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.

The State failed to establish a prima facie case against Wesley for accessory after the fact to a capital felony. Such a charge requires the State to present sufficient evidence establishing the element that a capital felony crime occurred. It cannot prove that Wesley or Triplett committed a crime—“an act that the law makes punishable”—because they were granted immunity for their use of deadly force against Wilcox. See Crime, Black’s Law Dictionary (11th ed. 2019). In other words, the trial court found that they were justified in their use of deadly force against Wilcox and thus acted lawfully. See Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017) (noting that section 776.032, Florida Statutes, “provides immunity for a person who lawfully uses force in self-defense” (emphasis added)). Accordingly, because an underlying crime was not “committed” here, we affirm the trial court’s dismissal of this count in the amended information.

In Banks v. State, 732 So. 2d 1065, 1067–68 (Fla. 1999), the Florida Supreme Court established a two-part test trial courts must employ when considering a motion for downward departure of a criminal sentence: first, the court must determine “whether there is a valid legal ground and adequate factual support for that ground” for departure (whether the court can depart); second, the trial court must decide “whether departure is indeed the best sentencing option for the defendant” (whether it should depart).

Recently, in Morgan v. State, 427 So. 3d 141, 144 (Fla. 2d DCA 2025), we reversed a trial court’s denial of a downward departure motion where the trial court “erroneously found that it had ‘no alternative’ but to sentence Mr. Morgan according to his criminal punishment code scoresheet,” when, in fact, the defendant’s autism diagnosis could have supported a lower prison sentence.

The holdings in Morgan and Jones apply here. The trial court proceeded under the misconception that the only downward departure alternative to Lee’s lowest permissible sentence would have been another, futile attempt at probation. The trial court had another option. It could have, as Lee repeatedly requested, imposed a prison sentence less than 77.475 months.

Whitton claimed that, as a result, his due process rights had been violated under this Court’s decision in Giglio v. United States, 405 U. S. 150 (1972). And he contended, as was additionally necessary for federal habeas relief, that the Giglio error had a “‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U. S. 619, 623 (1993).

At Whitton’s trial, an analyst from the Florida Department of Law Enforcement testified that the DNA in the blood stains matched neither the victim’s nor Whitton’s. A decade after Whitton was convicted, however, the State ran another DNA test on the blood stains—and this time, the results revealed a match with the victim’s DNA. Even though that new DNA evidence was not presented at Whitton’s trial, the Court of Appeals took account of it when analyzing the Florida Supreme Court’s determination.

the court said, “the blood-splatter evidence ties Whitton directly and firmly to [the victim]’s murder.” Ibid. After considering that post-trial DNA evidence (in addition to the trial evidence), the Court of Appeals held that it was not “unreasonable for the State court to conclude” that even without any of Ozio’s testimony “there was ‘overwhelming evidence against Whitton.’” Ibid. (quoting Whitton, 161 So. 3d, at 334). And so the Court of Appeals affirmed the denial of habeas relief.

Because the post-trial DNA evidence was not presented to the jury (indeed, did not exist at the time of the trial), that evidence could not have influenced the jury’s verdict. It therefore sheds no light on whether (or to what extent) Ozio’s testimony influenced that verdict.

Because the post-trial DNA evidence was not presented to the jury (indeed, did not exist at the time of the trial), that evidence could not have influenced the jury’s verdict. It therefore sheds no light on whether (or to what extent) Ozio’s testimony influenced that verdict. See Brecht, 507 U. S., at 623 (“[T]he standard for determining whether habeas relief must be granted is whether the [constitutional] error had substantial and injurious effect or influence in determining the jury’s verdict” (emphasis added; internal quotation marks omitted)).

The Florida Supreme Court did not consider the post-trial DNA evidence in making its determination, and the Court of Appeals should not have done so in evaluating that determination either.

In interpreting the meaning of sections 934.02 and 934.03, the Florida Supreme Court in McDade v. State held the surreptitiously recorded conversations between the defendant and his stepdaughter in his bedroom—during which he admitted to child sexual abuse and solicited sex—qualified as “oral communications” made with an expectation of privacy; therefore, the recordings fell within the statute prohibiting the interception of oral communications without the consent of all parties and were inadmissible in the prosecution for sexual battery on a child under 12. McDade, 154 So. 3d at 297-300.

Additionally, in Horn v. State, this Court held that the contents of a telephone conversation, obtained by a third party through eavesdropping, with an extension receiver, without the knowledge of either party were inadmissible, and that testimony concerning the intercepted conversation was prejudicial and required a new trial. See Horn v. State, 298 So. 2d 194 (Fla. 1st DCA 1974).

