The police officer testified that he and a fellow officer, both on-duty and in uniform, were present when Scott was questioned in the store’s locked holding cell. The officer testified that, until Scott signed a promise to appear form, Scott was not free to leave. On our careful review of the live testimony and the video evidence introduced at the suppression hearing, we agree with the trial court’s findings that, when Scott was confined in the store’s locked holding cell, Scott was in police custody and interrogated by the police. Thus, the trial court properly suppressed Scott’s statements to the police.

Further, we agree with the trial court that the police – who, as plainly reflected in the video evidence, actively assisted in the interrogation by asking questions, assisted in the loss prevention employee’s preparation of the acknowledgment form and oversaw Scott’s signing the form – were more than mere observers, such that Miranda warnings were required here. Cf. State v. J.T.D., 851 So. 2d 793, 796 (Fla. 2d DCA 2003) (finding Miranda warning not required where the officer was “merely present during the [school official’s] interview, in and out of the room, and asked no questions”).

The State met the Daubert criteria for reliability. See United States v. Gissantaner, 990 F.3d 457, 463 (6th Cir. 2021) (“Four inquiries guide the reliability analysis: Is the technique testable? Has it been subject to peer review? What is the error rate and are there standards for lowering it? Is the technique generally accepted in the relevant scientific community?”); Kemp v. State, 280 So. 3d 81, 89 (Fla. 4th DCA 2019); § 90.702, Fla. Stat. (2024). We conclude that the trial court did not abuse its discretion in admitting the State’s DNA evidence.

In Peterson, the Second District simply recited section 316.089(1), then pointed out that it had “refused to find a violation of this statute where a driver’s failure to maintain a single lane did not endanger himself or herself or anyone else.” 264 So. 3d at 1188 (citing Crooks v. State, 710 So. 2d 1041, 1043 (Fla. 2d DCA 1998)). The court held that, “because there was no evidence that Peterson’s crossing the white line on two occasions created a reasonable safety concern, . . . the traffic stop could not be justified on [the] basis” of a section 316.089(1) violation. Id. at 1189.

In contrast, the Howard… The court held that, because the testimony showed that Howard was “driving for at least 15 seconds between both the center and the right lane[, r]egardless of whether Howard affected any traffic or endangered anyone, [the] testimony established that the vehicle was not driven as nearly as practicable within a single lane.” Id. Therefore, the court determined that the traffic stop was validly based on a violation of section 316.089(1). Id.

After thoughtfully considering both opinions, we agree with Howard. Therefore, we conclude that, because Detective Hammond’s testimony was sufficient to show that Perez did not drive his vehicle as nearly as practicable entirely within a single lane, the trial court correctly found that the traffic stop was validly based on a section 316.089(1) violation. Furthermore, we certify this decision to be in direct conflict with Peterson.

Although neither a ruling nor stipulation was secured as to the dispositive nature of the motion to suppress, since Appellant was charged with DUI, considering the facts of this case, the motion to suppress the stop was necessarily dispositive. See generally Hawk v. State, 848 So. 2d 475, 478 (5th DCA 2003) (“In the instant case, the State did not stipulate the suppression order was dispositive, and the trial court made no such finding. Regardless . . . under the facts of this case this court would not have held the lack of a finding of dispositiveness against Appellant.”).

NOTE

Courts have held that you need the finding that the issue is dispositive and in addition to finding the issue dispositive expressly preserve the issue for appeal. See Nugent.

Appellant points out that the officer radioed for the K-9 team approximately four (4) minutes after the stop was initiated, the K-9 arrived very quickly thereafter; however, a total of ten (10) minutes and twenty (20) seconds elapsed post-stop before the K-9 exterior sniff of the car began.

“It is well established that the use of a narcotics dog to sniff a vehicle does not constitute a search and may be conducted during a consensual encounter or traffic stop.” Whitfield v. State, 33 So. 3d 787, 790 (Fla. 5th DCA 2010) (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)). “However, absent an articulable suspicion of criminal activity, the time an officer takes to issue a citation should last no longer than is necessary to make any required license or registration checks and to write the citation.” Id. (citing Maxwell v. State, 785 So. 2d 1277 (Fla. 5th DCA 2001) (additional citations omitted)).2 “[T]he canine search of the exterior of the vehicle must be completed within the time required to issue a citation.” Id. (citing Eldridge v. State, 817 So. 2d 884, 887 (Fla. 5th DCA 2002)).

