In addition, the “fellow officer rule,” or the “collective knowledge doctrine,” in Florida allows a state police officer to rely on information from federal agents to establish probable cause. State v. Bowers, 87 So. 3d 704, 707 (Fla. 2012). “The primary purpose of the rule is ‘to assist officers investigating in the field to make arrests and conduct searches’ because ‘an officer in the field may need to act immediately based on upon what he or she is told by a fellow officer.’” Montes-Valeton v. State, 216 So. 3d 475, 478 (Fla. 2017) (internal citation omitted) (emphasis in original).

“As a practical matter, absence of a search warrant in the court file sufficed to shift the burden of going forward to the prosecution.”

State v. Vanderhors, 927 So. 2d 1011, 1013 (Fla. 2d DCA 2006). Importantly, in determining the legality of the warrant, consideration of testimony taken at the hearing on the motion to suppress which does not appear in the affidavit in support of the search warrant is improper. Montgomery v. State, 584 So. 2d 65, 66 n. 1 (Fla. 1st DCA 1991). Courts must base their probable cause determination solely on what was presented to the issuing magistrate in the affidavit, thus confining their review to a consideration of the four corners of the probable cause affidavit. See Id. at 66-67; Rabb, 920 So. 2d at 1180.

NOTE

In this case the FBI had a warrant, but they refused to release the affidavit to the State agency.

The Supreme Court in Erlinger expressly recognized that a court can “undertake the job of finding the fact of a prior conviction—and that job alone.” 602 U.S. at 835–38. Under Florida law, Appellant is a VFOSC if he was on “[f]elony probation . . . related to the commission of a qualifying offense.” § 948.06(8)(b)1., Fla. Stat. Erlinger does not require a jury to find the fact of Appellant’s prior conviction for purposes of the VFOSC designation. See Maye v. State, 368 So. 3d 531, 532 (Fla. 6th DCA 2023) (“[T]he date a defendant was released from prison or jail and the nature of the qualifying offense are ministerial in nature and thus do not require jury findings.”), review granted, No. SC20231184, 2024 WL 1796831 (oral argument held February 6, 2025).

…

In two of Appellant’s three consolidated cases, the judicial “danger to the community” fact-finding occurred in probation revocation proceedings, in which there appears to be no Sixth Amendment concern regardless of the impact on Appellant’s sentence. See Hollingsworth v. State, 293 So. 3d 1049, 1052–53 (Fla. 4th DCA 2020); Souza v. State, 229 So. 3d 387, 389 (Fla. 4th DCA 2017).

However, case number 2023-CF-970 involved new criminal charges. If the trial court, rather than a jury, had found Appellant a “danger to the community” and increased Appellant’s sentence, it would violate the Sixth Amendment right to a jury trial. See Brown v. State, 260 So. 3d 147, 149 (Fla. 2018). In Brown, the trial court was required to determine, under section 775.082(10) of the Florida Statutes, whether sentencing a defendant to a “nonstate prison sanction” rather than a prison sentence “could present a danger to the public.” The court made the public-danger determination without a jury. Id. at 150. The supreme court held that this violated the defendant’s SixthAmendment right to a jury trial. Id. at 150–51.

Given the clear mandate of Apprendi, Alleyne, and particularly Erlinger, Florida’s Prisoner Releasee Reoffender Act is unconstitutional on its face and, consequently, as applied to Maye. It is for this reason that Maye properly sought relief under Florida Rule of Criminal Procedure 3.800.

…

Florida’s Prison Releasee Reoffender Punishment Act was in effect in 2002 when Maye was convicted of robbery with a deadly weapon and, inconceivably, it remains unchanged in 2026. In the two decades following the Apprendi decision, the Florida Legislature has not conformed the statute to constitutional standards, and the trial courts around the state continue to regularly sentence defendants pursuant to it. This Court, rather than addressing the threshold question of the statute’s constitutionality, chooses to sidestep it.

The list of statutory departure reasons provided in section 921.0026(2) is not exclusive. State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999). Therefore, the trial court may impose a downward departure for reasons not delineated in section 921.0026, so long as the reason given is supported by competent, substantial evidence and not otherwise prohibited. State v. Laroe, 821 So.2d 1199, 1201 (Fla. 5th DCA 2002); State v. Barnes, 753 So.2d 605, 607 (Fla. 2d DCA 2000). Here, the trial court gave three reasons for downward departure: Mr. Stephenson's remorse, his family support obligations, and the fact that he had "kept his nose clean" since being released from prison in 2004.

