BOOYAH Flashcards
Following a fatal accident, a police officer used a blood collection kit to draw blood from the defendant, which tested over the legal limit. The collection kit was used 28 days after the expiration date on the package. Held: Where there is no evidence that the result from the blood draw was affected by the expired kit, and FDLE regulations do not prohibit the use of collection kits after their expiration, no due process violation occurs and the court properly admits the evidence from the blood draw. // Bruch v. S., 954 So. 2d 1242 (4th DCA 2007), 32 F.L.W. D1080 (4/25/2007)
Following a fatal accident, a police officer used a blood collection kit to draw blood from the defendant, which tested over the legal limit. The collection kit was used 28 days after the expiration date on the package. Held: Where there is no evidence that the result from the blood draw was affected by the expired kit, and FDLE regulations do not prohibit the use of collection kits after their expiration, no due process violation occurs and the court properly admits the evidence from the blood draw. // Bruch v. S., 954 So. 2d 1242 (4th DCA 2007), 32 F.L.W. D1080 (4/25/2007)
Under §316.1934(5), the inspection report that must accompany a breath test affidavit is either the annual report or a monthly report, whichever is the most recent. The affidavit need not include both the monthly report and the annual report. // S. v. Buttolph, 969 So. 2d 1209 (4th DCA 2007), 32 F.L.W. D2919 (12/12/2007)
Under §316.1934(5), the inspection report that must accompany a breath test affidavit is either the annual report or a monthly report, whichever is the most recent. The affidavit need not include both the monthly report and the annual report. // S. v. Buttolph, 969 So. 2d 1209 (4th DCA 2007), 32 F.L.W. D2919 (12/12/2007)
A judge’s ruling that the use of tap water as part of the monthly testing procedure for an Intoxilyzer constitutes a substantial departure from the Department’s testing rules is not an abuse of discretion when the ruling is supported by substantial competent evidence. // S. v. Cubic, 946 So. 2d 606 (4th DCA 2007), 32 F.L.W. D163 (1/3/2007)
A judge’s ruling that the use of tap water as part of the monthly testing procedure for an Intoxilyzer constitutes a substantial departure from the Department’s testing rules is not an abuse of discretion when the ruling is supported by substantial competent evidence. // S. v. Cubic, 946 So. 2d 606 (4th DCA 2007), 32 F.L.W. D163 (1/3/2007)
An entry on a driving record stating “BAL unknown” is insufficient evidence of a prior refusal to justify a conviction for a misdemeanor second refusal. // Folden v. S., 16 So. 3d 849 (5th DCA 2009), 34 F.L.W. D1192 (5/22/2009)
An entry on a driving record stating “BAL unknown” is insufficient evidence of a prior refusal to justify a conviction for a misdemeanor second refusal. // Folden v. S., 16 So. 3d 849 (5th DCA 2009), 34 F.L.W. D1192 (5/22/2009)
A DHSMV hearing officer has discretion to issue subpoenas for witnesses listed in the arresting officer’s report pursuant to §322.2615(2) and 322.2615(6)(b). Where the report identifies the breath testing machine operator, and defense counsel wants to question that person regarding the possibility that defendant withdrew her refusal to take the test, the hearing officer errs in refusing to issue the subpoena. // DHSMV v. Auster, 52 So. 3d 802 (5th DCA 2010), 36 F.L.W. D64 (12/30/2010)
A DHSMV hearing officer has discretion to issue subpoenas for witnesses listed in the arresting officer’s report pursuant to §322.2615(2) and 322.2615(6)(b). Where the report identifies the breath testing machine operator, and defense counsel wants to question that person regarding the possibility that defendant withdrew her refusal to take the test, the hearing officer errs in refusing to issue the subpoena. // DHSMV v. Auster, 52 So. 3d 802 (5th DCA 2010), 36 F.L.W. D64 (12/30/2010)
In a formal DL revocation hearing, the Department is required only to establish that defendant had an unlawful BAL by a preponderance of the evidence. The Department must show that the breath test was performed substantially according to the pertinent statutes and administrative rules. Where the Department introduces a Breath Alcohol Test Affidavit with defendant’s results, an Agency Inspection Report, and a Department Inspection Report, which together contain all of the statutorily required information under §316.1934(5), the Department has met its burden. The burden then shifts to the defendant to overcome the presumption of impairment by showing that the applicable statutes and rules were not complied with. // The Department is not required to show an approval study or independent scientific evidence showing the reliability of the Intoxilyzer 8000 with software version 8100.26 to meet their burden of proof. // •DHSMV v. Berne, 49 So. 3d 779 (5th DCA 2010), 35 F.L.W. D2238 (10/8/2010)
In a formal DL revocation hearing, the Department is required only to establish that defendant had an unlawful BAL by a preponderance of the evidence. The Department must show that the breath test was performed substantially according to the pertinent statutes and administrative rules. Where the Department introduces a Breath Alcohol Test Affidavit with defendant’s results, an Agency Inspection Report, and a Department Inspection Report, which together contain all of the statutorily required information under §316.1934(5), the Department has met its burden. The burden then shifts to the defendant to overcome the presumption of impairment by showing that the applicable statutes and rules were not complied with. // The Department is not required to show an approval study or independent scientific evidence showing the reliability of the Intoxilyzer 8000 with software version 8100.26 to meet their burden of proof. // •DHSMV v. Berne, 49 So. 3d 779 (5th DCA 2010), 35 F.L.W. D2238 (10/8/2010)
The implied consent law and its exclusionary law applies only when an LEO has probable cause to believe that a driver was DUI. Where an LEO investigating an accident has no reason to suspect that the driver was impaired, and asks for consent to take blood, the court errs in suppressing the blood results when the consent was given voluntarily. // S. v. Murray, 51 So. 3d 593 (5th DCA 2011), 36 F.L.W. D88 (1/7/2011)
The implied consent law and its exclusionary law applies only when an LEO has probable cause to believe that a driver was DUI. Where an LEO investigating an accident has no reason to suspect that the driver was impaired, and asks for consent to take blood, the court errs in suppressing the blood results when the consent was given voluntarily. // S. v. Murray, 51 So. 3d 593 (5th DCA 2011), 36 F.L.W. D88 (1/7/2011)
An inmate on work release who leaves the center and appears at work late does not commit the crime of escape. // S. v. Williams, 918 So. 2d 400 (2d DCA 2006), 31 F.L.W. D201 (1/18/2006)
An inmate on work release who leaves the center and appears at work late does not commit the crime of escape. // S. v. Williams, 918 So. 2d 400 (2d DCA 2006), 31 F.L.W. D201 (1/18/2006)
Defendant was charged by an information that stated that defendant, “while a prisoner in the lawful custody of a law enforcement officer and while being transported to or from a place of confinement, did escape or attempt to escape from such custody.” The evidence at trial showed that defendant was transported from the jail to a work location, and that he left the work site and went home. Held: Court erred in denying a JOA. The evidence did not show that defendant escaped while being transported, and the evidence is at variance with the language of the charge. // Banasik v. S., 889 So. 2d 916 (2d DCA 2004), 29 F.L.W. D2767 (12/10/2004)
Defendant was charged by an information that stated that defendant, “while a prisoner in the lawful custody of a law enforcement officer and while being transported to or from a place of confinement, did escape or attempt to escape from such custody.” The evidence at trial showed that defendant was transported from the jail to a work location, and that he left the work site and went home. Held: Court erred in denying a JOA. The evidence did not show that defendant escaped while being transported, and the evidence is at variance with the language of the charge. // Banasik v. S., 889 So. 2d 916 (2d DCA 2004), 29 F.L.W. D2767 (12/10/2004)
To be convicted of escape, there must first be a valid arrest. Merely detaining a person without arresting him will not result in an escape conviction if the defendant runs. // Pollen v. S., 834 So. 2d 380 (3d DCA 2003), 28 F.L.W. D221 (1/15/2003)
To be convicted of escape, there must first be a valid arrest. Merely detaining a person without arresting him will not result in an escape conviction if the defendant runs. // Pollen v. S., 834 So. 2d 380 (3d DCA 2003), 28 F.L.W. D221 (1/15/2003)
Defendant’s act of leaving his work site while on work release does not constitute escape. // Crumity v. S., 922 So. 2d 276 (4th DCA 2006), 31 F.L.W. D412 (2/8/2006)
Defendant’s act of leaving his work site while on work release does not constitute escape. // Crumity v. S., 922 So. 2d 276 (4th DCA 2006), 31 F.L.W. D412 (2/8/2006)
Defendant is properly convicted of both escape and resisting without violence based on the same conduct. // Clark v. S., 920 So. 2d 634 (4th DCA 2005), 30 F.L.W. D1192 (5/4/2005)
Defendant is properly convicted of both escape and resisting without violence based on the same conduct. // Clark v. S., 920 So. 2d 634 (4th DCA 2005), 30 F.L.W. D1192 (5/4/2005)
LEO saw defendant driving when the officer knew that defendant had a suspended license. He pulled beside him, told defendant to pull over, and told him he was under arrest. The defendant pulled into his aunt’s house, and asked the officer if he could go tell his aunt that he was being arrested. The officer allowed him to do so, but told him he would be charged with escape if he did not come back. Defendant did not return. Held: Defendant is properly convicted of escape. The four elements of an arrest were met. // Thomas v. S., 805 So. 2d 102 (4th DCA 2002), 27 F.L.W. D260 (1/23/2002)
LEO saw defendant driving when the officer knew that defendant had a suspended license. He pulled beside him, told defendant to pull over, and told him he was under arrest. The defendant pulled into his aunt’s house, and asked the officer if he could go tell his aunt that he was being arrested. The officer allowed him to do so, but told him he would be charged with escape if he did not come back. Defendant did not return. Held: Defendant is properly convicted of escape. The four elements of an arrest were met. // Thomas v. S., 805 So. 2d 102 (4th DCA 2002), 27 F.L.W. D260 (1/23/2002)
The court does not err in giving a special instruction in an escape case stating that the jury need not find that the officer had completed the act of acquiring total control over the defendant prior to the escape. // Applewhite v. S., 874 So. 2d 1276 (5th DCA 2004), 29 F.L.W. D1468 (6/18/2004)
The court does not err in giving a special instruction in an escape case stating that the jury need not find that the officer had completed the act of acquiring total control over the defendant prior to the escape. // Applewhite v. S., 874 So. 2d 1276 (5th DCA 2004), 29 F.L.W. D1468 (6/18/2004)
An escape from a Jimmy Ryce commitment facility under §394.927 constitutes an “escape” for 10/20/Life purposes. Thus, when the court refuses to imposes a 10-year mandatory for escape from a Jimmy Ryce facility with a firearm, the sentence is reversed. // S. v. Burkhart, 869 So. 2d 1242 (4th DCA 2004), 29 F.L.W. D799 (3/31/2004)
An escape from a Jimmy Ryce commitment facility under §394.927 constitutes an “escape” for 10/20/Life purposes. Thus, when the court refuses to imposes a 10-year mandatory for escape from a Jimmy Ryce facility with a firearm, the sentence is reversed. // S. v. Burkhart, 869 So. 2d 1242 (4th DCA 2004), 29 F.L.W. D799 (3/31/2004)
A prisoner held in state prison is presumed to be there lawfully, and the state need not show that his confinement is lawful as part of their escape case. The unlawfulness of confinement is an affirmative defense that must be shown by the defense. // Smith v. S., 998 So. 2d 516 (Fla. 2008), 33 F.L.W. S727 (9/25/2008)
A prisoner held in state prison is presumed to be there lawfully, and the state need not show that his confinement is lawful as part of their escape case. The unlawfulness of confinement is an affirmative defense that must be shown by the defense. // Smith v. S., 998 So. 2d 516 (Fla. 2008), 33 F.L.W. S727 (9/25/2008)
Defendant is properly convicted of escape when he fails to return to a work release center by the required time. // Howell v. S., 45 So. 3d 527 (1st DCA 2010), 35 F.L.W. D2170 (9/30/2010)
Defendant is properly convicted of escape when he fails to return to a work release center by the required time. // Howell v. S., 45 So. 3d 527 (1st DCA 2010), 35 F.L.W. D2170 (9/30/2010)
To constitute an arrest for escape purposes, there must be a physical touching or submission to authority. Where the officer yells at defendant, who is holding a gun, that he is under arrest, and the defendant flees, he does not commit escape. // •Hebert v. S., 962 So. 2d 1068 (4th DCA 2007), 32 F.L.W. D2164 (9/12/2007)
To constitute an arrest for escape purposes, there must be a physical touching or submission to authority. Where the officer yells at defendant, who is holding a gun, that he is under arrest, and the defendant flees, he does not commit escape. // •Hebert v. S., 962 So. 2d 1068 (4th DCA 2007), 32 F.L.W. D2164 (9/12/2007)
Where defendant is arrested by a police officer outside his jurisdiction for a misdemeanor, the arrest is unlawful, and defendant cannot thereafter be convicted of escape when he runs from the officer. The fact that the officer had probable cause to make the arrest does not save the arrest. // Moncrieffe v. S., ___ So. 3d ___, 36 F.L.W. D565 (4th DCA 3/16/2011)
Where defendant is arrested by a police officer outside his jurisdiction for a misdemeanor, the arrest is unlawful, and defendant cannot thereafter be convicted of escape when he runs from the officer. The fact that the officer had probable cause to make the arrest does not save the arrest. // Moncrieffe v. S., ___ So. 3d ___, 36 F.L.W. D565 (4th DCA 3/16/2011)
LEO stopped defendant for a traffic infraction. He saw defendant and passenger trying to hide something under the seat, and ordered them out of the car. Defendant consented to a search, and the officer ordered that he remove his shoes. Defendant did so, and the officer saw drugs. He told defendant he was under arrest and started to get his cuffs. Defendant pushed his hand away, pushed the officer, and ran. Held: The evidence is sufficient to sustain a conviction for escape. // Spann v. S., 996 So. 2d 873 (4th DCA 2008), 33 F.L.W. D2419 (10/15/2008)
LEO stopped defendant for a traffic infraction. He saw defendant and passenger trying to hide something under the seat, and ordered them out of the car. Defendant consented to a search, and the officer ordered that he remove his shoes. Defendant did so, and the officer saw drugs. He told defendant he was under arrest and started to get his cuffs. Defendant pushed his hand away, pushed the officer, and ran. Held: The evidence is sufficient to sustain a conviction for escape. // Spann v. S., 996 So. 2d 873 (4th DCA 2008), 33 F.L.W. D2419 (10/15/2008)
LEO went to defendant’s house and asked him to come outside. He did, and the officer told him he had a warrant for his arrest and asked him to turn around. Defendant did, and then took off running. He was charged with escape. Held: The elements of arrest had occurred, and defendant had escaped from confinement. He was properly convicted of escape. // McKinnon v. S., 17 So. 3d 860 (5th DCA 2009), 34 F.L.W. D1825 (9/4/2009)
LEO went to defendant’s house and asked him to come outside. He did, and the officer told him he had a warrant for his arrest and asked him to turn around. Defendant did, and then took off running. He was charged with escape. Held: The elements of arrest had occurred, and defendant had escaped from confinement. He was properly convicted of escape. // McKinnon v. S., 17 So. 3d 860 (5th DCA 2009), 34 F.L.W. D1825 (9/4/2009)
Defendant was found with a pellet gun in his waistband, and at trial the only issue was whether the pellet gun was a “deadly weapon” for possession of a concealed weapon by a felon purposes. The court instructed the jury that the state had to prove that defendant had been convicted and that he “knowingly carried a pellet gun which was concealed from the ordinary sight of another person.” Held: The instruction is fundamentally erroneous. Because a pellet gun is not listed as a weapon in the statute, the jury must decide whether it was a deadly weapon under the statute. // Moore v. S., 903 So. 2d 341 (1st DCA 2005), 30 F.L.W. D1473 (6/13/2005)
Defendant was found with a pellet gun in his waistband, and at trial the only issue was whether the pellet gun was a “deadly weapon” for possession of a concealed weapon by a felon purposes. The court instructed the jury that the state had to prove that defendant had been convicted and that he “knowingly carried a pellet gun which was concealed from the ordinary sight of another person.” Held: The instruction is fundamentally erroneous. Because a pellet gun is not listed as a weapon in the statute, the jury must decide whether it was a deadly weapon under the statute. // Moore v. S., 903 So. 2d 341 (1st DCA 2005), 30 F.L.W. D1473 (6/13/2005)
Defendant was stopped for a traffic violation and taken out of his car. An officer searched the car and found a gun. Held: Defendant does not commit the crime of possession of a concealed weapon because at the time of his arrest, the gun was not readily accessible to him. // White v. S., 902 So. 2d 887 (1st DCA 2005), 30 F.L.W. D1369 (5/31/2005)
Defendant was stopped for a traffic violation and taken out of his car. An officer searched the car and found a gun. Held: Defendant does not commit the crime of possession of a concealed weapon because at the time of his arrest, the gun was not readily accessible to him. // White v. S., 902 So. 2d 887 (1st DCA 2005), 30 F.L.W. D1369 (5/31/2005)
The police were at defendant’s home when he arrived. He got out of the car and the officers arrested him for stalking. They searched the car and found a shotgun on the front passenger seat under a jacket. Held: Defendant was not possessing the weapon when the officers approached and he cannot be convicted of carrying a concealed weapon. // Gehring v. S., 937 So. 2d 169 (2d DCA 2006), 31 F.L.W. D2069 (8/4/2006)
The police were at defendant’s home when he arrived. He got out of the car and the officers arrested him for stalking. They searched the car and found a shotgun on the front passenger seat under a jacket. Held: Defendant was not possessing the weapon when the officers approached and he cannot be convicted of carrying a concealed weapon. // Gehring v. S., 937 So. 2d 169 (2d DCA 2006), 31 F.L.W. D2069 (8/4/2006)