When evaluating the sufficiency of the evidence, the reviewing court must consider all evidence presented at trial, including evidence that may have been admitted in error. See Redd v. State, 49 So. 3d 329, 335 n.3 (Fla. 1st DCA 2010) (“We are required to consider even erroneously admitted evidence when reviewing the denial of a motion for judgment of acquittal.”); see also Lewis v. State, 754 So. 2d 897, 902 (Fla. 1st DCA 2000) (“[I]n reviewing the denial of the motion [for judgment of acquittal], we are to consider all evidence admitted at trial, whether or not it was erroneously admitted.”); Barton v. State, 704 So. 2d 569, 573 (Fla. 1st DCA 1997) (holding that a defendant is not entitled to “a judgment of acquittal merely because evidence that is critical to the court’s finding of sufficiency was improperly admitted.”).

FOOTNOTE

We reject the State’s argument the admission was proper because Judkins had no reasonable expectation of privacy when he made the threatening statements. State v. Foster, 323 So. 3d 209 (Fla. 4th DCA 2021), which reversed an order that had granted suppression of a surreptitious recording on the ground that the appellant had a reasonable expectation of privacy, does not require a different result. The recorded conversation in Foster occurred in a state correctional institution.

[T]he State was required to prove he resisted the specific officers named in the information charging him with the crime. See, e.g., Carlson v. State, 166 So. 3d 957 (Fla. 4th DCA 2015). However, our review of the record establishes that the State did prove Mesamours resisted Detectives Dordor and Russel because he accelerated in an attempt to avoid police after the officers activated their emergency lights. See C.E.L. v. State, 24 So. 3d 1181 (Fla. 2009) (flight in knowing defiance of an officer’s lawful order to stop constitutes offense of resisting without violence).

In Melbourne v. State, 679 So. 2d 759 (Fla. 1996), the Florida Supreme Court set forth guidelines for trial courts in ruling upon a race-based objection to a peremptory challenge.3 First, a party objecting to the use of a peremptory challenge must demonstrate the venireperson is a member of a distinct racial group and request a reason for the strike. Id. at 764. Next, the proponent of the strike must give a race-neutral explanation for the strike. Id. Finally, if the reason given is facially race-neutral, “and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained.” Id. (emphasis added). The court should focus on the genuineness of the strike proponent’s explanation and “the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.” Id. (emphasis added).

“A trial court’s decision to allow a peremptory strike of a juror is based primarily on an assessment of credibility.” Poole, 151 So. 3d at 409 (citing King v. State, 89 So. 3d 209, 229 (Fla. 2012)). On review, we “must ‘acknowledge that peremptory challenges are presumed to be exercised in a nondiscriminatory manner,’” id. (emphasis added) (quoting Nowell v. State, 998 So. 2d 597, 602 (Fla. 2008)). Of significance, “[a]s the trial court is generally in the best position to assess the genuineness of the reason advanced, the decision will be affirmed unless clearly erroneous.” Id. (emphasis added).

“[i]n making a genuineness determination, the Court should consider all relevant circumstances surrounding the strike,” presuming that the strike is not discriminatory. Poole, 151 So. 3d at 409-10. This important precept distinguishes this case from our prior precedent in Overstreet v. State, 712 So. 2d 1174 (Fla. 3d DCA 1998) and Randall v. State, 718 So. 2d 230 (Fla. 3d DCA 1998).

[T]he State commendably concedes error. We agree that Counts I and II plainly fail the Blockburger test. Simple possession is subsumed by possession with intent to distribute; the former does not have any element that the latter does not. See Sims v. State, 793 So. 2d 1153, 1154 (Fla. 4th DCA 2001) (“Convictions for possession with intent to sell [drugs] and simple possession of the same [drugs] violate a defendant’s double jeopardy rights.”) (citation omitted).

After the defendant makes a prima facie showing that a peremptory strike was based on race (step one), the prosecutor must provide a race-neutral reason for the challenged strike (step two). Then, at step three, defense counsel has an opportunity to rebut the prosecutor’s race-neutral reason as pretextual, and the trial court in turn decides whether the prosecutor’s race-neutral reason for striking a juror is pretextual “in light of all evidence with a bearing on it.” Miller-El v. Dretke, 545 U. S. 231, 252 (2005); see Flowers v. Mississippi, 588 U. S. 284, 301–303 (2019); Snyder v. Louisiana, 552 U. S. 472, 478–479 (2008). In this capital case, the Mississippi trial court never conducted the essential third step of the Batson inquiry… by concluding that Pitchford had waived his opportunity to rebut the prosecutor’s race-neutral reasons as pretextual at Batson’s third step.