“If the motion for continuance concerns the absence of a witness, ‘the defendant must show: (1) prior due diligence to obtain the witness’s presence; (2) substantially favorable testimony would have been forthcoming; (3) the witness was available and willing to testify; and (4) the denial of the continuance caused material prejudice.’” Smith v. State, 170 So. 3d 745, 758–59 (Fla. 2015) (quoting Mosley v. State, 46 So. 3d 510, 525 (Fla. 2009)). We review rulings on such motions for an abuse of discretion. Middleton v. State, 220 So. 3d 1152, 1175 (Fla. 2017).

Relying on Reynolds v. State, 74 So. 3d 541, 545 (Fla. 4th DCA 2011), Appellant asserts that testimony of general criminal behavior, i.e., how sandwich bags are used by other dealers, offered by Officer Santos, is inadmissible as substantive proof of Appellant’s guilt. More than twenty (20) years ago, the First District set forth the law that has been consistently applied for decades:

the law is well settled that general criminal behavior testimony based upon a law enforcement officer’s observations and experience in the investigation of other cases is inadmissible as substantive proof of a defendant’s guilt, because a defendant has a right to be tried based on the evidence against him or her, not on the characteristics or general behavior of certain classes of criminals in general.

Baskin v. State, 732 So. 2d 1179, 1180 (Fla. 1st DCA 1999). The Fourth District gave an enlightening discussion of why such testimony is typically inadmissible and then discussed several specific cases in which “common drug dealer practice” testimony was found to be reversible error. Armalin v. State, 884 So. 2d 458, 459–60 (Fla. 4th DCA 2004). Santos’ baggie testimony fits that category of inadmissible “common drug dealer practice” evidence.

“No magic words are needed to make a proper objection,” as long as the contemporaneous objection is sufficient to “inform the court of the alleged error.” State v. Paulk, 813 So. 2d 152, 154 (Fla. 3d DCA 2002) (citing Williams v. State, 414 So. 2d 509 (Fla. 1982)). While the relevance and section 90.403-based objections might deserve a higher grade on a law school exam, we find Appellant’s “speculation” objection to have sufficiently alerted the trial court to the issue.

Appellee provided no evidence at the sentencing hearing establishing the federal victims’ need for restitution. Appellee failed to prove this ground by a preponderance of the evidence. See § 921.002(1)(f), Fla. Stat. (“The level of proof necessary to establish facts that support a departure from the lowest permissible sentence is a preponderance of the evidence.”); Banks v. State, 732 So. 2d 1065, 1067 (Fla. 1999) (“[F]acts supporting the ground [for departure] must be proved at trial by a preponderance of the evidence.” (internal quotations omitted)).

Second, in order to properly apply the statutory ground listed in section 921.0026(2)(j), a court must find that the defendant has shown remorse, an element included in the plain language of the statute. See State v. Brannum, 876 So. 2d 724, 726–27 (Fla. 5th DCA 2004) (finding that this ground for departure was not established by competent substantial evidence where the trial court failed to find that the defendant was remorseful for his wrongful conduct); State v. Thompson, 844 So. 2d 814, 815 (Fla. 5th DCA 2003) (finding that departure under section 921.0026(2)(j) was improper where the trial court only made a finding as to the “unsophisticated manner” element and not the other two elements of “isolated incident” and “remorse”).

At the hearing on his motion to withdraw plea, Williams testified that he would not have entered the plea but for the misadvice of counsel. He provided uncontroverted testimony that his trial counsel had advised him to take the plea and that he could later appeal the sentence and “be out.”1

Williams established that the affirmative misadvice of counsel misled him into accepting a fifteen-year plea offer, rendering his plea involuntary. See State v. Partlow, 840 So. 2d 1040, 1044 (Fla. 2003) (holding that “to obtain relief through a motion to withdraw a plea after sentencing under rule 3.170(l), a defendant must demonstrate a manifest injustice, such as involuntariness of the plea”); see also Davis v. State, 373 So. 3d 372 (Fla. 5th DCA 2023) (holding attorney’s misadvice about gain time eligibility could render plea involuntary); Walkup v. State, 822 So.2d 524, 525 (Fla. 2d DCA 2002) (observing that, generally, affirmative misadvice of counsel provides basis to allow withdrawal of plea). Accordingly, we reverse the order denying Williams’s motion to withdraw his plea and remand for further proceedings.

