BOOYAH Flashcards
Ineffective assistance of appellate counsel is properly raised in a petition for habeas corpus in the court where the ineffective assistance occurred. If an issue would in all probability been fund to be without merit, the failure to raise the issue does not render appellate counsel’s performance ineffective. // Knight v. S., 923 So. 2d 387 (Fla. 2005), 30 F.L.W. S768 (11/3/2005)
Ineffective assistance of appellate counsel is properly raised in a petition for habeas corpus in the court where the ineffective assistance occurred. If an issue would in all probability been fund to be without merit, the failure to raise the issue does not render appellate counsel’s performance ineffective. // Knight v. S., 923 So. 2d 387 (Fla. 2005), 30 F.L.W. S768 (11/3/2005)
The proper way to raise ineffective assistance of appellate counsel is by habeas petition filed with the appellate court that heard the direct appeal. // Parker v. S., 904 So. 2d 370 (Fla. 2005), 30 F.L.W. S421 (6/2/2005)
The proper way to raise ineffective assistance of appellate counsel is by habeas petition filed with the appellate court that heard the direct appeal. // Parker v. S., 904 So. 2d 370 (Fla. 2005), 30 F.L.W. S421 (6/2/2005)
Counsel is not ineffective for not arguing issues not preserved at trial that do not rise to the level of fundamental error. // Reaves v. Crosby, 837 So. 2d 396 (Fla. 2003), 28 F.L.W. S32 (1/9/2003)
Counsel is not ineffective for not arguing issues not preserved at trial that do not rise to the level of fundamental error. // Reaves v. Crosby, 837 So. 2d 396 (Fla. 2003), 28 F.L.W. S32 (1/9/2003)
(See Cherry v. Moore, 829 So. 2d 873 (Fla. 2002), 27 F.L.W. S810 (10/3/2002) for discussion of ineffective assistance of appellate counsel issues.)
(See Cherry v. Moore, 829 So. 2d 873 (Fla. 2002), 27 F.L.W. S810 (10/3/2002) for discussion of ineffective assistance of appellate counsel issues.)
Appellate counsel is not ineffective for failing to make certain the appellate record is complete in the absence of an allegation that an error occurred in the untranscribed portion of the proceedings. // Johnson v. Moore, 837 So. 2d 343 (Fla. 2002), 27 F.L.W. S789 (9/26/2002)
Appellate counsel is not ineffective for failing to make certain the appellate record is complete in the absence of an allegation that an error occurred in the untranscribed portion of the proceedings. // Johnson v. Moore, 837 So. 2d 343 (Fla. 2002), 27 F.L.W. S789 (9/26/2002)
Defendant made a statement blaming most of the acts leading to the victim’s murder on the co-defendant, and the co-defendant blamed defendant. Defendant went to trial and was convicted of first-degree murder, and before sentencing the co-defendant went to trial and was convicted of second-degree murder. Held: Appellate counsel was not ineffective in failing to argue that defendant was less than or equally culpable than the co-defendant, who got life, because the juries decided that the co-defendant was less culpable than defendant. // Shere v. S., 830 So. 2d 56 (Fla. 2002), 27 F.L.W. S752 (9/12/2002)
Defendant made a statement blaming most of the acts leading to the victim’s murder on the co-defendant, and the co-defendant blamed defendant. Defendant went to trial and was convicted of first-degree murder, and before sentencing the co-defendant went to trial and was convicted of second-degree murder. Held: Appellate counsel was not ineffective in failing to argue that defendant was less than or equally culpable than the co-defendant, who got life, because the juries decided that the co-defendant was less culpable than defendant. // Shere v. S., 830 So. 2d 56 (Fla. 2002), 27 F.L.W. S752 (9/12/2002)
The standard of review for ineffective assistance claims against appellate counsel is the same as for trial counsel. However, appellate counsel is not ineffective for failing to raise issues that were not raised to the trial court and do not present fundamental error. Appellate counsel is not ineffective for failing to raise non meritorious claims on appeal. Appellate counsel is not necessarily ineffective for failing to raise every non-frivolous claim. // Valle v. Moore, 837 So. 2d 905 (Fla. 2002), 27 F.L.W. S713 (8/29/2002)
The standard of review for ineffective assistance claims against appellate counsel is the same as for trial counsel. However, appellate counsel is not ineffective for failing to raise issues that were not raised to the trial court and do not present fundamental error. Appellate counsel is not ineffective for failing to raise non meritorious claims on appeal. Appellate counsel is not necessarily ineffective for failing to raise every non-frivolous claim. // Valle v. Moore, 837 So. 2d 905 (Fla. 2002), 27 F.L.W. S713 (8/29/2002)
Appellate counsel is ineffective for failing to raise an issue not preserved by trial counsel only if the error is fundamental. // Asay v. Moore, 828 So. 2d 985 (Fla. 2002), 27 F.L.W. S577 (6/13/2002)
Appellate counsel is ineffective for failing to raise an issue not preserved by trial counsel only if the error is fundamental. // Asay v. Moore, 828 So. 2d 985 (Fla. 2002), 27 F.L.W. S577 (6/13/2002)
The failure to raise an issue that rises to the level of fundamental error is ineffective assistance by appellate counsel. It is not necessary that that the failure to object rise to the level of ineffective assistance by trial counsel. // (Concurring opinion) // Spencer v. S., 842 So. 2d 52 (Fla. 2002), 27 F.L.W. S323 (4/11/2002)
The failure to raise an issue that rises to the level of fundamental error is ineffective assistance by appellate counsel. It is not necessary that that the failure to object rise to the level of ineffective assistance by trial counsel. // (Concurring opinion) // Spencer v. S., 842 So. 2d 52 (Fla. 2002), 27 F.L.W. S323 (4/11/2002)
The court errs in reading all four possible methods of kidnapping in the statute when defendant is charged with only with kidnapping to facilitate a felony. By reading all possibilities. the court commits fundamental error, and the failure to raise the issue is ineffective assistance of appellate counsel. // Rogers v. S., 935 So. 2d 639 (1st DCA 2006), 31 F.L.W. D2156 (8/15/2006)
The court errs in reading all four possible methods of kidnapping in the statute when defendant is charged with only with kidnapping to facilitate a felony. By reading all possibilities. the court commits fundamental error, and the failure to raise the issue is ineffective assistance of appellate counsel. // Rogers v. S., 935 So. 2d 639 (1st DCA 2006), 31 F.L.W. D2156 (8/15/2006)
When appellate counsel fails to move to relinquish jurisdiction to fix a sentencing error under rule 3.800(b), and the appellate court denies relief because no motion to correct the error was made, appellate counsel is ineffective // Evans v. S., 904 So. 2d 638 (1st DCA 2005), 30 F.L.W. D1586 (6/23/2005)
When appellate counsel fails to move to relinquish jurisdiction to fix a sentencing error under rule 3.800(b), and the appellate court denies relief because no motion to correct the error was made, appellate counsel is ineffective // Evans v. S., 904 So. 2d 638 (1st DCA 2005), 30 F.L.W. D1586 (6/23/2005)
The failure to argue that the trial court used defendant’s lack of remorse and failure to acknowledge guilt as a basis to impose a sentence greater than that requested by the state is ineffective assistance by appellate counsel. // Ritter v. S., 885 So. 2d 413 (1st DCA 2004), 29 F.L.W. D2313 (10/15/2004)
The failure to argue that the trial court used defendant’s lack of remorse and failure to acknowledge guilt as a basis to impose a sentence greater than that requested by the state is ineffective assistance by appellate counsel. // Ritter v. S., 885 So. 2d 413 (1st DCA 2004), 29 F.L.W. D2313 (10/15/2004)
Where trial counsel preserves an issue and appellate counsel does not raise it on appeal, and the same issue is raised and wins on appeal for a co-defendant, appellant’s counsel is ineffective and he is entitled to habeas relief. // Cupon v. S., 833 So. 2d 302 (1st DCA 2002), 28 F.L.W. D98 (12/31/2002)
Where trial counsel preserves an issue and appellate counsel does not raise it on appeal, and the same issue is raised and wins on appeal for a co-defendant, appellant’s counsel is ineffective and he is entitled to habeas relief. // Cupon v. S., 833 So. 2d 302 (1st DCA 2002), 28 F.L.W. D98 (12/31/2002)
Failure to pay a filing fee resulting in the dismissal of an appeal is ineffective assistance. The appeal should be reinstated upon motion. // Hardy v. S., 822 So. 2d 553 (1st DCA 2002), 27 F.L.W. D1684 (7/26/2002)
Failure to pay a filing fee resulting in the dismissal of an appeal is ineffective assistance. The appeal should be reinstated upon motion. // Hardy v. S., 822 So. 2d 553 (1st DCA 2002), 27 F.L.W. D1684 (7/26/2002)
A claim that retained counsel failed to file an ineffective assistance of appellate counsel claim within the time periods required under rule 9.141(c)(4)(B) is a sufficient claim to require a hearing in circuit court regarding counsel’s actions. // Williams v. S., 816 So. 2d 718 (1st DCA 2002), 27 F.L.W. D989 (5/2/2002)
A claim that retained counsel failed to file an ineffective assistance of appellate counsel claim within the time periods required under rule 9.141(c)(4)(B) is a sufficient claim to require a hearing in circuit court regarding counsel’s actions. // Williams v. S., 816 So. 2d 718 (1st DCA 2002), 27 F.L.W. D989 (5/2/2002)
The court errs in admitting a tape of defendant’s statement that contains repeated comments by the interrogating officer regarding his belief in the victim’s veracity and his belief that the defendant is lying. Appellate counsel is ineffective in failing to argue this error on direct appeal. // Mohr v. S., 927 So. 2d 1031 (2d DCA 2006), 31 F.L.W. D1294 (5/10/2006)
The court errs in admitting a tape of defendant’s statement that contains repeated comments by the interrogating officer regarding his belief in the victim’s veracity and his belief that the defendant is lying. Appellate counsel is ineffective in failing to argue this error on direct appeal. // Mohr v. S., 927 So. 2d 1031 (2d DCA 2006), 31 F.L.W. D1294 (5/10/2006)
The failure by appellate counsel to file a 3.800(b) motion, thereby failing to preserve a sentencing error, is ineffective assistance. // Agosto-Molina v. S., 933 So. 2d 26 (2d DCA 2006), 31 F.L.W. D1230 (5/3/2006)
The failure by appellate counsel to file a 3.800(b) motion, thereby failing to preserve a sentencing error, is ineffective assistance. // Agosto-Molina v. S., 933 So. 2d 26 (2d DCA 2006), 31 F.L.W. D1230 (5/3/2006)
Appellate counsel is ineffective for failing to argue that the court erred in inserting an “or’ between the name of the defendant and the codefendant while instructing the jury in a RICO and trafficking case. // Zeno v. S., 922 So. 2d 431 (2d DCA 2006), 31 F.L.W. D772 (3/10/2006)
Appellate counsel is ineffective for failing to argue that the court erred in inserting an “or’ between the name of the defendant and the codefendant while instructing the jury in a RICO and trafficking case. // Zeno v. S., 922 So. 2d 431 (2d DCA 2006), 31 F.L.W. D772 (3/10/2006)
If the record shows that defendant was inappropriately sentenced for both grand theft and dealing in stolen property, appellate counsel should file a 3.800(b)(2) motion to challenge the sentence. The failure to file the motion makes appellate counsel ineffective. // Barber v. S., 918 So. 2d 1013 (2d DCA 2006), 31 F.L.W. D322 (1/27/2006)
If the record shows that defendant was inappropriately sentenced for both grand theft and dealing in stolen property, appellate counsel should file a 3.800(b)(2) motion to challenge the sentence. The failure to file the motion makes appellate counsel ineffective. // Barber v. S., 918 So. 2d 1013 (2d DCA 2006), 31 F.L.W. D322 (1/27/2006)
Appellate counsel is ineffective when he fails to raise the fact that defendant was resentenced by a successor judge without following the rule requirements, and counsel failed to preserve the issue by making a 3.800(b) motion. // Horne v. S., 918 So. 2d 1011 (2d DCA 2006), 31 F.L.W. D276 (1/25/2006)
Appellate counsel is ineffective when he fails to raise the fact that defendant was resentenced by a successor judge without following the rule requirements, and counsel failed to preserve the issue by making a 3.800(b) motion. // Horne v. S., 918 So. 2d 1011 (2d DCA 2006), 31 F.L.W. D276 (1/25/2006)
Defendant cannot be convicted of two counts of homicide (here, DUI manslaughter and vehicular homicide) for a single death. Appellate counsel is ineffective for failing to raise the issue on appeal. // Safrany v. S., 895 So. 2d 1145 (2d DCA 2005), 30 F.L.W. D414 (2/11/2005)
Defendant cannot be convicted of two counts of homicide (here, DUI manslaughter and vehicular homicide) for a single death. Appellate counsel is ineffective for failing to raise the issue on appeal. // Safrany v. S., 895 So. 2d 1145 (2d DCA 2005), 30 F.L.W. D414 (2/11/2005)
Appellate counsel is ineffective for failing to raise the issue whether defendant was resentenced by a successor judge without a showing of necessity under rule 3.700(c)(1). // Hakkenberg v. S., 889 So. 2d 935 (2d DCA 2004), 29 F.L.W. D2837 (12/17/2004)
Appellate counsel is ineffective for failing to raise the issue whether defendant was resentenced by a successor judge without a showing of necessity under rule 3.700(c)(1). // Hakkenberg v. S., 889 So. 2d 935 (2d DCA 2004), 29 F.L.W. D2837 (12/17/2004)
Giving a self-defense instruction that states that the defense is not available if the defendant was committing or attempting to commit the charged crime, which serves to negate the defense, is fundamental error and can be raised on appeal despite not being raised to the trial court. Appellate counsel is ineffective when he fails to raise the issue. // York v. S., 891 So. 2d 569 (2d DCA 2004), 29 F.L.W. D2688 (12/1/2004)
Giving a self-defense instruction that states that the defense is not available if the defendant was committing or attempting to commit the charged crime, which serves to negate the defense, is fundamental error and can be raised on appeal despite not being raised to the trial court. Appellate counsel is ineffective when he fails to raise the issue. // York v. S., 891 So. 2d 569 (2d DCA 2004), 29 F.L.W. D2688 (12/1/2004)
Appellate counsel is ineffective when he fails to raise the issue whether giving an improper self-defense instruction was error. Giving the improper instruction was fundamental error. // Hernandez v. S., 884 So. 2d 281 (2d DCA 2004), 29 F.L.W. D1875 (8/13/2004)
Appellate counsel is ineffective when he fails to raise the issue whether giving an improper self-defense instruction was error. Giving the improper instruction was fundamental error. // Hernandez v. S., 884 So. 2d 281 (2d DCA 2004), 29 F.L.W. D1875 (8/13/2004)
Appellate counsel is ineffective when other DCAs had decided an issue (here, whether convictions for both theft and insurance fraud constitute double jeopardy), although the DCA deciding defendant’s appeal had not ruled. // Kist v. S., 900 So. 2d 571 (2d DCA 2004), 29 F.L.W. D1874 (8/13/2004)
Appellate counsel is ineffective when other DCAs had decided an issue (here, whether convictions for both theft and insurance fraud constitute double jeopardy), although the DCA deciding defendant’s appeal had not ruled. // Kist v. S., 900 So. 2d 571 (2d DCA 2004), 29 F.L.W. D1874 (8/13/2004)
Failing to object to the giving a self-defense instruction in an aggravated battery trial that states, “The use of force likely to cause death or great bodily harm is not justified if you find that defendant was committing vâ aggravated battery” is fundamental error, and appellate counsel is ineffective for failing to raise that issue on direct appeal. Defendant is permitted a belated appeal to argue that issue. // Baker v. S., 877 So. 2d 856 (2d DCA 2004), 29 F.L.W. D1617 (7/9/2004)
Failing to object to the giving a self-defense instruction in an aggravated battery trial that states, “The use of force likely to cause death or great bodily harm is not justified if you find that defendant was committing vâ aggravated battery” is fundamental error, and appellate counsel is ineffective for failing to raise that issue on direct appeal. Defendant is permitted a belated appeal to argue that issue. // Baker v. S., 877 So. 2d 856 (2d DCA 2004), 29 F.L.W. D1617 (7/9/2004)
The failure to raise vindictive sentencing on appeal is ineffective assistance by appellate counsel when the judge initiated sentence bargaining and imposed a longer sentence when defendant refused the offer and went to trial. // Brown v. S., 875 So. 2d 744 (2d DCA 2004), 29 F.L.W. D1428 (6/16/2004)
The failure to raise vindictive sentencing on appeal is ineffective assistance by appellate counsel when the judge initiated sentence bargaining and imposed a longer sentence when defendant refused the offer and went to trial. // Brown v. S., 875 So. 2d 744 (2d DCA 2004), 29 F.L.W. D1428 (6/16/2004)
Appellate counsel is ineffective for failing to raise a double jeopardy claim where there is binding precedent on point that would have resulted in the reversal of the conviction. // Gisi v. S., 848 So. 2d 1278 (2d DCA 2003), 28 F.L.W. D1589 (7/11/2003)
Appellate counsel is ineffective for failing to raise a double jeopardy claim where there is binding precedent on point that would have resulted in the reversal of the conviction. // Gisi v. S., 848 So. 2d 1278 (2d DCA 2003), 28 F.L.W. D1589 (7/11/2003)
Where the information alleges that defendant attempted to penetrate the victim’s vagina with his finger, and the court erroneously instructed the jury that sexual battery could be committed by penetration or union between the defendant’s finger and the victim’s vagina, and the state argued the same in closing, the error is fundamental. Appellate counsel is ineffective for failing to make the argument on appeal. // Holmes v. S., 842 So. 2d 187 (2d DCA 2003), 28 F.L.W. D717 (3/14/2003)
Where the information alleges that defendant attempted to penetrate the victim’s vagina with his finger, and the court erroneously instructed the jury that sexual battery could be committed by penetration or union between the defendant’s finger and the victim’s vagina, and the state argued the same in closing, the error is fundamental. Appellate counsel is ineffective for failing to make the argument on appeal. // Holmes v. S., 842 So. 2d 187 (2d DCA 2003), 28 F.L.W. D717 (3/14/2003)
