The primary purpose of an autopsy is to shed light on the cause of the victim’s death, an issue not present in this case because Fonte admitted to stabbing the victim. While the toxicology report may have contravened the statement Fonte gave to the police, its primary purpose was not to advance Fonte’s criminal prosecution. Therefore, it was not testimonial in nature.

However, our supreme court made clear that PTSD evidence could not be used to support an otherwise inadmissible claim of diminished capacity. Id. at 477. Importantly, the Florida Supreme Court specifically commented that the trial court could prevent the risk of PTSD evidence being used improperly by giving a limiting jury instruction, and then they pointed out three of the five conditions which the trial court had imposed in Mizell for the admission of PTSD evidence in that case:

The trial court in Mizell, for example, set forth in its pretrial order five specific conditions that had to be met in order for the defense to introduce the PTSD evidence, including the defendant himself testifying and laying a predicate, the expert witness being allowed only to lay out the defendant’s background but not vouch for it, and the expert witness being prohibited from offering an opinion on the validity of the defendant’s self-defense claim. Id. at 477-78.

Smith addressed whether a substitute witness may testify at trial about a forensic report prepared by a non-testifying analyst as support for the testifying witness’s own independent opinion. Id. at 783. Smith recognized that, to implicate the Confrontation Clause, the out-of-court statement must be both (i) hearsay introduced to prove the truth of the matter asserted, and (ii) testimonial in nature. Id. at 800.

A Confrontation Clause violation did not occur in this case because the routine toxicology report – about which the chief medical examiner testified– was prepared as part of the autopsy’s standard protocol, and the autopsy was performed as part of the chief medical examiner’s statutory duty, a duty that arises when a person dies of criminal violence. See § 406.11(1)(a)1. & (2)(a), Fla. Stat. (2020).

In Banmah v. State, 87 So. 3d 101 (Fla. 3d DCA 2012), this Court ruled that a substitute witness could introduce an autopsy report prepared by a medical examiner without violating the Confrontation Clause because the autopsy report was not testimonial. Id. at 103; but see Rosario v. State, 175 So. 3d 843, 857 (Fla. 5th DCA 2015).

The primary purpose of an autopsy is to shed light on the cause of the victim’s death, an issue not present in this case because Fonte admitted to stabbing the victim. While the toxicology report may have contravened the statement Fonte gave to the police, its primary purpose was not to advance Fonte’s criminal prosecution. Therefore, it was not testimonial in nature.

A law enforcement officer does not need a special reason or an additional particularized basis to order a person to exit his vehicle. See generally id. at 491–95. Rather, without more, “an officer making a traffic stop may order [people] to get out of the car pending completion of the stop.” Maryland v. Wilson, 519 U.S. 408, 415 (1997). This is permitted because approaching a person seated inside a vehicle during a traffic stop is dangerous enough that a law enforcement officer always has a “safety reason” to order the person to exit. See Creller, 386 So. 3d at 492 (citing Pennsylvania v. Mimms, 434 U.S. 106, 109–11 (1977)). In other words, the “for officer safety reasons” is not a condition that the State needs to prove in every case. Rather, it is the justification for the straightforward rule that a law enforcement officer may order a person out of a car during a traffic stop. The exit order in this case was, therefore, lawful.

Generally, a court’s decision to instruct the jury on a particular matter is reviewed for abuse of discretion. See e.g., Hunt v. State, 428 So. 3d 43, 52 (Fla. 2025). And while a court may not give a jury instruction that has no factual basis in the record, see Kelsey v. State, 152 So. 3d 1266, 1267 (Fla. 1st DCA 2014), “[a] jury is likely to disregard an option simply unsupported by the evidence.” Reed v. State, 208 So. 3d 1231, 1235 (Fla. 1st DCA 2017) (quotation omitted). For this reason, giving a jury instruction that is not supported by any record evidence can be harmless error. Id.