FOOTNOTE

1: In fact, however, Williams had no right to appeal. Fla. R. App. P. 9.140(b)(2)

Like the right to appeal, criminal defendants also enjoy the right to counsel on direct appeal under both the Sixth and Fourteenth Amendments to the United States Constitution, as well as article I, section 16(a) of the Florida Constitution. And of course, a criminal defendant may also represent himself. See Pasha v. State, 39 So. 3d 1259, 1261 (Fla. 2010) (“[T]he Sixth and Fourteenth Amendments include a ‘constitutional right to proceed without counsel when’ a criminal defendant ‘voluntarily and intelligently elects to do so.’” (quoting Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 2383, 171 L. Ed. 2d 345 (2008))). But a defendant has no right to do both at the same time. As the Florida Supreme Court put it:

More than twenty years ago, this Court explained that the Sixth Amendment to the United States Constitution, as interpreted in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), does not “guarantee that the accused can make his own defense personally and have the assistance of counsel.” State v. Tait, 387 So. 2d 338, 33940 (Fla.1980). Likewise, article I, section 16 of the Florida Constitution does not “embody a right of one accused of crime to representation both by counsel and by himself.” Id. at 340; see also Mora v. State, 814 So. 2d 322, 328 (Fla.) (“[T]here is no constitutional right for hybrid representation at trial.”), cert. denied, 537 U.S. 1050, 123 S.Ct. 603, 154 L.Ed.2d 526 (2002). Thus, as the Fifth District Court of Appeal succinctly stated in Sheppard v. State, 391 So. 2d 346 (Fla. 5th DCA 1980), shortly after this Court decided Tait, “[t]he defendant, under appropriate circumstances, has the constitutional right to waive counsel and represent himself. The defendant has no right, however, to partially represent himself and, at the same time, be partially represented by counsel.” Id. at 347 (citations omitted).

Logan, 846 So. 2d at 474–75 (footnote omitted).

We made clear that though we were reversing and remanding on this ground, Owens was not necessarily entitled to a new trial, noting that not every comment made by a prosecutor during voir dire concerning a defendant’s right to remain silent was always inappropriate. Id. at 876 n.5 (citing Grieve v. State, 731 So. 2d 84, 84 (Fla. 4th DCA 1999)).

Florida has “adopted a very liberal rule for determining whether a comment constitutes a comment on silence.” Marston v. State, 136 So. 3d 563, 569 (Fla. 2014) (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)). To that end, “[a]ny comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to testify is error and is strongly discouraged.” Id. (quoting Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000)).

See Cox v. State, 966 So. 2d 337, 347 (Fla. 2007). The court held:

The harmless error test as articulated, by this Court requires 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.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Thus, in concluding that the prosecutor’s misstatements of the law during voir dire constituted harmless error, we held that there was no reasonable probability that these misstatements contributed to [the defendant’s] conviction. See id. Therefore, regardless of whether counsel was deficient for failing to object to improper statements by the prosecution, [the defendant] cannot demonstrate prejudice under the second prong of Strickland.

Id. (citation omitted).

3.11 A lawyer must not prevent a deponent from answering questions unless a legal privilege applies. (See R. Regulating Fla. Bar 4-3.4(c)).

Professionalism Expectations

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“[Supreme Court] cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant.” Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979). “The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. 257, 270 (1948); see also Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World, 127 Harv. L. Rev. 2173, 2174 (2014) (“The Sixth Amendment provides for twin engines of public accountability for the prosecution of crimes: the right to a jury trial and the right to public trial.”).