Appellate counsel is not ineffective for failing to raise an issue that was not preserved and is not fundamental. Where the state filed an amended VOP affidavit the day of hearing, and counsel did not move to continue, appellate counsel is not ineffective for failing to raise a due process complaint. // Coney v. S., 937 So. 2d 255 (3d DCA 2006), 31 F.L.W. D2317 (9/6/2006)
Appellate counsel is not ineffective for failing to raise an issue that was not preserved and is not fundamental. Where the state filed an amended VOP affidavit the day of hearing, and counsel did not move to continue, appellate counsel is not ineffective for failing to raise a due process complaint. // Coney v. S., 937 So. 2d 255 (3d DCA 2006), 31 F.L.W. D2317 (9/6/2006)
Appellate counsel is ineffective in failing to raise a sentencing error by motion to the sentencing court before the filing of the initial brief. // James v. S., 932 So. 2d 431 (3d DCA 2006), 31 F.L.W. D1313 (5/10/2006)
Appellate counsel is ineffective in failing to raise a sentencing error by motion to the sentencing court before the filing of the initial brief. // James v. S., 932 So. 2d 431 (3d DCA 2006), 31 F.L.W. D1313 (5/10/2006)
A petition for habeas alleging ineffective assistance of appellate counsel cannot be used to reargue issues that were or could have been raised on direct appeal. // Corner v. S., 917 So. 2d 975 (3d DCA 2005), 31 F.L.W. D92 (12/28/2005)
A petition for habeas alleging ineffective assistance of appellate counsel cannot be used to reargue issues that were or could have been raised on direct appeal. // Corner v. S., 917 So. 2d 975 (3d DCA 2005), 31 F.L.W. D92 (12/28/2005)
A 3.850 motion alleging ineffective assistance of trial counsel can proceed while a habeas petition alleging ineffective assistance of appellate counsel is pending because the claims are separate and distinct, and both the trial court and appellate court have jurisdiction to proceed. // White v. S., 855 So. 2d 723 (3d DCA 2003), 28 F.L.W. D2310 (10/8/2003)
A 3.850 motion alleging ineffective assistance of trial counsel can proceed while a habeas petition alleging ineffective assistance of appellate counsel is pending because the claims are separate and distinct, and both the trial court and appellate court have jurisdiction to proceed. // White v. S., 855 So. 2d 723 (3d DCA 2003), 28 F.L.W. D2310 (10/8/2003)
Appellate counsel is ineffective when he fails to argue fundamental error in giving a circular self-defense instruction. // Shepard v. Crosby, 916 So. 2d 861 (4th DCA 2005), 30 F.L.W. D2444 (10/19/2005)
Appellate counsel is ineffective when he fails to argue fundamental error in giving a circular self-defense instruction. // Shepard v. Crosby, 916 So. 2d 861 (4th DCA 2005), 30 F.L.W. D2444 (10/19/2005)
Counsel’s failure to provide an adequate record for review does not constitute ineffective assistance when the appellant would not have prevailed on the merits with an appropriate record. // Edge v. S., 893 So. 2d 610 (4th DCA 2005), 30 F.L.W. D327 (2/2/2005)
Counsel’s failure to provide an adequate record for review does not constitute ineffective assistance when the appellant would not have prevailed on the merits with an appropriate record. // Edge v. S., 893 So. 2d 610 (4th DCA 2005), 30 F.L.W. D327 (2/2/2005)
Appellate counsel is not ineffective for failing to argue that the information alleged the incorrect name of the victim. When there is a material variance between the name in the information and the victim’s correct name, the court should grant a dismissal. The name of the victim should be correct to allow the defense to prepare a defense and to avoid the possibility of a second conviction on the same offense. Where the defendant is not prejudiced by a small variation in the name, counsel is not ineffective in failing to argue the discrepancy. // Brown v. S., 888 So. 2d 130 (4th DCA 2004), 29 F.L.W. D2657 (11/24/2004)
Appellate counsel is not ineffective for failing to argue that the information alleged the incorrect name of the victim. When there is a material variance between the name in the information and the victim’s correct name, the court should grant a dismissal. The name of the victim should be correct to allow the defense to prepare a defense and to avoid the possibility of a second conviction on the same offense. Where the defendant is not prejudiced by a small variation in the name, counsel is not ineffective in failing to argue the discrepancy. // Brown v. S., 888 So. 2d 130 (4th DCA 2004), 29 F.L.W. D2657 (11/24/2004)
Defendant is entitled to a habeas writ for ineffective assistance of appellate counsel when counsel did not raise on appeal a claim regarding the failure to give a proper burglary instruction. Instructing the jury that defendant must have a fully formed intent to commit burglary, rather than some other offense, is error. // Bruce v. S., 879 So. 2d 686 (4th DCA 2004), 29 F.L.W. D1836 (8/11/2004)
Defendant is entitled to a habeas writ for ineffective assistance of appellate counsel when counsel did not raise on appeal a claim regarding the failure to give a proper burglary instruction. Instructing the jury that defendant must have a fully formed intent to commit burglary, rather than some other offense, is error. // Bruce v. S., 879 So. 2d 686 (4th DCA 2004), 29 F.L.W. D1836 (8/11/2004)
Appellate counsel is ineffective when she fails to raise a Delgado issue on appeal. The fact that trial counsel did not preserve the Delgado issue does not matter, because conviction for burglary when defendant had consent to enter is fundamental error. // Smith v. Crosby, 872 So. 2d 279 (4th DCA 2004), 29 F.L.W. D704 (3/24/2004)
Appellate counsel is ineffective when she fails to raise a Delgado issue on appeal. The fact that trial counsel did not preserve the Delgado issue does not matter, because conviction for burglary when defendant had consent to enter is fundamental error. // Smith v. Crosby, 872 So. 2d 279 (4th DCA 2004), 29 F.L.W. D704 (3/24/2004)
Defendant is entitled to habeas relief on a petition alleging ineffective assistance of appellate counsel when counsel failed to obtain all of the trial transcript and therefore was unable to evaluate all of the state’s evidence. // Martone v. S., 867 So. 2d 510 (4th DCA 2004), 29 F.L.W. D480 (2/25/2004)
Defendant is entitled to habeas relief on a petition alleging ineffective assistance of appellate counsel when counsel failed to obtain all of the trial transcript and therefore was unable to evaluate all of the state’s evidence. // Martone v. S., 867 So. 2d 510 (4th DCA 2004), 29 F.L.W. D480 (2/25/2004)
Appellate counsel is not ineffective for failing to obtain transcripts of the lower court proceedings when defendant does not allege in his motion that the transcripts would have revealed any particular error. // Lavin v. S., 861 So. 2d 488 (4th DCA 2003), 28 F.L.W. D2768 (12/3/2003)
Appellate counsel is not ineffective for failing to obtain transcripts of the lower court proceedings when defendant does not allege in his motion that the transcripts would have revealed any particular error. // Lavin v. S., 861 So. 2d 488 (4th DCA 2003), 28 F.L.W. D2768 (12/3/2003)
Appellate counsel is ineffective when he fails to raise the issue whether a self-defense jury instruction in an aggravated battery trial is fundamental error when the court states that the use of force is not justifiable if the defendant was “attempting to commit aggravated battery.” The defendant is granted a belated appeal to raise that issue. // Estevez v. Crosby, 858 So. 2d 376 (4th DCA 2003), 28 F.L.W. D2534 (11/5/2003)
Appellate counsel is ineffective when he fails to raise the issue whether a self-defense jury instruction in an aggravated battery trial is fundamental error when the court states that the use of force is not justifiable if the defendant was “attempting to commit aggravated battery.” The defendant is granted a belated appeal to raise that issue. // Estevez v. Crosby, 858 So. 2d 376 (4th DCA 2003), 28 F.L.W. D2534 (11/5/2003)
The remedy in a habeas petition alleging ineffective assistance of appellate counsel lies in the discretion of the court. Where counsel failed to raise a legitimate issue, the court will order a belated appeal to raise the issue. // Ingrassia v. Thompson, 843 So. 2d 986 (4th DCA 2003), 28 F.L.W. D1067 (4/30/2003)
The remedy in a habeas petition alleging ineffective assistance of appellate counsel lies in the discretion of the court. Where counsel failed to raise a legitimate issue, the court will order a belated appeal to raise the issue. // Ingrassia v. Thompson, 843 So. 2d 986 (4th DCA 2003), 28 F.L.W. D1067 (4/30/2003)
Appellate counsel is ineffective when a co-defendant raises an issue that should have been raised in defendant’s appeal, and the co-defendant obtains relief on the issue. // Wilson v. S., 835 So. 2d 1215 (4th DCA 2003), 28 F.L.W. D277 (1/22/2003)
Appellate counsel is ineffective when a co-defendant raises an issue that should have been raised in defendant’s appeal, and the co-defendant obtains relief on the issue. // Wilson v. S., 835 So. 2d 1215 (4th DCA 2003), 28 F.L.W. D277 (1/22/2003)
When the court orders competency evaluations, the court errs in proceeding to trial without obtaining two opinions and conducting a competency hearing. The failure of appellate counsel to raise the issue in defendant’s direct appeal from his conviction is ineffective assistance. // Cochran v. S., 925 So. 2d 370 (5th DCA 2006), 31 F.L.W. D681 (3/3/2006)
When the court orders competency evaluations, the court errs in proceeding to trial without obtaining two opinions and conducting a competency hearing. The failure of appellate counsel to raise the issue in defendant’s direct appeal from his conviction is ineffective assistance. // Cochran v. S., 925 So. 2d 370 (5th DCA 2006), 31 F.L.W. D681 (3/3/2006)
Appellate counsel is not required to anticipate changes in the law. However, when appellate counsel failed to file a supplemental brief regarding cases that were decided days before his brief was filed, and the cases indicate that fundamental error was committed regarding self-defense jury instructions, appellate counsel was ineffective. // In judging whether appellate counsel was ineffective, the court uses the law in effect at the time of the appeal. // Granberry v. S., 919 So. 2d 699 (5th DCA 2006), 31 F.L.W. D364 (2/3/2006)
Appellate counsel is not required to anticipate changes in the law. However, when appellate counsel failed to file a supplemental brief regarding cases that were decided days before his brief was filed, and the cases indicate that fundamental error was committed regarding self-defense jury instructions, appellate counsel was ineffective. // In judging whether appellate counsel was ineffective, the court uses the law in effect at the time of the appeal. // Granberry v. S., 919 So. 2d 699 (5th DCA 2006), 31 F.L.W. D364 (2/3/2006)
When the court gives an erroneous self-defense instruction (telling the jury that self-defense is inapplicable if done in the course of committing a forcible felony when the felony named is the crime with which defendant is charged) and the issue is properly preserved, appellate counsel is ineffective for failing to argue the issue. // Davis v. S., 886 So. 2d 332 (5th DCA 2004), 29 F.L.W. D2538 (11/12/2004)
When the court gives an erroneous self-defense instruction (telling the jury that self-defense is inapplicable if done in the course of committing a forcible felony when the felony named is the crime with which defendant is charged) and the issue is properly preserved, appellate counsel is ineffective for failing to argue the issue. // Davis v. S., 886 So. 2d 332 (5th DCA 2004), 29 F.L.W. D2538 (11/12/2004)
The failure of retained counsel to file a brief for defendant during the state’s appeal of the granting of a motion to suppress is ineffective assistance, and no showing of prejudice is required. // Goebel v. S., 848 So. 2d 479 (5th DCA 2003), 28 F.L.W. D1559 (7/3/2003)
The failure of retained counsel to file a brief for defendant during the state’s appeal of the granting of a motion to suppress is ineffective assistance, and no showing of prejudice is required. // Goebel v. S., 848 So. 2d 479 (5th DCA 2003), 28 F.L.W. D1559 (7/3/2003)
The court errs in refusing to allow self-representation based on the court’s determination that defendant was not schooled in legal procedures. Appellate counsel’s failure to raise the issue on direct appeal is ineffective assistance and a new trial is ordered. // Moore v. S., 820 So. 2d 442 (5th DCA 2002), 27 F.L.W. D1565 (7/5/2002)
The court errs in refusing to allow self-representation based on the court’s determination that defendant was not schooled in legal procedures. Appellate counsel’s failure to raise the issue on direct appeal is ineffective assistance and a new trial is ordered. // Moore v. S., 820 So. 2d 442 (5th DCA 2002), 27 F.L.W. D1565 (7/5/2002)
An allegation of ineffective assistance of appellate counsel must be made within two years under rule 9.141(c)(4)(B), unless the petition alleges under oath a specific factual basis that the petitioner was misled by counsel about the results of the appeal. // Brown v. s., 816 So. 2d 785 (5th DCA 2002), 27 F.L.W. D1174 (5/10/2002)
An allegation of ineffective assistance of appellate counsel must be made within two years under rule 9.141(c)(4)(B), unless the petition alleges under oath a specific factual basis that the petitioner was misled by counsel about the results of the appeal. // Brown v. s., 816 So. 2d 785 (5th DCA 2002), 27 F.L.W. D1174 (5/10/2002)
A petitioner claiming ineffective assistance of appellate counsel has a heavy burden. The petitioner must show that counsel’s performance was deficient in that the errors fall measurably outside the range of professionally acceptable performance. Second, the petitioner must show that he was prejudiced because counsel’s deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. // Counsel is not ineffective for failing to raise a meritless issue or an issue that is procedurally barred. // Richards v. S., 809 So. 2d 38 (5th DCA 2002), 27 F.L.W. D318 (2/1/2002)
A petitioner claiming ineffective assistance of appellate counsel has a heavy burden. The petitioner must show that counsel’s performance was deficient in that the errors fall measurably outside the range of professionally acceptable performance. Second, the petitioner must show that he was prejudiced because counsel’s deficiency compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. // Counsel is not ineffective for failing to raise a meritless issue or an issue that is procedurally barred. // Richards v. S., 809 So. 2d 38 (5th DCA 2002), 27 F.L.W. D318 (2/1/2002)
Appellate counsel is not ineffective for failing to raise issues that were not preserved by trial counsel. // Nelson v. S., 43 So. 3d 20 (Fla. 2010), 35 F.L.W. S225 (4/29/2010)
Appellate counsel is not ineffective for failing to raise issues that were not preserved by trial counsel. // Nelson v. S., 43 So. 3d 20 (Fla. 2010), 35 F.L.W. S225 (4/29/2010)
Defendant properly raises as an issue of ineffective assistance of appellate counsel a claim that appellate counsel did not raise a sentencing issue that would have been cognizable under rule 3.800(b)(2). Where defendant’s sentence was improperly reclassified (third-degree murder with an aggravated assault with a firearm as the predicate, reclassified for use of the firearm), and appellate counsel failed to raise the issue, counsel is properly found ineffective. // When a new appeal would be redundant or unnecessary, upon finding ineffective assistance of appellate counsel the appellate court can grant the relief that would have been granted had the original appeal been successful. // Anderson v. S., 988 So. 2d 144 (1st DCA 2008), 33 F.L.W. D1911 (8/4/2008)
Defendant properly raises as an issue of ineffective assistance of appellate counsel a claim that appellate counsel did not raise a sentencing issue that would have been cognizable under rule 3.800(b)(2). Where defendant’s sentence was improperly reclassified (third-degree murder with an aggravated assault with a firearm as the predicate, reclassified for use of the firearm), and appellate counsel failed to raise the issue, counsel is properly found ineffective. // When a new appeal would be redundant or unnecessary, upon finding ineffective assistance of appellate counsel the appellate court can grant the relief that would have been granted had the original appeal been successful. // Anderson v. S., 988 So. 2d 144 (1st DCA 2008), 33 F.L.W. D1911 (8/4/2008)
The fact the defendant could have presented an issue in his pro se brief following the filing of an Anders brief by appointed counsel does not preclude a later claim that appellate counsel was ineffective for failing to raise a particular issue. // Where appellate counsel in his Anders brief raises a potential issue that was reviewed and found to have no merit, the issue is one that is apparent from the face of the record. When the court affirms a judgment based on an Anders brief, it is reasonable to presume that the court has fully considered and reject all potential issues that were apparent from the face of the record. When such an issue is raised, the petitioner cannot establish any deficient performance in not briefing the issue because the court necessarily considered the issue in its own Anders review. // Towbridge v. S., 45 So. 3d 484 (1st DCA 2010), 35 F.L.W. D1947 (8/31/2010)
The fact the defendant could have presented an issue in his pro se brief following the filing of an Anders brief by appointed counsel does not preclude a later claim that appellate counsel was ineffective for failing to raise a particular issue. // Where appellate counsel in his Anders brief raises a potential issue that was reviewed and found to have no merit, the issue is one that is apparent from the face of the record. When the court affirms a judgment based on an Anders brief, it is reasonable to presume that the court has fully considered and reject all potential issues that were apparent from the face of the record. When such an issue is raised, the petitioner cannot establish any deficient performance in not briefing the issue because the court necessarily considered the issue in its own Anders review. // Towbridge v. S., 45 So. 3d 484 (1st DCA 2010), 35 F.L.W. D1947 (8/31/2010)
When new case law is issued after briefing which affects an issue addressed in defendant’s appeal, appellate counsel is ineffective when he fails to ask for supplemental briefing on the issue addressed in the new decision. // Asberry v. S., 32 So. 3d 718 (1st DCA 2010), 35 F.L.W. D801 (4/7/2010)
