BOOYAH Flashcards

Question

Defendant is properly convicted of both attempted voluntary manslaughter and aggravated battery for the same general act. // Newell v. S., 935 So. 2d 83 (5th DCA 2006), 31 F.L.W. D2074 (8/4/2006)

Answer 1

Defendant is properly convicted of both attempted voluntary manslaughter and aggravated battery for the same general act. // Newell v. S., 935 So. 2d 83 (5th DCA 2006), 31 F.L.W. D2074 (8/4/2006)

Answer 2

Defendant was charged with aggravated battery of an LEO causing great bodily harm with a firearm. The use of the firearm was not an element of the crime, and the jury was instructed only on great bodily harm. Interrogatories on the verdict form made a special finding that defendant possessed a firearm, discharged the firearm, and inflicted great bodily harm on an LEO. Thus, the first-degree felony of aggravated battery on an LEO is reclassified for use of the firearm to a life felony, and as a PRR, the court is obligated to impose a life sentence. // While the court has discretion under the 10-20-Life law not to impose life when defendant injures a person with a firearm during a crime, it does not have discretion to refuse a life sentence when defendant qualifies as a PRR. // S. v. Robbins, 936 So. 2d 22 (5th DCA 2006), 31 F.L.W. D1716 (6/23/2006)

Answer 3

There is no offense of attempted battery on an LEO. // J.S. v. S., 925 So. 2d 438 (5th DCA 2006), 31 F.L.W. D1002 (4/7/2006)

Answer 4

When defendant's only act was to separate two other people involved in a fight, the court errs in failing to grant a JOA. // K.W.S. v. S., 924 So. 2d 80 (5th DCA 2006), 31 F.L.W. D635 (2/24/2006)

Answer 5

Simple battery is a category II lesser of lewd battery. The lack of consent to the touching is legally presumed, and the fact that it is not alleged does not prevent the court from giving battery as a lesser. // Jackson v. S., 920 So. 2d 737 (5th DCA 2006), 31 F.L.W. D434 (2/10/2006)

Answer 6

The court properly allows the state to prove a prior battery at sentencing rather than at trial in reclassifying a misdemeanor battery to a felony under §748.03(2). // R.R. v. S., 920 So. 2d 146 (5th DCA 2006), 31 F.L.W. D361 (2/3/2006)

Answer 7

Defendant is properly convicted of both attempted murder with a firearm and aggravated battery causing great bodily harm for a single act of shooting the victim. // Bradley v. S., 901 So. 2d 924 (5th DCA 2005), 30 F.L.W. D1052 (4/22/2005)

Answer 8

Aggravated battery is a permissive lesser of second degree murder. The court errs in giving it, though, when all the element of aggravated battery are not alleged in the information. // When counsel does not object to giving aggravated battery as a lesser, the error is not preserved. // Whyte v. S., 881 So. 2d 1183 (5th DCA 2004), 29 F.L.W. D1974 (8/27/2004)

Answer 9

Defendant may not be convicted of both simple battery and battery on an elderly person for the same criminal episode. // Anderson v. S., 877 So. 2d 958 (5th DCA 2004), 29 F.L.W. D1743 (7/30/2004)

Answer 10

The mandatory minimum sentence for aggravated BLEO created by session law 99-188 is unconstitutional due to a single subject violation. The reenactment of the mandatory in session law 2002-209 cannot apply retroactively. // (See this case for extensive discussion of the retroactive effect of reenacting a statute held unconstitutional. Also see this case for extensive discussion of the various rulings by Florida district courts regarding the constitutionality of session law 99-188.) // Jones v. S., 872 So. 2d 938 (5th DCA 2004), 29 F.L.W. D747 (3/26/2004) // see •Franklin v. S., ___ So. 2d ___, 29 F.L.W. S538 (Fla. 9/30/2004)

Answer 11

Defendant is properly convicted of both attempted 2d degree murder and aggravated battery causing great bodily harm for a single incident. // Gutierrez v. S., 860 So. 2d 1042 (5th DCA 2003), 28 F.L.W. D2790 (12/5/2003)

Answer 12

Defendant is properly convicted of both aggravated battery on an LEO and resisting with violence for the same incident where she runs over an officer following her stop for a shoplifting offense. The offenses are not variants of the same offense. // Austin v. S., 852 So. 2d 898 (5th DCA 2003), 28 F.L.W. D1840 (8/8/2003)

Answer 13

A doctor is properly allowed to testify that the victim’s injuries were “severe” in an aggravated battery case. // Defining “great bodily harm” as “great harm as distinguished from slight, trivial, minor, or moderate harm and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery” is proper. // Chesnoff v. S., 840 So. 2d 423 (5th DCA 2003), 28 F.L.W. D780 (3/21/2003)

Answer 14

Defendant is properly convicted of both attempted 2d degree murder and aggravated battery for a single act of stabbing the victim. // Schirmer v. S., 837 So. 2d 587 (5th DCA 2003), 28 F.L.W. D476 (2/14/2003)

Answer 15

Defendant cannot be convicted of both battery and violation of injunction under § 784.047 for the same act of battery. // Young v. S., 827 So. 2d 1075 (5th DCA 2002), 27 F.L.W. D2239 (10/11/2002)

Answer 16

Battery is not a lesser of kidnapping when the information fails to allege that defendant intentionally touched the victim. // Donovan v. S., 821 So. 2d 1099 (5th DCA 2002), 27 F.L.W. D1289 (5/31/2002)

Answer 17

When a crime can be charged in alternate ways (here, BLEO which can be charged by intentionally touching or striking, or by causing bodily harm) and the state chooses only one form and presents evidence going to only one form, it is not fundamental error to instruct the jury on both forms. Under State v. Delva, 575 So. 2d 643 (Fla. 1991), it is not fundamental error to omit an element about which there is no dispute. Similarly, it is not fundamental error to include an element about which there is no evidence or dispute. // S. v. Weaver, 957 So. 2d 586 (Fla. 2007), 32 F.L.W. S216 (5/10/2007) // reversing Weaver v. S., 916 So. 2d 895 (2d DCA 2005) // disapproving Vega v. S., 900 So. 2d 572 (2d DCA 2004) and Dixon v. S., 823 So. 2d 792 (2d DCA 2001)

Answer 18

Conviction for an uncharged crime is fundamental error. Where defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed on aggravated battery with a deadly weapon and also by committing great bodily harm, and the jury finds aggravated battery with great bodily harm, the conviction is reversed and remanded for sentencing on simple battery. // When the jury is instructed on both types of battery and the jury returns a general verdict, the error is not fundamental because it is unclear whether the verdict is based on an uncharged crime. // (See this case for extensive discussion of fundamental error in the context of uncharged crimes.) // Jaimes v. S., 51 So. 3d 445 (Fla. 2010), 35 F.L.W. S710 (12/8/2010) // reversing in part Jaimes v. S., 19 So. 3d 347 (2d DCA 2009)

Answer 19

Defendant can be prosecuted for felony battery after having been found guilty of contempt for violating a domestic violence restraining order. The elements of contempt and felony battery are different, and each contains an element to other does not. // S. v. Rothwell, 981 So. 2d 1279 (1st DCA 2008), 33 F.L.W. D1392 (5/27/2008)

Answer 20

When defendant is convicted of aggravated battery by causing great bodily harm, the 2d degree felony can be reclassified to a 1st degree felony for the use of a deadly weapon. When the conviction is for aggravated battery for using a weapon, the crime cannot be reclassified. // Hurry v. S., 978 So. 2d 854 (1st DCA 2008), 33 F.L.W. D956 (4/7/2008)

Answer 21

Section 784.045 creates two forms of aggravated battery, the first focusing on the injury to the victim and the second on the type of weapon used. Where defendant is charged under §784.045(1)(a)1, and the information alleged “great bodily harm,” evidence going to permanent disability or permanent disfigurement is properly allowed. If defendant is unsure about how he is charged, he should request a statement of particulars. // Calloway v. S., 37 So. 3d 891 (1st DCA 2010), 35 F.L.W. D963 (4/29/2010)

Answer 22

Under the 1997 version of §784.08, a person convicted of aggravated battery of an elderly person cannot be sentenced as a habitual offender because that statute required that defendant be sentenced pursuant to the sentencing guidelines. While an upward departure under the guidelines is still a sentence entered “pursuant to the guidelines,” a habitualized sentence is not. // Williams v. S., 28 So. 3d 70 (1st DCA 2009), 34 F.L.W. D2520 (12/8/2009)

Answer 23

Whether any particular item is a deadly weapon for aggravated battery purposes is a question of fact for the jury. // “Great bodily harm” is distinguished from slight, trivial, moderate harm and does not include mere bruises. // The jury properly determines that defendant committed aggravated battery by splashing household bleach into the victim’s face. // Smith v. S., 969 So. 2d 452 (1st DCA 2007), 32 F.L.W. D2717 (11/15/2007)

