, Anderson v. State, 592 So. 2d 1119 (1st DCA 1991). DUI: BREATH TESTING: GUTH SOLUTION (ARS): FDLE's determination of accuracy of alcohol reference solution was either vague and ambiguous under the rules or it constituted unbridled discretion = illegal exercise of delegated legislative authority for 2 years of use of Guth solutions prior to new Rules being promulgated on this subject. State v. Skinner, 6 FLW Supp 518 (Clay Co. May 21, 1999). Alcohol reference solution by Guth Laboratories does not violate 11D-8.002(26) FAC (1997). State v. Baldwin, 6 FLW Supp 97 (Hillsboro 10-27-98). Though the rule may have been better written, using the Guth solution complies with the rule and is not so unreliable to cause suppression of BAC. State v. Evans, 6 Flw Supp 222 (Polk 1999). Suppression of breath test results is not the legal remedy, even if a policy constitutes an unpromulgated rule. State v. Walker, 6 FLW Supp 715 ((11th Cir. Dade, Emas, J. 1999). D. must make minimal showing on Intox. challenge to shift burden to state on motion in limine. State v. Arnold et al., 7 FLW Supp 160 (Orange 1999). Defense may not argue Environmental Trust v. DEP on rules challenge as legislature amended the statute in 1999 to exclude retroactive application of rules. State v. Buelk, et.al., 7 FLW Supp 685 (Hillsborough Co. Wolfe, J. 2000). Window for filing Guth I challenges is January 1997 through July 7, 1999. State v. Dauth, et.al, 7 FLW Supp 739 (Duval 00). Guth IV: FDLE can subsequently come into compliance w/ rule vs. creating new rule by supplemental certificates of assurance and state gets statutory presumptions, if trad. Predicate proven, even if outside of rule. State v. Baez, 8 FLW Supp 574 (Monroe Co. 6-5-01). DUI: BREATH TESTING: INDEPENDENT TEST: Defendant is not entitled to independent test or suppression of refusal to take state's breath test where defendant refused to take the test offered by LEO. State v. Cobian, 4 FLW Supp. 740 (Dade, June 1997). LEO need not give blood test at D's request if LEO offered breath test. "It is the officer who 'requests' the test, not the driver who selects it ... Thus, (the defendant) had no right to demand a blood test instead of a breath test. DHSMV v. Green, 2d DCA 11-26-97, faxmail#12005. DUI: BREATH TESTING: LOW VOLUME SAMPLE: LOW VOLUME SAMPLE: I. Breath test results which were within .020 of each other were in substantial compliance with applicable administrative rules not withstanding low volume sample nature of samples. 1. State v. Roland, 3 FLW Supp. 151 (15th Jud.Cir. 3.30.95), cert. denied, Case No: 95-01405 (4th DCA 1995) 2. Edwards v. State, 3 FLW Supp. 676 (2oth Jud.Cir. 2/12/96) 3. State v. Harding, 3 FLW Supp. 242 (Hillsborough Cty.Ct. 1995) 4. Davis v. State, 4 FLW Supp. 501 (10th Jud.Cir. 2/97) 5. State v. Conyers, 2 FLW Supp. 439 (Dade Cty.Ct. 9/2/94) II. That the significance of a low volume sample reading is a matter to be determined by the trier of fact. 1. Edwards v. State, 3 FLW Supp. 676 (2oth Jud.Cir. 2/12/96) 2. State v. Harding, 3 FLW Supp. 242 (Hillsborough Cty.Ct. 1995) III. Two breath samples within .020 of each other are scientifically reliable. State v. Willis, 1 FLW Supp. 118 (Palm Beach Cty.Ct. 4/6/92) IV. Single low volume sample is not inadmissible as a matter of law. State v. Irwin, 4 FLW Supp. 247 (6th Jud.Cir. 4/3/96)(State may establish scientific predicate to support introduction of single low volume test result by showing that test was reliable and was conducted by a qualified operator and by presenting expert testimony demonstrating meaning of test.) Also, if defendant gives one good breath sample and then refuses to give another, the LEO did substantially comply with the rules since the lack of the second, corroborating sample was attributable to the defendant himself because, it seems beyond the pale of collective legislative imagination to allow Appellants uncooperativeness ... to invalidate the one sample obtained. Reed v. State, 1 FLW Supp 320 (Fla. 8th Cir. 1993). DUI: BREATH TEST OPERATOR NEED NOT BE FROM JURISDICTION: There is no requirement in the FDLE / ATP Rules that a breath test operator must be employed by the jurisdiction making the arrest and need not conform to the agencies mutual aid agreements. State v. Currens, 11 FLW Supp 370b (19th Cir. Brevard 2-2-04). DUI: BREATH TESTING: PERCENT: .08 percent means g/210 l. of breath. "This is perhaps an appropriate case in which to remind ourselves of Learned Hand's famous observation that a 'mature and developed jurisprudence' does not make a fortress out of the dictionary." State v. Brigham, 22 FLW D1174 (2d DCA 5-7-97). DUI: BREATH TEST: PRE-RELEASE TEST: Pre-release breath test is not admissible under presumptions of implied consent rules of 316.1932 or 1933. State v. Talty, 22 FLW D 899 (4th DCA 4-9-97) DUI: BREATH TEST REFUSAL: State need not prove Intoxilyzer working to admit refusal. DHSMV v. Berry, 619 So. 2de 976 (2d DCA 1993); DHSMV v. Riggin, 654 So.2d 221 (1st DCA 1995) [Riggen, coming after Polak, impliedly overrules Polak]. The refusal is admissible, even if the test is not admissible. State v. Gipson, 5 FLW Supp 87 (Leon Co., 11-21-1996). Refusal is admissible, even if Intoxilyzer was not compliant with rules. State v. Orcutt, 5 FLW Supp. 549 (Escambia, 4-16-98); Kelly v. State, 5 FLW Supp 649 (10th Cir. Hardee 4-22-98). Whether instrument is "approved" is irrelevant unless D knew this at the time of the refusal. DHSVM v. Coleman, 787 So.2d 90 (2d DCA 2001); State v. Reid 6 FLW Supp 1 (9th Cir. Orange 9-18-98); State v. Addenbrooke 3 FLW Supp 484,485 (9th Cir. Orange 1995); State v. Hicks, 6 FLW Supp 243, 245 (9th Orange 1999); See, Edwards v. State, 603 So. 2d 89 (Fla. 5th DCA 1992); State v. Burns, 661 So. 2d 89 (5th DCA 1995); But See Contra, State v. Baker, et al., C# 98-2853T (Sarasota Co., LoGalbo, J., 11-12-98) where the court read all sections in pari materia and considered that the agency inspectors were not authorized in fact vs. a "hypothetical" lack of "approval" requires suppression of refusal to take an unapproved test. Also, following Reid, Orange Co. subsequently held that because D "did not trust the breath collection process" the refusal could be suppressed. State v. Kline, 7 FLW Supp 303 (9th Cir. 2-15-00). The refusal is still admissible even if D requests an attorney before deciding whether to take the breath test. State v. Godby, 6 FLW Supp 3 (9th Cir, Orange 11-10-98); following State v. Hoch, 500 So. 2d 597, 601(3d DCA 1989) and State v. Burns, 661 So. 2d 842 (5th DCA 1995). A refusal to submit to gunshot residue test is admissible as to consciousness of guilt if D is told that the test could help clear her. It is not protected by 5th amendment. State v. Menna, 846 So.2d 502, 505 (Fla. 2003). If D initially refuses to take a breath test, then revokes that refusal while still not inconvenient to give a test, it is not a refusal at all. Larmer v. DHSMV, 522 So.2d 941 (4th DCA 1988). DUI: BREATH TEST REFUSAL: DS STATEMENTS AT DHSMV HEARING ARE ADMISSIBLE AT TRIAL: Statements made at administrative license suspension hearing are voluntary and have no 5th Amendment protections. Hinman v. DHSMV, 26 FLW D2461 (5th DCA 10/12/01. DUI: BREATH TEST REFUSAL: MIRANDA DOES NOT ESTABLISH A SAFE HAVEN FOR REFUSALS OF SFSTS OR BREATH TESTS: See, State v. Fara, 9 FLW Supp 88 (12th Cir., Manatee, Gilner, J. 12-18-01). Reading of Miranda does not cause refusal to SFST or breath test to become inadmissible. State v. Burns, 661 So.2d 842, 847 (Fla. 5th DCA 1995); State v. Hoch 500 So.2d 597, 602 (3d DCA 1986); Weaver v. DHSMV, 10 FLW Supp 161 (13th Cir, Hillsborough, Holder, J. 1-8-03). DUI: BREATH TEST REFUSAL: SUBSTANTIVE CHARGE: State v. Gomez, 11 FLW Supp 61d (17th Cir. Broward, Nov. 10, 2003) holds that FS 316.1939 is constitutional. Request to speak to lawyer before refusal is not a right, and the criminal act of 2nd refusal is not an expost facto application of prior act of refusal. State v. Black, 10 FLW Supp 722c (Orange 6-25-03). It does not violate ex post facto, 5th amendment or 6th amendment and no reading of Miranda is required. State v. Tewes, 10 FLW Supp 540b (12th Cir, Sarasota Co., 6-2-03, Denkin, J.). Even if LEO fails to advise of subsequent consequences of refusal charge in ICW, the refusal is still admissible in the DUI trial so long as some adverse consequences were mentioned. Grze;la v. State, 29 FLW D1803 (5th DCA 8-6-04). DUI: BREATH TESTS: SUBSTANTIAL COMPLIANCE: D CHALLENGES: Even if State complied with the Rules, defendant may still challenge the rules as being so scientifically unreliable that the results should not be admissible. State v. Davenport, 7 FLW Supp 742, 744 (Duval 2000); Robertson v. State, 604 So.2d 783 n.6 (Fla. 1992); State v. Bender, 382 So.2d 697 (Fla. 1990). The States burden on a Bender motion is preponderance of the evidence. Brim v. State, 695 So.2d 268 (Fla. 1997) (used for Frye hearings of new or novel scientific acceptance of a proposition). 19 minute observation, per Intoxilyzer clock, is still substantial compliance w/ 20 minute observation if LEO timed the 20 minutes by his wristwatch. Pritch v. DHSMV, 19 FLW Supp 665b (Volusia 6-13-03). DUI: BREATH TESTS: TRADITIONAL PREDICATE: If no substantial compliance, can the state admit it by traditional predicate: Yes, per State v. Dauth, et.al, 7 FLW Supp 739 (Duval 00); State v. Friedrich, 681 So.2d 1157 (Fla. 1st DCA 1996) and State v. Townsend, 24 FLW D2587 (2d DCA 99). But, contra to State v. Jones, 7 FLW Supp 747 (Dade 00) where seizure was under implied. which is contra to Strong, Bender and Quartararo and Robertson (for blood cases seized under statute). See State v. Miles, 740 So.2d 529 (Fla. 1999); State v. Davenport, 7 FLW Supp 742 (Duval 2000). The States burden on such a motion is preponderance of the evidence. Brim v. State, 695 So.2d 268 (Fla. 1997). If there is not a substantial compliance with the Rules, it is reversible error for the court to deny the state the right to establish the traditional predicate. State v. Mehl, 602 So.2d 1383 (5th DCA 1992); See, Robertson v. State, 604 So.2d 783 (Fla. 1992). DUI: CAUSATION: In personal injury or property damage "causation" is that D's negligent driving (not drinking) contributed at all to the cause, unless victim was completely at fault. See, Magaw v. State, 537 So. 2d 564 (Fl. 1989); U.S. v. Sasnett, 925 F.2d 392 (11th Cir 1991); Naumowicz v. State, 562 So.2d 710 (1st DCA 1990); Foster v. State, 603 So.2d 1312 (1st DCA 1990); State v. May, 670 2d 1002 (2d DCA 1996); State v. Altamura, 676 So.2d 29 (2d DCA 1996); Melvin v. State, 677 So.2d 1317 (4th DCA 1996). But See (briefs) on Gable v. State, (1st DCA #96-2927, A.G. Dan David 904-488-0600). The Magaw v. State, 537 So. 2d 564, 567 (Fla. 1989) instruction on negligence re. "contributing to the cause" is sufficient to not impose strict liability. Jones v. State, 698 So. 2d 1280 (5th DCA 1997); Jordon v. State, 23 Flw D536 (5th DCA 1998); Van Hubbard v. State, 23 FLW D2247 (1st DCA 1998). Standard instruction is sufficient w/o any negligence instruction. State v. Van Hubbard, 24 FLW S575b (Fla. Dec. 1999). Unless victim's negligence is the sole proximate cause of the death, D is not entitled to instruction that victim caused death in vehicular homicide. Nunez v. State, 721 So.2d 346 (2d DCA 1998). Victims speeding motorcycle does not relieve D of liability. State v. Ynocenscio, 25 FLW D2798 (5th DCA 00). The same standard of causation for manslaughter applies to instructions for DUI causing injury or damage. Gerlitz v. State, 24 FLW D25 (4th DCA 1998). A negligence instruction is not appropriate as that portion of Magaw is dicta, so the present instructions are sufficient. There is no requirement to prove negligence. State v. Hubbard, 24 FLW S575 (Fla. 1999), affirming Melvin and reversing Van Hubbard. As to causation, defendant takes victim as he finds him, i.e. if victim had pre-existing injury, but D aggravated the injury, causing a weak victims death, defendant is still criminally liable for the death. Weir v. State, 26 FLW D244 (4th DCA 1-17-01). DUI: CHECKPOINTS: LEO's must attend briefing, receive c.c. of plan and strictly follow the plan. State v. Skinner, 6 FLW Supp 654 (Broward 1999). If driver avoids checkpoint, may establish reasonable suspicion to stop. Rinaldo v. State, 787 So.2d 208 (4th DCA 2001). Failure to read guidelines, attend the briefing prior to the checkpoint, and conduct not consistent w/ guidelines (permitting suspect to drive from point of detection to SFST area) cause the seizure to be unlawful. Dreen v. State, 11 FLW Supp 487b (4th Cir. Nassau Co. 3-28-04). DUI: CONTROLLED SUBSTANCES: Presence of unquantifiable controlled substances are admissible when there is a low b.a.c. for alcohol as the danger of unfair prejudice does not substantially outweigh the probative value. State v. Darren Matthews, 7 FLW Supp 139 (Manatee, McMillan,J 1999). Where impairment by drugs is alleged, it is not necessary to quantify the drugs in D by toxicologist to get a conviction. Hoffman v. State, 4th DCA 1999). DUI: CORPUS: 2 car accident w/ 2 drivers there and one is impaired = sufficient corpus for DUI. State v. Wojciechowski, 5 FLW Supp 779 (16th Cir Monroe 1998) "Substantial evidence," that tends to show a crime had been committed, need not be uncontradicted or overwhelming, may establish circumstantially the corpus to admit defendant's confession that he was driving. State v. Allen, 335 So. 2d 823 (Fla. 1976). Drunk standing next to wrecked car when no other apparent driver about is sufficient. Dade v. Pedigo, 181 So. 2d 720 (3d DCA 1966). See, also, State v. Edwards, 463 So. 2d 551 (5th DCA 1985); and State v. Kester, 612 So. 2d 584 (3d DCA 1992). Identity of perpetrator not required for corpus. Garmon v. State, 25 FLW D2371 (4th DCA 10-4-00). LEO responded to report of a crash and found defendant standing alone next to the vehicle involved, and that the defendant was drunk / held that there was p.c. to believe that defendant committed DUI at the time of the crash. Malagian v. DHSMV, 14 FLW Supp 321 (7th Cir. Volusia Co. Dec. 11, 2006). However, in State v. Suteska, 14 FLW Supp 336 (6th Cir. Pinellas Sept 25, 2006) the Court held that when the only person near the scene of a single vehicle crash was sitting in a hedge (drunk) a few feet from the car that was registered to different person, failed to establish even the corpus delecti of DUI (which only requires some substantive evidence to show that the crime was likely committed) because the mere proximity to a car a scene of the crash is insufficient to establish that the person was the driver. DUI: DOUBLE JEOPARDY: When State nolled dui where UTC charged wrong date just before expected mistrial order, State was barred by double jeopardy to retry it, since discovery listing date state intended to prove cured the UTC defect. Stanley v. State, 21 FLW D2651 (5th DCA 1996). DUI: DUBAL: Presumption of Impairment is not applicable to DUBAL. Jury need not be unanimous as to whether D. was DUBAL or impaired, as either supports verdict of guilt. Euceda v. State, 23 FLW D 1075 (3d DCA 4/29/98). HGN may not be used to establish DUBAL or presumption of >.08% B.A.C. Faires v. State, 23 FLW D 1073 (3d DCA 4/29/98) or "over .20" Faires v. State, 711 So. 2d 597 (3d DCA 1998). However, Tharpes equation may be used to establish a belief that a person is impaired. That simple equation is to the angle of onset, subtracted by 50 = the approximate b.a.c., i.e. 50 minus 35 degree angle of onset = b.a.c. of .15. Cloyd v. State, 31 FLW D1863 (Fla. 3d DCA 7-12-06). State may exclude video of good FST's for DUBAL as impairment is not relevant to this defacto crime. State v. Gibson, 5 FLW Supp. 636 (5th Cir, Sumpter May 1998). HGN may be used by properly trained and experienced LEO to establish impairment w/o any confirmatory tests. State v. Brooks, 14 FLW Supp 1078a (Fla. 6th Cir. Pinellas Co. Demers, J. 7-17-07). DUI: ENHANCEMENTS: State must allege property damage, over .20 b.a.c., or w/ minor in car as elements or do not get higher mandatory penalties. State v. Saldivar-Nieto, 5 FLW Supp 591 (17th Cir. Broward 4/24/98). However, for misdemeanor DUI the prior convictions need not be alleged, as they are not elements. State v. Haddix, 668 So. 2d 1064 (4th DCA 1996); Perry v. State, 97-10 AC (12th Manatee, Dunnigan, 1998). 4th Offense DUI is sufficient to allege 3 prior convictions for circuit jurisdiction & remoteness of prior not a defense. State v, Swartz, 24 FLW D (4th DCA 5-5-99). Prior uncounselled 2d offense is a defense. Kirby v. State, 24 FLW D1954 (1s DCA 1999). #3 DUI that is pending appeal may not be used to enhance #4 DUI. State v. Finelli, 24 FLW D2025 (4th DCA 1999). #3 DUI that is pending in county court may not be used to enhance #4 DUI in Circuit Court. Psomas v. State, 25 FLW D1785 (2d DCA 2000). DUI: EVIDENCE: IN-COURT COMPARISON: D may be required to give a voice exemplar in court for officer to compare with slurred speech at scene. Daley v. State, 5 FLW Supp 517 (Dade, 2-27-98) following Macias v. State, 515 So. 2d 206, 208 (Fla. 1987); see also, Lusk v. State, 367 So2d 1088 (Fla. 3d DCA 1979), compelling a defendant to stand and speak before the jury; Daley v. State, 5 FLW Supp 517a (11th Cir. Dade Co.); requiring defendant to state his name, date, the city and state, to compare with his ability to speak clearly at scene of DUI arrest. The Fifth Amendment only protects against compulsory testimony, but does not make a suspect who is compelled to produces physical evidence violate the Fifth Amendment. Schmerber v. California, 86 S.Ct. 1826 (1966). DUI: FORFEITURE: If D's license suspended for DUI at the time of next DUI arrest, the car is subject to Florida Contraband Act for forfeiture. 1-01-2000 Ch. 99-234. DUI: FST: CUSTODY: Roadside FST's are usually not custody, thus no need for Miranda, nor need to advise of right to refuse the test. However, if D is handcuffed, then asked to do FST's Miranda is required to admit the "testimonial" responses. State v. Whelan 24 FLW D640 (3d DCA 1999): See also Berkermer v. McCarty , 468 US 420,440 (1984) (custody is reasonable person's belief of actual arrest) , Pennsylvania v. Muniz, 496 US 482, 590-600 (1990), Pennsylvania v. Bruder, 488 US 9,11 (1988); Alred v. State, 622 So. 2d 984, 986,-87 (Fl. 1993); State v. Burns, 661 So. 2d 842,846-47 (5th DCA 1995) and Taylor v. State, 648 So.2d 701 (Fla. 1995) [custody = "formal" arrest]; State v. Marshall, 695 so.2d 686, 687 (Fla. 1997). Requirement of Miranda warning after accident privilege does not apply to non testimonial FST's. State v. Whelan, 24 FLW D640 (3d DCA 1999). Turning an encounter into a detention does not prevent questioning because questioning is neither a search, nor a seizure, an officer does not violate 4th Amdt. by asking questions unrelated to the traffic stop so long as traffic stop is not unduly prolonged as a result. State v. Olave, 4d06-2889 (Fla. 4th DCA March 9, 2007), citing Hewitt v. State, 920 So.2d 802, 803 (Fla. 5th DCA 2006); State v. Poster, 892 So.2d 1071, 1072 (Fla. 2d DCA 2006); U.S. v. Shabazz, 993 F. 2d 431, 436 (5th Cir. 1993). Where LEO had valid reasonable concerns for officer safety because guns were recently fired at location, and shell casings about, the fact that LEO handcuffed the suspect and held him temporarily in the police car did not elevate the detention to custody and the statements made without Miranda were admissible. Studemire v. State, 32 FLW D933b (Fla. 4th DCA April 11, 2007). DUI: FST: REASONABLE SUSPICION is the standard for requiring FSTs. State v. Taylor 648 So. 2d 701, 703 (Fla. 1995); Mendez v. State, 678 So. 2d 388, 390 (4th DCA 1996). Refusal to take SFSTs are admissible if LEO indicated adverse consequences of refusing, See Taylor, Id, but not admissible if LEO indicated that the tests were voluntary. State v, Curley, 11 FLW Supp 308b (Broard 2-17-04). The mere reading of Miranda may cause D to perceive custody therefore, the LEOs act of reading Miranda converts an encounter to a detention, and if no reasonable suspicion for same = illegal detention and evidence is suppressed. Raysor v. State, 26 FLW D2267 (4th DCA 9-19-01). The mere reading of Miranda does not cause refusals of sfst or breath test to be suppressed. State v. Fara, 9 FLW Supp 88 (12th Cir, Manatee, Gilner, J. 12-18-01). DUI: FST: STRICT COMPLIANCE: Ohio Sup. Ct. held that Leo must strictly comply with the SFST rules before the FST is. Ohio v. Homan 99-1107 (10-3-00). But see HGN part of outline where Florida refers to all but HGN as lay observations that are not scientific tests. Compare weight of evidence vs. admissibility of relevant evidence where evidence is relevant if probative and probative does not require perfection or absolutes. DUI: HGN: DRE may testify of opinion of impairment on alcohol and/or drugs by HGN independently of other evidence of impairment because HGN is a reliable, "quasi-scientific" evidence which has been used nationally for many years by medical science and law enforcement witnesses. Williams v. State, 23 FLW D752 (3d DCA 3-18-98). HGN is admissible scientific evidence based upon Dade Co. Frye Hearing and Meador. Trejos v. State, 5 FLW Supp 205 (Dade, 1/2/98). State must introduce a Strong predicate of qualifications of LEO, reliability of test and meaning of the test or this scientific evidence that is not new or novel is outweighed by prejudicial effect. State v. Meador, 674 So. 2d 826 *4th DCA 1996). No longer need to predicate w/ evidence of "reliability of the test." Pittman v. State, 5 FLW Supp 808 (Broward 8/98). Without experts, HGN is excluded. State v. Gholston, 4 FLW Supp 594 (Orange, 1997). Emergency room doctor can testify to HGN if experienced and he did HGN as part of his exam. Jordan v. State, 23 FLW D520 (3d DCA 2-18-98). HGN cannot be used to argue presumption of a % B.A.C. Faires v. State, 23 FLW D1073 (3d DCA 4/29/98); Williams v. State, 23 FLW D752. Officer must be specially qualified under Meador to sponsor HGN at trial, but unqualified officer may consider HGN to develop reasonable suspicion to detain for full FST's at roadblock. State v. Streisant, 5 FLW Supp 560 (Broward 3-3-98). Academy trained officer in SFST's need not be a DRE to qualify to testify with proper foundation. However, a confirming breath, blood or urine test may be required. Bowen v. State, 745 So.2d 1108 (3d DCA 12-8-99). Following Bowen v. State, the deputy, who had training certificates and sufficient experience, was permitted to testify as to the HGN results, but not permitted to using the presumption of impairment or that the results correlated to a specific b.a.c. State v. Cousineau, 14 FLW Supp 469c (19th Cir. Brevard, Feb. 25, 2007) Untrained LEO may testify as to lay observations, i.e. physical demeanor and following instructions. Thompson v. State, 5 FLW Supp 710 (Orange Co. 1998). Trained LEO may not qualify with sufficient scientific expertise to meet the Strong predicate for HGN. Peters v. State, 7 FLW Supp 507 (Palm Beach 00). In 5th DCA, Shaw v. State, 26 FLW D174 (5th DCA 01) once required supplemental expert testimony, but upon rehearing, abandoned that ruling since HGN results could not be established only from video of SFSTs. Shaw v. State, 783 So.2d 1097. Confirmatory b.a.c. required to admit HGN, following Bowen. Cropper v. State, 7 FLW Supp 323 (11th Cir, Dade, 2-29-00) (Note: no facts listed, but at trial the LEO testified that b.a.c. would have been over 0.10 percent). Bowen does not require confirmatory blood test as a blanket exclusion of HGN, but only excludes the portion of HGN that would indicate a specific b.a.c. State v. Allen, 7 FLW Supp 626 (Monroe 6-27-00). Several Dade County court rulings have since held that Cropper was in error as Bowenlanguage was only non-binding dicta, but that Williams holding is binding. See, State v. Morales, Case No. 260791-W (Dade Co., Ana Pando, J. Oct. 24, 2001); State v. Suarez, Case no. 408506-X (Dade Co. Martin Shapiro, J. , Aug. 5, 2001); and Rodriguez v. State, App. No. 00-188-AC (11th Cir, Dade, Caryn Canner Schwartz, J. 2001, now on appeal). 12th Circuit has permitted HGN by LEO who is not a DRE. Ferraraccio v. State, No. 98-3279-CA-01 (12th Cir. Sarasota Co., McDonald, J. Mar 30, 1999), and Mendoza v. State, No. 00-20 AC (12th Cir. Manatee Co., Adams, J. Nov. 16, 2001). See appellate brief on State v. Clements, 9 FLW Supp. 282b (Manatee Co. 3-22-02) brief by D. Hartery. A non-DRE may conduct HGN tests if he had received instructions on how to administer, and the LEO may refer to the exercise as a test. Reyes v. State, 10 FLW Supp 291 (11th Cir. Dade Co. 2003). DRE may be required to establish the traditional predicate for HGN. See, Melvin v. State, 677 So.2d 1317 (4th DCA 1996); State v. Mellon, 11 FLW Supp 438b (17th Cir. Broward, 4-22-04). If a nurse testifies that D had HGN, the state still has to qualify the nurse as a expert witness on HGN. Castillo v. State, Case No. 1D06-4898 (Fla. 1st DCA May 17, 2007). DUI: IMPLIED CONSENT WARNING: ICW not required to admit refusal to submit to breath test, only that negative consequences will result, i.e. can admit refusal. ICW only required for d.l. suspension. State v. Gustad, 5 FLW Supp 563 (Broward 4-24-98). Though new breath test rules measure breath alcohol level, the ICW that it measures blood alcohol level does not bar the breath test. State v. Waugaman (Monroe County, 1997); State v. Bold Robin Hood, (Duval County 1997) (hard copies available from FPAA, Carla). Failure to read or understand ICW does not cause BAC to get suppressed, it only precludes the roadside suspension, following State v. Gunn, 408 So.2d 647,648 (4th DCA1981); State v. Reyes, 4 FLW Supp 689 (Hillsboro, 4-29-97); State v. Nguyen 5 FLW Supp 53 (13th Cir. Hillsboro, 9-15-97 / even if D does not speak English). See new proposed ICC Warnings that distinguish breath, blood and urine warnings. Even if LEO read the old HSMV form 72054 which did not include language of "lawful test" and said "breath, urine or blood test to determine the content of alcohol in the blood" still results in sustained suspension, even without the "magic words" and is not too misleading. Cox v. State, 7 FLW Supp 311 (9th, Orange, 2-14-00). DUI: INCONSISTENT THEORIES / Impairment vs. DUBAL: Prosecutor is permitted to argue that the jury does not need to be unanimous as to how they determined guilt, either by impairment of unlawful breath alcohol level, so long as jury is unanimous that he is guilty by either alternative method of proof. The rebuttable presumption of impairment from the BAC applies only to the impairment theory of prosecution. Euceda v. State, 23 FLW D1075 (3d DCA 1998) DUI: INVOLUNTARY INTOXICATION: Involuntary intoxication may be a valid defense for DUI if D was unaware of the substance given or the effect until after he was driving. Carter v. State, 23 FLW D 962 (4th DCA 4/1598). Traces of drugs in the urine that are too minute to impair are not admissible as too prejudicial and if not alleged in the information is not relevant. Devers-Lopez v. State, 23 FLW D1178 (4th DCA 5/13/98) DUI: JURISDICTION: COUNTY COURT: If D charged with misdemeanor DUI and felony drugs in one episode and D pleads guilty in circuit court, county court would still have jurisdiction to try the DUI as circuit court is no longer a proper forum if no motion to consolidate was ever filed to divest the county court of jurisdiction. State v. Coble, 23 FLW D147 (4th DCA, 1998). Though UTC alleges DUI w/ PD, PI, and serious PI, and though SAO filed felony DUI, D could still plea to basic DUI in county court if ASA in county court consents = bar to prosecuting the felony. State v.Witcher, 737 So.2d 584 (1st DCA 1999). DUI: JURY INSTRUCTIONS: The presumption instructions are proper. Lamontague v. State, 24 FLW D4422 (5th DCA 1999); following Haas v. State, 597 So. 2d 770, 774 (Fla. 1992); State v. Rolle, 560 So. 2d 1154, 1157 (Fla. 1990) [where court instructs .08 "would be sufficient by itself to establish impairment] differing from Wilhelm v. State, 568 So. 2d 1, 3(Fla. 1990) [establishes "prima facie" evidence of guilt]. The Court may properly refuse to give the presumption instruction on a DUBAL case if the prosecutor does not request it (Note: On DUBAL the prosecutor should not request it because >.08 BAC "is itself the offense" and is not a rebuttable presumption). Euceda v. State, 711 So.2d 122 (3d DCA 1998). State may get DUBAL instruction on a "refusal" case for the limited purpose of showing the significance of the refusal. Cunningham v. State, 24 FLW D1798 (5th DCA 1999). DUI: MEDICAL BLOOD: Traditional predicate of State v. Strong 504 So. 2d 758 (Fla. 1987) must be followed to predicate medical blood admissibility. State v. Sclafani 22 FLW D 2407 (4th DCA 1997). Presumptions of Impairment do not apply to the traditional predicate of medical blood. Cameron v. State, 26 FLW D1748 (4th DCA 01). But DUBAL instruction is appropriate. Tyner v. State, 26 FLW D2203 (2d DCA 9-12-01). But See, Dodge v. State, 26 FLW D1550 (4th DCA 6-20-01). Note: 4th DCA reversed its ruling on Dodge v. State on 12-6-01 so that the DUBAL instruction is still permitted, and the presumption of impairment instruction was also permitted because the nurses supervisor could testify about the procedures in obtaining the blood sample. The results may be admitted as a business records exception as the trustworthiness of medical records is presumed. Love v. Garcia, 634 So.2d 158 (Fla. 1994). Medical blood (business records) is now permitted in criminal prosecution. Baber v. State, 24 FLW D1478 (4th FDCA 1999); Baber v. State, 25 FLW S639 (Fla. 8-31-00); revised 26 FLW S6 (Fla. 00). Friedrich v. State, 24 FLW D2175 (4th DCA 1999); Rafeuse v. State, 7 FLW Supp 99 (Brevard Co. 1999). It is not necessary for the sponsoring party to call the lab technician, even in a criminal case. The burden is on the striking party to prove the lack of trustworthiness of the records, such as by calling lab techs or experts to challenge the results. Brock v. State, 676 So. 2d 991 (1st DCA 1996). Claim of no "chain of custody" requires Defendant to show a "probability", not a mere possibility of tampering to exclude. Jordon v. State, 23 FLW D536 (5th DCA 1998). Evidence that State could not conclusively show the location of items in several intervals does not, by itself, indicate a probability of tampering, as this is Ds duty to establish. Floyd v. State, 27 FLW S697 (Fla 8-22-00). Nimmons v. State, 27 FLW D851 (5th DCA 4/19/02) holds that: 1. Hospital records of a blood test made for medical purposes, which is maintained by the hospital as a medical or business record, may be admitted in criminal cases pursuant to the business record exception to the hearsay rule. 2. Fact that laboratory report in question stated that "SPECIMEN ANALYSIS WAS PERFORMED WITHOUT CHAIN OF CUSTODY HANDLING. THESE RESULTS SHOULD BE USED FOR MEDICAL PURPOSES ONLY AND NOT FOR ANY LEGAL OR EMPLOYMENT PURPOSES" implicated the weight but not the admissibility of the report. "Furthermore, the test is relied upon by physicians for diagnostic purposes. Under these circumstances, we agree with the trial court's conclusion that the warning implicated the weight but not the admissibility of the report." 3. "In order to bar the introduction of relevant evidence due to a gap in the chain of custody, the defendant must show that there was a probability of tampering with the evidence, and a mere possibility of tampering is insufficient." If Defendant gives a 0.00 b.a.c. reading on Intoxilyzer, then refuses urine test, without other proof, this is insufficient to prove beyond a reasonable doubt that defendant was impaired due to a controlled substance. Baker v. State, 9 FLW Supp 168 note 2 (11th Cir. 1-15-02). State may not get a 2d chance to issue medical records subpoena if 1st effort was defective. State v. Rutherford, 22 FLW D2387 (4th DCA 1997), Clark v. State, 22 FLW D2296 (4th DCA 1997); conflicting with Hunter v. State 639 So. 2d 72 (5th DCA 1994), State v. Manney, 723 So.2d 928 (5th DCA 1999) and State v. Fahner, 2d chance permitted in 3d DCA. State v. Fahner, 26 FLW D2254b (3d DCA 9-19-01. Rutherford is now overturned by State v. Manney, 24 FLW D222a (4th DCA 1999) that 2d valid sub can be used, but evidence of "relevance" may not consider information from the 1st invalid subpoena. A narrowly tailored subpoena w/ evidence of "relevance" is sufficient to use records. Miller v. State, 22 FLW D21 (5th DCA 1997). Subpoena may be limited to information re. alcohol or controlled substance use, after showing of relevance at objection hearing. State v. Bratkowski, 11 FLW Supp 452c (11th Cir. Dade, March 26, 2004). If using medical blood, ASA needs expert to establish conversion to legal "whole" blood. Michie v. State, 632 So.2d 1106 (2d DCA 1994). If D. read ICW and refused to give blood, but medical blood was forcibly drawn, the medical blood may be unavailable for seizure under subpoena. See, State v. Godfrey, 7 FLW Supp 627 (Broward 6-12-00). However, if D. refused test, then taken for medical necessity where blood drawn, State gets med. records subpoena as b.a.c. is relevant to dui investigation. State v. Doolittle, 7 FLW Supp 721 (Palm Beach 00). Note: State v. Zina Johnson, 814 So.2d 390 Fla. 3-21-02) held that State only gets 2d chance to subpoena medical records if good faith effort was made in first, unsuccessful attempt to give notice. If LEO obtains a copy of the medical blood report, then the SAO later provides notice, the State is not precluded from use of the privileged information, merely because hospital gave the officer the results. Thomas v. State, 27 FLW 1251 (2d DCA 5-29-02). Medical Personnel May give b.a.c. to LEO: Per FS 316.1932(1)(f)2b permits LEO to seek information of medical blood alcohol level to establish p.c. to request legal blood. (This was the bill pushed through by Lon Arend, SAO 12th Cir). See, Thomas v. State, 820 So.2d 382 (2nd DCA 2002). This information may also supply the relevancy to requesting a medical subpoena for the blood, as in Hunter v. State, 639 So.2d 72 (5th DCA 1994), so long as the state follows the requirements under ' 395.3025(4)(b). See, State v. Price, 11 FLW Supp 354b (16th Cir, Monroe, 2-10-04). However, outside of this exception, LEO should never request medical records, as this will cause a bad faith request and bar any subsequent cure with adequate notice, as in Zina Johnson case. Sneed v. State, 29 FLW D1440 (3rd DCA 6-16-04). DUI: MEDICAL BLOOD ADMISSIBILITY: Need not follow legal blood draw procedures, but prove traditional predicate (1. qualified person 2. did reliable test & 3. explain meaning of test) w/o presumptions of admissibility or impairment. State v. Sclafanl, 22 FLS D2407 (4th DCA, 10-15-97). But See, Love v. Garcia where civil lawyers admitted same under business records exception w/o traditional predicate. State may also admit medical blood as a business records exception by calling the head of the hospital lab. Baber v. State, 24 FLW D1478 (4th DCA 1999). If ASA gets medical blood, but does not provide same in discovery, suppression is not the automatic remedy, as a Richardson violation contemplates other remedies, including a continuance. State v. Eaton, 29 FLW D686 ((2d DCA 3-29-04). DUI: MEDICAL RECORDS SUBPOENA: ASA may subpoena medical blood, even if ASA already has a valid legal blood. The standard of proof is reasonable suspicion that the record contains relevant information to an ongoing investigation. (Proof of impairment or lack of impairment is always relevant to a DUI investigation) State v. Rivers, 26 FLW D1512 (2d DCA 6-13-01). But See, State v. Parker, 10 FLW Supp 644d (14th Cir. Bay, 6-2-03) holding that the possibility of evidence (witnesses who saw Ds state of impairment) is insufficient, or the motion would have to be rubber stamped on all SAO medical subpoenas for DUI. State must give defendant notice and opportunity to challenge "relevance" of medical records of impairment to overcome statutory medical records privilege of F.S. 395.3025(d) and 455.241. State v. Wenger, 560 So. 2d 347 (5th DCA 1990); Miller v. State 23 FLW D21 (5th DCA 1997); Hunter v. State, 639 So. 2d 72 (5th DCA 1994); and State v. Bellcase, 4 FLW Supp 725 (5th Cir. Marion Co. 1997) [2d subpoena w/ notice cures defect of 1st subpoena w/o notice]; Ussery v. State, 654 So. 2d 561 (4th DCA 1995); , But See Contra, State v. Rutherford 22 FLW D2387 (4th DCA 10-15-97) and Clark v. State, 22 FLW D2296 (4th DCA Dec. 1997), [holding 2d notice is no cure to deter SAO from violating the statutory protection for patients]. However, if 2d sub cures improper procedure and shows relevancy w/o use of records themselves, defect is cured. State v. Manney, 723 So.2d 928 (5th 1999); Lukich v. State 7 FLW Supp 81 (Lake Co. 1999). Court's refusal to grant medical records subpoena is not appealable, but by certiorari. State v. Isaac, 22 FLW D621 (2d DCA 3-7-97). LEO who already had p.c. of impairment, when he saw D's medical chart with BAC, does not bar State's medical records subpoena. State v. Andress, 4 FLW Supp. 25 (7th Cir. Volusia 1996). Legal blood may be suppressed if only p.c. of impairment was physician reporting the medical blood to LEO w/o subpoena. State v. Buchanon, 610 So.2d 467 (2d DCA 1992). But see, 1998 amendment of F.S. 316.1932 and 316.1933 permitting use of e.r. info. to establish p.c. However, ASA receiving medical blood results from