But the right to a public trial is not absolute. In some circumstances, it is not triggered at all. See United States v. Yumang, 164 F.4th 601, 605 (7th Cir. 2026) (“The brief courtroom closure [for five minutes] was too trivial to be a Sixth Amendment error at all, let alone a reversible plain error.”); Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996) (closure of twenty minutes did not implicate Sixth Amendment); United States v. Perry, 479 F.3d 885, 890–891 (D.C. Cir. 2007) (applying Peterson’s “triviality standard” to exclude the defendant’s 8-year-old son during trial); United States v. Ivester, 316 F.3d 955, 959–60 (9th Cir. 2003) (satisfying the “widelyaccepted Peterson test” after public excluded during mid-trial questioning of jurors); Braun v. Powell, 227 F.3d 908, 918–19 (7th Cir. 2000) (exclusion of a single excused juror during trial satisfied Peterson’s “triviality standard”); see also United States v. Greene, 431 F. App’x. 191, 195 (3d Cir. 2011) (Peterson’s “triviality analysis” remains valid after Presley). And in others, the right may yield to “a compelling governmental interest . . . [where courtroom closure] is narrowly tailored to serve that interest.” Clements v. State, 742 So. 2d 338, 340 (Fla. 5th DCA 1999) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)). Put another way, “[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Press-Enter. Co. v. Superior Court of California, Riverside Cnty., 464 U.S. 501, 502 (1984).

In the seminal case of Waller v. Georgia, 467 U.S. 39 (1984), the United States Supreme Court established four prerequisites for courtroom closure: First, the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced; second, the closure must be no broader than necessary to protect that interest; third, the trial court must consider reasonable alternatives to closing the proceedings; and fourth, the court must make findings adequate to support the closure. Pritchett v. State, 566 So. 2d 6, 7 (Fla. 2d DCA 1990) (citing Waller v. Georgia, 467 U.S. 39, 47 (1984)).

Courts have resultingly routinely upheld partial courtroom closures during a minor victim’s testimony in sexual offense cases, provided family members and members of the press are authorized to remain in the courtroom. This is particularly true in cases involving familial abuse. See United States v. Galloway, 963 F.2d 1388, 1390 (10th Cir. 1992) (affirming partial closure of courtroom during testimony of 18–year–old rape victim constitutionally permissible in view of victim’s age and nature of crimes where press along with the defendant’s family permitted to stay); Bell v. Jarvis, 7 F. Supp. 2d 699, 702 (E.D.N.C. 1998) (upholding partial closure during testimony of twelve–year–old victim of sexual offenses where press and family of the victim were permitted to stay), rev’d, 198 F.3d 432 (4th Cir. 1999), vacated on reh’g en banc, 236 F.3d 149 (4th Cir. 2000); United States ex rel. Morgan v. Lane, 705 F. Supp. 410, 412–15 (N.D. Ill. 1989) (upholding partial closure during testimony of 16–year–old victim of rape, sexual assault, and incest trial where media and family could remain in the courtroom), aff’d, 897 F.2d 531 (7th Cir.1990); People v. Leggans, 625 N.E.2d 1133, 1138 (Ill. App. Ct. 1993) (partial closure upheld during testimony of eight-year-old sex offense victim where media and those directly involved in the case permitted to stay); State v. Fayerweather, 540 A.2d 353, 354 (R.I. 1988) (authorizing partial closure during testimony of sixyear-old molestation victim, where family and press remained).

But any such closure is not automatic. A case-by-case analysis as to the remaining prongs of Waller must be undertaken. See Bell v. Jarvis, 236 F.3d 149, 168 (4th Cir. 2000) (citing Globe, 457 U.S. at 609)).

Under the third prong of Waller, the court is compelled to consider reasonable alternatives if available, even when not offered by the parties. See Presley v. Georgia, 558 U.S. 209, 214 (U.S. 2010). This prong has been the subject of some debate, as it appears to run counter to other entrenched appellate principles. See id. at 218 (Thomas, J., dissenting) (“Even assuming the Court correctly extends Waller and Press-Enterprise I to this (Sixth Amendment voir dire) context, neither opinion ‘explicit[ly] places on trial courts the burden of sua sponte suggesting alternatives to closure ‘absent an opposing party’s proffer of some alternatives.’”); see also Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985) (“In order to be preserved for further review by [an appellate] court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation . . . .”); Abrams v. Paul, 453 So. 2d 826, 827 (Fla 1st DCA 1984) (“[I]t is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court.” (citing Palmer v. Thomas, 284 So. 2d 709 (Fla. 1st DCA 1973); 3 Fla. Jur. 2d Appellate Review § 92)); Garcia v. State, 401 S.W.3d 300, 303 (Tex. App. 2013) (“[T]he trial court had to consider all reasonable alternatives to closure, sensibly reject each one, and issue specific findings that justified the closure in light of controlling law.”). Moreover, the lower court must render case-specific findings to enable meaningful appellate review. Presley, 558 U.S. at 215.