After a prosecutor asserts race-neutral reasons for a peremptory strike, the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual. Then, the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual. In this case, whether due to confusion, oversight, an overly hurried jury selection process, or some other cause, things broke down, and the ordinary trial-court procedure for resolving Batson claims at step three never occurred…

A defendant may establish deficient performance where counsel’s misadvice leads the defendant to reject a favorable plea. Steel v. State, 684 So. 2d 290, 291 (Fla. 4th DCA 1996). Counsel has a duty to provide reasonably accurate advice regarding both the strength of the state’s case and the defendant’s potential sentencing exposure. See Cobb v. State, 394 So. 3d 1195, 1198 (Fla. 3d DCA 2024) (“Generally, defense counsel is obligated to advise the defendant of all pertinent matters bearing on the choice of which plea to enter, including the strength of the case brought by the State against the defendant.”); Louima v. State, 247 So. 3d 564, 566 (Fla. 4th DCA 2018) (noting that “[a]n ineffective assistance claim is sufficient where the attorney failed to advise the defendant of the maximum penalty that he or she faces”).

[T]he defendant must demonstrate a reasonable probability that the plea would have been entered and accepted. Frye, 566 U.S. at 148. This determination is made through an objective assessment of the circumstances at the time of the plea offer. Key v. State, 357 So. 3d 1227, 1229 (Fla. 4th DCA 2023).

As to the first Alcorn factor, Inostroza testified that he would have accepted the plea offer had he been properly advised regarding his sentencing exposure and the risks of proceeding to trial. The trial court did not reject this testimony as not credible, and the record does not refute this testimony. Given the substantial disparity between the plea offer and the possible maximum sentence, the evidence supports a reasonable probability that Inostroza would have accepted the offer.

Hines v. State, 358 So. 2d 183, 185 (Fla. 1978) (explaining a VOP affidavit need only allege the basic facts and “need not be set forth with the specificity required in criminal indictments and informations”). More importantly, the same VOP affidavit also relied on Reddick’s nine violations of the standard condition of living without violating the law, as to which Reddick clearly received full due process. His final argument about costs of prosecution fails under current law. See Parks v. State, 411 So. 3d 414 (Fla. 2025).

Sapp v. State, 372 So. 3d 768, 770–71 (Fla. 1st DCA 2023) (“[A] defendant alleging that counsel was ineffective for failing to . . . preserve a claim of reversible error . . . must demonstrate prejudice at the trial, not on appeal.” (quoting Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007))). Rather, “[u]nder Hill [v. Lockhart, 474 U.S. 52 (1985)], a movant alleging ineffective assistance must demonstrate ‘a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Id. at 770 (quoting Hill, 474 U.S. at 59).

“It is elemental in our system of jurisprudence that the jury is the sole arbiter of the credibility of witnesses. Thus, it is an invasion of the jury’s exclusive province for one witness to offer his personal view on the credibility of a fellow witness.” Davis v. State, 360 So. 3d 809, 814 (Fla. 2d DCA 2023) (quoting Sierra v. State, 230 So. 3d 48, 51-52 (Fla. 2d DCA 2017)). “This principle applies equally in cases where the testimony offered directly comments on the truthfulness of a minor victim.” Smith v. State, 292 So. 3d 46, 48-49 (Fla. 5th DCA 2020) (collecting cases). Indeed, where a case turns on the credibility of the victim—a common occurrence in molestation cases like this one— improper bolstering can be particularly harmful. See Johnson v. State, 177 So. 3d 1005, 1008 (Fla. 1st DCA 2015) (”Improper bolstering of a witness is especially troubling in a case that rests solely on competing witness accounts to establish an element of the crime.”); see also Cavaliere v. State, 147 So. 3d 628, 630 (Fla. 2d DCA 2014) (”Because the primary evidence against Cavaliere was the victim’s testimony, we cannot say that the State has proved beyond a reasonable doubt that the error was harmless.”).

“[W]hen a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible, is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave.” Davis, 360 So. 3d at 814 (quoting Martinez v. State, 761 So. 2d 1074, 1080 (Fla. 2000)). “Thus, ‘[w]here a police officer’s testimony is used to bolster the credibility of a victim, the error cannot be deemed harmless.’ “ Id. (alteration in original) (quoting Sierra, 230 So. 3d at 52); see also Cavaliere, 147 So. 3d at 629 (”[E]rrors committed from the improper admission of a police officer’s testimony that can be used to bolster the credibility of a victim’s trial testimony cannot be deemed harmless.” (quoting Lee v. State, 873 So. 2d 582, 584 (Fla. 3d DCA 2004))).

Civilians are also prohibited from vouching for the victim’s credibility. “Although the prohibitions on civilians vouching for a victim’s credibility have not been treated as harshly by the courts, such testimony can still be harmful error.” Cavaliere, 147 So. 3d at 629 (citing Rhue v. State, 693 So. 2d 567, 568 (Fla. 2d DCA 1996)).

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”).