civil plaintiff's attorney is not a state action causing suppression of medical blood results. State v. Edwards, 650 So.2d 630 (2d DCA 1994). Improper notice, followed by proper notice to subpoena cures defect, but SAO may not use improperly seized evidence pursuant to State v. Rutherford, 7-7 so.2d 347 (4th DCA 1997) as p.c. under subsequent proper notice. State v. Manney, 24 FLW D222a (5th DCA 1999). Eff. 3-21-02, Fla. Sup. Court held that state must give notice to patient or make good faith effort to do so before obtaining medical records by subpoena. If State makes good faith effort to give notice, but fails, then gets records w/o notice, State is entitled to then do a 2d notice w/o suppression of the evidence, as exclusionary rule does not apply to good faith attempt to follow the privacy statute. State v. Zina Johnson, 814 So.2d 390 (Fla. 3-21-02). State v. Doolittle, Case No: 9962 AC A02 (15th Jud.Cir. 8/24/00) a. "The court must act as a shield to protect the patient's right to privacy by determining whether the medical records are relevant to a pending criminal investigation." b. "The court must determine that the state has a compelling interest to obtain the medical records and is using the least intrusive means to invade the patient's privacy rights." c. "Relevancy, not probable cause, is the sole burden that the state must satisfy and the only finding which the court must make regarding medical records." DUI: MISDEMEANOR IN OFFICER'S PRESENCE: Misdemeanor must occur in officer's presence unless exception. Accident exception requires an actual accident. F.S. 3116.645. If D drove over his own spare tire while changing a flat, causing his own undercarriage damage, this is not an accident. State v. Lane, 5 FLW Supp 558 (Broward 3-30-98). LEO may use the p.c. of another officer who saw D drive to make arrest when 2d officer did the FST's. State v. Blakely, 5 FLW Supp 561 (Broward 4-7-98); even if 2d officer in "fresh pursuit" from 1st officer's jurisdiction. DHSMV v. Leonard, 23 FLW D2107, So. 2d (5th DCA 9/11/98). A misdemeanor arrest must be made immediately or in fresh pursuit per FS 901.15(1). A delay of 6 hours is not immediate for a misdemeanor arrest w/o warrant or capias. See, B.D.K. v. State, 743 So.2d 1155 (2nd DCA 1999). DUI: MULTIPLE COUNTS: State may charge multiple counts arising from same episode. Melbourne v. State, 21 FLW S358 (Fl. 1996); Bemis v. State, 667 So. 2d 779 (2d DCA Nov.96); Hertzschurch v. State, 22 FLW D310 (3d DCA 1-29-97); State v. Salazar, 679 So.2d 1183 (Fla.1996). Re-confirming Melbourne v. State, 679 So.2d 759 (Fla. 1996) the Supreme Court held in Bautista v. State, No. SC 02-2121 (12-4-03) that the word any human being does not mean only one conviction for several human deaths. May only charge one count simple DUI. Hosfard v. State, 21 FLW D2356 (5th 1996), but may not charge simple DUI if convicted from DUI causing p.i. or p.d. in same episode. Colon v. State , 24 FLW D1913 (4th DCA 1999). State may even convict for DUI causing personal injury and property damage to same victim, but beware of fairness issues. Castro v. State, 685 So.2d 27 (4th DCA 1997). Even with multiple counts DUI the DL suspension is only valid per driving episode, not per count. Jackson v. State, 634 So.2d 1103 (4th DCA 1994). The sentence for 5-year DL revocations is calculated from date of prior conviction to date of subsequent arrest, not subsequent conviction under 322.28(2)(a). Trombley v. State, WL 2923339 (5th DCA 3/17/00). Now the 4th DCA (claiming to follow Jackson) holds that multiple convictions from one episode may not enhance the next offense to felony. State v. Lainez, 25 FLW D2710 (4th DCA 11-22-00), but this ruling as to multiple simultaneous convictions (as to criminal sanctions) is contra to 2d DCA ruling in Pulaski v. State, 540 So.2d 193 (2d DCA 1989), rev.den. 547 So.2d 1210 (Fla. 1989); Voorhees v. State, 630 So.2d 1139 (2d DCA 1993). May now get conviction for DUI Manslaughter and leaving the scene w/ only one death. Lawrence v. State, 26 Flw D2952 (2d DCA 12-21-01) receding from Pelham v. State, 771 So.2d 1254 (2d DCA 2000). DUI: MURDER 2D: DUI is insufficient to charge 2d murder, but sufficient for DUI manslaughter by mere negligence. Duckett v. State, 602 So.2d 662 (2d DCA 1996).Even with less than .08 may be sufficient to get manslaughter by culp. neg. if with speed and running off the road. Davison v. State, 688 So.2d 338 (1st DCA 1996). If jury acquits on DUI Manslaughter, but convicts Vehicular Homicide based on speed and some alcohol consumption, conviction sustained. Sutton v. State, (1st DCA #95-04539, A.G. Ed Hill, 904-488-0600). Speeding + running red-light is suff. for veh. homicide (requiring standard or recklessness, which is less than culpable negligence, but more than failure to use ordinary care). Fact that D's license is suspended is not relevant unless suspended for reasons related to unfitness to drive. V's conduct not relevant unless the sole proximate cause. Lewek v. State, 22 FLW D2471 (4th DCA 10-22-97). See, Fla. Bar Journal, Dec. 1997, p. 46, Hersh, Adam, and re. Degrees of Negligence: Manslaughter (2d F) = Culpable negligence (gross negligence); Vehicular Homicide (3d F) = recklessness (willful & wanton disregard); and DUI Manslaughter (2d F) = impairment + mere negligence (some causation). Fla. Jury Instructions, 1998 are insufficient to charge DUI Manslaughter, as it omits the Magaw negligence element. Hubbard v. State 23 FLW D2247 (1st DCA 1998). Re. Double Jeopardy, D may not be convicted of DUI Manslaughter and DWLS causing the same death. Senteno v. State, 24 FLW D1284b (2d DCA 1999), nor of Vehicular Homicide and DWLS causing death. Hunt v. State, 25 FLW D2412 (2d DCA 2000). If state charges DUI manslaughter, may only get lesser of vehicular homicide if the element of reckless manner likely to cause death is included in the DUI manslaughter information. Apple v. State, 25 FLW D246 (5th DCA 1/28/00). May only get one conviction per death. See, Gordon v. State, 457 So.2d 1095; 478 So.2d 1063 (Fla.) See also. Houser v. State, 474 So.2d 1193 (also holding no duty to preserve the breath sample). DUI: PREDICATE FOR SUBSTANTIAL COMPLIANCE: ANTICOAGULANT: When the new FDLE rules become effective, questions will arise as to how the State can prove their was a preservative and an anticoagulant present in the tube. See, Morales v. State, 26 Fla. L. Weekly D1074 (Fla. 3d DCA 2001)(The defendant contended that because there was no testimony by the technician who collected the blood that the vial contained an anticoagulant, and no testimony by the toxicologist that the substance was even blood, the State failed to substantially comply with FDLE Rules. The Court found the state did satisfy its burden of establishing its reliability under the rules. The toxicologist who analyzed the blood testified that it was contained in gray stopper vials in a blood kit; that he knew the manufacturer of the vials placed anticoagulants in the stopper vials; and that he knew there was anticoagulant because the blood did not clot even a year later. This unrebutted evidence was sufficient proof of the presence of an anticoagulant in the vial that contained the blood. The defendants assertion that the State was required to prove that the substance examined by the toxicologist was actually blood is an attack on the weight of the evidence, not its admissibility). DUI: PROBABLE CAUSE: ACCIDENT INVESTIG: LEO may only make a p.c. arrest for DUI after a crash if the arresting officer personally investigated the crash. See, State v. Hammerly, 723 So.2d 324 (5th DCA 1998). However, LEO may arrest for disorderly intox. based upon "fellow officer rule" and breath test for subsequent dui prosecution is admissible. State v. Fonte, 3 FLW Supp 363 (Hillsboro 1995); State v. Fonte, 4 FLW Supp 124 (Hillsboro 1995). An officer outside his jurisdiction may make a "citizen's arrest" for dui. State v. Furr, 723 So.2d 842 (5th DCA 1998); Edwards v. State, 462 So.2d 581 (5th DCA 1985). A DUI investigator may participate in the DUI portion of the accident investigation and still be considered as having personally making an investigation at the scene of a traffic accident, thus saving the not on-view arrest. See, State v. Johnson, 7 FLW Supp 485 (Broward 2000), even if the DUI officer did nothing personally re. the crash report itself. State v. Carreau, 10 FLW Supp 484b (17th Cir. Palm Beach, 5-2-03). DUI: PROBABLE CAUSE FOR BLOOD DRAW / ARREST: "FELLOW OFFICER RULE" applies to p.c. of driving, causation and impairment. Henniger v. State, 667 So. 2d 488 (1st DCA 1996), including officer #1 stop and officer #2 (DUI unit) doing FST and arrest State v. Weagraff, 5 FLW Supp 41 (Orange Co. 1-31-96). Also, D's admission may est. p.c. if not in custody State v. Johnson, 96-2041 (5th DCA 4-25-97). However, Community Service Officer (non-sworn) or security guard, who saw D. a.p.c. cannot justify a dui arrest w/o accident by fellow officer rule. Steiner v. State, 22 FLW D850 (4th DCA 4-2-97). The fellow officer rule applies to DUI where one officer sees driving and another officer determines impairment. Leonard v. DHSMV, 718 So. 2d 314 (5th DCA 1998); Smith v. State, 23 FLW D2444, 2445 (3d DCA 1998); State v. Sherman 98-3380T (Manatee, McMillan 1999); State v. Reed, et.al., 97-17804T (Sarasota, LoGalbo 1998); See also: State v. Evans 692 So 2d. 216 (4th DCA 1997); Johnson v. State 660 So. 2d 648 (Fla. 1995) cert den. 517 U.S. 1159 (1996); State v. Conyers 6 FLW Supp 161 (Broward 1998); State v. Manzie, 6 FLW Supp 233 (Broward 1999). It also applies if one officer has information justifying the detention or arrest, even if that information is not yet communicated to the other officer as it is the collective knowledge of all the officers, not just what is actually communicated. See, State v. Goodenough, 10 FLQW Supp 471b (9th Cir, Orange Co. 11-14-02), citing Johnson v. State, 660 so.2d 648 (Fla. 1995). Even an off-duty officer who begins pursuit in his city can give p.c. of driving to on duty officer outside city of DUI. Huebner v. State, 24 FLW D718 (4th DCA 3-17-99). Even if LEO does not believe he has p.c., blood draw is based upon p.c. of facts, not officer's subjective opinion of p.c. State v. Brown, 24 FLW D368 (5th DCA 2/12/99). Probable cause exists to draw blood where 2 surviving occupants of car each tell LEO that the other is driving, based upon common sense + if LEO has p.c. based on one person's statement, this p.c. does not fail upon D's lie that the other was the drive. Williams v. State, 731 So.2d 48 (2d DCA 99). Fellow officer rule okay for misdemeanors, but must be in fresh pursuit, not an arrest a day later. B.D.K. v. State, 24 FLW D2415 (2d DCA 1999). Dispatchers relaying DUI info to street officer constitutes "fellow officer" information, even if dispatcher is not sworn police personnel. See, Sarvis v. State, 7 FLW Supp 7 (9th Cir. Orange 1999); State v. Campbell, 7 FLW Supp 68 (18th Brevard, 1999). P.C. transmitted = collective knowledge doctrine. See, Voorhees v. State, 699 So.2d 602 (Fla. 1997); Carol v. State, 497 So.2d 253 (3rd DCA 1987). DUI: PROBABLE CAUSE: ROADBLOCK: State v. Jones, 483 So. 2d 433(Fla. 1986) is reaffirmed by Campbell v. State, 679 So. 2d 1168 (Fla. Sept. 1996), that a written plan is required for judicial review of the sufficiency of the plan as a whole that police do not have unbridled discretion to stop cars, essentially following Delaware v. Prouse, 440 U.S. 648 (1986) and Michigan Dept. of Police v. Sitz, 110 S.Ct.2481 (1990). However, not every Jones factor must be followed, i.e. no pre-roadblock media publication (even if requested by police) does not make the roadblock unconstitutional. State v. Brito, 4 FLW Supp. 717 (Dade 5-5-97). However, i.d. of driver with suspended license is not suppressible due to defective roadblock. Ware v. State, 697 So. 2d 3 (2d DCA 1996). But see, contra State v. Hodges, 6 FLW Supp 665 (Lee Co. 1999); Perkins v. State, 24 FLW D1155 (4th DCA 1999); Crew v. State, 24 FLW D1170 (2d DCA 1999). Roadblock was used in Campbell v. State, 679 so.2d 1168 (Fla 1986) for d.l. and safety check (??) but it was defective as orders were orally communicated, as in Hartsfield v. State, 629 So.2d 1020 (4th DCA 1993), following Brown v. Texas, 443 US 47 (1979). DUI: P.C. FROM MEDICAL PERSONNEL: '316.1932 permits LEO to get p.c. of impairment from medical personnel if BAL > .08 eff. 7-1-98/ DUI: REASONABLE SUSPICION TO STOP: Though p.c. is required to stop for an infraction, reasonable suspicion is the standard to stop and inquire of a suspected criminal act. Briggs v. State, 5 FLW Supp 662 (17th Cir, Broward 5-29-98). Even if failure to maintain single lane, if driving pattern could affect the safety of the motorists, State v. Hernandez, 5 FLW Supp 838 (Dade 8/98), or if it indicates the possibility of impairment. Roberts v. State, 24 FLW D533 (4th DCA 1999). One lower court has held that the reasonable suspicion based on erratic driving must include atypical driving that is not subject to misinterpretation. See, State v. Townley, 6 FLW Supp 531a (9th Cir. Orange Co. 1999). Note: Ellis v. State, 755 So.2d 767, 768, n.1 (Fla. 4th DCA, 2000) suggests that the Wrendecision did not intend to change the longstanding standard of reasonable suspicion to probable cause for a traffic stop for an infraction. DUI: FST: REASONABLE SUSPICION: Reas. susp., not p.c. is standard for FST's. State v. Terhune, 4 FLW Supp. 367 (9th Orange 5-8-96). For vehicle stop, reasonable suspicion includes weaving in and out of lane, even if no infraction, based on driving pattern. State v. Padilla, 4 FLW Supp. 866 (11th Cir. Dade 7-14-97); Roberts v. State, 24 FLW D533 (4th DCA 2/24/99); Brown v. State, 595 so.2d 270 (2d DCA 1992); DHSMV v. DeShong, 603 So.2d 1349 (2d DCA 1992). But, weaving from lane to lane without infraction is not sufficient bad driving pattern to justify a DUI stop. State v. Slattery, 4 FLW Supp. 871 (11th Cir. Dade, 6-13-97); Crooks v. State, 710 So. 2d 1041 (2d DCA 1998). No traffic violation is required if suspected DUI. DeShong v. State 603 So.2d 1352; State v. Carrillo, 506 So.2d 495, 496 (5th DCA 1987). Failure to maintain a lane is an objective basis to make a stop under 316.089, even if there is no endangerment. DHSMV v. Jones, 935 So.2d 532 (Fla. 3d DCA 2006). If there is a subjective basis to stop due to concerns for DUI or public safety, that may also be sufficient for the stop. Roberts v. State, 732 So.2d 1127, 1128 (Fla.4th DCA 1999); Ndow v.State, 864 So.2d 1248, 1250 (Fla. 5th DCA 2004). The decision in Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998) and Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002) re. failure to maintain a single lane was based on the narrow facts of how far the person went out of the lane to objectively determine whether the driver remained as nearly as practicable entirely within a single lane as required. DHSMV v. Jones, 935 So.2d 532 ((Fla. 3d DCA Sept 5, 2006), where even if the stop was for failure to maintain lane the stop is valid so long as the LEO can testify regarding how far the driver left the lane to show it was more as nearly as practicable, pursuant to F.S. 316.089 DUI: STOP: REASONABLE SUSPICION VS. PROBABLE CAUSE: The reasonable suspicion standard applies to suspect criminal activity, but under Wren, per State v. Heller,95-3726T (12th Cir, Manatee, Dubensky on appeal 8-11-97) probable cause is the standard to stop for an infraction. Wren v. U.S., 116 S. Ct. 1769 (1996); See also, State v. Stachell, 681 So.2d 802 (2d DCA 1996); Petrel v. State, 675 So.2d 1049 (4th DCA 1996); Rollins v. State, 578 So.2d 850 (2d DCA 1991). Some older cases disagreed, i.e. reasonable suspicion is the standard. Rollins, Supra, State v. Eubanks, 609 So. 2d 107 (4th DCA 1992); State v. Eady, 538 So. 2d 96 (3d DCA 1989); State v. Cobbs, 411 So. 2d 212 (3d DCA 1982). However, now all 5 DCA's in Florida have applied the p.c. standard. See Search & Seizure; Reas. Susp. v. P.C. for Infractions section of this outline for details. 4th DCA now says that reas. susp. is still the standard for traffic stops because Wren did not intend to raise the standard. Ellis v. State, 755 So.2d 767, 768, n1. (Fla. 4th DCA 2000). Even if LEO did not subjectively see infraction if observations would lead to an objectively reasonable officer to believe that infraction occurred = p.c. to stop. US v. Harrell, No. 00-1772 (2d Cir. 10-12-01). Defense frequently cites Crooks v. State, 710 So.2d 1041 (2d DCA 1998) for the proposition that LEO must actually see an infraction in fact before pulling over a driver. However, if the driving is unusual, but no infraction is observed in fact, but LEO suspects that D is DUI, ill, or something wrong, (not necessarily a specific infraction) the stop is reasonable based on that articulated suspicion. See, Finizio v. State, 26 FLW D2808 (4th DCA 11-28-01) and Roberts v. State, 732 So.2d 1127 (4th DCA 1999) to distinguish these stops. Note: ASA must verify from the LEO prior to the hearing as to whether the stop was based only upon seeing an infraction or reasonable suspicion that something was wrong, i.e. impairment, sleepiness or vehicle defect, etc. Reasonable suspicion is determined by the totality of the circumstances through the eyes of a trained LEO. U.S. v. Arvizu, Fax mail Op #1033 (S. Ct. 1-5-02). No p.c. to stop car for having only 2 out of 3 tail lamps working. State v. Duncan, 8 FLW Supp. 843 (12th Cir. Manatee Co., Farrance, J. 2001). Its still the law that if LEO has reasonable suspicion of a crime or p.c. of an infraction, the stop is good, even if intent is to search, i.e. LEO sees D going 7 mph over the speed limit, then inquires when the car stops to find DUI and drugs. State v. McCabe, 28 FLW D1264b (2nd DCA). DUI RESEARCH: WEBSITE: The Florida Technical Advisory Committee on DUI Enforcement and Prosecution has a website for DUI research and ideas with limited access to law enforcement and prosecutors at "dui infoaol.com" DUI: ROADBLOCK: A roadblock for perimeter of major crimes that happens to snare a DUI suspect does not require the Campbell v. State 679 So. 2d 1168 (Fla 1995) or State v. Jones 483 So. 2d 433 (Fla 1986) criteria. Harbaugh v. State, 23 FLW D955 (4th DCA 1998). The factors in Jones are not requirements, but factors only. The requirement of effectiveness may be lacking, yet still be constitutional. State v. Hilton, et.al, 7 FLW Supp 700 (Lee Co. Adams. 2000). DUI: SUPPRESSION: BURDEN: The burden to make an initial showing that a search was invalid is on the movant before the burden switches to the State to prove search was valid. Black v. State, 383 So.2d 295 (1st DCA 1980). Once D alleges "warrantless search" State must prove exception by "clear and convincing evidence." Such proof cannot adopt the facts in defendants motion unless defendant stipulates. See, Palmer v. State, 753 So.2d 679 (2d DCA 2000, overturning Henderson, J., acting 12th Cir. Judge). Allegations of lack of compliance with FDLE Administrative Rules may be by motion in limine where the defendant bears burden of showing lack of compliance before the State must rebut. State v. Parker, 44 Fla. Supp.2d 38 (15th Cir. 1990.) The Defendant bears the burdens of coming forward and of proof on motions in limine to exclude breath test results. State v. Zimmerman, 89-3138-AP-01 (12th Cir., Haworth J., 1989). If defendant is challenging the vagueness of a statute the Defendant's burden is beyond a reasonable doubt. State v. Kinner, 398 So.2d 1360 (Fla. 1981). An "arbitrary or capricious" promulgation of a rule challenge is by preponderance on the movant. Agrico Chemical v. D.E.R., 365 So.2d 759 (Fla. 1st DCA 1978). If D fails to allege an unconstitutional search and seizure, but only alleges a statutory exclusion of evidence, the motion to suppress should be construed as a motion in limine. State v. Hansen, 7 FLW Supp. 734 (Hillsboro Co. Fuente, J. (8-10-00). This is a motion in limine. The construction of this motion as a motion in limine may have the same results, exclusion of the evidence. However, the burden of production and persuasion is upon the movant. The State bears the burden of proving that a challenged search and seizure is lawful or reasonable only after the defendants have made an initial showing that there has been a warrantless search and seizure, or that the warrant was defective. Black v. State, 383 So.2d 295 (1st DCA 1998). Several Florida Courts have held that where such a challenge is made by the defendant, the burden of proof lies with the defendant. In State v. Misterka, 3 Fla. Law Weekly Supp. (Fla. Palm Beach County, June 14, 1995.) The movant on a "motion in limine" bears the burden of coming forward and of proof on a properly pled motion in limine. State v. Zimmerman, Case No. 89-3138-AP-01 (Fla. 12th Cir. Haworth, J. 1989, appeal from Sarasota County Court). Only then, must the respondent rebut the claims on a motion in limine. State v. Parker, 44 Fla. Supp. 2d 38 (Fla. 15th Cir. 1990). Phillips 3 Fla. Law Weekly Supp. 740 and State v. Gerena, 4 Fla. Law Weekly Supp. 51). In State v. Parker, 44 Fla. Supp.2d 38 (15th Cir. 1990), the Court held that where the defendant alleges lack of compliance with administrative rules, the defendant bears the burden of showing non-compliance before the State must rebut. Id. at 39. The burden of persuasion on the movant is by a preponderance of the evidence. Generally, the State will sponsor the evidence at the trial, where the State, as the movant, does bear the burden or persuasion by preponderance. On a motion in limine the movants burden is preponderance. See, Brim v. State, 695 So.2d 268 (Fla. 1997). Whenever a defendant files a "motion in limine" he must establish a "minimal showing" of specific facts sufficient to shift the burden to the respondent. State v. Arnold, et.al, 7 Fla. L. Weekly Supp. 160 (Fla. 9th Cir. 1999). Defendant bears burden of showing non-compliance with breath testing rules in pre-trial motion. State v. Jessup, 40 Fla. Supp. 2d 28 (Palm Beach, 1989). See, also, State v. McDevitt, 40 Fla. Supp 2d 139, 142 (Palm Beach 1990). However, one lower court held that a substantial compliance challenge requires the State to make an initial showing of compliance before the burden shifts to defendant. In that case, the court held that the State met that showing by introducing the breath test affidavit. State v. Walker, 6 FLW Supp 715. (11th Cir. Miami-Dade, Emas, J. 1999). Now, the Second District Court of Appeal has recently reached the same conclusion. It is sufficient proof to make the b.a.c. admissible if the State presents the breath test affidavit in evidence. If the defendant has further challenges or speculative argument, the defendant may present testimony of this alleged non-compliance. There is no requirement in the law that the state must present additional testimony beyond the affidavit that the test complied with the administrative rules. This includes a claim that there was no original certificate of registration admitted in evidence. This holding is particularly necessary due the precedential impact of a ruling in a circuit or county requiring exhaustive presentation of testimony and exhibits on every case. DHSMV v, Alliston, 813 So.2d 141 (2d DCA, Mar 13, 2002). Defendant must exhaust all administrative remedies on rules challenges first; 316.1932 is not a criminal statute, so the doctrine of lenity does not apply, but should be liberally construed; challenge in criminal court violates separation of powers; defendant bears burden of proof by preponderance; and exclusion of results is not the proper remedy. State v. Glenn Hasety, et,al., 03952 MM10A (17th Cir. Broward, 9-1-03). DUI: URINE TESTS: APPROVED: State v. Bodden, 29 FLW S153 (Fla. 4-15-04 and State v. Montello, 29 FLW D597c (4th DCA 2004) and State v. Piere, 854 So2d 231 (5th DCA 2003) that no administrative rules are required for urine testing. Also, Manatee County Court Judge Henderson denied a motion to suppress urine tests prior to the date of the revised statute that clarified any ambiguity, based upon procedural change in the law is not ex post facto in State v. Melograno, Case No. 2003 CT 1587 on 9-8-03. DUI: VEHICLE IMPOUNDMENT: 316,193(6) (d) re. vehicle impoundment is not unconstitutionally vague. State v. Muller, 22 FLW S264 (Fla. 5-15-97). Now may be concurrent w/ probation. Non-owner D has no standing to complain, but third party owner or lien holder may challenge by filing a civil complaint in county court. State v. Wichman 24 FLW D409 (2d DCA 1999). DUI: VEHICLE FORFEITURE: Ch 99-234 permits the forfeiture of the vehicle if the driver had a DWLS based upon a prior DUI conviction. Section also requires WWRD if alcohol related to attend DUI school DUI: WILLIAMS RULE: RE. RECKLESS DISREGARD: Use of prior DUI convictions valid to show malice. A. U.S. v. Tan, 2001 WL 744955 (10th Cir. 2001)( Seven prior DUI convictions admissible to prove malice in second degree murder prosecution.) B. U.S. v. Fleming, 739 F.2d 945 (9th Cir. 1984) C. U.S. v. Loera, 923 F.2d 725 (9th Cir. 1991) D. State v. McAllister, 138 N.C.App. 252, 530 S.E.2d 859, 863-64 (N.C.App. 2000) E. Moorhead v. State, 638 A.2d 52, 55-56 (Del. 1994)(Prior DUI convictions admissible to prove malice in second degree murder prosecution.) F. State v. Woody, 173 Ariz. 561, 845 P.2d 487, 489 (Ariz.Ct.App. 1992)(Evidence of prior DUI relevant to issue of whether defendant's mental state reflected a reckless indifference to human life.) G. People v. Brogna, 202 Cal.App.3d 700, 248 Cal.Rptr. 761, 766-67 (Cal.Ct.App. 1988)(Criminal act underlying vehicular murder is driving under the influence with conscious disregard for life and prior convictions are probative of the mental state since those who drink and drive after being convicted of that offense know better than most of the illegality and danger of their conduct.) H. State v. Vowell, 276 Ark. 258, 634 S.W.2d 118, 119 (Ark. 1982) RULE OF DUPLICITY: If defendant escapes once during an episode, is captured, and escapes again, the ASA may not argue that the jury can conclude either act is the one crime charged because this undercuts the requirement of a unanimous verdict. Perley v. State, 32 FLW D344 (4th DCA 1-31-07). DURESS AS A DEFENSE: Although the standard duress instruction requires that the threat be imminent, but also the instruction that there must be no reasonable opportunity to escape the compulsion, permits the defense, even if the threat is for future harm if the person does not testify according to the demand of the threatening person. Pflaum v. State, 29 FKW D1773 (4th DCA 8-4-04). The defense consists of: 1) defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm was real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger except by committing the crime; 5) the crime was committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighed the harm committed by the crime. So, duress is never a defense to homicide. Driggers v. State, 31 FLW D57 (5th DCA Dec. 23, 2005). DWLS: DRIVING / APC: DWLS includes APC. F.S. 322.01(15). See, also State v. Bostick, 25 FLW D625 (5th DCA 00); and includes parking lots open to the public. State v. Tucker, 25 FLW D1678 (2d DCA 7-14-00), but does not include roads that are closed to the public. Galston v. State, 31 FLW D3089 (Fla. 5th DCA 12-8-06). DWLS: FELONY AS "HABITUAL": Effective 10-1-97, F.S. 322.34, state must prove that D had knowledge of the suspension for any DWLS conviction as evidenced by previous charges for DWLS, D's admission of knowledge, notice at prior judgment or other proof. However, note that ' 1 (for HTO's does not require the knowledge element for DWLR). Brown v. State, 25 FLW D1624 (4th DCA 7-14-00); State v. Serra, 9 FLW Supp 245a (17th Cir. Broward, 2-20-02). Also first offense "Habitual" DWLS is a 3d degree felony, effective 10-1-97. However, until October 1997, State v. Harvey, 22 FLW D902 (4th DCA, 1997) held that we cannot bump 3d offense DWLS based upon HTO to felonies because the present statute exempts HTO from the 3d offense enhancement. See, also, Perryman v. State, 22 FLW D 2622 (4th DCA 11-19-97). Now, HTO can be prosecuted as a felony under the 1997 statute, even if D. had no d.l., finding the "privilege" and the "license" to mean the same thing. (contra to Harvey). See, Carroll v. State, 25 FLW D1289 (2d DCA 5-24-00). Re. proof of knowledge, note also that Section 322.251 still permits the admission of Certified Driving Record with a presumption of knowledge upon notice by DHSMV. The statutory construction on 322.251 is to be liberally construed to the end that the greatest force and effect may be given to its provisions per Section 322.42. See also, State v. Grapski, (4th DCA 7-16-97). But See, Brown v. State, 25 FLW D1621 (4th DCA 2000) that held there is no rebuttable presumption of notice, per statute. State may prove knowledge from redacted CDR if D cross-X LEO re. knowledge and opens the door. Bachman v. State, 5 FLW Supp 51 (11th Cir, Dade 9-26-97). But note: Redacted CDR does not prove the reason for the suspension and may have to prove the reason at trial (this may conflict with the Harbaugh split trial re. priors and proof of DWLS as the jury would have knowledge of the reasons of past bad conduct to get the suspension). See, Brown v. State, 25 FLW D1621 (4th DCA 2000). Proof of knowledge also applies to DWLS causing death. Waites v. State, 22 FLW D2628 (4th DCA 11-19-97). Felony HTO DWLSR may still be prosecuted even if the period of revocation has expired but D never got DL reinstated. State v. Green, 24 FLW D2712 (3d DCA 1999). If D is acquitted of DWLSR (w/ knowledge) he may still be prosecuted for HTO DWLSR w/o violating double jeopardy. State v. Cooke, 24 FLW 2720 (4th DCA 1999). But, if D is charged as HTO, but pleads at 1st appearances w/o ASA objection to the misdemeanor DWLS, the felony will be barred by double jeopardy. State v. Clayton, 26 FLW D489 (Fla. 5th DCA 2-16-01). Felony HTO DWLS is constitutional. State v. Phillips, 28 FLW D 1950 (1st DCA 8-21-03). DWLS: FELONY CAUSING DEATH: Is constitutional as not mere negligent act, but negligence + DWLS = felony. State v. Brown, 24 FLW D1557 (2d DCA 1999); Smith v. State, 638 So.2d 509 (Fla. 1994). However, the suspension must be for bad driving, re. the "knowledge" and "willfulness" requirements. Waites v. State, 702 So. 2d 1373 (4th DCA 1997). D may be convicted of both DUI Manslaughter and DWLS causing death with only one death. State v.Cooper, 634 So.2d 1074 (Fla. 1994). DWLS: IDENTITY IS NOW SUPPRESSIBLE: The Fla. Sup. Ct. held that a stop w/o reasonable suspicion to check for susp. d.l. is a fruit of the poisonous tree, following Delaware v. Prouse, 440 US 648 (1979) and overturning O'Neal v. State, 649 So.2d 311 (3d DCA 1995); State v. Ramos, 598 So.2d 267 (3d DCA 1992); Ware v. State 679 So. 2d 3 (2d DCA 1996.) State v. Perkins, 25 FLW S321 (Fla. 4-27-00). Tag check and d.l. check showing suspension of owner of car is insufficient reasonable suspicion to stop the car w/o indication that owner was the driver. Ward v. State, 7 FLW Supp 731 (Hillsboro, Fuente,J 00). DWLSR: KNOWLEDGE: Court must instruct that knowledge is an essential element of DWLSR, even under 322.2615 for DUBAL or refusal. Mitchell v. State, 23 FLW D403 (4th DCA 2/4/98). State must introduce evidence of knowledge of suspension, and may not merely argue that knowledge is imputed by the CDR showing prior UTCs for DWLS. Quest v. State, 28 FLW D552d (1st DCA March 2003). DWLS: LESSER: NO VALID D.L. IS NECESSARY LESSER OF DWLSR: 4th DCA held that a suspended or revoked d.l. is also an invalid d.l., so HTO should get a lesser instruction. Hagood v. State, 27 FLW D1810 (4th DCA 8-7-02). This ruling is consistent w/ Roedel v. State, 773 So.2d 1280 (5th DCA 2000), but conflicts with Lanier v. STate,226 So.2d 37 (1st DCA 1969). DWLSR: MOPED: ATV: HIGHWAY: FS 316.003(82) and (21) now exclude a moped or goped as a motor vehicle. So, the following may be old law // A moped is a "motor vehicle" for 322 purposes requiring a d.l. Soto v. State, 23 FLW D1236 (4th DCA 5/20/98); Jones v. State, 23 FLW D2097 (2d DCA 9/9/98); Wood v. State, 23 FLW D2200 (1st DCA 98/23/98). An ATV is also a motor vehicle and driving on the unpaved shoulder of the roadway is still a highway. 23 FLW D1121.D.L. required to operate a go-ped as such is a motor vehicle pursuant to '322.34. State v. Riley, 22 FLW D1984 (4th DCA 8-22-97). If in a public access place, on battery-powered scooter with 2 wheels and a seat it is a vehicle under FS 322.01(26) to support a valid DWLS charge. Inman v. State, 30 FLW D2811a (2nd DCA 2005). A gas-powered mini-motorcycle is a motor vehicle under 322 as it is self-propelled, not operated upon rails or guideway, and does not fall within any exclusions as it is not moved solely by human power and is not a motorized wheelchair, and does require a license to operate in a public place. 32 Fla.L. Weekly D2786a DWLS/R ON PERMANENT REVOCATION ESTABLISHED BY C.D.R.: The c.d.r. is sufficient proof of permanent revocation because it merely proves the predicate fact of permanent revocation, as the offenses that gave rise to the permanent revocation are not the issue. State v. Miller, 27 FLW D2418 (2d DCA 11-18-02), concurring w/ Arthur v. State, 818 So.2d 589 (5th DCA 2002). to establish a prima facie case. State v. Tucker, 27 FLW D2576 (2d DCA 12-4-02). DWLSR: PLEA: If D pleas to cocaine possession, triggering d.l. suspension under 322.055(1) Court must inform of same during plea colloquy as this is a direct, not collateral consequence of the plea. Daniels v. State, 23 FLW D1994 (4th DCA 1998). However, administrative suspensions of DUI are indirect consequences of the plea. See, DHSMV v. Gordon, 860 So.2d 469 (1st DCA 2003); State v. Bolware, 28 FLW D2493 (1st DCA 2003); and Case v. State, 865 So.2d 557 (1st DCA 2003). DWLSR: PRIOR CONVICTIONS: Include withold adjudication as "conviction" as legislative intent of strict construction in section 322. Raulerson v. State, 25 FLW S542 (Fla. 7-13-00); State v. Keirn, 23 FLW D1144 (4th DCA 5/6/98); Raulerson v. State, 699 So.2d 339 (5th DCA 1997); State v. Suleiman, 6 FLW Supp 274 (13th, Hillsboro, Fuente 1999); and Levine v. State, 26 FLW D488 (Fla. 2d DCA 2-23-01). 