The statute specifies that insanity, as it defines this term, is the exclusive method by which a criminal defendant can assert a defense based on mental condition. Specifically, “[m]ental infirmity, disease, or defect does not constitute a defense of insanity except as provided in this subsection.” Id. This language forecloses any other mental condition evidence as a defense to a criminal charge. Id.; see also, Chestnut v. State, 538 So. 2d 820 (Fla. 1989) (holding that “evidence of abnormal mental condition not constituting legal insanity” is not admissible “for purposes of proving either that accused could not or did not entertain the specific intent or state of mind essential to proof of the offense, in order to determine whether crime charged, or lesser degree thereof, was in fact committed”); Occhicone v. State, 570 So. 2d 902 (Fla. 1990); Evans v. State, 946 So. 2d 1 (Fla. 2006).

Gabriel disputes this conclusion, arguing that Perry v. State, 256 So. 3d 888 (Fla. 4th DCA 2018), supports his argument. In Perry, the appellant argued that giving the AMC standard instruction—an instruction that does nothing but accurately convey the law—“plays upon the stigma, fear and prejudice associated with the mentally ill.” Perry, 256 So. 3d at 893. The Fourth District apparently accepted this argument, holding that the AMC instruction was “the judge’s comment on the defendant” that “interfered with the jury’s determination of specific intent based on its evaluation of all the evidence in the case.” Id. The Perry court suggested the standard instruction was meant to remind jurors how to evaluate expert mental-health evidence, and without any such evidence, was “tantamount to a comment on the evidence, a suggestion that Perry suffered from ‘mental illness or an abnormal mental condition or diminished mental capacity.’” Id. at 895 (emphasis in original).

For three reasons, however, Perry has no application here. First, the evidence in this case supported the AMC instruction more than the evidence in Perry did. Instead of confusing or misleading the jury, as alleged in Perry, the AMC instruction here provided clarity by accurately informing them that AMC is not a defense in Florida. Accordingly, we find that a correct statement of the law on AMC did not mislead the jury in this case or “cause[] them to arrive at a conclusion that otherwise would not have been reached by them[.]” Holman Live Stock Co. v. Louisville & N.R. Co., 87 So. 750, 751 (Fla. 1921).

Second, we disagree with the suggestion that the AMC standard instruction should only be given when the defendant presents expert testimony of the defendant’s mental state. Instructions are appropriate when they relate to the evidence at trial. The fact that evidence of AMC generally cannot constitute a criminal defense applies regardless of how the evidence of AMC is presented.

Finally, we do not share the Fourth District’s concern that the AMC standard instruction constitutes a judicial comment on a defendant who may suffer from a mental illness but fails to meet the statutory definition of insanity. In our view, a jury should know that a statute, duly enacted by the Florida Legislature, prohibits evidence of “mental infirmity, disease, or defect” that does not rise to the level of insanity. § 775.027(1), Fla. Stat. A trial court instructing the jury on AMC is not commenting on the evidence; rather, the court is performing an essential function: telling the jury what the law is and what it is not.

The trial court refused to allow the defendant to cross-examine the witness on her DCF interview.

"The purpose of cross-examination includes the attempt '(1) to weaken, test, or demonstrate the impossibility of the testimony of the witness on direct examination and, (2) to impeach the credibility of the witness.' " Perez v. State, 949 So. 2d 363, 365 (Fla. 2d DCA 2007) (quoting Steinhorst v. State, 412 So. 2d 332, 337 (Fla. 1982)). A trial court's limitation of cross-examination is reviewed for an abuse of discretion. Lydecker v. State, 390 So. 3d 688, 692 (Fla. 2d DCA 2024) (citing McDuffie v. State, 970 So. 2d 312, 324 (Fla. 2007)). "A trial court's discretion in this area, however, is constrained by the rules of evidence and by recognition of a criminal defendant's Sixth Amendment rights." McDuffie, 970 So. 2d at 324 (citation omitted) (citing Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003)).