In a bifurcated possession of firearm by convicted felon jury trial, the jury must decide in the first phase whether the defendant possessed the weapon. After that determination is made, the state must then produce evidence about convictions. The court cannot make the decision about whether defendant is a convicted felon over the defendant’s objection. Defendant’s admission in the first phase that he had been convicted does not allow the court to make the decision rather than the jury. // Walters v. S., 933 So. 2d 1229 (3d DCA 2006), 31 F.L.W. D1932 (7/19/2006)
In a bifurcated possession of firearm by convicted felon jury trial, the jury must decide in the first phase whether the defendant possessed the weapon. After that determination is made, the state must then produce evidence about convictions. The court cannot make the decision about whether defendant is a convicted felon over the defendant’s objection. Defendant’s admission in the first phase that he had been convicted does not allow the court to make the decision rather than the jury. // Walters v. S., 933 So. 2d 1229 (3d DCA 2006), 31 F.L.W. D1932 (7/19/2006)
The court need not bifurcate a possession of firearm by a felon trial. The status of being a convicted felon is a necessary element of the crime, and the jury should hear evidence on both elements of the offense. // Syder v. S., 921 So. 2d 871 (4th DCA 2006), 31 F.L.W. D734 (3/8/2006)
The court need not bifurcate a possession of firearm by a felon trial. The status of being a convicted felon is a necessary element of the crime, and the jury should hear evidence on both elements of the offense. // Syder v. S., 921 So. 2d 871 (4th DCA 2006), 31 F.L.W. D734 (3/8/2006)
Defendant was in the back seat of a car that was lawfully stopped. The LEO got each person out of the car and searched it finding a gun under the front passenger seat. Defendant admitted the gun was his. He was charged with carrying a concealed weapon. Held: A gun under the front seat can be within the control of a passenger in the back seat of a car for concealed weapon purposes (but see dissent). // J.E.S. v. S., 931 So. 2d 276 (5th DCA 2006), 31 F.L.W. D1711 (6/23/2006)
Defendant was in the back seat of a car that was lawfully stopped. The LEO got each person out of the car and searched it finding a gun under the front passenger seat. Defendant admitted the gun was his. He was charged with carrying a concealed weapon. Held: A gun under the front seat can be within the control of a passenger in the back seat of a car for concealed weapon purposes (but see dissent). // J.E.S. v. S., 931 So. 2d 276 (5th DCA 2006), 31 F.L.W. D1711 (6/23/2006)
In a possession of a weapon by a convicted felon case, the state must prove that the item possessed was a weapon and that it was concealed. The court errs in failing to instruct the jury about the definition of a weapon when the item is a common household item, such as a paring knife. // Whether a paring knife constitutes a “dirk” or an “other deadly weapon” is a jury issue and cannot be presumed by the court. // Caldwell v. S., 920 So. 2d 727 (5th DCA 2006), 31 F.L.W. D436 (2/10/2006)
In a possession of a weapon by a convicted felon case, the state must prove that the item possessed was a weapon and that it was concealed. The court errs in failing to instruct the jury about the definition of a weapon when the item is a common household item, such as a paring knife. // Whether a paring knife constitutes a “dirk” or an “other deadly weapon” is a jury issue and cannot be presumed by the court. // Caldwell v. S., 920 So. 2d 727 (5th DCA 2006), 31 F.L.W. D436 (2/10/2006)
Under the law in effect in 1989, the determination whether a knife was a “deadly weapon” or a “common pocketknife” for armed burglary purposes was a decision for the jury. The decision in L.B. v. S., 700 So. 2d 370 (Fla. 1997), refining the definition of a “common pocketknife,” does not apply retroactively. // (See this case, including concurring and dissenting opinions, for discussion of when the Court’s decisions are to applied retroactively.) // Bunkley v. S., 882 So. 2d 890 (Fla. 2004), 29 F.L.W. S251 (5/27/2004)
Under the law in effect in 1989, the determination whether a knife was a “deadly weapon” or a “common pocketknife” for armed burglary purposes was a decision for the jury. The decision in L.B. v. S., 700 So. 2d 370 (Fla. 1997), refining the definition of a “common pocketknife,” does not apply retroactively. // (See this case, including concurring and dissenting opinions, for discussion of when the Court’s decisions are to applied retroactively.) // Bunkley v. S., 882 So. 2d 890 (Fla. 2004), 29 F.L.W. S251 (5/27/2004)
The decision in L.B. v. S., 700 So. 2d 370 (Fla. 1997), holding that a folding pocketknife with a blade of 4 inches or less falls within the statutory exception to the definition of a “weapon” in §790.001(3), is not applied retroactively. // Bunkley v. S., 833 So. 2d 739 (Fla. 2002), 27 F.L.W. S967 (11/21/2002)
The decision in L.B. v. S., 700 So. 2d 370 (Fla. 1997), holding that a folding pocketknife with a blade of 4 inches or less falls within the statutory exception to the definition of a “weapon” in §790.001(3), is not applied retroactively. // Bunkley v. S., 833 So. 2d 739 (Fla. 2002), 27 F.L.W. S967 (11/21/2002)
Under §790.235, possession of a concealed weapon by a violent career criminal, a firearm is excluded from the definition of “concealed weapon.” when the defendant possesses a gun concealed in a bag, he can be convicted of possession of a firearm by a violent career criminal, but not possession of a concealed weapon. // •Baldwin v. S., 857 So. 2d 249 (2d DCA 2003), 28 F.L.W. D2079 (9/5/2003)
Under §790.235, possession of a concealed weapon by a violent career criminal, a firearm is excluded from the definition of “concealed weapon.” when the defendant possesses a gun concealed in a bag, he can be convicted of possession of a firearm by a violent career criminal, but not possession of a concealed weapon. // •Baldwin v. S., 857 So. 2d 249 (2d DCA 2003), 28 F.L.W. D2079 (9/5/2003)
A BB gun with no cartridge that is incapable of firing is not a deadly weapon for carrying a concealed weapon purposes. // E.S. v. S., 886 So. 2d 311 (3d DCA 2004), 29 F.L.W. D2509 (11/10/2004)
A BB gun with no cartridge that is incapable of firing is not a deadly weapon for carrying a concealed weapon purposes. // E.S. v. S., 886 So. 2d 311 (3d DCA 2004), 29 F.L.W. D2509 (11/10/2004)
A small wooden bat is not a “weapon” for concealed weapons purposes. // (See this case for discussion of what constitutes a “billie” for concealed weapons purposes.) // M.D. v. S., 873 So. 2d 525 (4th DCA 2004), 29 F.L.W. D1207 (5/19/2004)
A small wooden bat is not a “weapon” for concealed weapons purposes. // (See this case for discussion of what constitutes a “billie” for concealed weapons purposes.) // M.D. v. S., 873 So. 2d 525 (4th DCA 2004), 29 F.L.W. D1207 (5/19/2004)
A gun located in a closed console between the driver’s seat and the passenger seat, is “securely encased” for § 790.25(5) purposes. // Dixon v. S., 831 So. 2d 775 (4th DCA 2002), 27 F.L.W. D2589 (12/4/2002)
A gun located in a closed console between the driver’s seat and the passenger seat, is “securely encased” for § 790.25(5) purposes. // Dixon v. S., 831 So. 2d 775 (4th DCA 2002), 27 F.L.W. D2589 (12/4/2002)
Whether a knife is a “deadly weapon” for purposes of carrying a concealed weapon is a question for the jury. The court errs in refusing to give a requested defense instruction on the definition of a deadly weapon. // McNeally v. S., 884 So. 2d 494 (5th DCA 2004), 29 F.L.W. D2248 (10/8/2004)
Whether a knife is a “deadly weapon” for purposes of carrying a concealed weapon is a question for the jury. The court errs in refusing to give a requested defense instruction on the definition of a deadly weapon. // McNeally v. S., 884 So. 2d 494 (5th DCA 2004), 29 F.L.W. D2248 (10/8/2004)
A kitchen knife may be a common household item or a “dirk” pursuant to §790.001(3)(a). The decision is up to the jury, and the court errs in granting a c(4) motion on the issue. // S. v. Walthour, 876 So. 2d 594 (5th DCA 2004), 29 F.L.W. D1360 (6/4/2004)
A kitchen knife may be a common household item or a “dirk” pursuant to §790.001(3)(a). The decision is up to the jury, and the court errs in granting a c(4) motion on the issue. // S. v. Walthour, 876 So. 2d 594 (5th DCA 2004), 29 F.L.W. D1360 (6/4/2004)
A straight-edged razor with a seven-inch handle and a two-inch blade is not a common household item and defendant is properly convicted of carrying a concealed weapon. // R.R. v. S., 826 So. 2d 465 (5th DCA 2002), 27 F.L.W. D2071 (9/20/2002)
A straight-edged razor with a seven-inch handle and a two-inch blade is not a common household item and defendant is properly convicted of carrying a concealed weapon. // R.R. v. S., 826 So. 2d 465 (5th DCA 2002), 27 F.L.W. D2071 (9/20/2002)
A Chinese star is an “other deadly weapon” under the concealed weapon statute. An object can be considered a deadly weapon when its sole modern use is to cause great bodily harm. // C.A.W. v. S., 817 So. 2d 1077 (5th DCA 2002), 27 F.L.W. D1340 (6/7/2002)
A Chinese star is an “other deadly weapon” under the concealed weapon statute. An object can be considered a deadly weapon when its sole modern use is to cause great bodily harm. // C.A.W. v. S., 817 So. 2d 1077 (5th DCA 2002), 27 F.L.W. D1340 (6/7/2002)
To get a mandatory minimum sentence for possession of a firearm by a convicted felon, the defendant’s possession must be actual. While the defendant can be convicted of possession by being in constructive possession, to impose the mandatory minimum the defendant must be in actual possession. // Bundage v. S., 814 So. 2d 1133 (2d DCA 2002), 27 F.L.W. D781 (4/5/2002)
To get a mandatory minimum sentence for possession of a firearm by a convicted felon, the defendant’s possession must be actual. While the defendant can be convicted of possession by being in constructive possession, to impose the mandatory minimum the defendant must be in actual possession. // Bundage v. S., 814 So. 2d 1133 (2d DCA 2002), 27 F.L.W. D781 (4/5/2002)
LEOs saw defendant drive up to a house that was being searched pursuant to a search warrant. Defendant turned around and drove away, and the officers followed him. They made a traffic stop, a drug dog alerted, and a search revealed a gun under the seat. Defendant was charged with possession of a firearm by a felon and he sought to exclude evidence that he drove away from the police. Held: Court properly admits the evidence. While it is not evidence of a collateral crime, it is evidence of his knowledge of the presence of the gun. // Barrientos v. S., 825 So. 2d 1065 (4th DCA 2002), 27 F.L.W. D2087 (9/18/2002)
LEOs saw defendant drive up to a house that was being searched pursuant to a search warrant. Defendant turned around and drove away, and the officers followed him. They made a traffic stop, a drug dog alerted, and a search revealed a gun under the seat. Defendant was charged with possession of a firearm by a felon and he sought to exclude evidence that he drove away from the police. Held: Court properly admits the evidence. While it is not evidence of a collateral crime, it is evidence of his knowledge of the presence of the gun. // Barrientos v. S., 825 So. 2d 1065 (4th DCA 2002), 27 F.L.W. D2087 (9/18/2002)
Restoration of civil rights is an affirmative defense in a possession of firearm by convicted felon case, and the failure of the state to show that civil rights were not restored does not require dismissal. // Kluth v. S., 821 So. 2d 1210 (5th DCA 2002), 27 F.L.W. D1698 (7/26/2002)
Restoration of civil rights is an affirmative defense in a possession of firearm by convicted felon case, and the failure of the state to show that civil rights were not restored does not require dismissal. // Kluth v. S., 821 So. 2d 1210 (5th DCA 2002), 27 F.L.W. D1698 (7/26/2002)
Where the judgment admitted into evidence does not have a middle initial, fingerprints, or other identifying information, the state fails to prove that defendant is the subject of the conviction and the court errs in failing to grant a JOA in a possession of firearm by a felon case. // Mason v. S., 853 So. 2d 544 (1st DCA 2003), 28 F.L.W. D2021 (8/29/2003)
Where the judgment admitted into evidence does not have a middle initial, fingerprints, or other identifying information, the state fails to prove that defendant is the subject of the conviction and the court errs in failing to grant a JOA in a possession of firearm by a felon case. // Mason v. S., 853 So. 2d 544 (1st DCA 2003), 28 F.L.W. D2021 (8/29/2003)
Section 790.23(1)(b), possession of a firearm by a felon, is not unconstitutional when applied to a person who was found to have committed a felony as a juvenile and had adjudication withheld. The fact that the statute requires an adjudication for a felony as an adult, but a withhold makes the statute apply for a juvenile proceeding, does not violate constitutional rights. // •S. v. Menuto, 912 So. 2d 603 (2d DCA 2005), 30 F.L.W. D1173 (5/4/2005)
Section 790.23(1)(b), possession of a firearm by a felon, is not unconstitutional when applied to a person who was found to have committed a felony as a juvenile and had adjudication withheld. The fact that the statute requires an adjudication for a felony as an adult, but a withhold makes the statute apply for a juvenile proceeding, does not violate constitutional rights. // •S. v. Menuto, 912 So. 2d 603 (2d DCA 2005), 30 F.L.W. D1173 (5/4/2005)
The court errs in refusing to sever a possession of firearm by a felon charge when the motion is made after jury selection for tactical reasons. // Tucker v. S., 884 So. 2d 168 (2d DCA 2004), 29 F.L.W. D1702 (7/23/2004)
The court errs in refusing to sever a possession of firearm by a felon charge when the motion is made after jury selection for tactical reasons. // Tucker v. S., 884 So. 2d 168 (2d DCA 2004), 29 F.L.W. D1702 (7/23/2004)
In a possession of firearm by a felon case, the fact of defendant’s status as a felon is sufficiently proved by proving identity and introducing a copy of the judgment. The state need not introduce the entire record of the case that resulted in a conviction. // Keith v. S., 844 So. 2d 715 (2d DCA 2003), 28 F.L.W. D1128 (5/9/2003)
In a possession of firearm by a felon case, the fact of defendant’s status as a felon is sufficiently proved by proving identity and introducing a copy of the judgment. The state need not introduce the entire record of the case that resulted in a conviction. // Keith v. S., 844 So. 2d 715 (2d DCA 2003), 28 F.L.W. D1128 (5/9/2003)
When defendant is charged with possession of a firearm by a felon and robbery, the court need not sever the charges, but may conduct a bifurcated trial. In a bifurcated trial, the jury first hears the robbery case, and if he is convicted, the same jury then hears evidence regarding the defendant’s status as a convicted felon. // •Jackson v. S., 881 So. 2d 711 (3d DCA 2004), 29 F.L.W. D2034 (9/9/2004)
When defendant is charged with possession of a firearm by a felon and robbery, the court need not sever the charges, but may conduct a bifurcated trial. In a bifurcated trial, the jury first hears the robbery case, and if he is convicted, the same jury then hears evidence regarding the defendant’s status as a convicted felon. // •Jackson v. S., 881 So. 2d 711 (3d DCA 2004), 29 F.L.W. D2034 (9/9/2004)
Defendant may not get a mandatory minimum under the 10/20/Life statute for possession of a firearm by a felon when the jury does not make a specific finding that he possessed a firearm. // James v. S., 868 So. 2d 1242 (4th DCA 2004), 29 F.L.W. D702 (3/24/2004)
Defendant may not get a mandatory minimum under the 10/20/Life statute for possession of a firearm by a felon when the jury does not make a specific finding that he possessed a firearm. // James v. S., 868 So. 2d 1242 (4th DCA 2004), 29 F.L.W. D702 (3/24/2004)
The “antique firearm” exception to the definition of a “firearm” under §790.001(6) applies to felons, and so it is not unlawful for a felon to be in possession of an antique firearm. // A firearm is not rendered an “antique” because it is a muzzle-loading gun that uses black powder. To be an antique, the gun must have been manufactured before 1918 or a replica of a gun manufactured before that date (but see dissent). // (See this case, including dissent, for an extensive discussion of the antique firearm exception, and its applicability to felons using such guns for hunting.) // •Bostic v. S., 902 So. 2d 225 (5th DCA 2005), 30 F.L.W. D1235 (5/13/2005)
The “antique firearm” exception to the definition of a “firearm” under §790.001(6) applies to felons, and so it is not unlawful for a felon to be in possession of an antique firearm. // A firearm is not rendered an “antique” because it is a muzzle-loading gun that uses black powder. To be an antique, the gun must have been manufactured before 1918 or a replica of a gun manufactured before that date (but see dissent). // (See this case, including dissent, for an extensive discussion of the antique firearm exception, and its applicability to felons using such guns for hunting.) // •Bostic v. S., 902 So. 2d 225 (5th DCA 2005), 30 F.L.W. D1235 (5/13/2005)
Possession of a firearm by a felon is subject to a 3-year mandatory, not 10. // Johnson v. S., 855 So. 2d 218 (5th DCA 2003), 28 F.L.W. D2241 (9/26/2003)
Possession of a firearm by a felon is subject to a 3-year mandatory, not 10. // Johnson v. S., 855 So. 2d 218 (5th DCA 2003), 28 F.L.W. D2241 (9/26/2003)
A BB gun qualifies as a weapon for purposes of possession of a weapon on school property, §790.115(2)(b). // T.H. v. S., 859 So. 2d 549 (4th DCA 2003), 28 F.L.W. D2655 (11/19/2003)
A BB gun qualifies as a weapon for purposes of possession of a weapon on school property, §790.115(2)(b). // T.H. v. S., 859 So. 2d 549 (4th DCA 2003), 28 F.L.W. D2655 (11/19/2003)
Under §790.065(12), a firearm buyer cannot be prosecuted for answering falsely on the FDLE form inquiring about prior convictions. // Randall v. S., 805 So. 2d 917 (2d DCA 2001), 26 F.L.W. D2560 (10/26/2001) // see S. v. Watson, 788 So. 2d 1026 (Fla. 2d DCA 2001)
Under §790.065(12), a firearm buyer cannot be prosecuted for answering falsely on the FDLE form inquiring about prior convictions. // Randall v. S., 805 So. 2d 917 (2d DCA 2001), 26 F.L.W. D2560 (10/26/2001) // see S. v. Watson, 788 So. 2d 1026 (Fla. 2d DCA 2001)
The court errs in denying a JOA in a possession of firearm by a felon case where the evidence of identity was a matching name and fingerprints that were not introduced into evidence. // (See this case for discussion of the sufficiency of fingerprint evidence in identifying a defendant as the person who was the subject of a prior conviction.) // Ling v. S., 15 So. 3d 914 (1st DCA 2009), 34 F.L.W. D1595 (8/6/2009)