3d degree Felony DWLS upon third conviction does not unconstitutionally delegate to court the degree of the charge. Finding of guilt by jury or guilty plea, or nolo after finding of factual basis, satisfies "conviction" requirement. State v. Barron, 4 FLW Supp. 363 (19th Cir. St. Lucie, 9-30-96). The two predicate convictions qualify, even if adjudication was withheld. Raulerson v. State, 699 So.2d 339 (5th DCA 9-26-97). However, if D pays off old fines (the basis of the DWLS) under 318.14(10)(a) where the clerk enters a withold and costs, jeopardy has attached and felony DWLS prosecution is barred. DWLS prior must occur after 10-1-97 to show prior was with knowledge. Huss v. State, 25 FLW D2638 (1st DCA 11-9-00). Pre-Huss convictions cannot be challenged retroactively, Bryan v. State, 28 Flw D2782 (5th DCA 2003), but could be subject to a 3.850 challenge for pleas after 11-9-00. OQuinn v. State, 28 FLW D2801 (5th DCA 2003). DWLSR: NEW LAW: FTA for worthless checks = suspension, F.S. 832.09, eff. 7-1-98. Permanent revocation for murder w/ car, dui manslaughter if prior dui conviction or 4th offense dui. DWLSR on permanent revoc = third degree felony, eff. 7-1-98. F.S. 322.26. DHSMV v. Critchfield, 27 FLW D130 (5th DCA 1/4/02), affd 28 FLW S225b (Fla. March 13, 2003). Held the permanent revocation unconstitutional as violating single subject rule, until legislature ratifies law, which was done in the 2003 session. If D sentenced to jail, suspension does not begin until release from jail. F.S. 322.283, eff. 7-1-98. Persons DWLS on permanent revocation between 7-1-98 and May 21, 2003 (date of reenactment of statute) should have cases dismissed. Gillman v. State, 28 FLW D2861b (1st DCA 2003). However, for persons that were not permanent revocations, the single subject violation would not cause the charge itself to be defective, just the methods of proof. See, State v. Dunmore, 14 FLW Supp 309a (Fla. 17th Cir. Broward, Jan 10, 2007). DWLSR: "STREET OR HIGHWAY": A private parking lot with public access is a "street or highway" requiring a driver's license. State v. Lopez, 633 So. 2d 1150 (5th DCA 1994); State v. Berkshire, 42 Fla. Supp 2d 83 (Palm Beach 1990). DWLS: FELONY AS "HABITUAL": Effective 10-1-97, F.S. 322.34, state must prove that D had knowledge of the suspension for any DWLS conviction as evidenced by previous charges for DWLS, D's admission of knowledge, notice at prior judgment or other proof. However, note that ' 1 (for HTO's does not require the knowledge element. Fields v. State, 24 FLW D898 (5th DCA 1999). Also first offense "Habitual" DWLS is a 3d degree felony, effective 10-1-97. However, until October, State v. Harvey, 22 FLW D902 (4th DCA, 1997) held that we cannot bump 3d offense DWLS based upon HTO to felonies because the present statute exempts HTO from the 3d offense enhancement. See, also, Perryman v. State, 22 FLW D 2622 (4th DCA 11-19-97). Re. proof of knowledge, note also that Section 322.251 still permits the admission of Certified Driving Record with a presumption of knowledge upon notice by DHSMV. The statutory construction on 322.251 is to be liberally construed to the end that the greatest force and effect may be given to its provisions per Section 322.42. See also, State v. Grapski, (4th DCA 7-16-97). State may prove knowledge from redacted CDR if D cross-X LEO re. knowledge and opens the door. Bachman v. State, 5 FLW Supp 51 (11th Cir, Dade 9-26-97). Proof of knowledge also applies to DWLS causing death. Waites v. State, 22 FLW D2628 (4th DCA 11-19-97). ENTRAPMENT BY ESTOPPEL: A defense exists to estop prosecution if the defendant is entrapped by misleading government information indicating lawful authorization to engage in an act that is later prosecuted if the defendant reasonably relied upon assurance of authorization to conduct the act. See, e.g. U.S. v. Tallmadge, 829 F.2d 767, 776 (9th Cir. 1987); Raley v. Ohio, 360 U.S. 423 (1959); Cox v. Louisiana, 379 U.S. 559 (1965) and U.S. v. Abcasis, 45 F. 3d 39 (2nd Cir. 1995). This lawful defense arises from decency, good faith, fairness and justice where the conduct of state officials must be considered in determining the defendants intent to break the law. See, Thomas v. State, 185 So.2d 745 (3d DCA 1966). ENTRAPMENT: OBJECTIVE STANDARD: State v. Howell, 629 So. 2d 313 (2d DCA 1993) re. selling goods to pawn shop, re. F.S. 777.201. Cruz, U.S. (199 ) re. Objective standard vs. Munoz, So.2d (Fla. ) re. Subjective standard. See State v. Blanco, (4th DCA 1-21-04) re. using sex to induce defendant to produce drugs. If CI encourages a person previously involved in a romantic relationship to buy drugs, the defendant is objectively entrapped. Curry v. State, 29 FLW D1262 (4th DCA 5-26-04), see also, Tammy Smart, CI case in 2nd DCA; Madera v. State, Op# 12016 (4th DCA 12-6-06). Drunken Bum decoy operations are objective entrapment. Joyner v. State, 497 So.2d 1307 (Fla. 2d DCA 1986); and Jones v. State, 483 So.2d 119 (Fla. 2d DCA 1986). ETHICS; PROSECUTORS; CHARGING DECISION: Must have probable cause, at a minimum, ABA Model Code 3.7, FRPC 4-3.8(a). It is an aspirational goal to determine that you can likely prevail beyond a reasonable doubt. ABA 3.9(a). "Before filing information every state attorney should not only seek probable cause in his investigation, but also determine the possibility of proving the case beyond and to the exclusion of every reasonable doubt." In Re: Rule 3.131(b) FRCrP, 289 So. 2d 3 (Fla.1979) ...indeed it is unprofessional conduct for a prosecutor to recommend an indictment on less than probable cause. It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt." U.S. v. Lovasco, 97 S.Ct. 2044,2049 (1977). ETHICS; PROSECUTORS; CHARGING DECISION; DISCRETION: The charging decision is exclusively that of the prosecutor for which the Court may not override, even if the court thought the charge is not proper without a legal basis to dismiss or divert to arbitration. Even if DJJ recommends that no petition for battery be filed, "[T]he state attorney is vested with the sole discretion to decide what action to take. "We shudder to think what would happen to the wheels of justice if every such childhood scuffle resulted in criminal prosecution." D.C. v. State, 436 So 2d 203 (1st DCA 1983, Judge Zehmer). EVIDENCE: ADMISSIONS AGAINST INTEREST: STATEMENTS BY PARTY: Bryant v. State, 27 FLW D445 (4th DCA 2002) An exculpatory statement of a party is admissible against the party making the statement, under section 90.803(18)." EVIDENCE: BRADY: To get relief of new trial or sentence, D must show that: 1) State possessed evidence favorable to D's case; 2) D did not possess and could not have obtained it through reasonable diligence; 3) State suppressed the evidence; and 4) a reasonable probability exists that the outcome would have been different. State v. Parker, 23 FLW S439 (Fla. 9/4/98). EVIDENCE: BUSINESS RECORD: 911 call may not be admitted as a "business record" under 90.803(6) w/o the record custodian. Franzen v. State, 23 FLW D2586 (2d DCA 1998). Note: recordings may be sponsored by a party to the conversation who can testify that it is an accurate depiction of the events said, like a photograph of a scene w/o photographer. Lab report of positive drug test from urine sample properly admitted through business record exception in VOP proceeding. Russell v. State, 27 FLW D74 (4th DCA 02); J.G. v. State, 685 So.2d 1395 (5th DCA 1997); Davis v. State, 562 So.2d 431 (1st DCA 1990). EVIDENCE: CHAIN OF CUSTODY: the legal burden for a defendant to challenge chain of custody of evidence is to produce evidence of probable tampering not possible tampering. Davis v. State, 26 FLW D1199 (2d DCA 5-11-01). EVIDENCE: CIRCUMSTANTIAL EVIDENCE: hair + fiber + vague statement of killing insufficient to sustain conviction. Q for jury if inconsistent with any reasonable hypothesis of innocence, but if not supported by competent, substantial evidence, will get reversed. Long v. State, 22 FLW S103 (Fla. 3-6-97). The State is not required to rebut every possible scenario inferred by defendant's evidence, only to introduce competent evidence inconsistent with defendant's theory. Schwartz v. State, 22 FLW D1384 (4th DCA 6-4-97). Fingerprints must be on inside of point of entry of burglary or at the time of the burglary to overcome hypothesis of innocence. Shores v. State 25 FLW D91 (4th DCA 2000); State v. Law 559 So.2d 187 (Fla. 1989). Defendant must propose a hypothesis of innocence, and then the Court should determine if it is reasonable, but the Court may not create a hypothesis itself. OLM v. State, 25 FLW D2240 (3d DCA 00). It is NOT the states burden to conclusively rebut every possible variation of events that could be inferred from the evidence. Rather, it the states obligation to introduce competent substantial evidence that is inconsistent with the defendants theory of events. State v. Huck, 29 FLW D1655 (5th DCA 2004). EVIDENCE: CONSCIOUSNESS OF GUILT: Threatening eyewitness and/or witness' relatives if witness tells is admissible evidence of consciousness of guilt to rebut claim of self defense or in state's case in chief. Jenkins v. State 22 FLW D1864 (2d DCA 7-30-97)[receding from Manly v. State]. Lying to police may be evidence of consciousness of guilt. State v. Brown, 25 FLW D1018 (3d DCA 00). EVIDENCE: CROSS EXAM: D has wide latitude to cross as to bias or prejudice, incl. V's filing of civil suit. However D may not cross X re. V filing for Injunction. Nelson v. State, 23 FLW D362 (5th DCA 1/30/98). Where D testifies that he pled to prior charges rather than going to trial ASA may cross-X D about the reasons for the pleading. Lee v. State, 24 FLW D736 (1st DCA 99). D may cross x state's witness re. being "on probation." Phillips v. State, 727 So.2d 981 (2d DCA 99); Davis v. Alaska, 415 US 308 (1974). Defense may cross x re pending charges, but not whether witness is on probation. Jervis v. State, 727 So.2d 981 (5th 1999) (rev. granted), but plea agreement with State is fair game. Bennett v. State, 713 So.2d 1088 (2d DCA 1999). However, State may not cross-x D re. pending unrelated charges or drug use unless W impaired at time of incident or testimony. Bratcher v. State, 24 FLW D2144 (5th DCA 1999); Thomas v. State, 25 FLW D2369 (4th DCA 2000). Lawyer must have knowledge of prior before asking. If the witness denies the conviction, the opposing party may produce the record of conviction in evidence, but may not question about the nature of the crime, unless the witness attempts to mislead the jury. Mosley v. State 24 FLW D1980 (4th DCA 1999). Likewise, ASA may not ask witness whether the witness was paid $ or threatened to falsify the testimony without factual predicate. Marmol v. State, 25 FLW D375 (4th DCA 00). State may not cross -x Defendant as to whether the officer lied when he testified or may get reversed. Boatwright v. State, 452 So.2d 666 (4th DCA 1984). State may cross X defendant re. pending civil law suit against police. Brandful v. State, 28 FLW D2523 (3rd DCA 2003). EVIDENCE: DOCTRINE OF COMPLETENESS: DOOR OPEN: If defendant crosses LEO re. some statements made by defendant, he opens the door to SAO getting the entire statement admitted under the doctrine of completeness. Williams v. State, 22 FLW D479 (3d DCA 3-5-97). However, merely asking LEO how D became suspect does not fling door wide-open re. specific non-testifying co-D statements. Pacheco v. State, 22 FLW D1891 (2d DCA 8-1-97). Rule applies to witness' partial recollection of a statement as well as a partial transcript of a statement. Layman v. State, 24 FLW D679 (5th DCA 99). If a defendant does not testify, but manages to get lots of exculpatory version of events through a claim of doctrine of completeness, the state is permitted to introduce his prior convictions in order to impeach those statements. Moore v. State, 31 FLW D3019 (1st DCA 12-5-06). If defendant admits prior convictions because he pled to them, the state is permitted to inquire if the defendant got a plea bargain or better sentence to plea in that case. Rogers v. State, 32 FLW D2083a (Fla. 4th DCA 2007). EVIDENCE: DRUGS: State may offer LEO's testimony that substance was marijuana without admitting the m.j. into evidence for guilty. State v. Sinko, 5 FLW Supp 552 (Dade, 4-23-98). A qualified LEO with sufficient experience may identify marijuana by its appearance, smell and color w/o necessity of a lab confirmation. Robinson v. State, 27 FLW D968 (5th DCA 4-26-02) If survive JOA, some member of the juror panel will confirm same in deliberations. EVIDENCE: ELDERLY ABUSE: 90.803(23), similar to child sex crime victim hearsay is constitutional. Conner v. State, 23 FLW D843 (2d DCA 3-27-98). EVIDENCE: EXCITED UTTERANCE: ASA MUST PROVE LACK OF REFLECTIVE THOUGHT: There is no bright line time span. It could be less than 20 minutes or > 14 hours. The key is that the proponent must prove that the declarant was hysterical, severely injured or subject to other extreme emotional state sufficient to prevent reflective thought. See. Rogers v. State, 660 So.2d at 240. If the statement occurs while the exciting event is still in progress, courts have little difficulty finding that the exciting event prompted the statement. But as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance. Although one court has held a statement made fourteen hours after a physical beating to b e the product of the excitement caused by the beating, other courts have held statements made within minutes of the event not admissible. Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process. Quoting McCormicks Rule of Thumb. in Blandenburg v. State, 29 FLW D2493 (1st DCA 11-5-04). [Here, State did not prove absence of reflective thought in 20 minutes]. EVIDENCE: EXCLUSIONARY RULE: Not every violation of a statute results in the deprivation of a defendant's due process rights. See, State v. Caminity, 613 So.2d 141, 142 (4th DCA 1998). Rather, the court must employ a balancing test on a case-by-case approach to determine whether the police conduct involved is "so outrageous as to shock the Court's sense of fairness." U.S. vs. Bounos, 730 F.2d 468, 474 (7th Cir. 1984). See, State v. Zina Johnson, 814 So.2d 3903-21-02) re. Exclusionary rule only intended to deter violations, not a per se result of failure to follow a statute re. Privacy rights. EVIDENCE: EXPERT TESTIMONY: Trial court has discretion to refuse to permit an expert to testify, now following the majority rule of other jurisdictions. McMullen v. State, (Fla.4-9-98). Expert may not be used as a conduit to introduce inadmissible evidence. Though expert may rely on other reports, i.e. medical records, the expert may not essentially testify as to their contents. Erwin v. Todd, 699 So.2d 275 (5th DCA 1997). An expert's written report is hearsay. Brown v. Int'l Paper, 710 So.2d 666 (2d DCA). Opinion may be inadmissible if not based on proper underlying data with a factual basis, i.e. slip & fall case where expert did not test the water absorbing properties of the carpet and did not attempt to recreate the incident. Carnival Corp. v. Stowers, 28 FLW D213 (3d DCA 2003). Person may not be qualified as an expert for reading lots of articles, as simply reading large amounts of scientific literature, all of which falls well outside a persons area of educational expertise, cannot serve to create an expert our of a non-expert. Jordan v. State, 694 So.2d 708 (Fla. 1997); State v. Supina, 11 FLW Supp 53 (15th Cir. Palm Beach, Nov. 18, 2003). EVIDENCE: EX POST FACTO / RETROACTIVE APPLICATION: See Glendenning v. State, 536 So.2d 212 (Fla. 1988) and State v. Dionne, 27 Flw D616a (5th DCA 2002) [new rule re. no corpus required for child sex battery evidence] re. if rule of evidence is procedural, may apply retroactively to cases, but if substantive change in proof of crime violates ex post facto. EVIDENCE: FRYE HEARINGS: DRE may testify of opinion of impairment on alcohol and/or drugs by HGN independently of other evidence of impairment because HGN is reliable, "quasi-scientific" evidence which has been used nationally for many years by medical science and law enforcement witnesses, as Fryehearings are only necessary for new or novel tests. Williams v. State, 23 FLW D752 (3d DCA 3-18-98). Frye does not apply to expert testimony that is pure opinion. But, if the opinion is based on studies and tests, not pure opinion, it is subject to the Frye test. State v/ Demeniuk, 29 FLW D1861 (5th DCA 8-27-04). GPS, as used in On Star is not new or novel. Still v. State, 30 FLW D2823 (3d DCA 12-14-05). EVIDENCE: HEARSAY: BOLO: Contents of BOLO are admissible of why police were looking for a particular car if no accusatory information is contained as such is not offered for the proof of the matter asserted. Collier v. State, 22 FLW D2617 (3d DCA 11-19-97), distinguishing Conley v. State, (Fla. 1993) where accusatory bolo information was testified to. Dispatch information of domestic violence is admissible in RAWOV charge to establish the element of executing a lawful duty as the information is not offered to prove the truth of the matter asserted. Blue v. State, 9th Cir. Orange Co. 9-25-03). That may be distinguished from the information in detail about a domestic violence report when the defendant is charged with felony resisting and BLEO, as the lawful exercise of a legal duty is not a defense to the use of violence in resisting. See, Burgos v. State, 29 FLW D292 (3rd DCA 1-29-04) (note: Burgos did not make this distinction w/ Blue, as it only analyzed the necessity of inextricably intertwined domestic battery w/ the resisting and found that it was not inextricable as there was a clear break in time and events). Similar holding re. BLEO and RAWV in Porter v. State, 715 So.2d 1018 (2nd DCA 1998) where limited probative value of domestic violence was substantially outweighed by the danger of unfair prejudice. EVIDENCE: HEARSAY: BUSINESS RECORDS: Counselor, who saw taking of urine sample, took same to lab, and kept business record may testify about result. J.G. v. State, 22 FLW (5th DCA 1-10-97). EVIDENCE: HEARSAY: CALLER I.D.: Caller ID Readout is not hearsay on a digital display pager as they are not statements by a person. Bowe v. State, Fax Mail Op#2037 (4th DCA 2-14-01). EVIDENCE: HEARSAY: CRAWFORD: Crawford v. Washington, 124 S.CT 1354 (2004) does not prohibit states from having Aflexibility in their development of hearsay law and can exempt such statements from confrontation clause scrutiny altogether, by state statute. 124 S. Ct at 1374, including spontaneous statement and child hearsay. Herrera-Vega v. State 29 FLW D2361 (5th DCA 10-22-04). If defendant has opportunity to depose the child, the cross-examination requirement is met and the child hearsay is admissible. The cross exam need not occur in the presence of the trier of fact, and the deposition need not be perpetuated. Blanton v. State, 880 Si,2d 798 (5th DCA 6-18-04). 911 call w/ EU is common law evidence, and trustworthy evidence, not excluded under the limited Crawford ruling. State v. Lopez, 11 FLW Supp 837 (11th Cir. Miami-Dade, April 19, 2004). But see, State v. Lopez, 974 So.2d 340 (Fla. 2008) holding that the statement is testimonial if not an ongoing emergency, as in Davis v. Washington, 547 U.S. 813 (2006) and subsequently in Sanon v. State, 978 So.2d 275 (Fla. 4th DCA 2008). But, if the statement is to 911 operator or non-law enforcement person, the statement is nontestimonial, as in Hammon v. Indiana, 546 U.S. 1088 (2006) and in subsequent case of Paraison v. State, 980 So.2d 1134 (Fla. 3d DCA 2008) where the statement at the scene by elderly woman who was bound and gagged to the LEO was testimonial, but her statement to her son, while under the duress of the exciting event was not testimonial. Breath Test Affidavits are non-testimonial hearsay, and are not excluded under Crawford. Belvin v. State, Case No. 02-11 AC A02 (15th Cir. 10-04-04) [reversing its prior ruling to the contrary], citing State v. Matthews, 11 FLW Supp 923a (Sarasota Co., LoGalbo, J. 7-30-04). Crawford is not retroactive. See, Mungo v. Duncan, 03-2706 (US 2nd Cir. 2004). Discovery deposition qualifies as an opportunity to cross-examine. State v. Dedman, 102 P.2d 628 (N.M. 2004)(a blood alcohol report is admissible as a public record and presents no issue under the Confrontation Clause). Business records Exception may not apply to FDLE lab reports of drugs, but could possibly be proven by custodian of record circumstantially. Johnson v. State, 31 FLW D125b (2d DCA 2006). Business records under 90.803(6)(a) and 90.902(11) are sufficient for a post conviction hearing where an affidavit of an independent laboratory is admissible if not the only hearing for violation of probation or community control. Peters v. State, 31 FLW D267a (1st DCA Jan. 24, 2006). EVIDENCE: HEARSAY: EXCITED UTTERANCE: Do not need to corroborate the exciting event as in Fla's co-conspirator rule as it is sufficient that the declaration itself, coupled with declarant's excited condition is sufficient. Separation of time from event to declaration does not "per se" cause statement to be inadmissible. State v. Wright, 678 So. 2d 493 (4th DCA 1996). Generally, 911 call is excited utterance, but if several hours later when caller is not under stress of event, it is not. State v. Skolar, 22 FLW D1097 (5th DCA 5-2-97). Even if State is unable to establish the time of the battery, a victim who is still crying and appears to be afraid may sufficiently establish lack of opportunity to reflect or deliberate prior to making the statement as a spontaneous statement. Lyles v. State, 412 So. 2d 458 (2d DCA 1982). If she is still under the stress of the excitement, the state need not establish the time of the exciting event. Jano v. State, 524 So. 2d 660 (Fla. 1988); Canady v. State, 5 FLW Supp 102 (Hillsboro Co. 10-21-97). A DUI witness who was excited upon seeing a crash and exclaimed that D was just at a party and told not to drink was not abuse of discretion to admit the declaration. Edwards v. State, Fax mail op #8015 (3d DCA 8-2-00). EVIDENCE: HEARSAY: FORMER TESTIMONY: REQUIRES UNAVAILABILITY: The Supreme Court ruled that the rule of evidence permitting the use of former testimony at a criminal trial requires the predicate proof of unavailability to satisfy the confrontation clause (even if D formerly confronted the witness). State v. Abreu, 28 FLW S17 (Fla. 1-9-03). EVIDENCE: HEARSAY: STATEMENT AGAINST INTEREST: A state government lab report that is favorable to the defense is admissible against the state as a statement against interest. Garland v. State, 27 Flw D2589 (4th DCA 2002). Defendants statements against interest that were adopted in a sworn c-4 motion to dismiss are admissible in the states case in chief, not just for impeachment. State v. Palmore, 510 So.2d 1152 (Fla. 1987). Invocation of right to remain silent is evidence of declarant being unavailable, and statement should be admitted at trial. Perry v. State, 675 So.2d 976 (4th DCA 1996). However, Defendants statements against interest at a suppression hearing are only admissible for impeachment. Simmons v. U.S., 88 S.Ct. 967 (1968). EVIDENCE: HEARSAY: SUBSTANTIVE EVIDENCE: Though unsworn inconsistent uncorroborated statement cannot constitute the only substantive evidence or = JOA, if victim's testimony is not inconsistent with the hearsay, JOA is error. Brantley v. State, 22 FLW D1106 (1st DCA 4-28-97). Admissible child hearsay is not sufficiently inconsistent with in-court testimony of not sure about penetration, invoking Jaggers v. State 536 So.2d 321 (2d DCA 1988) limitation of penetration proof by inconsistent uncorroborated hearsay. Barton v. State, 22 FLW D1831 (1st DCA 7-29-97). If victim recants at trial, court must JOA if only evidence of crime is prior inconsistent statement. Andreu v. State, 22 FLW D1351 (2d DCA 5-30-97). EVIDENCE: HEARSAY: FORMER TESTIMONY: Now permitted if at the deposition or proceeding the party against whom the evidence is offered had similar motive to develop the testimony. eff. 3-12-98 ' 90.803(22). Predicate to former testimony admissibility as substantive evidence must include reasonable efforts by the proponent of the evidence to procure the witness to show "unavailability" pursuant to F.S. 90.804(2)(a). Ramirez v. State, 441 So. 2d 316 (3d DCA 1982); Spicer v. State, 458 So. 2d 792 (3d DCA 1984). Deposition is not official proceeding for former testimony admissibility at criminal trial and must have motion to perpetuate to admit deposition testimony. State v. Clark 614 So.2d 453 (Fla.1992); Rodriguez v. State, 609 So.2d 493 (Fla. 1992). EVIDENCE: HEARSAY: MEDICAL DIAGNOSIS: Dom. Violence victims statement to treating physician that she was beaten by her boyfriend is not admissible absent a showing as to how that statement could aid in medical treatment. Llanos v. State, 25 FLW D2252 (4th DCA 2000). EVIDENCE: HEARSAY: SUPPRESSION HEARING: Hearsay is admissible in suppression hearings. Lara v. State, 464 So. 2d 1173 (Fla. 1985), even if the only evidence of the basis for the stop was the p.c.a. State v. Rodway, 4 FLW Supp. 600 (15th Cir, Palm Beach Co., 2-28-97); State v. Champagne, 14 FLW Supp 668a (12th Cir. Sarasota Co. Galen, J. 5-4-07); but see where Judge Galen then reversed herself on same issue in Gurruchaga, which is on appeal. Officers hearsay re. reason for stop is sufficient at suppression hearing. Ferrer v. State, 26 FLW D1407 (4th DCA 6-8-01). "Courts may properly take judicial notice of the contents of the court file in a case on a motion to suppress. Campuzano v. State, 771 So.2d 1238 (4th DCA 2000). See State v. Hinton, 305 So.2d 804, 807 (Fla. 4th DCA 1975). The officer who swore to the truth of the probable cause affidavit was the only witness at the motion to suppress hearing. Courts use and rely on probable cause affidavits in a variety of situations, such as the taking of pleas and at first appearances. See Fla.R.Crim.P. 3.133(a)(3) (indicating that a probable cause determination may be based on a sworn complaint or affidavit). When the trial court's written order made reference to the tip's indication of the weight of the cocaine, there was no motion or other objection alerting the trial court that that fact was in dispute. Under these circumstances, we find no error in the court's reliance on the probable cause affidavit to establish one fact. However, 2nd DCA found that if hearsay from fellow officers alone was insufficient proof of the p.c. of the stop on a municipal ordinance. Cook v. State, 29 FLW D1341 (2d DCA 6-2-04). In the Cook case, no PCA was offered as evidence / only the hearsay of other officers at the hearing. A hearing to establish relevance to obtain medical records does not afford a right to confront, as the hearsay evidence is sufficient to establish relevance. McAlevy v. State, 947 So.2d 525 (4th DCA 2006). EVIDENCE: HEARSAY: VERBAL ACTS: A verbal act is an utterance of an operative fact that gives rise to legal consequences. Verbal acts, also known as statements of legal consequence, are not hearsay, because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it. This can be used to help establish a the existence of a conspiracy or to show what was meant by the conduct of a defendant, even by using the verbal act of a third person that defendant responded to in order to show what a dime of crack meant. See, Banks v. State, 26 FLW S510 (Fla. 7-13-01) and Stevens v. State, 642 So.2d 828 (2d DCA 1994). EVIDENCE: IMPEACHMENT / CROSS-X: Victim may be impeached with evidence of prior false report of crime as relevant to credibility. Cilburn v. State, 23 FLW D1057 (2d DCA 4/24/98). Editor's Note: The recanting domestic victim could be shackled with such impeachment in future "cooperative" cases, even with prejudicial presumptions re. child custody actions. EVIDENCE: IMPEACHMENT: DHSMV HEARING: Testimony and evidence from DHSMV Admin. Hearing is inadmissible into evidence unless first provided in discovery. F.S. 316.193(10). EVIDENCE: IMPEACHMENT: DRIVER'S HANDBOOK: A drivers' handbook is not admissible at trial as a hearsay exception because there was no statutory duty to publish it. (Note: use this to prevent defense attorney's use to impeach or cross-examine officer). Sikes v. Seaboard Coastline, 429 So.2d 1216 (1st DCA 1983). EVIDENCE: IMPEACHMENT: METHOD OF W/ PRIOR CONVICTION: If witness unsure how may convictions it is error to ask if convicted __ times for ___. Proper method is to introduce the prior J&S. White v. Singletary, 23 FLW D1868 (3d DCA 1998); D's failure to object = ineff. counsel. Rodriquez v. State, 25 FLW D1041 (2d DCA 00). EVIDENCE: IMPEACHMENT: May not call a witness to the stand solely to impeach; need some helpful info. to be able to use the impeachment. Morton v. State, 22 FLW S100 (Fla. 3-6-97). EVIDENCE: IMPEACHMENT: LEO may not be impeached by reprimand for general misconduct. Bain v. State, 22 FLW D607 (5th DCA 3-7-97). State can not call a witness for the sole purpose of impeaching the witness with otherwise inadmissible evidence. U.S. v. Miller, 664 F. 2d 901 (1981), but state can impeach its own witness who gives both favorable and unfavorable testimony. Morton v. State, 22 FLW S100 (Fl. 3-6-97). Can impeach by omission if the out of court statement was material and should have included omitted statement. McBean v. State, 22 FLW D347, 4th DCA 2-5-97). Though defense may impeach state's witness re. pending charges, the state may not do the same to defense witness. Stevens v. State, 22 FLW D 1223 (4th DCA 1997). EVIDENCE: IMPEACHMENT: PRIOR FALSE REPORTS: A d.v. victim may not be impeached with evidence of prior bad acts of filing false d.v. reports if she was not convicted of it. Reeves v. State, 28 FLW D2454a (1st DCA 2004). IMPEACHMENT BY PRIOR SPECIFIC ACTS OF MISCONDUCT: Victim of sexual battery was cross examined by defense attorney asking about previous reports that someone else burned her that were false. The impeachment is generally limited to prior convictions, pursuant to Rule 90.610. and this was not permitted here. Roebuck v. State, 32 FLW D846 (1st DCA 3-30-07). However this may conflict with other rulings in 2d DCA where a victim previously admitted making false accusations against others, but the victim was not convicted, as certain circumstances of prior false reports should be made known to the jury as to the character of the victim to falsely accuse people. See, Cliburn v. State, 710 So.2d 6699 (Fla. 2d DCA 1998) and Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988). In a case where a physician had his license suspended for misconduct that included corruption was admissible to show a possible bias or prejudice, within the courts discretion. Tanzi v. State, 32 FLW S223 (Fla. 5-10-07). EVIDENCE: INSUFFICIENT: 20 fingerprints of D inside foil containing drugs insufficient to prove possession w/o proof that D could not have touched foil prior to packaging. Chavez v. State, 22 FLW D2608 (2d DCA 11-12-97). EVIDENCE: "IMPROPER PREDICATE": It is insufficient under '90.104 to broadly state "improper predicate" and "lack of foundation" as the objector must put the court and opposing party on notice of the specific problem with the predicate so that the problem may possibly be disposed of by asking the witness a few focused questions. Jackson v. State, 738 So.2d 382 I4th DCA 1999); Jackson v. State, 456 So.2d 916, 919 (4th DCA 1984). EVIDENCE: LAY OPINION: SPEED: A lay witness with many years driving experience may testify as to opinion of speed of a car. Martinez v. State, 222 FLW D305 (3d DCA 1-29-97), but must testify as to underlying facts or perceptions that opinion is based upon. Fino v. Nodine, 646 So. 2d 746, 749 (4th DCA 1994). See 90.701 EVIDENCE: NEGATIVE IMPEACHMENT: Not favored, but if omitted portion is material and important issue, Court must permit. McBean v. State, 22 FLW D347 (4th DCA 2-5-97). Permitted where battery victim initially forgot to mention the battery. Davis v. State, 25 FLW D974 (4th DCA 4-19-00). EVIDENCE: OBJECTIONS: PREDICATE: Merely objecting to "insufficient predicate" does not preserve any error. The objecting party must specifically state the defect in the predicate. Jackson v. State, 24 FLW D1457 (4th DCA 1999), was including predicate for medical blood. Filian v. State, 25 FLW D376 (4th DCA 00). If D. attorney objects as Alack of foundation or improper predicate the objection should not be sustained as it is not sufficiently specific within 90.104(1) to alert the court (or the prosecutor) what is the specific thing complained of, and will not preserve any error if the evidence is admitted. See. Couzo v. State, 27 FLW D2273 (4th DCA 10-16-02) EVIDENCE: OPENING DOOR: If court rules in limine and one party "opens the door" the 2d party may not go through the door w/o inquiring of court if ruling is lifted due to opening door. Gore v. State, 23 FLW S518 (10-1-98). Also, if movant violates the order, Ct. may declare manifest necessity of mistrial w/o dbl. jeopardy. Clark v. State, 25 FLW D1060 (5th DCA 4-28-00). EVIDENCE: PRIVILEGE: School attendance records are privileged pursuant to F.S. 228.093(3) preventing state to use in VOP. F.A.T. v. State, 22 FLW D807 (1st DCA 3-25-97). Listiing of D psychiatrist for insanity defense does not waive the attorney-client privilege until the witness testifies at the trial, but the expert must provide copies of his reports to the SAO. Sagar v. State, 24 FLW D678 (5th DCA 1999). EVIDENCE: PATIENT-PSYCHOTHERAPIST PRIVILEGE: Privilege remains for victim/patient. It was only abrogated for Defendants. State v. Patterson, 22 FLW D872 (4-4-97). EVIDENCE: REFRESHING MEMORY: ASA may not refresh memory of witness, who cannot i.d. D at trial with a single mugshot as such is impermissibly suggestive. Roberts v. State, 26 FLW D594 (4th DCA 01). EVIDENCE: THE SILENT WITNESS: Photographs (and audio-video tapes) may not only be admitted by eyewitness that it fairly and accurately depicts the scene or event, but also upon predicate of the reliability of the process that produced it, even if computer enhanced photo. Dolan v. State, 24 FLW D1708 (4th DCA 99). Time-lapsed video is admissible if it accurately depicts the relevant actions. Jefferson v. State, 27 FLW D524a (1st DCA 02). Surveillance video with audio is admissible without violating Defendants confrontation clause rights. Washington v. Crosby, Fax mail Op# 3055 (11th Cir. U.S. 3-21-03). EVIDENCE: SIMILAR FACT: Must be incidental to the trial, not the "feature of the trial." Bush v. State, 22 FLW D809 (1st DCA 3-25-97); Steverson v. State, 22 FLW S345 (Fla. 6-12-97). Court properly rules on State's pre-trial motion in limine and trial motions to admit prior acts of domestic violence, following Jensen v. State, 555 So.2d 414 (1st DCA 1988). Merrell v. State, 4 FLW Supp.686 (Dade 4-11-97). Course of domestic violence may be admitted to show lack of consent on d.v. and sexual battery. Boroughs v. State, 684 So. 2d 274 (5th DCA 1996). EVIDENCE: TYPICAL CONDUCT: LEO may not testify of "typical" transactions to bootstrap bad factual case as D has right to be tried on his conduct, not a typical drug dealer's similar conduct. Moore v. State, 23 FLW D1013 (4th DCA 4/22/98). EVIDENCE: VIDEO TAPE: If LEO testifies as to time, date, defendant's i.d. operating condition and capability of equipment and security of equipment and no indicia or tampering is sufficient to authenticate the video tape even though the u.c. is not present to testify as to what he saw during drug buys. Wagner v. State, 23 FLW D657 (1st DCA 2-26-98). State may use the same predicate of video as photos that it accurately represents what is depicted. However, if video is a security video w/o eyewitnesses, predicate of proof of surrounding circumstances and function may authenticate the tape. However, if tape is enhanced, Defendant has right to compare to original. Bryant v. State, 27 FLW D280 (1st DCA 1-28-02) EVIDENCE: WILLIAMS RULE: State may not offer similar fact evidence in anticipation of certain defenses (prior domestic batteries to negate possible accident or mistake claims) but must wait to admit the evidence until the matter is at issue. State may offer other domestic battery from the day before as it is "inextricably intertwined" with D's claims on battery the next day. Johnson v. State, 5 FLW Supp 508 (Dade Co. 4-1-0-98). EVIDENCE: WILLIAM'S RULE: Sex Bat and DV case; other abusive acts with victim admitted to show overall nature of relationship and victim's lack of consent. Boroughs v. State, 21 FLW D2577 (5th DCA 12-6-96). EX POST FACTO LAW: Law that extended the statute of limitations beyond a previously lapsed period of statutory limitation for cause of action is ex post facto. Stogner v. California, #01-1757 (US 2003). EXPUNCTION OR SEALING: Trial Court has the discretion to deny a motion to seal a criminal record, even though D had FDLE certificate of eligibility. State v. Yadgaroff, 10 Flw Supp 359b (17th Cir. Broward 3-26-03). Court may abuse its discretion if not based on all the facts and circumstances of the case, as mere w/h for voter fraud does not, alone, make it not subject to expunction. Godoy v. State, 28 FLW D1284b (3rd DCA 2003). See, FS 943.0585. Expunction is not eligible for crimes including acts of domestic violence upon withold adjudication, only upon a decline or nolle, per 943.0585, as a crime enumerated under 907.041. If denied, in the discretion of the court, the court should state the reasons for denial, based on the facts and circumstances of the case. See, Nordstrom v. State, 14 FLW Supp 234c (9th Cir. Orange Co. Oct. 12, 2006). In fact, the court must state its good reasons for denial based on the facts and circumstances of the individual case. Oymayan v. State, 765 So.2d 813, 815 (Fla. 1st DCA 2000); Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997). EXPUNCTION; DANGEROUS CRIMES NOT ELIGIBLE: Generally, the Court may only deny a petition for expunction of a criminal record if the case was decline, dismissed or not eligible per FS 907.041 (list of dangerous crimes ineligible for pre-trial release). If the defendant is otherwise eligible, the trial court could only expunge the offense after considering the nature of the offense and all the surrounding circumstances. See, Godoy v. State, 845 So.2d 1016 (3rd DCA 2003), and Anderson v. State, 692 So.2d 250 (3rd DCA 1997). However, IF the offense is enumerated in 907.041, the legislature has already determined that no expunction is permitted, even on a withold adjudication, such as for domestic battery, (and other listed violent felonies or sex acts) as any act of domestic violence, defined in 741.28(2) is excluded from expunction, even with a w/h adj. Williams v. State, C# 3D03-3251 (3rd DCA 8-4-03). FLEEING: Eff. 10-1-98 is third degree felony if marked car with lights and siren; but if high speed or WWRD = 2d degree felony. F.S. 316.1935. Still M1 if unmarked, no lights or siren and no high speed. FALSE NAME: New offense of 1st degree M for any arrested or lawfully detained person to give a false name or ID to LEO or CO. If this adversely affects another person = 3d degree F, eff. 7-1-99. Ch. 99-169, F.S. 901.36. FALSE NAME RECANTATION: The "false name" statute contains no express recantation defense. However, the public policy underlying the recantation defense for obstruction and perjury charges applies equally to the current "false name" statute. For the recantation defense to apply, the person must correct the false information prior to any substantial harm to the investigation. Substantial harm may include booking under wrong name, writing reports with the wrong name, following false leads, if done prior to arrest, transported or booked, and w/in 10-15 minutes, as no substantial harm is caused by the initial false name statement. See, e.g. A.A.R. v. State, 926 So. 2d 463 (Fla. 4th DCA 2006). FALSE NAME REQUIRES LAWFUL DETENTION OR ARREST: If person is subject to a consensual field interview, he is not committing a crime to lie about his name, until such time as he is lawfully detained or arrested. K.Q.W, v. State, 32 FLW D673 (5th DCA 3-9-07). FALSE TESTIMONY: BRADY: GIGLIO: 3 part test: 1) trial testimony was false; 2) the prosecutor knew it was false (knowledge imputed if LEO knew of it; and 3) the statement was material. The prosecutor bears the burden of proving non-materiality. Guzman v. State, 28 FLKW S829 (Fla. 11-20-03); Giglio v. U.S., 405 US 150 (1972). FALSE REPORT: PROOF: False report of a crime cannot be established by proof that defendant, who was compelled by subpoena F.S. 27.04, testified to the contrary in the domestic violence trial. State v. Raulerson, 4 FLW Supp 799 (Hillsboro, 1997). FORGERY: TRAFFIC CITATION: Signing another's name to UTC is forgery. Washington v. State, 685 So.2d 996 (5th DCA 1-3-97); Rushing v. State, 684 So.2d 856 (5th DCA 1996). However, 316.650(9) precludes admission of the UTC in evidence as proof. Dixon v. State, Case No. 1D00-3636 (1st DCA 4-4-02). The Second District Court of Appeal has agreed with the 1st D.C.A. that, due to the clear language of Fla. Stat. 316.650(9), a traffic citation is not admissible even in a trial where the State has alleged that the defendant committed forgery by signing another persons name. Judge Altenbernd issued a lengthy dissent. State v. Veilleux, 28 FLW D 1804a, (2nd D.C.A. 2003). However, 2nd DCA, then found that the UTC is admissible if issued in the name of another person, and forged by this defendant. See, Maddox v. State, 28 FLW D2614 (2nd DCA 11-14-03), which overturned Dixon in Maddox v. State, 31 FLW S24a (Fla. Jan 12, 2006), and also corrected by statutory change in 2005 permitting the use for trial for fraud. FREE SPEECH: DISORDERLY CONDUCT: Verbal protests over another arrest coupled with refusal to back away = disorderly conduct CLB v. State, 22 FLW (2d DCA 3-5-97). HARASSING PHONE CALLS / PUBLIC SERVANT: Defendant called Assistant A.G. 3 times leaving phone messages regarding displeasure of the way the case is being handled. AGA reported this to the police. This is not harassing phone call because it is not made solely to harass. Durie v. State, 30 FLW D243 (5th DCA 2005). HATE CRIMES AGGRAVATOR: Now includes victims who are mentally or physically disabled of persons > 65 y.o.a. eff. 10-1-98, F.S. 775.085. IDENTITY OF D: NO SUPPRESSION: Identity of D is not suppressible due to illegal arrest, search or interrogation. Rivera v. State, 6 FLW Supp 376 (Dade 1999); Ware v. State, 679 so. 2d 3, 5 (2d DCA 1996); INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). IMPLIED CONSENT: NOT VOLUNTARY: If "implied consent" reading does not apply to the circumstance, the giving of the blood sample is not "voluntary." State v. Barnett, 536 So.2d 375 (2d DCA 1988); or breath sample, State v. Polak, 598 So. 2d 150 (1st DCA 1992). INCOMPETENCY / INSANITY: The county court judge over criminal matters may not impose a forensic commitment to the incompetent to proceed or insane persons on misdemeanor cases because chapter 916 commitments are limited to circuit court actions per 916.106(2) and 916.13(1), though Rules of criminal procedure re. incompetency on misdemeanors contradict this limitation. (Baker Act or non-commitment treatment options remain). Onwu v. State, 692 So. 2d 881 (4th DCA 1997). County court judge w/o jurisdiction even to commit a person found not guilty by reason of insanity to a forensic facility, nor to an outpatient facility. State v. Gidus, 6 FLW Supp 296 (15th Cir, Palm Beach 1999). Note: Palm Beach County has a special incompetency court with 35 treatment beds. Also, Rule 3.212(c)2 permits an incarcerated person to remain incarcerated during the treatment plan. However, juvenile rule of incompetency permits involuntary commitment, even on a misdemeanor by the juvenile circuit judge. DCFS v. AASt.M, 22 FLW D2049 (5th DCA 8-29-97). Low IQ and learning disability does not make D incompetent if he can consult w/ counsel w/ reasonable degree of rational understanding and has a rational and factual understanding of the proceedings. State v. Ocasio, 8 FLW Supp. 241 13th Cir. Fuente 01). A defendant cannot be forced to take antipsychotic medications while pending trial for a non-violent offense w/o court finding that it will further States interests and is necessary and less intrusive alternative treatment. Sell v. U.S., #02-5664. US Sup. Ct. 2003. The Court may also order appropriate outpatient treatment at a local facility (i.e. substance abuse center) and that s/he report for further evaluation at specified times during the release period as a condition of the release, per. ' 3.212(d). Starting January, 2005, if a person fails to remain at such an outpatient facility, the facility may petition for inpatient commitment under the Baker Act. Further, it is recommended that whenever law enforcement encounter a misdemeanant believed to be insane or incompetent, i.e. a drunk / drugged driver w/ a suspended d.l., eluding police due to paranoia, they may arrest and also Baker Act the person so that they either get treated or are released and not eligible for the incompetency petition. Otherwise, the ASA should always insist that the defendant/petitioner request an order to evaluate AND recommend a least restrictive treatment plan that excludes the impossible, i.e. forensic commitment for a misdemeanant. In the alternative, the ASA should ask the states doctor to evaluate the person for BOTH incompetency and Baker Act eligibility. INFORMATIONS: AMENDING DURING TRIAL: Though minor defects in information can be amended during trial, ASA may not substitute a new crime after jury is sworn. State v. Thomas, 23 FLW D1730 (5th DCA 1998). ASA may not amend information after jury sworn from poss. cocaine to poss. of another controlled substance as this has effect of nolleing the original charge, and prejudice as to the new, so D cannot be prosecuted for either. Scaife v. State, 25 FLW D1789 (2d DCA 2000). ASA may substantively amend information during the trial over defense objection unless Defense shows actual prejudice in preparation. Darby v. State, 25 FLW D53 (5th DCA 1999). State could even amend to charge a different crime after resting if D not prejudiced in preparation. Here, information erroneously alleged that D was <18 y.o.a. when he was >18 and did sex bat with victim <12. Toussaint v. State, 25 FLW D643 (4th DCA 2000). ASA may amend information on Friday before a Monday trial so long as D is not prejudiced in the preparation of defense, i.e. from attempted burglary to burglary. Henderson v. State, 27 FLW D444 (4th DCA 2-20-02). However, State may not force D into Hobsons Choic by filing case on 175th day and compel D. to choose between speedy trial and discovery. State v. Naveira, 27 FLW D432b (1st DCA 02) OLD LAW: Courts now permit state to file information on last day of w/o penalty due to ds inability to prepare w/in the speedy trial period. State v. Naveira, 29 FLW S169 (Fla. April 22, 2004). AMENDING INFORMATION DURING TRIAL: Unless prejudiced, State does not need leave of court to amend information. However, ASA may not amend information during the trial to allege a different crime, as such has effect of nolle prosequi of original, and start of new charge, which violates due process in the middle of trial. Clements v. State, 27 FLW D263 (1-25-02). State may still amend the actual charge prior to trial if not prejudice shown in the preparation of the case for trial. State v. Erickson, 28 FLW D1544 (5th DCA 7-3-03). INFORMATIONS: AMENDING: PROSECUTORIAL VINDICTIVENESS: State may add additional counts at the day of trial if defendant refuses to plea straight up, if defendant has several days to depose additional witnesses. No presumption of vindictiveness. Wallace v. State, 22 FLW D 604 (3-5-97). State may amend offense date on trial day, even if during tolled period of speedy trial. State v. Garcia, 22 FLW D1073 (3d DCA 4-30-97). INFORMATIONS: MISDEMEANOR "NTA" or "UTC": Misdemeanors may be charged by NTA pursuant to Rules 3.125 and 3.140. But if notice lets LEO check if "arrest, NTA or referral" and is not checked, charging document is defective and county court has no jurisdiction. Mallard v. State, 22 FLW D2255 (4th DCA 9-24-97). The conviction can be challenged post conviction as no charging document ab initio if D is "arrested" on the charge and no info filed. Byrd v. State, AP 98-5AC A02 (15th Cir. 8-27-99). Rule 3.170(a) permits a plea and adjudication at the first appearance without filing an information for a misdemeanor upon a "sworn complaint." A UTC is sufficient to charge DUI in county court. Deel v. State, 25 FLW D54 (5th DCA 1999). INFORMATIONS: OATH: Felony information must be sworn to based upon information that has been sworn to by a material witness, but misdemeanor informations must be in good faith only. See Rule 3.140(g). If jurat is not proper, the information is subject to being dismissed. See State v. Weinberg, 26 FLW D440 (5th DCA 2001). The oath must be given to an official that can administer an oath. State v. Mandell, 599 So.2d 1383 (4th DCA 1992). If no oath, can be Void ab initio and conviction reversed, even after jury trial. Morffy v. State, 534 So. 2d 733 (3d DCA 1988), But see, amended Rul3 3.140(g) that bars such a claim after the plea or conviction. The signing and the oath must be personally before the notary public, or the attestation is a $5,000 civil penalty and misfeasance of official duty, where lack of fraudulent intent is not a defense; if there was fraudulent intent, its a third degree felony. F.S. 117.107(9); 117.05(4)(c). INFORMATIONS: ONE VICTIM PER COUNT: The state may not charge multiple victims in one count of information, as in "assault" one victim may not be threatened and another victim be in fear. James v. State 23 FLW D421 (5th DCA 2/6/98). INFORMATIONS: SAO SOLE DISCRETION: The ASA has sole discretion of what charges to file w/o judicial interference. Valdez v. State, 24 FLW S109 (Fla. 99); Cleveland v. State, 417 So.2d 653 (Fla. 1982); State v. Bloom, 497 So.2d 2 (Fla. 1986). INCOMPETENCY: JUVENILES: Committment for incompetent juveniles only applies to felonies, not misdemeanors. DCFS v. A.A. St.M, 23 FLW D351 (5th DCA 1/30/98), like Onwu precludes commitment for adult misdemeanant. INTOXYLIZER CHALLENGES: IF D. DOES NOT PRESENT EVIDENCE OF INACCURACY, SPECULATIVE CHALLENGE ID NOT ESTABLISHED BY A PREPONDERENCE: IF SPEEDY TRIAL IS NOT AN ISSUE, EXHAUSTION OF ADMINISTRATIVE REMEDIES IS REQUIRED FOR ADMINISTRATIVE RULES CHALLENGE: A major, courageous ruling that - Where there is no evidence that the accuracy of breath test results may have been affected by not having a rule regarding RFI inspection, defendants did not prove by a preponderance of the evidence that the state failed to substantially comply with the implied consent statute and existing FDLE rules. If the requirement to administratively challenge a rule does not impinge on or interfere with speedy trial rights because administrative process does not typically take longer than motions in county court - Allowing defendants to directly attack validity of rule in county court, absent an exception to the exhaustion doctrine, would be in direct conflict with existing law, namely the Administrative Procedures Act, and with the separation of powers doctrine - Court cannot require adoption of a rule not mandated by the APA or another statute - Primary jurisdiction doctrine - Where concurrent jurisdiction exists, the administrative level is a more suitable forum for resolving a speculative and theoretical administrative rule challenge. Defendants may raise a challenge of accuracy with evidence at the trial, as to the weight of the evidence. State v. Barbuto, 9 FLW Supp 787 (17th Cir. Broward Co. 9-11-02) [Judge Lisa G. Trachman / Eric J. Volz, ASA. Excellent argument / ruling. INTOXILYZER CHALLENGE: POSSIBILITY OF ERROR IS INSUFFICIENT CLAIM TO SUPPRESS: Mere claim that the test results could possibly result from problems with simulator procedures is insufficient to justify exclusion of breath test results. State v. Bell, et al., 9 Flw Supp 715 b (15th Cir. Palm Beach, 8-6-02). INTOXYLIZER INSPECTIONS: D may be denied inspection of the interior of the Intoxilyzer Instrument unless Defendant makes a prima facie showing that the instrument is not the same configuration as the model 5000 as approved by FDLE ATP. Former ATP rule may have permitted such an inspection, but current rule 11D-8.007 is intended to severely limit or deny such access. State v. Mueller, 9 Flw Supp 852b (Suwannee County 2-6-95), yes, 1995, but opinion just published. Note: some courts in Seminole County have permitted the inspection, but requires the defendant to post a substantial bond to cover any damages + pay for wages of ATP approved inspector to be present and to retest the instrument after such an intrusion. A request to photograph the interior of an Intoxilyzer Instrument by claiming that another inspection in Florida produced evidence of internal deviations, should be denied unless Defendant alleges manufactured near the same date time and place or logs indicate any changes, etc. State v. Edelstein, 9 FLW Supp 867b (Hillsborough Co., Nick Nazaretian, J. 8-29B02). Motion denied to inspect interior of Intoxilyzer where such independent testing, beyond the Rules, is theoretical, speculative and experimental without a showing that the testing done by the Rules are flawed or that the maintenance is not in substantial compliance with the rules. State v. Burks, et al., 9 Flw Supp 879 (Hendry County, Sloan, J., 1-5-01). JAIL RULES: Viol. of jail rules is now a 2d Misdemeanor. eff 7-1-99. 99-361 JUDGEMENT OF ACQUITTAL: Evidence must be viewed in light most favorable to the state. Jordan v. State, 27 FLW D56 (3d DCA 2002); Perry v. State, 26 FLW S702 (Fla. 2001). JUDICIAL NEUTRALITY: Judge assumes position of prosecutor who advises lawyers that D's insolvency affidavit conflicts with his trial testimony, after which, the prosecutor impeached defendant. Sparks v. State, #4019 (1st DCA 1999). Though trial court may ask questions to clarify issues, the Court departs from neutrality when it orders the production of evidence that the state did not offer. Asbury v. State, 25 FLW D2140 (4th DCA 9-15-00). "This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice. "It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his courtroom speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this." State ex rel. Davis v. Parks, 141 Fla. 516, 519-520, 194 So. 613, 615 (1939)."We canonize the courthouse as the temple of justice. There is no more appropriate justification for this than the fact that it is the only place we know where the rich and poor, the good and the vicious, the rake and the rascal--in fact every category of social rectitude and social delinquent--may enter its portal with the assurance that they may controvert their differences in calm and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner. Such a pattern for administering justice inspires confidence. The legend on the seal of this court--'sat cito si recte' (soon enough if right or just)--embossed on the floor in the rotunda of this building, encourages devotion to such a pattern. Litigation guided by it makes the courthouse the temple of justice. When judges permit their emotions or the misapplication of legal principles to shunt them away from it, they must be reversed. The judge must above all be neutral and his neutrality should be of the tough variety that will not bend or break under stress. He may ask questions to clarify the issues but he should not lean to the prosecution or defense lest it appear that his neutrality is departing from center. The judge's neutrality should be such that even the defendant will feel that his trial was fair." Williams v. State, 143 So.2d 484, 488 (Fla. 1962) see also Crosby v. State, 97 So.2d 181 (Fla.1957). JURISDICTION: LEO CITIZEN'S ARREST: LEO may make a "citizen's arrest" outside his jurisdiction of a d.u.i. even if he uses marked police car with lights and siren. State v. Furr, 23 FLW D2514 (1st DCA 1998). JURISDICTION: TRAFFIC STOP: LEO does not have authority to make a traffic stop in apartment complex w/o any agreement of traffic enforcement in parking lot, here for no headlights, though LEO could have made stop for p.c. of DUI or other crime, if seen on private property. Nemeth v. State, 14 FLW Supp 334b (6th Cir. Pinellas Co. Oct. 3, 2006). JURISDICTION: THEFT: Jurisdiction for prosecution of auto theft exists in Texas, where the car was stolen from, and Florida, where the car was driven to. No double jeopardy violation. Chipman v. State, 29 FLW D1577 (2nd DCA 7-2-04). JUROR CONTACT: Attorney may not contact juror w/o court's permission w/ cause. Nor may the attorney avoid this rule with use of an agent. Fla. Ethics Op. 69-17 & 70-45. FRPC 4-3.5; Baptist Hospital v. Maler, 479 So 2d 97 (Fla. 1991). JUROR: NEIL CHALLENGE: DUI: No abuse of discretion to refuse to excuse for cause juror whose relative was killed by drunk driver when entirety of juror's statements do not establish beyond reas. doubt that juror could not set aside prejudices and render verdict solely upon evidence and law. Newman v. State, 6 FLW Supp 65 (10th, Highlands, 1998). Neil / Batson / Slappy rulings were clarified in Melbourne v. State, 679 So. 2d 759 (Fla 1996). Melbourne said that the reasonableness requirement of Slappy is now only a factor for assessing whether it was a pretext race neutral reason. Melbournes 3 steps are: 1. A party objecting to the other sides use of a peremptory challenge on racial grounds bust: a) make a timely objection on that basis, b) show that the venire person is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. 2. At this point, the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation. 3. If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained. The reason, step #2, is race neutral if it is not race based. Then, go to step 3 re. credibility, and the appellate review standard under #3 is clearly erroneous. There is no harmless error net for these challenges. Prosecutor must be sure that Court goes to step 3 after step 2, even if judge rules erroneously that the explanation is not race neutral. Even if reason is race neutral it may still be inherently suspect, i.e. I just dont like him and must go to #3. May only stop after #2 if reason is obviously race based, and then Court denies the strike. If D does not allege the reason is a pretext, then Court need not go to step 3 of Melbourne and the challenge is not preserved. Hall v. State, 25 FLW D2373 (4th DCA 10-4-00). JURISDICTION: MUTUAL AID AGREEMENT: LEO, making arrest outside border of jurisdiction does not do so under the mutual aid agreement if he fails to notify and turn over the matter to officers with jurisdiction. Ball v. State, 14 FLW Supp 131b (11th Cir. Miami-Dade, Nov. 21, 2006). JURY INSTRUCTIONS: SPECIAL INSTRUCTION: Standard to get a special instruction requires that it: 1) be supported by the evidence, 2) was a correct statement of the law and not confusing or misleading, and 3) the standard instruction does not adequately cover the theory of the movant. Keller v. State, 28 FLW D1395 (2d DCA 6-13-03). JURY INSTRUCTION: TIMELINESS: A correct instruction, given after closing arguments is reversible error. Knuth v. State, 679 So. 2d (2d DCA 1996). JURY INSTRUCTIONS: 97-1: Criminal Cases No. 89,771, July 10, 1997: found at http://www.flcourts.org/courts/supct. New "Reasonable Doubt" instruction includes: See also,  HYPERLINK "http://www.floridasupremecourt.org" www.floridasupremecourt.org JUROR DELIBERATIONS: Jury may not take videotape of child hearsay evidence into deliberations. Jassan v. State, 24 FLW D1562 (2d DCA 1999). However, if the video evidence of a confession is admitted, it is not necessary to have the jury view of the evidence in the courtroom, within Courts discretion. This is different re. unlimited jury review of a video taped deposition. Thomas v. State, 29 FLW D1692 (5th DCA 7-23-04), but beware of close conflicting decisions. JURY SELECTION: LATE HOURS: Requiring jury selection to begin at 7:30 p.m. from a panel that had been at court all day and by a lawyer who had been waiting all day may deny a party effective assistance of counsel. Ferrer v. State, 23 FLW D1536 (4th DCA 6-19-98). JURY NULLIFICATION: D counsel may not argue to disregard the law by saying, "sometimes the law... just isn't right." Harding v. State, (2d DCA 6-18-99). JURY TRIAL: 5 JURORS: A defendant may affirmatively waive his right to a 6 person jury after one is excused, only after being informed of the specific right to 6 and personal waiver. Gamble v. State, 22 FLW D1543 (5th DCA 6-27-97); or attorney's waiver w/ consent. Blair v. State, 22 FLW S517 (Fla. 8-28-97); Wallace v. State, 23 FLW D2704 (2d DCA1998) JURY: NON-JURY TRIAL: If D is entitled to trial by jury the court must certify in writing that no jail will be imposed. Fla. R.Crim.P.3.111 (b)(1); State v. Ull, 632 So. 2d 721 (Fla. 1994). D must establish a clear and unequivocal desire to proceed without counsel. See, e.g. Jones v. State, 650 So.2d 1095 (1st DCA 1995) while understanding the pitfalls of self representation. Ferretta v. Calif., 422 U.S. 806 (1975). This inquiry must be repeated at the time of the trial. Stanojevich v. State, 567 So. 2d 37 (Fla. 1980). JUVENILE: ADULT SENTENCE: Need not answer all the criteria of 39.057 when sentencing as an adult for crime after 10-1-94, but decision must be in writing. J&S is not sufficient. Brown v. State, 22 FLW D1098 (5th DCA 5-2-97). The reasons for sentencing juvenile as an adult must be filed contemporaneously with the sentencing. Barrientos v. State, 23 FLW D527 (2d DCA 2-20-98). JUVENILE: DETENTION: DOMESTIC VIOLENCE: Juvenile misdemeanor DV offender may not be placed in nonsecure detention and can be held in secure detention only if the court finds: 1) the act caused physical injury; 2) respite care is not available, and 3) secure detention is needed to protect the victim from further injury. M.A. v. State, 23 FLW D906 (3d DCA 4/7/98). JUVENILE: DETENTION: 21 DAYS: May be held longer under habeas petition if state unable to serve witness for hearing less than 21 days. E.D. v. State, 32 FLW D2396a (Fla. 5th DCA 10-1-07). JUVENILES: DISPOSITION: Court does not err in rejecting comm. ctl. and imposing higher risk w/o new DJJ Recommendation. EDP v. State, op#10017 (Fla. 10-8-98), overruling P.A. v. State, 23 FLW D429 (1st DCA 1/30/98). A Juvenile "commitment" is not the same as an adult prison term because delinquency proceedings exist to rehabilitate juveniles, not to punish them. Williams v. State 22 FLW S78 (Fla. 21298) re. a 1994 crime, but see subsequent delinquency statutes re. legislative intent that punishment is a form of rehabilitation. Conflicts with: D.L.B. v. State, 23 FLW D592 (2d DCA 2-27-98). . The court MUST consider the PDR before disposition or reversal. (even for "Judicial JASP as a w/h sentence???) C.B. v. State, 23 FLW D528 (2d DCA 2-20-98). The court may consider prior uncharged offenses determine proper placement (distinguishing disposition from sentencing) PWG v. State, 702 So. 2d 488 (Fla. 1997). JUVENILE: DISPOSITION: POSS. M.J.: Upon conviction for poss. marijuana the court must direct DHSMV to suspend the license. State v. M.A.P., 23 FLW D845 (2d DCA 3-27-98). JUVENILE: < 16: Even if state charges more males than females for L&L < 16 where offender is < 18 does not viol. equal protection or privacy as no absolute unregulated right to have recreational sex with a consenting minor. State v. J.A.S, (1-3-97). To show selective or discriminatory prosecution, D must est. prima facie that 1) D was singled out; 2) D's selection was invidious bad faith, i.e. based upon race, religion or the desire to prevent the exercise of constitutional rights. State v. A.R.S., 22 FLW D29 (1st DCA 12-19-96). State may prosecute 15 y.o.a. for having consensual sex with 12 y.o.a. victim as state's interest in protecting children outweigh a youth's privacy interests. J.A.S. & J.L.R. v. State, 23 FLW S67 (1998). JUVENILE: MIRANDA WAIVER: Rule 3.111(d)(4) requiring 2 witnesses to voluntariness of waiver does not prohibit admissibility of confession absent D's showing of prejudice. Randall v. State 22 FLW D931 (5th DCA 4-11-97). JUVENILE: PROBATION: Case managers are now called "juvenile probation officers." F.S. 985.3141. JUVENILE RECORDS: Court records of a juvenile prosecuted as an adult are not confidential. A.G. OPINION, 97-28, (5-21-97). JUVENILE: SCHOOL SEARCHES: USE OF L.E.O.: Probable cause is not required for a safety search on schools by school officials as the lesser standard of reasonable suspicion is applied. New Jersey v. T.L.O., 469 U.S. 325 (1985). This rule even applies if the school official requests L.E.O. to assist in the school's search for weapons. J.A.R. v. State. 689 So. 2d 1242 (2d DCA 1997); T.J. v. State, 538 So. 2d 1320, 1321 (2d DCA 1989). JUVENILE SENTENCE: ABOVE DJJ RECOMMENDATION: Court may sentence to a higher level than recommended by DJJ if the court finds by preponderance a reason to disregard the recommendation and state on the record or in writing its findings. KMT v. State, 22 FLW D1552 (2d DCA 6-27-97). Fact that defendant "lied at trial" and maintains his innocence is not valid basis to depart. D.A.J. v. State, 22 FLW D2281 (1st DCA 9-25-97). Court may consider uncharged criminal acts of a juvenile, as juvenile system is different from adult criminal system and all facets of the childs life for dispo. should be considered. P.W.G. v State, 22 FLW S753 (12-11-97). JUVENILE: SEX CRIME VICTIM CONFIDENTIALITY: I.D. of juv. sex victim is exempt from F.S. 119.07(3) and is a misdemeanor to disclose the identity, eff. 4-11-98. JUVENILE: SEXUAL PREDITORS: A multi-disciplinary team in each jurisdiction will decide whether to petition the court for sexually violent predator designation. If court agrees by "clear and convincing" evidence, then offender must stay committed to DCF until determined safe to be at large by p.c. F.S. 916.30-49, eff. 1-1-98. LACHES: D may not challenge 24 year old conviction when the record is destroyed after 10 years. Wright v. State, 23 FLW D851 (3d DCA 4-1-98). LEAVING SCENE: DOUBLE JEOPARDY: Only one count of leaving the scene may be charged, even if there are multiple injuries. Green v. State, 23 FLW D342 (4th DCA 1/28/98); State v. Dumas, So.2d (Fla 1997); Williams v. State, #5007 (4th DCA 1999) or a combo of death and injuries. Hunt v. State, 25 FLW D 2412 (2d DCA 2000). LEAVING SCENE OF DEATH: Prosecutor only need to prove D had knowledge of injury, not death. State v. Dumas, 22 FLW S668 (Fla. 10-23-97). LEAVING THE SCENE: RESTITUTION: Court errs to impose restitution for leaving the scene unless the damage was caused by the act of leaving, i.e. injuries were aggravated due to failure to render aid, even if D was "at fault" in the crash that caused injuries. Triplett v. State, 23 FLW D358 (5th DCA 1/30/98). But See new statute under the "relationship" or "but for" test. State v. Neel, 6 FLW Supp 657 (Brevard Co. 1999). State can get rest. for DWLS and NVDL. Littlepage v. State, C# AP98-50 AC A02; 7 FLW Supp 180 (15th Cir. 12/17/99), overturning Ochoa v. State, 596 So.2d 515 (2d DCA 1992); But See, Cheek v. State, 700 so.2d 731 (5th DCA 1997) finding no restitution permitted, even under amended statute re. "significantly related" language to the offense. The mere fact that D is DWLS and Leaving the Scene of a Crash does not establish sufficient indirect causation for restitution for that charge alone. Schuette v. State, 822 So.2d 1275 (6-20-02). The Court applied the proximate cause standard. This rationale should also apply to no DL. This Supreme Court decision settles the conflicts in the state that held otherwise, overturning, State v. Schuette, 26 FLW D865b (4th DCA 01), where 4th DCA permits restitution for DWLS as indirect cause of criminal episode. Note: Exception: If Defendant enters a negotiated plea and agrees to a plea bargain with a condition of paying restitution, then the order of restitution is lawful and may be enforced. See, Bradley v. State, 602 So.2d 980 (3rd DCA 1992), and Armstrong v. State, 620 So.2d 1120 (5th DCA 1993). LEAVING SCENE OF UNATTENDED PROPERTY DAMAGE ACCIDENT: 316.,063(1) makes this a 2d degree misdemeanor; effective 10-1-97. LEWD & LASCIVIOUS: MINORS: 15 y.o.a. juvenile may be convicted of L&L by having consensual sex w/ 12 y.o.a. victim, as State's interest in protecting young sex victims exceeds any "privacy expectation" to consent to sex as a minor. J.A.S. V. State, 23 FLW S67 (Fla. 2/5/98). New L&L statutes have different sanctions for lewd battery (2F), molestation (F2 or F1), conduct (F2 or F3) and exhibition, based on ages of D and V. 99-201, 800 F.S. L&L not defined, but hugging, rubbing buttocks and hand on thigh 4" above knees is suff. for jury to convict. Washington v. State, 25 FLW D849 (4th DCA 2000). LIMINE: MOTION: NO PRIOR CONVICTIONS: Defendant may not prove peaceful character by asking if he has no prior convictions. Wrobel v. State, 410 So. 2d 950 (5th DCA 1982); Lawton v. State, 538 So. 2d 1369 (5th DCA 1989); State v, Wilson, 483 So. 2d 23 (2d DCA 1985); State v. Pettis, 520 So.2d 250 (Fla.1988); Luce v. U.S. 469 U.S. 38 (1984). LIMINE: MOTION: If D movant for motion in limine, then D violates the order in limine = mistrial by manifest necessity w/o dbl.jeopardy. Clark v. State, 25 FLW D1060 (5th DCA 4-28-00). But if State intentionally violates the order in limine = mistrial w/ prejudice. Metz v. State, 8 FLW Supp 81 (Palm Beach 12-11-00). LOITERING & PROWLING: P.C. ARREST: LEO may make a p.c. arrest for L&P if he does not see the act, but a citizen reports suspicions that are not dispelled, particularly if escape is probable under 856.031 F.S. State v. Cortez, 23 FLW D324 (3d DCA 1/28/98). But See, JSB v. State, 729 So.2d 456 (2d DCA 1999) where the Court reversed Judge Brownell's conviction because the evidence of the burglary in progress did not occur in the officer's presence. Juvenile was hiding in back of a truck that was parked after midnight where a burglary had been committed. Defendant refused to answer the LEOs question re. why he was in area. Facts are sufficient for L&P conviction. B.J. v. State, 32 FLW D717d (4th DCA 2007). Defendant pushing lawnmower down the street at midnight, and flight upon seeing police is p.c. for L&P. J.M.C. v. State, 32 FLW D1348 (Fla. 4th DCA 5-23-07). LOITERING & PROWLING: Though officer must offer D. to explain his presence, the State may not argue D's failure to explain before jury. Smith v. State, 22 FLW D1467 (4th DCA 6-18-97), But isn't this an element? Juveniles walking in residential neighborhood, in lawns, looking in driveways and yards as they walked and failed to adequately explain are L&P. Brinson v. State, 4 FLW Supp 637 (20th Cir.2-11-97). Flight and hiding alone is not L&P. Woody v. State, 581 So. 2d 966 (2d DCA 1991). Mere looking into cars alone is not L&P. Addis v. State, 557 So. 2d 84 (3d DCA 1990). However, flight, concealment of the person or an object and failure to i.d. are circumstances that should be considered re. "reasonable alarm." State v. Ecker, 311 So. 2d 104 (Fla. 1975); D.A. v. State, 471 So. 2d 147 (1985). Flight is a valid consideration re. manner not usual for law abiding citizens, and arrest is legal after seeing juvenile in mixed residential / business area at 0200. B.D.K. v. State, 24 FLW D2415 (2d DCA 10-10-99). The activity must be imminent, not retrosospective (burglary already completed). Springfield v. State, 481 So. 2d 975 (Fla. 1986). The alarm must constitute an imminent breach of the peace or a threat to public safety and the acts must be complete prior to any police action. JSB v. State, 97-04328 (2d DCA 3-17-99). Report of person trying door handles at car lot and walking away, then LEO stopping D nearby w/ inconsistent answers is not sufficient for L&P, where complainant could not ID D. R.M. v. State, 25 FLW D870 (2d DCA 00). Flight from high crime area = reasonable suspicion to stop and inquire. McGee v. State, 27 FLW D337 2d DCA 2-26-02). Flight from LEO in government housing project, who did not live there, and where no trespassing signs were posted + different explanations was a good L&P. State v. Lookretis, 657 So.2d 1237 (2d DCA 1995). LOITERING AND PROWLING: MIRANDA: Though LEO must give D chance to dispel alarm, the proof at trial of failure to dispel must follow a Miranda waiver as Ds silence otherwise cannot be construed against him. LEO has reasonable suspicion to stop the car leaving a closed business with the headlights turned off. R.S. v. State, 23 FLW D938 (5th DCA 4/9/98). MANSLAUGHTER: CULPABLE NEGLIGENCE: D's negligence must the the "proximate cause" of the death in this charge, vs. "contributed to the cause" for a DUI manslaughter. Magaw. Here, adult D who got drunk and asked 15 y.o.a. unlicensed person to drive while sleepy, resulting in a death is sufficient to survive a JOA. State v. Morris, 23 FLW D303 (1st DCA 1/21/98). MEDICAL RECORDS SUBPOENA: SECOND CHANCE: Until recently, there was a split of DCAs, with 2d DCA saying that once ASA fails to give proper notice of intent to subpoena medical record subpoenas, you get no 2nd chance and other DCAs saying you do get a 2nd chance, even if you made no effort to give statutory notice in 1st effort. Now, ASA can get a 2nd chance only if ASA made reasonably diligent efforts to locate the patient for service. See, State v. Zina Johnson, 814 So.2d 390 (Fla. 3-21-02). MEDICAL RECORDS: ALCOHOLISM TREATMENT RECORDS ARE PRIVILEGED: COURT ORDER REQUIRED TO GET ALCOHOL TREATMENT INFORMATION: 42 USC ' 290cc-2(a) part of Federal Comprehensive Alcohol Abuse and ?Alcoholism Prevention, Treatment and Rehabilitation Act, creates a privilege of facility records, requiring a court order to inspect. The court may deny an application for release of the records by the state if the court makes a finding that the treatment facilitys purpose and functioning would be harmed by the release of the records. State v. Center for Drug-Free Living, Inc. 28 FLW D657 (5th DCA 3-7-03). MEDICAL RECORDS SUBPOENAS: SUPERSENSITIVE HIV RECORDS: Mere challenge by recipients of subpoenas that the records contain supersensitive information, i.e. HIV and AIDS is not sufficient to require a court order or hearing. Here the records were subpoenaed as a statewide prosecutors investigation of Medicare fraud. (Q: was the treatment provider covering their own sins under pretense of protecting the patients records?) Community Healthcare v. State, 28 FLW D1758a (4th DCA 2003). MISDEMEANOR CAPIAS SHOULD BE EXECUTED W/IN 5 YEARS. IF NOT, AND CANNOT EXPLAIN REASONABLE DELAY, CASE GETS DISMISSED: See 775.15(6) and State v. McCubbins, 817 So.2d 966, 967 n.3 (2d DCA 2002). State v. Carter, 9 FLW Supp 721b 17th (Cir. Broward 9-6-02); State v. Scozzafava, 10 FLW Supp 844b (17th Cir, Broward 2003). MISTRIAL: MANIFEST NECESSITY: Double jeopardy bars retrial unless material prejudice frustrated the state's one full and fair opportunity to present its case, i.e. D violating order in limine. Johnson v. State, 21 FLW D2407 (2d DCA 11-8-96); Manifest Necessity analysis is required if ASA requests the mistrial or if it is done sua sponte by court. Cooper v. State, 716 So.2d 888 (5th DCA 1998). No such analysis is required if defense requests mistrial and case is not barred by double jeopardy unless the ASA intentionally provoked D to ask for mistrial (i.e. State intentionally violates order in limine). U.S. v. Jorn, 400 U.S. 470 (1971); Oregon v. Kennedy, 456 U.S. 667, 676 (1982); State v. Weed, 6 FLW Supp 372 (Orange Co. 1999); Metz v. State, 8 FLW Supp 81 (Palm Beach 2000). MODIFICATION OF SENTENCE: Pursuant to Rule 3.800, the sentencing judge must conduct any modification or reduction of sentence hearings unless its necessary for a substitute judge. Then, the substitute judge is obligated to read the trial and sentencing transcript before hearing the subsequent motion to modify the sentence. See, e.g. Persaud v. State, 821 So.2d 411 (2nd DCA 2002). MOTIONS: BURDEN SHIFTING: State v. Parker, 44 Fla. Supp. 2d38(15thJud.Cir.1990) 1. "In passing, we note that where a motion to suppress is at issue the burden is on the moving party to make an initial showing that the search was invalid, and only when the showing is made does the burden shift to the state to prove its search is valid."2. "Here, the lower court erroneously required the State to disprove allegations of lack of compliance thereby prematurely shifting the burden of proof from the defendant to the State." Bicking v. State, 293 So.2d 385 (4th DCA 1974)"When a defendant has shown a warrantless search, he has presented a prima facie case of unreasonableness and has met the burden imposed upon him by Rule 3.190(h)(3), Florida Rules of Criminal Procedure, 33 F.S.A. The burden then shifts to the State to prove a legal search." BOYER, Judge (concurring specially): 1. "However, insofar as the above opinion might be construed, procedurally, to relieve a defendant of any obligation other than the filing of a motion to suppress, I disagree."2. "Once the defendant has made out a prima facie case for suppression in support of his ground as set forth in the motion to suppress he need not proceed further. It is not necessary for the defendant to negate every basis or ground upon which the evidence might be admissible; it being sufficient that he only demonstrate by competent evidence the ground or grounds upon which his motion is founded." MOTIONS: PRO-SE: REPRESENTED: A represented defendant may only file motions and be heard when allowed by the court. A pro se demand for speedy trial filed by a represented defendant is a nullity. Burke v. State, 24 FLW D1043 (4th 1999). MOTIONS: STRIKE: Where motion makes only conclusory statements regarding the grounds for relief, the court properly denies the motion. Espirit v. State, 25 FLW D307 (3d DCA 00). If the motion is facially insufficient to support the remedy sought (suppression or limine) the motion should be denied w/o a hearing on the merits. State v. McArthur, 7 FLW Supp 114 (12th Cir, Dunnigan, 99); See, Westerberg v. State, 7 FLW C152 (Fla. Pinellas Co., Demers, J. 1991). Fla.R.Cr.P. 3.190(h)(3) requires that "Before hearing evidence, the court shall determine if the motions is legally sufficient. If it is not, the motion shall be denied..." For defendant's motion to be legally sufficient, the allegations of fact contained in the motion must be such that, if they are found to be true, would result in suppression of the evidence. Bickering v. State, 293 So.2d 385, 387 (1st DCA 1974). If the Court finds the motion to be legally insufficient, the court must deny the motion and no evidentiary hearing is required. Mason v. State, 375 So.2d 1125, 1129 (1st DCA 1979); State v. Butterfield, 285 So.2d 626, 627 (4th DCA 1979); and Herring v. State, 394 So.2d 433 (3d DCA 1980). MOTIONS: SUPPRESSION vs. LIMINE: A motion to suppress must facially allege the search and seizure was unlawful, pursuant to F.R.Cr.P 3.190(h) (1) & (2). State v. White, 4 FLW Supp.659 (Duval Co. 4-30-97). It is a motion in Limine where the movant bears the burden of coming forward and persuasion. State v. Zimmerman, C# 89-055-617-AP (Sarasota Circuit, Haworth, Nov. '89, App# 89-3138-AP-01). If it is a true motion to suppress, it must specifically plead a warrantless search, is an unreasonable search and seizure, stating particular grounds, so the State is on notice of basis, or should be stricken. State v. Hinton, 305 So.2d 804 (4th DCA 1975). A true motion to suppress must be filed pre-trial. Wingert v. State, 353 So. 2d 643 (3d DCA 1977). Defendant bears burden of showing non-compliance with breath testing rules in pre-trial motion. State v. Jessup, 40 Fla. Supp. 2d 28 (Palm Beach, 1989 [Bob Jaegers & Ted Booras]). See, also, State v. McDevitt, 40 Fla. Supp 2d 139, 142 (Palm Beach 1990). Mid-trial motions to suppress should be construed only as motions for post conviction relief. See, Farina v. State, 26 FLW S527 (Fla. 8-24-01). It is direct criminal contempt to violate an order in limine. Botwinick v. State, 26 FLW D1642b (3d DCA 2001). MOTIONS: REHEARING: Motion for Rehearing may not be used to reargue the same argument to get court to change its mind. State v. Green, 105 so. 2d 817 (1st DCA 1958) NECESSITY DEFENSE: Not applicable for unborn persons / also a good Faretta analysis. Hill v. State, 22 FLW (Fla. 3-6-97) distinguishing FS 776.012 justifiable force from the common law necessity defense and adopting the Linnehan v. State, 454 So. 2d 625 (2d DCA 1984) standard that, "Defendant must have reasonably believed that: 1) Their action was necessary to avoid an imminent threatened harm, 2) That there are no other adequate means except those which were employed to avoid the threatened harm, and 3) That a direct causal relationship may be reasonably anticipated between the action taken and the avoidance of the harm. This defense must be proffered to the Court outside the jury's presence to determine its admissibility. Necessity instruction not justified, though D's wife stranded 30 miles from home at 11:00 p.m. as D had time to call Aunt first, drive there, and wife took cab home after D arrested which shows a "lack of imminent threatened harm or lack of other adequate means to avoid such harm" for D to DWLS. Henson v. State, 5 FLW Supp 1 (10th Cir. Polk, 9-5-97). See 5 point test in Bozeman v. State, 714 So.2d 570,572 (1st DCA 1998); Hilton v. State, 6 FLW Supp 191 (Orange 1999). NOISE VIOLATIONS: BREACH OF PEACE: State must present evidence to show the loud music was more than a mere annoyance. Gonzalez v. City of Belle Glade, 287 So. 2d 669 (Fla. 1973); Britton v. State, 6 FLW Supp 267 (20th Lee, 1999). NO JAIL NO ADJUDICATION STATEMENTS; NEW RULES: Rules 3.111 and n32 rule 3.994 (Order Certifying NO Incarceration) now require upon notification that the State is not seeking incarceration the court may not appoint a P.D. or may discharge appointed counsel UNLESS the defendant is incarcerated or the defendant would be substantially disadvantaged by the discharge. Now the court must make a finding that the defendant is not incarcerated pending trial and requires the court to certify in its order of no incarceration that the defendant will not be incarcerated pending a probation violation hearing or as part of a sentence after probation revocation. 