“At its core, a charging document must comport with basic notions of due process by placing a defendant on adequate notice of the specific nature of the criminal charge.” Duarte v. State, 59 So. 3d 313, 315 (Fla. 3d DCA 2011). “An information is sufficient if it tracks the statute . . . .” State v. Lee, 651 So. 2d 1221, 1222 (Fla. 2d DCA 1995); see also State v. Bostic, 446 So. 2d 264, 265 (Fla. 2d DCA 1984) (concluding in relevant part that the amended information was legally sufficient because it tracked the statutory language); cf. DuBoise v. State, 520 So. 2d 260, 265 (Fla. 1988) (explaining that where an indictment specifically referenced the statute underlying the charged offense and where the statute “specifically defines all the elements of the offense,” the defendant was placed “on adequate notice of the crime being charged” (citing Cotton v. State, 395 So. 2d 1287 (Fla. 1st DCA 1981))). “[T]he [S]tate need not present proof with which it intends to establish its case.” Lee, 651 So. 2d at 1222.

“A reviewing court must consider the totality of the circumstances in determining whether a suspect’s statement unequivocally invoked a Miranda right.” Langel v. State, 298 So. 3d 87, 89 (Fla. 4th DCA 2020) (citation omitted). To be unequivocal, a suspect must articulate a request for an attorney with sufficient clarity that a reasonable officer would understand the statement to be a request for counsel to invoke the right to counsel. Davis v. United States, 512 U.S. 452, 459 (1994) (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)). Ambiguous or equivocal references to counsel do not require officers to cease questioning. State v. Owen, 696 So. 2d 715, 717 (Fla. 1997).

The defendant’s statement that he would “need some advice” did not mention an attorney and was reasonably susceptible to multiple interpretations. Police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived his or her Miranda rights. Owen, 696 So. 2d at 719; see also State v. Craig, 237 So. 2d 737, 739–40 (Fla.1970) (holding that where the defendant stated, “Well, I would like to have one [lawyer] in a way, but I don[’]t see how it can help me,” the defendant had not invoked his right to counsel); McKenzie v. State, 125 So. 3d 906, 910 (Fla. 4th DCA 2013) (explaining that the statement, “I think I’d like a lawyer,” followed by the defendant’s reinitiation of conversation with the interrogating officers was an equivocal invocation of right to counsel). Notably, here the defendant continued speaking with detectives after the statement, expressly indicating that he did not mind continuing the conversation.

A generalized request for “advice” is not an unequivocal invocation of the right to counsel under the objective standard governing Miranda inquiries. See Washington v. State, 253 So. 3d 64, 69 (Fla. 1st DCA 2018) (holding that a defendant’s question to officers as to whether he needed an attorney amounted to a request for advice about his rights and therefore was not an unequivocal request for counsel); State v. Perez, 179 P.3d 346, 348-50 (Idaho Ct. App. 2008) (“His statement to the officers was, ‘Yeah, I think I need advice, man.’ As Perez did not directly refer to a desire to see to an attorney, he may have been expressing a wish for advice from family, friends, a clergyman, or other advisor. Viewed objectively, Perez’ statement would not necessarily be understood by a reasonable police officer as a present request for an attorney.”).

Later in the interview, the defendant clearly stated that he would like to speak with a lawyer, at which point detectives immediately terminated the interrogation. Because the defendant’s earlier reference to needing “advice” was not an unambiguous request for counsel, the trial court erred in suppressing the statements that followed that ambiguous comment. Accordingly, we reverse the order granting in part the motion to suppress and remand for further proceedings.

NOTE

If a defendant has questions about their right to counsel the officer must make a good faith effort to clarify that right.