The court errs in denying a JOA in a possession of firearm by a felon case where the evidence of identity was a matching name and fingerprints that were not introduced into evidence. // (See this case for discussion of the sufficiency of fingerprint evidence in identifying a defendant as the person who was the subject of a prior conviction.) // Ling v. S., 15 So. 3d 914 (1st DCA 2009), 34 F.L.W. D1595 (8/6/2009)
Defendant was charged with a robbery occurring on March 13. The state presented evidence that on March 21 the police found a gun in a barbecue grill at his girlfriend’s apartment, and the victim testified that the gun looked like the gun used in the robbery. Defendant was convicted of robbery, and in a separate trial he was acquitted of possession of a firearm by a felon, in a trial where he stipulated to his prior conviction. Held: The subsequent acquittal requires reversal of the conviction (question certified). // Hines v. S., 983 So. 2d 721 (1st DCA 2008), 33 F.L.W. D1493 (6/10/2008)
Defendant was charged with a robbery occurring on March 13. The state presented evidence that on March 21 the police found a gun in a barbecue grill at his girlfriend’s apartment, and the victim testified that the gun looked like the gun used in the robbery. Defendant was convicted of robbery, and in a separate trial he was acquitted of possession of a firearm by a felon, in a trial where he stipulated to his prior conviction. Held: The subsequent acquittal requires reversal of the conviction (question certified). // Hines v. S., 983 So. 2d 721 (1st DCA 2008), 33 F.L.W. D1493 (6/10/2008)
The second amendment is not a defense to a charge of possession of a firearm by a convicted felon, as the decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010) do not extend 2d amendment protection to persons convicted of felonies. // Epps v. S., ___ So. 3d ___, 36 F.L.W. D475 (1st DCA 3/2/2011)
The second amendment is not a defense to a charge of possession of a firearm by a convicted felon, as the decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010) do not extend 2d amendment protection to persons convicted of felonies. // Epps v. S., ___ So. 3d ___, 36 F.L.W. D475 (1st DCA 3/2/2011)
LEO got a call about a drunk driver with a gun. He pulled over defendant, and got him out of the car. On the front seat under some papers were a gun. Held: Even though defendant was out of the car when the police located the gun, defendant was in possession of the gun prior to getting out of the car and his is properly convicted of possession of a concealed weapon. // Evans v. S., 24 So. 3d 1257 (1st DCA 2009), 35 F.L.W. D84 (12/31/2009)
LEO got a call about a drunk driver with a gun. He pulled over defendant, and got him out of the car. On the front seat under some papers were a gun. Held: Even though defendant was out of the car when the police located the gun, defendant was in possession of the gun prior to getting out of the car and his is properly convicted of possession of a concealed weapon. // Evans v. S., 24 So. 3d 1257 (1st DCA 2009), 35 F.L.W. D84 (12/31/2009)
Defendant may not be convicted of both possession of a firearm by a violent career criminal and possession of a firearm by a convicted felon for the same act. // Pryor v. S., 48 So. 3d 159 (1st DCA 2010), 35 F.L.W. D2570 (11/22/2010)
Defendant may not be convicted of both possession of a firearm by a violent career criminal and possession of a firearm by a convicted felon for the same act. // Pryor v. S., 48 So. 3d 159 (1st DCA 2010), 35 F.L.W. D2570 (11/22/2010)
Where defendant has a probation condition that prohibits possession of a “weapon,” the court errs in finding him in violation as a result of his possession of a common pocketknife. // The court errs in finding defendant in violation of probation for possessing a butcher knife, when the charging affidavit did not allege possession of that item. // Bishop v. S., 21 So. 3d 830 (1st DCA 2008), 33 F.L.W. D2438 (10/21/2008)
Where defendant has a probation condition that prohibits possession of a “weapon,” the court errs in finding him in violation as a result of his possession of a common pocketknife. // The court errs in finding defendant in violation of probation for possessing a butcher knife, when the charging affidavit did not allege possession of that item. // Bishop v. S., 21 So. 3d 830 (1st DCA 2008), 33 F.L.W. D2438 (10/21/2008)
When defendant stipulates that he was a convicted felon, the court properly informs the jury of the stipulation and instructs the jury on all elements of the crime. The court cannot fail to instruct on the element, which would result in a conviction for a nonexistent crime. // (See this case for discussion of the difference between a bifurcated trial on the issue of prior convictions and the effect of a stipulation to the element.) // Milton v. S., 19 So. 3d 1143 (1st DCA 2009), 34 F.L.W. D2124 (10/14/2009)
When defendant stipulates that he was a convicted felon, the court properly informs the jury of the stipulation and instructs the jury on all elements of the crime. The court cannot fail to instruct on the element, which would result in a conviction for a nonexistent crime. // (See this case for discussion of the difference between a bifurcated trial on the issue of prior convictions and the effect of a stipulation to the element.) // Milton v. S., 19 So. 3d 1143 (1st DCA 2009), 34 F.L.W. D2124 (10/14/2009)
Defendant was found with an unloaded pistol wedged between the front seats of his car. The magazine was in the closed center console. Held: The court properly grants a motion dismissing a charge of possession of a concealed firearm. Because the ammunition was securely encased, the gun was not readily accessible for immediate use (but see dissent discussing when an unloaded gun is considered a concealed weapon). // S. v. Weyant, 990 So. 2d 675 (2d DCA 2008), 33 F.L.W. D2231 (9/19/2008)
Defendant was found with an unloaded pistol wedged between the front seats of his car. The magazine was in the closed center console. Held: The court properly grants a motion dismissing a charge of possession of a concealed firearm. Because the ammunition was securely encased, the gun was not readily accessible for immediate use (but see dissent discussing when an unloaded gun is considered a concealed weapon). // S. v. Weyant, 990 So. 2d 675 (2d DCA 2008), 33 F.L.W. D2231 (9/19/2008)
When the defense refuses to stipulate to defendant’s status as a convicted felon, the state properly introduces certified copies of judgments of conviction. However, including copies of the informations, sentencing orders, and related documents is error. // Johnson v. S., 42 So. 3d 899 (2d DCA 2010), 35 F.L.W. D1900 (8/20/2010)
When the defense refuses to stipulate to defendant’s status as a convicted felon, the state properly introduces certified copies of judgments of conviction. However, including copies of the informations, sentencing orders, and related documents is error. // Johnson v. S., 42 So. 3d 899 (2d DCA 2010), 35 F.L.W. D1900 (8/20/2010)
The court errs in dismissing a concealed firearm charge where the gun was found under the driver’s seat of a car defendant was driving. The evidence is sufficient to go to trial. // (See this case for discussion of cases where the gun is under a seat in a car.) // S. v. Lopez, 980 So. 2d 1270 (2d DCA 2008), 33 F.L.W. D1275 (5/9/2008)
The court errs in dismissing a concealed firearm charge where the gun was found under the driver’s seat of a car defendant was driving. The evidence is sufficient to go to trial. // (See this case for discussion of cases where the gun is under a seat in a car.) // S. v. Lopez, 980 So. 2d 1270 (2d DCA 2008), 33 F.L.W. D1275 (5/9/2008)
Defendant was charged with one count of possession of a firearm by a felon, and listed two guns stating that he possessed one or both guns at three separate times and places over a two-day period. The court refused a statement of particulars, and at trial refused to give a special instruction that required the jury to find unanimously that he possessed a specific gun at a specific time. Held: The court properly allows the state to proceed on the information as charged, and no statement of particulars is required. However, the court errs in refusing the requested instruction, because the jury could find him guilty while disagreeing on the gun and circumstances of his possession. // Saldana v. S., 980 So. 2d 1220 (2d DCA 2008), 33 F.L.W. D1229 (5/2/2008)
Defendant was charged with one count of possession of a firearm by a felon, and listed two guns stating that he possessed one or both guns at three separate times and places over a two-day period. The court refused a statement of particulars, and at trial refused to give a special instruction that required the jury to find unanimously that he possessed a specific gun at a specific time. Held: The court properly allows the state to proceed on the information as charged, and no statement of particulars is required. However, the court errs in refusing the requested instruction, because the jury could find him guilty while disagreeing on the gun and circumstances of his possession. // Saldana v. S., 980 So. 2d 1220 (2d DCA 2008), 33 F.L.W. D1229 (5/2/2008)
LEO stopped defendant’s car for a noise violation. A dog alerted to drugs in the car, and the officer detained defendant in his patrol car. While searching the car, the officer found an unloaded gun under the driver’s seat with ammunition in the center console. Held: The gun was not readily accessible for immediate use and the court errs in refusing to grant a c(4) motion. // Strikertaylor v. S., 997 So. 2d 488 (2d DCA 2008), 33 F.L.W. D2853 (12/17/2008)
LEO stopped defendant’s car for a noise violation. A dog alerted to drugs in the car, and the officer detained defendant in his patrol car. While searching the car, the officer found an unloaded gun under the driver’s seat with ammunition in the center console. Held: The gun was not readily accessible for immediate use and the court errs in refusing to grant a c(4) motion. // Strikertaylor v. S., 997 So. 2d 488 (2d DCA 2008), 33 F.L.W. D2853 (12/17/2008)
Section 790.23(1) has two subparts. It makes it illegal for a convicted felon to have in his care, custody, possession or control” any firearm or other listed weapon. Second, it makes it illegal for a felon to “carry a concealed weapon.” An information that alleges defendant had in his possession a concealed weapon does not properly charge the crime. // Where defendant is in possession of a box cutter that he uses as a weapon, the state must charge and the court must instruct the jury that he “carried” a concealed weapon to properly charge a crime under the statute. Charging “possession” is not sufficient. // Williams v. S., 48 So. 3d 192 (2d DCA 2010), 35 F.L.W. D2611 (12/1/2010)
Section 790.23(1) has two subparts. It makes it illegal for a convicted felon to have in his care, custody, possession or control” any firearm or other listed weapon. Second, it makes it illegal for a felon to “carry a concealed weapon.” An information that alleges defendant had in his possession a concealed weapon does not properly charge the crime. // Where defendant is in possession of a box cutter that he uses as a weapon, the state must charge and the court must instruct the jury that he “carried” a concealed weapon to properly charge a crime under the statute. Charging “possession” is not sufficient. // Williams v. S., 48 So. 3d 192 (2d DCA 2010), 35 F.L.W. D2611 (12/1/2010)
Where the defendant is found in possession of a knife with a blade less than four inches long that is folded and put in his pocket, the court err in failing to grant a c(4) motion on a charge of carrying a concealed weapon. The knife qualifies as a “common pocketknife” under §790.001(13) and is not a weapon. // Browder v. S., 27 So. 3d 150 (2d DCA 2010), 35 F.L.W. D271 (1/29/2010)
Where the defendant is found in possession of a knife with a blade less than four inches long that is folded and put in his pocket, the court err in failing to grant a c(4) motion on a charge of carrying a concealed weapon. The knife qualifies as a “common pocketknife” under §790.001(13) and is not a weapon. // Browder v. S., 27 So. 3d 150 (2d DCA 2010), 35 F.L.W. D271 (1/29/2010)
The court must impose a three-year mandatory minimum upon conviction of possession of a firearm by a felon when the defendant has the gun in his actual possession. The crime can be committed by constructive possession, but the mandatory cannot be imposed in a constructive possession case. // S. v. Mulus, 970 So. 2d 349 (3d DCA 2007), 32 F.L.W. D1995 (8/22/2007)
The court must impose a three-year mandatory minimum upon conviction of possession of a firearm by a felon when the defendant has the gun in his actual possession. The crime can be committed by constructive possession, but the mandatory cannot be imposed in a constructive possession case. // S. v. Mulus, 970 So. 2d 349 (3d DCA 2007), 32 F.L.W. D1995 (8/22/2007)
LEO stopped a car to make an arrest of the driver, for whom he had a warrant. One officer got the passenger out, and another removed defendant driver. While defendant was getting out of the car, the officer saw a gun on the floor of the driver’s side. The state presented evidence that the car belonged to defendant’s girlfriend, and she had not put the gun there. Held: The circumstantial evidence is sufficient to sustain a finding of possession of a firearm by a felon. // Barlatier v. S., 26 So. 3d 29 (3d DCA 2009), 34 F.L.W. D2587 (12/16/2009)
LEO stopped a car to make an arrest of the driver, for whom he had a warrant. One officer got the passenger out, and another removed defendant driver. While defendant was getting out of the car, the officer saw a gun on the floor of the driver’s side. The state presented evidence that the car belonged to defendant’s girlfriend, and she had not put the gun there. Held: The circumstantial evidence is sufficient to sustain a finding of possession of a firearm by a felon. // Barlatier v. S., 26 So. 3d 29 (3d DCA 2009), 34 F.L.W. D2587 (12/16/2009)
A nail clipper with a portion sharpened into a knife is not a “common pocketknife” under § 790.001(13). // Johnson v. S., 21 So. 3d 911 (3d DCA 2009), 34 F.L.W. D2308 (11/12/2009)
A nail clipper with a portion sharpened into a knife is not a “common pocketknife” under § 790.001(13). // Johnson v. S., 21 So. 3d 911 (3d DCA 2009), 34 F.L.W. D2308 (11/12/2009)
Defendant was charged with armed robbery resisting without violence, and possession of a firearm by a felon. The court bifurcated the trial, and the jury heard evidence relating to the robbery and resisting first. The jury acquitted on robbery, convicted on resisting, and found by special verdict that he possessed a firearm. The state then presented evidence of defendant’s status as a convicted felon. During closing, the defendant attempted to argue that the evidence did not show that defendant possessed a gun, the state objected, and the court sustained. Held: In the first part of the trial, the jury found defendant possessed a gun, and the defense cannot argue against that finding in the second part of the bifurcated trial. // (But see dissent, arguing that because defendant was acquitted of robbery, the finding that he possessed a gun was irrelevant.) // (See this case for discussion of the effect of findings in the first part of a trial on the process used in the second part of a bifurcated trial.) // Emory v. S., 46 So. 3d 89 (4th DCA 2010), 35 F.L.W. D2159 (9/29/2010)
Defendant was charged with armed robbery resisting without violence, and possession of a firearm by a felon. The court bifurcated the trial, and the jury heard evidence relating to the robbery and resisting first. The jury acquitted on robbery, convicted on resisting, and found by special verdict that he possessed a firearm. The state then presented evidence of defendant’s status as a convicted felon. During closing, the defendant attempted to argue that the evidence did not show that defendant possessed a gun, the state objected, and the court sustained. Held: In the first part of the trial, the jury found defendant possessed a gun, and the defense cannot argue against that finding in the second part of the bifurcated trial. // (But see dissent, arguing that because defendant was acquitted of robbery, the finding that he possessed a gun was irrelevant.) // (See this case for discussion of the effect of findings in the first part of a trial on the process used in the second part of a bifurcated trial.) // Emory v. S., 46 So. 3d 89 (4th DCA 2010), 35 F.L.W. D2159 (9/29/2010)
Section 790.23(1) creates two crimes, possession of a firearm by a convicted felon, and carrying a concealed weapon by a convicted felon. Where defendant is charged with carrying a concealed weapon by a felon, the court errs in instructing the jury on “possession of a concealed weapon by a convicted felon,” a crime which does not exists. Instructions regarding the definition of possession are irrelevant, because the definition of “possession” is different than the definition of “carrying.” // James v. S., 16 So. 3d 322 (4th DCA 2009), 34 F.L.W. D1886 (9/16/2009)
Section 790.23(1) creates two crimes, possession of a firearm by a convicted felon, and carrying a concealed weapon by a convicted felon. Where defendant is charged with carrying a concealed weapon by a felon, the court errs in instructing the jury on “possession of a concealed weapon by a convicted felon,” a crime which does not exists. Instructions regarding the definition of possession are irrelevant, because the definition of “possession” is different than the definition of “carrying.” // James v. S., 16 So. 3d 322 (4th DCA 2009), 34 F.L.W. D1886 (9/16/2009)
Under §790.115(2), prohibiting possessing or discharging a weapon or firearm on school property, the term “weapon” is defined in §790.001(13). When the weapon is not one of those listed in the statute, the state must show that it is a “deadly weapon”, which is a weapon likely to produce death or great bodily harm. Where defendant possessed an unloaded BB gun at school, the evidence is insufficient to show that it is a “deadly weapon,” and the court errs in failing to grant a JOA. // J.M.P. v. S., 43 So. 3d 189 (4th DCA 2010), 35 F.L.W. D2072 (9/15/2010)
Under §790.115(2), prohibiting possessing or discharging a weapon or firearm on school property, the term “weapon” is defined in §790.001(13). When the weapon is not one of those listed in the statute, the state must show that it is a “deadly weapon”, which is a weapon likely to produce death or great bodily harm. Where defendant possessed an unloaded BB gun at school, the evidence is insufficient to show that it is a “deadly weapon,” and the court errs in failing to grant a JOA. // J.M.P. v. S., 43 So. 3d 189 (4th DCA 2010), 35 F.L.W. D2072 (9/15/2010)
Defendant may not be convicted of both possession of a firearm by a felon, and possession of ammunition by a felon for the same incident. // Boyd v. S., 17 So. 3d 812 (4th DCA 2009), 34 F.L.W. D1698 (8/19/2009)