27 FLW S1011 (Fla. 12-5-02). NOLLE PROSEQUI: State may nolle and refile within time if state not ready for trial and can't get continuance. Johnson v. State, 5 FLW Supp 811 (Orange, 9/98). State may also nolle and refile after waiver of s.t. by D. or Ds motion for continuance (not motion to toll s.t.), w/o invoking Agee sanction. Runyon v. State, 24 FLW D2393 (4th DCA 1999); State v. Gibson, 26 FLW D1010a (5th DCA 01). It is possible for nolle and refile to be in bad faith that could result in dismissal as violation of due process if defendant suffers prejudice or unfairness, i.e. if her were incarcerated during states lack of diligent preparation. See, State v. Myers, 10 FLW Supp 517b (17th Cir. Brevard, 6-3-03). State may not decline, then refile within s/t period, unless D is served (arrested) on new charge w/in s/t. Wells v. State, 29 FLW D1914 (4th DCA 8-18-04). NUDITY: INDECENT EXPOSURE/DISORDERLY CONDUCT: Mere public nudity is insufficient for indecent exposure if D is motionless and not aroused. Goodmakers v. State, 450 So. 2d 888 (2d DCA 1984). Topless sunbathing may constitute disorderly conduct (but see strong dissent). Moffett v. State, 340 so. 2d 1155 (Fla. 1976); and South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir. 1984). Lewdness is required, not mere urinating in a public parking lot. Payne v. State 463 So. 2d 271 (2d DCA 1984). Lewdness may be established by circumstances, i.e. naked man buying Girl Scout cookies from inside his house, twice naked. Egal v. State, 469 So.2d 196 (2d DCA 1985). Whether exposure is lewd or lascivious is jury question based on circumstances of each case. W.R.H. v. State, 25 FLW D10 (4th DCA 1999). Act of walking about naked on secluded property where D has no knowledge that children are watching does not constitute lewd behavior. Burks v. State, 766 So.2d 468 (5th DCA 9-18-00). Walking about at Wal-Mart w/ very short shorts, and acts of pulling shorts up shorter, causing exposure of penis is sufficient to show Avulgar or indecent and that the exposure was not accidental, but with lascivious intent. Ross v. State, 29 FLW D1511 (4th DCA 6-23-04). Sex in car viewed by public may outrage the sense of public decency. State v. Magee, 259 So.2d 139 (Fla. 1972). To prove disorderly conduct there must be evidence that the public was disturbed or that a citizen complaint was filed with law enforcement. C.P. v. State 644 So.2d 600 (2d DCA 1994). The police officer may not be the person offended to establish the lewdness portion of the statute, as the indecency must offend one or more persons, not just the police. Therefore, exposing penis in adult theater is not Anaked in public and is not lewd if only the police were offended by the acts observed. State v. Twine, 11 FLW Supp 739a (13th Cir., Hillsborough, Elvin Martinez, J. 2-18-04). See, e.g. Schmitt v. State, 590 So.2d 404 (Fla. 1991), and Campbell v. State, 331 So.2d 289 (Fla. 1976). However, if act is lewd, LEO may be the person offended at a strip club where customers are touching dancers on breasts and vagina. State v. Kees, 30 FLW D2717b (5th DCA Dec 2, 2005); State v. Farino, 30 FLW D2540a (2nd DCA 2005). Protected Speech: Generally, states have greater latitude to regulate offensive lewd public non verbal physical conduct, but not to suppress depictions or descriptions of the same behavior. State v. Conforti, 688 So.2d 350, 356 (4th DCA 1997). Regulation of movies depicting nudity as seen from public place is prohibited, Erznoznik v. Jacksonville, 422 US 205, 217 (1975); Cinecom Theaters v. Fort Wayne, 473 F. 2d 1297 (7th Cir. 1973), or street signs or obscene graphics. Solomon v. Gainesville, 763 So.2d 1212 (11th Cir. 1985). NUDITY: INDECENT EXPOSURE: LOCATION: Naked man inside open window in his house who could be seen by 4 girls on sidewalk was not in a public place or private place or so near as to be seen from another private (not public) place. Lone v. State, 6 FLW Supp 330 (20th Cir. 1999); Williams v. State 627 So. 2d 1279 (1st DCA 1993). A jail facility is a public place, so inmate masturbating in the shower is guilty of indecent exposure while grinning at female jail nurse. Dawes v. State, 11 FLW Supp. 611d (10th Cir. Hardee, 4-6-02). Masturbation in jail cell in presence of guard is Lewd, as jail is a public place. State v. Cromartie, 2006 WL 2771869 (4th DCA 2006) OBSCENITY: F.S. 841.011(7) defines the standard of obscenity as when "the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest. Such 0bscene material must be patently offensive representations of (sexual acts). Miller v. California, 413 U.S. 15 (1973). Florida has adopted this U.S. Supreme Court standard in Rhodes v. State, 283 So. 2d 351 (Fla. 1973). The "applicable community standard is the local county standard." Davison v. State, 288 So. 2d 483 (Fla. 1983). OBSTRUCTION: ATTEMPT: Although there is no such crime as attempted Resisting with violence, there is a crime of attempted obstruction w/o violence. Fields v. State, 685 So.2d 961 (4th DCA 1996). To prove attempt, state must show specific intent to commit the crime and an overt act toward its commission. Mariano v. State, 18 FLW D669 (4th DCA 1993). OBSTRUCTION: DOUBLE JEOPARDY: May only get one obstruction count conviction for course of conduct. Brown v. State, 25 FLW D668 (5th DCA 2000). OBSTRUCTION: DRUG TARGET WARNING: If D warns "potential" drug buyers that police are selling drugs in a reverse sting; there is no obstruction, but free speech. McNeal v. State, 6 FLW Supp 12 (9th Orange 1998), following S.D. v State 627 So. 2d 1261 (3d DCA 1993). But if a "lookout" for persons already engaged in sales or buys warns of the police, the conduct is obstructing. Porter v. State, 582 So. 2d 41 (4th DCA 1991). Performing a sting operation is not the "execution of a legal duty" therefore, warning prostitutes not to go with LEO is not obstructing w/o evidence of illegality that defendant impeded. Jay v. State, 24 FLW D956 (4th DCA 1999). Yelling and interfering with LEO to point that he can't gather investing. Info is obstructing. Gaskins v. State, 7 FLW Supp 86 (Highlands Co. 1999). OBSTRUCTION: FALSE NAME / NEW OFFENSE: CS/HB11 1999 creates a new 1st degree misdemeanor under s. 901.36 F.S. (session Law 99-169) when an arrested person gives a false name to LEO or booking / enhances to 3d degree F if the false i.d. results in adversely affecting another person, eff. 7-1-99. Also, court may issue warrant when summons is returned unserved. The possession or fraudulent use of "personal identification information" including name, address. SOC, DOB, DL# or ID# of another = 3d Degree F eff. 7-1-99 under CS/HB 49. It is obstructing to give false name at scene, and only correct the false name at booking, well after the arrest. Fripp v. State, 2000 WL 14371 (4th DCA 2000). OBSTRUCTION W/ FALSE NAME MUST BE W/ VALID STOP: Judge Brown recently ruled in State v. Kimberly Hamblin, Case no 00-1067M, that it not obstruction to give a false name unless there is a proper Terry stop, as there is no duty to give a name or a correct name, following Fournier v. State, 731 So.2d 75 (2d DCA 1999). OBSTRUCTION: NO DUTY TO TELL THE TRUTH: Although one may not tell LEO a lie during investigation, there is no legal duty to correct LEO's misimpression by telling the truth. Beizer v. Judge 743 So.2d 134 (4th DCA 1999) OBSTRUCTION: REFUSAL TO GIVE NAME: D does not obstruct LEO for refusing to give his name prior to a lawful arrest, Burgess v. State, 313 So. 2d 479 (2d DCA 1993), or during an encounter w/o legal detention. Fournier v. State, 24 FLW D930 (2d DCA 1999). A person may ignore the police and go about his business. Florida v. Royer, 460 U.S. 491, 498 (1983);Illinois v. Wardlow, No. 98-1036, p.7 (2000). Any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention and seizure." Florida v. Bostic, 501 U.S. 429, 437 (1991); California v. Hodari, 499 US 621, 630 (1991); Wardlow Id. at. 7. However, D does obstruct by refusing to give name as booking data after a lawful arrest. Burkes v. State, 719 SO.2D 29 (2d DCA 1998). If the LEO had a valid Terry stop w/ reasonable suspicion, the refusal to give name or identification may obstruct the officers investigation. Hiibel v. Nevada, Op# 6028, (S. Ct., June 21, 2004). Unprovoked flight is a factor, that coupled with other factors like "high crime area", "time of day, number of people in the area, the character of the neighborhood, whether the officer was in uniform, the way the runner was dressed, the direction and speed of the flight and whether the person's behavior was otherwise unusual" may give police reasonable suspicion to justify an order to stop. Wardlow Id. at p. 7, 11. This may include passenger's flight from moving vehicle. See, State v. R.H. 25 FLW D1650 (5th DCA 2000). Flight from high crime area = reasonable suspicion to stop and inquire. McGee v. State, 27 FLW D337 2d DCA 2-26-02). But, flight from high crime area upon approach of police, though it would have given the police the right to stop, is not, of itself, resisting the officer, as Wardlowonly permits a stop, not an arrest upon this reasonable suspicion, because the mere running is not criminalized. See. D.T.B. v. State, 30 FLW D32 (3d DCA 12-22-04). Loud, obscene, but nonviolent protests of police conduct that does not incite a breach of peace or otherwise obstruct the officers duty is not resisting. T.J.J. v. State, 30 FLW D2605 (3rd DCA 11-16-05). OPENING DOOR: FOR CROSS-X: If D testifies that he did not drive because his license was suspended, he opens the door to cross-x re the 3 times he was DLWS. Chumney v. State 5 FLW Supp 3 (10th Cir, Polk, Sept. 1997). Prosecutor does not engage in misconduct to comment on failure to call a witness mentioned in D's opening statement. An exception to the rule that prosecutor may not infer D's burden of proof exists upon affirmative defense of alibi, self defense or relies on facts that could only come from a witness not equally available to the state. Thomas v. State, 22 FLW D2135 (9-10-97); Delgado v. State, 25 FLW S79 (Fla. 00). However, if D only generally denies an element of offense, not aff. defense, State may not comment on D's failure to call a witness. White v. State, 25 FLW D911 (4th DCA 00). If D cross-X LEO re D's knowledge of suspension, the state may introduce redacted copy of CDR to show notice to D. Bachman v.State, 5 FLW Supp 51 (11 Cir, Dade, 9-26-97). PERJURY: DURRESS IS A DEFENSE: Although the standard duress instruction requires that the threat be imminent, but also the instruction that there must be no reasonable opportunity to escape the compulsion, permits the defense, even if the threat is for future harm if the person does not testify according to the demand of the threatening person. Pflaum v. State, 29 FKW D1773 (4th DCA 8-4-04). PETIT THEFT: GAS DRIVE OFF'S: Now requires d.l. suspension for 6 months upon conviction. CS/HB 13 eff 10-1-99. PLEA COLLOQUY: APPEALS: Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) does not permit appeal of a guilty plea except: a) Lack of subject matter jurisdiction by the trial court b) Violation of plea agreement IF preserved by a motion to withdraw plea c) an involuntary plea, IF preserved by a motion to withdraw plea d) A sentencing error, IF preserved, or e) As otherwise provided by law. Therefore, any claims of inadequate plea colloquy, violation of plea agreement, involuntariness of the plea, or sentence in excess of the agreement must be precluded by a motion to withdraw, or the appellate court has no jurisdiction. Williams v. State, 29 FLW D1275 (5th DCA 6-16-04). PLEA NEGOTIATING: COURT'S AUTHORITY?: Split Authority: 5th DCA disallows the court from "negotiating" a plea over state's objection. The 4th DCA permits the court to state what the court would give upon a plea, but court is bound by that agreement upon a plea, or D may withdraw plea. Mere participation in negotiations by the court in 2d DCA is fundamental error, causing a presumption of vindictiveness if the post-trial sentence is greater than the State's pre-trial offer. Fla. Sup Ct. now permits the Court to engage in negotiations or make a plea offer, based upon its present knowledge of facts, but must reconsider upon input of more facts later. If D. relies on Court's suggestions and sentence to change, D may withdraw the plea. "We do not proscribe judicial participation in the plea bargaining process; however, judicial involvement must be limited to minimize the potential coercive effect on defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice." The judge must not initiate plea discussions, unless asked to do so by one of the parties. State v. Warner, 25 FLW S. 485 (Fla. 2000). The trial court has no authority to negotiate a plea over the prosecutor's objection. "The court's power to accept or reject a plea does not permit the court to interfere with the prosecutor's function. The trial court's acceptance of a plea over the prosecutor's objection violates the doctrine of separation of powers... [the] trial court's acceptance of a plea over the prosecutor's objection is clear error which requires outright reversal of any sentence entered in reliance on such a plea." State v. Gitto, 23 FLW D1550 (5th DCA 6-26-98). Review denied sub nom Perkins v. State, 728 So.2d 204 (Fla. 1998; Harpin v. State, 728 So.2d 202 (Fla. 1998). Gitto reversed by State v. Warner, 25 FLW S.485 (Fla 2000). See also, U.S. v. Gallington, 488 F. 2d 637 (8th Cir. 1973). The state must object to the court entering into a plea agreement at the time of the plea or the error is waived. State v. Randall, 24 FLW D2826 (5th DCA 12-13-99). But see contra State v. Warner, (4th DCA Nov.1998), where the court acknowledged that such a practice is "delicate" and contrary to ABA Standards for Criminal Justice Relating to Guilty Pleas, but failed to condemn the practice per se, citing Davis v. State, 308 So.2d 27,29 (Fla. 1975), and citing Barker v. State 259 So.2d 200,204 (2d DCA 1972) that held the court may discuss sentencing concessions such as giving less than the maximum, probation as an alternative and concurrent sentence v. consecutive w/o the prosecutor's concurrence "although it is desirable." The state does not have the right to appeal such a sentence. State v. Figueroa, 728 So.2d 787 (4th DCA Feb. 1999). "No matter how ill-advised such a practice may be in any particular case, the sentence is not rendered illegal thereby. State v. Shingleford, 731 So.2d 57 (4th DCA March 1999). "We affirm, but not without admonition that our acknowledgment of trial court discretion in this regard should not be taken as encouragement of the practice of direct negotiation of a plea by the court absent the concurrence of both parties, as such participation by the trial court is viewed by many as unseemly. Although we acknowledge conflict with State v. Gitto, we do not disagree with its recognition of certain evils that may accompany judicial participation in plea negotiation." State v. Davidson, 24 FLW D2454 (4th DCA 10-27-99). However, "[w]hen the judge has been involved in the plea negotiation and then later imposes a harsher sentence, the sentence is presumed to be vindictive" creating fundamental error. (Where the sentence (30 years) exceeds the State's pre-trial offer (42 months) that the court merely suggested the defendant take, reminding the defendant that she could get 30 years after trial) If trial court negotiates a plea offer, even if the court states this is a steal and says that, He certainly wont get that low if he goes to trial. Any harsher sentence after trial will get reversed as presumed vindictive by the Court / not same rule for prosecutor. This case, reflects the hazards of judicial plea negotiations. Byrd v. State, 26 FLW D1954 (5th DCA 8-10-01); See, Nowells v. State, 28 FLW D745 (3d DCA 3-19-03); McDonald v. State, 24 FLW D795 (2d DCA Mar. 1999, Northcutt, J., Green & Whatley). If the Court engages in plea bargaining w/o states agreement, then departs downward, the initiation of the plea bargaining by the Court is per se reversible. State v. Chaves-Mendez, 27 FLW D614 (5th DCA 3-15-02). Even if, after trial, court offers 15 years PRR, but D demands state prove the priors, then after Habitual Hearing, the court gives 30 years vindictive sentence by court. King v. State, 25 FLW D291 (2d DCA 00). Otherwise, it is the defendant's burden to prove "actual vindictiveness" on the part of the sentencing judge. See, Stephney v. State, 564 So.2d 1246 (3d DCA 1999). Also, if a defendant rejects the State's offer (without judicial involvement) there is no right to insist on being sentenced to the pre-trial offer. See, Mitchell v. State, 521 So.2d 185 (4th DCA 1988). If D bargains for a "suspended sentence" then VOP's, Court must impose suspended sentence. State v. Wheeler, 25 FLW D1017 (3d DCA 4-26-00). Even if the judge suggests what a sentence might be = presumptive sentence. Byrd v. State, 25 FLW D2647 (5th DCA 00). But see, Coward v. State, 28 Flw D2791 (5th DCA 12-5-03) holding that the judge may impose any part of the suspended upon a VOP. "This Court is committed to the doctrine that every litigant is entitled to nothing less than the cold neutrality of an impartial judge. It is the duty of Courts to scrupulously guard this right and to refrain from attempting to exercise jurisdiction in any matter where his qualification to do so is seriously brought in question. The exercise of any other policy tends to discredit the judiciary and shadow the administration of justice. "It is not enough for a judge to assert that he is free from prejudice. His mien and the reflex from his court room speak louder than he can declaim on this point. If he fails through these avenues to reflect justice and square dealing, his usefulness is destroyed. The attitude of the judge and the atmosphere of the court room should indeed be such that no matter what charge is lodged against a litigant or what cause he is called on to litigate, he can approach the bar with every assurance that he is in a forum where the judicial ermine is everything that it typifies, purity and justice. The guaranty of a fair and impartial trial can mean nothing less than this." State ex rel. Davis v. Parks, 141 Fla. 516, 519-520, 194 So. 613, 615 (1939)."We canonize the courthouse as the temple of justice. There is no more appropriate justification for this than the fact that it is the only place we know where the rich and poor, the good and the vicious, the rake and the rascal--in fact every category of social rectitude and social delinquent--may enter its portal with the assurance that they may controvert their differences in calm and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner. Such a pattern for administering justice inspires confidence. The legend on the seal of this court--'sat cito si recte' (soon enough if right or just)--embossed on the floor in the rotunda of this building, encourages devotion to such a pattern. Litigation guided by it makes the courthouse the temple of justice. When judges permit their emotions or the misapplication of legal principles to shunt them away from it, they must be reversed. The judge must above all be neutral and his neutrality should be of the tough variety that will not bend or break under stress. He may ask questions to clarify the issues but he should not lean to the prosecution or defense lest it appear that his neutrality is departing from center. The judge's neutrality should be such that even the defendant will feel that his trial was fair." Williams v. State, 143 So.2d 484, 488 (Fla.1962) See also Crosby v. State, 97 So.2d 181 (Fla.1957). The Supreme Court of Florida removed the presumption and created a test w/ factors to determine the Atotality of circumstances. The presumption may still apply if the judge initiates the plea discussions in violation of Warner or violates #2 below. The test now is: 1) Whether the judge initiated the plea discussions in violation of Warner. 2) Whether the judges comments departed from the role of impartial arbiter 3) The disparity between the plea offer and the sentence 4) The lack of facts on the record to explain the increase in sentence The judge does not have the same flexibility to engage in plea negotiations, as does the prosecutor. Even if the defendant requests the judge to suggest a likely sentence may create the appearance of vindictiveness. Furthermore, as a general rule it is not the judges role to advocate for a plea offer. When the trial judge becomes an advocate for a plea B either by the judge or by the State B the trial judge runs the risk of departing from its critical role as a neutral arbiter. The judge should make clear that the sentence could be different, and should consider placing his reasons for increased penalty on the record, should he make a suggestion of sentence. If the Court merely asks whether plea negotiations had occurred and expressed a willingness to go along w/ the States officer, it is not vindictive for the court to impose a longer sentence after the VOP hearing. Vondervor v. State, 28 FLW D1451 (5th DCA 6-20-03). It is not vindictive for the court to question defendant under oath regarding whether he understood and rejected the states plea offer, then to give more jail after the hearing. Singleton v. State, 28 FLW D2764a 3rd DCA 2003). The court may not initiate plea dialogue. Merely placing on the record that D was offered 4 years, but faced life if he rejected the offer, then imposes 15 years upon conviction, but be resentenced before a different judge. Davis v. State, 28 Flw D2782 (5th DCA 12-5-03). Open Plea: If state makes an offer that defendant rejects, then defendant enters an Aopen plea to the court, then the court sentences to greater than the states offer, the sentence is not vindictive. Hornbuckle v. State, 29 FLW D235a (5th DCA 2004). If defendant plea-bargains for a specific sentence, the Court may not later modify that sentence to reduce it under rule 3.800(c). State v. Brooks, 30 FLW D138 (2nd DCA 1-5-05). Therefore, ASA should object to some motions to early terminate if a negotiated plea with the state. However, the court may impose a sentence that permits an automatic early termination upon compliance with conditions upon the payment of fees and restitution, and may not VOP after those conditions are performed. Manning v. State, 30 FLW D159 (1st DCA 1-7-05). PLEA NEGOTIATIONS MAY REQUIRE A GUILTY PLEA. BUT NOT FOR STRAIGHT-UP PLEA: Although the trial court may reject a no contest plea w/o admission of guilt, pursuant to Fla. R. Crim P. 3.172(d) ?? A condition of a plea agreement by the state or the judge of an admission of guilt may permit the judge to reject a best interest plea of guilty. Otherwise, the judge must accept a guilty or no contest plea that is not a quid pro quo of a plea negotiation if the defendant either acknowledges guilt or best interest, and the court finds the plea voluntary and with a factual basis. See, Rigabar v. Broome, 658 So.2d 1038, 1041 (Fla. 4th DCA 1995); as the requirement of an admission of guilt is an allowable condition of a plea agreement. Ingram v. State, 763 So.2d 352 (Fla. 4th DCA 1998). This is only reviewable if objected to at the time of the plea or sentence, reserving the right to appeal or if a motion to withdraw the plea is denied. Motta v. State, 29 FLW D1960 (Fla. 4th DCA 8-25-04). POSSESSION: ABILITY TO CONTROL: When officer saw driver's purchase from another is evidence of knowledge of presence to the passenger, but not evidence of ability to control. E.A.M v. State, 21 FLW D2658 (2 DCA 12-11-96). Front seat passenger may still have possession of cocaine in back seat armrest, by probable cause standard, along w/ all other occupants of the car based on facts as understood by a reasonable police officer as all occupants here may have both knowledge and dominion or control. Maryland v. Pringle, 2003 WL 22938461 (12-15-03), distinguishing Ybarra v. Illinois, 444 US 85, 91 and US v. DiRe, 332 US 581. POSSESSION: KNOWLEDGE OF SUBSTANCE: Chicone instruction re. knowledge of the substance should not be given if D. denies the possession element. McMillan v. State, 24 FLW D2761 (5th DCA 1999). POSSESSION: KNOWLEDGE OF ILLICIT NATURE: The Chicone instruction is no longer applicable due to enactment of ' 893.101, effective May 13, 2002, eliminating the element of knowledge of illicit nature of the substance. See, last paragraph of Lee v. State, 835 So.2d 1177 (4th DCA 12-26-2002). Therefore, Chicone v. State, 684 So.2d 736 (Fla. 1996) and Scott v. State, slip Op No. SC 94701 (Fla. 2002) are no longer applicable. PRE-FILING INVESTIGATIONS: SAO must receive sworn testimony from a person to base the information and jurat. ASA may not only PFI the LEO to summarize unsworn witness statements if LEO was not the material witness, or Court may dismiss the charge. State v.Weinberg, 26 FLW D440 (5th DCA 2-9-01) PRE-TRIAL HEARINGS: DEFENDANT'S PRESENCE REQUIRED: Unless D expressly waives his presence at pre-trial conference is error, even if counsel waives his presence for him. Pomeranz v. State, 7-3 So.2d 465, 471 (Fla. 1997); Rule, 3.180(a) (3); Kearse v. State, 25 FLW S507 (7-7-00). PRIOR CONVICTION AS ELEMENT OF OFFENSE: The state must accept defendant's stipulation that he was previously convicted of the same crime that he is now charged with. Old Chief v. U.S., 117 S.Ct. 644 (1997); Sumpter v. State 612 So.2d 635 (4th DCA 1993). A withold adjudication is sufficient for prior conviction for DWLS, See Raulerson v. State, 763 So.2d 285 (Fla. 2000) But not for petit theft, See, See, State v. T.T. 773 So.2d 856 (1st DCA 2000); State v. Hamilton 11 FLW Supp 317b (13th Cir. Hillsborough, 2-4-04), as even a juvenile adjudication of delinquency serves as a prior conviction for petit theft, See; R.D.D. v. State 493 So.2d 534 (1st DCA 1986). 11th Circuit held that a Florida w/h counts as a conviction for purposes of element of Aprior conviction to prosecute Defendant for possession of a firearm by a convicted felon. U.S. v. Chubbuck, 2001 WL 589088 (11th Cir. 2001). Agg. Battery can serve as a prior conviction for felony battery. State v. Warren, 26 FLW S434 (Fla. 7-6-01) contra to State v. Smith, 26 FLW D1457 (2d DCA 6-15-01); Hodgdon v. State, 26 FLW S434b (Fla. 01). Offenses that may be enhanced by a prior conviction of the same act include: DUI, DWLS/R, WWRD, Petit Theft, Prostitution, Criminal Mischief, Battery. PRISON RELEASEE REOFFENDER ACT: 775.082(8) takes substantially all discretion away from the court to the SAO, does not violate separation of powers. Woods v. State, 24 FLW D831 (1st DCA 1999); Speed v. State, #4082 (5th DCA 1999); Mcknight v. State 24 FLW D (3d DCA 1998) [n.5 gives "veto power" to victim re. mandatory sentence]; But See, State v. Wise, #3058 (4th DCA 1999). PROBATION: GENERAL CONDITION: DRUG/ALCOHOL TESTING: Condition need not be related to defendant's offense, but only rationally related to state's broad need to supervise community controllees. Brock v. State, (Fl. 2/6/97). PROBATION: TIMELINESS OF VIOLATION: Even if the court does not specify a time for compliance to enter a treatment program and report HIV results to the victim, D may be VOPd because, The defendant is not at liberty to pick the time of compliance within the probationary period. Woodson v. State, 29 FLW D189a (5th DCA 2004). Court may not extend probation ex parte to permit D to complete a condition, the later VOP D after the original term of probation as D must be violated originally, or waive double jeopardy. Gearhart v. State, 29 FLW D2297 (5th DCA 10-15-04). PRE-TRIAL INTERVENTION: PTI AGREEMENTS ARE SOLELY THE FUNCTION OF THE PROSECUTOR: Unlike drug PTI, judicial involvement in the decision to admit or terminate is patently not contemplated by section 948.08, F.S. Batista v. State, 32 FLW D768a (Fla. 4th DCA March 21, 2007). The charging decision is exclusively that of the prosecutor for which the Court may not override, even if the court thought the charge is not proper without a legal basis to dismiss or divert to arbitration. Even if DJJ recommends that no petition for battery be filed, "[T]he state attorney is vested with the sole discretion to decide what action to take.We shudder to think what would happen to the wheels of justice if every such childhood scuffle resulted in criminal prosecution." D.C. v. State, 436 So 2d 203 (1st DCA 1983, Judge Zehmer). The final authority as to whether a child has completed a diversion program under 948.08(1-5) is with the state. The court can make the determination if it is a drug court diversion program under 948.08(6). State v. J.M., 32 FLW 11350 (Fla. 4th DCA 5-23-07). PRE-TRIAL RELEASE: CRIMINAL VIOLATIONS OF CONDITIONS: See. F.S. 741.29(6) if underlying incarceration was for domestic violence. PRE-TRIAL RELEASE: CONDITIONS ARE NOT PUNISHMENT: Supervised release of defendant, charged w/ DUI and drugs that he consume no drugs, alcohol and attend 3 AA or NA meetings weekly are not punishment, thus not barred by double jeopardy. State v. Morley J. Parent, 10 FLW Supp 921 (Sarasota Co., Denkin, J. Aug. 26, 2003), contra to State v. Price, 8 Fla. L. Weekly Supp 617c (20th Cir. App. May 29, 2001) Similar to State v. Atkinson, 775 So.2d 842 (5th DCA 2000) where the 8 hour hold time after DUI arrest is not double punishment for DUI conviction. PROBABLE CAUSE: BAD INFO: DHSMV is a law enf. agency for exclusionary rule purposes, i.e. bad info re. DWLS subjects the fruits of stop to suppression because any computer error precipitated by government carelessness must result in suppression, as arrest for same is repugnant to principles of a free society. Shadler v. State 761 So.2d 279 (Fla. 1/7/00). Mistake of law cannot provide reasonable suspicion or p.c. to stop for infraction, even if the officer reasonably believed the ordinance required something that it didnt. U.S. v. Chanthasouxat, fax mail op # 8039 (11th Cir. 8-22-03). Computer information that erroneously listed the registration to another vehicle cannot support a p.c. stop, and drugs found subsequent to unlawful stop are suppressed. State v. Murphy, 739 So.2d 112 (2nd DCA 2001). If LEO thinks tag is invalid, but learns after the stop that its good, the stop is illegal, but LEO may still approach D to inform him of the erroneous stop. State v. Diaz, 850 So.2d 435 (Fla. May 15, 2003). Then, if the officer recognizes D as subject of a warrant, he may arrest w/o suppression (for that limited information). State v. Rivers, Case No. 2d03-2228 (2nd DCA 12-10-03). Fla. distinguishes Arizona v. Evans, 115 S. Ct. 1185 (1995) if any state agent caused the error other than the judge or the court clerk in State v. White, 660 so.2d 664 (Fla. 1995). Not only is the exclusionary rule applicable, but action crimes, such as escape are dismissed if based upon an illegal arrest after an illegal stop, based upon a government mistake. Solino v. State, 763 So.2d 1249 (4th DCA 2000). PROBABLE CAUSE: PRETEXT IS DEAD: If LEO had lawful basis to stop = no suppression even if was a pretext for other search. Holland v. State, 22 FLW S387 (Fla. 7-3-97; following Wren v. U.S., 116 S.Ct.1774 (1997); overruling State v. Daniel, 665 So.2d 1040 (Fla.1995) overturning Kehoe , (Fla. ). Art.I ' 12 require all 4th Amdt. issues to follow U.S. Sup. Ct. rulings before and after the adoption of the amendment Bernie v. State, 524 So. 2d 988 (Fla. 1988) & Perez v. State, 620 So.2d 1256 (Fla. 1993). In Fourth Amendment cases, Florida courts are bound by rulings of the U.S. Supreme Court and can provide no greater protection than those interpretations. a. Article I, Section 12, Florida Constitution b. Petrel v. State, 675 So.2d 1049 (4th DCA 1996) c. State v. Daniel, 665 So.2d 1040, n.10 (Fla. 1995) d. Holland v. State, 696 So.2d 757 (Fla. 1997) e. Perez v. State, 620 So.2d 1256, 1258 (Fla. 1993) f. HOWEVER, the limiting language in Article I does not prohibit the legislature from passing statutes which give Florida citizens greater protections that the Fourth Amendment. State v. Langsford, Case No: 4D01-3062 (4th DCA 3/27/02). However, note that a stop based upon a traffic infraction requires proof that the infraction occurred in fact, i.e. if facts do not support the charge, such as obstructed tag, where only the county was obstructed by a tag cover, the charge is not supported and the subsequent cocaine seizure is suppressed. State v. St. Jean, 22 FLW D1868 (5th DCA 1997). PROBABLE CAUSE: SMELL OF M.J. FROM GROUP: LEO smells m.j. from a group gives him p.c. to stop and search all the members of the group. State v. Hernandez, 23 FLW D440 (2d DCA 2-11-98). If LEO smells m.j. coming from a car, he may search all the occupants. Also, the officer's theory of the search is not relevant, so long as a legal theory exists. State v. Chambliss, 25 FLW D544 (5th DCA 00). ; See also, State v. T.P. , 835 So.2d 1277 (4th DCA 2003); State v. K.V., and State v. Betz, 815 So.2d 627 (Fla. 2002); and State v. Lee , 32 FLW D1251 (5th DCA 5-11-07), holding that the smell of m.j. (along with other factors) justifies a search of the vehicle and persons. However, in State v. Sarafogou, 12 FLW Supp 1142c (17th Cir. Broward 2005) held that absent other factors, the smell alone was not sufficient to justify the search. The smell of burnt m.j. provides p.c. to search all occupants of the car. State v. Williams, 32 FLW D2188a (1st DCA Sept. 14, 2007); and see 32 Fla.L. Weekly D2787a. Probable cause is a fluid concept, including the common sense conclusions by LEO. It requires a probability or substantial chance of criminal activity, not an actual showing of such activity. Williams v. State, 731 So.2d 48 (2d DCA 1999), citing Illinois v. Gates, 103 S. Ct. 2317 (1983). If LEO sees crack in D's mouth = p.c. even though LEO acknowledges that it could have been something else. LaFord v. State, 25 FLW D 1018 (4th DCA 00). PROBABLE CAUSE: CRACKED WINDSHIELD: Must render the vehicle in such unsafe condition as to endanger any person or property. SC05-438 (Fla. 7-5-07). PROBATION: CREDIT FOR TIME SERVED: DOMESTIC VIOLENCE: Although domestic violence requires a minimum term of one year probation, a person who has been incarcerated while pending the sentence is entitled to credit for the time served against his one year of probation. Brown v. State, 11 FLW Supp 530a (9th Cir. Orange Co. Feb 16, 2004). PROBATION: VIOLATION OF: JURISDICTION: VOP warrant must be signed by judge AND received by sheriff prior to expiration of probationary period or court loses jurisdiction. State v. Boyd, 23 FLW S425 (Fla. 8-27-98). PROBATION VIOLATION: EXCLUSIONARY RULE: The exclusionary rule does not apply to a parole revocation hearing. Pennsylvania v. Scott, 524 US 357 (1998). The same rule applies to vop's. Flowers v. State, (4th DCA 6-2-99); Johnson v. State, 25 FLW D2076 (4th DCA 8-30-00). Not any more. In parole hearings, per U.S. Supreme Court in Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998) suppression is not available. However, Florida Supreme Court found that probation hearings are different, as they are adversarial with lawyers. State v. Scarlet, 800 So.2d 220 (Fla. 2001). PROBATION: VIOLATION OF: PROBABLE CAUSE ARREST: F.S. 948.061(1) permits LEO to arrest for violation of condition of probation or c.ctl. PROBATION VIOLATION: SENTENCE: If trial court originally agreed to no public defender and NJT for 2d degree misdemeanor with condition of no jail, court may not give jail upon VOP. Blankenbaker v. State, 24 FLW D2560 (2d DCA 1999, Blue.); Harris v. State, 25 FLW D2843 (4th DCA 00); Tur v. State, 794 So.2d 4 (3d DCA 2001); Harris v. State, 773 So.2d 627 (4th DCA 2999). However, if court advises D at time of orig. sentence that he can get jail and adj. upon a VOP, court may do so. State v. Self 4 FLW Supp 420 (Palm Beach Co. 11/15/99). If D bargains for a "suspended sentence" court must impose the sentence on VOP. State v. Wheeler, 25 FLW D1017 (3d DCA 00). If probation periods and consecutive and D VOPs during his first term of probation the probation on the counts that had not even begun to run may be violated at the same time. Seitz v. State, 29 Flw D210 (3rd DCA 1-14-04). PRO SE MOTIONS: Pro Se demand for speedy trial by a represented defendant is a nullity. Smith v. State, 25 FLW D1211 (2d DCA 00). If a defendant is represented, he may not file any pro se motions w/o clearly indicating that he has terminated his attorney. Logan v. State, 28 FLW S325a (Fla. 2003). PROSECUTORIAL IMMUNITY: Prosecutor has absolute immunity only for prosecuting functions, but only limited immunity for investigative functions, i.e. signing affidavit for search warrant. Kalina v. Fletcher, 66 USLW 4031 (1997). PROSECUTORIAL MISCONDUCT: BOLSTERING LEO: May not argue that police would not put career on line. Sinclair v. State, 23 FLW D1935 (4th DCA 1998). May not argue the police have no reason to lie where credibility is key issue. Freeman v. State, 23 FLW D 1950 (5th DCA 1998). PROSECUTORIAL MISCONDUCT: ASA AS WITNESS: ASA may not call himself as a witness to impeach testimony. The better practice is to withdraw from the case if you must testify or jury will give greater weight to ASA's testimony and argument would tend to vouch for yourself. Holloway v. State, 23 FLW D275 (4th DCA 1/21/98). ASA may not assert facts during cross-x, i.e. I checked out that story and the witness said it's not so, or court shall grant a mistrial. PROSECUTORIAL MISCONDUCT: CLOSING ARGUMENT: The comment, "Defense counsel is fishing for gullible jurors" = reversal. Baker v. State, 23 FLW (3d DCA 2/11/98). The standard to determine whether the comment was "fundamental error" requiring a reversal is whether it was "so egregious as to create a reasonable probability that the outcome was changed." Kilgore v. State, 21 FLW S345, (Fla. 1996). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 104 S. Ct. 2052 (1984). Personal attack on D lawyer not permitted "the mercenary action of a ... hired gun" Barnes v. State, 24 FLW D458 (4th DCA 1999). May not argue that "to believe defense, must believe state's witnesses are lying."Riggins v. State, 25 FLW D1032 *2d DCA 00). PROSECUTORIAL Misconduct: MISTRIAL: If prosecutor, in good faith, does an intentional act (calling a witness and arguing, with case authority that this is proper) that does result in a mistrial, double jeopardy does not bar a retrial, unless the act was done in bad faith or in an effort to cause a mistrial. Peart v. State, (3d DCA 2-18-98). PROSECUTION MISCONDUCT: DEFENDANT LIED: It is misconduct to argue "the defense in this case is nothing but a big lie" in a swearing contest case. Washington v. State, 22 FLW D191 (2d DCA 1-10-97). But use of the term "lied", or is a "liar" is not improper if supported by the evidence. Murphy v. Int'l Robotic System, 25 FLW S610, 616 (Fla. 8-18-00). Same on criminal case if supported by evidence. Pino v. State, 26 FLW D389 (3d DCA 01). May not argue D is liar who used an interpreter to explain English when D spoke fairly good English. Rodriguez v. State, 27 FLW D1821 (2d DCA 8-9-02). PROSECOTON MISCONDUCT: DEFENDANTS SILENCE: Comments may not call undue attention to defendants decision not to testify by arguing, the judge also instructed you that the defendant has the right to remain silent, and he does. He did not take the stand in this case. But there were two witnesses.... Miller v. State, 28 FLW D1441 (4th DCA 6-18-03). PROSECUTION MISCONDUCT: OPEN DOOR: Prosecutor must object (not sit silently) while D's attorney lambastes LEO's integrity, before being permitted to go through "open door" to rebut with officer credibility argument. Fryer v. State, 22 FLW D1195 (3d DCA 5-14-97). Prosecutor may not violate order in limine, even if she thinks D "opened the door" as ASA must 1st inquire of the court. Gore v. State 23 FLW S518 (Fla. 1998). Standard for review of dismissal after mistrial is whether the misconduct was an intentional act of the prosecutor. 5 FLW Supp. 59 (20th Cir, Lee, 7-31-97); Johnson v. State, 545 So. 2d 411, 412 (3d DCA 1989); Oregon v. Kennedy, 456 U.S. 667 (1982). D's lawyer on cross-X asks Co-D about charged and uncharged crimes for impeachment, ASA need not object, but may wait and redirect to ask if D committed these crimes with Co-D. Washington v. State, 25 FLW D 914 (4th DCA 00). If defense portrays police work as shoddy and incomplete, it is invited comment for prosecutor to explain why. Foxworth v. State, 25 FLW D783 (2d DCA 4-7-00). Defense may not create a false inference of evidence, even as to fundamental rights, as this opens the door for prosecutor to ask to explain this false inference. See, Dragovich v. State, 492 So.2d 350 (Fla. 1986). Same applies to inferences of a defense (it was suicide, not homicide) where ASA may argue in closing no evidence of this inference. Brown v. State, 25 FLW D2703 (Fla. 4th DCA 11-22-00). PROSECUTOR MISCONDUCT: CLOSING ARGUMENT: WHO'S LYING?: May not argue that the only way to believe D is to disbelieve state's witnesses as shifts burden to D. Riggins v. State 25 FLW D113 (2d DCA 1/1400), following Northard v. State, 675 So.2d 652 (4th DCA 1996). PROSECUTOR MISCONDUCT / THE OTHER SIDE: DEFENSE ATTORNEY MISCONDUCT: Court was proper to find defense attorney in contempt for arguing in closing that Maybe there should be a limit to the deals attorneys can make and maybe power corrupts. Rudolph v. State, 27 FLW D2439c (3d DCA 11-02). PROSECUTOR MISCONDUCT: MAY COMMENT ON D'S BURDEN ON AFFIRMATIVE DEFENSE: Prosecutor may argue in closing that Defendant failed to present evidence of an affirmative defense (that he was entrapped), but may not argue that D' did not (personally) testify. Walker v. State, 22 FLW D2723 (5th DCA 12-5-97); or that Defendant failed to present evidence of self-defense. Delgado v. State, 24 FLW S79 (Fla. 00). Comment that evidence is "uncontroverted" could be misconduct if fair interpretation is comment on D's failure to testify, but statement that Detective's testimony (subject to intense cross-x) is "uncontroverted" is not misconduct. Rich v. State. 25 FLW D1088 (4th DCA 5-3-00). PROSECUTORIAL MISCONDUCT: VOIR DIRE: Not misconduct to ask venire if they could use their common sense to determine who is lying / is not comment on D's 5th amdt rights. Barnette v. State, 25 FLW D953 (5th DCA 00). ASA may not tell jury that reasonable doubt does not require 100% absolute conviction of guilt. Morrison v. State, 27 FLW S253 (Fla. 3-21-02). PUBLIC DEFENDER: INTERN: If D does not waive rights to judge to let intern represent him = reversal. M.C. v. State, 21 FLW D2552 (4th DCA 12-4-96). PUBLIC DEFENDER: CONFLICT OF INTEREST: WITHDRAWAL: PD is entitled to withdraw if new victim is former client, but not just for a witness who was a former client. Rodriguez v. State, 25 FLW D2274 (4th DCA 00). PUBLIC RECORDS: PROSECUTOR'S TRIAL NOTES EXCLUDED: Personal notes for trial to aid in remembering evidence is not a "public record." Lopez v. State, 22 FLW S279 (Fl. 5-15-97). Prosecutor's personal notes, outlines of opening and closing and depo notes are not public record. Valle v. State, 22 FLW S751 (Fla. 12-11-97). Handwritten notes and drafts of pleadings are not public record. Scott v. Butterworth, #4085 (Fla. 1999). PROSTITUTION: ENTRAPMENT: Not entrapment by due process violation under Munoz for LEO to be invited by suspect to remove his clothes and have his privates touched. State v. Chiaverini 5 FLW Supp 699 (17th Cir. Broward 1998). QUOTES: SHUT UP: Perhaps the moral of the story, which applies to lawyers and juveniles, is that when you are winning, it is best to keep your mouth closed and your ears open. H.S. v. State, 26 FLW D638 (5th DCA 01). REASONABLE SUSPICION: ANONYMOUS TIP: Even if tip particularly describes person, location and conduct, LEO must corroborate info, i.e. see illegal activity like drug sales taking place. Fabian v. State, 23 FLW D990 (2d DCA 1/15/98). It is not even sufficient if the anonymous tip is that D has a gun. Florida v. J.L., 529 U.S. 266, 288 (2000). Known confidential informant whose credibility was easily assessed and who could have been held responsible for a false report is sufficiently reliable. Adams v. Williams, 407 U.S. 143 (1972). If an anonymous tipster exhibits sufficient indicia of reliability in the callers ability to predict the suspects future behavior the tip may be reliable. Alabama v. White, 496 U.S. 325, 332 (1990). If 911 caller only gives his first name and own vehicle description, + stays on the phone with a detailed report of DUIs conduct, this may be sufficient for reliability of the stop (also tipster stayed at scene of the stop where he then gave his full name). Powell v. State, 9 FLW Weekly Supp 586 (17th Cir. Broward, May 20, 2002). UNIDENTIFIED ACITIZEN-INFORMANT: The victim of an agg assault, who told LEO face - to - face of Defendants description was a citizen informant under the circumstances, even if LEO did not get the name of the victim at the time, therefore no independent corroboration of defendant was required of LEO. Milbin v. State, 26 FLW D2161 (4th DCA 9-5-01). If citizen personally sees officer and gives p.c. of crime, but where LEO didnt get the citizens name then this is considered a citizens tip, not an anonymous tipster. Carattini v. State, 26 FLW D175 (5th DCA 2001). 911 call by convenience store clerk is sufficient as a citizen informant vs. anonymous tipster for stop w/o independent corroboration. State v. Manuel, 26 FLW 2214 (4th DCA 9-12-01). REASONABLE SUSPICION: IDENTIFIED CITIZEN REPORT: An identified citizen's report with sufficient detail is sufficient for stop without additional corroboration as required in anonymous tip as the identified citizen is motivated by the desire to further justice, placing the tip on the high end of the reliability scale. State v. Evans, 22 FLW D 912 (4th DCA 4-9-97); Fox v. State, 717 So.2d 184 (5th DCA 1998). If the citizen is not identified (did not get name) then must apply the corroboration required for an anonymous tip. State v. Rewis, 722 So.2d 863 (5th DCA 1998). If unidentified citizens gave description of robber, the report may still have reliability under the circumstances of the report, where the officer saw evidence corroborating that a robbery occurred. State v. Ramos, 25 FLW D1108 (5th DCA 5-5-00). In Castella v. State 32 FLW D1285 (Fla. 4th DCA 5-16-07), ruled that unidientified boaters, who excitedly told off-duty officers of a boating accident and identified defendant these were "citizen-informants" because they were identifiable, but the LEO didn't have time to get their names or boat number. this was unlike State v. Solino, 763 So.2d 1249, 1251-52 (Fla. 4th DCA 2000), relying on State v. Rewis, 722 So.2d 863 (Fla. 5th DCA 1998). In this case, the officer was performing a civic public safety function in the wake of a reported tragedy, not investigating a crime such as throwing a bottle out of a car window or reckless driving. In Manning 32 FLW D1277 (Fla. 4th DCA 5-16-07) a burglary victim reported taht an unidentified person told him that defendant had committed the crime. Then defendant drove by and victim identified him, and upon the stop identified his stolen property in the back seat. This victim was between anonymous and citizen, and court followed State v. Maynard, 783 So.2d 226, 230 (Fla. 2001) because the tipster was readily ascertainable, and the actual name need not be known. In Chaney v. State, 32 FLW D1278 (Fla. 4th DCA 5-16-07), an unknown person told the LEO that he had seen several drug transactions at a house across the street from where the informant was working. The facts in the case were devoid of informant testimony about what was seen to be perceived as drug transactions. Nor was there any evidence that the LEO was drug experienced sufficiently to witness the acts and conclude that it was a drug transaction, like occurred in Costor v. State, 596 So.2d 442, 445 (Fla. 1922),, following Revels v. State 666 So.2d 216. REASONABLE SUSPICION: TRAFFIC STOP: PASSENGER: Although under U.S. Constitution LEO may search passenger's containers when driver is lawfully arrested, Wyoming v. Houghton, 119 S.Ct. 1297 (1999), the 4th DCA held that a passenger cannot be ordered to remain inside a vehicle upon reasonable suspicion of driver's traffic violation. Wilson v. State, 734 So.2d 1107 (4th DCA 1999). However, LEO may order the driver to remain inside or outside or may order the passenger out of the vehicle to prevent access to weapons. Maryland v. Wilson, 117 S.Ct. 882 (1997); State v. Wilson, 24 FLW D1464 (4th DCA 1999). DETENTION OF PASSENGER DURING LAWFUL SEARCH OF CAR IS APPROPRIATE: If the LEO has a lawful basis to search the car, passengers may be required to remain at the scene during the search. May v. State, 32 FLW D837b (Fla. 2d DCA 2007) RECKLESS DRIVING: State need not allege which persons or property were disregarded in information. Speed + run stop sign sufficient. State v. Eggleston, 5 FLW Supp 562 ( Broward 4-6-98). Abrupt U-turn and speed is sufficient. State v. Orozco, 607 So. 2d 464m 465 (3d DCA 1992). Erratic turn + speed is sufficient. Gasset v. State, 490 So. 2d 97, 98 (3d DCA 1986). Some alcohol consumption + speed + crossing center line is sufficient for veh. homicide (reckless standard). Martinez v. State, 22 FLW D340 (1st DCA 1-29-97). Alcohol + speed + running off road is sufficient for manslaughter by culpable negligence (a higher standard than reckless driving) Davidson v. State, 21 FLW D2631 (1st DCA 1996). Alcohol is a factor, not to be suppressed. State v. Garces, 5 FLW Supp 776 (11th Cir Dade, June 1998). Speed + accelerating through red light w/ shallow tread, missing lug nut and improper window tinting is sufficient recklessness for vehicular homicide. Lay testimony sufficient for "speed." Lewek v. State, 702 So. 2d 527 (4th DCA 1997). Usually, speed alone is insufficient, but if speed is far greater than limit it may show gross, wanton and willful conduct for reckless or culpable negligence. Copertino v. State, 24 FLW D238 (4th DCA 1999). RECKLESS DRIVING: ALCOHOL RELATED: Requires evaluation by a DUI program for substance abuse treatment as part of probation requirement, eff. 1-01-2000, Ch. 99-234. RESISTING ARREST: RAWV is no longer a specific intent crime, so "voluntary intoxication" is no longer a defense. It was never a statutory defense, and Florida is a minority to permit it as any defense. Frey v. State, 23 FLW S123 (3-5-98). RESISTING: FLIGHT: If reas. susp. to investigate and D runs = resisting? No. Although flight alone is not = RAWOV and it may not establish the reasonable suspicion, alone. Mosley v. State, 24 FLW D1980 (4th 1999). Where LEO went to Ds house to question him about a burglary and D fled from LEO is not RAWOV. Even though LEO had a duty to investigate a burglary where D was a suspect, the D had no duty to talk w/ LEO w/o suspicion to detain him. Therefore, the flight was not resisting a lawful duty to remain and talk. V.L. v. State, 26 FLW D1657a (5th DCA 01). RESISTING WITHOUT: LAWFUL DUTY: l State must show LEO made lawful arrest or lawful conduct as element of misdemeanor resisting. State v. Alston, 4 FLW Supp 710 (Lee, 5-8-97), but if charged as felony resisting with and D requests lesser included instruction, state need not establish the element of lawful arrest to sustain the jury pardon. Espinosa v. State, 22 FLW S1 (Fl.1996). The underlying charge need not be filed or convicted to sustain the conviction for RAWOV If the LEO had a founded suspicion of criminal activity for detention, to support the RAWOV charge because the facts constituting probable cause [for an arrest] need not meet the standard of conclusiveness and probability required to support a conviction. See, Seago v. State, 768 So.2d 498, 500 (2nd DCA 2000); E.W. v. State, 29FLW D1176 (1st DCA 2004). RESISTING WITHOUT: INVESTIGATION NEEDED: Obstruction where LEO only suspects drug selling, but no transactions seen, fails. S.D. v. State, 627 So.2d 1261 (3d DCA 1993); McNight v. State, 6 FLW Supp 528 (Orange, 99). But if Leo sees transaction, RAWOV may be valid. Porter v. State, 582 So.2d 41 (4th DCA 1991). Merely saying "don't buy drugs, they're cops" does not obstruct. JV v. State, 25 FLW D1711 (4th DCA 2000). If LEO, responding to fight scene, does not have reas. Susp. To stop D for interview, D may walk away from the encounter. F.P. v. State, 26 FLW D644 (5th DCA 01). RESISTING WITHOUT: OBSCENITIES: A juvenile, who stood across the street from service of warrant, but continued to yell obscenities and refused to disburse, obstructed the LEOs ability to execute the warrant. H.A.P. v. State, 27 FLW D2392 (3d DCA 11-6-02). RESISTING WITHOUT: SUBSTANTIAL HARM: Discovering D's real name w/in 3 minutes with no reports prepared and no reliance on false information is not substantial harm. Burdess v. State 23 FLW D2717 (5th DCA 1998). RESISTING: MULTIPLE COUNTS: D. may be prosecuted for only one count resisting arrest of multiple officers. Wallace v. State, 724 so.2d 1126 (Fla. 12-10-98); reversing Wallace (4th DCA) and approving Pierce v. State, 681 So. 2d 873) ? and Wells v. State, 22 FLW D2010 (1st DCA 8-19-97); Johnson v. State, 25 FLW D28 (2d DCA 1999). But, if D resists w/o violence at scene of arrest, then with violence at jail, there is adequate separation in time and location to permit the 2d county of RAWV. Vasquez v. State, 26 FLW D638 I5th DCA 01). RESTITUTION: ABILITY TO PAY: Cases after May 8, 1995 do not require determination of ability at time of order, but at time of enforcing non-payment. Amount includes insurance repayment, but subrogated. Amount may not be determined only on hearsay. Moore v. State, 22 FLW D1352 (2d DCA 5-28-97). Court may order restitution to victim or insurance company, later if amending the probation. Walker v. State, 30 FLW D2658a (3d DCA 2005). RESTITUTION: AMOUNT: If court orders amount of rest. at sentencing, court may not reconsider amount later, even if victim has proof of greater damages. Strickland v. State, 21 FLW D2322 (3d DCA 10-30-96). RESTITUTION: APPORTIONMENT: Court does not err in refusing to apportion restitution based on degree of fault by victim. DM v. State, 25 FLW D793 (4th DCA 00). RESTITUTION: AMOUNT MORE THAN CHARGE: Court may impose restitution costs that exceed the statutory charge, i.e. 2d M for Criminal Mischief. JOS v. State, 22 FLW S118 (Fla. 3-13-97). Court may award $9k restitution, even if D charged with <$1,000 in information, even where there are other defendants but Court cannot apportion whose damage cause which $ loss. A.J.N. v. State, 23 FLW D2004 (5th DCA 1998). RESTITUTION: CAUSATION: ' 775.089 was amended to include: 1) any damage or loss caused directly or indirectly by the defendant's offense, and 2) any damage or loss significantly related to defendant's criminal episode. See, J.O.S. v. State, 689 So. 2d 1061, 1063 n.10 (Fla. 1997). The mere fact that D is DWLS and Leaving the Scene of a Crash does not establish sufficient indirect causation for restitution for that charge alone. Schuette v. State, 27 FLW S587 (6-20-02). The Court applied the proximate cause standard. This rationale should also apply to no DL. This Supreme Court decision settles the conflicts in the state that held otherwise, such as: Cheek v. State, 700 So.2d 731 (5th DCA1997) & State v. Schuette, 26 FLW D865b (4th DCA 01). RESTITUTION: CIVIL SETTLEMENT DOES NOT CONTROL CRIMINAL: Prior to the resolution of the criminal case, the victim and defendant had entered into a settlement agreement regarding payment of damages and release of liability. The Florida Supreme Court has ruled that the trial judge in the criminal proceeding is not bound by the terms of this agreement when ordering restitution.. Kirby v. State, 28 FLW S751a (Fla. 2003). RESTITUTION: COSTS OF INVESTIGATION: Victim may recover costs of accountants, bookkeepers and clerks to investigate loss and restructure, but may not recover costs of a private investigator. Boulals v. State, 23 FLW D427 (1st DCA 1/30/98). Victim may not recover lost wages to attend restitution hearing. JMV v. State, 24 FLW D1661 (4th DCA 99). Victim is entitled to actual lost wages from the injury. Graham v. State, 720 So.2d 294 (5th DCA 1998). RESTITUTION: ORDER: If court orally orders restitution, court may determine amount past 60 days of sentence. C.A. v. State, (3d DCA 1-15-97). County Court now has jurisdiction to enforce restitution order for five years, eff 10-1-99. Ch. 99-358. May order restitution w/in 60 days of sentence, even if not done at disposition as it is not intended as a punishment, but to make victim whole, thus is not an increase in sentence. Bunch v. State, 24 FLW D2430 (5th DCA 1999). RESTITUTION: PROOF OF DAMAGE: If records custodian testifies that auto repair bills are kept in normal course of business that is sufficient to prove damage under business records exception to hearsay. Davis v.State, 707 So.2d 842 (2d DCA 2-27-98). Standard of proof is preponderance of evidence. Hamilton v. State, 25 FLW D714 (3d DCA 2000). However, it is insufficient proof, due to hearsay, for victim to testify of damage, then to present 3 estimates of repair from other non-testifying witnesses. Beadman v. State, 11 FLW Supp 532b (11th Cir. Dade 3-31-04). However, a repair estimate is admissible now as a business record exception IF the ASA provides the estimates at least 5 days prior to the hearing the estimate along with a certification or declaration by the records custodian that the recorded was made at or near the time of the event by a person with knowledge and was kept in regular course of regularly conducted activity and made as a regular practice, pursuant to F.S. 90.902(1) (2003). In Re. R.D., 11 FLW Supp 906a (13th Cir. Hillsboro, Aug. 2, 2004). RESTITUTION: STANDING: Insurance Company who paid victim has standing and court errs in refusing to award restitution to insurer. State v. Williams, 22 FLW D696 (2d DCA 3-14-97). RESTITUTION: TIMELINESS: Since restitution is a mandatory part of sentencing, the failure to impose it results in an incomplete sentence that is subject to modification. However, it MUST be imposed within 60 days of the sentence or the court loses jurisdiction to make the order. A motion for rehearing does not stay the courts time of jurisdiction. Ridley v. State, 29 FLW D824 (5th DCA 4-2-04). RESTITUTION: VICTIM'S INVESTIGATIVE COSTS: Cost of store's investigation to determine thief is significantly related to D's misconduct. Glaubius v. State, (Fl. 2-20-97). Medical bills are admissible, not as hearsay, but as "words of a contract". A.J. v. State, 21 FLW D1677 (4th DCA 1996). Victim's costs to search for stolen property is taxable but a "rough estimate" of the expenses will be reversed. Anderson v. State, 22 FLW D2552 (5th DCA 11-7-97). RETROACTIVE APPLICATION OF LAW: Clarifications in the law, vs. change in the law, applies retroactively. Fiore v. White, 531 U.S. 225 (2001). Florida now determines that jurisdictional upheavals are applied retroactively, but evolutionary refinements do not. State v. Klayman, 27 FLW S951 (11-14-02). ROBBERY: FEAR: Actual fear by victim not required, but if conduct would place the objective "reasonable person" in fear, is state's burden of proof. Smiths v. State 22 FLW D682 (5th DCA 3-14-97) SEARCH AND SEIZURE: AUTOMOBILE EXCEPTION: Even if LEO had time to get a warrant, the auto exception applies w/o analysis of exigency. Maryland v. Dyson, (S. Ct. 6-21-99); Florida v. White, 119 S.Ct. 1555 (1999), overturning White v. State, 710 So.2d 949 (Fla. 1998). If LEO has p.c. to search the car, he may also search the trunk, if the facts warrant. State v. Betz, 27 FLW S285 (Fla. 4-4-02), following U.S. v. Ross 456 US 798 (1982), overturning 2d DCA. SEARCH & SEIZURE: AUTO: TRUNK: Fla. Sup. Court reversed holding of 2d DCA to conform w/ U.S. Sup. Ct. rulings that if LEO has p.c. to search the car for drugs, he may search the trunk also. State v. Betz, 27 FLW S285 (4-4-02). Here, the LEO smelled m.j. coming from car, D exited car to approach LEO before he got to car, and when LEO went to pat D down, he was not cooperative. SEARCH AND SEIZURE: BELTON EXCEPTION: Although N.Y. v. Belton permits LEO to search the passenger compartment of a car incident to arrest, if D. exited car prior to LEO's stop, the Belton search may not take place. Thomas v. State, 24 FLW S478 (Fla. 1999). This interpretation is now overturned by Thornton v. U.S., FAXAMIL OP# 5039 5-24-04). SEARCH INCIDENT TO ARREST: In Jaimes v. State, 28 FLW D2826 (2d DCA 12-10-03), the Court followed Thomas v. State, 761 So.2d 1010 (Fla. 1999) in holding that where the occupant of a vehicle voluntarily exits the car before the officer initiates contact with him, the rule in N.Y. v. Belton, 453 U.S. 454 (1981) does not apply. Belton permitted the search incident to an arrest when the defendant was removed from the car upon arrest. Thomas held that the Chimel v. California, 394 U.S. 752 at 763 (1969) rule requiring either officer safety concern or preservation of evidence concerns to justify the search of the car. Therefore, if defendant gets out of the car before the officer confronts him or stops him, there must be a nexus between the arrest and the search of the car. In Jaimes the defendant moved between several cars (selling drugs) but was not in his car when arrested, thus w/o a nexus, and police control over the car, there was no exigency, p.c. or safety issue. This is now overturned by Thornton v. U.S., 5-24-04. SEARCH AND SEIZURE: CONSENT: STANDARD OF PROOF: If the stop is illegal the burden is clear and convincing that consent was voluntary. Reynolds v. State, 592 So.2d 1082 (Fla. 1992). If stop is legal, state only need to show voluntariness by a preponderance. Dormezil v. State, 25 FLW D805 (4th DCA 2-39-00). Here, consensual encounter + consent = okay. State v. Gainey, 22 FLW D (2d DCA 2-28-97); State v. Chang, 668 so.2d 207 (1st DCA 1996). LEO need not advise defendant that he is "free to go" before his "consent" to search is "voluntary." Ohio v. Robinette, 117 S.Ct. 417 (1996). However, a juvenile's consent must be clear and convincing (?) B.T. v. State, 22 FLW D2633 (4th DCA 11-19-97); CS v. State, 632 So.2d 675 (2d DCA 1994). Consensual pat down becomes acquiescence to authority to search if LEO instructs D to "empty pockets" as this is more than a mere pat down w/o p.c. Sanders v. State, #5002 (1st DCA 4-27-99), or unfold hand. Brown v. State, 24 FLW D1489 (2d DCA 1999). Consent to search includes opening drawers unless and until consent is withdrawn. Consent may be withdrawn by asking "don't you need a warrant" or trying to discard contraband. Putnel v. State, 24 FLW D2731 (2d DCA 1999). If the LEO stopped defendant for not having a light on his bicycle, ordered to remove hands from pockets, and put hands on head, then received Apermission to search, the consent was not voluntary. Ray v. State, 28 FLW D1294 (4th DCA 5-28-03). SEARCH AND SEIZURE: "FELLOW OFFICER RULE": Rule applies to searches, as well as arrest, allowing more than one officer to utilize a reliable informant. State v. Peterson, (Fla. 6-17-99). SEARCH AND SEIZURE: GOOD FAITH EXCEPTION TO WARRANT: U.S. v. Leon, 104 S.Ct. 3405 (1984) permits good faith exception to valid warrant. However, in Florida, if law enforcement caused the error, the exception does not apply. See, State v. White, 660 So.2d 664, 667 (Fla. 1995); and Garcia v. State, # 4030 (2nd DCA 4-14-04)(where affidavit for warrant did not establish p.c.). If the court found p.c. from the affidavit for search warrant, and the affidavit may have established p.c., but was ambiguous, the good faith exception still applies. Johnson v. State Op# 4032 (4th DCA 4-14-04). But if court personnel caused the error the good faith exception does apply. Arizona v. Evans, 115 S. Ct. 1185 (1995). SEARCH AND SEIZURE: INEVITABLE DISCOVERY: WARRANT PENDING: Though LEO's may secure a dwelling pending the issuance of a warrant, Segura v. U.S.468 U.S. 796 (1984), they should not seize evidence until they have the warrant. However, this is salvageable under Nix v. Williams 467 U.S. 431 (1984) as inevitable discovery. Connor v. State, 22 FLW D2626 (4th DCA 11-19-97). If LEO lawfully stops a car for an infraction, then unlawfully seizes the driver, then learns of his DWLS status, the arrest and search is ok as the arrest for DWLS was inevitable. Cummings v. State, 32 FLW D1363 (Fla. 5th DCA 5-25-07) SEARCH AND SEIZURE: HOT PURSUIT: MISDEMEANOR: LEO may not enter a residence without a warrant to arrest for misdemeanors, including DUI and fleeing. State v. Rendina, 4 FLW Supp. 875 (15th Palm Beach, 7-24-97). But can he follow into home for misdemeanor if he is in hot pursuit? No. Ortiz v. State, 600 So.2d 530 (3rd DCA 1992); Rendina, Supra; Connor v. State, 641 So. 2d 143 (4th DCA, 1994); State v. Eastman, 553 So. 2d 349 (4th DCA 1989). One Old cases held that LEO could pursue into a garage after a high speed (misdemeanor) fleeing and reckless driving. See: Gasset v. State, 490 So. 2d (3d DCA 1986), rev.den. 500 So. 2d 544 (Fla.1986). However, Gossett had a strong dissent, and was ultimately superceded by a subsequent case in State v. Eastman, 553 So.2d 349 (4th DCA 1989), consistent with Welsh v. Wisconsin, 466 U.S. 740 (1984). SEARCH AND SEIZURE: MISDEANOR ENTRY INTO HOME: LEO may not enter a home on a misdemeanor investigation based upon the invitation of an unknown guest. LEO must verify the invitor's authority. State v. Fritz, 5 FLW Supp 700 (Broward 1998). SEARCH AND SEIZURE IN OPEN FIELDS FOR WILDLIFE OFFICERS ON PRIVATE LAND: See Carla Oglos outline re. open fields doctrine, that includes yards, barns, wooded areas, commercial real property; even if posted and fenced, have diminished expectations of privacy, citing FS 370.021(8); State v. Hamilton, 660 So.2d 1038 (Fla. 1985); U.S. v. Dunn, 107 S.Ct. 1134 (1987); Hester v. U.S., 265 U.S. 57 (1924); and Oliver v. U.S., 466 U.S. 170 (1984). SEARCH AND SEIZURE: PASSENGER CONTAINERS: LEO who has p.c. to search passenger compartment of car may search opaque containers (purse) in car, even if the container belongs to a passenger. Wyoming v. Houghton, No. 98-184 (S. Ct. 4-5-99). But note, LEO in Fla. may not order passenger to remain in or out of the car w/o p.c. on the passenger. Wilson v. State, 24 FLW D 1118 (4th DCA 99). SEARCH AND SEIZURE: PLAIN VIEW: Evidence of knowledge of presence and ability to control may be established if cocaine residue is in plain view in motel room jointly occupied by 4 people. State v. Robert Nolan Griffin, 512 So.2d 1087 (2d DCA 1987). However, J.S.M. v. State, 31 FLW D3067 (Fla. 2d DCA 12-8-06) held that plain view in hotel room with others present does not establish ability to control, and other proof is required for to establish control. Occupant in plain view establishes constructive possession. State v. Reese, 26 FLW D203 (5th DCA 00). Must exclude reasonable hypotheses that passengers did not leave the contraband before their flight. In Re. E.H. 579 So.2d 364 (4th DCA 1991). Plain feel doctrine may include powdered cocaine. Campuzano v. State, 25 FLW D2631 (4th DCA 00). Court found that plain view of amber fluid is p.c. of beer. Harris v. State, 25 FLW D2842,43 (4th DCA 00). SEARCH AND SEIZURE: PLAIN VIEW DOCTRINE STANDARD: Sawyer v. State, 842 So.2d 310 (5th DCA 2003) Incriminating character of white pill observed by police officer in automobile during traffic stop was not immediately apparent, and thus officer was not justified in seizing pill under plain-view doctrine, where officer testified that only after pill was seized did he see design on pill that made him believe it was MDMA, and never testified that he believed prior to seizure that the item was contraband or to any facts that would have rendered that belief reasonable. The plain-view doctrine provides that items in plain view may be seized when :(1) the seizing officer is in a position where he has a legitimate right to be ;(2) the incriminating character of the evidence is immediately apparent; and,(3) the seizing officer has a lawful right of access to the object. SEARCH & SEIZURE: PROBABLE CAUSE: HAND TO HAND TRANSACTIONS: Currency exchange for small objects x2 at drug dealing location = p.c. to arrest. Revels v. State, 666 So.2d 213 (2d DCA 1995); Knox v. State, 689 So.2d 1224 (5th DCA 1997); D.A.H. v. State, 718 So.2d 195 (2d DCA 1998). Even if neither $ or small object could be identified, if location and conduct = p.c. Williams v. State, 717 So.2d 1109 (Fla. 1998), or reasonable suspicion. State v. Owens, 658 So.2d 1171 (2d DCA 1995); Brandin v. State, 669 So.2d 280 (1st DCA 1996). LEO's personal opinion that he did not have p.c. for search is irrelevant if the state can demonstrate, under the totality of circumstances that there was p.c. Knox v. State, 22 FLW D683 (5th DCA 3-14-97). SEARCH AND SEIZURE: PROBABLE CAUSE: INCIDENT TO ARREST: An officer, who has p.c. to arrest, may search defendant prior to arrest, as a "search incident to arrest." State v. King, 405 So. 2d 770(1st DCA 1981); State v. Pringle, 499 So. 2d 75 (2d DCA 1986); State v. M.A.D., 23 FLW D2591 (3d DCA 1998). However, if arrest is based upon erroneous information in police computer that D's d.l. is suspended, the search incident to arrest is suppressed. State v. White, 660 So. 2d 664 (Fla 1995); Bruno v. State, 22 FLW D2647 (1st DCA 11-19-97). Search incident to arrest may actually precede the formal arrest. Illinois v. Lafayette, 462 US 640 (1983); State v. Phillips, 10 FLW Supp 245 (13th Cir. Hillsborough, 2002). DHSMV is a law enf. agency for exclusionary rule purposes, i.e. bad info re. DWLS subjects the fruits of stop to suppression because any computer error precipitated by government carelessness must result in suppression, as arrest for same is repugnant to principles of a free society. Shadler v. State 761 So.2d 279 (Fla. 1/7/00). Mistake of law cannot provide reasonable suspicion or p.c. to stop for infraction, even if the officer reasonably believed the ordinance required something that it didnt. U.S. v. Chanthasouxat, fax mail op # 8039 (11th Cir. 8-22-03). Computer information that erroneously listed the registration to another vehicle cannot support a p.c. stop, and drugs found subsequent to unlawful stop are suppressed. State v. Murphy, 739 So.2d 112 (2nd DCA 2001). If LEO thinks tag is invalid, but learns after the stop that its good, the stop is illegal, but LEO may still approach D to inform him of the erroneous stop. State v. Diaz, 850 So.2d 435 (Fla. May 15, 2003). SEARCH AND SEIZURE: PROBATIONERS HOME: Although, normally, a search of a probationers home with the probation officer and without any reasonable suspicion of criminal activity for probationary purposes may only result in discovery of evidence admissible in a defendants violation of probation prosecution. However, if a LEO has a reasonable suspicion of criminal activity, and makes a search of the probationers home without the probation officer for investigative purpose, the evidence recovered is admissible in a criminal prosecution, following U.S. v. Knights, 534 US 112 (2001), overturning Grubbs v. State 373 So.2d 905 (Fla. 1979) and Soca v. State, 673 So.2d 24 (Fla. 1996), according Art. I, Section 12, Fla. Constitution, requiring that we follow U.S. Supreme Court decisions as to 4th Amendment searches, regardless of whether the search is based upon Florida or U.S. Constitution. Bamberg v. State, 32 Fla.L. Weekly D858a (Fla. 2d DCA March 30, 2007). SEARCH AND SEIZURE: REASONABLE SUSPICION vs. PROBABLE CAUSE: INFRACTION: Prior to the Wren decision, Wren v. U.S., 116 S.Ct.1769 (1996) [abolishing pretext stop rule], Florida courts applied the lower standard of "reasonable suspicion" or "reasonable belief" for police to stop a vehicle for an infraction. State v. Eady, 538 So. 2d 96 (3d DCA 1989); State v. Eubanks, 609 So. 2d 107 (4th DCA 1992); State v. Cobbs, 411 So. 2d 212 (3d DCA 1982); Rollins v. State, 578 So. 2d 850 (2d DCA 1991). However, since Wren, all five of Florida's district courts of appeal have applied the higher standard of probable cause to affect a traffic stop for an infraction. This change was not the result of the holding in Wren but of (sloppy) language used by the Wren court, i.e. "...the Supreme Court held that the temporary detention of a motorist is reasonable when an officer has probable cause to believe that the motorist has committed a traffic infraction." [emphasis added]. Anderson v. State, 692 So. 2d 237 (1st DCA 1997); see also: Smith v. State, 687 So. 2d 875 (2d DCA 1997); Saturnino -Boudet v. State, 682 So. 2d 1881 (3d DCA 1997); State v. Savino , 682 So. 2d 811 ( 4th DCA 1997); State v. Girard, 21 Fla.L.Weekly D1706 ( 5th DCA 1996); and Hellier v. State, Case No. 96-19 AC (12th Cir., Manatee Co., Dubensky,J. 1997). This new distinction (the result of misusing the distinction between p.c. and reas. susp. for the stop) is of concern, but in reality, will make little difference as most infraction investigations are the result of actual police observations or p.c. to charge from crash investigations. It is not sufficient that the officer have "reasonable suspicion" or "p.c." of an infraction if the act does not legally constitute a violation. e.g. an officer's reasonable, but mistaken, belief that he sees an infraction will result in the suppression of cocaine found in the car if the act was not legally an infraction. State v. St.Jean, 22 FLW D1868 (5th DCA 1997).