See Karls v. State, 412 So. 3d 137, 138 (Fla. 2d DCA 2025) ("Florida law is clear that 'where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its admission.' " (quoting Mateo v. State, 932 So. 2d 376, 379 (Fla. 2d DCA 2006))); Bertram v. State, 637 So. 2d 258, 260 (Fla. 2d DCA 1994) ("It is error for a trial court to prohibit cross-examination when the facts sought to be elicitated are 'germane to that witness' testimony and plausibly relevant to the theory of defense.' " (quoting Pace v. State, 596 So. 2d 1034, 1035 (Fla. 1992))); cf. Thorne v. State, 271 So. 3d 177, 184 (Fla. 1st DCA 2019) ("Here, the proffered evidence tended to prove the victim's motivation to fabricate her allegations, if the jury believed the victim did not accuse the defendant in the initial interview because the sexual activity did not occur. By excluding this evidence, the trial court prevented Appellant from 'presenting a full and fair defense.' This was error." (citation omitted) (quoting Lewis v. State, 591 So. 2d 922, 925 (Fla. 1991))).

See Gosciminski v. State, 132 So. 3d 678, 706 (Fla. 2013) ("Errors in limiting or restricting the scope of cross-examination are subject to harmless error analysis." (first citing Lukehart v. State, 776 So. 2d 906, 920 (Fla. 2000); and then citing Kramer v. State, 619 So. 2d 274, 276 (Fla. 1993))); State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986) ("The harmless error test . . . places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." (citing Chapman v. California, 386 U.S. 18, 24 (1967))).

The government does not argue that the warrant in this case was supported by probable cause. It argues only that the district court erred in declining to apply the good faith exception to the exclusionary rule. We will therefore assume, without deciding, that Detective Osborn’s affidavit did not establish probable cause to search Gibbs’s Synchronoss account.

We conduct a two-part analysis to determine whether the good faith exception permits us to consider evidence obtained in violation of the Fourth Amendment. First, we consider whether the facts fall into any of four limited circumstances where the good faith exception does not apply: (1) where the judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the issuing judge “wholly abandoned his judicial role”; (3) where the affidavit supporting the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) where, depending on the circumstances of the particular case, a warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Martin, 297 F.3d at 1313 (citation modified). Second, if none of those circumstances is present, we ask whether the officer reasonably relied on the search warrant. Morales, 987 F.3d at 974.

INDICIA OF PROBABLE CAUSE

An affidavit lacks indicia of probable cause when it provides “no hint” as to why police believed they would find incriminating evidence. Id. (quoting Morales, 987 F.3d at 976). That belief must be so “plainly incompetent” in light of the affidavit that “no officer of reasonable competence would have requested the warrant.” Id. (first quoting Messerschmidt v. Millender, 565 U.S. 535, 553 (2012); and then quoting Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986)).

The Supreme Court has cited these precedents as examples of search warrants that so clearly lacked probable cause that law enforcement officers could not have relied on them in good faith. See Leon, 468 U.S. at 915. In Nathanson, a warrant was issued upon the sworn allegation that the affiant “has cause to suspect and does believe that certain merchandise” was in a specified location. 290 U.S. at 44. The Court held that the warrant was improperly issued because “[m]ere affirmance of belief or suspicion is not enough” without “supporting facts or circumstances” to explain why the affiant had the belief. Id. at 47. In Aguilar, the affidavit stated that police “received reliable information from” an unidentified “credible person” that a dwelling contained heroin. 378 U.S. at 109. The Court held that the warrant was invalid because, “[a]lthough an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances” for an unidentified informant’s conclusion. Id. at 114.

REASONABLY RELIED ON THE WARRANT

Only if the circumstances of the warrant establish that a reasonably well-trained officer would know the resulting warrant was illegal despite the state judge’s authorization may we conclude that the detective acted unreasonably. Id.

Detective Osborn’s reliance on the warrant was neither entirely unreasonable nor “plainly incompetent.” McCall, 84 F.4th at 1325.

The Supreme Court and this Court have consistently held that an officer’s effort to receive approval from lawyers is indicative of objectively reasonable good faith reliance. Massachusetts v. Sheppard, 468 U.S. 981, 989 (1984); United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990); McCall, 84 F.4th at 1329.