Defendant may not be convicted of both possession of a firearm by a felon, and possession of ammunition by a felon for the same incident. // Boyd v. S., 17 So. 3d 812 (4th DCA 2009), 34 F.L.W. D1698 (8/19/2009)
A butter knife is not a “weapon” for concealed weapons purposes. // (See this case for discussion of the two categories of weapons.) // Coultas v. S., 955 So. 2d 64 (4th DCA 2007), 32 F.L.W. D886 (4/4/2007)
A butter knife is not a “weapon” for concealed weapons purposes. // (See this case for discussion of the two categories of weapons.) // Coultas v. S., 955 So. 2d 64 (4th DCA 2007), 32 F.L.W. D886 (4/4/2007)
Carrying a concealed weapon is not a lesser of carrying a concealed firearm, because a firearm is distinguished from a weapon in §790.001. // Crum v. S., ___ So. 3d ___, 36 F.L.W. D504 (4th DCA 3/9/2011)
Carrying a concealed weapon is not a lesser of carrying a concealed firearm, because a firearm is distinguished from a weapon in §790.001. // Crum v. S., ___ So. 3d ___, 36 F.L.W. D504 (4th DCA 3/9/2011)
The definition of “carrying” is narrower than “possession,” and carrying a concealed firearm is not a lesser of possession of firearm on school property. // S. v. D.C., 29 So. 3d 1167 (4th DCA 2010), 35 F.L.W. D505 (3/3/2010)
The definition of “carrying” is narrower than “possession,” and carrying a concealed firearm is not a lesser of possession of firearm on school property. // S. v. D.C., 29 So. 3d 1167 (4th DCA 2010), 35 F.L.W. D505 (3/3/2010)
Defendant cannot be found guilty of possessing a weapon on school property under §790.115(2) for possessing a common pocketknife. // R.H. v. S., ___ So. 3d ___, 36 F.L.W. D604 (4th DCA 3/23/2011)
Defendant cannot be found guilty of possessing a weapon on school property under §790.115(2) for possessing a common pocketknife. // R.H. v. S., ___ So. 3d ___, 36 F.L.W. D604 (4th DCA 3/23/2011)
The private conveyance exception to carrying a concealed firearm does not apply to a gun carried on the person of a person driving a motorcycle. // Doughty v. S., 979 So. 2d 1048 (4th DCA 2008), 33 F.L.W. D799 (3/19/2008)
The private conveyance exception to carrying a concealed firearm does not apply to a gun carried on the person of a person driving a motorcycle. // Doughty v. S., 979 So. 2d 1048 (4th DCA 2008), 33 F.L.W. D799 (3/19/2008)
The lack of a license is not an element the state needs to prove in a charge of carrying a concealed firearm under §790.01(2). A license to carry a concealed weapon is an affirmative defense for the defendant to prove. // Watt v. S., 31 So. 3d 238 (4th DCA 2010), 35 F.L.W. D622 (3/17/2010)
The lack of a license is not an element the state needs to prove in a charge of carrying a concealed firearm under §790.01(2). A license to carry a concealed weapon is an affirmative defense for the defendant to prove. // Watt v. S., 31 So. 3d 238 (4th DCA 2010), 35 F.L.W. D622 (3/17/2010)
A felon must be in actual possession of a firearm before he can receive a mandatory minimum sentence after being convicted of possession of a firearm by a felon. Where the jury finds him in joint possession, the finding is insufficient to get the mandatory sentence. // Banks v. S., 949 So. 2d 353 (4th DCA 2007), 32 F.L.W. D594 (2/28/2007)
A felon must be in actual possession of a firearm before he can receive a mandatory minimum sentence after being convicted of possession of a firearm by a felon. Where the jury finds him in joint possession, the finding is insufficient to get the mandatory sentence. // Banks v. S., 949 So. 2d 353 (4th DCA 2007), 32 F.L.W. D594 (2/28/2007)
A BB gun can be a deadly weapon for possession of a weapon on school grounds purposes under §790.115(2). However, when the gun is unloaded and no other evidence is presented to show that it had the capacity to inflict death or great bodily harm, the evidence is insufficient to sustain a conviction. // (See this case for discussion of BB guns as deadly weapons.) // K.C. v. S., 49 So. 3d 841 (4th DCA 2010), 35 F.L.W. D2694 (12/8/2010)
A BB gun can be a deadly weapon for possession of a weapon on school grounds purposes under §790.115(2). However, when the gun is unloaded and no other evidence is presented to show that it had the capacity to inflict death or great bodily harm, the evidence is insufficient to sustain a conviction. // (See this case for discussion of BB guns as deadly weapons.) // K.C. v. S., 49 So. 3d 841 (4th DCA 2010), 35 F.L.W. D2694 (12/8/2010)
Carrying a concealed firearm is not a crime in Florida if one has a permit. Thus, when an LEO received information that a person is carrying a concealed firearm, and has no other information that defendant has committed a crime or is about to commit a crime, the officer cannot perform a Terry stop. // (See this case for discussion and rejection of a “firearm exception” to the Terry requirements for making a reasonable suspicion stop.) // •Regalado v. S., 25 So. 3d 600 (4th DCA 2009), 34 F.L.W. D2571 (12/16/2009)
Carrying a concealed firearm is not a crime in Florida if one has a permit. Thus, when an LEO received information that a person is carrying a concealed firearm, and has no other information that defendant has committed a crime or is about to commit a crime, the officer cannot perform a Terry stop. // (See this case for discussion and rejection of a “firearm exception” to the Terry requirements for making a reasonable suspicion stop.) // •Regalado v. S., 25 So. 3d 600 (4th DCA 2009), 34 F.L.W. D2571 (12/16/2009)
Defendant was stopped for a traffic offense, and as the officer walked up to the car, defendant placed his hands outside the window and told the officer he had a gun in the car. The unloaded gun was on the front seat under a bouquet of flowers, and he was charged with carrying a concealed firearm. Defendant filed a c(4) motion alleging that the gun was not concealed and the court dismissed. Held: A gun need not be totally hidden to be concealed, and whether the gun is concealed is a question of fact for the jury. The court errs in dismissing. // S. v. Hinkle, 970 So. 2d 433 (4th DCA 2007), 32 F.L.W. D2825 (11/28/2007)
Defendant was stopped for a traffic offense, and as the officer walked up to the car, defendant placed his hands outside the window and told the officer he had a gun in the car. The unloaded gun was on the front seat under a bouquet of flowers, and he was charged with carrying a concealed firearm. Defendant filed a c(4) motion alleging that the gun was not concealed and the court dismissed. Held: A gun need not be totally hidden to be concealed, and whether the gun is concealed is a question of fact for the jury. The court errs in dismissing. // S. v. Hinkle, 970 So. 2d 433 (4th DCA 2007), 32 F.L.W. D2825 (11/28/2007)
A BB gun is not a firearm but can be a “weapon” as defined in §790.001(13). Whether a BB gun is a deadly weapon is an issue of fact. Where the gun is admitted into evidence, the arresting officer testifies that it contained a gas cartridge and a pellet, and he testified that the gun could put someone’s eye out, the evidence is sufficient to find the child guilty of possessing a weapon on school property under §790.115(2). // J.T. v. S., 47 So. 3d 934 (4th DCA 2010), 35 F.L.W. D2559 (11/17/2010)
A BB gun is not a firearm but can be a “weapon” as defined in §790.001(13). Whether a BB gun is a deadly weapon is an issue of fact. Where the gun is admitted into evidence, the arresting officer testifies that it contained a gas cartridge and a pellet, and he testified that the gun could put someone’s eye out, the evidence is sufficient to find the child guilty of possessing a weapon on school property under §790.115(2). // J.T. v. S., 47 So. 3d 934 (4th DCA 2010), 35 F.L.W. D2559 (11/17/2010)
Defendant, who was an inactive auxiliary officer for the Fish and Wildlife Commission, is exempt from the concealed carry provisions as set forth in § 790.052(1) and §943.10(8). // Stumpf v. S., 998 So. 2d 1186 (4th DCA 2009), 34 F.L.W. D87 (1/5/2009)
Defendant, who was an inactive auxiliary officer for the Fish and Wildlife Commission, is exempt from the concealed carry provisions as set forth in § 790.052(1) and §943.10(8). // Stumpf v. S., 998 So. 2d 1186 (4th DCA 2009), 34 F.L.W. D87 (1/5/2009)
Guns found inside a zippered duffle bag behind the driver’s seat in defendant’s car are “securely encased” under §790.25(5), and defendant’s conviction for possessing a concealed firearm is reversed. // Trock v. S., 990 So. 2d 1195 (5th DCA 2008), 33 F.L.W. D2228 (9/19/2008)
Guns found inside a zippered duffle bag behind the driver’s seat in defendant’s car are “securely encased” under §790.25(5), and defendant’s conviction for possessing a concealed firearm is reversed. // Trock v. S., 990 So. 2d 1195 (5th DCA 2008), 33 F.L.W. D2228 (9/19/2008)
LEO at a football game called out to defendant. Defendant knelt down on a platform near the officer, and the officer found a gun. Defendant as charged with possession of a concealed firearm. Held: There was no evidence that the weapon was concealed before the officer found it, and the court errs in refusing to grant a JOA. // Circumstantial proof of concealment will not sustain a conviction when the evidence is not inconsistent with a reasonable hypotheses of innocence. // Adams v. S., 987 So. 2d 1255 (5th DCA 2008), 33 F.L.W. D1986 (8/15/2008)
LEO at a football game called out to defendant. Defendant knelt down on a platform near the officer, and the officer found a gun. Defendant as charged with possession of a concealed firearm. Held: There was no evidence that the weapon was concealed before the officer found it, and the court errs in refusing to grant a JOA. // Circumstantial proof of concealment will not sustain a conviction when the evidence is not inconsistent with a reasonable hypotheses of innocence. // Adams v. S., 987 So. 2d 1255 (5th DCA 2008), 33 F.L.W. D1986 (8/15/2008)
Defendant cannot be convicted of both possession of a firearm by a felon and possession of ammunition for bullets found in the gun. // Francis v. S., 41 So. 3d 975 (5th DCA 2010), 35 F.L.W. D1704 (7/30/2010)
Defendant cannot be convicted of both possession of a firearm by a felon and possession of ammunition for bullets found in the gun. // Francis v. S., 41 So. 3d 975 (5th DCA 2010), 35 F.L.W. D1704 (7/30/2010)
Defendant may not be convicted of both shooting from a vehicle under §790.15(2) and shooting into a vehicle under §790.19 for the same incident (but see concurring opinion). // Luciano v. S., 983 So. 2d 759 (5th DCA 2008), 33 F.L.W. D1555 (6/13/2008)
Defendant may not be convicted of both shooting from a vehicle under §790.15(2) and shooting into a vehicle under §790.19 for the same incident (but see concurring opinion). // Luciano v. S., 983 So. 2d 759 (5th DCA 2008), 33 F.L.W. D1555 (6/13/2008)
A folding knife with a blade 3 inches long with a push-button release that swings the blade into an open position is not a “common pocketknife” and the defendant is properly convicted of furnishing a weapon to a minor. // K.H. v. S., 29 So. 3d 426 (5th DCA 2010), 35 F.L.W. D523 (3/5/2010)
A folding knife with a blade 3 inches long with a push-button release that swings the blade into an open position is not a “common pocketknife” and the defendant is properly convicted of furnishing a weapon to a minor. // K.H. v. S., 29 So. 3d 426 (5th DCA 2010), 35 F.L.W. D523 (3/5/2010)
The court errs in failing to give improper exhibition of a firearm as a category 2 lesser of aggravated assault with a firearm when the pleadings include all elements of the lesser and the defense requests it. // Michaud v. S., 47 So. 3d 374 (5th DCA 2010), 35 F.L.W. D2508 (11/12/2010)
The court errs in failing to give improper exhibition of a firearm as a category 2 lesser of aggravated assault with a firearm when the pleadings include all elements of the lesser and the defense requests it. // Michaud v. S., 47 So. 3d 374 (5th DCA 2010), 35 F.L.W. D2508 (11/12/2010)
Section 790.25(3)(n), which states that it is lawful to possess a weapon at home or in the possessor’s place of business, applies to concealed weapons. An employee playing cards after hours at the store where he works it exempt from the concealed weapons provisions, and the court errs in failing to dismiss the charge. // •Brook v. S., 999 So. 2d 1093 (5th DCA 2009), 34 F.L.W. D121 (1/9/2009)
Section 790.25(3)(n), which states that it is lawful to possess a weapon at home or in the possessor’s place of business, applies to concealed weapons. An employee playing cards after hours at the store where he works it exempt from the concealed weapons provisions, and the court errs in failing to dismiss the charge. // •Brook v. S., 999 So. 2d 1093 (5th DCA 2009), 34 F.L.W. D121 (1/9/2009)
Child abuse can be both a separate charge and serve as the predicate felony for felony murder where there are repeated act of abuse that result in death. However, where there is a single act that resulted in the child’s death (here, a single stab wound), there is no aggravated child abuse that can serve as the predicate felony for felony murder. // (But see dissents, arguing that because the underlying felony of aggravated child abuse cannot serve as a predicate for felony murder when only a single act caused the death, a general verdict of guilty to first degree murder when the jury was instructed on both felony murder and premeditated murder should not stand.) // •Brooks v. S., 918 So. 2d 181 (Fla. 2005), 30 F.L.W. S481 (6/23/2005)
Child abuse can be both a separate charge and serve as the predicate felony for felony murder where there are repeated act of abuse that result in death. However, where there is a single act that resulted in the child’s death (here, a single stab wound), there is no aggravated child abuse that can serve as the predicate felony for felony murder. // (But see dissents, arguing that because the underlying felony of aggravated child abuse cannot serve as a predicate for felony murder when only a single act caused the death, a general verdict of guilty to first degree murder when the jury was instructed on both felony murder and premeditated murder should not stand.) // •Brooks v. S., 918 So. 2d 181 (Fla. 2005), 30 F.L.W. S481 (6/23/2005)
It is not fundamental error for the court to omit from the instructions the element from first degree murder by drug distribution under §782.04(1)(a)(3) that the defendant is over 18, where there is no dispute that he is over 18 and defendant does not raise the issue. // Pena v. S., 901 So. 2d 781 (Fla. 2005), 30 F.L.W. S122 (2/24/2005)
It is not fundamental error for the court to omit from the instructions the element from first degree murder by drug distribution under §782.04(1)(a)(3) that the defendant is over 18, where there is no dispute that he is over 18 and defendant does not raise the issue. // Pena v. S., 901 So. 2d 781 (Fla. 2005), 30 F.L.W. S122 (2/24/2005)
Defendant was indicted for premeditated first-degree murder in Count I, and kidnapping in Count II. The Count II kidnapping alleged only kidnapping with intent to commit homicide. In Count I, the court instructed on premeditated murder and felony murder with both kidnapping with intent to inflict bodily harm, and kidnapping with intent to facilitate a felony as the underlying felony. The defense did not object. Held: Instructing the jury on kidnapping based on intent to inflict bodily harm as a predicate for Count I felony murder, despite not being charged in Count II, is not fundamental error. // (See this case for extensive discussion of instructions on the underlying felony in a felony murder instruction.) // •Crain v.S., 894 So. 2d 59 (Fla. 2004), 29 F.L.W. S635 (10/28/2004)
Defendant was indicted for premeditated first-degree murder in Count I, and kidnapping in Count II. The Count II kidnapping alleged only kidnapping with intent to commit homicide. In Count I, the court instructed on premeditated murder and felony murder with both kidnapping with intent to inflict bodily harm, and kidnapping with intent to facilitate a felony as the underlying felony. The defense did not object. Held: Instructing the jury on kidnapping based on intent to inflict bodily harm as a predicate for Count I felony murder, despite not being charged in Count II, is not fundamental error. // (See this case for extensive discussion of instructions on the underlying felony in a felony murder instruction.) // •Crain v.S., 894 So. 2d 59 (Fla. 2004), 29 F.L.W. S635 (10/28/2004)
Where defendant shoots four victims with a pump-action shotgun, the evidence is sufficient to show premeditation. // Hutchinson v. S., 882 So. 2d 943 (Fla. 2004), 29 F.L.W. S337 (7/1/2004)
Where defendant shoots four victims with a pump-action shotgun, the evidence is sufficient to show premeditation. // Hutchinson v. S., 882 So. 2d 943 (Fla. 2004), 29 F.L.W. S337 (7/1/2004)
(See Pearce v. S., 880 So. 2d 561 (Fla. 2004), 29 F.L.W. S330 (7/1/2004) for discussion of the sufficiency of premeditation evidence.)
(See Pearce v. S., 880 So. 2d 561 (Fla. 2004), 29 F.L.W. S330 (7/1/2004) for discussion of the sufficiency of premeditation evidence.)
Defendant was charged with premeditated and felony murder with robbery and burglary as the predicate felonies. At trial, the evidence showed that the defendant and another person entered the victim’s home with consent, and there was no evidence of surreptitious remaining in the house. The jury returned a general verdict of guilty. Held: A general verdict is invalid when it rests on multiple bases, one of which is legal invalid. Because the jury received an improper pre-Delgado instruction regarding “remaining in” the residence, the burglary is improper. Because the jury could have based the murder conviction on a felony murder theory, and the felony murder theory could have rested on an improper understanding of burglary, the conviction is reversed. // Fitzpatrick v. S., 859 So. 2d 486 (Fla. 2003), 28 F.L.W. S679 (9/11/2003)
Defendant was charged with premeditated and felony murder with robbery and burglary as the predicate felonies. At trial, the evidence showed that the defendant and another person entered the victim’s home with consent, and there was no evidence of surreptitious remaining in the house. The jury returned a general verdict of guilty. Held: A general verdict is invalid when it rests on multiple bases, one of which is legal invalid. Because the jury received an improper pre-Delgado instruction regarding “remaining in” the residence, the burglary is improper. Because the jury could have based the murder conviction on a felony murder theory, and the felony murder theory could have rested on an improper understanding of burglary, the conviction is reversed. // Fitzpatrick v. S., 859 So. 2d 486 (Fla. 2003), 28 F.L.W. S679 (9/11/2003)
(See •Conde v. S., ___ So. 2d ___, 28 F.L.W. S669 (Fla. 9/4/2003) for discussion of the admissibility of other murders in the trial of an accused serial murderer.)
(See •Conde v. S., ___ So. 2d ___, 28 F.L.W. S669 (Fla. 9/4/2003) for discussion of the admissibility of other murders in the trial of an accused serial murderer.)