Answer 24

A simple battery reclassified to a felony as a result of prior simple batteries will never qualify either for PRR sentencing or violent career criminal sentencing. // Johns v. S., 971 So. 2d 271 (1st DCA 2008), 33 F.L.W. D181 (1/7/2008)

Answer 25

Where the evidence does not show that the police chasing defendant had a reasonable suspicion that he had engaged in criminal activity, and does not show that they communicated an intent to arrest, the court errs in failing to grant a JOA in a case of resisting with violence and BLEO based on the failure to prove that the officers were engaged in the lawful execution of a legal duty. // Smith v. S., 993 So. 2d 981 (2d DCA 2007), 32 F.L.W. D2352 (9/28/2007)

Answer 26

Defendant was convicted of battery on an LEO, resisting with violence, and resisting without violence for an incident in which he shoved an officer, flailed his arms about, and then ran. Held: Because the running was part of a single incident of resisting, defendant cannot be convicted of both resisting with violence and resisting without violence. // Defendant is properly convicted of both BLEO and resisting with violence where he both shoves the officer and does other things as part of the offering to do violence to the officer. // Boyd v. S., 988 So. 2d 1242 (2d DCA 2008), 33 F.L.W. D2031 (8/22/2008)

Answer 27

Lewd battery is not a predicate offense for felony battery and cannot be used to transform a misdemeanor battery into a felony based on priors. Because lewd battery is not listed as a predicate under §784.03(2), it cannot be used as a predicate, regardless of the facts of the lewd battery. // Aldacosta v. S., 41 So. 3d 1096 (2d DCA 2010), 35 F.L.W. D1861 (8/18/2010)

Answer 28

Defendant was charged with burglary with a battery and sexual battery. He was convicted of burglary with a battery and simple battery as a lesser of sexual battery. Held: Under the circumstances conviction of those offense is a double jeopardy violation. // Avila v. S., 9 So. 3d 778 (2d DCA 2009), 34 F.L.W. D1138 (6/5/2009)

Answer 29

When defendant is charged with aggravated battery with a deadly weapon, and the jury is instructed both on the deadly weapon and great bodily harm methods of committing the crime, and the evidence could sustain either version, but appellate counsel does not raise the issue, counsel is ineffective and the conviction is reversed. // When there is no dispute regarding the manner in which a crime was committed, the error in instructing regarding an uncharged theory can be harmless. However, when the evidence could support both the charged and uncharged method, the court errs in giving an instruction regarding the uncharged crime. // Sanders v. S., 959 So. 2d 1232 (2d DCA 2007), 32 F.L.W. D1569 (6/22/2007)

Answer 30

A conviction for aggravated battery by causing great bodily harm, when the information charges aggravated battery with a deadly weapon, is not fundamental error when there is no objection and the issue of harm is not contested. // Jaimes v. S., 19 So. 3d 347 (2d DCA 2009), 34 F.L.W. D852 (4/29/2009)

Answer 31

Aggravated battery with a firearm is not subject to being reclassified to a first degree felony when the use of the firearm is an essential element of the crime. However, when the jury makes appropriate findings, the court properly imposes a mandatory minimum sentence under the 10-20-Life law. // Jacobs v. S., 954 So. 2d 1268 (2d DCA 2007), 32 F.L.W. D1122 (4/27/2007)

Answer 32

Defendant failed to appear for a Marchman Act hearing, and the child’s parents called the police. An officer believed that a pickup order had been issued, and approached defendant to detain her. The child resisted, and was convicted of BLEO. Held: Because no pickup order had been issued, the officer was not in the lawful performance of a legal duty when he detained her, and the court errs in finding her guilty of BLEO. // C.B. v. S., 979 So. 2d 391 (2d DCA 2008), 33 F.L.W. D1080 (4/18/2008)

Answer 33

Defendant was charged with aggravated battery by causing great bodily harm, by discharging a firearm. He was convicted as charged and the court reclassified the offense to an F1 and sentenced defendant to 30 years with a 25-year mandatory minimum. The verdict form gave the options, “guilty of aggravated battery with a firearm (Discharging firearm and inflicting great bodily harm) as charged; guilty of Aggravated Battery with a Firearm (Discharging a Firearm); and other lessers, and the jury checked the first box. Held: By describing the crime as “Aggravated battery with a firearm,” the verdict had the effect of making the use of a firearm an element of the crime, which prohibits reclassification to an F1 (but see dissent). // Webb v. S., 997 So. 2d 469 (2d DCA 2008), 33 F.L.W. D2837 (12/12/2008)

Answer 34

Omitting the words “intentionally and knowingly” from the second element of the jury instructions for aggravated BLEO is harmful fundamental error. Appellate counsel is ineffective for failing to argue that error. // Wilfork v. S., 992 So. 2d 907 (2d DCA 2008), 33 F.L.W. D2504 (10/24/2008)

Answer 35

Defendant cannot be sentenced as a habitual violent felony offender for a conviction for aggravated battery on an elderly person under §784.08(1) (1995) because the battery statute requires sentencing under the guidelines. // Wright v. S., 992 So. 2d 911 (2d DCA 2008), 33 F.L.W. D2508 (10/24/2008)

Answer 36

The state must prove specific intent to cause great bodily harm to prove aggravated battery. When the state proves only a general intent to commit a battery, and the result is great bodily harm, the defendant must be convicted of felony battery rather than aggravated battery. // T.S. v. S., 965 So. 2d 1288 (2d DCA 2007), 32 F.L.W. D2507 (10/19/2007)

Answer 37

A school resource officer is performing a legal duty when he tries to calm a disturbance at school, and the child is properly convicted of BLEO when she batters the officer. // Performing a legal duty is an element of BLEO // L.R. v. S., 948 So. 2d 827 (2d DCA 2007), 32 F.L.W. D256 (1/19/2007)

Answer 38

The court errs in giving a jury instruction on battery that includes both “intentionally touching or striking” the victim, and “causing bodily harm to the victim,” when the information charges only touching or striking. // The error is not fundamental when the state does not rely on the erroneous charge and does not argue it in closing, and the defendant admitting the striking the victim. // Defendant was charged with battery evidencing prejudice, and the evidence showed that he got into a fight with a black man in a convenience store after he called the victim a “nigger.” After his arrest, the defendant was placed in a patrol car and he called the arresting officer, who was black, a “nigger.” the officer testified to that fact at trial. Held: Because the charge was a hate crime, evidence of defendant’s motive was relevant. Defendant’s actions and comments immediately following the incident was relevant to show his motivation for committing the crime. // Jomolla v. S., 990 So. 2d 1234 (3d DCA 2008), 33 F.L.W. D2268 (9/24/2008)

Answer 39

A firearm as a matter of law is a deadly weapon. Where the firearm is used to strike the victim, the offense constitutes aggravated battery because the defendant used a deadly weapon to strike the victim. The fact that the weapon was not used in a manner likely to cause death or grate bodily harm does not control. // S. v. Williams, 10 So. 3d 1172 (3d DCA 2009), 34 F.L.W. D1068 (5/27/2009)

Answer 40

LEOs in an unmarked truck with dark tinted windows were conducting drug surveillance. Defendant juvenile and a friend walked up to the truck and looked in, but did not try to enter the truck. LEO tried to stop the child and he left the scene. When the officer confronted him later, the child pushed him and ran away. Held: The evidence is insufficient to show that the officer was engaged in the lawful performance of his duties to sustain a BLEO charge. // K.H. v. S., 8 So. 3d 1155 (3d DCA 2009), 34 F.L.W. D739 (4/8/2009)

Answer 41

BLEO cannot serve as a predicate offense for either PRR sentencing or violent career criminal sentencing. // Acosta v. S., 982 So. 2d 87 (3d DCA 2008), 33 F.L.W. D1223 (4/30/2008)

Answer 42

Aggravated battery is a 2d degree felony that can be reclassified for use of a firearm so long as use of a firearm is not an essential element. Aggravated battery can be committed by causing great bodily harm, or by use of a deadly weapon. Where the information charges only great bodily harm aggravated battery, but the prosecutor and court mix up the two forms and the instructions and verdict forms are not clear about the types, the court errs in reclassifying the charge. // The failure to object to an improper reclassification is ineffective assistance of counsel. // Hernandez v. S., 30 So. 3d 610 (3d DCA 2010), 35 F.L.W. D570 (3/10/2010)

Answer 43

Defendant and victim got in a fight, and the victim died. Defendant was charged with second degree murder, which was JOA’d to manslaughter after the state’s case. The court instructed on aggravated battery as a lesser, and the jury convicted on that charge. Held: An allegation that defendant killed the victim sufficiently alleges that he caused great bodily harm to support an aggravated battery conviction as a lesser of manslaughter. // Lester v. S., 25 So. 3d 623 (3d DCA 2009), 35 F.L.W. D22 (12/23/2009)