When new case law is issued after briefing which affects an issue addressed in defendant’s appeal, appellate counsel is ineffective when he fails to ask for supplemental briefing on the issue addressed in the new decision. // Asberry v. S., 32 So. 3d 718 (1st DCA 2010), 35 F.L.W. D801 (4/7/2010)
Counsel is ineffective in allowing a direct appeal to be dismissed for failure to file a proper record, and the initial appeal is reinstated. // Robinson v. S., 30 So. 3d 639 (1st DCA 2010), 35 F.L.W. D592 (3/17/2010)
Counsel is ineffective in allowing a direct appeal to be dismissed for failure to file a proper record, and the initial appeal is reinstated. // Robinson v. S., 30 So. 3d 639 (1st DCA 2010), 35 F.L.W. D592 (3/17/2010)
The failure of appellate counsel to file a rule 3.800(c) motion regarding the trial court’s failure to announce special conditions of probation and the failure to file a written order of probation, is ineffective assistance resulting in a new appeal on those issues. // Hicks v. S., 1 So. 3d 1233 (1st DCA 2009), 34 F.L.W. D316 (2/9/2009)
The failure of appellate counsel to file a rule 3.800(c) motion regarding the trial court’s failure to announce special conditions of probation and the failure to file a written order of probation, is ineffective assistance resulting in a new appeal on those issues. // Hicks v. S., 1 So. 3d 1233 (1st DCA 2009), 34 F.L.W. D316 (2/9/2009)
Appellate counsel is ineffective for failing to respond to order of the court of appeal and for permitting the appeal of the denial of defendant’s motion for postconviction relief to be dismissed. The proper remedy is to permit a new appeal. // Williams v. S., 50 So. 3d 791 (1st DCA 2010), 36 F.L.W. D49 (12/29/2010)
Appellate counsel is ineffective for failing to respond to order of the court of appeal and for permitting the appeal of the denial of defendant’s motion for postconviction relief to be dismissed. The proper remedy is to permit a new appeal. // Williams v. S., 50 So. 3d 791 (1st DCA 2010), 36 F.L.W. D49 (12/29/2010)
Defendant was convicted in 2006 of battery on an elderly person and felony battery as a second offense for a single incident in which he pushed his mother. He received consecutive five-year sentences and alleged in the trial court that the sentences violated double jeopardy rules. Counsel on appeal did not raise the double jeopardy issue. Held: Under the law in effect at the time of the appeal, under §775.021(4)(b) the convictions might have been barred by the “primary evil” test for determining whether the two crimes were “offenses which are degrees of the same offense.” While the “primary evil” test was discarded in Valdes v. S., 3 So. 3d 1067 (Fla. 2009), it was in effect at the time of the appeal, and thus counsel was ineffective in failing to raise it. // Smith v. S., 19 So. 3d 417 (2d DCA 2009), 34 F.L.W. D1915 (9/18/2009)
Defendant was convicted in 2006 of battery on an elderly person and felony battery as a second offense for a single incident in which he pushed his mother. He received consecutive five-year sentences and alleged in the trial court that the sentences violated double jeopardy rules. Counsel on appeal did not raise the double jeopardy issue. Held: Under the law in effect at the time of the appeal, under §775.021(4)(b) the convictions might have been barred by the “primary evil” test for determining whether the two crimes were “offenses which are degrees of the same offense.” While the “primary evil” test was discarded in Valdes v. S., 3 So. 3d 1067 (Fla. 2009), it was in effect at the time of the appeal, and thus counsel was ineffective in failing to raise it. // Smith v. S., 19 So. 3d 417 (2d DCA 2009), 34 F.L.W. D1915 (9/18/2009)
A claim that counsel was ineffective in failing to argue that multiple convictions violated double jeopardy rights is cognizable in an ineffective assistance of appellate counsel claim. // Rios v. S., 19 So. 3d 1004 (2d DCA 2009), 34 F.L.W. D1609 (8/7/2009)
A claim that counsel was ineffective in failing to argue that multiple convictions violated double jeopardy rights is cognizable in an ineffective assistance of appellate counsel claim. // Rios v. S., 19 So. 3d 1004 (2d DCA 2009), 34 F.L.W. D1609 (8/7/2009)
Instructing the jury that “at the time of entering the structure [defendant] had a fully formed, conscious intent to commit the offense of burglary in that structure” is fundamental error and appellate counsel is ineffective in failing to argue it. // Lee v. S., 958 So. 2d 521 (2d DCA 2007), 32 F.L.W. D1422 (6/6/2007)
Instructing the jury that “at the time of entering the structure [defendant] had a fully formed, conscious intent to commit the offense of burglary in that structure” is fundamental error and appellate counsel is ineffective in failing to argue it. // Lee v. S., 958 So. 2d 521 (2d DCA 2007), 32 F.L.W. D1422 (6/6/2007)
When defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed both on the deadly weapon and great bodily harm methods of committing the crime, and the evidence could sustain either version, but appellate counsel does not raise the issue, counsel is ineffective and the conviction is reversed. // Sanders v. S., 959 So. 2d 1232 (2d DCA 2007), 32 F.L.W. D1569 (6/22/2007)
When defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed both on the deadly weapon and great bodily harm methods of committing the crime, and the evidence could sustain either version, but appellate counsel does not raise the issue, counsel is ineffective and the conviction is reversed. // Sanders v. S., 959 So. 2d 1232 (2d DCA 2007), 32 F.L.W. D1569 (6/22/2007)
Failing to argue a Montgomery error in a case where defendant was convicted of 2d degree murder and the failure to give a correct instruction on manslaughter by act was not harmless, is ineffective assistance by appellate counsel, and defendant’s conviction is reversed. // (See this case for discussion of the history of Montgomery error cases.) // Pollock v. S., ___ So. 3d ___, 36 F.L.W. D744 (2d DCA 4/8/2011)
Failing to argue a Montgomery error in a case where defendant was convicted of 2d degree murder and the failure to give a correct instruction on manslaughter by act was not harmless, is ineffective assistance by appellate counsel, and defendant’s conviction is reversed. // (See this case for discussion of the history of Montgomery error cases.) // Pollock v. S., ___ So. 3d ___, 36 F.L.W. D744 (2d DCA 4/8/2011)
In reviewing a petition alleging ineffective assistance of appellate counsel, the court will apply the law in effect at the time of the appeal. However, in determining the relief to be granted, the court must apply current law. // Defendant was convicted of third-degree murder in the shooting death of the victim. The court imposed a 30-year mandatory minimum sentence under the 10-20-Life law. Under Sousa v. S., 976 So 2d 639 (2d DCA 2008), the maximum the court could have imposed was 25 years, because Sousa required the court to impose the lowest possible minimum mandatory when the minimum exceeded the statutory maximum for the crime charged, which in this case was 15 years. Appellate counsel thus was ineffective for failing to file a 3.800(b) motion to correct the sentence. However, Sousa was disapproved in Mendenhall v. S., 35 F.L.W. S631 (Fla. 10/28/10), allowing the court to impose a higher mandatory minimum. Because the court in determining the proper relief in a habeas petition alleging ineffective assistance of appellate counsel must apply current law, defendant is not entitled to relief despite the fact that counsel’s performance was deficient. // Woodruff v. S., ___ So. 3d ___, 36 F.L.W. D273 (2d DCA 2/4/2011)
In reviewing a petition alleging ineffective assistance of appellate counsel, the court will apply the law in effect at the time of the appeal. However, in determining the relief to be granted, the court must apply current law. // Defendant was convicted of third-degree murder in the shooting death of the victim. The court imposed a 30-year mandatory minimum sentence under the 10-20-Life law. Under Sousa v. S., 976 So 2d 639 (2d DCA 2008), the maximum the court could have imposed was 25 years, because Sousa required the court to impose the lowest possible minimum mandatory when the minimum exceeded the statutory maximum for the crime charged, which in this case was 15 years. Appellate counsel thus was ineffective for failing to file a 3.800(b) motion to correct the sentence. However, Sousa was disapproved in Mendenhall v. S., 35 F.L.W. S631 (Fla. 10/28/10), allowing the court to impose a higher mandatory minimum. Because the court in determining the proper relief in a habeas petition alleging ineffective assistance of appellate counsel must apply current law, defendant is not entitled to relief despite the fact that counsel’s performance was deficient. // Woodruff v. S., ___ So. 3d ___, 36 F.L.W. D273 (2d DCA 2/4/2011)
Where counsel did not raise an error in giving the manslaughter by act instruction after the decision in Montgomery v. S., 34 F.L.W. D360 (1st DCA 2/12/09) was issued, even though the 2d DCA had found the instruction proper in Hall v. S., 951 So. 2d 91 (2d DCA 2007), appellate counsel was ineffective and the defendant’s 2d degree murder conviction is reversed. // DelValle v. S., 52 So. 3d 16 (2d DCA 2010), 35 F.L.W. D2751 (12/10/2010)
Where counsel did not raise an error in giving the manslaughter by act instruction after the decision in Montgomery v. S., 34 F.L.W. D360 (1st DCA 2/12/09) was issued, even though the 2d DCA had found the instruction proper in Hall v. S., 951 So. 2d 91 (2d DCA 2007), appellate counsel was ineffective and the defendant’s 2d degree murder conviction is reversed. // DelValle v. S., 52 So. 3d 16 (2d DCA 2010), 35 F.L.W. D2751 (12/10/2010)
The failure to raise the issue of a circular self-defense instruction is ineffective assistance of appellate counsel because giving the instruction is fundamental error. // Grimsley v. S., 967 So. 2d 1132 (2d DCA 2007), 32 F.L.W. D2741 (11/16/2007)
The failure to raise the issue of a circular self-defense instruction is ineffective assistance of appellate counsel because giving the instruction is fundamental error. // Grimsley v. S., 967 So. 2d 1132 (2d DCA 2007), 32 F.L.W. D2741 (11/16/2007)
Drug offender probation under § 948.20 is not permitted for a person convicted of cocaine trafficking under §893.135(1)(b)(1)(a). Appellate counsel is ineffective for failing to file a 3.800(b) motion to correct the sentence. // Fortner v. S., 23 So. 3d 1275 (2d DCA 2010), 35 F.L.W. D113 (1/6/2010)
Drug offender probation under § 948.20 is not permitted for a person convicted of cocaine trafficking under §893.135(1)(b)(1)(a). Appellate counsel is ineffective for failing to file a 3.800(b) motion to correct the sentence. // Fortner v. S., 23 So. 3d 1275 (2d DCA 2010), 35 F.L.W. D113 (1/6/2010)
The failure to argue fundamental error when the court used “and/or” between the names of codefendants in jury instructions in a joint trial is ineffective assistance of appellate counsel. // Barnes v. S., 993 So. 2d 1012 (2d DCA 2008), 33 F.L.W. D227 (1/16/2008)
The failure to argue fundamental error when the court used “and/or” between the names of codefendants in jury instructions in a joint trial is ineffective assistance of appellate counsel. // Barnes v. S., 993 So. 2d 1012 (2d DCA 2008), 33 F.L.W. D227 (1/16/2008)
Appellate counsel is not ineffective for failing to raise issues that were not preserved by trial counsel and do not constitute fundamental error. // Walker v. S., 990 So. 2d 1119 (3d DCA 2008), 33 F.L.W. D1939 (8/6/2008)
Appellate counsel is not ineffective for failing to raise issues that were not preserved by trial counsel and do not constitute fundamental error. // Walker v. S., 990 So. 2d 1119 (3d DCA 2008), 33 F.L.W. D1939 (8/6/2008)
When an issue is raised on direct appeal, a subsequent habeas petition is inappropriate to consider the claim that counsel was ineffective for failing to raise additional arguments on the same issue. // Jean-Marie v. S., 35 So. 3d 116 (3d DCA 2010), 35 F.L.W. D1129 (5/19/2010)
When an issue is raised on direct appeal, a subsequent habeas petition is inappropriate to consider the claim that counsel was ineffective for failing to raise additional arguments on the same issue. // Jean-Marie v. S., 35 So. 3d 116 (3d DCA 2010), 35 F.L.W. D1129 (5/19/2010)
The failure to raise the court’s failure to instruct on excusable homicide in a manslaughter case is ineffective assistance of appellate counsel, when defendant’s defense was that the shooting was accidental. Defendant is entitled to a new trial. // Jenkins v. S., 990 So. 2d 702 (4th DCA 2008), 33 F.L.W. D2280 (9/24/2008)
The failure to raise the court’s failure to instruct on excusable homicide in a manslaughter case is ineffective assistance of appellate counsel, when defendant’s defense was that the shooting was accidental. Defendant is entitled to a new trial. // Jenkins v. S., 990 So. 2d 702 (4th DCA 2008), 33 F.L.W. D2280 (9/24/2008)
A conclusory allegation that, had appellate counsel raised and argued a Miranda issue, the “charges would have been dropped” is insufficient to allege that confidence in the outcome of the appeal is undermined. The defendant needs to allege more facts regarding the effect of the alleged failure. // Lightsey v. S., 964 So. 2d 255 (4th DCA 2007), 32 F.L.W. D2155 (9/12/2007)
A conclusory allegation that, had appellate counsel raised and argued a Miranda issue, the “charges would have been dropped” is insufficient to allege that confidence in the outcome of the appeal is undermined. The defendant needs to allege more facts regarding the effect of the alleged failure. // Lightsey v. S., 964 So. 2d 255 (4th DCA 2007), 32 F.L.W. D2155 (9/12/2007)
Where defendant alleges appellate counsel was ineffective for failing to obtain a complete transcript, the motion is insufficient when the defendant fails to allege what issues could not be properly reviewed as a result of the incomplete transcript. // Lamb v. S., 41 So. 3d 964 (4th DCA 2010), 35 F.L.W. D1695 (7/28/2010)
Where defendant alleges appellate counsel was ineffective for failing to obtain a complete transcript, the motion is insufficient when the defendant fails to allege what issues could not be properly reviewed as a result of the incomplete transcript. // Lamb v. S., 41 So. 3d 964 (4th DCA 2010), 35 F.L.W. D1695 (7/28/2010)
Counsel is ineffective for failing to raise a fundamental error occurring when defendant is convicted of both dealing in stolen property and grand theft. // Kablitz v. S., 13 So. 3d 155 (4th DCA 2009), 34 F.L.W. D1168 (6/10/2009)
Counsel is ineffective for failing to raise a fundamental error occurring when defendant is convicted of both dealing in stolen property and grand theft. // Kablitz v. S., 13 So. 3d 155 (4th DCA 2009), 34 F.L.W. D1168 (6/10/2009)
Appellate counsel is ineffective for failing to raise as fundamental error a double jeopardy violation that occurred when defendant charged with multiple sex offenses is convicted of several counts of lewd molestation occurring in a single incident. // Binns v. S., 979 So. 2d 439 (4th DCA 2008), 33 F.L.W. D1126 (4/23/2008)
Appellate counsel is ineffective for failing to raise as fundamental error a double jeopardy violation that occurred when defendant charged with multiple sex offenses is convicted of several counts of lewd molestation occurring in a single incident. // Binns v. S., 979 So. 2d 439 (4th DCA 2008), 33 F.L.W. D1126 (4/23/2008)
A petition for habeas alleging ineffective assistance of appellate counsel must be filed within two years of the issuance of the mandate that ends the direct appeal. Where the defendant files a pro se motion for rehearing the day before the mandate is issued, and the motion for rehearing is denied without the mandate being recalled, the time for filing the habeas petition runs from the date of the mandate. Defendant was represented by counsel in the direct appeal, so the motion for rehearing was a nullity. // When a timely motion for rehearing is filed and the mandate issues, the court should recall the mandate and rule on the motion. // Rigueiero v. S., 23 So. 3d 127 (4th DCA 2009), 34 F.L.W. D806 (4/22/2009)
A petition for habeas alleging ineffective assistance of appellate counsel must be filed within two years of the issuance of the mandate that ends the direct appeal. Where the defendant files a pro se motion for rehearing the day before the mandate is issued, and the motion for rehearing is denied without the mandate being recalled, the time for filing the habeas petition runs from the date of the mandate. Defendant was represented by counsel in the direct appeal, so the motion for rehearing was a nullity. // When a timely motion for rehearing is filed and the mandate issues, the court should recall the mandate and rule on the motion. // Rigueiero v. S., 23 So. 3d 127 (4th DCA 2009), 34 F.L.W. D806 (4/22/2009)
The court violates due process when it imposes a higher sentence due to defendant’s continued protestations of innocence after being convicted at trial. (See this case for extensive citations to this point). // Appellate counsel is ineffective for failing to raise the issue of improperly considering protestation of innocence as a basis to impose the statutory maximum sentence. // (But see dissent, arguing that when the sentence imposed is within the judge’s discretion, the sentence is not illegal.) // Whitmore v. S., 27 So. 3d 168 (4th DCA 2010), 35 F.L.W. D289 (2/3/2010)
The court violates due process when it imposes a higher sentence due to defendant’s continued protestations of innocence after being convicted at trial. (See this case for extensive citations to this point). // Appellate counsel is ineffective for failing to raise the issue of improperly considering protestation of innocence as a basis to impose the statutory maximum sentence. // (But see dissent, arguing that when the sentence imposed is within the judge’s discretion, the sentence is not illegal.) // Whitmore v. S., 27 So. 3d 168 (4th DCA 2010), 35 F.L.W. D289 (2/3/2010)
The fact that a petition alleging ineffective assistance of appellate counsel is pending before the court of appeal does not divest the trial court from considering a 3.850 motion alleging ineffective assistance of trial counsel. // Reidy v. S., 30 So. 3d 705 (5th DCA 2010), 35 F.L.W. D696 (3/26/2010)