Finally, there is no evidence that Detective Osborn intentionally omitted facts that would have defeated a finding of probable cause, provided information he knew was false, or otherwise engaged in misconduct. United States v. Gregory, 128 F.4th 1228, 1245 (11th Cir. 2025). “Assuming such evidence existed, [Gibbs] would have been free to present it, but he did not.” Robinson, 336 F.3d at 1297.

In this case, Miller presented testimony as to the bond factors, but the trial court did not consider any factors other than the nature of the crimes alleged and the fact that Miller would likely score prison time. The trial court did not weigh all of the appropriate bond factors and did not make specific findings about Miller's financial circumstances or whether he was a perceived flight risk or a threat to the community. See Dyson v. Campbell, 921 So. 2d 692, 693 (Fla. 1st DCA 2006) ("It does not follow, however, that where a defendant testifies that he cannot meet a given bond amount, that bond is per se excessive or unreasonable. In addition to a defendant's financial resources, a trial court must consider a host of other factors in determining whether to release the defendant on bail or other conditions, and if so, what bail or other conditions are appropriate."). Here, the trial court simply found that the bond amounts were "more than reasonable, given the nature of the charges involved."

[W]e have concluded that evidence of the defendant's failure to respond to knocking was not legally sufficient to establish that the defendant was not at home. See, e.g., Kegler v. State, 313 So. 3d 824, 826 (Fla. 2d DCA 2021) (concluding that the evidence was insufficient when it established that one officer had "r[u]ng the doorbell and knocked '[a]t least three times' " on the door of the defendant's apartment at 5:37 a.m. and another officer had called the defendant's cellphone (second alteration in original)); Edwards v. State, 296 So. 3d 986, 988 (Fla. 2d DCA 2020) (concluding that the evidence was insufficient when it established that the officer had "knocked and called into the house only from the front door" in the early hours of the morning and had failed to rouse anyone in the house); Brown v. State, 280 So. 3d 1117, 1118 (Fla. 2d DCA 2019) (concluding that the evidence was insufficient when it established that the officer had called the defendant's cell phone and "knocked on his apartment door 'several times very hard' " at 6:50 a.m. but received no answer); Brown v. State, 813 So. 2d 202, 203 (Fla. 2d DCA 2002) (concluding that the evidence was insufficient when it established that the officer had knocked on the door of the defendant's home with her flashlight at 2:00 a.m. and had heard the television playing inside, but no lights had been on and no one had answered the door). We see no factual basis for departing from that line of cases here. The evidence established that despite there having been a car in the carport and a scooter in the yard, Officer Monetti had received no answer when she had knocked on the front door and an adjacent window of the house where Smith lived and that she had received no answer when she had tried to call him.4 Neither officer testified as to how long they were at the house, how many times Officer Monetti had knocked, how hard she had knocked, or how loudly she had called his name. Neither officer knew where Smith's room was located in relation to the front door.5 There is no basis to infer that Smith even would have heard the officers, cf. Dietz v. State, 534 So. 2d 808, 809 (Fla. 2d DCA 1988) (concluding that the evidence was sufficient when it established that the officer had "knocked on the front door, knocked on the windows on all sides of the house, and knocked on the side door" at 4:20 p.m.); Hurst v. State, 941 So. 2d 1252, 1253 (Fla. 1st DCA 2006) (concluding that the evidence was sufficient when the officer knocked on the door and side of the defendant's trailer, "where she knew appellant's bedroom to be," with such force and persistence that it even woke the neighbors), let alone to infer further that because he did not respond to them, he must not have been home and was instead willfully and substantially violating his curfew.

[T]he trial court excluded evidence that about a month before the shooting, the group of boys from whom Wellons claimed he was running had shot 25 bullets into the residence where Wellons lived. The defense sought to admit the evidence to explain why Wellons ran from the beach. The trial court excluded the evidence based on a determination that counsel had sought to admit the evidence as reverse Williams rule evidence, finding that the two episodes were not similar enough to qualify as reverse Williams rule evidence.