Answer 44

When sentencing a youthful offender for battery on an elderly person, the court is authorized to withhold adjudication. While section 784.08(3) requires an adjudication, section 958.04(2)(a) allows the court to withhold. The youthful offender provision prevails over the battery section. // S. v. Blackburn, 965 So. 2d 231 (4th DCA 2007), 32 F.L.W. D2126 (9/5/2007)

Answer 45

Defendant cannot be convicted of burglary with an aggravated battery, robbery with an aggravated battery, and aggravated battery for the same incident involving a single aggravated battery. The aggravated battery conviction violates double jeopardy rules. // Finkley v. S., 16 So. 3d 329 (4th DCA 2009), 34 F.L.W. D1890 (9/16/2009)

Answer 46

Defendant was charged with felony battery based on prior convictions. Using the bifurcation rule of S. v. Harbaugh, 754 So. 2d 691 (Fla. 2000), the jury determined that he was guilty of simple battery. The jury then was presented evidence regarding his priors, and was unable to reach a verdict. The jury was discharged, and the state asked to empanel a new jury. The court disagreed, and adjudicated him guilty of misdemeanor battery. Held: The jury’s verdict and the court’s adjudication represented an acquittal on the felony battery charges, and he cannot be retried. It is improper for separate juries to determine separate elements of a felony battery charge. // Warthen v. S., 988 So. 2d 154 (4th DCA 2008), 33 F.L.W. D1915 (8/6/2008)

Answer 47

No fundamental error occurs when the court instructs that jury that the arresting officer in a BLEO case was a law enforcement officer, when the evidence presented at trial showed no dispute on the issue whether the victim was an LEO. // Defendant cannot be sentenced as a PRR for BLEO. // Dennis v. S., 980 So. 2d 1279 (4th DCA 2008), 33 F.L.W. D1312 (5/14/2008)

Answer 48

(See Haliburton v. S., 7 So. 3d 601 (4th DCA 2009), 34 F.L.W. D682 (4/1/2009) for discussion of which offenses are lessers in a charge of aggravated battery with a firearm and by causing great bodily harm.)

Answer 49

Felony battery causing great bodily harm can qualify as a predicate offense for PRR sentencing under the proper circumstances. // (See this case for the distinction between felony battery under §784.041, which can qualify for PRR sentencing, and simple battery enhanced to a felony under §784.03(3), which does not.) // S. v. Williams, 9 So. 3d 658 (4th DCA 2009), 34 F.L.W. D685 (4/1/2009)

Answer 50

Under §784.045(1)(a), to commit aggravated battery with a deadly weapon, the statute does not require that the deadly weapon actually touch the victim. The plain meaning of the statute is that if a deadly weapon is used in any manner in committing the battery, the offense becomes aggravated battery. Thus, holding a deadly weapon while unlawfully touching the victim constitutes aggravated battery. // •Severance v. S., 972 So. 2d 931 (4th DCA 2007), 32 F.L.W. D2938 (12/13/2007) // en banc, receding from Munoz-Perez v. S., 942 So. 2d 1025 (4th DCA 2006)

Answer 51

No error occurs in allowing the jury to convict defendant of burglary with an assault without making a specific finding whether defendant committed an assault or a battery during the burglary. Since the statute can be violated with either offense, there is no need to make a specific finding. // Gorham v. S., 993 So. 2d 128 (4th DCA 2008), 33 F.L.W. D2466 (10/22/2008)

Answer 52

A simple battery upgraded to felony battery due to a prior conviction under §784.03(2) is not a crime of physical force or violence such that it will allow PRR sentencing. // Spradlin v. S., 967 So. 2d 376 (4th DCA 2007), 32 F.L.W. D2486 (10/17/2007)

Answer 53

Defendant may not be convicted of both burglary with an assault, and battery, for a single incident when the information does not allege whether defendant was charged with burglary with an assault, burglary with a battery, or both. // Young v. S., 43 So. 3d 876 (5th DCA 2010), 35 F.L.W. D1984 (9/3/2010)

Answer 54

Defendant can be convicted of both robbery and battery for the same incident. // Defendant waives a double jeopardy argument by entering a guilty plea, unless the plea is a general plea, the double jeopardy violation is apparent on the record, and there is nothing in the record to show that the claim was waived. // T.C.E. v. S., 965 So. 2d 338 (5th DCA 2007), 32 F.L.W. D2279 (9/21/2007)

Answer 55

Defendant was charged with battery on a pregnant person, and the state included an allegation of a proper battery conviction. He was convicted of simple battery, and the state then presented evidence to the jury of the prior, and the court enhanced the simple battery to a felony. Held: Because the state included the allegation of the prior, the defendant is properly convicted of felony battery. // Cox v. S., 988 So. 2d 1236 (5th DCA 2008), 33 F.L.W. D2032 (8/22/2008)

Answer 56

Lack of consent to being touched can be established in a battery case by circumstantial evidence. Thus, where several witnesses saw the victim being hit and punched by the defendant, that evidence is admissible to show lack of consent. // S. v. Clyatt, 976 So. 2d 1182 (5th DCA 2008), 33 F.L.W. D820 (3/20/2008)

Answer 57

Where the information charges aggravated battery by causing great bodily harm to the victim, and the court instructs only on aggravated battery by use of a deadly weapon, the error is fundamental and the conviction is reversed. // Reddick v. S., ___ So. 3d ___, 36 F.L.W. D532 (5th DCA 3/11/2011)

Answer 58

While attempting to throw a stapler at another child, the defendant instead hit a teacher. He was charged with battery on a school employee. Held: Transferred intent is not applicable to enhance the severity of a crime against an unintended victim. the defendant could be found guilty of battery only. // S.G. v. S., 29 So. 3d 383 (5th DCA 2010), 35 F.L.W. D483 (2/26/2010)

Answer 59

Under section 784.07(2)(d), a person convicted of aggravated battery on an LEO must be sentenced to a 5-year mandatory minimum. The court is not permitted to impose a downward departure. However, the court may avoid the mandatory by imposing a youthful offender sentence. // S. v. Gretz, 972 So. 2d 212 (5th DCA 2007), 32 F.L.W. D2844 (11/30/2007)

Answer 60

A wrench can constitute a deadly weapon for aggravated battery purposes when it is used in s manner likely to cause death or great bodily harm. The court properly submits the issue to the jury when the evidence shows that the defendant struck the victim on the head several time with a wrench, resulting in cuts that required stitches. // Michaud v. S., 47 So. 3d 374 (5th DCA 2010), 35 F.L.W. D2508 (11/12/2010)

Answer 61

Section 810.015, in which the legislature seeks to overrule Delgado, does not apply to burglaries committed before 2/1/00. Thus, the Delgado rule pertaining to the “remaining in” portion of the statute, applies to burglaries occurring before that date. // S. v. Ruiz, 863 So. 2d 1205 (Fla. 2003), 28 F.L.W. S855 (12/18/2003) // approving Ruiz v. S., 841 So. 2d 468 (3d DCA 2002, and Braggs v. S., 815 So. 2d 657 (3d DCA 2002)

Answer 62

Defendant was charged with premeditated and felony murder with robbery and burglary as the predicate felonies. At trial, the evidence showed that the defendant and another person entered the victim’s home with consent, and there was no evidence of surreptitious remaining in the house. The jury returned a general verdict of guilty. Held: A general verdict is invalid when it rests on multiple bases, one of which is legal invalid. because the jury received an improper pre-Delgado instruction regarding “remaining in” the residence, the burglary is improper. Because the jury could have based the murder conviction on a felony murder theory, and the felony murder theory could have rested on an improper understanding of burglary, the conviction is reversed. // Fitzpatrick v. S., 859 So. 2d 486 (Fla. 2003), 28 F.L.W. S679 (9/11/2003)

Answer 63

Where the location of a burglary is a well-known public place (here, a school), and is identified in testimony and pleadings, there is no need to present testimony showing that the building is owned by the county school board. The place is sufficiently identified and there is no possibility of misidentification. // D.S.S. v. S., 850 So. 2d 459 (Fla. 2003), 28 F.L.W. S449 (6/12/2003) // affirming D.S.S. v. S., 806 So. 2d 554 (2d DCA 2002)

Answer 64

The fact that a premises is open to the public is a complete defense to burglary. When a person who is the subject of a domestic violence restraining order which prohibits him from going to his wife’s place of employment comes to that location a kills her, he does not commit burglary. // The burglary and trespass statutes are written differently, and while the defendant’s act of coming to the victim’s workplace does not constitute burglary, it does constitute trespassing. // (See this case for extensive discussion of the structure of the burglary statute, and application of statutory interpretation rules.) // •S. v. Byars, 823 So. 2d 740 (Fla. 2002), 27 F.L.W. S625 (7/3/2002) // approving State v. Byars, 792 So. 2d 1235 (4th DCA 2001)