The fact that a petition alleging ineffective assistance of appellate counsel is pending before the court of appeal does not divest the trial court from considering a 3.850 motion alleging ineffective assistance of trial counsel. // Reidy v. S., 30 So. 3d 705 (5th DCA 2010), 35 F.L.W. D696 (3/26/2010)
The failure to pay a filing fee or obtain an order of insolvency resulting in the dismissal of an appeal is ineffective assistance of appellate counsel, which will result in a belated appeal. // Pineiro v. S., 976 So. 2d 1186 (5th DCA 2008), 33 F.L.W. D822 (3/20/2008)
The failure to pay a filing fee or obtain an order of insolvency resulting in the dismissal of an appeal is ineffective assistance of appellate counsel, which will result in a belated appeal. // Pineiro v. S., 976 So. 2d 1186 (5th DCA 2008), 33 F.L.W. D822 (3/20/2008)
When a direct appeal is affirmed under an Anders procedure, and defendant requested to have the record supplemented to include voir dire and alleges errors during the voir dire process, appellate counsel is ineffective in doing an Anders brief without reviewing the full transcript. Defendant is granted a new appeal relating only to issue raised in voir dire. // Zankman v. S., 992 So. 2d 365 (5th DCA 2008), 33 F.L.W. D2345 (10/3/2008)
When a direct appeal is affirmed under an Anders procedure, and defendant requested to have the record supplemented to include voir dire and alleges errors during the voir dire process, appellate counsel is ineffective in doing an Anders brief without reviewing the full transcript. Defendant is granted a new appeal relating only to issue raised in voir dire. // Zankman v. S., 992 So. 2d 365 (5th DCA 2008), 33 F.L.W. D2345 (10/3/2008)
When the issue before the court is one solely of statutory construction, the court should review the lower court’s decision de novo. // Tillman v. S., 934 So. 2d 1263 (Fla. 2006), 31 F.L.W. S479 (7/6/2006)
When the issue before the court is one solely of statutory construction, the court should review the lower court’s decision de novo. // Tillman v. S., 934 So. 2d 1263 (Fla. 2006), 31 F.L.W. S479 (7/6/2006)
As a general rule, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. On appeal, the concern must be whether after all conflicts in the evidence are resolved in favor of the judgment on appeal, there is substantial competent evidence to support the trial court’s decision. // Johnston v. S., 930 So. 2d 581 (Fla. 2006), 31 F.L.W. S273 (5/4/2006)
As a general rule, an appellate court should not retry a case or reweigh conflicting evidence submitted to a jury or other trier of fact. On appeal, the concern must be whether after all conflicts in the evidence are resolved in favor of the judgment on appeal, there is substantial competent evidence to support the trial court’s decision. // Johnston v. S., 930 So. 2d 581 (Fla. 2006), 31 F.L.W. S273 (5/4/2006)
The standard of review following the denial of a post-conviction claim where the court has conducted an evidentiary hearing affords deference to the trial court’s findings. The appellate court will not substitute its judgment on questions of fact, or on the credibility of witnesses as well as the weight given to evidence by the trial court. // Walls v. S., 926 So. 2d 1156 (Fla. 2006), 31 F.L.W. S101 (2/9/2006)
The standard of review following the denial of a post-conviction claim where the court has conducted an evidentiary hearing affords deference to the trial court’s findings. The appellate court will not substitute its judgment on questions of fact, or on the credibility of witnesses as well as the weight given to evidence by the trial court. // Walls v. S., 926 So. 2d 1156 (Fla. 2006), 31 F.L.W. S101 (2/9/2006)
An error is harmless if the reviewing court find beyond a reasonable doubt that the error in a trial did not affect or contribute to the verdict. The analysis is not a device for the appellate court to substitute itself for the jury. // Where erroneous collateral crime evidence is presented briefly in a long trial, and the evidence is circumscribed and a proper instruction is given, the error in allowing the evidence is harmless. // In determining whether the trial court erred in admitting photos, the appellate court reviews the claim on an abuse of discretion standard. // Floyd v. S., 913 So. 2d 564 (Fla. 2005), 30 F.L.W. S689 (10/12/2005)
An error is harmless if the reviewing court find beyond a reasonable doubt that the error in a trial did not affect or contribute to the verdict. The analysis is not a device for the appellate court to substitute itself for the jury. // Where erroneous collateral crime evidence is presented briefly in a long trial, and the evidence is circumscribed and a proper instruction is given, the error in allowing the evidence is harmless. // In determining whether the trial court erred in admitting photos, the appellate court reviews the claim on an abuse of discretion standard. // Floyd v. S., 913 So. 2d 564 (Fla. 2005), 30 F.L.W. S689 (10/12/2005)
In reviewing a claimed scoresheet error on direct appeal or on a 3.850 motion, the court can find that the error was harmless if the trial court would have imposed the same sentence had it had a correctly calculated scoresheet. The proper harmless error standard is not whether the could have imposed the same sentence. // S. v. Anderson, 905 So. 2d 111 (Fla. 2005), 30 F.L.W. S437 (6/16/2005) // approving Anderson v. S., 865 So. 2d 640 (2d DCA 2004) // reversing Hummerl v. S., 782 So. 2d 450 (1st DCA 2001)
In reviewing a claimed scoresheet error on direct appeal or on a 3.850 motion, the court can find that the error was harmless if the trial court would have imposed the same sentence had it had a correctly calculated scoresheet. The proper harmless error standard is not whether the could have imposed the same sentence. // S. v. Anderson, 905 So. 2d 111 (Fla. 2005), 30 F.L.W. S437 (6/16/2005) // approving Anderson v. S., 865 So. 2d 640 (2d DCA 2004) // reversing Hummerl v. S., 782 So. 2d 450 (1st DCA 2001)
The court has discretion to refuse to answer a question from the jury, and on appeal from the refusal to answer the question, the standard is whether the court abused its discretion. // When the court decides to answer a question, the issue on appeal is whether the court abused its discretion in providing the answer. // Telling a penalty phase jury that defendant was entitled to credit for time served against a sentence of life with no possibility of parole for 25 years is proper, and telling the jury that there is no guarantee that defendant would obtain parole after 25 years likewise is not an abuse of discretion. // Green v. S., 907 So. 2d 489 (Fla. 2005), 30 F.L.W. S318 (4/28/2005)
The court has discretion to refuse to answer a question from the jury, and on appeal from the refusal to answer the question, the standard is whether the court abused its discretion. // When the court decides to answer a question, the issue on appeal is whether the court abused its discretion in providing the answer. // Telling a penalty phase jury that defendant was entitled to credit for time served against a sentence of life with no possibility of parole for 25 years is proper, and telling the jury that there is no guarantee that defendant would obtain parole after 25 years likewise is not an abuse of discretion. // Green v. S., 907 So. 2d 489 (Fla. 2005), 30 F.L.W. S318 (4/28/2005)
When reviewing a ruling on a motion to suppress a confession, the appellate court accords a presumption of correctness to the trial court’s findings of historical fact, and will reverse a finding of fact only if it is not supported by competent substantial evidence. The appellate court will review de novo whether the application of the law to the facts establishes an adequate basis for the ruling. // Deference to the trial court’s findings of fact does not fully apply when the findings are not based on live testimony. Where the court makes a ruling based on the review of transcripts, depositions, and other documents, the “clearly erroneous standard” does not apply with full force. // Parker v. S., 873 So. 2d 270 (Fla. 2004), 29 F.L.W. S27 (1/22/2004)
When reviewing a ruling on a motion to suppress a confession, the appellate court accords a presumption of correctness to the trial court’s findings of historical fact, and will reverse a finding of fact only if it is not supported by competent substantial evidence. The appellate court will review de novo whether the application of the law to the facts establishes an adequate basis for the ruling. // Deference to the trial court’s findings of fact does not fully apply when the findings are not based on live testimony. Where the court makes a ruling based on the review of transcripts, depositions, and other documents, the “clearly erroneous standard” does not apply with full force. // Parker v. S., 873 So. 2d 270 (Fla. 2004), 29 F.L.W. S27 (1/22/2004)
(See Williams v. S., 863 So. 2d 1189 (Fla. 2003), 28 F.L.W. S853 (12/11/2003), quashing Williams v. S., 834 So. 2d 923 (3d DCA 2003), for discussion of the harmless error standard.)
(See Williams v. S., 863 So. 2d 1189 (Fla. 2003), 28 F.L.W. S853 (12/11/2003), quashing Williams v. S., 834 So. 2d 923 (3d DCA 2003), for discussion of the harmless error standard.)
The Supreme Court will uphold the trial court’s ruling regarding the application of an aggravating factor if the court applied the right rule of law and the ruling is supported by competent evidence in the record. // McCoy v. S., 853 So. 2d 396 (Fla. 2003), 28 F.L.W. S652 (8/21/2003)
The Supreme Court will uphold the trial court’s ruling regarding the application of an aggravating factor if the court applied the right rule of law and the ruling is supported by competent evidence in the record. // McCoy v. S., 853 So. 2d 396 (Fla. 2003), 28 F.L.W. S652 (8/21/2003)
The DiGuilio definition of harmless error remains the correct standard of review in cases where the court must determine if an error is harmful. Under DiGuilio, the beneficiary of the error must show beyond a reasonable doubt that the error did not affect the verdict. // Knowles v. S., 848 So. 2d 1055 (Fla. 2003), 28 F.L.W. S450 (6/12/2003) // reversing Knowles v. S., 800 So. 2d 259 (2dDCA 2001)
The DiGuilio definition of harmless error remains the correct standard of review in cases where the court must determine if an error is harmful. Under DiGuilio, the beneficiary of the error must show beyond a reasonable doubt that the error did not affect the verdict. // Knowles v. S., 848 So. 2d 1055 (Fla. 2003), 28 F.L.W. S450 (6/12/2003) // reversing Knowles v. S., 800 So. 2d 259 (2dDCA 2001)
Denial of a motion to sever charges is reviewed on an abuse of discretion standard. // Lugo v. S., 845 So. 2d 74 (Fla. 2003), 28 F.L.W. S159 (2/20/2003)
Denial of a motion to sever charges is reviewed on an abuse of discretion standard. // Lugo v. S., 845 So. 2d 74 (Fla. 2003), 28 F.L.W. S159 (2/20/2003)
Giving the standard aggravated child abuse instruction which defines “maliciously” as “wrongfully, intentionally, without legal justification or excuse,” is fundamental error in a case where the element is disputed at trial. When there is no dispute about the element, the failure to give a proper instruction is not fundamental error. // Regardless of whether the evidence is overwhelming, the error can be fundamental if the inaccurate instruction is pertinent or material to what the jury must consider to convict. When the inaccurate definition reduced the state’s burden of proof, the inaccurate instruction is material to what the jury had to consider to convict. // Fundamental error is not subject to harmless error review. By its nature, fundamental error is harmful. If it were not harmful, it could not be fundamental. // The decision in this case is applicable to all cases not yet final. It is not to be applied retroactively to cases that are final before the issuance of this opinion. // The proper definition of “malice” is “ill will, hatred, spite, an evil intent.” // •Reed v. S., 837 So. 2d 366 (Fla. 2002), 27 F.L.W. S1045 (12/19/2002) // receding from State v. Clark, 614 So. 2d 453 (Fla. 1992)
Giving the standard aggravated child abuse instruction which defines “maliciously” as “wrongfully, intentionally, without legal justification or excuse,” is fundamental error in a case where the element is disputed at trial. When there is no dispute about the element, the failure to give a proper instruction is not fundamental error. // Regardless of whether the evidence is overwhelming, the error can be fundamental if the inaccurate instruction is pertinent or material to what the jury must consider to convict. When the inaccurate definition reduced the state’s burden of proof, the inaccurate instruction is material to what the jury had to consider to convict. // Fundamental error is not subject to harmless error review. By its nature, fundamental error is harmful. If it were not harmful, it could not be fundamental. // The decision in this case is applicable to all cases not yet final. It is not to be applied retroactively to cases that are final before the issuance of this opinion. // The proper definition of “malice” is “ill will, hatred, spite, an evil intent.” // •Reed v. S., 837 So. 2d 366 (Fla. 2002), 27 F.L.W. S1045 (12/19/2002) // receding from State v. Clark, 614 So. 2d 453 (Fla. 1992)
When reviewing a trial court’s ruling on a post-conviction relief motion, the appellate court must give deference to the trial court’s factual finding but will review the legal rulings de novo. // Gudinas v. S., 816 So. 2d 1095 (Fla. 2002), 27 F.L.W. S279 (3/28/2002)
When reviewing a trial court’s ruling on a post-conviction relief motion, the appellate court must give deference to the trial court’s factual finding but will review the legal rulings de novo. // Gudinas v. S., 816 So. 2d 1095 (Fla. 2002), 27 F.L.W. S279 (3/28/2002)
A determination whether a suspect is “in custody” for Miranda purposes involves two discrete inquires; first, what were the circumstances surrounding the interrogation, and second, would a reasonable person have felt he was not at liberty to terminate the interrogation and leave. The first inquiry is factual and he second is a mixed question of law and fact. // Appellate courts should give a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the court’s determination of historical facts. Appellate court must independently review mixed questions of law and fact that ultimately determine constitutional issues in fourth and fifth amendment contexts. // •Connor v. S., 803 So. 2d 598 (Fla. 2001), 26 F.L.W. S579 (9/6/2001)
A determination whether a suspect is “in custody” for Miranda purposes involves two discrete inquires; first, what were the circumstances surrounding the interrogation, and second, would a reasonable person have felt he was not at liberty to terminate the interrogation and leave. The first inquiry is factual and he second is a mixed question of law and fact. // Appellate courts should give a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the court’s determination of historical facts. Appellate court must independently review mixed questions of law and fact that ultimately determine constitutional issues in fourth and fifth amendment contexts. // •Connor v. S., 803 So. 2d 598 (Fla. 2001), 26 F.L.W. S579 (9/6/2001)
An order denying a motion to suppress a statement is review by a two-part standard. The facts found in the order are presumed correct and may not be rejected if they are supported by competent, substantial evidence. The legal conclusions drawn from those facts are reviewed on a de novo standard. // Evans v. S., 911 So. 2d 796 (1st DCA 2005), 30 F.L.W. D509 (2/22/2005)
An order denying a motion to suppress a statement is review by a two-part standard. The facts found in the order are presumed correct and may not be rejected if they are supported by competent, substantial evidence. The legal conclusions drawn from those facts are reviewed on a de novo standard. // Evans v. S., 911 So. 2d 796 (1st DCA 2005), 30 F.L.W. D509 (2/22/2005)
The giving or withholding of a jury instruction is reviewed on an abuse of discretion standard. However, the court’s discretion is narrow in a circumstance where the defense requests an instruction on his theory of defense. The defense is entitled to a defense instruction if there is any evidence to support the instruction. // Palmore v. S., 838 So. 2d 1222 (1st DCA 2003), 28 F.L.W. D671 (3/7/2003)
The giving or withholding of a jury instruction is reviewed on an abuse of discretion standard. However, the court’s discretion is narrow in a circumstance where the defense requests an instruction on his theory of defense. The defense is entitled to a defense instruction if there is any evidence to support the instruction. // Palmore v. S., 838 So. 2d 1222 (1st DCA 2003), 28 F.L.W. D671 (3/7/2003)
When the state concedes that child hearsay was improperly admitted, but that the error was harmless because the evidence was cumulative, the state must show beyond a reasonable doubt that the improperly admitted evidence did not contribute to the verdict. // Claridy v. S., 827 So. 2d 1088 (1st DCA 2002), 27 F.L.W. D2240 (10/14/2002)
When the state concedes that child hearsay was improperly admitted, but that the error was harmless because the evidence was cumulative, the state must show beyond a reasonable doubt that the improperly admitted evidence did not contribute to the verdict. // Claridy v. S., 827 So. 2d 1088 (1st DCA 2002), 27 F.L.W. D2240 (10/14/2002)
The decision to grant or deny a JOA is reviewed on a de novo standard. // Watkins v. S., 826 So. 2d 471 (1st DCA 2002), 27 F.L.W. D2065 (9/20/2002)
The decision to grant or deny a JOA is reviewed on a de novo standard. // Watkins v. S., 826 So. 2d 471 (1st DCA 2002), 27 F.L.W. D2065 (9/20/2002)
When the trial court determines that the search warrant was facially insufficient to meet minimum constitutional requirements, the question is purely one of law and the appellate court will review the issue de novo. // S. v. Eldridge, 814 So. 2d 1138 (1st DCA 2002), 27 F.L.W. D824 (4/10/2002)
When the trial court determines that the search warrant was facially insufficient to meet minimum constitutional requirements, the question is purely one of law and the appellate court will review the issue de novo. // S. v. Eldridge, 814 So. 2d 1138 (1st DCA 2002), 27 F.L.W. D824 (4/10/2002)
(See Sampson v. S., 903 So. 2d 1055 (2d DCA 2005), 30 F.L.W. D1552 (6/22/2005), Altenbernd, CJ, concurring, for discussion of the distinction between harmful and harmless error in the context of a fundamental error.)