To preserve a sufficiency-of-the-evidence issue for appellate review, a defendant is required, in moving for judgment of acquittal at trial, to identify the element(s) of the charged offense for which he contends the evidence is lacking. Rodriguez v. State, 335 So. 3d 168, 172 (Fla. 3d DCA 2021), rev. denied, No. SC2021-1740, 2022 WL 1041273 (Fla. Apr. 7, 2022). See also Klein v. Est. of Klein, 295 So. 3d 793, 799 (Fla. 4th DCA 2020).

Ordinarily, we could still review an unpreserved issue for fundamental error. See Bless v. State, 398 So. 3d 453, 457 (Fla. 4th DCA 2024). However, the Florida Supreme Court has held that unpreserved challenges to the sufficiency of the evidence of one element of a crime may only be reviewed for fundamental error in non-death-penalty cases when insufficient evidence exists to prove that a defendant committed any crime through the acts in question. See Monroe v. State, 191 So. 3d 395, 401– 02 (Fla. 2016); Twigg v. State, 254 So. 3d 464, 468–69 (Fla. 4th DCA 2018); Bagnara v. State, 189 So. 3d 167, 171 (Fla. 4th DCA 2016).

Much of Nurse’s Testimony was Inadmissible Hearsay

Tolbert v. State, 114 So. 3d 291, 293–94 (Fla. 4th DCA 2013) (citations and quotation marks omitted), rev. denied, 122 So. 3d 870 (Fla. 2013). In Tolbert, we held that a witness’s testimony was inadmissible hearsay where she testified that she lacked personal knowledge of the underlying testing and was instead relying on and summarizing another declarant’s report. Id. at 294. However, we determined the error in that case was harmless because the hearsay testimony did not directly implicate the defendant (it only explained why the witness re-tested the victim’s DNA sample), while other independently admissible parts of the witness’s testimony were more important. Id. at 295.

Similarly, here, Nurse’s recounting of the sexual assault report was inadmissible hearsay. Virtually every time Nurse was asked a question, she began by stating that she was reading her answer from the report. Indeed, she agreed with defense counsel that she had no “independent knowledge of any of these things” and would not know anything about this patient or case without referencing the report. As Nurse was acting as a mere conduit for the hearsay statements in the report, her testimony recounting the report’s contents was inadmissible hearsay.

Specifically, the pieces of evidence that should not have been admitted were: (I) the sexual assault report’s clinical description of the Victim’s vaginal injury and bleeding; and (II) the report’s description of which of the Victim’s body parts were swabbed. Nurse read these observations of physical phenomena verbatim from the report. In contrast, her statements about the clinic’s ordinary procedures and her own expert opinions (such as whether injuries are typical and how frequently they are seen) were admissible.

The Business Records and Medical Diagnosis Exceptions do not Apply

“While the business records exception to the hearsay rule allows the admission of a memorandum, report, record, or data compilation, it does not authorize hearsay testimony concerning the contents of business records which have not been admitted into evidence.” Helton v. Bank of Am., N.A., 187 So. 3d 245, 247 (Fla. 5th DCA 2016) (quoting Thompson v. State, 705 So. 2d 1046, 1048 (Fla. 4th DCA 1998)). A witness’s testimony regarding the contents of a business record not in evidence is inadmissible hearsay. Id. Here, because the sexual assault report was never admitted into evidence, the State cannot rely on the business records exception as a basis for the report’s admissibility. See also Cardona v. Nationstar Mortg., LLC, 174 So. 3d 491, 493 (Fla. 4th DCA 2015) (“Because the business records were not introduced into evidence, the trial court erred by overruling the homeowners’ hearsay objection.”).

The medical treatment or diagnosis exception does not apply because the sexual assault report in question consists of statements by the medical examiner, not the patient. See Harris v. State, 37 So. 3d 285, 287 (Fla. 2d DCA 2010) (“[Section 90.803(4)] applies when a doctor, or perhaps a nurse or paramedic, explains what a victim of a crime told them when seeking treatment. It does not apply to allow the victim to state in court what the doctor explained to the victim about the reason or the necessity for treatment.” (citation omitted)), rev. denied, 77 So. 3d 1254 (Fla. 2011).

Foulks provides that upon revocation of probation, the State may seek to have a defendant sentenced as a prison releasee reoffender (“PRR”) pursuant to section 775.082, Florida Statutes, despite the State having initially waived the PRR sentence as part of a negotiated plea agreement with a defendant, if the State can establish the defendant qualified as a PRR at the time of his initial sentencing. Here, the State established that, at the time of Duggans’ initial sentencing, he qualified as a PRR. Accordingly, we find no error in this regard and affirm.