“Every defendant is entitled to present any evidence that tends to support the defendant’s theory of defense.” Edwards v. State, 39 So. 3d 447, 448 (Fla. 4th DCA 2010). “[W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.

Our courts have based reversal on the exclusion of evidence that supports the defense theory. See Mateo v. State, 932 So. 2d 376, 380 (Fla. 2d DCA 2006) (reversing where “Mateo’s theory of defense was that the jail officials were biased against him because he had been vocal about jail conditions in the past and that they made up [allegations] to cover up their misconduct,” and the excluded evidence “does provide some evidence” of a “pre-existing animosity between Mateo and the jail officials”); Fratcher v. State, 621 So. 2d 525, 526 (Fla. 4th DCA 1993) (reversing exclusion of a defense witness as a discovery sanction where, among other things, the excluded testimony was relevant to the defense theory, the crux of which “was defendant’s explanation for his departure from the drugstore and subsequent evasions from pursuing officers”).

At trial, the defendant testified that he had five prior felony convictions. His defense attorney then asked whether he had taken any of those cases to trial. The defendant responded that he did not and was only taking this case to trial because he did not murder anyone. The State then sought to elicit testimony from the defendant about the nature of his five prior convictions…

On appeal, the State concedes that the circuit court erred in finding the defendant had opened the door to questions about the nature of his prior convictions,3 citing our holding in Ross v. State, 913 So. 2d 1184 (Fla. 4th DCA 2005), and the Third District’s holding in Hierro v. State, 608 So. 2d 912 (Fla. 3d DCA 1992). However, the State argues that the error was harmless because the defendant confessed on the stand to the charged crimes. The defendant disagrees, asserting that the testimony on the specific nature of his prior convictions likely influenced the jury because the testimony tended to show that he had a propensity for crime. Indeed, “the reason that convictions for prior felonies are such effective impeachment is that the mere fact that a defendant has been convicted of a crime impacts his believability.” Barcomb v. State, 68 So. 3d 412, 416 (Fla. 4th DCA 2011).

In order to prove that a trial court’s error was harmless, “the [S]tate, as the beneficiary of the error, [must] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

"[T]he court may in its discretion, and shall on good cause," permit a no contest plea to be withdrawn at any time before sentencing. We have held that "good cause" exists "when the defendant's plea was 'infected by misapprehension, undue persuasion, ignorance, or was entered by one not competent to know its consequence or that it was otherwise involuntary, or that the ends of justice would be served by withdrawal of such plea.' " Lehmkuhle v. State, 20 So. 3d 971, 973 (Fla. 2d DCA 2009) (quoting Onnestad v. State, 404 So. 2d 403, 405 (Fla. 5th DCA 1981)). We have held repeatedly that entry of a plea relying on mistaken advice constitutes good cause and supports withdrawal of a plea. See, e.g., Crane v. State, 69 So. 3d 357, 359 (Fla. 2d DCA 2011) (quoting Johnson v. State, 971 So. 2d 212, 215 (Fla. 4th DCA 2008)); Cornett v. State, 922 So. 2d 297, 298-99 (Fla. 2d DCA 2006); Shell v. State, 501 So. 2d 1334, 1336 (Fla. 2d DCA 1987); Trenary v. State, 453 So. 2d 1132, 1133-34 (Fla. 2d DCA 1984). The Fifth District has held that failing to advise a defendant of a possible motion to suppress incriminating statements to police is good cause for withdrawing a plea before sentencing. Nicol v. State, 892 So. 2d 1169, 1172 (Fla. 5th DCA 2005).

[T]he Fifth District stated that the inquiry on a motion to withdraw a plea should have focused on "whether the defendant had demonstrated that his guilty plea was infected by misapprehension or ignorance" and not the likelihood of success on the motion to suppress. Id. at 1172. As the Fifth District concluded, the trial court there should have granted the defendant's motion to withdraw the plea because trial counsel never discussed a suppression motion with the defendant before he entered the plea and the defendant would not have entered a plea had he been advised that there was a basis to challenge the evidence. Id.