(See Sampson v. S., 903 So. 2d 1055 (2d DCA 2005), 30 F.L.W. D1552 (6/22/2005), Altenbernd, CJ, concurring, for discussion of the distinction between harmful and harmless error in the context of a fundamental error.)
An order granting a motion for post-conviction relief will be reversed if it is not supported by substantial, competent evidence. // S. v. Pawle, 884 So. 2d 1137 (2d DCA 2004), 29 F.L.W. D2370 (10/22/2004)
An order granting a motion for post-conviction relief will be reversed if it is not supported by substantial, competent evidence. // S. v. Pawle, 884 So. 2d 1137 (2d DCA 2004), 29 F.L.W. D2370 (10/22/2004)
When the trial court grants a judgment of acquittal following a jury verdict of guilty, the correctness of that ruling is reviewed on a de novo standard to determine whether the evidence supports the jury’s verdict. // S. v. Odom, 862 So. 2d 56 (2d DCA 2003), 28 F.L.W. D2326 (10/10/2003)
When the trial court grants a judgment of acquittal following a jury verdict of guilty, the correctness of that ruling is reviewed on a de novo standard to determine whether the evidence supports the jury’s verdict. // S. v. Odom, 862 So. 2d 56 (2d DCA 2003), 28 F.L.W. D2326 (10/10/2003)
The granting or denying of a c(4) motion is reviewed on a de novo standard. // Bell v. S., 835 So. 2d 392 (2d DCA 2003), 28 F.L.W. D338 (1/31/2003)
The granting or denying of a c(4) motion is reviewed on a de novo standard. // Bell v. S., 835 So. 2d 392 (2d DCA 2003), 28 F.L.W. D338 (1/31/2003)
In cases of constitutional error, the general rule is that such an error does not automatically require reversal because the error can be harmless. However, certain constitutional error are considered structural defects in the trial, which cannot be subject to harmless error analysis. // Denial of court-ordered individual voir dire is a structural defect and requires reversal. // Dougherty v. S., 813 So. 2d 217 (2d DCA 2002), 27 F.L.W. D756 (4/3/2002)
In cases of constitutional error, the general rule is that such an error does not automatically require reversal because the error can be harmless. However, certain constitutional error are considered structural defects in the trial, which cannot be subject to harmless error analysis. // Denial of court-ordered individual voir dire is a structural defect and requires reversal. // Dougherty v. S., 813 So. 2d 217 (2d DCA 2002), 27 F.L.W. D756 (4/3/2002)
An improper comment about the defendant’s character can be remedied with a proper curative instruction. When an improper comment is made and the court immediately sustains an objection and gives a curative instruction, the issue on appeal is not whether the comment constitutes harmless error. The proper standard is whether the trial court abused discretion in giving a curative instruction rather than granting a mistrial. A mistrial should be granted only when the comment is so prejudicial that it vitiates the entire trial. // A comment that goes to the defendant’s criminal record, while harmful, does not necessarily require a mistrial when a proper curative instruction is given. Similarly, the fact that the trial is a credibility contest will not require a mistrial when improper comments are made. The fact that the defendant gave several inconsistent statements show his testimony is not credible, proper curative instructions were given, and the prosecutor does not comment on the statements, and the court properly denies a mistrial. // (See this case for discussion of when the court abuses its discretion in refusing to grant a mistrial based on a witness’ improper comments.) // Villanueva v. S., 917 So. 2d 968 (3d DCA 2005), 31 F.L.W. D80 (12/28/2005)
An improper comment about the defendant’s character can be remedied with a proper curative instruction. When an improper comment is made and the court immediately sustains an objection and gives a curative instruction, the issue on appeal is not whether the comment constitutes harmless error. The proper standard is whether the trial court abused discretion in giving a curative instruction rather than granting a mistrial. A mistrial should be granted only when the comment is so prejudicial that it vitiates the entire trial. // A comment that goes to the defendant’s criminal record, while harmful, does not necessarily require a mistrial when a proper curative instruction is given. Similarly, the fact that the trial is a credibility contest will not require a mistrial when improper comments are made. The fact that the defendant gave several inconsistent statements show his testimony is not credible, proper curative instructions were given, and the prosecutor does not comment on the statements, and the court properly denies a mistrial. // (See this case for discussion of when the court abuses its discretion in refusing to grant a mistrial based on a witness’ improper comments.) // Villanueva v. S., 917 So. 2d 968 (3d DCA 2005), 31 F.L.W. D80 (12/28/2005)
When a trial court’s ruling on a 3.850 motion is not supported by the evidence, the reviewing court need not give deference to the court’s findings. // Schofield v. S., 914 So. 2d 990 (4th DCA 2005), 30 F.L.W. D2414 (10/12/2005)
When a trial court’s ruling on a 3.850 motion is not supported by the evidence, the reviewing court need not give deference to the court’s findings. // Schofield v. S., 914 So. 2d 990 (4th DCA 2005), 30 F.L.W. D2414 (10/12/2005)
(See Eliakim v. S., 884 So. 2d 57 (4th DCA 2004), 29 F.L.W. D603 (3/10/2004) (Farmer, J., dissenting), for extensive discussion of the abuse of discretion standard for review concerning rulings pertaining to the admission of evidence at trial.)
(See Eliakim v. S., 884 So. 2d 57 (4th DCA 2004), 29 F.L.W. D603 (3/10/2004) (Farmer, J., dissenting), for extensive discussion of the abuse of discretion standard for review concerning rulings pertaining to the admission of evidence at trial.)
While the reviewing court should review the evidence and inferences derived therefrom in the light most favorable to sustain the ruling, a defendant is entitled to a de novo review of whether the application of the law to the facts in a motion suppress is correct. // Nicholas v. S., 857 So. 2d 980 (4th DCA 2003), 28 F.L.W. D2474 (10/29/2003)
While the reviewing court should review the evidence and inferences derived therefrom in the light most favorable to sustain the ruling, a defendant is entitled to a de novo review of whether the application of the law to the facts in a motion suppress is correct. // Nicholas v. S., 857 So. 2d 980 (4th DCA 2003), 28 F.L.W. D2474 (10/29/2003)
The standard of review in finding a VOP is abuse of discretion. // Lacey v. S., 831 So. 2d 1267 (4th DCA 2002), 28 F.L.W. D52 (12/18/2002)
The standard of review in finding a VOP is abuse of discretion. // Lacey v. S., 831 So. 2d 1267 (4th DCA 2002), 28 F.L.W. D52 (12/18/2002)
Whether a statement falls within the definition of hearsay is a question of law and is subject to de novo review on appeal. // K.V. v. S., 832 So. 2d 264 (4th DCA 2002), 27 F.L.W. D2632 (12/11/2002)
Whether a statement falls within the definition of hearsay is a question of law and is subject to de novo review on appeal. // K.V. v. S., 832 So. 2d 264 (4th DCA 2002), 27 F.L.W. D2632 (12/11/2002)
The test of harmless error is whether there is a reasonable possibility that the error affected the verdict. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is harmful. // Armstrong v. S., 931 So. 2d 187 (5th DCA 2006), 31 F.L.W. D1588 (6/9/2006)
The test of harmless error is whether there is a reasonable possibility that the error affected the verdict. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is harmful. // Armstrong v. S., 931 So. 2d 187 (5th DCA 2006), 31 F.L.W. D1588 (6/9/2006)
A finding of violation of probation is reviewed on an abuse of discretion standard. The court has broad discretion in determining whether a violation was willful and substantial and whether the violation is shown by the greater weight of the evidence. When defendant gives reasons for his violations it is within the court’s discretion to rule on the disputed facts. // Hill v. S., 890 So. 2d 485 (5th DCA 2004), 30 F.L.W. D126 (12/30/2004)
A finding of violation of probation is reviewed on an abuse of discretion standard. The court has broad discretion in determining whether a violation was willful and substantial and whether the violation is shown by the greater weight of the evidence. When defendant gives reasons for his violations it is within the court’s discretion to rule on the disputed facts. // Hill v. S., 890 So. 2d 485 (5th DCA 2004), 30 F.L.W. D126 (12/30/2004)
In the appeal of a conviction based solely on circumstantial evidence, the standard of review is whether there is substantial, competent evidence to support the judgment. The standard of review is not whether the evidence failed to exclude all reasonable hypotheses of innocence. // Williams v. S., 884 So. 2d 1097 (5th DCA 2004), 29 F.L.W. D2355 (10/22/2004)
In the appeal of a conviction based solely on circumstantial evidence, the standard of review is whether there is substantial, competent evidence to support the judgment. The standard of review is not whether the evidence failed to exclude all reasonable hypotheses of innocence. // Williams v. S., 884 So. 2d 1097 (5th DCA 2004), 29 F.L.W. D2355 (10/22/2004)
A ruling on a motion to suppress is presumed correct, and the reviewing court will interpret the evidence in a manner most favorable to the prevailing party. // Holden v. S., 877 So. 2d 800 (5th DCA 2004), 29 F.L.W. D1567 (7/2/2004)
A ruling on a motion to suppress is presumed correct, and the reviewing court will interpret the evidence in a manner most favorable to the prevailing party. // Holden v. S., 877 So. 2d 800 (5th DCA 2004), 29 F.L.W. D1567 (7/2/2004)
Post-conviction relief claims are a mixed question of fact and law. When the trial court makes ruling on questions of fact, the appellate court will defer to those rulings if supported by competent substantial evidence. // Casler v. S., 871 So. 2d 957 (5th DCA 2004), 29 F.L.W. D834 (4/2/2004)
Post-conviction relief claims are a mixed question of fact and law. When the trial court makes ruling on questions of fact, the appellate court will defer to those rulings if supported by competent substantial evidence. // Casler v. S., 871 So. 2d 957 (5th DCA 2004), 29 F.L.W. D834 (4/2/2004)
The giving or withholding a requested jury instruction is reviewed on an abuse of discretion standard. // Worley v. S., 848 So. 2d 491 (5th DCA 2003), 28 F.L.W. D1551 (7/3/2003)
The giving or withholding a requested jury instruction is reviewed on an abuse of discretion standard. // Worley v. S., 848 So. 2d 491 (5th DCA 2003), 28 F.L.W. D1551 (7/3/2003)
Findings of fact after an evidentiary hearing should not be disturbed on appeal if supported by competent substantial evidence. Where trial counsel testifies that he conveyed a plea offer which defendant rejected, and defendant testifies he did not, and the court believes trial counsel, the court’s denial of the 3.850 motion is affirmed. // Wilson v. S., 828 So. 2d 474 (5th DCA 2002), 27 F.L.W. D2289 (10/18/2002)
Findings of fact after an evidentiary hearing should not be disturbed on appeal if supported by competent substantial evidence. Where trial counsel testifies that he conveyed a plea offer which defendant rejected, and defendant testifies he did not, and the court believes trial counsel, the court’s denial of the 3.850 motion is affirmed. // Wilson v. S., 828 So. 2d 474 (5th DCA 2002), 27 F.L.W. D2289 (10/18/2002)
The decision whether to add victim injury points is subject to an abuse of discretion standard. // Sims v. S., 998 So. 2d 494 (Fla. 2008), 33 F.L.W. S698 (9/25/2008)
The decision whether to add victim injury points is subject to an abuse of discretion standard. // Sims v. S., 998 So. 2d 494 (Fla. 2008), 33 F.L.W. S698 (9/25/2008)
The appellate court gives deference to the trial court’s finds of fact in determining whether a Brady violation occurred, and reviews de novo the application of the law and independently reviews the cumulative effect of the suppressed evidence. // Geralds v. S., ___ So. 3d ___, 35 F.L.W. S503 (Fla. 9/16/2010)
The appellate court gives deference to the trial court’s finds of fact in determining whether a Brady violation occurred, and reviews de novo the application of the law and independently reviews the cumulative effect of the suppressed evidence. // Geralds v. S., ___ So. 3d ___, 35 F.L.W. S503 (Fla. 9/16/2010)
The Diguilio harmless error test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test, or a strong evidence test. The issue is whether there is a reasonable possibility that the error affected the verdict. The appellate court errs when it affirms a conviction after finding error because the evidence against the defendant was strong. // Cooper v. S., 43 So. 3d 42 (Fla. 2010), 35 F.L.W. S455 (8/25/2010) // quashing Cooper v. S., 13 So. 3d 147 (Fla. 2d DCA 2009)
The Diguilio harmless error test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test, or a strong evidence test. The issue is whether there is a reasonable possibility that the error affected the verdict. The appellate court errs when it affirms a conviction after finding error because the evidence against the defendant was strong. // Cooper v. S., 43 So. 3d 42 (Fla. 2010), 35 F.L.W. S455 (8/25/2010) // quashing Cooper v. S., 13 So. 3d 147 (Fla. 2d DCA 2009)
Rulings regarding the admission of evidence are reviewed on an abused of discretion standard. Discretion is abused if the ruling is contrary to the rules of evidence. // Hudson v. S., 992 So. 2d 96 (Fla. 2008), 33 F.L.W. S465 (7/3/2008)
Rulings regarding the admission of evidence are reviewed on an abused of discretion standard. Discretion is abused if the ruling is contrary to the rules of evidence. // Hudson v. S., 992 So. 2d 96 (Fla. 2008), 33 F.L.W. S465 (7/3/2008)
A ruling on a motion for mistrial based on an improper comment by the prosecutor during closing is reviewed on an abuse of discretion standard. For the prosecutor’s comments to require a new trial, the comments must either deprive the defendant of a fair trial, materially contribute to the verdict, be so harmfully or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. // It is improper for the state to argue to the jury that they made a deal with the actual shooter to testify against the ringleader because they were concerned that there would be another attempt on the victim’s life if the defendant were not convicted. The comment is improper, but the court properly denies a motion for mistrial. // (See this case, including Parenti, J. concurring opinion and Bell, J. concurring opinion regarding the proper standard of appellate review on issues prosecutorial misconduct based on improper arguments in closing.) // •Salazar v. S., 991 So. 2d 364 (Fla. 2008), 33 F.L.W. S535 (7/10/2008)
A ruling on a motion for mistrial based on an improper comment by the prosecutor during closing is reviewed on an abuse of discretion standard. For the prosecutor’s comments to require a new trial, the comments must either deprive the defendant of a fair trial, materially contribute to the verdict, be so harmfully or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. // It is improper for the state to argue to the jury that they made a deal with the actual shooter to testify against the ringleader because they were concerned that there would be another attempt on the victim’s life if the defendant were not convicted. The comment is improper, but the court properly denies a motion for mistrial. // (See this case, including Parenti, J. concurring opinion and Bell, J. concurring opinion regarding the proper standard of appellate review on issues prosecutorial misconduct based on improper arguments in closing.) // •Salazar v. S., 991 So. 2d 364 (Fla. 2008), 33 F.L.W. S535 (7/10/2008)
Both prongs of Strickland involve mixed questions of fact and law, so on review the court uses a mixed standard of review. The court defers to the trial court’s finding of fact, but reviews the trial court’s legal conclusions de novo. // Bolin v. S., 41 So. 3d 151 (Fla. 2010), 35 F.L.W. S386 (7/1/2010)
Both prongs of Strickland involve mixed questions of fact and law, so on review the court uses a mixed standard of review. The court defers to the trial court’s finding of fact, but reviews the trial court’s legal conclusions de novo. // Bolin v. S., 41 So. 3d 151 (Fla. 2010), 35 F.L.W. S386 (7/1/2010)
When reviewing a trial court’s ruling on a competency issue, the appellate court applies the competent, substantial evidence standard. // Gore v. S., 24 So. 3d 1 (Fla. 2009), 34 F.L.W. S375 (6/25/2009)
When reviewing a trial court’s ruling on a competency issue, the appellate court applies the competent, substantial evidence standard. // Gore v. S., 24 So. 3d 1 (Fla. 2009), 34 F.L.W. S375 (6/25/2009)
A decision regarding the admissibility of evidence is reviewed on an abuse of discretion standard. // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)
A decision regarding the admissibility of evidence is reviewed on an abuse of discretion standard. // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)
A ruling on a motion to suppress a statement comes to the appellate court with a presumption of correctness and the reviewing court must interpret the evidence and reasonable inferences in manner most favorable to sustaining the trial court’s ruling. Mixed questions of fact and law that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of fact but conducting a de novo review of the constitutional issue. // Walker v. S., 957 So. 2d 560 (Fla. 2007), 32 F.L.W. S201 (5/3/2007)
A ruling on a motion to suppress a statement comes to the appellate court with a presumption of correctness and the reviewing court must interpret the evidence and reasonable inferences in manner most favorable to sustaining the trial court’s ruling. Mixed questions of fact and law that ultimately determine constitutional rights should be reviewed by appellate courts using a two-step approach, deferring to the trial court on questions of fact but conducting a de novo review of the constitutional issue. // Walker v. S., 957 So. 2d 560 (Fla. 2007), 32 F.L.W. S201 (5/3/2007)
In reviewing a decision to suppress a statement, the appellate court defers to the fact-finding by the trial court, but reviews the application of the law to those facts de novo. // Determining whether a suspect is in custody for Miranda purposes is subject to independent review by an appellate court. // Ross v. S., 45 So. 3d 403 (Fla. 2010), 35 F.L.W. S295 (5/27/2010)
In reviewing a decision to suppress a statement, the appellate court defers to the fact-finding by the trial court, but reviews the application of the law to those facts de novo. // Determining whether a suspect is in custody for Miranda purposes is subject to independent review by an appellate court. // Ross v. S., 45 So. 3d 403 (Fla. 2010), 35 F.L.W. S295 (5/27/2010)
In reviewing the court’s ruling on a motion for JOA, a de novo standard applies. // Serrano v. S., ___ So. 3d ___, 36 F.L.W. S108 (Fla. 3/17/2011)
In reviewing the court’s ruling on a motion for JOA, a de novo standard applies. // Serrano v. S., ___ So. 3d ___, 36 F.L.W. S108 (Fla. 3/17/2011)
A trial court’s ruling on a motion to suppress comes clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustaining the trial court’s ruling. // Hojan v. S., 3 So. 3d 1204 (Fla. 2009), 34 F.L.W. S256 (2/27/2009)
A trial court’s ruling on a motion to suppress comes clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions therefrom in a manner most favorable to sustaining the trial court’s ruling. // Hojan v. S., 3 So. 3d 1204 (Fla. 2009), 34 F.L.W. S256 (2/27/2009)
The Diguilio harmless error standard is not an “overwhelming evidence” standard. Overwhelming evidence of guilt does not negate the fact that the erroneous evidence may have played a substantial part in the jury’s deliberation and thus contributed to the verdict. The rule requires the state to show beyond a reasonable doubt that the error did not contribute to the verdict, or alternatively, that there is no reasonable possibility that the error contributed to the conviction. That standard requires that the appellate court not only closely review the permissible evidence on which the jury could have relied, but also an even closer evaluation of the impermissible evidence which might have influenced the verdict. The test is not whether the jury reached the correct result, but whether a reasonable possibility exists that the constitutional violation contributed to the defendant’s conviction. // (See this case for extensive discussion of the harmless error standard.) // •Ventura v. S., 29 So. 3d 1086 (Fla. 2010), 35 F.L.W. S117 (2/18/2010) // reversing in part Ventura v. S., 973 So. 2d 634 (3d DCA 2008)
The Diguilio harmless error standard is not an “overwhelming evidence” standard. Overwhelming evidence of guilt does not negate the fact that the erroneous evidence may have played a substantial part in the jury’s deliberation and thus contributed to the verdict. The rule requires the state to show beyond a reasonable doubt that the error did not contribute to the verdict, or alternatively, that there is no reasonable possibility that the error contributed to the conviction. That standard requires that the appellate court not only closely review the permissible evidence on which the jury could have relied, but also an even closer evaluation of the impermissible evidence which might have influenced the verdict. The test is not whether the jury reached the correct result, but whether a reasonable possibility exists that the constitutional violation contributed to the defendant’s conviction. // (See this case for extensive discussion of the harmless error standard.) // •Ventura v. S., 29 So. 3d 1086 (Fla. 2010), 35 F.L.W. S117 (2/18/2010) // reversing in part Ventura v. S., 973 So. 2d 634 (3d DCA 2008)
In reviewing Brady and Giglio claims, the appellate court is bound by the factual determinations made by the trial court to the extent they are supported by substantial competent evidence. The appellate court decides de novo whether the facts are sufficient to establish each element of the claim. // Jones v. S., 998 So. 2d 573 (Fla. 2008), 34 F.L.W. S8 (12/23/2008)
In reviewing Brady and Giglio claims, the appellate court is bound by the factual determinations made by the trial court to the extent they are supported by substantial competent evidence. The appellate court decides de novo whether the facts are sufficient to establish each element of the claim. // Jones v. S., 998 So. 2d 573 (Fla. 2008), 34 F.L.W. S8 (12/23/2008)
The court reviews an issue of statutory construction de novo. // When a statute is clear an unambiguous, the court should give it its plain meaning and there is no reason to resort to the rules of statutory interpretation. // •Hobbs v. S., 999 So. 2d 1025 (Fla. 2008), 33 F.L.W. S1005 (12/23/2008)
The court reviews an issue of statutory construction de novo. // When a statute is clear an unambiguous, the court should give it its plain meaning and there is no reason to resort to the rules of statutory interpretation. // •Hobbs v. S., 999 So. 2d 1025 (Fla. 2008), 33 F.L.W. S1005 (12/23/2008)
(See Poole v. S., 997 So. 2d 382 (Fla. 2008), 33 F.L.W. S957 (12/11/2008), Pariente, J., concurring in result only, for the argument that when the defense objects to a prosecutor’s questions or arguments and requests a mistrial, and the court overrules the objection, and on appeal that ruling is determined to be erroneous, the court should use the harmless error standard of review rather than the mistrial standard.)