Jett v. State, 426 So. 3d 596, 597 (Fla. 1st DCA 2025) (affirming without addressing merits of argument where “[b]ased on the uncontroverted evidence, any error in not submitting the PRR determination to a jury was harmless beyond a reasonable doubt,” noting, among other things, that the State introduced…

[T]he State concedes that the trial court’s sua sponte striking of Hipolito’s speedy trial demand at the December 23 hearing was error because the State made no motion seeking that relief.

However, as the State correctly argued below and raises on appeal, that did not end the trial court’s inquiry on a motion for discharge. Rule 3.191(p)(1) provides, “No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).” Rule 3.191(j) provides, in relevant part:

(j) Delay and Continuances; Effect of Motion. If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:

***

(2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;

***

(4) the demand referred to in subdivision (g) is invalid. If the court finds that discharge is not appropriate for reasons under subdivisions (j)(2), (j)(3), or (j)(4), the pending motion for discharge shall be denied, provided, however, that trial shall be scheduled to commence within 90 days of a written or recorded order of denial.

As explained in Landry v. State, 666 So. 2d 121, 126 (Fla. 1995):

Subdivision (j)(4) of rule 3.191 provides the only vehicle for the trial court to consider the validity of a demand for speedy trial, absent a challenge by the State under subdivision (g). This provision serves as a safety valve to ensure that a defendant does not control the court’s docket or obtain discharge by filing a spurious demand under subdivision (b). See Jones [v. State], 449 So. 2d [253,] 262 [(Fla. 1984)] (trial court considered whether demand for speedy trial was valid after motion for discharge was filed); accord State ex rel. Hanks v. Goodman, 253 So. 2d 129 (Fla.1971) (defendant should not be discharged after expiration of speedy trial time based on demand until court determines that defendant had a bona fide desire to obtain speedy trial and accused or counsel has diligently investigated case and is prepared for trial; if these prerequisites are not met demand should be stricken as invalid). Under subdivision (j), if the court finds that the demand is invalid, the court should strike the demand, deny the motion for discharge, and schedule the trial to begin within ninety days of the denial.

Defendant’s motion appears to recognize the well-settled law that a defendant does not have the right to a jury trial in a violation of probation proceeding. Clarington v. State, 314 So. 3d 495 (Fla. 3d DCA 2020) (citing Drayton v. State, 177 So. 2d 250 (Fla. 3d DCA 1965)). It also recognizes that a probation revocation proceeding and a sentencing proceeding following a revocation of probation are distinct events. Shields v. State, 296 So. 3d 967, 972 (Fla. 2d DCA 2020). Thus, it would be entirely permissible under Apprendi and its progeny for this Court to hold a nonjury trial to determine whether Defendant violated probation, make a finding that Defendant violated his probation, revoke Defendant’s probation, and then sentence him under a criminal punishment code scoresheet that did not assess “community sanction violation points” pursuant to §921.0024(1)(b), Fla. Stat. (2023). Such a sentence would be a sentence which Defendant could have received at the time of his initial sentencing and would not violate Apprendi and its progeny. Shields, at 973. Through this motion, Defendant asks this Court to resentence him using a criminal punishment code scoresheet that did not include additional points for a violation of probation.

Lacy Order

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Section 90.104(1)(b), Florida Statutes (2024), states that “[i]f 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 the Florida Supreme Court has held that where, as here, a party affirmatively states he has “no objection” at trial, even if he previously obtained a definitive pre-trial ruling, he abandons the previously made objection and consequently fails to preserve the issue for appeal. In Carr v. State, 156 So. 3d 1052 (Fla. 2015), after noting the statute, our Supreme Court held:

Here, Carr’s trial counsel objected to the school record’s admission at a pretrial hearing, and the trial court ruled that the record was admissible. However, when the State offered the record into evidence during the guilt phase, Carr’s trial counsel affirmatively stated “no objection.” In so doing, trial counsel abandoned her pretrial objections to the record’s admissibility, and we decline Carr’s invitation to revive them.

Carr, 156 So. 3d at 1062 (cleaned up).