Once a public defender has certified a conflict, and where it becomes clear that the trial court cannot learn the basis for the conflict “without requiring the disclosure of . . . confidential communications,” the trial court must grant the motion under section 27.5303(1)(a).
IN CASES WHERE A PUBLIC DEFENDER MOVES TO WITHDRAW FROM THE REPRESENTATION OF A CRIMINAL DEFENDANT ON THE BASIS OF A CLIENT CONFLICT, BUT CERTIFIES TO THE TRIAL COURT, AS AN OFFICER OF THE COURT, THAT HE OR SHE IS UNABLE TO REVEAL THE CIRCUMSTANCES SURROUNDING THE CONFLICT WITHOUT REVEALING PRIVILEGED COMMUNICATIONS, IS A TRIAL JUDGE REQUIRED TO GRANT THE MOTION TO WITHDRAW?
Donald James Smith v. State, 1D14-5647 (Fla. 1st DCA Feb. 17, 2015)
Randall Deviney v. State, 1D14-5730 (Fla. 1st DCA Feb. 17, 2015)
Duval Judge Cooper
Affirming conviction and ten-year mandatory minimum sentence for armed burglary while possessing a firearm, the First District held:
BURGLARY – SUFFICIENCY OF THE EVIDENCE: Evidence that the defendant’s fingerprints were found on a jewelry box drawer that the victim received sealed from the factory years earlier, and to which the defendant was not given access, was sufficient to meet the State’s burden of proving burglary.
ACTUAL POSSESSION OF A FIREARM – MANDATORY MINIMUM: Where the evidence establishes that there was only one perpetrator, that the defendant’s fingerprints were found on a jewelry box drawer the victim received sealed from the factory years earlier, and that firearms were missing from the home, the evidence is sufficient to establish the defendant actually possessed a firearm in commission of the robbery and supports the ten-year mandatory minimum sentence.
JUDGE MAKAR, concurring specially:
Because the State presented no evidence that the defendant actually possessed the firearm during the burglary (only the jewelry box drawer), no firearms were recovered, and no evidence was offered that the defendant sold, used or possessed the firearms, the evidence was insufficient to establish she actually possessed a firearm in the course of the burglary.
Harris v. State, 1D13-1077 (Fla. 1st DCA Feb. 16, 2015)
Nassau Judge Foster
“The State of Florida appeals the trial court’s order granting Christopher Carpenter’s motion to suppress evidence found during a warrantless search of his cell phone at the time of his arrest. The trial court concluded, relying on Smallwood v. State, 113 So.3d 724 (Fla. 2013) (Smallwood II), that law enforcement was required to obtain a search warrant before searching the data and contents of Carpenter’s cell phone. However, at the time of the search, Smallwood v. State, 61 So. 3d 448 (Fla. 1st DCA 2011) (Smallwood I), was binding appellate precedent and expressly permitted the warrantless search of a cell phone incident to arrest. Because the search of Carpenter’s cell phone was conducted in objectively reasonable reliance on binding appellate precedent, it falls under the good-faith exception to the exclusionary rule.”
State v. Carpenter, 1D13-6199 (Fla. 1st DCA Feb. 5, 2015)
Bay Judge Fensom
Reversing a conviction for attempted second degree murder and shooting at/within/into an occupied vehicle, the trial court fundamentally erred by giving contradictory instructions on the duty to retreat (3.6(f)), thereby negating the possible application of appellant’s only defense (self-defense).
The jury was instructed that “the deadly use of force is not justifiable if you find: [the defendant] initially provoked the use of force against himself, unless [:] . . . [he] had exhausted every reasonable means to escape the danger other than using deadly force.” The jury was also instructed that “[i]f the defendant was not engaged in unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force . . . .” This instruction is conflicting because the stand-your-ground provision states the defendant had no duty to retreat so long as he was not engaged in unlawful activity; however, the “aggressor” portion stated he had a duty to retreat if he provoked. Thus, the instruction stated the defendant “did not have to retreat . . . and did have a duty to retreat before using deadly force.” The Court concluded the instruction negated the defendant’s only theory of defense – self-defense.
Ross v. State, 1D13-4401 (Fla. 1st DCA Feb. 3, 2015)
Leon Judge Hankinson
Where the jury could have reasonably viewed the evidence as establishing second-degree murder, manslaughter by act, or manslaughter by culpable negligence, a trial court fundamentally errs by omitting the manslaughter by culpable negligence jury instruction despite instructing the jury on manslaughter by act as a lesser include offense.
Wade v. State, 1D12-4310 (Fla. 1st DCA Feb. 3, 2015)
Duval Judge Boyer
Even though 1DCA found the same jury instruction to be fundamentally erroneous in Floyd v. State, 2014 WL 4197377 (Fla. 1st DCA Aug. 26, 2014), a defendant waives any claim of fundamental error regarding the instruction when his defense counsel affirmatively requested and agreed to the instruction on justifiable use of deadly force.
Oliver v. State, 1D13-1281 (Fla. 1st DCA Jan. 20. 2015)
Duval Judge Soud
Where a co-defendant’s letter written after the defendant’s trial indicates that the defendant did not have advance knowledge of a robbery, a trial court errs by failing to make a factual determination of whether the letter constitutes newly discovered evidence. (And strongly hints that if it DOES constitute newly discovered evidence, the defendant might be entitled to a new trial.)
Stills v. State, 1D13-5310
Duval Judge Stetson