(See Poole v. S., 997 So. 2d 382 (Fla. 2008), 33 F.L.W. S957 (12/11/2008), Pariente, J., concurring in result only, for the argument that when the defense objects to a prosecutor’s questions or arguments and requests a mistrial, and the court overrules the objection, and on appeal that ruling is determined to be erroneous, the court should use the harmless error standard of review rather than the mistrial standard.)
In reviewing a trial court’s ruling on a motion to suppress evidence, the appellate court presumes that the court’s factual findings are correct ad reverses those findings only if they are not supported by competent, substantial evidence. Where the court believes police officers’ testimony over the defendant’s regarding the circumstances under which the defendant gave a DNA sample, the ruling that the sample was provided voluntarily is affirmed. // Victorino v. S., 23 So. 3d 87 (Fla. 2009), 34 F.L.W. S645 (11/25/2009)
In reviewing a trial court’s ruling on a motion to suppress evidence, the appellate court presumes that the court’s factual findings are correct ad reverses those findings only if they are not supported by competent, substantial evidence. Where the court believes police officers’ testimony over the defendant’s regarding the circumstances under which the defendant gave a DNA sample, the ruling that the sample was provided voluntarily is affirmed. // Victorino v. S., 23 So. 3d 87 (Fla. 2009), 34 F.L.W. S645 (11/25/2009)
When a question raised on appeal is strictly a question of law, review is de novo. // S. v. Kilgore, 976 So. 2d 1066 (Fla. 2007), 32 F.L.W. S743 (11/21/2007)
When a question raised on appeal is strictly a question of law, review is de novo. // S. v. Kilgore, 976 So. 2d 1066 (Fla. 2007), 32 F.L.W. S743 (11/21/2007)
When there are multiple errors in a trial, and no one error is sufficient to get a reversal, the cumulative error can be considered harmful and will result in reversal. // McDuffie v. S., 970 So. 2d 312 (Fla. 2007), 32 F.L.W. S763 (11/21/2007)
When there are multiple errors in a trial, and no one error is sufficient to get a reversal, the cumulative error can be considered harmful and will result in reversal. // McDuffie v. S., 970 So. 2d 312 (Fla. 2007), 32 F.L.W. S763 (11/21/2007)
There is a presumption that if the trial judge hears inadmissible evidence during the course of a suppression hearing or other proceeding, and the court is sitting as the finder of fact, the judge is capable of distinguishing between the admissible and inadmissible evidence in rendering a verdict or other decision. // On appeal, the appellate court should not presume that the trial judge disregarded all inadmissible evidence when the record shows that the evidence was admitted over objection. Thus, in a bench trial, when the court erroneously overrules an objection to the introduction of evidence, the presumption is overcome. // The appellate court will presume that the trial judge ignored inadmissible evidence unless the record shows the court overruled an objection to the evidence, or there is other evidence that the court relied on the inadmissible evidence. When improper evidence is admitted, the court must make a specific statement on the record that the erroneously admitted evidence did not contribute to the decision. Otherwise, the appellate court must conduct a harmless error analysis to determine whether to affirm the judgment. // (See this case, including concurring opinions, for extensive discussion of the presumption that the trial judge will ignore inadmissible evidence in reaching a decision when sitting as the trier of fact.) // •Petion v. S., 48 So. 3d 726 (Fla. 2010), 35 F.L.W. S597 (10/21/2010) // reversing Petion v. S., 4 So. 3d 83 (4th DCA 2009)
There is a presumption that if the trial judge hears inadmissible evidence during the course of a suppression hearing or other proceeding, and the court is sitting as the finder of fact, the judge is capable of distinguishing between the admissible and inadmissible evidence in rendering a verdict or other decision. // On appeal, the appellate court should not presume that the trial judge disregarded all inadmissible evidence when the record shows that the evidence was admitted over objection. Thus, in a bench trial, when the court erroneously overrules an objection to the introduction of evidence, the presumption is overcome. // The appellate court will presume that the trial judge ignored inadmissible evidence unless the record shows the court overruled an objection to the evidence, or there is other evidence that the court relied on the inadmissible evidence. When improper evidence is admitted, the court must make a specific statement on the record that the erroneously admitted evidence did not contribute to the decision. Otherwise, the appellate court must conduct a harmless error analysis to determine whether to affirm the judgment. // (See this case, including concurring opinions, for extensive discussion of the presumption that the trial judge will ignore inadmissible evidence in reaching a decision when sitting as the trier of fact.) // •Petion v. S., 48 So. 3d 726 (Fla. 2010), 35 F.L.W. S597 (10/21/2010) // reversing Petion v. S., 4 So. 3d 83 (4th DCA 2009)
Where evidence of guilt is wholly circumstantial, the evidence must not only be sufficient to establish every element of the crime, but also it must be inconsistent with an reasonable hypothesis of innocence proposed by the defendant. The issue of inconsistency is for the jury to decide, and the verdict with be sustained on appeal if supported by competent, substantial evidence. // The appellate court reviews the evidence in the light most favorable to the state, and determines whether a rational trier of fact could find the elements of the crime beyond a reasonable doubt. // (See this case for application of circumstantial evidence rules to a first degree murder death penalty case.) // Twilegar v. S., 42 So. 3d 177 (Fla. 2010), 35 F.L.W. S13 (1/7/2010)
Where evidence of guilt is wholly circumstantial, the evidence must not only be sufficient to establish every element of the crime, but also it must be inconsistent with an reasonable hypothesis of innocence proposed by the defendant. The issue of inconsistency is for the jury to decide, and the verdict with be sustained on appeal if supported by competent, substantial evidence. // The appellate court reviews the evidence in the light most favorable to the state, and determines whether a rational trier of fact could find the elements of the crime beyond a reasonable doubt. // (See this case for application of circumstantial evidence rules to a first degree murder death penalty case.) // Twilegar v. S., 42 So. 3d 177 (Fla. 2010), 35 F.L.W. S13 (1/7/2010)
(See Rigterink v. S., 2 So. 3d 221 (Fla. 2009), 34 F.L.W. S132 (1/30/2009) for extensive discussion of the Diguilio harmless error standard of review in a case determining whether admission of a confession obtained in violation of Miranda constituted harmless error.)
(See Rigterink v. S., 2 So. 3d 221 (Fla. 2009), 34 F.L.W. S132 (1/30/2009) for extensive discussion of the Diguilio harmless error standard of review in a case determining whether admission of a confession obtained in violation of Miranda constituted harmless error.)
The standard of review for a case involving the interpretation of a statute is de novo. // Polite v. S., 973 So. 2d 1107 (Fla. 2008), 33 F.L.W. S69 (1/24/2008) // reversing Polite v. S., 933 So. 2d 587 (3d DCA 2006) // approving A.F. v. S., 905 So. 2d 1010 (5th DCA 2005)
The standard of review for a case involving the interpretation of a statute is de novo. // Polite v. S., 973 So. 2d 1107 (Fla. 2008), 33 F.L.W. S69 (1/24/2008) // reversing Polite v. S., 933 So. 2d 587 (3d DCA 2006) // approving A.F. v. S., 905 So. 2d 1010 (5th DCA 2005)
A matter involving a legal determination based upon undisputed facts is reviewed de novo. // Khianthalat v. S., 974 So. 2d 359 (Fla. 2008), 33 F.L.W. S44 (1/17/2008) // approving Khianthalat v. S., 935 So. 2d 583 (2d DCA 2006) // reversing 6., 920 So. 2d 737 (5th DCA 2006)
A matter involving a legal determination based upon undisputed facts is reviewed de novo. // Khianthalat v. S., 974 So. 2d 359 (Fla. 2008), 33 F.L.W. S44 (1/17/2008) // approving Khianthalat v. S., 935 So. 2d 583 (2d DCA 2006) // reversing 6., 920 So. 2d 737 (5th DCA 2006)
The decision on counsel’s motion for leave to withdraw is reviewed on an abuse of discretion standard. // Scott v. S., 991 So. 2d 971 (1st DCA 2008), 33 F.L.W. D2242 (9/22/2008)
The decision on counsel’s motion for leave to withdraw is reviewed on an abuse of discretion standard. // Scott v. S., 991 So. 2d 971 (1st DCA 2008), 33 F.L.W. D2242 (9/22/2008)
A trial court’s ruling on a motion to suppress come to the appellate court with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inference derived therefrom in the manner most favorable to sustaining the trial court’s ruling. // S. v. Cuomo, 43 So. 3d 838 (1st DCA 2010), 35 F.L.W. D1949 (8/31/2010)
A trial court’s ruling on a motion to suppress come to the appellate court with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inference derived therefrom in the manner most favorable to sustaining the trial court’s ruling. // S. v. Cuomo, 43 So. 3d 838 (1st DCA 2010), 35 F.L.W. D1949 (8/31/2010)
The standard for ruling on a motion for dismissal in a juvenile case is the same as a motion for judgment of acquittal in a criminal case. If the state has presented competent evidence going to each element, the motion should be denied. Appellate courts cannot review the weight of the evidence, only its sufficiency. // M.G. v. S., 989 So. 2d 705 (1st DCA 2008), 33 F.L.W. D2046 (8/27/2008)
The standard for ruling on a motion for dismissal in a juvenile case is the same as a motion for judgment of acquittal in a criminal case. If the state has presented competent evidence going to each element, the motion should be denied. Appellate courts cannot review the weight of the evidence, only its sufficiency. // M.G. v. S., 989 So. 2d 705 (1st DCA 2008), 33 F.L.W. D2046 (8/27/2008)
The court erroneously denied a motion to suppress statements, and during opening the state discussed the statement, which was played for the jury. During deliberations the jury asked whether they could hear the tape again, and defnendat was convicted. Held: Despite compelling evidence of guilt, the error in denying the motion to suppress is not harmless. // (See this case for discussion of harmless error standards.) // Miles v. S., ___ So. 3d ___, 36 F.L.W. D620 (1st DCA 3/23/2011)
The court erroneously denied a motion to suppress statements, and during opening the state discussed the statement, which was played for the jury. During deliberations the jury asked whether they could hear the tape again, and defnendat was convicted. Held: Despite compelling evidence of guilt, the error in denying the motion to suppress is not harmless. // (See this case for discussion of harmless error standards.) // Miles v. S., ___ So. 3d ___, 36 F.L.W. D620 (1st DCA 3/23/2011)
The refusal to grant a Richardson inquiry is reviewed de novo. Once a hearing is held, some portions of the court’s ruling may be reviewed on an abuse of discretion standard, but the granting or denying of the right to have a hearing is not discretionary. Once a discovery violation has been established, the entitlement to a Richardson inquiry is also established. // (See this case for extensive discussion of the various standards of review applicable in a Richardson inquiry issue.) // Curry v. S., 1 So. 3d 394 (1st DCA 2009), 34 F.L.W. D313 (2/9/2009)
The refusal to grant a Richardson inquiry is reviewed de novo. Once a hearing is held, some portions of the court’s ruling may be reviewed on an abuse of discretion standard, but the granting or denying of the right to have a hearing is not discretionary. Once a discovery violation has been established, the entitlement to a Richardson inquiry is also established. // (See this case for extensive discussion of the various standards of review applicable in a Richardson inquiry issue.) // Curry v. S., 1 So. 3d 394 (1st DCA 2009), 34 F.L.W. D313 (2/9/2009)
The denial of a motion for JOA after the state’s case is reviewed de novo. // Chisolm v. S., ___ So. 3d ___, 36 F.L.W. D436 (1st DCA 2/28/2011)
The denial of a motion for JOA after the state’s case is reviewed de novo. // Chisolm v. S., ___ So. 3d ___, 36 F.L.W. D436 (1st DCA 2/28/2011)
A determination that a child witness is competent to testify is reviewed on an abuse of discretion standard. // A double jeopardy violation claim is reviewed de novo. // Scoring victim injury points is reviewed on an abuse of discretion standard. // Bennett v. S., 971 So. 2d 196 (1st DCA 2007), 33 F.L.W. D98 (12/31/2007)
A determination that a child witness is competent to testify is reviewed on an abuse of discretion standard. // A double jeopardy violation claim is reviewed de novo. // Scoring victim injury points is reviewed on an abuse of discretion standard. // Bennett v. S., 971 So. 2d 196 (1st DCA 2007), 33 F.L.W. D98 (12/31/2007)
When there is competent evidence to support the court determination regarding a specific fact in issue in a suppression hearing (here, whether there was a legal basis for a traffic stop), the trial court’s factual determination will be upheld on appeal. // Ballenger v. S., 16 So. 3d 1022 (2d DCA 2009), 34 F.L.W. D1835 (9/9/2009)
When there is competent evidence to support the court determination regarding a specific fact in issue in a suppression hearing (here, whether there was a legal basis for a traffic stop), the trial court’s factual determination will be upheld on appeal. // Ballenger v. S., 16 So. 3d 1022 (2d DCA 2009), 34 F.L.W. D1835 (9/9/2009)
The denial of a motion to dismiss is reviewed de novo. // E.A.B. v. S., 964 So. 2d 877 (2d DCA 2007), 32 F.L.W. D2306 (9/26/2007)
The denial of a motion to dismiss is reviewed de novo. // E.A.B. v. S., 964 So. 2d 877 (2d DCA 2007), 32 F.L.W. D2306 (9/26/2007)
The court abuses its discretion when it gives a jury instruction that is not supported by the fact of the case. Giving a principals instruction is error when there is no evidence that the defendant had a conscious intent that the crime be committed and did some act of said some word that was intended to and in fact did incite a third party to commit the crime. Merely being present at the scene of a crime is not sufficient evidence to sustain conviction as a principal. // Defendant’s act of breaking into a trailer with the actual offender is not sufficient to convicted defendant of aggravated battery when the evidence sows the other person actually beat the victim. // Hanks v. S., 43 So. 3d 917 (2d DCA 2010), 35 F.L.W. D2032 (9/10/2010)
The court abuses its discretion when it gives a jury instruction that is not supported by the fact of the case. Giving a principals instruction is error when there is no evidence that the defendant had a conscious intent that the crime be committed and did some act of said some word that was intended to and in fact did incite a third party to commit the crime. Merely being present at the scene of a crime is not sufficient evidence to sustain conviction as a principal. // Defendant’s act of breaking into a trailer with the actual offender is not sufficient to convicted defendant of aggravated battery when the evidence sows the other person actually beat the victim. // Hanks v. S., 43 So. 3d 917 (2d DCA 2010), 35 F.L.W. D2032 (9/10/2010)
Under Diguilio, the introduction of improper Williams rule evidence is harmless if the state shows beyond a reasonable doubt that the erroneous evidence did not contribute to the verdict. Where the victim’s testimony is clear an unequivocal, and defendant confesses to the crime, introducing improper Williams rule evidence is harmless. // Cooper v. S., 13 So. 3d 147 (2d DCA 2009), 34 F.L.W. D1159 (6/10/2009) // reversed on other grounds, Cooper v. S., 43 So. 3d 42 (Fla. 2010)
Under Diguilio, the introduction of improper Williams rule evidence is harmless if the state shows beyond a reasonable doubt that the erroneous evidence did not contribute to the verdict. Where the victim’s testimony is clear an unequivocal, and defendant confesses to the crime, introducing improper Williams rule evidence is harmless. // Cooper v. S., 13 So. 3d 147 (2d DCA 2009), 34 F.L.W. D1159 (6/10/2009) // reversed on other grounds, Cooper v. S., 43 So. 3d 42 (Fla. 2010)
The giving or withholding a jury instruction is reviewed on an abuse of discretion standard. // •Brown v. S., 11 So. 3d 428 (2d DCA 2009), 34 F.L.W. D1016 (5/22/2009)
The giving or withholding a jury instruction is reviewed on an abuse of discretion standard. // •Brown v. S., 11 So. 3d 428 (2d DCA 2009), 34 F.L.W. D1016 (5/22/2009)