Answer 65

While under Delgado a consensual entry cannot constitute a burglary when the defendant later commits a crime, the burden of showing consent is on the defendant. Where defendant presents no evidence that he was allowed in, the court can infer that the entry was not with consent of the victims. // Francis v. S., 808 So. 2d 110 (Fla. 2001), 27 F.L.W. S2 (12/20/2001)

Answer 66

Session law 2004-93, which attempts to nullify the rulings in Floyd v. State, 850 So. 2d 383 (Fla. 2002); Fitzpatrick v. State, 859 So. 2d 486 (Fla. 2003); and State v. Ruiz/State v. Braggs, Slip Opinion Nos. SC02-389/SC02-524, which held that session law 2001-58 could not retroactively overrule the ruling in Delgado v. State, 776 So. 2d 233 (Fla. 2000), is not effective. Thus, for burglaries occurring before the effective date of session law 2001-58, the Delgado rule applies, and counsel is ineffective in failing to raise the issue of whether defendant's entry was with consent when he is charged with “remaining in” a structure. The legislature cannot overrule a decision of the Supreme Court. // •S. v. Robinson, 936 So. 2d 1198 (1st DCA 2006), 31 F.L.W. D2255 (8/31/2006)

Answer 67

Defendant may not be convicted of both burglary with an assault and burglary with a battery for a single entry. // Williams v. S., 927 So. 2d 145 (1st DCA 2006), 31 F.L.W. D1136 (4/24/2006)

Answer 68

(See Davis v. S., 892 So. 2d 518 (1st DCA 2004), 29 F.L.W. D2794 (12/15/2004) for discussion of the effect of session law 2001-58 overruling Delgado on cases in the pipeline after the decision in Delgado but prior to the effective date of the statutory change.)

Answer 69

Where the court acquits the defendant on a burglary charge, it is error to convict him on possession of burglary tools. // M.F. v. S., 864 So. 2d 1223 (1st DCA 2004), 29 F.L.W. D302 (1/23/2004)

Answer 70

Session law 2001-58 amended the definition of burglary to avoid Delgado, and became effective on July 1, 2001. The failure to object to instructions given under the old statute for a crime committed after that date is not fundamental error. // Manning v. S., 861 So. 2d 528 (1st DCA 2003), 29 F.L.W. D97 (12/31/2003)

Answer 71

Where the victim testifies only that she looked out “the door” and saw defendant in her garage trying to steal something, the evidence is insufficient to sustain a conviction for burglary of a dwelling. There was insufficient evidence to show that the garage was attached to the house, and no evidence to show curtilage. The conviction should be reduced to burglary of a structure. // McAllister v. S., 859 So. 2d 611 (1st DCA 2003), 28 F.L.W. D2736 (11/26/2003)

Answer 72

Defendant may not be convicted of both burglary with an assault and armed burglary for a single entry. // McKinney v. S., 860 So. 2d 452 (1st DCA 2003), 28 F.L.W. D2018 (8/26/2003)

Answer 73

Theft is neither a category I nor II lesser of burglary. Where the information does not contain the elements of theft, the court does not err in refusing to instruct on theft as a lesser of burglary. // Jones v. S., 829 So. 2d 351 (1st DCA 2002), 27 F.L.W. D2358 (11/1/2002)

Answer 74

Section 943.325, which requires a person sentenced for burglary to give a DNA sample for database purposes is not unconstitutional. // •L.S. v. S., 805 So. 2d 1004 (1st DCA 2001), 26 F.L.W. D2970 (12/17/2001)

Answer 75

A house that is undergoing major reconstruction does not qualify as a dwelling, even though it had been a dwelling for decades. // (See this case, and dissent, for extensive discussion of what qualifies as a “dwelling” for burglary purposes.) // •Munoz v. S., 937 So. 2d 686 (2d DCA 2006), 31 F.L.W. D2007 (7/28/2006)

Answer 76

Defendant cannot be convicted of both burglary with an assault and armed burglary for a single entry. // Chambers v. S., 924 So. 2d 975 (2d DCA 2006), 31 F.L.W. D1016 (4/7/2006)

Answer 77

Defendant can be convicted of only one count of burglary when he makes one entry. He may not be convicted of both armed burglary and burglary with an assault for a single incident. // Valdez v. S., 915 So. 2d 636 (2d DCA 2005), 30 F.L.W. D2372 (10/7/2005)

Answer 78

Delgado applies to cases not final at the time of the decision, despite the legislative overruling of Delgado by session law 2001-58 (question certified). // Smith v. S., 867 So. 2d 617 (2d DCA 2004), 29 F.L.W. D620 (3/10/2004)

Answer 79

Accessory after the fact is not a lesser of burglary, and the court errs in finding the child guilty of that offense when he is charged with burglary and grand theft. // C.W. v. S., 861 So. 2d 1243 (2d DCA 2003), 28 F.L.W. D2880 (12/12/2003)

Answer 80

When the information charges burglary of a building owned by the county school board, and the testimony describes a break-in at a local high school, the court does not err in refusing JOA based on the failure to prove ownership when the state does not call a witness who testifies that the building was owned by the school board. When the building is a local landmark, and there is no testimony that defendant had any ownership interest, evidence of ownership is sufficient. // D.S.S. v. S., 806 So. 2d 554 (2d DCA 2002), 27 F.L.W. D167 (1/16/2002) // affirmed, D.S.S. v. S., ___ So. 2d ___, 28 F.L.W. S449 (Fla. 6/12/2003)

Answer 81

Defendant is properly convicted of armed burglary where the evidence shows he used a BB gun to carjack the victim’s car. Whether the weapon used is a dangerous weapon is an issue for the jury. The failure to present evidence going to the dangerousness of the weapon is not dispositive on the issue whether it is a deadly weapon. // (See this case for discussion of the evidence needed to determine that a weapon is a dangerous weapon for armed burglary purposes.) // Santiago v. S., 900 So. 2d 710 (3d DCA 2005), 30 F.L.W. D1071 (4/27/2005)

Answer 82

Where the defendant enters the victim’s home by causing her child to let him in, and the evidence shows he had the intent to attack the victim when he entered, the court properly denies a JOA on a burglary charge. // Irizarry v. S., 905 So. 2d 160 (3d DCA 2005), 30 F.L.W. D400 (2/9/2005)

Answer 83

Defendant escaped while being brought to court. He ran into a business and locked himself in, and he ultimately was recaptured. The state charged him with burglary for entering the business with the intent to commit escape. Held: The crime of escape had already occurred when he entered the building, and he cannot be convicted of burglary with the intent to commit escape. // Gaskin v. S., 869 So. 2d 646 (3d DCA 2004), 29 F.L.W. D780 (3/31/2004)

Answer 84

Court errs in sentencing defendant for burglary of a dwelling when the verdict form only specifies that he was guilty of burglary. Where the verdict form only specifies a finding of guilt on the charge of "Burglary," not burglary of a dwelling, he cannot be adjudicated on a burglary of a dwelling charge. // Fletcher v. S., 866 So. 2d 113 (3d DCA 2004), 29 F.L.W. D378 (2/11/2004)

Answer 85

Giving a “remaining in” instruction is not fundamental error when the sole theory of prosecution is that the entry was not consensual. // Johnson v. S., 858 So. 2d 1274 (3d DCA 2003), 28 F.L.W. D2645 (11/19/2003)

Answer 86

Section 810.015, in which the legislature sought to overrule Delgado, does not apply to crime committed before the date of the statute. // Burnes v. S., 861 So. 2d 78 (3d DCA 2003), 28 F.L.W. D2467 (10/29/2003)

Answer 87

Court errs in giving a “remaining in” instruction without including that the remaining in must be surreptitious. // Hernandez v. S., 851 So. 2d 892 (3d DCA 2003), 28 F.L.W. D1474 (6/25/2003)

Answer 88

Defendant was charged with armed burglary with an assault based on evidence that the victim found defendant in the carport, and as he approached he held a screwdriver in a threatening manner. He was convicted of armed burglary without an assault. Held: The verdict is not inconsistent. It is possible that the jury found he used the screwdriver as a weapon, but did not commit an assault on the victim. // Gonzalez v. S., 841 So. 2d 650 (3d DCA 2003), 28 F.L.W. D897 (4/9/2003)

Answer 89

While defendant does not commit burglary when he enters a store open to the public for the purpose of robbing it, when he goes over the counter into a non-public part of the store, he commits burglary. // Lewis v. S., 841 So. 2d 582 (3d DCA 2003), 28 F.L.W. D802 (3/26/2003)