NOTE

It appears the court used the time it took to start the sniff rather than the time it took the dog to alert on the car.

Gingery’s argument that the trial court reversibly erred in prohibiting him from consulting with his lawyer during a five-minute recess taken while Gingery was testifying in his own defense.

In 1980, one of our sister courts was tasked with deciding whether a trial court had the discretion to prohibit a defendant, who was in the midst of cross-examination, from consulting with his attorney during a fifteen-minute break. Bova v. State, 392 So. 2d 950, 953 (Fla. 4th DCA 1980). While being cross-examined, the defendant responded that he was confused by a question being asked; and he requested a ten-minute break. Id.

This prompted defense counsel to request a fifteen-minute recess, which the trial court granted. Id. The court then instructed the defendant not to talk with anyone about the case during the recess. Id. Defense counsel objected, citing to both his client’s Sixth Amendment right under the United States Constitution to effective assistance of counsel “and his correlative rights under the Florida Constitution.” Id. The trial court adhered to its prior ruling, stating, “I don’t think at this time that you have a right to confer with your client until he has testified as to the rest of his cross examination.” Id.

The Fourth District Court of Appeal affirmed the defendant’s first-degree murder conviction and sentence. Id. at 951. On the attorney-client consultation issue, the court wrote that it was specifically declining to hold that the fifteen-minute restraint imposed by the trial court constituted an abuse of discretion “or was an impermissible impairment of the defendant’s Sixth Amendment right to assistance of counsel, or a violation of [the] defendant’s correlative rights under Article I, Section 16 of the Florida Constitution.” Id. at 953–54.

[T]he leading case of Geders v. United States, 425 U.S. 80 (1976), in which the United States Supreme Court held that a defendant’s Sixth Amendment rights were violated by the trial court’s restriction against attorney-client consultation during a seventeen-hour overnight recess. Bova I, 392 So. 2d at 955. Crucial to the decision in Geders were the duration and the customary use of the overnight recess, with the Court observing that counsel may need to use the overnight recess to discuss tactical decisions and strategies with the defendant or to otherwise discuss the significance of the day’s events. Id. (citing Geders, 425 U.S. at 88).

To prevail on a Brady violation, a defendant must show that “(1) the evidence was either exculpatory or impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and (3) because the evidence was material, the defendant was prejudiced.” Sheppard, 338 So. 3d at 827 (quoting Duckett, 231 So. 3d at 400). For a Giglio violation, a defendant must show that “(1) the testimony given was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material.” Id. (quoting Duckett, 231 So. 3d at 400). “Unlike a Brady claim for which the defendant bears the burden of proof as to the materiality prong, ‘[u]nder Giglio, once a defendant has established that the prosecutor knowingly presented false testimony at trial, the state bears the burden to show that the false evidence was not material.’ ” Id. (alteration in original) (quoting Guzman v. State, 868 So. 2d 498, 507 (Fla. 2003)).

“To succeed on a claim of newly discovered evidence, [a] defendant must establish [the] two prongs” from Jones v. State (Jones II), 709 So. 2d 512, 521 (Fla. 1998). Sheppard, 338 So. 3d at 825. “First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence.” Calhoun v. State, 376 So. 3d 583, 585 (Fla. 2023) (quoting Marek, 14 So. 3d at 990). Second, “[w]hen a claim of newly discovered evidence is based upon the recantation of testimony by a witness for the prosecution, the second prong of Jones II is met only where the defendant first establishes that the recanted testimony is truthful.” Spann v. State, 91 So. 3d 812, 822 (Fla. 2012) (citing Davis v. State, 26 So. 3d 519, 526 (Fla. 2009)). If the recanted testimony is truthful, then the court must determine “whether the newly discovered evidence ‘would probably yield a less severe sentence’ on resentencing.” Brown II, 304 So. 3d at 273 (quoting Swafford v. State, 125 So. 3d 760, 767 (Fla. 2013)).

