Legal Updates

Driving with suspended license sentence overturned:   Criminal law -- Driving without valid license -- Sentencing -- One-year jail term exceeded maximum sentence of 60 days permitted by statute

CHARLES ATTARDI, Appellant, v. STATE OF FLORIDA, 33 Fla. L. Weekly D2858c
 (Per Curiam) We affirm the appellant's convictions for leaving the scene of an accident with serious injuries and driving without a valid license, but direct the trial court to correct the sentence imposed for driving without a valid license. The sentence of one-year in jail exceeded the maximum sentence of 60 days permitted by statute. §§ 322.03, 322.39(2), and 775.082(4)(b), Fla. Stat. (2007). On remand, the trial court shall impose a corrected sentence that does not exceed the statutory maximum. (Farmer, Klein and Damoorgian, JJ., concur.)

Prior convictions must be proven by more than hearsay evidence for purposes of felony scoresheets:  Criminal law-Where, during resentencing hearing held to correct errors in guideline scoresheet, defense counsel refused to stipulate to new scoresheet because it included convictions that were based solely on hearsay printout, trial court was required to request from state competent corroborating evidence, and it erred in not doing so -- On remand, state should have opportunity to prove prior convictions by corroborating, non-hearsay evidence

DONALD BAKER, Appellant, vs. THE STATE OF FLORIDA ,33 Fla. L. Weekly D2861b
Where a defendant disputes prior convictions that are based only on hearsay evidence, the court must require the State to produce corroborating evidence. See Eutsey v. State, 383 So. 2d 219, 225 (Fla. 1980); Blanton v. State, 546 So. 2d 1181, 1183 (Fla. 5th DCA 1989); Davis v. State, 463 So. 2d 398, 399 (Fla. 1st DCA 1985). In the instant case, following defense counsel's refusal to stipulate to the hearsay-based scoresheet, the trial court was required to request from the State competent corroborating evidence. It erred in not doing so.

Search incident to a lawful arrest allows an officer to search the car of a suspect but does not allow the search of a trunk or bags in the trunk:    Search incident to arrest does not extend to trunk of car unless contraband is found in passenger compartment

JOHN YANCY NUNEZ, Appellant, v. STATE OF FLORIDA,33 Fla. Weekly D1914a
Although Officer Miller's initial search of the passenger compartment to find the car keys may have been permissible as a search incident to arrest, the record attached to the post conviction court's order does not reveal any evidence that would suggest t hat Officer Miller was authorized to open the trunk of the car and begin searching

DUI Manslaughter conviction overturned when court introduced evidence of drug metabolites in the blood of the defendant:     Trial court abused its discretion by denying defendant's motion in limine to prohibit testimony about presence of marijuana metabolite in defendant's blood where DUI prosecution was based on defendant's ingestion of Xanax and state conceded that marijuana metabolite in defendant's blood did not contribute to crash

JUSTIN ESTRICH, Appellant, v. STATE OF FLORIDA, 33 Fla. Weekly D2726

Probative value of evidence was substantially outweighed by danger of unfair prejudice, in that there was a significant risk that evidence of defendant's possession of an illegal drug would bolster state's contention that yet another drug impaired defendant's ability to drive.  Error to deny motion to sever misdemeanor marijuana possession charge from DUI manslaughter charge where contested issue was whether defendant was impaired by Xanax at time of accident, and according to evidence at trial, defendant's marijuana use did not contribute to his impairment -- Remanded with instructions to sever remaining charges and conduct new trials.

"Anti-Murder Act" signed by Governor on March 12, 2007 essentially prohibits pre-trial release of certain persons arrested for alleged violations of probation or community control or violent felony offenders of special concern. 3/12/07

After reviewing the Senate staff and the legal communities’ s analysis, Taracks Wetter and Associates agrees that there are several issues of interest with this new law. Initially, the act applies to certain persons who are on probation or community control who are arrested having "committed a qualifying offense on or after the effective date of the act". The first appearance judge is not in a position to make the determination that the accused "committed" anything, and should not do so, thus making the application of the act difficult at such a premature stage. Secondly, the act is also an ex post facto law in that § 921.0024(1)(b)(2) (section 5 of the Act) increases the penalty for a violation of probation for a previously committed offense by assessing additional score sheet points for a VOP or VOCC. Finally, the Act also fails to provide procedural due process, as the Act became effective upon becoming a law, when signed by the governor, prior to its being published. As such, proper notice has not been provided to the public of what conduct is prohibited.

The Last say in closing arguments in noncapital criminal cases goes to…..

For the last 150 years the last word before juries began deliberating has been a tactical advantage afforded to the defense if the only witness called is the defendant. The rational behind this rule is that the Defendant is up against the vast power of the state to take away his or her liberty interests. However, as of this fall, The Florida Legislature repealed Florida Rule of Criminal Procedure 3.250, potentially giving the advantage to the state to have the last word and rebut the defense’s closing argument. The rational for the change is that the state carries the burden of proof, and as such should have the last word with the jury. Apparently for years the theory has existed that criminal defense attorneys were strategically failing to call witness’ in their client’s cases so that they could have the final word with the jury, and as a result their clients were filing an excessive amount of “ineffective assistance of counsel” complaints. However, many judges, including Justice Peggy Quince fail to find any evidence that this type of practice has been going on. Justice Harry Lee Anstead asked, “Tell me what statistical evidence has been submitted that demonstrates to us that this rule has been abused and therefore you’ve got lawyers out there committing malpractice.” The prosecutors team purports other reasons as well for having the last word in their favor; they claim it is a matter of fairness given that Florida has the most liberal and open discovery system there is… Taracks Wetter and Associates not only finds these reasons to be converse to the principles of justice but a poor attempt to take away from an accused his final word in defending his position. At this point the decision is in the hands of the Florida Supreme Court Justices; given that the state has the power to charge an individual of a crime, then uses its vast resources to potentially convict and incarcerate him/her, it is in the interest of justice that the Defendant should, as he or she has had for 150 years, have the last word to defend their innocence.