Giving or refusing to give a particular jury instruction is reviewed on an abuse of discretion standard. A criminal defendant is entitled to have the jury instructed on his theory of defense, so long as the defense is recognized under the law. // Williams v. S., 34 So. 3d 768 (2d DCA 2010), 35 F.L.W. D1046 (5/12/2010)
Giving or refusing to give a particular jury instruction is reviewed on an abuse of discretion standard. A criminal defendant is entitled to have the jury instructed on his theory of defense, so long as the defense is recognized under the law. // Williams v. S., 34 So. 3d 768 (2d DCA 2010), 35 F.L.W. D1046 (5/12/2010)
The appellate court reviews ruling on the admissibility of evidence on an abuse of discretion standard. A court’s discretion in evidentiary ruling is limited by the evidence code, and a ruling excluding defense evidence is an abuse of discretion when the ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. // Masaka v. S., 4 So. 3d 1274 (2d DCA 2009), 34 F.L.W. D664 (4/1/2009)
The appellate court reviews ruling on the admissibility of evidence on an abuse of discretion standard. A court’s discretion in evidentiary ruling is limited by the evidence code, and a ruling excluding defense evidence is an abuse of discretion when the ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. // Masaka v. S., 4 So. 3d 1274 (2d DCA 2009), 34 F.L.W. D664 (4/1/2009)
While the court typically reviews denials of motions for new trial under an abuse of discretion standard, the standard becomes de novo if, as a matter of law, the trial judge used the incorrect standard in denying the motion. // In evaluating a motion for new trial, the trial court should determine whether the weight of the evidence supported the verdict. The court should not use a sufficiency of evidence standard. // Collett v. S., 28 So. 3d 224 (2d DCA 2010), 35 F.L.W. D475 (2/26/2010)
While the court typically reviews denials of motions for new trial under an abuse of discretion standard, the standard becomes de novo if, as a matter of law, the trial judge used the incorrect standard in denying the motion. // In evaluating a motion for new trial, the trial court should determine whether the weight of the evidence supported the verdict. The court should not use a sufficiency of evidence standard. // Collett v. S., 28 So. 3d 224 (2d DCA 2010), 35 F.L.W. D475 (2/26/2010)
The denial of a motion for JOA is reviewed under a de novo standard and an appellate court will not reverse the conviction if is supported by competent substantial evidence. After viewing the evidence in the light most favorable to the state, if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, the sufficient evidence exists to sustain the conviction. If the evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. If an inconsistency exists between the the defendant’s theory of innocence and the state’s evidence, the trial court should deny the motion for JOA and allow the jury to resolve the inconsistency. A JOA should not be granted unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law. // Evans v. S., 26 So. 3d 85 (2d DCA 2010), 35 F.L.W. D177 (1/20/2010)
The denial of a motion for JOA is reviewed under a de novo standard and an appellate court will not reverse the conviction if is supported by competent substantial evidence. After viewing the evidence in the light most favorable to the state, if a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, the sufficient evidence exists to sustain the conviction. If the evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. If an inconsistency exists between the the defendant’s theory of innocence and the state’s evidence, the trial court should deny the motion for JOA and allow the jury to resolve the inconsistency. A JOA should not be granted unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law. // Evans v. S., 26 So. 3d 85 (2d DCA 2010), 35 F.L.W. D177 (1/20/2010)
The trial court has discretion in determining what evidence should be admitted, and review of the court’s decision is on an abuse of discretion standard. “Abuse of discretion” occurs in the context of a decision excluding evidence when the judicial action is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view the trial court adopted. // Johnson v. S., 47 So. 3d 941 (3d DCA 2010), 35 F.L.W. D2554 (11/17/2010)
The trial court has discretion in determining what evidence should be admitted, and review of the court’s decision is on an abuse of discretion standard. “Abuse of discretion” occurs in the context of a decision excluding evidence when the judicial action is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view the trial court adopted. // Johnson v. S., 47 So. 3d 941 (3d DCA 2010), 35 F.L.W. D2554 (11/17/2010)
A decision regarding a determination whether a continuance should be charged to the state or defense for speedy trial purposes is reviewed on an abuse of discretion standard. // McKenney v. S., 967 So. 2d 951 (3d DCA 2007), 32 F.L.W. D2375 (10/3/2007)
A decision regarding a determination whether a continuance should be charged to the state or defense for speedy trial purposes is reviewed on an abuse of discretion standard. // McKenney v. S., 967 So. 2d 951 (3d DCA 2007), 32 F.L.W. D2375 (10/3/2007)
In reviewing a ruling granting a motion to suppress based on a finding that the arresting officer lacked a reasonable suspicion to stop a vehicle, the circuit court sitting in an appellate capacity should review the record to determine if the ruling is supported by substantial competent evidence. // Weiss v. S., 965 So. 2d 842 (4th DCA 2007), 32 F.L.W. D2334 (9/26/2007)
In reviewing a ruling granting a motion to suppress based on a finding that the arresting officer lacked a reasonable suspicion to stop a vehicle, the circuit court sitting in an appellate capacity should review the record to determine if the ruling is supported by substantial competent evidence. // Weiss v. S., 965 So. 2d 842 (4th DCA 2007), 32 F.L.W. D2334 (9/26/2007)
LEO testified that she saw defendant in her rearview mirror approaching at night at a high rate of speed. She pulled him over and determined he did not have a license and he was charged with felony DWLSR. He argued on appeal that the officer’s basis for the stop was insufficient. Held: The appellate court cannot reweigh the evidence. The officer is free to draw conclusions from what she sees so long as not patently unreasonable. The court can choose to believe the officer’s testimony. // Byrd v. S., 964 So. 2d 806 (4th DCA 2007), 32 F.L.W. D2257 (9/19/2007)
LEO testified that she saw defendant in her rearview mirror approaching at night at a high rate of speed. She pulled him over and determined he did not have a license and he was charged with felony DWLSR. He argued on appeal that the officer’s basis for the stop was insufficient. Held: The appellate court cannot reweigh the evidence. The officer is free to draw conclusions from what she sees so long as not patently unreasonable. The court can choose to believe the officer’s testimony. // Byrd v. S., 964 So. 2d 806 (4th DCA 2007), 32 F.L.W. D2257 (9/19/2007)
Whether a defendant’s violation is willful and substantial is a question of fact for the court, and it will not be reversed on appeal unless there is no evidence to support the determination. // Ortiz v. S., 2 So. 3d 318 (4th DCA 2008), 33 F.L.W. D1725 (7/9/2008)
Whether a defendant’s violation is willful and substantial is a question of fact for the court, and it will not be reversed on appeal unless there is no evidence to support the determination. // Ortiz v. S., 2 So. 3d 318 (4th DCA 2008), 33 F.L.W. D1725 (7/9/2008)
The legality of a sentence is a question of law and is subject to de novo review on appeal. // Peterson v. S., 962 So. 2d 367 (4th DCA 2007), 32 F.L.W. D1780 (7/25/2007)
The legality of a sentence is a question of law and is subject to de novo review on appeal. // Peterson v. S., 962 So. 2d 367 (4th DCA 2007), 32 F.L.W. D1780 (7/25/2007)
A ruling on a motion for JOA is reviewed de novo. // Ackon v. S., 14 So. 3d 1146 (4th DCA 2009), 34 F.L.W. D1235 (6/17/2009)
A ruling on a motion for JOA is reviewed de novo. // Ackon v. S., 14 So. 3d 1146 (4th DCA 2009), 34 F.L.W. D1235 (6/17/2009)
Standard jury instructions are presumed correct and are preferred over special instructions. When defendant asks for a special instruction, the refusal is reviewed under an abuse of discretion standard. The failure to give a requested special instruction is error if (1) the special instruction is supported by the evidence; (2) the standard instruction does not adequately cover the theory of defense, and (3) the special instruction is a correct statement of the law and not misleading or confusing. // Peters v. S., 33 So. 3d 812 (4th DCA 2010), 35 F.L.W. D937 (4/28/2010)
Standard jury instructions are presumed correct and are preferred over special instructions. When defendant asks for a special instruction, the refusal is reviewed under an abuse of discretion standard. The failure to give a requested special instruction is error if (1) the special instruction is supported by the evidence; (2) the standard instruction does not adequately cover the theory of defense, and (3) the special instruction is a correct statement of the law and not misleading or confusing. // Peters v. S., 33 So. 3d 812 (4th DCA 2010), 35 F.L.W. D937 (4/28/2010)
The appellate court reviews a ruling on a motion for JOA de novo. // Galavis v. S., 28 So. 3d 176 (4th DCA 2010), 35 F.L.W. D400 (2/17/2010)
The appellate court reviews a ruling on a motion for JOA de novo. // Galavis v. S., 28 So. 3d 176 (4th DCA 2010), 35 F.L.W. D400 (2/17/2010)
In reviewing the facts in a defendant’s appeal from a conviction, the appellate court views the facts in the light most favorable to the state. // Carter v. S., 23 So. 3d 1238 (4th DCA 2009), 34 F.L.W. D2444 (11/25/2009)
In reviewing the facts in a defendant’s appeal from a conviction, the appellate court views the facts in the light most favorable to the state. // Carter v. S., 23 So. 3d 1238 (4th DCA 2009), 34 F.L.W. D2444 (11/25/2009)
In reviewing a court’s ruling on a motion to suppress, the appellate court accords a presumption of correctness to the court’s historical findings of fact, reversing only if the findings are not supported by substantial, competent evidence. The court reviews de novo whether the application of the law to the historical facts establishes an adequate basis for the trial court’s order. The deference to the trial court’s findings does not fully apply when the findings are based on evidence other than live testimony. When the evidence includes a video of the defendant’s confession, the appellate court can review the tape and determine whether they agree with the conclusions of fact the trial judge drew from the things on the video. // Pierre v. S., 22 So. 3d 759 (4th DCA 2009), 34 F.L.W. D2374 (11/18/2009)
In reviewing a court’s ruling on a motion to suppress, the appellate court accords a presumption of correctness to the court’s historical findings of fact, reversing only if the findings are not supported by substantial, competent evidence. The court reviews de novo whether the application of the law to the historical facts establishes an adequate basis for the trial court’s order. The deference to the trial court’s findings does not fully apply when the findings are based on evidence other than live testimony. When the evidence includes a video of the defendant’s confession, the appellate court can review the tape and determine whether they agree with the conclusions of fact the trial judge drew from the things on the video. // Pierre v. S., 22 So. 3d 759 (4th DCA 2009), 34 F.L.W. D2374 (11/18/2009)
A limitation on cross-examination (here, inquiry into the nature of the witness’ prior convictions), is reviewed on an abuse of discretion standard. // Martino v. S., 964 So. 2d 906 (4th DCA 2007), 32 F.L.W. D2384 (10/3/2007)
A limitation on cross-examination (here, inquiry into the nature of the witness’ prior convictions), is reviewed on an abuse of discretion standard. // Martino v. S., 964 So. 2d 906 (4th DCA 2007), 32 F.L.W. D2384 (10/3/2007)
The decision whether to grant a severance of counts is within the court’s discretion and will not be reversed without an abuse of discretion. // Kablitz v. S., 979 So. 2d 969 (4th DCA 2008), 33 F.L.W. D371 (1/30/2008)
The decision whether to grant a severance of counts is within the court’s discretion and will not be reversed without an abuse of discretion. // Kablitz v. S., 979 So. 2d 969 (4th DCA 2008), 33 F.L.W. D371 (1/30/2008)
The admission of photos of a murder victim is within the court’s discretion and will not be reversed absent an abuse of discretion. // Segura v. S., 972 So. 2d 1105 (4th DCA 2008), 33 F.L.W. D375 (1/30/2008)
The admission of photos of a murder victim is within the court’s discretion and will not be reversed absent an abuse of discretion. // Segura v. S., 972 So. 2d 1105 (4th DCA 2008), 33 F.L.W. D375 (1/30/2008)
During the playing of defendant’s statement at trial, the statement ended when defendant stated he wanted a lawyer before answering any more questions. The court overruled an objection. Held: The error is not harmless. In a case where the issue is self-defense, the evidence was disputed, and the jury asked questions going to the defendant’s state of mind, a comment on his right to remain silent is not harmless error. // (See this case for citations to cases in which a comment on the right to remain silent is found to be harmful error.) // Senn v. S., 947 So. 2d 596 (4th DCA 2007), 32 F.L.W. D166 (1/3/2007)
During the playing of defendant’s statement at trial, the statement ended when defendant stated he wanted a lawyer before answering any more questions. The court overruled an objection. Held: The error is not harmless. In a case where the issue is self-defense, the evidence was disputed, and the jury asked questions going to the defendant’s state of mind, a comment on his right to remain silent is not harmless error. // (See this case for citations to cases in which a comment on the right to remain silent is found to be harmful error.) // Senn v. S., 947 So. 2d 596 (4th DCA 2007), 32 F.L.W. D166 (1/3/2007)
Where the court summarily denies a 3.850 motion due to an insufficient oath, but the oath in fact is insufficient, the denial will be affirmed under the tipsy coachman rule where the claims otherwise are insufficient. // Ramkhalawan v. S., 50 So. 3d 1241 (4th DCA 2011), 36 F.L.W. D191 (1/26/2011)
Where the court summarily denies a 3.850 motion due to an insufficient oath, but the oath in fact is insufficient, the denial will be affirmed under the tipsy coachman rule where the claims otherwise are insufficient. // Ramkhalawan v. S., 50 So. 3d 1241 (4th DCA 2011), 36 F.L.W. D191 (1/26/2011)
A sentencing issue (whether an offense should have been reclassified) is purely an issue of law and is subject to de novo review. // S. v. Moore, 19 So. 3d 408 (5th DCA 2009), 34 F.L.W. D1867 (9/11/2009)
A sentencing issue (whether an offense should have been reclassified) is purely an issue of law and is subject to de novo review. // S. v. Moore, 19 So. 3d 408 (5th DCA 2009), 34 F.L.W. D1867 (9/11/2009)
An order granting a c(4) motion to dismiss is reviewed on a de novo standard. // S. v. Shuler, 988 So. 2d 1230 (5th DCA 2008), 33 F.L.W. D2034 (8/22/2008)
An order granting a c(4) motion to dismiss is reviewed on a de novo standard. // S. v. Shuler, 988 So. 2d 1230 (5th DCA 2008), 33 F.L.W. D2034 (8/22/2008)
A court’s ruling on the voluntariness of a confession will not be overturned unless clearly erroneous. // S. v. Sullivan, 962 So. 2d 389 (5th DCA 2007), 32 F.L.W. D1919 (8/10/2007)
A court’s ruling on the voluntariness of a confession will not be overturned unless clearly erroneous. // S. v. Sullivan, 962 So. 2d 389 (5th DCA 2007), 32 F.L.W. D1919 (8/10/2007)
A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness and a reviewing court must interpret the evidence and reasonable inferences drawn from the evidence in the manner most favorable to sustaining the ruling. // In reviewing the evidentiary rulings made in a motion to suppress, the appellate court must determine only whether substantial competent evidence exists to uphold the factual findings. The trial court’s application of the law to the facts is reviewed de novo. // An appellate court ordinarily will defer to the trial court’s determination of the credibility of witnesses. // Pritchard v. S., 987 So. 2d 204 (5th DCA 2008), 33 F.L.W. D1852 (7/25/2008)