1. Timeliness

“Any motion to vacate judgment of conviction and sentence of death must be filed by the defendant within 1 year after the judgment and sentence become final.” Fla. R. Crim. P. 3.851(d)(1). Among the enumerated exceptions to this one-year requirement is a claim of newly discovered evidence, which must meet the first prong of Jones II by alleging that “the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence.” Fla. R. Crim. P. 3.851(d)(2)(A).

Davis, 26 So. 3d at 528 (holding that recanted testimony is “discovered” when “the witness chooses to recant” (emphasis omitted)).

See Burns v. State, 858 So. 2d 1229, 1230 (Fla. 1st DCA 2003) (“Even though the appellant knew at trial that the codefendant was lying, the appellant could not have gotten the codefendant to admit that he was lying earlier, and thus the recantation is newly discovered evidence that could not have been obtained earlier with due diligence.”).

Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (“Moreover, we consistently have stated that proper preservation entails three components. First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, ‘[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’” (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (“Except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court.”))); accord Rodriguez v. State, 609 So. 2d 493, 499 (Fla. 1992) (stating that “the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal”).

The private-search doctrine comprises two corollary principles. First, and most obviously, the Fourth Amendment “is wholly inapplicable to a search or a seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.” United States v. Castaneda, 997 F.3d 1318, 1327 (11th Cir. 2021) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). And second, so long as any ensuing search by government officers doesn’t “exceed[] the scope of the private search,” no Fourth Amendment issue arises. Jacobsen, 466 U.S. at 115. Accordingly, the key question in many private-search cases—including this one—is whether the government’s search revealed anything materially more or different than what the private party had already discovered.

“A warrantless search of a home is ‘per se unreasonable under the Fourth Amendment . . . and Article I, section 12, of the Florida Constitution, subject to a few specifically established and well-delineated exceptions.’ “ State v. Fultz, 189 So. 3d 155, 158 (Fla. 2d DCA 2016) (quoting State v. Boyd, 615 So. 2d 786, 788 (Fla. 2d DCA 1993)). “Exigent circumstances are one such exception that may justify a warrantless search, but the police must have an objectively reasonable basis to support their actions.” Id. (quoting Vanslyke v. State, 936 So. 2d 1218, 1221-22 (Fla. 2d DCA 2006)). “Whether sufficient exigent circumstances exist is evaluated based on the totality of the circumstances.” Seibert, 923 So. 2d at 468-69 (citing Zeigler v. State, 402 So. 2d 365, 371 (Fla. 1981)). “The exigent circumstances exception is not a shortcut by which police may circumvent the requirement of a search warrant.” Fultz, 276 So. 3d at 158, 160 (stating that the officers did not have an objectively reasonable belief that immediate assistance was needed where they were presented with no concerns that anyone was in distress or possible evidence of criminal activity); see also Wheeler v. State, 956 So. 2d 517, 521 (Fla. 2d DCA 2007) (stating that the responding officers to a battery report “did not have a reasonable basis to believe that a grave emergency existed” where they saw nothing “suspicious about the residence itself” nor testified “that there was any indication from inside the residence that someone within was in need of their assistance”).

Katz v. United States, 389 U. S. 347, 351 (1967), recognized that “the Fourth Amendment protects people, not places…” then governmental “intrusion into that private sphere generally qualifies as a search.” Ibid.

Contrary to the Government’s view, an individual has a legitimate expectation of privacy in the information Location History collects about his cell phone’s—meaning his own—movements. The police invade that expectation, and thus conduct a search, when they acquire that information, even though for only a limited period of time and even though via a third-party tech company.

If that is so, accessing Location History must also be a search—even if for only two hours—because that data can far more reliably show someone within a home (indeed, on a specific floor). The Government replies with an odd argument. It thinks that “tracking [someone] into a private residence”—yes, even for two hours—would “probably” be a search, but tells us not to worry because Chatrie did not go home. Tr. of Oral Arg. 98, 134. That approach, however, is foreign to the way the Fourth Amendment works. Whether something is a search does not depend on what it finds. See Di Re, 332 U. S., at 595 (“[A] search is not to be made legal by what it turns up. In law it is good or bad when it starts”). An officer, after all, cannot know the fruits of a given surveillance in advance. The surveillance must be either a search or not regardless.