Answer 90

Evidence that the defendant was identified in a burglarized warehouse, and that a firearm was missing, is sufficient to sustain armed burglary conviction. // Defendant’s argument that the gun could have been stolen at a time other than that when defendant was inside must be supported by evidence. Merely speculating that there could have been a second burglary is not sufficient. // Johnekins v. S., 823 So. 2d 253 (3d DCA 2002), 27 F.L.W. D1794 (8/7/2002)

Answer 91

Session law 2001-58, in which the legislature indicated that Delgado v. State, 776 So. 2d 233 (Fla. 2000) was wrongly decided and that case law issued prior to Delgado correctly interpreted the statute, failed to overrule the rule of Delgado. Only the Supreme Court can recede from a decision issued by it, and the legislature cannot bind the lower courts regarding a ruling from the Supreme Court (question certified). // Braggs v. S., 815 So. 2d 657 (3d DCA 2002), 27 F.L.W. D379 (2/13/2002)

Answer 92

When defendant is charged with burglary with an assault, the jury should be instructed that he can convicted him of both trespassing and battery on the single count. When defendant is charged with a compound crime, he can be convicted of multiple lessers for the single count. // Gregory v. S., 937 So. 2d 180 (4th DCA 2006), 31 F.L.W. D2172 (8/16/2006)

Answer 93

The court errs in giving the pre-2001 jury instructions, including the “remaining in” portion, in a post 2001 burglary. // Ray v. S., 933 So. 2d 716 (4th DCA 2006), 31 F.L.W. D1980 (7/26/2006)

Answer 94

In a pre-2001 burglary (Delgado rule in effect), the court does not err in including the “remaining in” language in the instructions when there was an issue whether the entry was stealthy and without consent, or was with consent. // Saintelus v. S., 935 So. 2d 51 (4th DCA 2006), 31 F.L.W. D1985 (7/26/2006)

Answer 95

When the child admits to using a screwdriver to start a stolen car, the court errs in finding him guilty of possession of burglary tools. While the screwdriver might have been used in the theft, there was no evidence that it was used in a burglary. // A.W. v. S., 920 So. 2d 845 (4th DCA 2006), 31 F.L.W. D577 (2/22/2006)

Answer 96

When defendant is charged with a compound offense such as burglary with a battery, the jury is permitted to convict for lessers of each component of the crime. Thus, when the jury sends out a note asking if they can convict of both trespass and battery, the court errs by telling the jury they may select only one. A judgment can be entered on both lessers when the information includes fact necessary to support convictions for both offenses. // Gian-Grasso v. S., 899 So. 2d 392 (4th DCA 2005), 30 F.L.W. D854 (3/30/2005)

Answer 97

Defendant is entitled to a habeas writ for ineffective assistance of appellate counsel when counsel did not raise on appeal a claim regarding the failure to give a proper burglary instruction. Instructing the jury that defendant must have a fully formed intent to commit burglary, rather than some other offense, is error. // Bruce v. S., 879 So. 2d 686 (4th DCA 2004), 29 F.L.W. D1836 (8/11/2004)

Answer 98

Where defendant enters a home located in a secluded place, the court properly gives a stealthy entry instruction. // Oviedo v. S., 879 So. 2d 682 (4th DCA 2004), 29 F.L.W. D1842 (8/11/2004)

Answer 99

Where the defendant entered a fenced area and stole golf carts, and there was not evidence that he entered a building or the curtilage of a building, the court errs in finding him guilty of burglary. // R.G. v. S., 865 So. 2d 685 (4th DCA 2004), 29 F.L.W. D422 (2/18/2004)

Answer 100

Defendant entered a church office and stole money at a time when the church was open for services. The church office was not open to the public, and the court read the “entered or remained” language of the standard instruction. Held: Under the circumstances, reading the “remaining in” language is not error, because there was sufficient evidence to sow that defendant entered the office surreptitiously. // Dixon v. S., 855 So. 2d 1245 (4th DCA 2003), 28 F.L.W. D2374 (10/15/2003)

Answer 101

Where defendant enters a home with a pocket knife in his hand, but does not threaten anyone with it, he is properly convicted of burglary of a dwelling rather than armed burglary. The pocket knife was not used in a manner likely to cause death or great bodily harm. // (See also the concurrence, arguing that is it improper to require that an armed burglary be reduced when defendant holds a pocketknife, but not when the defendant holds an unloaded BB gun, as in Dale v. S., 703 So. 2d 1045 (Fla. 1997).) // J.W. v. S., 849 So. 2d 1111 (4th DCA 2003), 28 F.L.W. D1446 (6/18/2003)

Answer 102

Including “remaining in” language in burglary jury instructions is not error when the defense argues that defendant entered with consent and there is evidence to support the theory that defendant entered and formed the intent to steal after entering. // Jones v. S., 843 So. 2d 946 (4th DCA 2003), 28 F.L.W. D910 (4/9/2003)

Answer 103

The court does not commit fundamental error by including the “remaining in” language in the burglary jury instruction when the crimes was a “breaking and entering” type of burglary. // Collins v. S., 839 So. 2d 862 (4th DCA 2003), 28 F.L.W. D694 (3/12/2003)

Answer 104

Where defendant claims that he went to a restaurant to apply for a job, and a security camera shows him running from the restaurant following a theft from the cash register, the circumstantial evidence is sufficient to withstand a JOA. // Durrant v. S., 839 So. 2d 821 (4th DCA 2003), 28 F.L.W. D627 (3/5/2003)

Answer 105

(See S.D. v. S., 837 So. 2d 1173 (4th DCA 2003), 28 F.L.W. D563 (2/26/2003) for discussion of the sufficiency of evidence showing intent to commit an offense in a burglary charge.)

Answer 106

While it may be error to give the “remaining in” jury instruction, where there is no reasonable probability that the jury would be misled by the erroneous instruction (here, because the defendant broke into a store in the middle of the night and stole a television), the error is not reversible. // Roberson v. S., 841 So. 2d 490 (4th DCA 2003), 28 F.L.W. D385 (2/5/2003)

Answer 107

While giving a “remaining in” instruction is error in a burglary trial, it is not fundamental error where there is no way the jury could have believed the defendant had not entered to residence without the intent to commit a crime. // Alexandre v. S., 834 So. 2d 344 (4th DCA 2003), 28 F.L.W. D196 (1/8/2003)

Answer 108

Trespass is a category two lesser of burglary of a dwelling. When the information alleges the element of the offense and there is evidence that supports the elements, the court must give the lesser if requested. The fact that there is evidence the defendant committed the greater crime is not relevant in deciding whether to give the lesser. // Piccioni v. S., 833 So. 2d 247 (4th DCA 2002), 28 F.L.W. D106 (12/26/2002)

Answer 109

An incomplete addition being constructed beside the victim’s home is part of the dwelling, and defendant is properly convicted of burglary of the dwelling. // Anderson v. S., 831 So. 2d 702 (4th DCA 2002), 27 F.L.W. D2369 (10/30/2002)

Answer 110

Trespass is a category II lesser of burglary of a dwelling. // For the court to be required to give a category II lesser, the elements of the lesser must be alleged and the evidence must support the lesser. // Court errs in giving trespassing with a human being present (§ 810.08(2)(b)) as a lesser of burglary of a dwelling when the information does not allege that the dwelling was occupied. // Henig v. S., 820 So. 2d 1037 (4th DCA 2002), 27 F.L.W. D1584 (7/10/2002)

Answer 111

Defendant scheduled an appointment and went to the office of a lawyer who had handled a case for him years before. Once in the office, the defendant pulled a gun and robbed the attorney. Held: The actions do not constituted burglary under the Delgado rule. // Otero v. S., 807 So. 2d 666 (4th DCA 2001), 26 F.L.W. D2701 (11/14/2001)

Answer 112

Where defendant clearly did not enter the victim’s residence in a stealthy manner, the court errs in giving the stealthy error instruction. // Erroneous instruction is subject to harmless error analysis. // Daughtry v. S., 804 So. 2d 426 (4th DCA 2001), 26 F.L.W. D2501 (10/17/2001)

Answer 113

The court errs in instructing the jury that before they can find the defendant guilty of burglary, it must find that he entered the home with the intent to commit burglary. The instruction is circular and is fundamental error. // Hillman v. S., 920 So. 2d 48 (5th DCA 2005), 30 F.L.W. D2839 (12/16/2005)

Answer 114

The court commits fundamental error when it instructs the jury that, as an element of burglary, the state must prove that the defendant had the “fully formed, conscious intent to commit an offense of burglary in that dwelling.” // Stone v. S., 899 So. 2d 421 (5th DCA 2005), 30 F.L.W. D885 (4/1/2005)