The trial court's imposition of a three-year mandatory minimum term under section 775.087(2)(a)(1), Florida Statutes (2024), was error despite the jury's verdict finding him in actual possession of the firearm, where there was no evidence that Mr. Hamilton was "carrying [the firearm] on [his] person" or that the firearm was "within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense." See § 775.087(4).

The trial court properly denied Mr. Hamilton's motion for judgment of acquittal where there was sufficient evidence to support a conviction for possession of a firearm by a convicted felon under section 790.23(1), since the firearm was found wedged between the driver's seat and console of the vehicle driven by Mr. Hamilton. See Hunter v. State, 914 So. 2d 985, 986 (Fla. 4th DCA 2005) ("Possession may be actual or constructive, and constructive possession exists where a person, without physically possessing a firearm, knows of its presence on the premises and has the ability to maintain control over it.").

In order for the enhancement provision of section 775.087(2)(a)(1) to apply, the State must prove, and the jury must find, actual possession. See Bundrage v. State, 814 So. 2d 1133, 1134 (Fla. 2d DCA 2002). Section 775.087(2)(a)1 provides, in pertinent part, "[A] person who is convicted for possession of a firearm by a felon . . . shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a 'firearm' . . . during the commission of the offense." However, unlike section 790.23(1), section 775.087(4) defines "possession" as "carrying [the firearm] on the person," or "possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense." (Emphasis added.)

The State presented no evidence that Mr. Hamilton was carrying the firearm on his person. Nor did the State offer any evidence that the firearm was within Mr. Hamilton's "immediate physical reach with ready access with the intent to use the firearm during the commission of the offense."

Because no factual basis exists for the application of the three-year mandatory minimum enhancement, we affirm the conviction for a felon in possession of a firearm but reverse the imposition of the three-year mandatory minimum sentence. See Gallentine v. State, 55 So. 3d 728 (Fla. 2d DCA 2011); Williams v. State, 997 So. 2d 486, 487 (Fla. 2d DCA 2008); Washington v. State, 876 So. 2d 1242, 1243 (Fla. 2d DCA 2004); Rock v. State, 392 So. 3d 791, 792-93 (Fla. 4th DCA 2024); Redding v. State, 996 So. 2d 875, 876 (Fla. 5th DCA 2008).

See Murphy v. State, 273 So. 3d 1147, 1147 (Fla. 2d DCA 2019) ("When the defense challenges prior convictions and the accuracy of the scoresheet, the [S]tate has the burden of producing competent evidence of the disputed conviction." (alteration in original) (quoting DeGeso v. State, 771 So. 2d 1264, 1265 (Fla. 2d DCA 2000))); see also, e.g., Sanders v. State, 333 So. 3d 235, 235–36 (Fla. 4th DCA 2022) ("Having challenged multiple prior convictions included on his scoresheet in his amended rule 3.800(b) motion, Appellant correctly argues that the State was required to introduce competent evidence in support of its scoring of Appellant's prior record and failed to do so.")… Once contested, the State was required to provide competent evidence that Defendant had committed these crimes.").

NOTE

This was a violation of probation case.

The State asked Pollock whether he told other members of the group—not Vallia—to avoid talking to anyone about the incident. Pollock responded: “[M]y dad is in law enforcement. So I’ve always been taught that you shouldn’t talk to anyone without a lawyer present.” Vallia objected, arguing that the remark impermissibly commented on Vallia’s right to remain silent.

Vallia principally relies on State v. Hoggins, where the Florida Supreme Court held that the State improperly impeached a defendant by questioning him about his failure to provide law enforcement with the same exculpatory account he later presented at trial and by emphasizing that omission in closing argument. 718 So. 2d 761, 772 (Fla. 1998). As the Court concluded, protection against improper impeachment extends to post-arrest, preMiranda* silence because the absence of Miranda warnings does not diminish the constitutional right to remain silent. Id. at 770. Vallia also cites State v. Smith, 573 So. 2d 306, 316 (Fla. 1990), for the proposition that the State may not circumvent this rule by eliciting evidence concerning what a defendant failed to say when speaking with law enforcement.