For all those reasons, we hold that police officers invade a cell-phone user’s reasonable expectation of privacy when they access his Location History. It does not matter if the time period scrutinized was only two hours. Nor does it matter that the materials obtained were handed over by a third-party tech company. When the government “accesses historical cell phone” location information—Location History as much as CSLI—it “conducts a search under the Fourth Amendment.” Carpenter, 585 U. S., at 300.

We have previously noted the tension between Carr’s holding and section 90.104(1), Florida Statutes. See Xolo v. State, 396 So. 3d 416, 418–19 (Fla. 6th DCA 2024). By its plain language, the statute did not require Lewis to renew his objection to an unsuccessful motion in limine resulting in the admission of the custodial interview at trial. See § 90.104(1) (“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”). But Carr required Lewis to renew his objection at trial to preserve the argument for appeal. See 156 So. 3d at 1062 (explaining that to raise error on appeal, contemporaneous objection must be made at trial level when alleged error occurred, and counsel’s “no objection” statement at trial acted to abandon pretrial objections to admissibility). We have also observed that Carr imposes a higher obligation on trial counsel than the statute requires. See Xolo, 396 So. 3d at 419. But because Carr binds us…

Under Brady, the State is required to disclose material information within its possession or control that is favorable to the defense. Walton v. State, 3 So. 3d 1000, 1009 (Fla. 2009) (citing Mordenti v. State, 894 So. 2d 161, 168 (Fla. 2004)). To establish a prima facie case under Brady, Rhodes must show “that (1) either exculpatory or impeaching evidence, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.” Davis v. State, 26 So. 3d 519, 531 (Fla. 2009).

We have also long observed that the testimony of a recanting witness is, “as a general matter, ‘exceedingly unreliable.’ ” Mosley v. State, 209 So. 3d 1248, 1263 (Fla. 2016) (citing Spann v. State, 91 So. 3d 812, 816 (Fla. 2012)); see also Archer v. State, 934 So. 2d 1187, 1199 (Fla. 2006) (affirming denial of postconviction relief “because a recantation which is not credible would not produce an acquittal or a life sentence on retrial”).

To establish a Giglio claim, the defense must prove that (1) the State presented or failed to correct false testimony, (2) the State knew the testimony was false, and (3) the false evidence was material. Guzman v. State (Guzman II), 941 So. 2d 1045, 1050 (Fla. 2006) (quoting Guzman I, 868 So. 2d at 505). Under Giglio, the defense must first establish that the State knowingly presented or failed to correct false testimony. Guzman I, 868 So. 2d at 507. It is then the State’s burden to establish “beyond a reasonable doubt that the knowing use of perjured testimony, or failure to disclose the perjury once it was discovered, did not affect the verdict.” Guzman II, 941 So. 2d at 1050-51.

We find the statute in this case to be facially unconstitutional as to 18- to 20-year-olds because “no set of circumstances exists” under this statute that would allow 18- to 20-yearolds to carry a concealed firearm.

A key clause in the Second Amendment is that the people’s right to keep and bear arms shall not be “infringed.” The definition of “infringe” at the time of the founding is “[t]o violate; to break laws or contracts” or “[t]o destroy; to hinder.” Samuel Johnson, A Dictionary of the English Language (1773); see also William Perry, The Royal Standard English Dictionary (1788) (defining “infringe” as “to violate, de[s]troy, hinder”). Because infringement could mean just hindering, total destruction of the right was not required. Merely hindering that right would be sufficient to constitute an infringement. In this case, the inability of law-abiding adults aged 18 to 20 to use concealed carry available to all law-abiding adults 21 and older would certainly classify as a hindrance and, as such, an infringement of their Second Amendment rights.