Answer 115

When defendant steals an antique firearm during a burglary, but does not use the gun in committing a crime, he cannot be convicted of armed burglary because the gun does not constitute a “dangerous weapon” under §810.02(2)(b). // Brown v. S., 896 So. 2d 808 (5th DCA 2005), 30 F.L.W. D416 (2/11/2005)

Answer 116

Because intent is shown by circumstantial evidence, it is up to the jury to determine whether the defendant had the intent to commit a crime when he entered the defendant’s home. Thus, when the evidence shows that defendant entered the victim’s home demanding to know where another person lived, and the defendant attacked the victim, the evidence is sufficient to sustain a determination that the defendant entered the home with the intent to commit a crime. // Perreault v. S., 831 So. 2d 784 (5th DCA 2002), 27 F.L.W. D2599 (12/6/2002)

Answer 117

Defendant is properly convicted of both armed carjacking and burglary of a conveyance with an assault for the same incident (but see dissent). // Green v. S., 828 So. 2d 462 (5th DCA 2002), 27 F.L.W. D2371 (10/18/2002)

Answer 118

The act of reaching into a building qualifies as “entry” into the building. // Polk v. S., 825 So. 2d 478 (5th DCA 2002), 27 F.L.W. D1960 (8/30/2002)

Answer 119

Defendant was given permission to enter the victim’s house to use the bathroom. While in the house, he went into a bedroom and stole jewelry. Held: Court properly denies JOA on burglary charge. // Gruver v. S., 816 So. 2d 835 (5th DCA 2002), 27 F.L.W. D1219 (5/24/2002)

Answer 120

(See In re: Standard Instructions in Criminal Cases - Report No. 2007-11, 986 So. 2d 563 (Fla. 2008), 33 F.L.W. S554 (7/10/2008), for the text of instructions for burglary of an emergency vehicle and burglary in a county that is under state of emergency, and a revised instruction for theft.)

Answer 121

Entry by consent obtained through fraud or deceit is a legal nullity and is not a defense to burglary. Consent obtained through coercion or an implied threat of force is likewise a nullity and is not a defense. // Lynch v. S., 2 So. 3d 47 (Fla. 2008), 34 F.L.W. S179 (11/6/2008)

Answer 122

A coconspirator who lives in the same house as the victim cannot give consent to enter the house to commit a crime against the victim, and thereby avoid a burglary charge. // Bradley v. S., 33 So. 3d 664 (Fla. 2010), 35 F.L.W. S23 (1/7/2010)

Answer 123

To constitute burglary tools, the defendant must have tools that are intended to be used in the course of unlawfully entering a premises, not tools to be used after the entry is complete. Thus, possession of wire cutters to be used to cut copper tubing and wiring in a house under construction does not constitute possession of burglary tools. // Hardwick v. S., 16 So. 3d 1045 (1st DCA 2009), 34 F.L.W. D1854 (9/10/2009)

Answer 124

Where defendant enters into a fenced area of a house, and the fence has an opening for the driveway, the yard is sufficiently enclosed to be considered the curtilage of the house for burglary purposes. // Defendant entered the yard of a house that had been damaged by fire in 1996 and was being renovated. He stole siding off the house. Held: A house is a “dwelling” for purposes of §810.011(2) if the character of the structure is such that it is suitable for lodging by people. Where there is no evidence that the damage to the house had rendered in unsuitable for living, the court properly denies a JOA. // (See this case for discussion of when a damaged house is no longer a “dwelling” for burglary purposes.) // Jacobs v. S., 41 So. 3d 1004 (1st DCA 2010), 35 F.L.W. D1755 (8/5/2010)

Answer 125

Defendant obtained the key to a rental home without permission of the owner and used the home for three days with his girlfriend for a vacation. He was charged with burglary. Held: Use of the rental home over the course of three days constitutes theft, and his entry into the home constitutes burglary. // Hughes v. S., 36 So. 3d 816 (1st DCA 2010), 35 F.L.W. D1160 (5/26/2010)

Answer 126

Unless a garage is attached to a house or is substantially enclosed along with a house, a defendant who burglarizes the garage commits burglary of a structure, not a dwelling. // Smalls v. S., 18 So. 3d 606 (1st DCA 2009), 34 F.L.W. D944 (5/11/2009)

Answer 127

The court errs in failing to grant a JOA on a charge of possession of burglary tools where the evidence showed that defendant was on the roof of a building cutting copper tubing for an air conditioning unit. The tools in his possession were not being used to commit a burglary because they were not being used to enter the building. // Clark v. S., ___ So. 3d ___, 36 F.L.W. D787 (1st DCA 4/14/2011)

Answer 128

Trespassing is a category II lesser of burglary of a dwelling, and the court errs in failing to give the instruction when the information alleges all of the elements of trespassing. // Simple burglary is a category I lesser of burglary of a dwelling, the court must give the instruction regardless of the allegation in the information. // McKiver v. S., ___ So. 3d ___, 36 F.L.W. D333 (1st DCA 2/11/2011)

Answer 129

Burglary of a dwelling with an assault under §810.02(2)(a) is a form of burglary of a dwelling, and is an enumerated offense for PRR sentencing purposes. // Campbell v. S., 29 So. 3d 1147 (1st DCA 2010), 35 F.L.W. D276 (1/29/2010)

Answer 130

Entry into a detached garage is not burglary of a dwelling unless the garage is in a substantially enclosed yard. // Smalls v. S., 973 So. 2d 630 (1st DCA 2008), 33 F.L.W. D359 (1/28/2008)

Answer 131

Instructing the jury that “at the time of entering the structure [defendant] had a fully formed, conscious intent to commit the offense of burglary in that structure” is fundamental error and appellate counsel is ineffective in failing to argue it. // Lee v. S., 958 So. 2d 521 (2d DCA 2007), 32 F.L.W. D1422 (6/6/2007)

Answer 132

Defendant was charged with burglary with a battery and sexual battery. He was convicted of burglary with a battery and simple battery as a lesser of sexual battery. Held: Under the circumstances conviction of those offense is a double jeopardy violation. // Avila v. S., 9 So. 3d 778 (2d DCA 2009), 34 F.L.W. D1138 (6/5/2009)

Answer 133

Defendant cannot be convicted of both burglary with an assault and burglary of a dwelling for a single incident. // Defendant cannot be convicted of both burglary with an assault and home invasion robbery for a single incident. // Coleman v. S., 956 So. 2d 1254 (2d DCA 2007), 32 F.L.W. D1377 (5/30/2007)

Answer 134

The court errs in giving a possession of recently stolen property instruction in a burglary and petit theft case where the only evidence that defendant had possessed stolen copper wiring was that he had residue on his hands similar to that which resulted from handling the wire. The evidence is insufficient to give the instruction. // Waldron v. S., 979 So. 2d 449 (2d DCA 2008), 33 F.L.W. D1169 (4/25/2008)

Answer 135

Defendant cannot be convicted of both armed burglary of a dwelling and attempted home invasion robbery for a single entry. // Schulterbrandt v. S., 984 So. 2d 542 (2d DCA 2008), 33 F.L.W. D1107 (4/23/2008)

Answer 136

Defendant was a runaway who was staying without permission in a vacant house. The owner of the house came to check on the property, and left his wallet in the house when he left. Defendant stole the wallet and was charged with burglary. Held: The child did not enter the house with the intent to commit a crime, and while he committed trespassing, he did not commit burglary. // J.J.D. v. S., 973 So. 2d 1254 (2d DCA 2008), 33 F.L.W. D454 (2/8/2008)

Answer 137

The court errs in failing to give burglary as a lesser of burglary with an assault. The lesser is a mandatory lesser included offense, and the failure to give the instruction get reversal. // Hartley v. S., 27 So. 3d 233 (2d DCA 2010), 35 F.L.W. D397 (2/17/2010)

Answer 138

Gloves are not burglary tools, and the fact that defendant was wear gloves during a burglary will not support possession of burglary tools. // The fact that defendant possessed a flashlight when he was arrested is insufficient to prove possession of burglary tools in the absence of any evidence that he used the flashlight to commit the burglary. // Brooks v. S., 23 So. 3d 1227 (2d DCA 2009), 34 F.L.W. D2386 (11/18/2009)

Answer 139

Defendant's acts of prying screens off of a house with long nails is sufficient to convict him of possession of burglary tools. // Keys v. S., 949 So. 2d 1080 (2d DCA 2007), 32 F.L.W. D358 (1/31/2007)

Answer 140

When defendant enters a house in an attempt to avoid capture while fleeing from a lawful arrest, he commits the crime of burglary with the intent to commit the underlying crime of resisting without violence. // Young v. S., 13 So. 3d 537 (3d DCA 2009), 34 F.L.W. D1352 (7/1/2009)

Answer 141

Alleging that defendant “discharged a firearm or destructive device” while committing a burglary of a vehicle is a sufficient allegation to charge armed burglary and no error is shown in instructing the jury and allowing them to convict on that crime when defendant did not move to dismiss prior to trial. // Duarte v. S., ___ So. 3d ___, 36 F.L.W. D838 (3d DCA 4/20/2011)

Answer 142

The stairway leading from the walkway to the front porch of a building is not within the structure itself, and is not in the curtilege of the building. He thus cannot be convicted of trespassing in a structure. // B.W. v. S., 973 So. 2d 657 (3d DCA 2008), 33 F.L.W. D437 (2/6/2008)

Answer 143

Consent to enter is an affirmative defense to burglary. The defense has the burden of presenting evidence showing consent, and the state must then disprove the defense beyond a reasonable doubt. Where defendant testifies that a specific person gave consent for him to enter an apartment, and that person does not testify and the consent is not otherwise rebutted, the court errs in failing to enter a JOA. // Metales v. S., 963 So. 2d 989 (4th DCA 2007), 32 F.L.W. D2241 (9/19/2007)

Answer 144

(See Remor v. S., 991 So. 2d 957 (4th DCA 2008), 33 F.L.W. D2209 (9/17/2008) for discussion of the sufficiency of circumstantial evidence to convict for attempted burglary.)