But Pollock’s comment is distinguishable from the exchanges in those cases. Here, the prosecutor’s questions were directed at Pollock’s communications with third parties. The prosecutor did not ask whether Vallia invoked his right to remain silent, refused to speak with police, or requested counsel. Further, Vallia had testified during direct examination that he did not contact law enforcement after the shooting and explained his reasons for not doing so before Pollock testified. Thus, we conclude the trial court did not err in denying Vallia’s first motion for mistrial.

“[T]here is no constitutional or statutory right to have a trial court impose a sentence of one length or another within an otherwise properly determined range[,]” “a bald assertion that the trial court should have imposed a sentence different from the one it did is not a cognizable claim for appellate relief.” Gazoombi, 406 So. 3d at 375, 376–77 (emphasis in original). In other words, while a court is obligated to provide a sentencing process and decision that comports with statutory and constitutional requirements, it is never obligated to impose a departure sentence. Put another way, a mitigating circumstance does not create an entitlement to a departure from the lowest permissible sentence. Therefore, a defendant claiming that the court “should have” imposed a departure sentence and erred by failing to do so cannot establish reversible error.

[CRIMINAL MISCHIEF CONVICTION]

That was the situation which Paul Phang—a rideshare driver— encountered after he had dropped off a customer inside of a gated residential community. When Paul attempted to exit the sideways-rolling metal gate at two o’clock in the morning, the gate would not open. Paul called the posted phone number four times over a sixteen-minute period, but the phone rang repeatedly with no answer.

Rather than calling the local police’s non-emergency number, Paul literally took matters into his own hands.

Paul got out of his car and, using his bare hands, began pushing and pulling the entrance gate forward, causing the gate’s sideways-pointing wheel to repeatedly become stuck in the asphalt.

To the extent Paul was attempting to describe the legal justification or excuse of “duress” or “necessity,” Paul did not request the circuit court to provide the jury with any such defense instruction, perhaps because the standard jury instruction makes clear the defense would not apply here[.]

A. Consent

Courts have consistently held that where actual consent exists, no need exists to rely on Florida’s implied consent laws or to obtain a warrant. Robertson v. State, 604 So. 2d 783, 790 (Fla. 1992) (“If the defendant has consented to the test, or consent is implied on some basis independent of the DUI laws, then the blood test falls wholly outside the scope of the implied consent law.”); State v. Meyers, 261 So. 3d 573, 574 (Fla. 4th DCA 2018) (“The Florida Supreme Court has explained . . . that if a defendant expressly consents to a blood test, ‘then the blood test falls wholly outside the scope of the implied consent law.’” (quoting Robertson, 604 So. 2d at 790)); State v. Liles, 191 So. 3d 484, 487 (Fla. 5th DCA 2016) (“One of the well-established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent.”).

B. Exigent Circumstances

Exigent circumstances is another such exception. But the Court made clear that “while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, . . . it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” McNeely, 569 U.S. at 156.

C. Search Incident to Arrest

Most recently, the Court held that “a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving.” Birchfield, 579 U.S. at 476. The Court further held “that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id. at 477. In doing so, the Court disavowed that statutory “implied consent” can serve as a substitute for actual consent or a warrant.

D. Warrant Requirement

These recent decisions lead to but one conclusion. Unless a motorist gives actual consent or a court determines under the totality of the circumstances that exigent circumstances exist, a warrant must be obtained for a blood draw to satisfy the Fourth Amendment. See Liles, 191 So. 3d at 488. This is true regardless of a state’s implied consent laws.

Following McNeely, we must read section 316.1933, Florida Statutes, as a directive to law enforcement to obtain blood samples in serious and deadly crashes when probable cause exists to suggest impaired driving. To comply with McNeely, the statute must assume the blood draw will be obtained with a warrant, absent consent or proof of exigent circumstances. Id. at 489.