As to historical method, the Supreme Court “generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791.” Id. at 37. By reviewing the historical analogues, the Court determined that “the historical record . . . [did] not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense.” Id. at 38. However, states could, as to all law-abiding adults, “eliminate one kind of public carry— concealed carry—so long as they left open the option to carry openly.” Id. at 59. The Supreme Court concluded, as to the adult law-abiding applicants for an unrestricted license to carry a firearm, that the government had “not met their burden to identify an American tradition justifying the . . . proper-cause requirement” utilized by the State of New York. Id. at 70.

Federal circuit courts have also specifically referenced those aged 18 to 20 as being part of “the people.” Worth, 108 F.4th at 689; Lara, 125 F.4th at 438; Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 127 F.4th 583, 590-95 (5th Cir. 2025). Even when the Eleventh Circuit upheld restrictions on the purchase of firearms, it still found 18- to 20-year-olds to be part of “the people.” See Nat’l Rifle Ass’n v. Bondi, 133 F.4th 1108, 1130 (11th Cir. 2025) (en banc).

In Worth, the Eighth Circuit concluded: Ordinary, law-abiding, adult citizens that are 18 to 20-yearolds are members of the people because: (1) they are members of the political community under Heller’s “political community” definition; (2) the people has a fixed definition, though not fixed contents; (3) they are adults; and (4) the Second Amendment does not have a freestanding, extratextual dangerousness catchall. 108 F.4th at 689.

Because the Second Amendment presumptively protects the right of 18- to 20-year-olds to the public carry of firearms, which includes concealed carry, then the burden shifts to the state to “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

We conclude that all those in the age of majority have the same rights to public carry, which includes the right to concealed carry.

“[T]he general rule is that evidence obtained from searches carried out by foreign officials in their own countries is admissible” and does not implicate the Fourth Amendment, much less violate it, for the Fourth Amendment binds only the government of the United States. United States v. Emmanuel, 565 F.3d 1324, 1330 (11th Cir. 2009).

This “general rule” is not, however, an absolute rule. When federal officials receive evidence from another sovereign, the Supreme Court has said that such evidence may still be subject to Fourth Amendment scrutiny under what has become known as the “silver platter” doctrine. Lustig v. United States, 338 U.S. 74, 78–79 (1949). “The crux of that doctrine is that a search is a search by a federal official if he had a hand in it,” but “it is not a search by a federal official if evidence secured by [non-federal] authorities is turned over to the federal authorities on a silver platter.” Id.

We have examined the “silver platter” doctrine in cases where foreign nations provide evidence and have identified two exceptions to the general rule that foreign-obtained evidence does not implicate the Fourth Amendment: (1) when the mechanism of obtaining the evidence “shocks the judicial conscience” and (2) when the exclusionary rule would still have a deterrent effect because the American law enforcement agency engaged in a “joint venture” with the foreign law enforcement agency.8 United States v. Behety, 32 F.3d 503, 510–11 (11th Cir. 1994) (alteration adopted); United States v. Frank, 599 F.3d 1221, 1227–29 (11th Cir. 2010). The joint venture rule deters American law enforcement from using “circuitous and indirect methods” to circumvent the Constitution, such as by using agents to do what American law enforcement could not.9 Byars v. United States, 273 U.S. 28, 32 (1927).

The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life.

[T]he government invites us to draw an analogy between its present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the government’s analogy fails under every measure it asks us to consider: The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment.

Here, though, the record does not reflect that the court clearly denied counsel’s request to exclude the initial aggressor instruction—to the contrary, counsel’s objection was successful and it was explained that the instruction would not be included. At the time of the discussion of the instruction that led to the trial court’s initial decision to exclude the instruction, the error had not yet occurred—counsel’s objection to the instruction was successful, being well-taken by the trial court, and a potential error at that time was successfully averted. The times at which an objection would be necessary came later, when the errors occurred—when the trial court read the erroneous instruction to the jury and provided it in written form. Only then could an objection preserve the error for appeal, because before that time no error had occurred.