Where the victim was tied to a tree and strangled, and Williams rule evidence shows that defendant committed a similar crime with another victim who did not die, the circumstantial evidence is sufficient to show premeditation. // Conahan v. S., 844 So. 2d 629 (Fla. 2003), 28 F.L.W. S366 (4/24/2003)
Where the victim was tied to a tree and strangled, and Williams rule evidence shows that defendant committed a similar crime with another victim who did not die, the circumstantial evidence is sufficient to show premeditation. // Conahan v. S., 844 So. 2d 629 (Fla. 2003), 28 F.L.W. S366 (4/24/2003)
When the jury is instructed on both felony and premeditated murder, and the court errs in denying a JOA on the felony murder theory but there is sufficient evidence to sustain a premeditated murder theory, the conviction will not be overturned. // The state can proceed on a felony murder theory based on an indictment that charges only premeditated murder. Where there is no discussion of felony murder, and the state raises it only during the charge conference, no error is shown. // Anderson v. S., 841 So. 2d 390 (Fla. 2003), 28 F.L.W. S51 (1/16/2003)
When the jury is instructed on both felony and premeditated murder, and the court errs in denying a JOA on the felony murder theory but there is sufficient evidence to sustain a premeditated murder theory, the conviction will not be overturned. // The state can proceed on a felony murder theory based on an indictment that charges only premeditated murder. Where there is no discussion of felony murder, and the state raises it only during the charge conference, no error is shown. // Anderson v. S., 841 So. 2d 390 (Fla. 2003), 28 F.L.W. S51 (1/16/2003)
The defendant’s predetermined choice of a weapon can be a key factor in determining whether he acted with premeditation. Where the defendant selected a gun and drove to the victim’s house with it, such evidence is sufficient to withstand a motion for JOA regarding premeditation. // (See this case for extensive discussion of the sufficiency of evidence relating to premeditation.) // Floyd v. S., 850 So. 2d 383 (Fla. 2002), 27 F.L.W. S697 (8/22/2002)
The defendant’s predetermined choice of a weapon can be a key factor in determining whether he acted with premeditation. Where the defendant selected a gun and drove to the victim’s house with it, such evidence is sufficient to withstand a motion for JOA regarding premeditation. // (See this case for extensive discussion of the sufficiency of evidence relating to premeditation.) // Floyd v. S., 850 So. 2d 383 (Fla. 2002), 27 F.L.W. S697 (8/22/2002)
Where the victim suffers two knife wounds to the neck, one a slash and the other a stab that penetrated most of the way through the neck, the evidence sufficiently shows an intent to kill from which the jury can infer premeditation, and the court does not err in refusing a JOA. // Morrison v. S., 818 So. 2d 432 (Fla. 2002), 27 F.L.W. S253 (3/21/2002)
Where the victim suffers two knife wounds to the neck, one a slash and the other a stab that penetrated most of the way through the neck, the evidence sufficiently shows an intent to kill from which the jury can infer premeditation, and the court does not err in refusing a JOA. // Morrison v. S., 818 So. 2d 432 (Fla. 2002), 27 F.L.W. S253 (3/21/2002)
Where the evidence shows that the defendant sexually battered the victim, and that she was then killed by a gunshot to the head with an attempt to muffle the gun with a pillow, the evidence is sufficient to sustain a finding of premeditation. // Darling v. S., 808 So. 2d 145 (Fla. 2002), 27 F.L.W. S41 (1/3/2002)
Where the evidence shows that the defendant sexually battered the victim, and that she was then killed by a gunshot to the head with an attempt to muffle the gun with a pillow, the evidence is sufficient to sustain a finding of premeditation. // Darling v. S., 808 So. 2d 145 (Fla. 2002), 27 F.L.W. S41 (1/3/2002)
Where one victim is stabbed 23 times and another is stabbed 16 times, the evidence is sufficient to support premeditation (but see dissent). // Francis v. S., 808 So. 2d 110 (Fla. 2001), 27 F.L.W. S2 (12/20/2001)
Where one victim is stabbed 23 times and another is stabbed 16 times, the evidence is sufficient to support premeditation (but see dissent). // Francis v. S., 808 So. 2d 110 (Fla. 2001), 27 F.L.W. S2 (12/20/2001)
Aggravated assault is not a lesser of attempted 1st degree murder when the information does not charge that the victims were placed in fear. // McClenithan v. S., 855 So. 2d 675 (2d DCA 2003), 28 F.L.W. D2234 (9/26/2003)
Aggravated assault is not a lesser of attempted 1st degree murder when the information does not charge that the victims were placed in fear. // McClenithan v. S., 855 So. 2d 675 (2d DCA 2003), 28 F.L.W. D2234 (9/26/2003)
Defendant testified that he accidentally shot the victim, who was his friend. There was no evidence of a fight and no evidence of a motive to kill the victim. There was some circumstantial evidence to show the killing was intentional, but the evidence was not inconsistent with defendant’s testimony. Held: Court errs in refusing JOA on first-degree murder. The circumstantial evidence is not inconsistent with defendant’s reasonable hypothesis of innocence. The first-degree murder conviction is reduced to manslaughter. // Tillman v. S., 842 So. 2d 922 (2d DCA 2003), 28 F.L.W. D706 (3/12/2003)
Defendant testified that he accidentally shot the victim, who was his friend. There was no evidence of a fight and no evidence of a motive to kill the victim. There was some circumstantial evidence to show the killing was intentional, but the evidence was not inconsistent with defendant’s testimony. Held: Court errs in refusing JOA on first-degree murder. The circumstantial evidence is not inconsistent with defendant’s reasonable hypothesis of innocence. The first-degree murder conviction is reduced to manslaughter. // Tillman v. S., 842 So. 2d 922 (2d DCA 2003), 28 F.L.W. D706 (3/12/2003)
The court errs in an attempted first degree murder trial in failing to read the excusable and justifiable homicide instructions. The failure to read the instruction is permitted only when counsel affirmatively requests that it not be read. // Pignataro v. S., 834 So. 2d 965 (2d DCA 2003), 28 F.L.W. D308 (1/24/2003)
The court errs in an attempted first degree murder trial in failing to read the excusable and justifiable homicide instructions. The failure to read the instruction is permitted only when counsel affirmatively requests that it not be read. // Pignataro v. S., 834 So. 2d 965 (2d DCA 2003), 28 F.L.W. D308 (1/24/2003)
First degree murder by drug distribution under § 782.04(3) requires that the defendant be over 18 years of age. Where the information does not allege that the defendant is over that age, and evidence is presented to the jury that would show he is over that age, there is no fundamental error. The failure to allege the defendant’s age must be raised by motion prior to trial. // Failure to instruct on the defendant’s age is not fundamental error where it is undisputed that the defendant was over 18. // No error occurs when the court fails to instruct on excusable and justifiable homicide in a case of first degree murder by drug distribution (question certified). // •Pena v. S., 829 So. 2d 289 (2d DCA 2002), 27 F.L.W. D1542 (7/3/2002)
First degree murder by drug distribution under § 782.04(3) requires that the defendant be over 18 years of age. Where the information does not allege that the defendant is over that age, and evidence is presented to the jury that would show he is over that age, there is no fundamental error. The failure to allege the defendant’s age must be raised by motion prior to trial. // Failure to instruct on the defendant’s age is not fundamental error where it is undisputed that the defendant was over 18. // No error occurs when the court fails to instruct on excusable and justifiable homicide in a case of first degree murder by drug distribution (question certified). // •Pena v. S., 829 So. 2d 289 (2d DCA 2002), 27 F.L.W. D1542 (7/3/2002)
The provision requiring life without parole for first-degree murder applies to crimes committed after May 25, 1994. // Negron v. S., 932 So. 2d 1250 (3d DCA 2006), 31 F.L.W. D1882 (7/12/2006)
The provision requiring life without parole for first-degree murder applies to crimes committed after May 25, 1994. // Negron v. S., 932 So. 2d 1250 (3d DCA 2006), 31 F.L.W. D1882 (7/12/2006)
Defendant may not be convicted of both attempted felony murder and attempted first degree murder for a single act involving a single victim. // McGlocklin v. S., 907 So. 2d 1288 (3d DCA 2005), 30 F.L.W. D1919 (8/10/2005)
Defendant may not be convicted of both attempted felony murder and attempted first degree murder for a single act involving a single victim. // McGlocklin v. S., 907 So. 2d 1288 (3d DCA 2005), 30 F.L.W. D1919 (8/10/2005)
Defendant admitted to helping plan the robbery but denied participating in it. During the robbery, the owner of the store verbally resisting and was killed. Held: Defendant is not entitled to an independent act instruction. A killing in the face of resistance by a victim of a robbery is within the criminal design of the robbery, and defendant is properly convicted of murder. // Jones v. S., 804 So. 2d 551 (3d DCA 2002), 27 F.L.W. D183 (1/16/2002)
Defendant admitted to helping plan the robbery but denied participating in it. During the robbery, the owner of the store verbally resisting and was killed. Held: Defendant is not entitled to an independent act instruction. A killing in the face of resistance by a victim of a robbery is within the criminal design of the robbery, and defendant is properly convicted of murder. // Jones v. S., 804 So. 2d 551 (3d DCA 2002), 27 F.L.W. D183 (1/16/2002)
When defendant is involved in a robbery from the beginning, he is responsible for the death of the victim regardless of whether he intended that a codefendant shoot the victim. He is not entitled to an independent act instruction when he is fully involved in the robbery that culminated in the shooting of the victim. To get an independent act instruction, the killing must be independent of the robbery. // Washington v. S., 873 So. 2d 1268 (4th DCA 2004), 29 F.L.W. D1316 (6/2/2004)
When defendant is involved in a robbery from the beginning, he is responsible for the death of the victim regardless of whether he intended that a codefendant shoot the victim. He is not entitled to an independent act instruction when he is fully involved in the robbery that culminated in the shooting of the victim. To get an independent act instruction, the killing must be independent of the robbery. // Washington v. S., 873 So. 2d 1268 (4th DCA 2004), 29 F.L.W. D1316 (6/2/2004)
Defendant may not be convicted of attempt felony murder when the only underlying felony is attempted first-degree murder. Conviction of both attempted felony murder and attempted first-degree murder violates double jeopardy. // Tucker v. S., 857 So. 2d 978 (4th DCA 2003), 28 F.L.W. D2484 (10/29/2003)
Defendant may not be convicted of attempt felony murder when the only underlying felony is attempted first-degree murder. Conviction of both attempted felony murder and attempted first-degree murder violates double jeopardy. // Tucker v. S., 857 So. 2d 978 (4th DCA 2003), 28 F.L.W. D2484 (10/29/2003)
In a first-degree felony murder case, the defendant is entitled to an instruction stating that there is no robbery if the victim’s property was taken after the murder. The failure to give that requested instruction gets reversal in a case where the evidence would support either premeditate or felony murder. // •Perkins v. S., 814 So. 2d 1177 (4th DCA 2002), 27 F.L.W. D882 (4/17/2002)
In a first-degree felony murder case, the defendant is entitled to an instruction stating that there is no robbery if the victim’s property was taken after the murder. The failure to give that requested instruction gets reversal in a case where the evidence would support either premeditate or felony murder. // •Perkins v. S., 814 So. 2d 1177 (4th DCA 2002), 27 F.L.W. D882 (4/17/2002)
Where the defendant chases the victim with his car and tries to run her over, he chases her into the woods, and then stabs her 51 times, the evidence is sufficient to go to the jury on the issue of premeditation. // Arnold v. S., 892 So. 2d 1172 (5th DCA 2005), 30 F.L.W. D345 (2/4/2005)
Where the defendant chases the victim with his car and tries to run her over, he chases her into the woods, and then stabs her 51 times, the evidence is sufficient to go to the jury on the issue of premeditation. // Arnold v. S., 892 So. 2d 1172 (5th DCA 2005), 30 F.L.W. D345 (2/4/2005)
(See St. Nattis v. S., 827 So. 2d 320 (5th DCA 2002), 27 F.L.W. D2051 (9/13/2002) (Harris, J., concurring) for the request that the Florida Supreme Court review Florida’s rule regarding conviction for first-degree murder under either a premeditation theory or felony murder theory, without unanimity on either theory.)
(See St. Nattis v. S., 827 So. 2d 320 (5th DCA 2002), 27 F.L.W. D2051 (9/13/2002) (Harris, J., concurring) for the request that the Florida Supreme Court review Florida’s rule regarding conviction for first-degree murder under either a premeditation theory or felony murder theory, without unanimity on either theory.)
Where defendant was jealous of the victim’s new boyfriend, there were prior troubles between the defendant and the boyfriend, the defendant was with the victim making threats for several minutes before the shooting, and the victim was shot four times, the circumstantial evidence of premeditation is sufficient to go to the jury. // Skanes v. S., 821 So. 2d 1102 (5th DCA 2002), 27 F.L.W. D1352 (6/7/2002)
Where defendant was jealous of the victim’s new boyfriend, there were prior troubles between the defendant and the boyfriend, the defendant was with the victim making threats for several minutes before the shooting, and the victim was shot four times, the circumstantial evidence of premeditation is sufficient to go to the jury. // Skanes v. S., 821 So. 2d 1102 (5th DCA 2002), 27 F.L.W. D1352 (6/7/2002)
A indictment that cites the first-degree murder statute and alleges that defendant feloniously and intentionally killed the victim, but does not specify whether the killing was done from a premeditated design or was done in the course of another felony, is sufficient to sustain a first-degree murder conviction when the defense does not raise the objection before trial. // •Deparvine v. S., 995 So. 2d 351 (Fla. 2008), 33 F.L.W. S784 (9/29/2008)
A indictment that cites the first-degree murder statute and alleges that defendant feloniously and intentionally killed the victim, but does not specify whether the killing was done from a premeditated design or was done in the course of another felony, is sufficient to sustain a first-degree murder conviction when the defense does not raise the objection before trial. // •Deparvine v. S., 995 So. 2d 351 (Fla. 2008), 33 F.L.W. S784 (9/29/2008)
Evidence that the victim died by strangulation, and that the defendant and victim had sex around the time she dies, is insufficient to sustain a finding of premeditation. // (See this case for extensive discussion of premeditation.) // Bigham v. S., 995 So. 2d 207 (Fla. 2008), 33 F.L.W. S527 (7/10/2008)
Evidence that the victim died by strangulation, and that the defendant and victim had sex around the time she dies, is insufficient to sustain a finding of premeditation. // (See this case for extensive discussion of premeditation.) // Bigham v. S., 995 So. 2d 207 (Fla. 2008), 33 F.L.W. S527 (7/10/2008)
The court properly denies a JOA on first degree felony murder when the victim of the sexual battery dies as a result of the criminal episode, even though the death occurs weeks after the crime. // The jury need not be instructed that their verdict must be unanimous regarding the theory of the case. Thus, when the jury is instructed on both felony and premeditated murder, there is no error in failing to instruct that they must be unanimous in choosing the theory. // (See this case for discussion of premeditation in a case where the victim dies weeks after a knife attack.) // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)
The court properly denies a JOA on first degree felony murder when the victim of the sexual battery dies as a result of the criminal episode, even though the death occurs weeks after the crime. // The jury need not be instructed that their verdict must be unanimous regarding the theory of the case. Thus, when the jury is instructed on both felony and premeditated murder, there is no error in failing to instruct that they must be unanimous in choosing the theory. // (See this case for discussion of premeditation in a case where the victim dies weeks after a knife attack.) // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)
Defendant’s convictions for both felony murder and the lesser included misdemeanor of the separately charged underlying felony are truly inconsistent verdicts. // Where the jury finds defendant guilty of felony murder, but finds the defendant guilty of petit theft as a lesser of armed robbery, the felony murder verdict is legally inconsistent and must be vacated. // Truly inconsistent verdicts occur when the charged crimes legally interlock. Crimes are interlocking when an acquittal on one count negates a necessary element for the conviction on another count. // Brown v. S., 959 So. 2d 218 (Fla. 2007), 32 F.L.W. S322 (6/14/2007)
Defendant’s convictions for both felony murder and the lesser included misdemeanor of the separately charged underlying felony are truly inconsistent verdicts. // Where the jury finds defendant guilty of felony murder, but finds the defendant guilty of petit theft as a lesser of armed robbery, the felony murder verdict is legally inconsistent and must be vacated. // Truly inconsistent verdicts occur when the charged crimes legally interlock. Crimes are interlocking when an acquittal on one count negates a necessary element for the conviction on another count. // Brown v. S., 959 So. 2d 218 (Fla. 2007), 32 F.L.W. S322 (6/14/2007)
(See Walker v. S., 957 So. 2d 560 (Fla. 2007), 32 F.L.W. S201 (5/3/2007) for discussion of the use of circumstantial evidence to prove premeditation in a case where defendant admits to shooting the victim but claims he did not intend to kill.)
(See Walker v. S., 957 So. 2d 560 (Fla. 2007), 32 F.L.W. S201 (5/3/2007) for discussion of the use of circumstantial evidence to prove premeditation in a case where defendant admits to shooting the victim but claims he did not intend to kill.)