Answer 145

Trespass is a category 2 lesser of burglary of a conveyance. When the information alleges that defendant unlawfully entered a conveyance with the intent to commit grand theft, the court errs in refusing to give trespassing as a lesser. // Hannah v. S., 42 So. 3d 951 (4th DCA 2010), 35 F.L.W. D1970 (9/1/2010)

Answer 146

The PRR statute in effect at the time of the offense is the statute that controls his sentencing. // Under the 2003 statute, defendant cannot get a PRR sentence for burglary of a conveyance with an assault. // Gorham v. S., 988 So. 2d 152 (4th DCA 2008), 33 F.L.W. D1930 (8/6/2008)

Answer 147

Defendant entered an open convenience store, went into an “employees only” room and stole money. He was charged with burglary of an occupied structure. Held: Under Johnson v. S., 786 So. 2d 1162 (Fla. 2001), entry into a portion of an open business which is not open to the public constitutes burglary. However, the court errs in allowing the enhancement, and defendant can be convicted only of burglary of a structure. // Davis v. S., 988 So. 2d 1125 (4th DCA 2008), 33 F.L.W. D1838 (7/23/2008)

Answer 148

Defendant stole a safe from a business, and inside the safe was a gun. He opened the safe after removing it, and sold the gun. Held: Defendant did not "arm" himself during the burglary, and the court errs in failing to JOA the armed burglary charge. // Barrett v. S., 983 So. 2d 795 (4th DCA 2008), 33 F.L.W. D1657 (6/25/2008)

Answer 149

At defendant’s burglary trial, the court instructed the jury on the third element that defendant must have the fully formed conscious intent “to commit the crime of burglary”. Appellate counsel did not raise this error. Held: Counsel was ineffective for failing to raise the fundamental error, and conviction is reversed. // Guerra v. S., 10 So. 3d 1164 (4th DCA 2009), 34 F.L.W. D1073 (5/27/2009)

Answer 150

Trespass is a category II lesser of burglary, and when the information alleges all the elements of trespassing, the court errs in failing to give it as a lesser. // Bordes v. S., 34 So. 3d 215 (4th DCA 2010), 35 F.L.W. D1054 (5/12/2010)

Answer 151

Where defendant is found working on a car early in the morning after the car was stolen, he lied about his identity, and he testified that he had just bought the car but had not documents regarding the sale, the evidence is insufficient to rebut the presumptions regarding the possession of recently stolen property. // (See this case for discussion of the presumptions that pertain to the possession of recently stolen property as they pertain to theft and burglary cases.) // Kerr v. S., 954 So. 2d 692 (4th DCA 2007), 32 F.L.W. D1020 (4/18/2007)

Answer 152

Trespass is a category I lesser of burglary of a dwelling, and the court reversibly errs in failing to give it when requested. // McCloud v. S., ___ So. 3d ___, 36 F.L.W. D7771 (4th DCA 4/13/2011)

Answer 153

Evidence of a single fingerprint taken from the point of entry into a home and located in a position indicating the glass was gripped from the outside, plus testimony that the victim did not know the defendant and the defendant did not have permission to enter, is sufficient to withstand a motion for JOA. // Potts v. S., ___ So. 3d ___, 36 F.L.W. D666 (4th DCA 3/30/2011)

Answer 154

The court errs in admitting hearsay regarding defendant's claimed actions in deceiving a security guard to allow him onto the victim’s property. Where the security guard does not testify, and the security tape does not show what was done or said to obtain entry, hearsay regarding a claimed deception is not harmless. // Andrews v. S., 973 So. 2d 1280 (4th DCA 2008), 33 F.L.W. D559 (2/20/2008)

Answer 155

When there is only one entry, only one burglary occurs. Thus, when defendant enters one vehicle and assaults two people, only one burglary occurs. // Gorham v. S., 968 So. 2d 717 (4th DCA 2007), 32 F.L.W. D2877 (12/5/2007)

Answer 156

Defendant attended a party at a house while the owners were away on vacation, and drank beer and smoked marijuana in the house. He was charged with burglary. Held: While there was sufficient evidence to show that defendant entered without permission, there was insufficient evidence to show that when he entered he intended to commit a crime in that house, and the adjudication for burglary is reversed. // P.D.T. v. S., 996 So. 2d 919 (4th DCA 2008), 33 F.L.W. D2770 (12/3/2008)

Answer 157

Defendant entered a jewelry store when it was open for business, smashed a display cabinet, and stole jewelry. He was charged with burglary and other crimes. Held: Defendant was in an area of the store that was open to the public, and he does not commit burglary when he commits a crime in that area. // Colbert v. S., 49 So. 3d 819 (4th DCA 2010), 35 F.L.W. D2624 (12/1/2010)

Answer 158

Possession of property recently stolen in a burglary will support an inference that the person stole the properly unless his possession is sufficiently explained. Possession of stolen property will also support an inference that defendant committed the burglary in which the property was stolen. // Davis v. S., 48 So. 3d 176 (4th DCA 2010), 35 F.L.W. D2595 (11/24/2010)

Answer 159

The court does not err in including the “remaining in” language of the burglary instruction where the evidence shows that the defendant was found crouched behind a car in the driveway with items having been removed from a shed. The evidence is sufficient to show a surreptitious entry. // Newsome v. S., 19 So. 3d 1091 (4th DCA 2009), 34 F.L.W. D2044 (10/7/2009)

Answer 160

The state presented evidence that six homes located near each other were burglarized within two days of each other. The state connected defendant to two of the burglaries, and argued that defendant was guilty of the other four because they occurred around the same time, were located nearby, and the method of entry was the same. Held: The court errs in refusing to JOA the four burglaries not connected to defendant. The circumstantial evidence was insufficient to sustain a conviction. // Horne v. S., 997 So. 2d 1262 (4th DCA 2009), 34 F.L.W. D90 (1/5/2009)

Answer 161

The court properly denies a motion for JOA in a burglary of a dwelling charge where the evidence shows that defendant entered a fenced-in yard a dug up a tree. // Frazier v. S., 970 So. 2d 929 (4th DCA 2008), 33 F.L.W. D173 (1/2/2008)

Answer 162

Defendant may not be convicted of both burglary with an assault, and battery, for a single incident when the information does not allege whether defendant was charged with burglary with an assault, burglary with a battery, or both. // Young v. S., 43 So. 3d 876 (5th DCA 2010), 35 F.L.W. D1984 (9/3/2010)

Answer 163

An attached carport is either part of the curtilage of a home or is an “attached porch” for purposes of the burlgary statute,and defenadnt is properly convicted of burglary of a dwelling when he enters the carport and attempts to steal an air conditioning unit located within it. // Ferrara v. S., 19 So. 3d 1033 (5th DCA 2009), 34 F.L.W. D1942 (9/25/2009)

Answer 164

Defendant is properly convicted of burglary of an occupied structure when he enters a closed store where police had set up a stakeout waiting for him. The fact that the only occupants were police officers does not prevent conviction for burglary of an occupied structure. // Reidy v. S., 965 So. 2d 1177 (5th DCA 2007), 32 F.L.W. D2035 (8/24/2007)

Answer 165

Defendant and victim were co-lessees on a house. They had a fight, and defendant moved out. The victim removed the defendant from the lease and changed the locks. Defendant later returned and entered the house during an argument and took a computer. Held: The facts were such that an issue was raised whether the victim’s possessory interest was superior to the defendant’s, and the court did not err in refusing to grant a JOA. Defendant is properly convicted of burglary. // Washington v. S., 11 So. 3d 980 (5th DCA 2009), 34 F.L.W. D925 (5/8/2009)