[where license tag obscured by ornament covering only the county, not the tag#]. For a criminal (DUI) vehicle stop reasonable suspicion includes "unusual manner" such as weaving in and out of (or within) one lane, even if no infraction occurred, based on erratic "driving pattern." State v. DeShong, 603 So.2d 1349 (2d DCA 1992); State v. Padilla, 4 FLW Supp. 866 (11th Cir. Dade 7-14-97). But, safely weaving from lane to lane (no p.c. for infraction, w/o proof that other traffic was affected) is not a sufficient bad "driving pattern" to establish reasonable suspicion to stop for the suspected crime of DUI. State v. Slattery, 4 FLW Supp. 871 (11th Cir. Dade, 6-13-97) [citing Wren]. However Contra, that infraction of lane to lane need not wait until another is hurt or at risk, and lane to lane stop is good p.c. State v. Briggs, 5 FLW Supp.32 (Broward Co. 6-24-97). Distinction is that p.c. is required to stop for infraction, but reasonable suspicion is required for criminal inquiry such as dui. If LEO testifies that he did not suspect dui, only infraction, the higher standard will apply. See; State v. Slattery, 6 FLW Supp 400 (Dade Mar 1999); Crooks v. State, 710 So. 2d 1041 (2d DCA 1998). Even if the LEO testified that there was more information that was not in the video, the trial courts suppression was within its discretion, where trial court may not have believed the evidence was sufficient to justify a reasonable alarm for public safety for failure to maintain single lane and circuit court could not reverse the suppression without re-weighing the evidence. Sunby v. State, 28 FLW D1255b (5th DCA). The length of the detention for an infraction ends when the UTC's were or should have been issued. To hold longer, requires reasonable suspicion or p.c. State v. Dukes 25 FLW D 764 (5th DCA 2000). Defense frequently cites Crooks v. State, 710 So.2d 1041 (2d DCA 1998) for the proposition that LEO must actually see an infraction in fact before pulling over a driver. However, if the driving is unusual, but no infraction is observed in fact, but LEO suspects that D is DUI, ill, or something wrong, (not necessarily a specific infraction) the stop is reasonable based on that articulated suspicion. See, Finizio v. State, 26 FLW D2808 (4th DCA 11-28-01) and Roberts v. State, 732 So.2d 1127 (4th DCA 1999) to distinguish these stops. Note: ASA must verify from the LEO prior to the hearing as to whether the stop was based only upon seeing an infraction or reasonable suspicion that something was wrong, i.e. impairment, sleepiness or vehicle defect, etc. Note: Ellis v. State, 755 So.2d 767, 768, n.1 (Fla. 4th DCA, 2000) suggests that the Wrendecision did not intend to change the longstanding standard of reasonable suspicion to probable cause for a traffic stop for an infraction. The Court in Stone v. State, 856 So.2d 1109 (Fla. 4th DCA 2003) also struggled with the concept of whether Wren actually intended to change the standard for a stop of an infraction from reasonable suspicion to probable cause. SEARCH AND SEIZURE: STANDING: Guests (not overnight) in house have lesser expectation in privacy than a resident or overnight guest to contest seizure of their drugs seized upon leaving and seen by officers peering into the window to watch the commercial transaction. Minnesota v. Carter (S. Ct. 1998). SEARCH & SEIZURE: STANDING IS MORE THAN MERE ARREST: D was visiting at a friends house and the friend was arrested on unrelated charges, the court is in error to suppress the search of Defendant before Defendant proves that he had standing. Standing is a reasonable expectation of privacy, not just prejudice in getting searched and arrested. State v. Thompson, 28 FLW D1807b (2d DCA 2003). STRIP SEARCH: BODY CAVITY SEARCH: CONSENT TO DO GROIN SEARCH: A strip or body cavity search is covered by specific Florida statute, requiring written supervisory approval and specific grounds of p.c. of possession of drugs or weapons, and n/a for traffic and non-violent arrests. See F.S. 901.211. Also, a consent search does not intrude into the groin areas by inference, but must be specifically consented to. See, Davis v. State, 594 So.2d 264 (Fla. 1992). SEARCH AND SEIZURE: TERRY FRISK: ANONYMOUS TIP: No corroboration, but 6 minute arrival for tip of D with firearm meets the "firearm exception" corroboration of anonymous tip. No "firearm" exception to Terry. State v. J.L., 22 FLW D410 (3d DCA 2-14-97). However, reversed, as uncorroborated tip of particularly described person with firearm is not sufficient. J.L. v. State, 727 So.2d 204 (Fla. 1998); aff'd. Florida v. J.L. No. 98-1993, (S.Ct. 2000). Anonymous tip may, if corroborated by LEO. State v. J.L., 22 FLW D410 (3d DCA 2-14-97). establish reasonable suspicion. L.M. v. State, 22 FLW D1337 (3d DCA 5-28-97). If police BOLO is too general it will not supply reasonable suspicion for a stop. Bellamy v. State 22 FLW D1351 (2d DCA 5-30-97). A detailed BOLO establishes reasonable suspicion, and may justify a stop outside the officers jurisdiction. State v. Gelin Fax mail Op# 3058 (3d DCA, 3-19-03). However, diminished expectations of privacy at airports may permit protective searches, Florida v. Rodriguez, 469 U.S. 1 (1984), or at schools. new Jersey v. TLO, 469 US 325 (1985). SEARCH AND SEIZURE: TERRY FRISK: NEED REAS. SUSP: Even if LEO had reasonable suspicion to stop D coming from behind close business at 0300 and D would not remove his hands from pockets, LEO had no reas. susp. that D was armed to ask D to put hands on car for pat down. McNeil v. State, 24 FLW D2760 (5th DCA 1999). SEARCH AND SEIZURE: TERRY STOP: Totality of circumstances in light of LEO's knowledge and experience for reasonable suspicion may include time of day, day of week, location, physical appearance and behavior of D, manner of driving, or anything incongruous or unusual. Jenkins v. State, 22 FLW D40 (1st DCA 12-17-96). Passenger may be ordered out of lawfully stopped car, the same as the driver can be for officer safety. Maryland v. Wilson, 117 S.Ct. 882 (Rehnquist 2-19-97). Leo may even open the passenger door of a car blocking the roadway. 109 F.3d 976. However, police may not necessarily order passenger to remain in the car. Maryland v. Dennis, rev.den. (10-14-97). The "police safety" exception still requires a reasonable suspicion that D is armed before LEO may order D to empty pockets. K.L. v. State, 22 FLW D2285 (1st DCA 9--26-97) as such a "routine practice is still constitutionally impermissible. Harris v. State, 574 So. 2d 243 (1st DCA 1991); Moore v. State, 5 FLW Supp 99 (Marion Co. 9-22-97). Seminal case is Johnson v. State, 537 So. 2d 117, 119 (1st DCA 1988). If LEO turns on blue lights, even for traffic safety to inquire of stopped / stranded motorist, the act becomes a stop, not an encounter, thus needs reasonable suspicion. Brooks v. State, 24 FLW D2753 (1st DCA 1999). Good case for distinction of consensual encounter (no suspicion) vs. Terry Stop (requiring reas. susp.) (occurring when LEO asks D to step out of car), then requiring State to establish an unequivocal break in the chain of illegality sufficient to dissipate the taint, see. Thomasset v. State, 25 FLW D1042 (2d DCA 4-28-00). SEARCH OF VESSEL: See Carla Oglos outline re. same re. no p.c. required to stop a vessel to check for fishing regulations, permits, registrations or safety equipment, per, i.e. State v. Casal, 410 So.2d 152 (Fla. 1982); Sherman v. State, 419 So.2d 375 (1st DCA 1982); State v. Starkey, 605 So.2d 9963 (1st DCA 1992); FS 370.021(8); Sanders v. State, 758 So.2d 724 (2nd DCA 200); and U.S. v. Villamonte-Marquez, 462 U.S. 579 ( ). SEARCH AND SEIZURE: VOLUNTARY CONSENT: Standard of proof is preponderance. Jorgenson v. State, 23 FLW S339 (Fla.6/11/98). SEARCH AND SEIZURE: WARRANT: NO KNOCK: Not necessary to knock and announce once occupant knows of presence of LEO on a drug case. Richards v. Wisconsin, 117 S.Ct. 1416 (1977); State v. Bamber, 630 So. 2d 1048 (Fla.1994). LEO only needs reasonable suspicion to execute a no knock warrant involving slight property damage. U.S. v. Ramirez, 77 USLW 4169 (1998). Exigent exceptions to knock and announce are listed under Benefield v. State, 160 So.2d 706 (Fla. 1964). LEO may only make a forcible entry after announcing his authority and purpose pursuant to F.S. 901.19(1), otherwise, may make entry by arrest warrant into home for misdemeanor arrest with necessary and reasonable force. See, Green v. State, 632 So.2d 197 (3d DCA 1994) and Guerrie v. State, 691 So.2d 1132 (4th DCA 1997). Deputy must have: 1) reasonable belief that the location to be searched on an arrest warrant was defendants dwelling; and 2) a reason to believe that defendant was within that dwelling. Payton v. N.Y., 445 U.S. 573, 603 (1979); See, V.P.S. v. State, (Fla. 4th DCA 2002). 15 - 20 seconds is not too short of a time to wait for a knock and announce entry under exigent circumstances of belief of destruction of drugs, as question is not how long it takes a person to get out of shower to answer the door but how long it takes to recognize police and destroy the drugs. U.S. v. Banks, (S.Ct. 12-2-03). SEARCH AND SEIZURE: WARRANT: PERSON NOT DESCRIBED: LEO may not search a person at scene of search warrant unless the person was: 1) named in the warrant; 2) armed; 3) or reasonable belief that D was engaged in unlawful activity that was the subject matter of the warrant. Peak v. State, 7 FLW Supp 508 (Palm Beach 2000). SENTENCING: ACQUITTED CONDUCT: Sentencing Court may consider acquitted conduct if the state establishes the conduct by a preponderance of evidence. U.S. v. Watts, (S.Ct. 1-6-97). Court may consider uncharged conduct if relevant to advise the court of conduct surrounding the arrest. Dowling v. State, 27 FLW D2400a (4th DCA 02). Court may not consider acquitted count in one trial to maximize the sentence, and state has burden of showing acquittal did not contribute to the sentence. Doty v. State, 29 FLW D2129 (4th DCA 9-22-04). SENTENCING: ADJUDICATION: TIME SERVED: It is an illegal sentence to withhold adjudication for a "time served" plea. State v. Montgomery 6 FLW Supp 674 (11th Cir. Dade 1999). But note: could do same as condition of probation on a withhold. Even if county court only gives fine only, must adjudicate unless placed on probation. State v. Wiltzer, 25 FLW D917 (4th DCA 00); See Rule 3.670. Court may not w/h adj. and only impose a fine, as D must either be adjudicated or given a probationary sentence. State v. Penn, 29 FLW D1927 (5th DCA 8-20-04). SENTENCING: CONSECUTIVE 11-29: Court may sentence to consecutive 364 days county jail on multiple misdemeanor charges, even arising from circuit court. But court may not then, give additional consecutive county jail time for a felony from the same sentencing. State v. Troutman, 685 So.2d 1290 (Fla. 1996). Multiple consecutive sentences may include multiple counts in one episode with different victims. Simon v. State, 615 So.2d 236 (Fla. 3d DCA 1993). Defendant may be charged for multiple counts from same episode, Davey v. State, 30 FLW D2657a (4th DCA 2005), and even sentence to consecutive sentences per count from same episode. Almendares v. State, 30 FLW 2463b (4th DCA 2005). SENTENCING : COTERMINOUS: Fla. Sup Ct. now reopened the door on coterminous sentences. Before, they were illegal. Court may not give coterminous sentences that would not comport with D serving his 85% of time on each charge. Nieves v. State 24 FLW D591 (3d DCA 1999). When D is arrested for different offenses at different times but sentenced at one time D may not receive equal credit for time served on all offenses. Dennis v. State, 25 FLW D906 (3d DCA 00). However, in Moore v. Pearson, 26 FLW S311a (Fla. 2001) the Fla. Sup. Ct. saw this as an exercise in discretion for the trial court to mitigate a sentence. This was based on a plea agreement that DOC refused to follow as it would circumvent the legislatures 85% mandate. Is there anything else that the legislature would like to mandate that the Courts can legislate or opine away from them? Court may not give coterminous sentences that would not comport with D serving his 85% of time on each charge. Then 2d DCA applied old rule. Blake v. State, 27 FLW D436 (2d DCA 2002)Defendant "is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence." Basically, if a defendant is not booked in on a particular charge, then he does not receive jail credit. Court may not give credit for inpatient treatment from one charge to a DUI charge with a mandatory minimum jail sentence of 30 days. State v. Ries, 10 FLW Supp 984c (15th Cir. Palm Beach 9-26-03); See also, Gethers v. State, 798 So.2d 829 (4th DCA 2001) and State v. Stanton, 781 So.2d 1129, 1132 (3rd DCA 2001). SENTENCING: D.L. REVOCATION: Court has discretion to permanently revoke d.l., even if D is acquitted of DWLS causing death as court should consider the totality of circumstances, including that a death resulted. Reed v. State, Fax Mail Op#9067 (4th DCA 1999). COURT MAY EXCEED 5 YEAR D.L. REVOCATION ON DUI: The trial court may impose a sentence of not less than 5 years on a 2d DUI conviction under FS 322.28(2)(a)(2) as there is no upper limit under that section. The Court may also impose a permanent revocation, in its discretion, based on the severity of the circumstances (even if acquitted of DUI manslaughter) under FS 316.655(2). 12th Circuit, Manatee County. Stoletz v. State, 28 FLW D234 (2d DCA 1-17-03) affd. 875 So. 2d 572 (Fla. 2004), Contra to old problematic case of Whipple v. State. 789 So.2d 1132 (4th DCA 2001). Even on an infraction, court may revoke the d.l. pursuant to 316.655(2) for the safety of the public, even where 27 withhold adjudications (and other stronger sanctions) did not deter recalcitrant driver to obey safety laws. State v. Biagetti 10 Flw Supp 741b (Palm Beach, 7-11-03). Nichole Stoletz was found not guilty in Manatee County for DUI manslaughter, but found guilty of plain DUI and felony DWLS, then was given a lifetime revocation. She complained that 322.28(2)a)2 only permits a 5 year revocation as a more specific sanction for DUI than the broad discretion of the court under 316.655(2) to revoke the d.l. for any 316 violation. Although the court should apply the narrow, more specific DUI penalty, it permits a suspension longer than the minimum 5 years (including lifetime revocation) and when there is another 316 violation, the court has discretion to revoke permanently. Stoletz v. State, 2875 So.2d 572 (Fla. 5-20-04), overturning Whipple v. State 789 So.2d 1132 (4th DCA 2001). SENTENCING ENHANCEMENT: D atty not obligated to inform D that a subsequent offense may be enhanced, and such an uninformed plea is not "involuntary." This is distinguished from deportation, gain time, etc. as this relates to future recidivism. Rhodes v. State, 22 FLW D2528 (3d DCA 11-5-97). SENTENCING: DEFEDANT LIED: Judge may not consider his opinion that defendant lied in imposing the sentence. Miles v. State, 7 FLW Supp 506 (Palm Beach Co. 2000). SENTENCING: FELONY DUI: Court may not suspend any portion of the sentencing guidelines on a felony DUI (4th offense) to impose a long drug offender probation. State v. Line, 22 FLW D1863 (4th DCA 1997). SENTENCING: FELONIES: PRISON RELEASE REOFFENDER ACT: Eff. May 30, 1997 F.S. 775.082 Provides for sentence of maximum allowed by statute for new offenses committed within 3 years of prison release. SAO must seek the penalty and must give written reasons for deviation. F.S. 948.061(1) permits LEO to arrest for violation of condition of probation or c.ctl. SENTENCING: GENERAL CONDITIONS OF PROBATION: General conditions, i.e. random alcohol testing need not relate to D's crime or conduct, as special conditions require. Brock v. State, 22 FLW S60 (Fla. 2-6-97). However, the Court has discretion to determine which general conditions apply to a probationary order, per FS 948.03(1). If the court fails to do so either orally, at the time of pronouncement, or later, with a timely, written order, then the probationer may not be VOPd even for new crimes and intentionally doing nothing with probation. Jones v. State, 29 FLW D 1460 (1st DCA 6-18-04). Special conditions of probation must also be orally pronounced. 29 FLW D1797 (5th DCA 8-6-04). SENTENCING: GEOGRAPHIC DISPLACEMENT: Not unconstitutional to displace prostitutes from venue of hooking as cond. of probation for rehab. Dietz v. State, 99-0566-CA-01 (Judge Briggs) Woods v. State 99-3872-CA-01 (Sarasota, Logalbo per Dakan,J.11-11-99). SENTENCING: ILLEGAL SENTENCE: COURT MAY CORRECT: If original sentence was less than the mandatory sentence, the court may correct same. Allen v. State, 28 FLW D2045 (5th DCA 8-29-03). This is contra to some arguments, per 3.800 that any amendment of the sentence must always be for the benefit of the defendant. SENTENCING: PROBATION: REFUSING TO ADMIT ACT: D, rejected from sex treatment for failure to admit wrongdoing cannot be VOP'd as not willful violation. Bennett v. State, 21 FLW D2594 (2d DCA 12-4-96). SENTENCING: SUSPENDED SENTENCE: If D. bargains for a "suspended sentence" Court must impose the sentence upon a VOP. State v. Wheeler, 25 FLW D1017 (3d DCA 4-26-00). SENTENCING: VINDICTIVE: Not vindictive to ask for more prison after trial than pre-trial offer. Batista v. State, 685 So.2d 20 (3d DCA 1996); rev.den 695 So.2d 698 (Fla. 1997). Vindictiveness is not per se shown, even if court made a lower pre-trial offer. Gardner v. State, 699 So.2d 798 (4th DCA 1997); rev.den. 7-7 So.2d 1124 (Fla. 1998). Mere fact of more jail after trial is not per se vindictive for election of trial, as D must prove actual vindictiveness. Edwards v. State, 712 So.2d 407 (5th DCA 1998); Wallen v. State, 6 FLW Supp 109 (5th Cir. Marion Co. 1998). If the Court becomes involved in sentence negotiations, a longer post-trial sentence is presumed vindictive. Presumption is overcome only if the record affirmatively demonstrates that the defendant's insistence on trial was given no consideration at sentencing. McDonald v. State, 24 FLW D795 (2d DCA 1999). If judge suggests what sentence will likely be, he created a presumptive sentence from which D must be permitted to w/draw plea w/o bargain by judge. Byrd v. State, 25 FLW D2647)5th DCA 11-9-00) SENTENCING: WITHOLD PRIORS: Prior crime where D plead guilty scores as a prior conviction, but if D plead nolo and w/h, the crime does not score on guidelines. Batchelor v. State, 729 So.2d 956 (1st DCA 1999); State v. Freeman, Case No. 2D99-3076 (2d DCA 9-22-00). SEVERENCE OF COUNTS: If counts are inextricably intertwined, they are not only subject to Williams Rule admissibility, but would be error to sever from trial. State v. Rambaran, 32 FLW 2582a (Fla. 3d DCA 2007). But, if not so related that it would qualify for Williams Rule, the joinder may be error. McNabb v. State, 32 FLW D2677a (Fla. 1st DCA 2007). SEXUAL BATTERY: BREASTS ARE SEXUAL ORGANS: Kissing and fondling breasts of child under 16 scores as contact points as the female breasts are sexual organs. Dicta indicate that this act may constitute sexual battery. Kitts v. State, 24 FLW D2144 (5th DCA 1999), but See, contra. Reyes v. State, 709 So.2d 181 (5th DCA 1998). SEXUAL PREDITOR: 775.21 ASA must present to court at sentencing an order determining D a sexual predator and send this order to FDLE if offense is capitol or 1st PBL or if 2d F and D has prior similar offense. SOLICITING ON STATE HIGHWAYS: F.S. 316.2055 was held both too broad, and not narrowly tailored to meet state interests, and was impermissibly vague as to terms advertising or soliciting materials. Bischoff v. State, 242 F.Supp.2d 1226 (MD Fla. Jan.3,2003). Therefore this statute may not be used to prosecute the solicitors along state roadways. F.S. 337.406 similarly prohibits the use of state roadways and appendages from interfering with the safe and efficient movement of people and property from place to place on the transportation facility b y distribution or sale or display or solicitation for free distribution or sale or the display of advertising of any sort. That statute had also been overturned as being too broad and not narrowly tailored in News and Sun-Sentinel Company v. Cox, 702 F.Supp.891 (SD Fla. 1988). However, that statute has since been amended in 88-168; 9, ch. 90-227; 43 ch. 95-257, and 10, ch. 2005-281. So, is this section now constitutional for LEO to charge the persons who advertise, Will work for food, Broke, hungry, disabled, need money type of bums? SPEEDY FILE: 40 DAY RELEASE: If court or D. fails to file motion seeking ROR prior to 40 days, but files later, then, before hearing SAO files info. D not entitled to ROR. Ford v. Campbell, 22 FLW D2004 (1s DCA 8-19-97). SPEEDY TRIAL: AMENDING INFORMATION: State may amend information after speedy trial, but may not add a new charge that is barred by statute of limitations and speedy trial after s/t time has run. Blanche v. State, 24 FLW D2559 (2d DCA 1999). However, State may nolle and refile after s.t. if D had already waived speedy trial. State v. Gibson, 26 FLW D1010a (5th DCA 01). SPEEDY TRIAL: Continuance of case beyond speedy trial under exceptional circumstances can occur during the 15 day window, where, i.e. lead prosecutor has surgery. Brown v. State, 23 FLW S266 (Fla. 5-15-98). A violation of either the 5 or 10 day rule is harmless so long as defendant is brought to trial within the 15 day window. State v. Salzero, 23 FLW S359 ( Fla. 6/18/98); Poirier v. State, 23 FLW D2359 (4th DCA 1998). As of June 1998, the speedy trial rule does not apply to criminal contempt of court, even where D was arrested for criminal violation of the injunction and prosecutor requests the court to proceed on contempt instead. Burk v. Washington, 23 FLW S314 (Fla. 6/12/98). Asking first question of sworn panel of jurors terminates speedy trial tolling. State v. Eidem, 5 FLW Supp 840 (Dade 6/98). Felony information that consolidates misdemeanor charges must be filed prior to date of expiration of 90 day misd. S/t rule or misdemeanor charges are subject to dismissal. Alvarez v. State, 26 FLW D1925 (4th DCA 8-8-01). SPEEDY TRIAL: INFO. FILED, BUT ARREST AFTER: If defendant is arrested on a DUI, then case nolled, then SAO files information and obtains arrest warrant within speedy trial time, but fails to notify or arrest defendant within speedy trial time, defendant is entitled to discharge without the 15 day recapture window. Cordero v. State, 686 So. 2d 737 (3d DCA 1997); State v. Morris, 662 So. 2d 378 (4th DCA 1995); State v. Wells, 29 FLW D1914 (4th DCA 8-18-04). Diaz v. State, 627 So.2d 125 (Fla. 5th DCA 1993) held that where the case was "no actioned" then filed and defendant was arrested within the speedy trial period was denied a discharge, but subject to the recapture window period. In State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995), the case was nol prossed, then refiled within speedy trial demand period and defendant remained at his listed residence and received notice of the new prosecution. However, the record did not reflect that he was noticed prior to expiration of speedy trial demand period, therefore he was entitled to automatic discharge, due to availability. In State v. Gantt, 688 So.2d 1012 (Fla. 3d DCA 1997) defendant was charged within the speedy trial period and notice was sent to his last known address. However, since Defendant was in prison at the time of this notice, he was available, and was subject to automatic discharge. In Gantt the concurring Judge noted that the state did not raise the "notification argument in the trial court and did not request an evidentiary hearing to determine whether notice was received by defendant." In Fyman v. State, 450 So.2d 1250 (2d DCA 1984). D is not required to notice clerk of new address after charge declined, and if subsequently filed prior to s/t, but no service of summons or capias on D, then D is still not "unavailable" as he has not missed any court that he was summoned to appear. Note: Fyman is pre-1985 changes to s/t rule that enable the recapture window. Another, pre-recapture case did permit prosecution where murder case was nolle'd, then refiled, but LEO, with due diligence, were unable to locate D, he was held unavailable and speedy trial limit was properly extended prior to expiration of s/t. Johnson v. State, 463 So.2d 514 (1st DCA, Feb. 12, 1985). Another diligent search case "enlarged" s/t window; State ex.rel. Green v. Patterson, 279 So.2d 362 (2d DCA 1973). However, after the 1980 change of F.S. 3.191(k) unavailability is now defined as missing trial or not being ready, not merely being unable to locate. Therefore, SAO should file and serve prior to s/t under this definition. If D cannot be located, State should move to extend s/t due to D's unavailability to serve D. See Johnson. If D appears in court on a charge (or waives appearance at arraignment) then fails to appear, the capias need not be served w/in statute of limitations because its not a process issued on the information but due to Ds failure to appear. Young v. State, 26 FLW D1298 (1st DCA 6-1-01). Ds claim of s.o.l. not valid, even though 10 year delay in arresting D, when D FTA at his PTC and b.w. issued early in prosecution. State v. Martinez, 26 FLW D1664a (2d DCA 01). State does not have to show a diligent effort to apprehend defendant if he is arrested, an information is filed, then defendant bench warrants. State v. Parks, 29 FLW D454a (2nd DCA 2002). In Howell v. State, 418 So.2d 1164 (Fla. 1st DCA 1982) held that if the defendant is charged, but not arrested until after the expiration of the statute of limitations, then the defendant must plead and show actual prejudice in the delay before the burden passes to the state to establish that the delay was not undue, but necessary. SPEEDY TRIAL: CALCULATION: Rule 3.191(p)(3) requires D. be brought to trial within 10 days of "window" hearing, not within 15 days of notice. Salzero v. State, 22 FLW D1665 (3d DCA 7-9-97). Information filed on the 90th day vs. 89th day is still timely no speedy trial dismissal. State v. Meza, FLW (3d DCA 8-6-97). If D is arrested for misdemeanors and pills found incidental to arrest, the subsequent Poss. Drugs speedy trial does not begin to run from the date of the misdemeanor unrelated arrest, even from same episode. Shearlin v. State, 25 FLW D934 (2d DCA 00). Speedy trial does not begin if UTC written, but not issued or "summons to be sent." Fothergill v. State, 25 FLW D836 (5th DCA 00). If arrested, s/t starts, as there is no such thing as an "unarrest." Williams v. State, 25 FLW D1165 (5th DCA 00). If D is only on a detainer or hold placed in other county, s/t does not begin until arrested on this charge. Adams v. State, 26 FLW D596 (4th DCA 01). However, D is entitled to credit for time served during detainer. Bryant v. State, 27 FLW D693 (2d DCA 01). 15 day calculation does not include the date of notice of expiration of s/t. Armas v. State, 27 FLW D585a (3d DCA 02). State v. Garza, 27 FLW D454 (2d DCA 2002) Speedy trial time began to run when defendant was returned to by federal authorities to jurisdiction of Florida court. No merit to claim that speedy trial time began to run when Florida placed detainer on defendant while he was in federal custody. Error to grant discharge. Speedy trial ends when jury selection begins, even if 13 day delay from starting voir dire until continuing voir dire, unless D is actually prejudiced. Holmes v. State, 29 FLW D2114 (3rd DCA 9-22-04). Must go to trial w/in 15 days of motion, not just w/in 10 days of hearing. Wenger v. State, 11 FLW Supp 891b (17th Cir. Broward, 2004); State v. Salzero, 714 So.2d 445 (Fla. 1988); Williams v. State, 862 So.2d 863 (4th DCA 2003), contra to State v. McFarland, 747 So.2d 481 (5th DCA 2000). SPEEDY TRIAL: NOTICE: D must file notice of expiration of speedy trial to be entitled to a discharge. Sterling v. State, 24 FLW D691 (1st DCA 1999). If D files notice, then State gives timely Williams Rule notice, then lists witnesses, discharge may be appropriate if witnesses were not timely disclosed under discovery rule. Alvarez v. State, 24 FLW D773 (3d DCA 1999). SPEEDY TRIAL: NOLLE AND REFILE: ASA may nolle and refile if court refuses to give continuance\ due to absent witness for state. Court may not dismiss the case upon refiling within speedy trial. State v. Underkofler, 5 FLW Supp 61 (20th Cir, Lee, 8-20-97; State v. Padron, 506 So. 2d 462 (2d DCA 1987). May also nolle and refile after waiver of speedy trial by motion to continue (not toll s.t.). Runyon v. State, 24 FLW D2393 (4th DCA 1999). State may even file a felony information, then after 90 days but less than 180 days, D moves for continuance, state may file a related misdemeanor w/o s/t discharge. Stewart v. State, 491 So.2d 271 (Fla.1986). However, state may not add misd. to felony info after 90 days if no s.t. waiver. Goldman v. State, 645 So.2d 1089 (4th DCA 1994). In any event the State must file the information prior to the expiration of s/t. Failure to do so does not give the State the 15 day window after s/t runs. Williams v. State, 26 FLW S485 (Fla. 7-13-01). SPEEDY TRIAL: WAIVER BY D. CONTINUANCE: If D requests continuance due to insuff. time to prep, absent state misconduct, inexcusable delay in providing discovery or violation of D's discovery rights, waives speedy trial. Banks v. State, 691 So.2d 490 (4th DCA 2-19-97). If D requests a 30 day continuance, speedy trial extended to permit state to file additional charges within that 30 days. State v. Wilson, 690 so. 2d 1361 (2d DCA 4-2-97). Once defendant waives s.t. for any offense out of transaction, the right is waived, even if more charges or more serious charges are added from same transaction. Atkins v. State, 26 Flw D1246 (4th DCA 5-16-01). If state is tardy w/ discovery, causing D to forfeit s/t rights, case may be dismissed if continuance is charged to the state. Von Walder v. State, 28 Flw D2804 (5th DCA 2003). However, no Hobsons choice where state files information near end of s/t period and D must elect between discovery and continuance. See, State v. Gillman, 29 FLW D1621 (2nd DCA 7-9-04). SPEEDY TRIAL: WAIVER: BONA FIDE DESIRE TO GO TO TRIAL: If D files a notice of expiration, but leaves town and is not present at the trial date, the court should strike the notice of expiration when the court calls the case for trial. Goodrich v. State, 27 FLW D2392 (3d DCA 11-6-02). STALKING: "JENNIFER ACT": SB 198, eff. Oct 1, 1999 makes misdemeanor stalking of a victim under 16, a felony. Amending 784.048. STALKING: EXCLUDES LEGITIMATE ACTS: Defendants conduct of making 40 public records requests against the victim (who had an injunction) and making numerous complaints against the victim with various governmental agencies, still had a legitimate purpose, and could not establish stalking. Although here, the Court said, Currys conduct in this case was clearly knowing, willful, and repeated - and it may even thought by some as weird and obsessive, with more than a tinge of spite to it - but it did not qualify as a violation of the anti-stalking statute. Curry v. State, 27 FLW D485a (4th DCA 2002). STANDING: VAGUENESS: If D's conduct clearly falls within prohibited conduct, D lacks standing to challenge unconstitutional vagueness. Gabbard v. State, 24 FLW D2194 (4th DCA 1999). STANDING: PLEADINGS: PRODUCTION OF EVIDENCE: The burden is on the defendant to show standing. The defendant is put to his burden by the State's assertion to the court that the defendant lacks standing. Salvucci, 448 U.S. 83 (1980); Alderman v. U.S., 394 U.S. 165 (1969); Jones v. State, 648 So.2d 669 (Fla. 1994), cert. denied, 515 U.S. 1147 (1995); State v. Setzler, 667 So.2d 345 (Fla. 1st DCA 1995). ADVANCE \d4To satisfy his burden, a defendant must present evidence before the State need go forward. He must even take the stand himself if he has no other witness to show his standing. Buchanan, 432 So.2d 147 (Fla. 1st DCA 1983); Palmer, 448 So.2d 55 (Fla. 5th DCA 1984); Herman, 396 So.2d 222 (Fla. 4th DCA 1982). Some minimum showing is necessary before the burden shifts to the State. Griese, 5 Fla. L. Weekly Supp. 137 (9th Jud. Cir. November 3, 1997) STARE DECISES: "Law of the case" can be reversed whenever the grounds upon which the original decision is based has changed. State v. Owen, 22 FLW S246 (Fla. 5-8-97). "...although we must have stability in legal precedent to respect the rule of law, we must never fear confrontation with precedent when the factual underpinnings fo such precedent lack validity..." Provenzano v. State, 24 FLW S314 (Justice Lewis and Pariente, re. "Old Sparky"). Generally, a ruling by a superior court controls the same and lower courts to establish certainty, predictability and avoid needless expenditure of litigant and judicial resources. Wood v. Fraser, 677 So.2d 15 (2d DCA 1996). The lower courts are bound to the rulings of the higher court when considering similar issues even though the lower court might believe the law should be otherwise. Putnam Co. v. Debose, 667 so.2d 447, 449 (1st DCA 1996). STATE ATTORNEY: SUBPOENA: CONTEMPT: SA subpoena grants derivative use immunity, F.S. 27.04. Other jurisdictions may not disregard grant. Def. is in contempt to refuse to testify, even upon claim that other jurisdictions may not respect grant. Costello v. Fennelly, 21 FLW D2335 (4th DCA 10-30-96). See 914.04 re. immunity? STATE ATTORNEY: SUBPOENA: INVESTIGATIVE: For attorneys bank records, State did not have obligation to demonstrate relevance and materiality before getting subpoena issued as such would unreasonably impede the States ability to investigate. State v. Investigation, 26 FLW D1667a, (2d DCA 2001). STATE ATTORNEY: WORK PRODUCT PRIVILEGE: Unwritten, unrecorded witness statements to Assistant State Attorney are work product, not subject to discovery. State v. Rabin, 495 So. 2d 257 n.4 (3d DCA 1986). Such disclosure would seriously impede criminal prosecutions. Egan v. DeManio, 294 So. 2d 639 (Fla. 1974); Horning-Keating v. State, 2001 WL 108754 (5th DCA 2001). Only the written or recorded witness statements are subject to Rule 3.220(b)(1)(B) as it is the preserved statement by itself, not the personal recollection of the state attorney present at the time, that may be used for purposes of impeachment. Olson v. State, 705 So. 2d 687 (5th DCA 1998). Handwritten notes by ASA are usually undiscoverable work product. See, Patton v. State, 2000 WL 1424526 (Fla. 2000). Opposing counsel may not be deposed absent extraordinary circumstances, argued in open court. State v. Donaldson, 25 FLW D1472 (3d DCA 00). STATEMENTS OF PARTICULARS: "It is not necessary that the exact date of the offense be alleged in an information if that date is not known. It is sufficient to allege that the offense occurred within stated specific time limits." State v. Jones, 539 So.2d 535, 537 (3d DCA 1989). See also: Alonso v. State, 834 So.2d 885 (3d DCA 2002). Defendant is entitled to a statement of particulars when the information fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. Fla.R.Crim.P.3.140(n). State v. Sutton, 416 So.2d 852 (1st DCA 1982). STATUTE OF LIMITATIONS / DILLIGENT EFFORT ON CAPIAS REQUIRED, BUT NO EFFORT REQUIRED IF DEFENDANT ABSCONDED: State has burden to proving diligent effort to find D on a capias during tolling of statute of limitations or prosecution barred. Newman v. State, 23 FLW D544 (1st DCA 2-19-98); State v. Flores, 6 FLW Supp 784 (12th Cir. Manatee, McMillan 1999). Max term is 5 years anyway. Seymour v. State, 2d (2d DCA 99). State may refile an information that is a continuation of a prior information w/o violating statute of limitations. Amos v. State, 23 FLW D1156 (2d DCA '98). If D appears in court on a charge (or waives appearance at arraignment) then fails to appear, the capias need not be served w/in statute of limitations because its not a process issued on the information but due to Ds failure to appear. Young v. State, 26 FLW D1298 (1st DCA 6-1-01). Ds claim of s.o.l. not valid, even though 10 year delay in arresting D, when D FTA at his PTC and b.w. issued early in prosecution. State v. Martinez, 26 FLW D1664a (2d DCA 01). State does not have to show a diligent effort to apprehend defendant if he is arrested, an information is filed, then defendant bench warrants. State v. Parks, 29 FLW D454a (2nd DCA 2002). In Howell v. State, 418 So.2d 1164 (Fla. 1st DCA 1982) held that if the defendant is charged, but not arrested until after the expiration of the statute of limitations, then the defendant must plead and show actual prejudice in the delay before the burden passes to the state to establish that the delay was not undue, but necessary. STATUTORY INTERPRETATION: ABSURD RESULTS: FS 775.021 requires strict construction of criminal statutes. However, they are not to be construed so strictly as to emasculate the statute and defeat the obvious intent of the legislature. In other words, such strict construction is subordinate to the rule that the intention of the lawmakers must be given effect. See St. Surin v. State, 745 So.2d 514 (3d DCA 1999). The Judiciary should avoid interpreting a statute in a manner that ascribes to the legislature an intent to create an absurd result. See, Carnes v. State, 725 So.2d 417 (2d DCA 1999). See also, George v. State, 203 So.2d 173 (2d DCA 1967); and Dorsey v. State, 402 So.2d 1178 (Fla. 1981). State v. Erlenmeyer, Case No. 99-2932T (Manatee County, Farrance, 2000). "This is perhaps an appropriate case in which to remind ourselves of Learned Hand's famous observation that a 'mature and developed jurisprudence' does not 'make a fortress out of the dictionary.'" Cabell v. Markhan, 148 F.2d 737, 739 (2d Cir. 1945). "This literal requirement of the statute exalts form over substance to the detriment of public policy, and such a result is clearly absurd." "However, it is clear to me that any construction of a statute which renders absurd and unintended results is to be avoided at all costs. 