A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness and a reviewing court must interpret the evidence and reasonable inferences drawn from the evidence in the manner most favorable to sustaining the ruling. // In reviewing the evidentiary rulings made in a motion to suppress, the appellate court must determine only whether substantial competent evidence exists to uphold the factual findings. The trial court’s application of the law to the facts is reviewed de novo. // An appellate court ordinarily will defer to the trial court’s determination of the credibility of witnesses. // Pritchard v. S., 987 So. 2d 204 (5th DCA 2008), 33 F.L.W. D1852 (7/25/2008)
A trial court’s factual findings will be upheld if there is substantial, competent evidence to support the findings. A trial court’s ruling on a motion to suppress comes to the appellate court clothed in a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived from the evidence in a manner most favorable to sustaining a trial court’s ruling. // S. v. Reaves, 15 So. 3d 784 (5th DCA 2009), 34 F.L.W. D1450 (7/17/2009)
A trial court’s factual findings will be upheld if there is substantial, competent evidence to support the findings. A trial court’s ruling on a motion to suppress comes to the appellate court clothed in a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived from the evidence in a manner most favorable to sustaining a trial court’s ruling. // S. v. Reaves, 15 So. 3d 784 (5th DCA 2009), 34 F.L.W. D1450 (7/17/2009)
The denial of a motion for JOA is reviewed on a de novo standard. // Page v. S., 975 So. 2d 1214 (5th DCA 2008), 33 F.L.W. D701 (3/7/2008)
The denial of a motion for JOA is reviewed on a de novo standard. // Page v. S., 975 So. 2d 1214 (5th DCA 2008), 33 F.L.W. D701 (3/7/2008)
A ruling on the admissibility of evidence is subject to an abuse of discretion standard. The court’s discretion is limited by the evidence code and the applicable case law. A court’s erroneous interpretation of the rules and case law is subject to de novo review. // Pantoja v. S., ___ So. 3d ___, 36 F.L.W. S91 (Fla. 3/3/2011) // affirming Pantoja v. S., 990 So. 2d 626 (1st DCA 2008)
A ruling on the admissibility of evidence is subject to an abuse of discretion standard. The court’s discretion is limited by the evidence code and the applicable case law. A court’s erroneous interpretation of the rules and case law is subject to de novo review. // Pantoja v. S., ___ So. 3d ___, 36 F.L.W. S91 (Fla. 3/3/2011) // affirming Pantoja v. S., 990 So. 2d 626 (1st DCA 2008)
Under §90.404(2)(b), other acts of child molestation can be admitted for its bearing on any issue the court finds it to be relevant. The more dissimilar the acts are, the less likely they are to be relevant. Relevant evidence can be disallowed if its probative value is substantially outweighed by the danger of unfair prejudice. // The issue of admissibility is within the broad discretion of the trial judge. The court abuses discretion when the decision is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the view of the trial court. // Triplett v. S., 947 So. 2d 702 (5th DCA 2007), 32 F.L.W. D438 (2/9/2007)
Under §90.404(2)(b), other acts of child molestation can be admitted for its bearing on any issue the court finds it to be relevant. The more dissimilar the acts are, the less likely they are to be relevant. Relevant evidence can be disallowed if its probative value is substantially outweighed by the danger of unfair prejudice. // The issue of admissibility is within the broad discretion of the trial judge. The court abuses discretion when the decision is arbitrary, fanciful, unreasonable, or when no reasonable person would adopt the view of the trial court. // Triplett v. S., 947 So. 2d 702 (5th DCA 2007), 32 F.L.W. D438 (2/9/2007)
Questions whether the court improperly denied a motion alleging a double jeopardy violation are reviewed de novo, and the defendant has the burden of showing the violation. // Capron v. S., 948 So. 2d 954 (5th DCA 2007), 32 F.L.W. D483 (2/16/2007)
Questions whether the court improperly denied a motion alleging a double jeopardy violation are reviewed de novo, and the defendant has the burden of showing the violation. // Capron v. S., 948 So. 2d 954 (5th DCA 2007), 32 F.L.W. D483 (2/16/2007)
In reviewing a trial judge’s determining of a death penalty aggravating factor, the court will not reweigh the evidence to determine whether the aggravator was properly found, but will review it to determine whether the state proved the factor beyond a reasonable doubt. // Carter v. S., 980 So. 2d 473 (Fla. 2008), 33 F.L.W. S102 (2/14/2008)
In reviewing a trial judge’s determining of a death penalty aggravating factor, the court will not reweigh the evidence to determine whether the aggravator was properly found, but will review it to determine whether the state proved the factor beyond a reasonable doubt. // Carter v. S., 980 So. 2d 473 (Fla. 2008), 33 F.L.W. S102 (2/14/2008)
When reviewing the sufficiency of evidence presented to the trier of fact, the appellate court’s task is not to reweigh the evidence. The appellate court’s concern must be whether after all the conflicts in the evidence an reasonable inferences therefrom are resolved in favor of the verdict, there is substantial competent evidence to support eh decision. Questions relating to the weight of the evidence and the credibility of witnesses are reserved exclusively for the trier of fact. // Hernandez v. S., ___ So. 3d ___, 35 F.L.W. S714 (Fla. 12/8/2010) // reversing in part Hernandez v. S., 994 So. 2d 488 (3d DCA 2008)
When reviewing the sufficiency of evidence presented to the trier of fact, the appellate court’s task is not to reweigh the evidence. The appellate court’s concern must be whether after all the conflicts in the evidence an reasonable inferences therefrom are resolved in favor of the verdict, there is substantial competent evidence to support eh decision. Questions relating to the weight of the evidence and the credibility of witnesses are reserved exclusively for the trier of fact. // Hernandez v. S., ___ So. 3d ___, 35 F.L.W. S714 (Fla. 12/8/2010) // reversing in part Hernandez v. S., 994 So. 2d 488 (3d DCA 2008)
The trial court’s decision whether to allow interviews of former jurors is reviewed on an abuse of discretion standard. // Marshall v. S., 976 So. 2d 1071 (Fla. 2007), 32 F.L.W. S797 (12/6/2007)
The trial court’s decision whether to allow interviews of former jurors is reviewed on an abuse of discretion standard. // Marshall v. S., 976 So. 2d 1071 (Fla. 2007), 32 F.L.W. S797 (12/6/2007)
The decision whether to give a defense instruction is reviewed on an abuse of discretion standard. However, in a criminal case, the discretion whether to give an instruction regarding a defense is limited because the defendant has the right to have the jury instructed on his theory of defense if there is any evidence to support it. // Cruz v. S., 971 So. 2d 178 (5th DCA 2007), 33 F.L.W. D68 (12/28/2007)
The decision whether to give a defense instruction is reviewed on an abuse of discretion standard. However, in a criminal case, the discretion whether to give an instruction regarding a defense is limited because the defendant has the right to have the jury instructed on his theory of defense if there is any evidence to support it. // Cruz v. S., 971 So. 2d 178 (5th DCA 2007), 33 F.L.W. D68 (12/28/2007)
A decision regarding the constitutionality of a statute is reviewed de novo. // Miller v. S., 971 So. 2d 951 (5th DCA 2007), 33 F.L.W. D79 (12/28/2007)
A decision regarding the constitutionality of a statute is reviewed de novo. // Miller v. S., 971 So. 2d 951 (5th DCA 2007), 33 F.L.W. D79 (12/28/2007)
Where defendant expresses dissatisfaction with his appointed attorney, but the court finds that he is rendering effective assistance, and defendant insists on discharging that attorney, the court properly conducts a Faretta inquiry. Where defendant continues to insist on proceeding without appointed counsel, conviction is proper. // Weaver v. S., 889 So. 2d 178 (Fla. 2004), 29 F.L.W. S801 (12/16/2004)
Where defendant expresses dissatisfaction with his appointed attorney, but the court finds that he is rendering effective assistance, and defendant insists on discharging that attorney, the court properly conducts a Faretta inquiry. Where defendant continues to insist on proceeding without appointed counsel, conviction is proper. // Weaver v. S., 889 So. 2d 178 (Fla. 2004), 29 F.L.W. S801 (12/16/2004)
(See Alston v. S., 894 So. 2d 46 (Fla. 2004), 29 F.L.W. S592 (10/14/2004) for extensive discussion of a death row inmate’s right to discharge post-conviction counsel and proceed pro se.)
(See Alston v. S., 894 So. 2d 46 (Fla. 2004), 29 F.L.W. S592 (10/14/2004) for extensive discussion of a death row inmate’s right to discharge post-conviction counsel and proceed pro se.)
(See Hernandez-Alberto v. S., 889 So. 2d 721 (Fla. 2004), 29 F.L.W. S521 (9/23/2004) for discussion of the proper Faretta standard to utilize in a death penalty case where defendant wishes to represent himself.)
(See Hernandez-Alberto v. S., 889 So. 2d 721 (Fla. 2004), 29 F.L.W. S521 (9/23/2004) for discussion of the proper Faretta standard to utilize in a death penalty case where defendant wishes to represent himself.)
There is no constitutional right to hybrid representation at trial. However, when the court decides to allow defendant to represent himself with co-counsel, the decision is reviewed under an abuse of discretion standard. // Mora v. S., 814 So. 2d 322 (Fla. 2002), 27 F.L.W. S91 (1/24/2002)
There is no constitutional right to hybrid representation at trial. However, when the court decides to allow defendant to represent himself with co-counsel, the decision is reviewed under an abuse of discretion standard. // Mora v. S., 814 So. 2d 322 (Fla. 2002), 27 F.L.W. S91 (1/24/2002)
The court errs in dismissing counsel during trial when defendant insists he wants counsel discharged but does not want to go to trial pro se. The court must determine whether defendant wants to proceed with appointed counsel or pro se before discharging counsel. // Gettis v. S., 892 So. 2d 1217 (1st DCA 2005), 30 F.L.W. D436 (2/14/2005)
The court errs in dismissing counsel during trial when defendant insists he wants counsel discharged but does not want to go to trial pro se. The court must determine whether defendant wants to proceed with appointed counsel or pro se before discharging counsel. // Gettis v. S., 892 So. 2d 1217 (1st DCA 2005), 30 F.L.W. D436 (2/14/2005)
Defendant is entitled to appointed counsel in a DUI charge. // When defendant elects to plead at arraignment and elects to waive counsel, the court errs in failing to do a Faretta inquiry to determine whether defendant can represent himself. // Case v. S., 865 So. 2d 557 (1st DCA 2003), 29 F.L.W. D74 (12/29/2003)
Defendant is entitled to appointed counsel in a DUI charge. // When defendant elects to plead at arraignment and elects to waive counsel, the court errs in failing to do a Faretta inquiry to determine whether defendant can represent himself. // Case v. S., 865 So. 2d 557 (1st DCA 2003), 29 F.L.W. D74 (12/29/2003)
When a literate, competent, and understanding defendant asks to represent himself, the court cannot refuse to allow it regardless of the defendant’s lack of legal skills or the complexity of the case. // Kearse v. S., 858 So. 2d 348 (1st DCA 2003), 28 F.L.W. D2500 (10/30/2003)
When a literate, competent, and understanding defendant asks to represent himself, the court cannot refuse to allow it regardless of the defendant’s lack of legal skills or the complexity of the case. // Kearse v. S., 858 So. 2d 348 (1st DCA 2003), 28 F.L.W. D2500 (10/30/2003)
The defendant has the right to represent himself in a motion to withdraw his plea, and the court errs in refusing to do a Faretta inquiry when defendant states he wants to proceed pro se. // Goldsmith v. S., 937 So. 2d 1253 (2d DCA 2006), 31 F.L.W. D2459 (9/29/2006)
The defendant has the right to represent himself in a motion to withdraw his plea, and the court errs in refusing to do a Faretta inquiry when defendant states he wants to proceed pro se. // Goldsmith v. S., 937 So. 2d 1253 (2d DCA 2006), 31 F.L.W. D2459 (9/29/2006)
The court errs in discharging court-appointed counsel without doing a full Nelson inquiry when defendant expresses dissatisfaction with the work counsel was doing. // (See this case for extension discussion of Nelson procedure.) // Maxwell v. S., 892 So. 2d 1100 (2d DCA 2004), 29 F.L.W. D2472 (11/5/2004)
The court errs in discharging court-appointed counsel without doing a full Nelson inquiry when defendant expresses dissatisfaction with the work counsel was doing. // (See this case for extension discussion of Nelson procedure.) // Maxwell v. S., 892 So. 2d 1100 (2d DCA 2004), 29 F.L.W. D2472 (11/5/2004)
Where the court finds the defendant competent to represent himself, the court cannot later decide otherwise and re-appoint counsel because defendant is being uncooperative. // Eggleston v. S., 812 So. 2d 524 (2d DCA 2002), 27 F.L.W. D699 (3/27/2002)
Where the court finds the defendant competent to represent himself, the court cannot later decide otherwise and re-appoint counsel because defendant is being uncooperative. // Eggleston v. S., 812 So. 2d 524 (2d DCA 2002), 27 F.L.W. D699 (3/27/2002)
The issue in a Faretta inquiry is not whether defendant has the ability to represent himself, it is whether he can competently and intelligently chose self-representation. Lack of legal experience or education is not a factor under Faretta. // Reddick v. S., 937 So. 2d 1279 (4th DCA 2006), 31 F.L.W. D2472 (10/4/2006)
The issue in a Faretta inquiry is not whether defendant has the ability to represent himself, it is whether he can competently and intelligently chose self-representation. Lack of legal experience or education is not a factor under Faretta. // Reddick v. S., 937 So. 2d 1279 (4th DCA 2006), 31 F.L.W. D2472 (10/4/2006)
When defendant is properly allowed to represent himself at trial, the court at sentencing must re-offer counsel. The failure to do so gets reversal of the sentence. // Williams v. S., 936 So. 2d 663 (4th DCA 2006), 31 F.L.W. D1823 (7/5/2006)
When defendant is properly allowed to represent himself at trial, the court at sentencing must re-offer counsel. The failure to do so gets reversal of the sentence. // Williams v. S., 936 So. 2d 663 (4th DCA 2006), 31 F.L.W. D1823 (7/5/2006)
Court errs in refusing to allow defendant to represent himself based on a finding that he was not competent based on a 9th grade education and no legal experience. The issues is not whether the defendant is competent to represent himself, it is whether he is competent to waive counsel. After finding a knowing waiver, he must be allowed to represent himself. // McKinney v. S., 850 So. 2d 680 (4th DCA 2003), 28 F.L.W. D1757 (7/30/2003)
Court errs in refusing to allow defendant to represent himself based on a finding that he was not competent based on a 9th grade education and no legal experience. The issues is not whether the defendant is competent to represent himself, it is whether he is competent to waive counsel. After finding a knowing waiver, he must be allowed to represent himself. // McKinney v. S., 850 So. 2d 680 (4th DCA 2003), 28 F.L.W. D1757 (7/30/2003)
If defendant wants to discharge appointed counsel based on an claim of ineffectiveness, and the court finds that counsel is not ineffective, the defendant is not entitled to another appointed attorney. Defendant must either keep the attorney or represent himself under Nelson. However, Nelson does not apply to retained counsel. // Defendant has the right to private counsel of his choosing so long as he is not seeking to delay the proceedings. Thus, when defendant wants to fire his retained attorney before trial, the court errs in refusing a continuance to get new counsel unless the court finds that defendant is seeking to subvert the proceedings. The court errs in allowing defendant to fire his attorney and in forcing defendant to go to trial unrepresented. // Fratcher v. S., 842 So. 2d 1044 (4th DCA 2003), 28 F.L.W. D1020 (4/23/2003)
If defendant wants to discharge appointed counsel based on an claim of ineffectiveness, and the court finds that counsel is not ineffective, the defendant is not entitled to another appointed attorney. Defendant must either keep the attorney or represent himself under Nelson. However, Nelson does not apply to retained counsel. // Defendant has the right to private counsel of his choosing so long as he is not seeking to delay the proceedings. Thus, when defendant wants to fire his retained attorney before trial, the court errs in refusing a continuance to get new counsel unless the court finds that defendant is seeking to subvert the proceedings. The court errs in allowing defendant to fire his attorney and in forcing defendant to go to trial unrepresented. // Fratcher v. S., 842 So. 2d 1044 (4th DCA 2003), 28 F.L.W. D1020 (4/23/2003)