Where defendant took the victim to get drugs, he got her to a secluded location, and he manually strangled her during or after sex, the court properly denies a JOA on premeditation grounds. The evidence is sufficient to go to the jury on the issue whether the killing was premeditated. // McWatters v. S., 36 So. 3d 613 (Fla. 2010), 35 F.L.W. S169 (3/18/2010)
Where defendant took the victim to get drugs, he got her to a secluded location, and he manually strangled her during or after sex, the court properly denies a JOA on premeditation grounds. The evidence is sufficient to go to the jury on the issue whether the killing was premeditated. // McWatters v. S., 36 So. 3d 613 (Fla. 2010), 35 F.L.W. S169 (3/18/2010)
When defendant is charged with first-degree murder felony murder with trafficking in cocaine as the underlying felony, and the court on appeal determines that the evidence was insufficient to show that the weight of the cocaine was over 28 grams, the first-degree murder conviction is reversed and remanded and the trial court is required to direct a verdict for third-degree murder. // 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 defendant is charged with first-degree murder felony murder with trafficking in cocaine as the underlying felony, and the court on appeal determines that the evidence was insufficient to show that the weight of the cocaine was over 28 grams, the first-degree murder conviction is reversed and remanded and the trial court is required to direct a verdict for third-degree murder. // 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 defendant has a premeditated intent to kill one person, and he ends up killing a second person, the premeditation can be transferred to convert the killing of the second victim into first degree murder. // Lynch v. S., 2 So. 3d 47 (Fla. 2008), 34 F.L.W. S179 (11/6/2008)
When defendant has a premeditated intent to kill one person, and he ends up killing a second person, the premeditation can be transferred to convert the killing of the second victim into first degree murder. // Lynch v. S., 2 So. 3d 47 (Fla. 2008), 34 F.L.W. S179 (11/6/2008)
Evidence that defendant had talked about killing the victim several months before the killing took place, and on the day of the killing defendant bought duct tape, a gas can, and gasoline which he used in the killing, is sufficient to allow the court to deny a JOA on premeditation grounds. // Abdool v. S., 53 So. 3d 208 (Fla. 2010), 35 F.L.W. S571 (10/7/2010)
Evidence that defendant had talked about killing the victim several months before the killing took place, and on the day of the killing defendant bought duct tape, a gas can, and gasoline which he used in the killing, is sufficient to allow the court to deny a JOA on premeditation grounds. // Abdool v. S., 53 So. 3d 208 (Fla. 2010), 35 F.L.W. S571 (10/7/2010)
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. // Circumstantial evidence of premeditation is sufficient to sustain a finding of guilt for first-degree murder when the victim was shot in the back at a downward angle, he was shot close to the time defendant was seen digging a hole in the victim’s yard, in which his body was found; a large amount of money was missing; and defendant made several large purchases with cash soon after the crime. // 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. // Circumstantial evidence of premeditation is sufficient to sustain a finding of guilt for first-degree murder when the victim was shot in the back at a downward angle, he was shot close to the time defendant was seen digging a hole in the victim’s yard, in which his body was found; a large amount of money was missing; and defendant made several large purchases with cash soon after the crime. // Twilegar v. S., 42 So. 3d 177 (Fla. 2010), 35 F.L.W. S13 (1/7/2010)
When a single act of child abuse (here, a single blow to the child) causes the child’s death, the act of child abuse is merged with the homicide. Because it merges with the homicide, it cannot serve as the predicate felony for felony murder. Thus, when defendant commits a single act of child abuse resulting in the death of a child, unless the state can prove premeditated murder the defendant cannot be convicted of first-degree murder (question certified). // (But see dissent for extensive discussion of the rule of Brooks v. S., 918 so. 2d 181 (Fla. 2005) and its application.) // •Sturdivant v. S., ___ So. 3d ___, 35 F.L.W. D1993 (1st DCA 9/7/2010) // see Brooks v. S., 918 So. 2d 181 (Fla. 2005); Lewis v. S., 34 So. 2d 183 (1st DCA 2010)
When a single act of child abuse (here, a single blow to the child) causes the child’s death, the act of child abuse is merged with the homicide. Because it merges with the homicide, it cannot serve as the predicate felony for felony murder. Thus, when defendant commits a single act of child abuse resulting in the death of a child, unless the state can prove premeditated murder the defendant cannot be convicted of first-degree murder (question certified). // (But see dissent for extensive discussion of the rule of Brooks v. S., 918 so. 2d 181 (Fla. 2005) and its application.) // •Sturdivant v. S., ___ So. 3d ___, 35 F.L.W. D1993 (1st DCA 9/7/2010) // see Brooks v. S., 918 So. 2d 181 (Fla. 2005); Lewis v. S., 34 So. 2d 183 (1st DCA 2010)
When defendant is charged with attempted first-degree murder by shooting at and injuring the victim, the court errs in refusing to instruct on aggravated battery and battery as lessers. // Anderson v. S., ___ So. 3d ___, 36 F.L.W. D692 (1st DCA 3/31/2011)
When defendant is charged with attempted first-degree murder by shooting at and injuring the victim, the court errs in refusing to instruct on aggravated battery and battery as lessers. // Anderson v. S., ___ So. 3d ___, 36 F.L.W. D692 (1st DCA 3/31/2011)
A sentence of life in prison without the possibility of parole imposed on a person who committed the crime while a juvenile does not violate the federal or state prohibitions against cruel and unusual punishment. // Gonzalez v. S., 50 So. 3d 633 (1st DCA 2010), 35 F.L.W. D2472 (11/5/2010)
A sentence of life in prison without the possibility of parole imposed on a person who committed the crime while a juvenile does not violate the federal or state prohibitions against cruel and unusual punishment. // Gonzalez v. S., 50 So. 3d 633 (1st DCA 2010), 35 F.L.W. D2472 (11/5/2010)
The merger doctrine does not prevent a conviction for both first-degree murder and aggravated child abuse when a single act of abuse resulted in the death of the victim // Lim v. S., 50 So. 3d 34 (1st DCA 2010), 35 F.L.W. D2526 (11/17/2010) // contra, Sturdivant v. S., 35 F.L.W. D1993 (1st DCA 9/7/10)
The merger doctrine does not prevent a conviction for both first-degree murder and aggravated child abuse when a single act of abuse resulted in the death of the victim // Lim v. S., 50 So. 3d 34 (1st DCA 2010), 35 F.L.W. D2526 (11/17/2010) // contra, Sturdivant v. S., 35 F.L.W. D1993 (1st DCA 9/7/10)
When an attempted first-degree murder conviction could have been based on attempted felony murder, which crime was held nonexistent in S. v. Gray, 654 So. 2d 552 (Fla. 1995), defendant is entitled to a new trial. // Clark v. S., 946 So. 2d 110 (1st DCA 2007), 32 F.L.W. D190 (1/5/2007)
When an attempted first-degree murder conviction could have been based on attempted felony murder, which crime was held nonexistent in S. v. Gray, 654 So. 2d 552 (Fla. 1995), defendant is entitled to a new trial. // Clark v. S., 946 So. 2d 110 (1st DCA 2007), 32 F.L.W. D190 (1/5/2007)
When death is caused by more than one hold around the victim’s neck and there were multiple applications of strangling force applied to the neck, more than one instance of abuse occurs and there is no merger between the aggravated child abuse and felony murder, and defendant may be convicted of both crimes. // Even where the murder is committed by a single act of abuse, defendant is properly convicted of both aggravated child abuse and murder. // Rosa v. S., ___ So. 3d ___, 36 F.L.W. D482 (2d DCA 3/2/2011)
When death is caused by more than one hold around the victim’s neck and there were multiple applications of strangling force applied to the neck, more than one instance of abuse occurs and there is no merger between the aggravated child abuse and felony murder, and defendant may be convicted of both crimes. // Even where the murder is committed by a single act of abuse, defendant is properly convicted of both aggravated child abuse and murder. // Rosa v. S., ___ So. 3d ___, 36 F.L.W. D482 (2d DCA 3/2/2011)
Defendant shot at victim #1 and hit victim #2, killing her. He was charged with attempted first degree murder of victim #1, and first-degree felony murder of victim #2, with the attempted murder of victim #1 as the predicate felony. Defendant was convicted of attempted second-degree murder of victim #1 and first-degree murder of victim #2. Held: Under the circumstances of this case, no double jeopardy violation occurs. // Brinson v. S., 18 So. 3d 1075 (2d DCA 2009), 34 F.L.W. D282 (2/4/2009)
Defendant shot at victim #1 and hit victim #2, killing her. He was charged with attempted first degree murder of victim #1, and first-degree felony murder of victim #2, with the attempted murder of victim #1 as the predicate felony. Defendant was convicted of attempted second-degree murder of victim #1 and first-degree murder of victim #2. Held: Under the circumstances of this case, no double jeopardy violation occurs. // Brinson v. S., 18 So. 3d 1075 (2d DCA 2009), 34 F.L.W. D282 (2/4/2009)
Defendant was charged with the strangulation murder of a prostitute, occurring during an incident involving sex with her in a motel room. Defendant argued that the evidence at best showed 2d degree murder and the state filed to show premeditation. Held: While evidence of strangulation standing alone is insufficient to prove premeditation, strangulation plus evidence of repositioning the cord and evidence of a struggle between the defendant and victim is sufficient to overcome a motion for JOA. // Berube v. S., 5 So. 3d 734 (2d DCA 2009), 34 F.L.W. D436 (2/25/2009)
Defendant was charged with the strangulation murder of a prostitute, occurring during an incident involving sex with her in a motel room. Defendant argued that the evidence at best showed 2d degree murder and the state filed to show premeditation. Held: While evidence of strangulation standing alone is insufficient to prove premeditation, strangulation plus evidence of repositioning the cord and evidence of a struggle between the defendant and victim is sufficient to overcome a motion for JOA. // Berube v. S., 5 So. 3d 734 (2d DCA 2009), 34 F.L.W. D436 (2/25/2009)
The court properly imposes a life sentence on a 15-year old convicted of being the wheelman in a robbery in which a co-perpetrator killed the victim. // Arrington v. S., ___ So. 3d ___, 35 F.L.W. D327 (2d DCA 2/19/2010)
The court properly imposes a life sentence on a 15-year old convicted of being the wheelman in a robbery in which a co-perpetrator killed the victim. // Arrington v. S., ___ So. 3d ___, 35 F.L.W. D327 (2d DCA 2/19/2010)
When the state presents both a felony murder and premeditated theory of the case, and the jury returns a general verdict of guilty, and the evidence is insufficient to sustain a finding of guilt on the predicate felony, the conviction for 1st degree murder will be upheld where there is sufficient evidence to sustain a conviction for premeditated murder. // Bell v. S., 27 So. 3d 209 (2d DCA 2010), 35 F.L.W. D323 (2/10/2010)
When the state presents both a felony murder and premeditated theory of the case, and the jury returns a general verdict of guilty, and the evidence is insufficient to sustain a finding of guilt on the predicate felony, the conviction for 1st degree murder will be upheld where there is sufficient evidence to sustain a conviction for premeditated murder. // Bell v. S., 27 So. 3d 209 (2d DCA 2010), 35 F.L.W. D323 (2/10/2010)
A sentence of life in prison for a 14-year old convicted of first-degree murder does not violate cruel and unusual provisions of the constitution. // Culpepper v. S., 971 So. 2d 259 (2d DCA 2008), 33 F.L.W. D164 (1/4/2008)
A sentence of life in prison for a 14-year old convicted of first-degree murder does not violate cruel and unusual provisions of the constitution. // Culpepper v. S., 971 So. 2d 259 (2d DCA 2008), 33 F.L.W. D164 (1/4/2008)
Attempted first degree murder is an F1 with a maximum 30-year sentence. // Pettigrew v. S., 19 So. 3d 428 (3d DCA 2009), 34 F.L.W. D1930 (9/23/2009)
Attempted first degree murder is an F1 with a maximum 30-year sentence. // Pettigrew v. S., 19 So. 3d 428 (3d DCA 2009), 34 F.L.W. D1930 (9/23/2009)
Defendant was charged by indictment with first-degree felony murder and other charges. He filed a demand for speedy trial, and jury selection began with a few days remaining in the demand period. The state asked to continue to obtain a new indictment that charged premeditated murder, which the court allowed. Trial started a few days later, after speedy trial had run, on a new indictment. Held: The new indictment alleging premeditated and felony murder was not sufficient changed that it constituted new charge filed after the speedy trial period had run, and the convictions are affirmed. // When the court modifies the standard instruction to state as an element “The defendant or another person acting as a principal,” defendant could be convicted based on the acts of another person and fundamental error occurs. // Brown v. S., 967 So. 2d 236 (3d DCA 2007), 32 F.L.W. D1941 (8/15/2007)
Defendant was charged by indictment with first-degree felony murder and other charges. He filed a demand for speedy trial, and jury selection began with a few days remaining in the demand period. The state asked to continue to obtain a new indictment that charged premeditated murder, which the court allowed. Trial started a few days later, after speedy trial had run, on a new indictment. Held: The new indictment alleging premeditated and felony murder was not sufficient changed that it constituted new charge filed after the speedy trial period had run, and the convictions are affirmed. // When the court modifies the standard instruction to state as an element “The defendant or another person acting as a principal,” defendant could be convicted based on the acts of another person and fundamental error occurs. // Brown v. S., 967 So. 2d 236 (3d DCA 2007), 32 F.L.W. D1941 (8/15/2007)
Defendant snatched the purse belonging to a person with the victim. Defendant fled the scene in a car driven by another person, and the victim attempted to stop the car by grabbing the passenger door handle. He held on for a while, and ultimately released the car and died from injuries sustained while being dragged. Held: Under the 1987 amendments to the robbery statute, defendant’s acts in fleeing while the victim was holding onto the car are part of the robbery, and the victim’s death thus occurs in the course of the robbery for felony murder purposes. // Thomas v. S., 36 So. 3d 853 (3d DCA 2010), 35 F.L.W. D1244 (6/2/2010)
Defendant snatched the purse belonging to a person with the victim. Defendant fled the scene in a car driven by another person, and the victim attempted to stop the car by grabbing the passenger door handle. He held on for a while, and ultimately released the car and died from injuries sustained while being dragged. Held: Under the 1987 amendments to the robbery statute, defendant’s acts in fleeing while the victim was holding onto the car are part of the robbery, and the victim’s death thus occurs in the course of the robbery for felony murder purposes. // Thomas v. S., 36 So. 3d 853 (3d DCA 2010), 35 F.L.W. D1244 (6/2/2010)
Attempted first-degree murder with a firearm is a life felony, and the maximum term of years is 40 years, or life. The court errs in imposing 60 years. // Jordan v. S., 28 So. 3d 929 (3d DCA 2010), 35 F.L.W. D357 (2/10/2010)
Attempted first-degree murder with a firearm is a life felony, and the maximum term of years is 40 years, or life. The court errs in imposing 60 years. // Jordan v. S., 28 So. 3d 929 (3d DCA 2010), 35 F.L.W. D357 (2/10/2010)
The state is not required to inform defendant whether it is proceeding on a premeditated murder theory or felony murder theory. // Leyva v. S., 972 So. 2d 1056 (3d DCA 2008), 33 F.L.W. D305 (1/23/2008)
The state is not required to inform defendant whether it is proceeding on a premeditated murder theory or felony murder theory. // Leyva v. S., 972 So. 2d 1056 (3d DCA 2008), 33 F.L.W. D305 (1/23/2008)
Where the evidence show that the defendant stalked the victim and called her repeatedly the day of the crime, and then shot her several times, the court properly denies a JOA on premeditation. The evidence is sufficient to allow the jury to determine that the murder was premeditated. // Garcia v. S., 41 So. 3d 1072 (4th DCA 2010), 35 F.L.W. D1830 (8/11/2010)
Where the evidence show that the defendant stalked the victim and called her repeatedly the day of the crime, and then shot her several times, the court properly denies a JOA on premeditation. The evidence is sufficient to allow the jury to determine that the murder was premeditated. // Garcia v. S., 41 So. 3d 1072 (4th DCA 2010), 35 F.L.W. D1830 (8/11/2010)
Where the evidence showed that another person attacked the victim with the defendant’s knowledge, and the defendant ultimately killed the victim by strangling her, the evidence is sufficient to establish premeditation for 1st degree murder purposes. // Carranza v. S., 985 So. 2d 1199 (4th DCA 2008), 33 F.L.W. D1726 (7/9/2008)
Where the evidence showed that another person attacked the victim with the defendant’s knowledge, and the defendant ultimately killed the victim by strangling her, the evidence is sufficient to establish premeditation for 1st degree murder purposes. // Carranza v. S., 985 So. 2d 1199 (4th DCA 2008), 33 F.L.W. D1726 (7/9/2008)
When the defendant stabs the victim in the back, and stabs him several time when he turns around, the evidence is sufficient to support a determination of premeditation. // (See this case for discussion of premeditation is the case of drunks engaging in sudden combat.) // McJimsey v. S., 959 So. 2d 1257 (4th DCA 2007), 32 F.L.W. D1644 (7/5/2007)
When the defendant stabs the victim in the back, and stabs him several time when he turns around, the evidence is sufficient to support a determination of premeditation. // (See this case for discussion of premeditation is the case of drunks engaging in sudden combat.) // McJimsey v. S., 959 So. 2d 1257 (4th DCA 2007), 32 F.L.W. D1644 (7/5/2007)
When the state presents evidence that defendant had threatened to kill the victim in the recent past and the victim’s gunshot wounds are consistent with a close-contact fight, the circumstantial evidence of premeditation is sufficient to sustain a conviction. // Fennell v. S., 959 So. 2d 810 (4th DCA 2007), 32 F.L.W. D1645 (7/5/2007)
When the state presents evidence that defendant had threatened to kill the victim in the recent past and the victim’s gunshot wounds are consistent with a close-contact fight, the circumstantial evidence of premeditation is sufficient to sustain a conviction. // Fennell v. S., 959 So. 2d 810 (4th DCA 2007), 32 F.L.W. D1645 (7/5/2007)
Where defendant intentionally cocked a rifle and aimed it at the victim, the evidence is sufficient to show premeditation (See this case for discussion of and citation to premeditation cases.). // Jones v. S., 36 So. 3d 903 (4th DCA 2010), 35 F.L.W. D1286 (6/9/2010)
Where defendant intentionally cocked a rifle and aimed it at the victim, the evidence is sufficient to show premeditation (See this case for discussion of and citation to premeditation cases.). // Jones v. S., 36 So. 3d 903 (4th DCA 2010), 35 F.L.W. D1286 (6/9/2010)
Evidence that defendant and codefendant, although originally attacked by the victim, beat him repeatedly while helpless on the floor, is sufficient to show premeditation for first-degree murder purposes. // Rolls v. S., 12 So. 3d 816 (4th DCA 2009), 34 F.L.W. D1005 (5/20/2009)
Evidence that defendant and codefendant, although originally attacked by the victim, beat him repeatedly while helpless on the floor, is sufficient to show premeditation for first-degree murder purposes. // Rolls v. S., 12 So. 3d 816 (4th DCA 2009), 34 F.L.W. D1005 (5/20/2009)
Where the evidence shows that defendant asked a witness for a gun, and a few minutes returned, he was sweating, breathing hard, and acting nervous, and he said that he had shot a person accidentally, he had property of the victim in his possession, and his fingerprints are found inside the victim’s car, the evidence is insufficient to show premeditation but is sufficient to sustain a first degree murder conviction based on felony murder with robbery as the predicate. // Graham v. S., ___ So. 3d ___, 36 F.L.W. D502 (4th DCA 3/9/2011)
Where the evidence shows that defendant asked a witness for a gun, and a few minutes returned, he was sweating, breathing hard, and acting nervous, and he said that he had shot a person accidentally, he had property of the victim in his possession, and his fingerprints are found inside the victim’s car, the evidence is insufficient to show premeditation but is sufficient to sustain a first degree murder conviction based on felony murder with robbery as the predicate. // Graham v. S., ___ So. 3d ___, 36 F.L.W. D502 (4th DCA 3/9/2011)
When an indictment charges only felony first-degree murder, the court properly instructs the jury on both felony murder and premeditated murder. // Defendant is properly convicted of both first-degree murder and leaving the scene of an accident involving death. // Stanley v. S., ___ So. 3d ___, 36 F.L.W. D659 (4th DCA 3/30/2011)
When an indictment charges only felony first-degree murder, the court properly instructs the jury on both felony murder and premeditated murder. // Defendant is properly convicted of both first-degree murder and leaving the scene of an accident involving death. // Stanley v. S., ___ So. 3d ___, 36 F.L.W. D659 (4th DCA 3/30/2011)
LEO was shot at a building after he was thrown out of a bar, and about an hour later he shot another man at a different bar. The police chased him, but he escaped. While staking out his house, the defendant drove by about 46 minutes after the second shooting, and while speeding through a red light he hit a car, killing two. He was charged with 1st degree felony murder for those deaths, alleging he was escaping from the attempted murder scene. Held: The evidence is sufficient to show an unbroken chain of event from the shooting to the accident scene, and the felony murder convictions are affirmed. Because defendant took evasive maneuvers to escape the scene of the shooting, and then sped past his own house, there is a sufficient connection to show that the killing occurred while seeking to escape from the shooting. // •Baines v. S., 25 So. 3d 1277 (4th DCA 2010), 35 F.L.W. D237 (1/27/2010)
LEO was shot at a building after he was thrown out of a bar, and about an hour later he shot another man at a different bar. The police chased him, but he escaped. While staking out his house, the defendant drove by about 46 minutes after the second shooting, and while speeding through a red light he hit a car, killing two. He was charged with 1st degree felony murder for those deaths, alleging he was escaping from the attempted murder scene. Held: The evidence is sufficient to show an unbroken chain of event from the shooting to the accident scene, and the felony murder convictions are affirmed. Because defendant took evasive maneuvers to escape the scene of the shooting, and then sped past his own house, there is a sufficient connection to show that the killing occurred while seeking to escape from the shooting. // •Baines v. S., 25 So. 3d 1277 (4th DCA 2010), 35 F.L.W. D237 (1/27/2010)
Methadone is not a synthetic opium as that term is used in §782.04(1)(a)3, relating to first-degree murder by distribution of drugs. // S. v. McCartney, 1 So. 3d 326 (4th DCA 2009), 34 F.L.W. D187 (1/21/2009)
Methadone is not a synthetic opium as that term is used in §782.04(1)(a)3, relating to first-degree murder by distribution of drugs. // S. v. McCartney, 1 So. 3d 326 (4th DCA 2009), 34 F.L.W. D187 (1/21/2009)
Because of the length of time it takes to strangle a person to death, that circumstance is sufficient to create a jury question regarding whether the killing was premeditated. // Perez-Ortiz v. S., 954 So. 2d 1256 (5th DCA 2007), 32 F.L.W. D1099 (4/27/2007)
Because of the length of time it takes to strangle a person to death, that circumstance is sufficient to create a jury question regarding whether the killing was premeditated. // Perez-Ortiz v. S., 954 So. 2d 1256 (5th DCA 2007), 32 F.L.W. D1099 (4/27/2007)
Heat of passion is a valid defense to 2d degree murder because it negates the depraved mind element. // Heat of passion as a defense to 2d degree murder is different than excusable homicide. Under Florida law, if the jury believes that defendant’s passion resulted in a state of mind where the depravity which characterizes 2d degree murder is absent, he is not guilty of 2d degree murder. // •Palmore v. S., 838 So. 2d 1222 (1st DCA 2003), 28 F.L.W. D671 (3/7/2003)
Heat of passion is a valid defense to 2d degree murder because it negates the depraved mind element. // Heat of passion as a defense to 2d degree murder is different than excusable homicide. Under Florida law, if the jury believes that defendant’s passion resulted in a state of mind where the depravity which characterizes 2d degree murder is absent, he is not guilty of 2d degree murder. // •Palmore v. S., 838 So. 2d 1222 (1st DCA 2003), 28 F.L.W. D671 (3/7/2003)
Aggravated manslaughter of a child is not a lesser of 2d degree murder. Where the victim is a child, but the state does not allege the age of the victim in the information charging 2d degree murder, the court reversibly errs in giving aggravated manslaughter as a lesser of 2d degree murder. // Hankerson v. S., 831 So. 2d 235 (1st DCA 2002), 27 F.L.W. D2353 (10/30/2002)
Aggravated manslaughter of a child is not a lesser of 2d degree murder. Where the victim is a child, but the state does not allege the age of the victim in the information charging 2d degree murder, the court reversibly errs in giving aggravated manslaughter as a lesser of 2d degree murder. // Hankerson v. S., 831 So. 2d 235 (1st DCA 2002), 27 F.L.W. D2353 (10/30/2002)
Attempted aggravated battery is a permissive lesser of attempted 2d degree murder of an LEO, and the court errs in refusing to give the instruction. // Blandin v. S., 916 So. 2d 969 (2d DCA 2005), 30 F.L.W. D2813 (12/14/2005)
Attempted aggravated battery is a permissive lesser of attempted 2d degree murder of an LEO, and the court errs in refusing to give the instruction. // Blandin v. S., 916 So. 2d 969 (2d DCA 2005), 30 F.L.W. D2813 (12/14/2005)
(See Rayl v. S., ___ So. 2d ___, 29 F.L.W. D2099 (2d DCA 9/17/2004) for discussion of when manslaughter is a lesser of 2d degree murder.)