E. Implied Consent Laws

In State v. Marshall, 418 So. 3d 647, 650–51 (Fla. 4th DCA 2025), we reviewed Florida’s implied consent laws. Those laws provide statutory authority for breath, urine, and blood testing under specified circumstances and provide administrative penalties for a motorist’s refusal to comply. See §§ 316.1932–.1933, Fla. Stat. (2024). Those laws, however, are subject to the constitutional safeguards outlined above and addressed by the United States Supreme Court in McNeely and Birchfield.

[W]e conclude the county court did not err in overruling the defendant’s objection to the state’s rebuttal comment. The fact that the defendant had refused to perform roadside exercises or provide a breath sample had been properly admitted into evidence. See § 316.1932(1)(a)1.a., Fla. Stat. (2024) (“The refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer ... is admissible into evidence in any criminal proceeding.”). Thus, the state’s reference to those refusals was a proper comment on both the evidence and the defendant’s consciousness of guilt.

While the state’s rebuttal should have been more careful to avoid using the words “he could have shown us” before referring to the defendant’s refusals to perform roadside exercises or provide a breath sample, the full context of that comment is important. Immediately after making that comment, the state permissibly explained how those refusals demonstrated the defendant’s consciousness of guilt. As our sister court recently observed in Osorio v. State, 428 So. 3d 220 (Fla. 3d DCA 2026)[.]

The depraved mind element is what separates second-degree murder from manslaughter, and it requires evidence of ill will, hatred, spite, or an evil intent. Porter v. State, 384 So. 3d 839, 841–42 (Fla. 1st DCA 2024); Perez v. State, 187 So. 3d 1279, 1282 (Fla. 1st DCA 2016). When the evidence shows no more than an impulsive overreaction to an attack or a perceived threat, it supports a conviction for manslaughter, not second degree murder. Perez, 187 So. 3d at 1282.

Ford illustrates the kind of conduct—prior enmity, initiation, and consciousness of guilt—that supports a finding of a depraved mind. And all these factors are absent from this record.

Our conclusion accords with a settled line of decisions reducing second-degree murder convictions to manslaughter where a defendant used excessive force in response to a sudden attack by an unarmed aggressor, absent any history of enmity. See Sandhaus v. State, 200 So. 3d 112, 116 (Fla. 5th DCA 2016); Dorsey v. State, 74 So. 3d 521, 524–25 (Fla. 4th DCA 2011); Poole v. State, 30 So. 3d 696, 698–99 (Fla. 2d DCA 2010); Rayl v. State, 765 So.2d 917, 919–20 (Fla. 2d DCA 2000). In each case, the defendant armed himself against an unarmed victim and used lethal force in the heat of a confrontation he did not provoke, and in each case the court held that the evidence supported manslaughter rather than second-degree murder. The State offered no basis to distinguish these decisions, and we find none.

Because the State did not present legally sufficient evidence from which a rational jury could find that Peoples acted with a depraved mind, the conviction for second-degree murder cannot stand. The evidence does, however, support a conviction for manslaughter with a firearm. See § 782.07, Fla. Stat. The proper remedy is to reverse the conviction and remand for entry of judgment and resentencing on the lesser included offense. See Dorsey, 74 So. 3d at 525.

see also Duty v. State, 322 So. 3d 770, 772 (Fla. 1st DCA 2021) (“Unlike the strategic decision to call a witness to testify at trial, the failure to reasonably investigate and locate witnesses can often serve as a colorable claim of ineffective assistance of counsel.” (citation omitted)); Yarbrough v. State, 871 So. 2d 1026, 1031 (Fla. 1st DCA 2004) (“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” (citation modified)). On remand, the postconviction court is directed to either grant Jackson leave to amend his claim, grant an evidentiary hearing on the claim, or attach the portions of the record that would conclusively refute this claim. See Gonsalez v. State, 359 So. 3d 870, 871–72 (Fla. 5th DCA 2023); Smith v. State, 150 So. 3d 1205, 1206–07 (Fla. 5th DCA 2014).