'Undoubtedly penal statutes must be strictly construed. However, they must not be construed so strictly as to emasculate the statute and defeat the obvious intention of the legislature.'" Martin v. State, 367 So.2d 1119 (1st DCA 1979). "...there is no requirement that such a literal interpretation of the statute be utilized when that interpretation reaches an absurd result." Parker v. State, 406 So.2d 1089 (Fla. 1981); State v. Webb, 398 So.2d 820 (Fla. 1981). cited in State v. Brigham, 694 So.2d 793 (2d DCA 1997). Consider this argument re. literal interpretation of a statute (or even caselaw dicta). Courts may depart from the literal meaning of a statute when such literal interpretation would lead to an illogical result or one not intended by the Legislature. Parker v. State, 406 so.2d 1089 (Fla. 1981); Fudge v. State, 26 FLW D1849 (5th DCA 2001); and State Farm v. Link, 416 So.2d 875 (5th DCA 1`982) (courts should not construe a statute in such a manner as to reach an illogical or ineffective conclusion). Courts are prohibited from strictly construing a law so as to produce and absurd result. State v. Webb, 398 So.2d 820 (Fla. 1981). (It is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute. Furthermore, construction of a statute which would lead to an absurd or unreasonable result or would render a statute purposeless should be avoided. To determine legislative intent, we must consider the act as a whole the evil to be corrected, the language of the act, including its title, the history of its enactment, and the state of the law already in existence bearing on the subject.) See lots of good law and analysis re. State v. Bodden, 29 FLW S153 (Fla. 4-15-04) re legislative intent is the polestar, that is derived from the language of the statute, 1st look at actual language; punctuation; must give reasonable construction; read in pari materia; not mere surplusage; intent by subsequent amendment; DUI n/a to protection. No literal interpretation should be given that leads to an unreasonable or ridiculous conclusion: State v. Sullivan, 116 So.2sd 255, 261 (Fla 1928); State v. Burris, 875 So.2d 408, 414 (Fla. 2004); Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984); Maddox v. State, 31 Fla.L. Weekly S24a (Fla. Jan. 12, 2006); State v. Calderon, 32 FLW D808 (Fla. 3d DCA 3-28-07); ` Absurdity Doctrine , 116 Harv.L.Rev. 2387, 2389 (2003), does not permit the intent of the lawmaker to be controlled by the strict letter of the law, when the latter would lead to palpable injustice, contradiction and absurdity. See, White v. Camp, 1 Fla. 94, 109 (Fla. 1846). STOP AND FRISK: CITIZEN INFORMANT: An identifiable citizen's tip need not be corroborated, as the tip is presumed reliable. Agullar v. State, 22 FLW D2205 (4th DCA 9-17-97). An identified citizen's tip, where LEO does nothing to confirm i.d. of caller, converts the tip to an anonymous informant, requiring corroboration prior to the stop. Johnson v. State, 24 FLW D2263 (2d DCA 1999). But if citizen informant saw police face to face, and officer did not get citizen i.d. it is a citizen informant, not anonymous. Carattini v. State, 26 FLW D175 (5th DCA 01). Store clerk report of carrying firearm and selling drugs is citizen informant. State v. Manuel, 26 FLW D2214b(4th DCA 9-12-01). STOP AND FRISK: ENCOUNTER: Encounter where LEO asks for ID does not convert into a stop unless intrusion extensive, even if D waited while LEO ran warrants check on ID. Fields v. State, Fax Mail#1009 (4th DCA 12/30/98). Encounter turns into a stop upon a frisk. If frisk reveals a baggie, but not clearly drugs = suppression. Hines v. State, 24 FLW D1672 (1st DCA 99). STOP AND FRISK: FRESH PURSUIT: Pursuit begins when LEO has reasonable suspicion of crime (within jurisdiction) and goes after D, not when LEO turns on blue lights (outside of jurisdiction). State v. Wolfe, 5 FLW Supp 417 (Orange Co. 2/12/98). LEO may not pursue into D's house on misdemeanor without a warrant. State v, Majewski, 5 FLW Supp. 440 (Flagler, 2/19/98). STOP & FRISK: P.C: If LEO has p.c. to arrest for any crime, the arrest and search is lawful, even if no p.c. for the crime charged. The fact that LEO had no intent to arrest for the lawful charge is not relevant. State v. Roux, fax mail op#11046 (5th DCA 11-14-97). STOP AND FRISK: PROTECTIVE SEARCH: A "protective patdown" after investigatory stop is only permissive if LEO has p.c. that D is an armed threat. Hunt v. State (2d DCA 10-3-97). LEO merely feeling uncomfortable that D is approaching LEO from D's car is insufficient reasonable suspicion to pat down "in the light of common sense and ordinary human experience." Mayle v. State, 6 FLW Supp 331 (20th Cir. 1999); State v. Burns 698 So.2d 1282 (5th DCA 1997); King v. State, 696 So.2d 860 (2d DCA 1997). STOP AND FRISK: REASONABLE SUSPICION: FLIGHT: If D sees a police car and takes flight, is sufficient to stop. Illinois v. Wardlow, 98-1036 (1-12-00). Following Wardlow, if some of group takes flight, D stays, but hides behind another and conceals his hands, his conduct is like flight and may be detained. Copeland v. State, 25 FLW D875 (2d DCA 2000). STOP AND FRISK: STANDING: Passenger of car has standing to challenge the stop. Torres v. State, 23 FLW D 931 (2d DCA 4-8-98), but not of the search of the car, unless passenger has privacy interests in the vehicle. Graham v. State, 23 FLW D1721 (1st DCA 1998). Police must have reasonable suspicion to cause the passenger to remain, otherwise, passenger's flight is not RAWOV. DM v. State, 681 So. 2d 797 (Fla.2d DCA 1996). But see, RH v. State, 25 FLW D1650 (5th DCA 2000) where passengers' flight from moving car = obstruction. LEO may order the driver or the passenger out of the car. State v. Wikso, 24 FLW D1464 (4th DCA 1999). STOP OF VEHICLE: DL SUSPENDED: When LEO runs a computer check and determines that the registered owner has a suspended d.l. he has a reasonable suspicion to stop and inquire. State v. Townsend, 13 FLW Supp 44b (13th Cir. Hillsborough, Fuente, J. May 18, 2005); See, Smith v. State, 574 So.2d 300 (5th DCA 1991). However, if the officers reasonable suspicion is overcome with observations, i.e. the computer reported the owner is a female with a suspension, but before the officer got to the driver, it was observed that the driver was a male. At that point there was no reasonable suspicion that the drivers license was suspended. Fernandez v. State, 31 FLW D140e (1st DCA 1-6-06). DHSMV is a law enf. agency for exclusionary rule purposes, i.e. bad info re. DWLS subjects the fruits of stop to suppression because any computer error precipitated by government carelessness must result in suppression, as arrest for same is repugnant to principles of a free society. Shadler v. State 761 So.2d 279 (Fla. 1/7/00). Mistake of law cannot provide reasonable suspicion or p.c. to stop for infraction, even if the officer reasonably believed the ordinance required something that it didnt. U.S. v. Chanthasouxat, fax mail op # 8039 (11th Cir. 8-22-03). Computer information that erroneously listed the registration to another vehicle cannot support a p.c. stop, and drugs found subsequent to unlawful stop are suppressed. State v. Murphy, 739 So.2d 112 (2nd DCA 2001). If LEO thinks tag is invalid, but learns after the stop that its good, the stop is illegal, but LEO may still approach D to inform him of the erroneous stop. State v. Diaz, 850 So.2d 435 (Fla. May 15, 2003). SUBPOENA: Rule 3.361 requires witnesses in criminal trial to remain in attendance until excused by the court or both parties or = contempt. SUBPOENA DUCES TECUM: Defense may now issue subpoena duces tecum, subject to state's objection and court's order to quash. Eff. 12-3-98 Rule 3.361. SUPERCEDEAS BOND: SPECIAL CONDITIONS: Although a defendant may be entitled to a supercedeas bond, pending a misdemeanor appeal, per Rule 3.691(a), Article I, Section 14 of Fla. Constitution and FS 924.06 permits proper additional bond conditions designed to Areasonably protect the community from risk of harm etc. Therefore, the court may stay the probationary sentence, but still require special conditions of bond, including restricted driving, DUI schools, consume no alcohol, and attend AA or NA weekly, etc. See, State v. Knopp, 11 FLW Supp 365b (18th Cir, Brevard, 1-11-04). SUNSHINE LAW: Trial prep notes and materials are not public records but litigation records such as interoffice memos are public record. Johnson v. Butterworth, (Fla. 7/9/98). SUPPRESSION: MOTION: LEGAL SUFFICIENCY: Court should grant a hearing on the motion to suppress unless the court finds under Fla.R.Crim.P. 3.190(h) that the motion was not legally sufficient. If it is not, the motion shall be denied. Pena v. State, 6 FLW Supp 674 (Fla. 11th Cir. Dade Co. 1999). SUPPRESSION: LEGAL SUFFICIENCY: BOILERPLATE MOTIONS TO SUPPRESS ARE INSUFFICIENT: A motion to suppress MUST clearly state the evidence sought to be suppressed, the legal reasons for the suppression and a general statement of facts to support the motion. Otherwise it should be dismissed (stricken) not just denied. State v. Hernandez, 27 FLW D2568 (3d DCA 11-27-02). Also, ASA should check under legal authority for the motions, i.e. what Fla.R.Cr.P. it is based upon. Some judges are letting defense attorneys fix the defects at the hearing and not giving the ASA time to prep for the fix of the deficient motion. ASAs should not have to do this, but should be over prepared to understand this will happen as the judge evens the playing field. SUPPRESSION MOTION: TIMELINESS: Should be pre-trial, but if at trial court should: 1 hear the notion, then reserve ruling; 2) let case go to jury, if acquitted no action; 3) if convicted, consider the motion post-trial as a renewed JOA or motion for new trial to permit State fair opportunity to appeal. State v. Gaines, 25 FLW S987 (Fla. 11-2-00). If opportunity to raise pre-trial motion to suppress, but not raised until during trial, the motion should be denied. Rios v. State, 26 FLW D2014b (5th DCA 2001). Tardy motion may be denied if in violation of courts order to hear pre-trial and intended to cause a delay in trial or frustrate the subpoenaed witnesses for the State. Powell v. State and Baten v. State, 717 So.2d 1050 ((5th DCA 1998). State loses right to appeal if suppression is filed pre-trial and heard after jury sworn unless mistrial granted with defendants agreement. State v. Livingston, 681 So.2d 762 (2d DCA 1996, from Sarasota Co.). THEFT OF GAS: Drive off convictions now require 6 month d.l. suspension for 1st time or 1 year suspension for subsequent acts, eff 7-1-99. F.S. 812.014. THEFT: ENHANCED THEFTS MUST SHOW ACTUAL PROOF OF VALUE: A mere estimate of value by approximation without testimony of the condition of the property and the basis of determination of value, even by a competent victim, with no other proof of value is subject to JOA, as to theft > $100, or grand theft > $300. Sellers v. State, 28 FLW D673 (1st DCA 3-4-03). TRAFFIC: EXPIRED REGISTRATION: To be criminal, now must be expired > 6 months and have prior offense to = criminal misdemeanor under 320.07(3)c. THEFT: INTENT: Must show intent at the time of asportation. If D later forms intent it is insufficient for criminal theft. Hayward v. State, 25 FLW D74 (2d DCA 1999). The specific intent to steal (animo furandi) is required to prove for theft. Therefore, if D has good faith belief in right to possess = valid defense, but that belief is not a defense to robbery. Bartlett v. State, 25 FLW D1894 (1st DCA 8-7-00). It is a defense to intent to steal if the defendant had a good faith belief of a right to possess, not just a legal ownership interest. Alfaro v. State, 27 FLW D2124 (4th DCA 9-25-02). It is not proof of intent merely by proof that contractor got $ and did not perform the contract, and here, JOA should be granted due to no evidence of intent to even submit to the jury. Benitez v. State, 28 FLW D1938 (3d DCA 8-20-03). The intent is required at the time of the taking for most forms of theft, like larceny, false pretenses. See, Szilagyi v. State, 564 So.2d 644 (4th DCA 1990); Crawford v. State, 453 So.2d 1139, 1142 (2nd DCA 1984); and Adams v. State, 443 So.2d 1003, 10060-07 (2nd DCA 1983). However, for embezzlement type cases, like fencing, the intent may be formed at the time of the conversion, after the rightful owner demands its return and the possession is not relinquished. State v. Siegel, 778 So.2d 426 (holding that a computer belonging to a university that was loaned to a student must be returned or the conversion = theft). This may be helpful in Arent to own cases where the buyer/renter has made nearly no effort to pay and clearly refused to return the property with no excuse (like it was stolen or broken, I was in jail, I lost my job, I gave the jewelry to my fianc, who broke up w/ me, etc. etc.) However, generally, since civil conversion gives the owner the right to treble damages and costs, the use of the criminal justice system as the free collection agency, through probation, is not the legislative intent, which is why F.S. 812.55(7) specifically excludes Arent to own agreements as failure to return rental property. The fact that some companies prey upon the poor and uncreditworthy by circumventing the usury statutes, by claiming title in property that is not titled, does not convert this breach of contract into a matter that the SAO should assume as its duty representing the best interests of the state, despite the demands of the lobby and owners of rent to own companies. THEFT: INTENT VS. BREACH OF CONTRACT: Benitez v. State, 852 So.2d 386 (3rd DCA 2003). A promise to perform in the future under contract could establish intent to steal, but the proof of the intent must establish that the specific intent to steal was formed at the time of, or prior to the taking of the property. Iglesias v. State 676 So.2d 75 (3rd DCA 1996): False statements of fact that induce the contract may evince intent to steal of the facts showed knowledge of impossibility of performance. Crawford v. State, 453 So.2d 1139, 1142 (2nd DCA 1984): Contractor, who took $, then later said he would still do the work, though the quality of some work was poor negates criminal intent. Hayward v. State, 746 So.2d 591 (2nd DCA 1999): Obtaining property without paying for it, even if defendant avoids the victim, and promises to pay, but does not do so, is not sufficient evidence of intent to deprive unless it overcomes all reasonable hypotheses of innocence. Stramaglia v. State 603 So.2d 536 (4th DCA 1992) construction contractor who broke promises to pay subcontractors and even avoided them was insufficient to prove intent to deprive, though the defendant breached his contracts with the subcontractors. Evidence of specific intent to steal is insufficient on an alleged bust out of a business where evidence of failure to pay bills or deliver product is similar to legitimate, but failing business enterprise. Szilagyi v. State, 564 So.2d 644 (4th DCA 1990). Taking by good faith, mistake or accident is not theft. Baker v. State 17 Fla 406 (1879). The specific criminal intent must exist at the time of the taking. Adams v. State, 443 So.2d 1003 (2d DCA 1983); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 1966). The mere failure to perform under contract after receiving payment is not sufficient evidence of intent to steal. Redding v. State, 666 So.2d 921 (1st DCA 1995). Specific acts of deception or fraud (of present or past fact) that induces the delivery may serve as sufficient evidence of intent to steal. Bussart v. State, 176 So. 2d 32 (Fla. 1932). But, remember for CONSTRUCTION DOWN PAYMENTS: see F.S. 489.126 where if the contractor takes > 10% of the K price, then does not get the permits in 90 days ir rets $ > the value of the K and does not perform in 90 days WITH THE INTENT TO DEFRAUD or gets 60 days notice and still does not perform in 90 days, GIVES RISE TO AN INFERENCE that the money in excess of the work performed was taken with the intent to defraud. Notice, this is not even a rebutable presumption to establish an intent when there are hundred of rebutable excuses, i.e. downturn in housing / building industry, bad business decisions, lawsuits, bankruptcy, private family or criminal problems or any other excuse to not perform to rebut this inference of intent. THEFT: Theft is a continuing offense. Hankin v. State, 21 FLW D2361 (2d DCA 10-30-96). THEFT: PHOTO SUFFICIENT: Court errs in dismissing case on claim that evidence unavailable when merchant took photo of stolen goods pursuant to Rule 90.91 and reshelved the items. State v. Hyatt, 22 FLW D789 (2d DCA 3-26-97). THEFT / RENTAL-PURCHASE AGREEMENTS: FS 812.55(7) specifically excludes rent to own agreements from the charge of failure to redeliver leased property, unless the renter retains title to the thing, i.e. car title lease. Under those cases, the theft / intent at time of asportation or intent / contract analyses must be made. TRIAL: JOA: Court may not JOA if there is evidence to sustain elements. A conflict in the evidence goes to the jury. Donaldson v. State, 23 FLW S245 (Fla. 4/30/98). TRIAL: JURY SELECTION: Since Rule 3.180(b), effective 1-1-97, a defendant need not be physically at sidebar, so long as he is in the courtroom and confers with counsel re strikes. Anderson v. State, 22 FLW D736 (5th DCA 3-21-97), receding from Boyett v. State, 21 FLW S535 (Fl. 12-5-96) and Coney v. State, 653 So.2d 1009 (Fla. 1995). TRIAL: MISTRIAL: PROSECUTOR MISCONDUCT: If prosecutor repeatedly tells judge and jury that a "witness will testify" that relevant facts occurred, but prosecutor fails to call witness = misconduct. State v. James, 23 FLW D1074 (3d DCA 4/29/98). Prosecutor may not urge jury to show D same sympathy that he showed V. Urbin v. State, 23 FLW S257 (Fla. 5/7/98). TRIAL: OPENING STATEMENTS: Outline evidence, not argument. U.S. v. Dinitz, 424 U.S. 600 (1976). State may make "good faith" opening statement based on the evidence believes will come. Randolph v. State, 556 So.2d 808 (5th DCA 1990). Harmless error will be applied if statement so prejudicial as to vitiate the entire trial and no possibility that error contributed to conviction. Haws v. State, 590 So.2d 1125 (5th DCA 1992); Ricardo v. State, 481 So. 2d 1296 (3d DCA 1986). State may contradict affirmative defenses such as insanity or alibi (if notice not withdrawn) in opening. Occhione v. State, 570 So. 2d 902 (Fla.1990); Jacobs v. State, 600 So.2d 1199 (5th DCA 1992). However, D's comments during opening do not "open door" for State to rebut until challenged by D during trial. TRIAL: SEQUESTRATION: Attorney may speak with witness during testimony during an overnight recess. Nieves v. State, 24 FLW D1611 (5th DCA 99). ASA may not talk with more than one witness in the presence of each other in violation of rule, especially to work as a group to come up w/ ID testimony that did not pre-exist, as such may violate defendants due process and warrant a dismissal of the charge. State v. Herrera, 29 FLW D432 (4th DCA 2004) TRESPASS: AUTO: State must prove that passenger knew car was stolen to prove trespass to auto. P.W. v. State, 24 FLW D1014 (5th DCA 1999). TRESPASS: PUBLIC LICENSEE: Protesters may be excluded from public area of police station if reasonable limit for traffic flow. Adderly v. State, 87 S. Ct. 242, 385 US 39 (1967). A janitor may be authorized to exclude persons from trespassing at public school. State v. Dye, 346 So.2d 538 (Fla. 1977). Group of women conducting consumer inspection of maternity facilities at public hospital may be excluded as not selective enforcement even if hospital staff was being vindictive toward the group. Downer v. State, 375 So.2d 840 (Fla. 1979). Shopping center may not exclude person from mall who is merely exercising free speech to solicit signatures on a petition to run for political office, where mall is otherwise open to the public. Wood v. State, 10 FLW Supp 298b 14th Cir, Bay Co. 2003). TRESPASS: TENANT'S INVITEE: Landlord does not have right to deny entry to persons whom tenant has invited on property, including common areas of housing project. L.D.L. v. State, 569 So. 2d 1310 (1st DCA 1990). Unless the project has lease authorizing LEO to do so, and is a public housing project. See Varns trespassing notebook. TRESPASS: POLICE AS LANDOWNER'S AGENT: Landowner may not pre-authorize all police officers to arrest all persons at place of business. Op. Atty. Gen. 90-8 (1-29-90). Officers may give warning only In Re.B.M, 553 So 2d 714 (4th DCA 1989) unless on public property "housing authority" Fox v. State, 580 So 2d 313 (3d DCA 1991). LEO may order D out of City Park in violation of ordinance, then if D refuses to leave, LEO may arrest for trespassing. State v. Myles, 7 FLW Supp. 735 (Hillsborough Co., Fuente, J. 00). Even if posted at an open business, the communication of warning must be actual and personal to the defendant by a person with authority, not constructive, by the sign in the window. Smith v. State, 778 So.2d 329 (2d DCA 2000). FS 810.08(3) and 810.09(3) authorizes LEO to give the trespass warning, in the case of a threat to public safety or welfare. Does this mean LEO may then make the arrest w/o owners affidavit? Public Housing Authority policy to authorize LEO to serve trespass notices on persons is not facially invalid for over breadth. Virginia v. Hichs, #02-371 US Sup Ct. 2003. TRESPASS AT SCHOOL: ENROLLED STUDENT IS NOT TRESPASSER AT SCHOOL: If the dean of the school gives a trespass warning to an enrolled student, who then does not leave (parents did not arrive to take him away) cannot be a trespasser on the school property since the school also requires a parents permission to be removed from the property. E.W. v. State, 29 FLW D1176 (1st DCA 5-13-04). TRUANCY: SAO may now prosecute truancy as "contributing to delinquency / dependency" without the full predicate of the compulsory attendance statute. CS/HB 751 eff, 6-21-99. VEHICULAR HOMICIDE: Under .08 admissible in veh. hom. trial, along with 70 mph in 30 zone & crossing double lines is suff. for conviction of 2d F. Martinez v. State, 22 FLW D340 (1st DCA 1-29-97). Vehicular Homicide and vessel homicide increases from 3d degree F to 2d degree F, eff 10-1-99 Ch. 99-153. Also if D leaves the scene 1st degree felony. Owner/passenger may be charged as principal to veh. homicide for permitting his car to be driven recklessly. Michel v. State, 25 FLW D152 (5th DCA 1/14/00). VENUE: 2 OR MORE COUNTIES: State may allege 2 or more counties per. Article 1 sec. 16 and choose which to try the case and defendant may waive objection to which county of trial. Leon v. State, 22 FLW D1470 (4th DCA 6-18-97). VENUE: If crime is "continuing" one, it may be prosecuted wherever it began, continued or was completed, but not where no act of an element ever occurred. U.S. v.Cabrales 63 CrL 276 (1998). 1st DCA held (contrary to other DCAs) that car stolen in county A but found defendant driving in county B = jurisdiction in A only as the remaining in or continuous theft is not applicable if it was illegally stolen, only if the person remains and refuses to leave. See Mosley v. State; Case #1D00-3819. (1st DCA, Dec. 2002). VENUE ESTABLISH W/ LANDMARKS: ASA should always establish venue directly. However, if evidence describes sufficient landmarks as to locations familiar to a local jury to establish the venue the liberal rule of venue established by Andrews v. State, 21 Fla. 598, 611 (1885) is sufficient. See, Santos v. State, 11 FLW Supp 535 (11th Cir Dade, 3-30-04). VICTIM'S RIGHTS: SEQUESTRATION: The victim's right to be present for the trial pursuant to Art I ' 16(b) may be overweighed by Defendant's right to a "fair trial" on a hotly contested facts pursuant to 90.616 (sequestration rule). Piascik v. State 5 FLW Supp 221 (20th Cir. 1997); Martinez v. State, 664 So. 2d 1034 (4th DCA 1995). VICTIMS RIGHTS 960.001(7): The victim of a crime, and the State Attorney, with the consent of the victim, have standing to assert the rights of a crime victim which are provided by law or s. 16(b), Art. I of the State Constitution. 960.001(1)(e): A victim or next of kin may not be excluded from any portion of any hearing, trial, or proceeding based solely on the fact that such person is subpoenaed to testify, [i.e. Rule of Sequestration], unless, upon motion, the court determines such person's presence to be prejudicial. 960.001(1)(a): (speedy trial) The right of a victim to a prompt and timely disposition of the case order to minimize the period during which the victim must endure the responsibilities and stress involved to the extent that this right does not interfere with the constitutional rights of the accused. See also: 918.105: "In all criminal prosecutions the state and the defendant shall each have the right to a speedy trial." 960.003: HIV Testing: The victim of a criminal offense which involves the transmission of bodily fluids is entitled to know at the earliest possible opportunity whether the person charged with the offense has tested positive for HIV infection. At victim's request the court shall order the offender to undergo HIV testing. VIDEO TAPES: THERE IS NO DUE PROCESS RIGHT TO BE RECORDED: The U.S. Supreme Court has ruled that law enforcement does not have a constitutional duty to perform any particular tests, only that the state must proceed against the defendant with any evidence it chooses to gather. See, Arizona v. Youngblood, 488 U.S. 51 (1988). Defendant has not alleged any bad faith destruction of exculpatory evidence, merely that the defendant was not videotaped in the first place. [W]hile there is an obligation to preserve recordings once they have been created, there is no general duty to make the recordings in the first place. U.S. v. Arteaga, 807 F.2d 424 (5th Cir. 1986). Relying on this holding, a New Jersey appellate court held that A[t]here is no duty on the part of the police to create evidence by videotaping suspected drunken drivers. Gordon v. New Jersey, 619 A.2d 259 (1992). The Florida courts have specifically ruled that there is no constitutional duty of law enforcement to videotape a DUI suspects field sobriety tests. [T]he Pinellas County Sheriffs Department did not violate the appellees due process rights by not videotaping their field sobriety tests performances. State v. Powers, 555 So.2d 888 (Fla. 2d DCA 1990). On a nearly identical claim as the present case that the department acted in Abad faith by either failing to videotape the suspects or by failing to maintain the video equipment, a lower court ruled that the failure of the police to videotape a DUI suspect does not violate federal or state constitutional due process rights. See, State v. Smiddy, et al., 1 FLW Supp 331d (11th Cir. Dade County 1992). Although the videotaping of a DUI suspect has great value to the trier of fact, and should be encouraged, the Court has no power to compel law enforcement to pay for or utilize this investigative tool. See, e.g., State v. Nordin, 2 FLW Supp 601a (11th Cir. Dade Co. 1994). Loss of videotape of DUI investigation may = dismissal, even if sfst video tape at jail was available. State v. Michael Freglette, FLW Supp 17th Cir. Broward. VIOLATION OF PROBATION: NO ATTY-CLIENT PRIVILEGE: D may not invoke atty-client privilege to prevent State from calling Ds prior attorney on claim that the attorney told D not to appear. Andrade v. State, fax mail op #12027 (3d DCA 12-13-00). VIOLATION OF PROBATION: NO 5TH AMENDMENT RIGHT TO NON-CRIMINAL CONDUCT: ASA may call D to testify at VOP hearing re. technical violations as 5th amendment only protects from testifying against ones self of criminal acts. Perry v. State, 26 FLW D644 (5th DCA 3-2-01). VIOLATION OF PROBATION: NO JAIL PROMISE: If court issues a "no jail, no adjudication" pursuant to F.S. 918.0157, then D VOPs court may not impose jail for the vop. Blankenbaker v. State, 744 So.2d 573 (2d DCA, 1999); Harris v. State, 25 FLW D2843 (4th DCA 12-13-00). Even with such a promise of no jail if D is incarcerated, awaiting trial, D is entitled to a Public Defender anyway. Hardy v. State, Fax mail Op#12045 (3d DCA 12-20-00). VOP: ACQUITTAL OF NEW OFFENSE: Jury acquittal is not collateral estoppel to VOP based on new offense. Bones v. State, 25 FLW D1871 (4th DCA 8-9-00). VOIR DIRE: CHALLENGE FOR CAUSE: It is not sufficient to deny a defense challenge for cause, even though the juror says that she could put a bad experience aside, where she had been the victim of a robbery w/ firearm by a convicted felon, on a case of felon in possession of firearm. Meade v. State, 29 Flw D590a (3rd DCA 2004). VOIR DIRE: GIVE L.E.O. GREATER WEIGHT IS NOT CAUSE: If jurors admit that they will give an officer's testimony re. impairment greater weight based upon their training and experience the juror is not subject to challenge for cause as this is not the same as automatically believing an officer due to his uniform. Handricks v. State, 5 FLW Supp 574 (11th Cir. Dade 5/8/98). VOIR DIRE: JUDGES PARTICIPATION: It is abuse of discretion for the trial court to conduct its own voir dire re. presumption of innocence, burden of proof, and right to remain silent, then to prohibit counsel from conducting independent voir dire as to those issues. Miller v State, 26 FLW D1184b (3d DCA 2001), following, Sanders v. State, 707 So.2d 664-688 (Fla. 1998) and Ferrer v. State, 718 So.2d 822, 825 (4th DCA 1998). VOIR DIRE: JUROR COMPETENCY: TEST: Test for juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely upon the evidence presented and the instructions of law given by the Court. If juror indicates might have trouble being impartial and does not rehab that can lay aside bias, Court errs in refusing a challenge for cause. Mobley v. State, 25 FLW D2857 (2d DCA 12-15-00). VOIR DIRE: NEIL INQUIRY: Objecting party need not state facts that reasonably indicate the challenge was impermissible, only that 1) timely object to discrimination; 2) show venire person is a member of a distinct class; 3) request court to ask striking party for the reason. State v. Holiday, 21 FLW S493 (Fl. 11-14-96). Fact that jury was previously charged / convicted is sufficient race neutral reason for peremptory strike. Miller v. State, 605 So.2d 492 (2nd DCA 1992); even if jurors family member was convicted may be sufficient. Martinez v. State, 664 So.2d 1034. VOIR DIRE: REAS. DOUBT QUALIFICATION: Not impermissible for (even judge) to qualify reasonable doubt that "the State does not have to convince you to an absolute certainty of the defendant's guilt...you can still have a doubt as to D's guilt so long as it's not a reasonable doubt. A reasonable doubt simply stated is a doubt you can attach a reason to." State v. Wilson, 22 FLW S2 (Fl. 12-26-96). VOIR DIRE: TIME LIMITATIONS: Though court may not unreasonably restrict time limits of voir dire, Rodriguez v. State, 675 So.2d 191, the court has considerable discretion regarding voir dire. Vining v. State, 637 So.2d 921 (cert den.115 S.Ct. 589 (1994); where Judge Rapkin gave a time limit prior to voir dire that was not objected to and denied a 2d req. for more time, permitting D. proffer unasked Q's that were covered in general instructions or State's Voir Dire, he did not "abuse his discretion." Tracy Watson v. State, 96-01270 (Whatley, 2d DCA, 4-25-97). Error to limit voir dire to 20 minutes and cut off lawyer after 30 minutes when defense at issue required more time. White v. State, 23 FLW D1868 (3d DCAs 1998). VOIR DIRE: VENIRE LYING / EMPATHY: If juror lies during voir dire re. prior child abuse victimization, D gets new trial upon learning that the juror was empathetic with victim. Chester v. State, 24 FLW D1203 (3d DCA 5-19-99). VOLUNTARY INTOXICATION: Is no longer a defense to specific intent crimes. CS/HB 421 & 485, eff. 10-1-99. VOYEURISM: Finally "Peeping Tom" is a crime. F.S. 810.14 eff. 7-1-98 prohibits secretly observing or filming a person in structure or conveyance w/ expectation of privacy = 1st degree misdemeanor WILLIAMS RULE: REVERSE: Defendant is entitled to admit evidence that similar crimes occurred when defendant could not have done them (while in jail) because the Fla. Sup. Court has recognized that reverse Williams rule has a lower potential for prejudice to the State than standard Williams rule evidence has to the defendant, thus, the trial court has somewhat less discretion to exclude reverse Williams rule evidence. See, Palazzolo v. State, 745 So.2d 740 (Fla. 2003); Edwards v. State, 28 FLW D2120 (3d DCA 9-10-03). WIRETAPS: LEO may intercept call between victim and defendant with victim's consent w/o violating any expectation of privacy of D. This recording does not require the warrant for a DNR. State v. Stout, 22 FLW D1137 (4th DCA 5-7-97). Though police may use subsequent recordings at the request of LEO from victim w/ suspect, F.S. 934.06 does prohibit use of initial recording done at victim's own volition with suspect. State v. Williamson, et.al., 22 FLW D2719 (5th DCA 12-5-97) WITNESSES: COMPETENCY: CHILD: Test for child competency is : 1) is witness capable of observing and recollecting facts; 2) is witness capable of narrating those facts to the court or jury 3) does witness have a moral sense of the obligation to tell the truth. WITNESS: CROSS EXAM: DEFENDANT: 5TH AMDT: When defendant takes the stand, ASA may cross exam D, who may not take the 5th when inconvenient or embarrassing. If refuses, court may advise the jury to disregard his testimony. Ellis v. State, 550 So. 2d 110 (2d DCA 1989); Raffel v. U. S., 46 S. Ct. 566 (1926). WITNESS PROTECTION: 914.27 (1997) establishes process for SAO to seek witness protection or relocation, making all information confidential. CS/HB 181. WORTHLESS CHECKS / JOINT SIGNATORIES: See, Miranda v. State, 773 So.2d 1195 (2d DCA Dec 6, 2000), re. difficulty in proving intent on joint accounts for worthless checks. WRIT OF BODILY ATTACHMENT: If a material witness, who is served with a subpoena, fails to appear after the first day of trial, the court may issue a Writ of Bodily Attachment on the witness. Failure to do so for a defendant may result in a reversal. Sims v State 29 FLW D588c (3rd DCA 2004).  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