(See Rayl v. S., ___ So. 2d ___, 29 F.L.W. D2099 (2d DCA 9/17/2004) for discussion of when manslaughter is a lesser of 2d degree murder.)
The failure to instruct on excusable and justifiable homicide in an attempted 2d degree murder case is fundamental error. The failure of appellate counsel to raise the issue is ineffective assistance of counsel. // Guardiola v. S., 884 So. 2d 140 (2d DCA 2004), 29 F.L.W. D1650 (7/16/2004)
The failure to instruct on excusable and justifiable homicide in an attempted 2d degree murder case is fundamental error. The failure of appellate counsel to raise the issue is ineffective assistance of counsel. // Guardiola v. S., 884 So. 2d 140 (2d DCA 2004), 29 F.L.W. D1650 (7/16/2004)
The intoxicated victim bumped into the defendant in a mosh pit at a bar. The defendant picked up the victim and slammed him to the ground, causing injured that resulted in death. Held: The evidence is insufficient to show that defendant acted with sufficient ill will, hatred, spite, or evil intent for 2d degree murder. // (See this case for discussion of the sufficiency of evidence to show the intent element of 2d degree murder.) // •Light v. S., 841 So. 2d 623 (2d DCA 2003), 28 F.L.W. D883 (4/4/2003)
The intoxicated victim bumped into the defendant in a mosh pit at a bar. The defendant picked up the victim and slammed him to the ground, causing injured that resulted in death. Held: The evidence is insufficient to show that defendant acted with sufficient ill will, hatred, spite, or evil intent for 2d degree murder. // (See this case for discussion of the sufficiency of evidence to show the intent element of 2d degree murder.) // •Light v. S., 841 So. 2d 623 (2d DCA 2003), 28 F.L.W. D883 (4/4/2003)
Attempted aggravated battery with a firearm is a lesser of attempted 2d degree murder with a firearm, despite the fact that both carry a mandatory minimum 20 year sentence. // An allegation in the information that defendant discharged a firearm is a sufficient allegation of the use of a deadly weapon to permit the giving of attempted aggravated battery as a lesser. // Washington v. S., 912 So. 2d 344 (3d DCA 2005), 30 F.L.W. D2353 (10/5/2005)
Attempted aggravated battery with a firearm is a lesser of attempted 2d degree murder with a firearm, despite the fact that both carry a mandatory minimum 20 year sentence. // An allegation in the information that defendant discharged a firearm is a sufficient allegation of the use of a deadly weapon to permit the giving of attempted aggravated battery as a lesser. // Washington v. S., 912 So. 2d 344 (3d DCA 2005), 30 F.L.W. D2353 (10/5/2005)
Section 775.082(3)(a) was amended to state that for a life felony committed on or after 7/1/95, the defendant may be sentenced to life or to a term of years not exceeding life. The amending law, however, was session law 95-184, which was found unconstitutional in Heggs. Thus, for a 2d degree murder occurring on December 27, 1995, the maximum term of years was 40, and a sentence of 50 years is unlawful. // Rolle v. S., 830 So. 2d 239 (3d DCA 2002), 27 F.L.W. D2438 (11/13/2002)
Section 775.082(3)(a) was amended to state that for a life felony committed on or after 7/1/95, the defendant may be sentenced to life or to a term of years not exceeding life. The amending law, however, was session law 95-184, which was found unconstitutional in Heggs. Thus, for a 2d degree murder occurring on December 27, 1995, the maximum term of years was 40, and a sentence of 50 years is unlawful. // Rolle v. S., 830 So. 2d 239 (3d DCA 2002), 27 F.L.W. D2438 (11/13/2002)
The crime of solicitation to commit second degree murder does not exist in Florida. Where defendant is charged with solicitation to commit first degree murder, he cannot be convicted of solicitation to commit 2d degree murder as a lesser. // •Jones v. S., 908 So. 2d 615 (4th DCA 2005), 30 F.L.W. D2002 (8/24/2005)
The crime of solicitation to commit second degree murder does not exist in Florida. Where defendant is charged with solicitation to commit first degree murder, he cannot be convicted of solicitation to commit 2d degree murder as a lesser. // •Jones v. S., 908 So. 2d 615 (4th DCA 2005), 30 F.L.W. D2002 (8/24/2005)
Pointing a loaded gun at the victim and pulling the trigger is an act imminently dangerous to another and evincing a depraved mind regardless of human life. Where the evidence shows defendant intended to point the gun at the victim, the evidence is sufficient to sustain 2d degree murder. // Gibbs v. S., 904 So. 2d 432 (4th DCA 2005), 30 F.L.W. D530 (2/23/2005)
Pointing a loaded gun at the victim and pulling the trigger is an act imminently dangerous to another and evincing a depraved mind regardless of human life. Where the evidence shows defendant intended to point the gun at the victim, the evidence is sufficient to sustain 2d degree murder. // Gibbs v. S., 904 So. 2d 432 (4th DCA 2005), 30 F.L.W. D530 (2/23/2005)
The victim’s failure to testify that the defendant shot a gun at him precludes a conviction for attempted 2d degree murder. // (See this case for citations to cases in which the state was able to prove murder or attempted murder without the victim’s testimony.) // Johnson v. S., 888 So. 2d 691 (4th DCA 2004), 29 F.L.W. D2602 (11/17/2004)
The victim’s failure to testify that the defendant shot a gun at him precludes a conviction for attempted 2d degree murder. // (See this case for citations to cases in which the state was able to prove murder or attempted murder without the victim’s testimony.) // Johnson v. S., 888 So. 2d 691 (4th DCA 2004), 29 F.L.W. D2602 (11/17/2004)
Aggravated battery with a firearm is the same degree of crime as attempted second degree murder with a firearm, and so aggravated battery with a firearm is not a lesser of attempted murder. The court errs in giving the aggravated battery charge. // Franklin v. S., 877 So. 2d 19 (4th DCA 2004), 29 F.L.W. D1211 (5/19/2004)
Aggravated battery with a firearm is the same degree of crime as attempted second degree murder with a firearm, and so aggravated battery with a firearm is not a lesser of attempted murder. The court errs in giving the aggravated battery charge. // Franklin v. S., 877 So. 2d 19 (4th DCA 2004), 29 F.L.W. D1211 (5/19/2004)
Defendant was convicted of second degree murder as a lesser of first degree felony murder. The evidence showed that he helped his co-defendant escape from prison, and the next day while driving the police tried to stop him. He fled and after a short chase, defendant ran a stop sign resulting in an accident that killed the other driver. He objected to giving second degree murder as a lesser of first degree felony murder. Held: Under the facts of the case, as a matter of law defendant did not exhibit hatred, spite, or ill will toward the victim or any other person and the second degree murder conviction is reversed. The evidence is sufficient to sustain 3d degree felony murder conviction, and the conviction is reduced to that charge. // •Michelson v. S., 805 So. 2d 983 (4th DCA 2001), 26 F.L.W. D2878 (12/5/2001)
Defendant was convicted of second degree murder as a lesser of first degree felony murder. The evidence showed that he helped his co-defendant escape from prison, and the next day while driving the police tried to stop him. He fled and after a short chase, defendant ran a stop sign resulting in an accident that killed the other driver. He objected to giving second degree murder as a lesser of first degree felony murder. Held: Under the facts of the case, as a matter of law defendant did not exhibit hatred, spite, or ill will toward the victim or any other person and the second degree murder conviction is reversed. The evidence is sufficient to sustain 3d degree felony murder conviction, and the conviction is reduced to that charge. // •Michelson v. S., 805 So. 2d 983 (4th DCA 2001), 26 F.L.W. D2878 (12/5/2001)
Aggravated battery is a permissive lesser of second degree murder. The court errs in giving it, though, when all the element of aggravated battery are not alleged in the information. // When counsel does not object to giving aggravated battery as a lesser, the error is not preserved. // Whyte v. S., 881 So. 2d 1183 (5th DCA 2004), 29 F.L.W. D1974 (8/27/2004)
Aggravated battery is a permissive lesser of second degree murder. The court errs in giving it, though, when all the element of aggravated battery are not alleged in the information. // When counsel does not object to giving aggravated battery as a lesser, the error is not preserved. // Whyte v. S., 881 So. 2d 1183 (5th DCA 2004), 29 F.L.W. D1974 (8/27/2004)
Defendant is properly convicted of both attempted 2d degree murder and aggravated battery for a single act of stabbing the victim. // Schirmer v. S., 837 So. 2d 587 (5th DCA 2003), 28 F.L.W. D476 (2/14/2003)
Defendant is properly convicted of both attempted 2d degree murder and aggravated battery for a single act of stabbing the victim. // Schirmer v. S., 837 So. 2d 587 (5th DCA 2003), 28 F.L.W. D476 (2/14/2003)
Court commits fundamental error by failing to read justifiable and excusable homicide instructions during a 2d degree murder trial. // Burgess v. S., 830 So. 2d 950 (5th DCA 2002), 27 F.L.W. D2542 (11/22/2002)
Court commits fundamental error by failing to read justifiable and excusable homicide instructions during a 2d degree murder trial. // Burgess v. S., 830 So. 2d 950 (5th DCA 2002), 27 F.L.W. D2542 (11/22/2002)
Defendant may not be convicted of both attempted second degree murder and attempted 1st degree felony murder for shooting one victim (question certified). // Mitchell v. S., 830 So. 2d 944 (5th DCA 2002), 27 F.L.W. D2543 (11/22/2002)
Defendant may not be convicted of both attempted second degree murder and attempted 1st degree felony murder for shooting one victim (question certified). // Mitchell v. S., 830 So. 2d 944 (5th DCA 2002), 27 F.L.W. D2543 (11/22/2002)
Aggravated assault is a category 2 lesser of attempted 2d degree murder. If the information does not allege the elements of aggravated assault, it should not be given as a lesser. // When the defense requests aggravated assault as a lesser, any error in giving the instruction is waived (conflict certified). // (See this case, Harris, J., concurring, for extensive discussion of when a person may be convicted of an offense not charged in an information.) // •Nesbitt v. S., 819 So. 2d 993 (5th DCA 2002), 27 F.L.W. D1496 (6/28/2002) // contra, Levesque v. S., 778 So. 2d 1049 (4th DCA 2001); Mateo v. S., 757 So. 2d 1229 (2d DCA 2000)
Aggravated assault is a category 2 lesser of attempted 2d degree murder. If the information does not allege the elements of aggravated assault, it should not be given as a lesser. // When the defense requests aggravated assault as a lesser, any error in giving the instruction is waived (conflict certified). // (See this case, Harris, J., concurring, for extensive discussion of when a person may be convicted of an offense not charged in an information.) // •Nesbitt v. S., 819 So. 2d 993 (5th DCA 2002), 27 F.L.W. D1496 (6/28/2002) // contra, Levesque v. S., 778 So. 2d 1049 (4th DCA 2001); Mateo v. S., 757 So. 2d 1229 (2d DCA 2000)
Court errs in denying a JOA in a 3d degree murder charged based on a traffic accident resulting in death caused by defendant driving a stolen car. The death did not occur in the course of the theft, which had been completed many hours prior to the accident. // House v. S., 831 So. 2d 1230 (2d DCA 2002), 27 F.L.W. D2640 (12/11/2002)
Court errs in denying a JOA in a 3d degree murder charged based on a traffic accident resulting in death caused by defendant driving a stolen car. The death did not occur in the course of the theft, which had been completed many hours prior to the accident. // House v. S., 831 So. 2d 1230 (2d DCA 2002), 27 F.L.W. D2640 (12/11/2002)
An erroneous instruction on manslaughter by act as a lesser of second degree murder is not fundamentally erroneous when defendant is convicted of murder and the jury was instructed on both manslaughter by act and manslaughter by culpable negligence. // Barros-Dias v. S., 41 So. 3d 370 (2d DCA 2010), 35 F.L.W. D1667 (7/28/2010)
An erroneous instruction on manslaughter by act as a lesser of second degree murder is not fundamentally erroneous when defendant is convicted of murder and the jury was instructed on both manslaughter by act and manslaughter by culpable negligence. // Barros-Dias v. S., 41 So. 3d 370 (2d DCA 2010), 35 F.L.W. D1667 (7/28/2010)
Defendant may not be convicted of both second degree murder and vehicular homicide when a traffic crash he caused resulted in one death. // Defendant fled from the police who were trying to stop him for a traffic infraction, and he drove the wrong way on an interstate, killing another driver. Held: The evidence is insufficient to show hatred, spite, or ill-will. Extremely reckless behavior is insufficient to infer any malice, and counsel was ineffective in failing to move for a JOA on a 2d degree murder charge. // Hicks v. S., 41 So. 3d 327 (2d DCA 2010), 35 F.L.W. D1590 (7/16/2010)
Defendant may not be convicted of both second degree murder and vehicular homicide when a traffic crash he caused resulted in one death. // Defendant fled from the police who were trying to stop him for a traffic infraction, and he drove the wrong way on an interstate, killing another driver. Held: The evidence is insufficient to show hatred, spite, or ill-will. Extremely reckless behavior is insufficient to infer any malice, and counsel was ineffective in failing to move for a JOA on a 2d degree murder charge. // Hicks v. S., 41 So. 3d 327 (2d DCA 2010), 35 F.L.W. D1590 (7/16/2010)
Second degree murder is a first degree felony punishable by life. When second degree murder is committed with a firearm, it is reclassified to a life felony, which is punishable by a term of years up to forty, or life. A sentence of thirty years followed by life probation is a lawful sentence. // Robinson v. S., 37 So. 3d 921 (2d DCA 2010), 35 F.L.W. D1261 (6/4/2010)
Second degree murder is a first degree felony punishable by life. When second degree murder is committed with a firearm, it is reclassified to a life felony, which is punishable by a term of years up to forty, or life. A sentence of thirty years followed by life probation is a lawful sentence. // Robinson v. S., 37 So. 3d 921 (2d DCA 2010), 35 F.L.W. D1261 (6/4/2010)
Defendant stabbed his friend when the friend lunged at a third person inside a small RV. The single stab killed him. He was charged with first-degree murder and convicted of second. Held: The evidence is insufficient to show ill will, hatred, or spite. However, the jury could have rejected defendant’s self-defense defense, and the case is remanded for resentencing for manslaughter. // Poole v. S., 30 So. 3d 696 (2d DCA 2010), 35 F.L.W. D697 (3/26/2010)
Defendant stabbed his friend when the friend lunged at a third person inside a small RV. The single stab killed him. He was charged with first-degree murder and convicted of second. Held: The evidence is insufficient to show ill will, hatred, or spite. However, the jury could have rejected defendant’s self-defense defense, and the case is remanded for resentencing for manslaughter. // Poole v. S., 30 So. 3d 696 (2d DCA 2010), 35 F.L.W. D697 (3/26/2010)
Where defendant and the victim, who did not know each other, engaged in a bar fight, and the evidence shows that the defendant’s actions were possibly an impulsive overreaction to an attack or injury, such acts do not show ill will, hatred, spite, or evil intent sufficient to sustain a 2d degree murder conviction. // Bellamy v. S., 977 So. 2d 682 (2d DCA 2008), 33 F.L.W. D634 (2/29/2008)
Where defendant and the victim, who did not know each other, engaged in a bar fight, and the evidence shows that the defendant’s actions were possibly an impulsive overreaction to an attack or injury, such acts do not show ill will, hatred, spite, or evil intent sufficient to sustain a 2d degree murder conviction. // Bellamy v. S., 977 So. 2d 682 (2d DCA 2008), 33 F.L.W. D634 (2/29/2008)
The act of driving a butcher knife five inches into the victim’s chest, causing his death, is sufficient to show the “depraved mind” element of second-degree murder. // Bonilla v. S., 19 So. 3d 431 (3d DCA 2009), 34 F.L.W. D1926 (9/23/2009)
The act of driving a butcher knife five inches into the victim’s chest, causing his death, is sufficient to show the “depraved mind” element of second-degree murder. // Bonilla v. S., 19 So. 3d 431 (3d DCA 2009), 34 F.L.W. D1926 (9/23/2009)