See Martinez v. State, 981 So. 2d 449, 453 (Fla. 2008) (”[T]o instruct the jury on the forcible-felony exception in this circumstance amounted to informing the jury that although it might conclude that Martinez acted in self-defense when he committed an aggravated battery or attempted murder against Rijo, the use of deadly force was not justifiable if the jury found that Martinez committed attempted murder or aggravated battery.”). In order to avoid this “circular logic”—which “would most probably confuse jurors because the apparent result is that the instruction precludes a finding of self-defense and amounts to a directed verdict on the affirmative defense”—”an independent forcible felony is required for the forcible-felony instruction to apply.” See id. at 453–54.

In other words, “the forcible felony exception to self-defense applies only when the ‘accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.’ “ Smith v. State, 417 So. 3d 503, 507 (Fla. 5th DCA 2025) (quoting Santiago v. State, 88 So. 3d 1020, 1022 (Fla. 2d DCA 2012)). “Otherwise, the instruction would be ‘ “circular and confusing to the jury” because it improperly instructs the jury that the very act that the defendant seeks to justify as an act of self-defense prevents the same act from being an act of self-defense.’ “ Id. (quoting Smith v. State, 933 So. 2d 1275, 1276–77 (Fla. 2d DCA 2006)). In this manner, the forcible felony instruction in this case “[wa]s ‘capable of misleading the jury in such a way as to prejudice [Mr. Cordell]’s right to a fair trial,’ “ and, consequently, the trial court abused its discretion by giving it. See Weir v. State, 777 So. 2d 1073, 1076–77 (Fla. 4th DCA 2001) (first quoting Lewis v. State, 693 So. 2d 1055, 1057 (Fla. 4th DCA 1997); and then citing Gross v. Lyons, 721 So. 2d 304 (Fla. 4th DCA 1998), decision approved, 763 So. 2d 276 (Fla. 2000)); Johnson v. State, 293 So. 3d 46, 53 (Fla. 1st DCA 2020) (”The giving or withholding of a proposed jury instruction is reviewed for abuse of discretion.” (citing Carle v. State, 983 So. 2d 693, 695 (Fla. 1st DCA 2008))).

During that plea, Appellant confirmed under oath, among other things, that he was explicitly waiving his right to file pretrial motions. Appellant swore under oath that he understood he was relinquishing that precise category of procedural mechanism as part of his knowing and voluntary plea. Appellant’s colloquy was not a general satisfaction statement tangentially related to the claim; it was a direct sworn waiver of the specific right at issue.

The distinction is also structural, not merely factual. A plea colloquy is the constitutionally required mechanism by which the court ensures a defendant’s waiver of rights is knowing and voluntary. Moorer v. State, 217 So. 3d 1141, 1142 (Fla. 1st DCA 2017) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). When Appellant confirmed under oath that he understood he was waiving his right to file pretrial motions, that exchange was part of the inquiry itself, not a peripheral question appended to an unrelated proceeding. The Fifth District’s concern in Carver was that a general satisfaction statement during a testimonial inquiry bore no substantive connection to a pretrial immunity decision. Here, the connection is direct and specific: Appellant was asked about pretrial motions, he answered under oath, and that sworn answer formed part of the basis on which the court accepted his plea as knowing and voluntary.

Defendants are bound by their sworn statements during plea colloquies and may not contradict them in subsequent postconviction proceedings. Iacono v. State, 930 So. 2d 829, 831 (Fla. 4th DCA 2006) (“Defendants have a duty to uphold the solemn oath they take to tell the truth. They are bound by their sworn answers during the colloquy.”). Allowing Appellant to assert ineffective assistance for counsel’s failure to file a pretrial motion that Appellant himself swore under oath he was waiving would “undermine the purposes behind the oath to tell the truth, the plea forms, and the plea colloquy’s determination of voluntariness.” Id. at 831–32. See also Russ v. State, 937 So. 2d 1199, 1201 (Fla. 1st DCA 2006) (stating “where an appellant makes a clearly and wholly inconsistent affirmance which contradicts his later postconviction claim, such claim may be summarily denied”); Mann v. State, 622 So. 2d 595, 596–97 (Fla. 3d DCA 1993) (affirming summary denial of 3.850 motion, court held that appellant would be bound by terms of plea contracts entered into after extensive negotiations as to both guilt and sentence).

NOTE

You may want to supplement the plea colloquy with difficult clients to make the record clear they are waiving their right to have this motion heard.