The court errs in granting a c(4) motion reducing a charge from 2d degree murder to manslaughter. Whether the defendant had the required state of mind is not an issue to be determined in a c(4) motion. // S. v. Yaqubie, 51 So. 3d 474 (3d DCA 2010), 35 F.L.W. D1342 (6/16/2010) // See Peterson v. S., 983 So. 2d 27 (1st DCA 2008); Horn v. S., 17 So. 3d 836 (2d DCA 2009); Gray v. S., 13 So. 3d 114 (5th DCA 2009) // contra, Velasquez v. S., 9 So. 3d 22 (4th DCA 2009)
The court errs in granting a c(4) motion reducing a charge from 2d degree murder to manslaughter. Whether the defendant had the required state of mind is not an issue to be determined in a c(4) motion. // S. v. Yaqubie, 51 So. 3d 474 (3d DCA 2010), 35 F.L.W. D1342 (6/16/2010) // See Peterson v. S., 983 So. 2d 27 (1st DCA 2008); Horn v. S., 17 So. 3d 836 (2d DCA 2009); Gray v. S., 13 So. 3d 114 (5th DCA 2009) // contra, Velasquez v. S., 9 So. 3d 22 (4th DCA 2009)
Photographic evidence of the victim’s skull, showing three gunshot wounds to the face, is admissible to show that the killing was not accidental but was committed with malice, and the court does not err in admitting the photos. // When the jury is instructed on both manslaughter by culpable negligence and manslaughter by act as lessers of 2d degree murder, the error in giving the flawed manslaughter by act instruction is not fundamental. // Moore v. S., ___ So. 3d ___, 36 F.L.W. D512 (3d DCA 3/9/2011)
Photographic evidence of the victim’s skull, showing three gunshot wounds to the face, is admissible to show that the killing was not accidental but was committed with malice, and the court does not err in admitting the photos. // When the jury is instructed on both manslaughter by culpable negligence and manslaughter by act as lessers of 2d degree murder, the error in giving the flawed manslaughter by act instruction is not fundamental. // Moore v. S., ___ So. 3d ___, 36 F.L.W. D512 (3d DCA 3/9/2011)
The victim was shot by the defendant when the occupants of the cars in which each were riding started arguing between the cars, and defendant shot into the victim’s car, killing the victim. Earlier in the evening, a witness said that defendant had said that he wanted to “shoot someone’s head off.” Held: Admission of the evidence goes to defendant’s state of mind, which is relevant in a second degree murder charge. // Lumsdon v. S., 29 So. 3d 390 (3d DCA 2010), 35 F.L.W. D514 (3/3/2010)
The victim was shot by the defendant when the occupants of the cars in which each were riding started arguing between the cars, and defendant shot into the victim’s car, killing the victim. Earlier in the evening, a witness said that defendant had said that he wanted to “shoot someone’s head off.” Held: Admission of the evidence goes to defendant’s state of mind, which is relevant in a second degree murder charge. // Lumsdon v. S., 29 So. 3d 390 (3d DCA 2010), 35 F.L.W. D514 (3/3/2010)
The act of striking a person with a loaded gun, resulting in the gun discharging and killing the victim, constitutes second degree murder. // Aguilera v. S., 975 So. 2d 1270 (3d DCA 2008), 33 F.L.W. D723 (3/12/2008)
The act of striking a person with a loaded gun, resulting in the gun discharging and killing the victim, constitutes second degree murder. // Aguilera v. S., 975 So. 2d 1270 (3d DCA 2008), 33 F.L.W. D723 (3/12/2008)
The victim got into an argument with his former girlfriend in the parking lot of a bar. She made a phone call, and a car driven by defendant arrived. Several people got out with guns, and one of them shot and killed the victim, and defendant drove him away from the scene. Held: The evidence is sufficient to convict defendant of 2d degree murder. // Francis v. S., 29 So. 3d 1145 (3d DCA 2009), 35 F.L.W. D19 (12/23/2009)
The victim got into an argument with his former girlfriend in the parking lot of a bar. She made a phone call, and a car driven by defendant arrived. Several people got out with guns, and one of them shot and killed the victim, and defendant drove him away from the scene. Held: The evidence is sufficient to convict defendant of 2d degree murder. // Francis v. S., 29 So. 3d 1145 (3d DCA 2009), 35 F.L.W. D19 (12/23/2009)
(See Barnes v. S., 993 So. 2d 542 (3d DCA 2008), 33 F.L.W. D311 (1/23/2008) for discussion of when sufficient evidence is presented to sustain a second-degree murder conviction based on a fight between defendant and the victim.)
(See Barnes v. S., 993 So. 2d 542 (3d DCA 2008), 33 F.L.W. D311 (1/23/2008) for discussion of when sufficient evidence is presented to sustain a second-degree murder conviction based on a fight between defendant and the victim.)
Attempted 2d degree murder with a firearm is a first degree felony. If defendant causes great bodily harm, the mandatory sentence range is 25 years to life. The maximum penalty for a first degree felony is 30 years. The 10-20-Life law does not create a a new statutory maximum of life, and the court errs in imposing 50 years with a 25-year mandatory. // Wooden v. S., 42 So. 3d 837 (5th DCA 2010), 35 F.L.W. D1641 (7/23/2010)
Attempted 2d degree murder with a firearm is a first degree felony. If defendant causes great bodily harm, the mandatory sentence range is 25 years to life. The maximum penalty for a first degree felony is 30 years. The 10-20-Life law does not create a a new statutory maximum of life, and the court errs in imposing 50 years with a 25-year mandatory. // Wooden v. S., 42 So. 3d 837 (5th DCA 2010), 35 F.L.W. D1641 (7/23/2010)
Attempted 2d degree murder with a firearm is a 1st degree felony with a maximum penalty of 30 years, and the court errs in imposing 35 year in prison followed by 10 years of probation. // Brown v. S., 983 So. 2d 706 (5th DCA 2008), 33 F.L.W. D1476 (6/6/2008)
Attempted 2d degree murder with a firearm is a 1st degree felony with a maximum penalty of 30 years, and the court errs in imposing 35 year in prison followed by 10 years of probation. // Brown v. S., 983 So. 2d 706 (5th DCA 2008), 33 F.L.W. D1476 (6/6/2008)
Attempted second degree murder is a second degree felony. The charge is properly reclassified to a first degree felony when defendant uses a knife during the commission of the crime. // Williams v. S., 29 So. 3d 327 (5th DCA 2010), 35 F.L.W. D166 (1/15/2010)
Attempted second degree murder is a second degree felony. The charge is properly reclassified to a first degree felony when defendant uses a knife during the commission of the crime. // Williams v. S., 29 So. 3d 327 (5th DCA 2010), 35 F.L.W. D166 (1/15/2010)
Third degree murder is not a necessarily included lesser offense of first-degree murder, and the court does not err in refusing to give the instruction when it is not supported by the evidence. // Jimenez v. S., 703 So. 2d 437 (Fla. 1997), 22 F.L.W. S685 (10/30/97)
Third degree murder is not a necessarily included lesser offense of first-degree murder, and the court does not err in refusing to give the instruction when it is not supported by the evidence. // Jimenez v. S., 703 So. 2d 437 (Fla. 1997), 22 F.L.W. S685 (10/30/97)
Defendant, a pregnant teenager, shot herself in an attempt to kill the fetus. The baby died fifteen days after the shooting as a result of the premature birth. The state charged the mother with third-degree murder with criminal abortion as the underlying felony, and with manslaughter in the alternative. Held: A pregnant woman is immune under common law from a criminal charge in causing the death of her unborn child. // •S. v. Ashley, 701 So. 2d 338 (Fla. 1997), 22 F.L.W. S682 (10/30/97) // approving and reversing in part State v. Ashley, 670 So. 2d 1087 (Fla. 2d DCA 1996)
Defendant, a pregnant teenager, shot herself in an attempt to kill the fetus. The baby died fifteen days after the shooting as a result of the premature birth. The state charged the mother with third-degree murder with criminal abortion as the underlying felony, and with manslaughter in the alternative. Held: A pregnant woman is immune under common law from a criminal charge in causing the death of her unborn child. // •S. v. Ashley, 701 So. 2d 338 (Fla. 1997), 22 F.L.W. S682 (10/30/97) // approving and reversing in part State v. Ashley, 670 So. 2d 1087 (Fla. 2d DCA 1996)
When the underlying felony for 3d degree murder is aggravated assault with a firearm, the court errs in reclassifying the crime because the use of the firearm was an essential element of the crime. // Collazo v. S., 936 So. 2d 782 (4th DCA 2006), 31 F.L.W. D2301 (9/6/2006)
When the underlying felony for 3d degree murder is aggravated assault with a firearm, the court errs in reclassifying the crime because the use of the firearm was an essential element of the crime. // Collazo v. S., 936 So. 2d 782 (4th DCA 2006), 31 F.L.W. D2301 (9/6/2006)
Defendant was convicted of second degree murder as a lesser of first degree felony murder. The evidence showed that he escaped from prison with the help of his codefendant, and the next day while the codefendant was driving the police tried to stop them. They fled and after a short chase, codefendant ran a stop sign resulting in an accident that killed the other driver. Defendant objected to giving second degree murder as a lesser of first degree felony murder. Held: Under the facts of the case, as a matter of law defendant did not exhibit hatred, spite, or ill will toward the victim or any other person and the second degree murder conviction is reversed. // The evidence is sufficient to sustain 3d degree felony murder conviction with harboring an escaped prisoner as the predicate, and the conviction is reduced to that charge. Defendant, as the escaped prisoner, can be a principal to the crime of harboring an escaped prisoner when he allows another person to harbor him. The evidence showed that defendant participated in concocting an elaborate plan for an escape, and then worked with his codefendant to conceal himself. Defendant is properly found to be a principal. // Sigler v. S., 805 So. 2d 32 (4th DCA 2001), 26 F.L.W. D2880 (12/5/2001)
Defendant was convicted of second degree murder as a lesser of first degree felony murder. The evidence showed that he escaped from prison with the help of his codefendant, and the next day while the codefendant was driving the police tried to stop them. They fled and after a short chase, codefendant ran a stop sign resulting in an accident that killed the other driver. Defendant objected to giving second degree murder as a lesser of first degree felony murder. Held: Under the facts of the case, as a matter of law defendant did not exhibit hatred, spite, or ill will toward the victim or any other person and the second degree murder conviction is reversed. // The evidence is sufficient to sustain 3d degree felony murder conviction with harboring an escaped prisoner as the predicate, and the conviction is reduced to that charge. Defendant, as the escaped prisoner, can be a principal to the crime of harboring an escaped prisoner when he allows another person to harbor him. The evidence showed that defendant participated in concocting an elaborate plan for an escape, and then worked with his codefendant to conceal himself. Defendant is properly found to be a principal. // Sigler v. S., 805 So. 2d 32 (4th DCA 2001), 26 F.L.W. D2880 (12/5/2001)
When the defense requests 3d degree murder as a lesser of 1st degree murder, with aggravated battery of a pregnant person as the predicate offense, the defense is precluded from arguing on appeal that the court erred in admitting evidence that the victim was pregnant. // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)
When the defense requests 3d degree murder as a lesser of 1st degree murder, with aggravated battery of a pregnant person as the predicate offense, the defense is precluded from arguing on appeal that the court erred in admitting evidence that the victim was pregnant. // Williams v. S., 967 So. 2d 735 (Fla. 2007), 32 F.L.W. S347 (6/21/2007)
Defendant was charged with first-degree murder occurring during the course of a robbery. The jury was instructed on third-degree murder as a lesser, and he was convicted of robbery and third degree murder. Held: Because third degree murder requires as a predicate the commission of a crime other than the 18 listed offense, of which robbery is one, he cannot be convicted of third degree murder with robbery as the predicate. Thus, he was convicted of a nonexistent crime, and conviction is reversed. // Moore v. S., 983 So. 2d 691 (1st DCA 2008), 33 F.L.W. D1473 (6/5/2008)
Defendant was charged with first-degree murder occurring during the course of a robbery. The jury was instructed on third-degree murder as a lesser, and he was convicted of robbery and third degree murder. Held: Because third degree murder requires as a predicate the commission of a crime other than the 18 listed offense, of which robbery is one, he cannot be convicted of third degree murder with robbery as the predicate. Thus, he was convicted of a nonexistent crime, and conviction is reversed. // Moore v. S., 983 So. 2d 691 (1st DCA 2008), 33 F.L.W. D1473 (6/5/2008)
When defendant is convicted of 3d degree murder with a firearm, the crime is a second-degree felony. The court cannot impose a sentence longer than 25 years under the 10-20-Life law. // Collazo v. S., 966 So. 2d 429 (4th DCA 2007), 32 F.L.W. D2124 (9/5/2007)
When defendant is convicted of 3d degree murder with a firearm, the crime is a second-degree felony. The court cannot impose a sentence longer than 25 years under the 10-20-Life law. // Collazo v. S., 966 So. 2d 429 (4th DCA 2007), 32 F.L.W. D2124 (9/5/2007)
Multiple deaths in a single accident will support multiple convictions for DUI manslaughter. // (See this case for extensive discussion of the statutory construction “a / any” rule from Grappin v. S., 450 So. 2d 480 (Fla. 1984).) // Bautista v. S., 863 So. 2d 1180 (Fla. 2003), 28 F.L.W. S849 (12/4/2003)
Multiple deaths in a single accident will support multiple convictions for DUI manslaughter. // (See this case for extensive discussion of the statutory construction “a / any” rule from Grappin v. S., 450 So. 2d 480 (Fla. 1984).) // Bautista v. S., 863 So. 2d 1180 (Fla. 2003), 28 F.L.W. S849 (12/4/2003)
The court does not err in giving a jury instruction that required the jury to find that defendant “contributed to the cause” of the accident. // Smallridge v. S., 904 So. 2d 601 (1st DCA 2005), 30 F.L.W. D1540 (6/20/2005)
The court does not err in giving a jury instruction that required the jury to find that defendant “contributed to the cause” of the accident. // Smallridge v. S., 904 So. 2d 601 (1st DCA 2005), 30 F.L.W. D1540 (6/20/2005)
Defendant cannot be adjudicated guilty of both vehicular homicide and DUI manslaughter when the accident causes a single death. // Leveritt v. S., 817 So. 2d 891 (1st DCA 2002), 27 F.L.W. D1122 (5/7/2002)
Defendant cannot be adjudicated guilty of both vehicular homicide and DUI manslaughter when the accident causes a single death. // Leveritt v. S., 817 So. 2d 891 (1st DCA 2002), 27 F.L.W. D1122 (5/7/2002)
The creation in 1996 of DUI manslaughter with failure to provide information and render aid, a 1st degree felony, was not affected by the invalidation of the 1995 guidelines in Heggs. The new crime was designated a level 9 felony, and the designation was lawful. The court errs in refusing to score the crime as a level 9 offense in a Heggs resentencing. // Gill v. S., 886 So. 2d 988 (2d DCA 2004), 29 F.L.W. D2154 (9/24/2004)
The creation in 1996 of DUI manslaughter with failure to provide information and render aid, a 1st degree felony, was not affected by the invalidation of the 1995 guidelines in Heggs. The new crime was designated a level 9 felony, and the designation was lawful. The court errs in refusing to score the crime as a level 9 offense in a Heggs resentencing. // Gill v. S., 886 So. 2d 988 (2d DCA 2004), 29 F.L.W. D2154 (9/24/2004)
Defendant may not be adjudicated guilty of, or sentenced for, both DUI manslaughter and 3d degree murder for causing a single death. // (See this case for extensive discussion of double jeopardy considerations in determining when multiple convictions are allowed for a single act.) // Rodriguez v. S., 875 So. 2d 642 (2d DCA 2004), 29 F.L.W. D519 (2/25/2004)
Defendant may not be adjudicated guilty of, or sentenced for, both DUI manslaughter and 3d degree murder for causing a single death. // (See this case for extensive discussion of double jeopardy considerations in determining when multiple convictions are allowed for a single act.) // Rodriguez v. S., 875 So. 2d 642 (2d DCA 2004), 29 F.L.W. D519 (2/25/2004)