Answer 166

The ten-year mandatory in §775.087(2)(a)1 applies only to the offenses enumerated in the statute. // Burglary of a conveyance with an assault is not subject to the 10-year mandatory, and is subject to only a three-year mandatory. // Figueroa v. S., 10 So. 3d 173 (5th DCA 2009), 34 F.L.W. D697 (4/3/2009)

Answer 167

Where defendant enters the yard of the victim and steal items leaning against the house, and there is no testimony showing that the yard was enclosed, the court errs in finding the child guilty of burglary. // J.L. v. S., ___ So. 3d ___, 36 F.L.W. D626 (5th DCA 3/25/2011)

Answer 168

Defendant cannot be convicted of four counts of burglary while armed with a destructive device, and four counts of possession or discharge of a destructive device when the verdict forms do not allow the jury to distinguish between “possession” and “making” the destructive device. Because defendant could have been convicted of possessing the device while committing the armed burglary, the convictions violate double jeopardy rules. // Reeves v. S., ___ So. 3d ___, 36 F.L.W. D418 (5th DCA 2/25/2011)

Answer 169

A structure that is designed to be occupied by people lodging therein at night, which was used as a dwelling in the past, had an intact roof, but was undergoing interior renovations that rendered it temporarily uninhabitable, is still a “dwelling” for burglary purposes. // Michael v. S., 51 So. 3d 574 (5th DCA 2010), 36 F.L.W. D19 (12/23/2010)

Answer 170

When defendant is charged with committing a burglary by “remaining in” a dwelling, the state must prove that defendant was licensed or invited to enter, and then remained with the intent to commit a forcible felony. Where the state fails to prove that defendant was invited into or licensed to enter the premises, the court errs in denying a JOA. // (See this case for extensive discussion of “remaining in” burglaries under §819.02(1)(b)2.c) // Harris v. S., 48 So. 3d 922 (5th DCA 2010), 35 F.L.W. D2562 (11/19/2010)

Answer 171

The state is not required in a burglary case to allege the specific offense defendant intended to commit in the structure, and the court is not required to instruct on a specific offense. // The court commits reversible error when it tells the jury that it could convict if it found the defendant had “a fully formed intent to commit the offense of burglary in the structure.” // Rivera v. S., 992 So. 2d 361 (5th DCA 2008), 33 F.L.W. D2346 (10/3/2008)

Answer 172

The crawl space under a house supported by a cinderblock foundation is part of the house, and defendant is properly convicted of burglary of a structure for entering the crawl space to steal copper pipe. // Tindall v. S., 997 So. 2d 1260 (5th DCA 2009), 34 F.L.W. D76 (1/2/2009)

Answer 173

Child abuse can be both a separate charge and serve as the predicate felony for felony murder where there are repeated act of abuse that result in death. However, where there is a single act that resulted in the child’s death (here, a single stab wound), there is no aggravated child abuse that can serve as the predicate felony for felony murder. // (But see dissents, arguing that because the underlying felony of aggravated child abuse cannot serve as a predicate for felony murder when only a single act caused the death, a general verdict of guilty to first degree murder when the jury was instructed on both felony murder and premeditated murder should not stand.) // •Brooks v. S., 918 So. 2d 181 (Fla. 2005), 30 F.L.W. S481 (6/23/2005)

Answer 174

Giving the standard aggravated child abuse instruction which defines “maliciously” as “wrongfully, intentionally, without legal justification or excuse,” is fundamental error in a case where the element is disputed at trial. When there is no dispute about the element, the failure to give a proper instruction is not fundamental error. // Regardless of whether the evidence is overwhelming, the error can be fundamental if the inaccurate instruction is pertinent or material to what the jury must consider to convict. When the inaccurate definition reduced the state’s burden of proof, the inaccurate instruction is material to what the jury had to consider to convict. // Fundamental error is not subject to harmless error review. By its nature, fundamental error is harmful. If it were not harmful, it could not be fundamental. // The decision in this case is applicable to all cases not yet final. It is not to be applied retroactively to cases that are final before the issuance of this opinion. // The proper definition of “malice” is “ill will, hatred, spite, an evil intent.” // •Reed v. S., 837 So. 2d 366 (Fla. 2002), 27 F.L.W. S1045 (12/19/2002) // receding from State v. Clark, 614 So. 2d 453 (Fla. 1992)

Answer 175

A parent has a privilege to administer “reasonable” or “non-excessive” corporal punishment to his child in a prosecution for 3d degree felony child abuse. “Reasonable” or “non-excessive” corporal punishment is a “typical spanking.” // The parental privilege is an affirmative defense that is available to a parent is a prosecution for child abuse. There is no privilege to commit aggravated child abuse. // •Raford v. S., 828 So. 2d 1012 (Fla. 2002), 27 F.L.W. S781 (9/26/2002) // approving Raford v. S., 792 So. 2d 476 (4th DCA 2001) and McDonald v. S., 785 So. 2d 640 (2d DCA 2001) // reversing Wilson v. S., 744 So. 2d 1237 (1st DCA 1999) // see Kama v. S., 507 So. 2d 154 (1st DCA 1987)

Answer 176

The use of the undefined term “mental injury” in section 827.03 does not render the section vague. The term is defined in §39.01(44), and that definition is incorporated as the definition in the criminal statute. // (See this case for extensive discussion of the use of related non-criminal statutes to provide definitions for criminal provisions.) // Dufresne v. S., 826 So. 2d 282 (Fla. 2002), 27 F.L.W. S728 (9/5/2002)

Answer 177

Where defendant murdered the child’s mother and father, and left an 22-month old child strapped in their vehicle in an isolated location, the evidence is sufficient to sustain 3d degree felony child abuse conviction. // Ford v. S., 802 So. 2d 1121 (Fla. 2001), 26 F.L.W. S817 (9/13/2001)

Answer 178

Speech alone can constitute felony child abuse under §827.03(1)(a) when the defendant’s comments cause mental injury to the child. “Mental injury” in that section is defined in §39.01(44). // (See this case for extensive discussion of the way in which words alone can constitute felony child abuse.) // •S. v. Coleman, 937 So. 2d 1226 (1st DCA 2006), 31 F.L.W. D2426 (9/25/2006)

Answer 179

Defendant’s child had a compromised immune system and died of septicemia. The defendant was charge with child abuse as a result of poor housekeeping, which the state alleged caused the infection leading to death. Held: Court erred in refusing to grant a JOA. The state’s evidence failed to show that the poor housekeeping caused the infection leading to death. // Wesson v. S., 899 So. 2d 382 (1st DCA 2005), 30 F.L.W. D835 (3/30/2005)

Answer 180

When giving an instruction on a category 2 lesser, the court errs in instructing the jury on a manner of committing the crime that is not charged. Thus, where child abuse is given as a lesser of aggravated child abuse, and the manner of committing aggravated child abuse was by intentionally shaking, the court errs in giving the culpable negligence portion of the child abuse instruction. Causing injury by culpable negligence was not charged, and thus should not be given as part of the instruction on the lesser. // Jury instructions are subject to the contemporaneous objection rule, and absent an objection, errors in instructions cannot be raised on appeal unless fundamental error occurs. Fundamental error occurs when the court fails to instruct on an element of the crime that was disputed at trial. Thus, where defendant disputes his intent to harm, giving the culpable negligence portion of the felony child abuse instruction, when not charged, is error. // •Griffis v. S., 848 So. 2d 422 (1st DCA 2003), 28 F.L.W. D1544 (7/2/2003)

Answer 181

A parent may be convicted of 3d degree child abuse for disciplining his child, parental privilege notwithstanding. // Wright v. S., 835 So. 2d 1264 (1st DCA 2003), 28 F.L.W. D380 (2/3/2003)

Answer 182

Defendant was an administrator of a private school. As a condition for enrollment, parents agreed to the use of corporal punishment on their children. The defendant paddled the child as punishment, leaving significant welts and bruises on her buttocks, but causing no significant mental impairment. Held: The acts do not constitute felony child abuse under §827.03(1) as a matter of law. Spankings that leave welts and bruises do not constitute child abuse, which requires a more serious beating. // King v. S., 903 So. 2d 954 (2d DCA 2005), 30 F.L.W. D368 (2/4/2005)

Answer 183

The court errs in denying a JOA in a felony child abuse case where the evidence showed that the 7-year old victim had severe cavities in several teeth. Without evidence that the neglect of the child’s dental hygiene resulted in or could reasonably be expected to result in serious physical or mental injury, the cavities standing alone will not support the charge. // Weeks v. S., 832 So. 2d 954 (2d DCA 2002), 28 F.L.W. D147 (12/27/2002)

Answer 184

Simple child abuse is a category two lesser of aggravated child. The court errs in refusing to give the instruction when there is evidence to support the charge. // Dougherty v. S., 813 So. 2d 217 (2d DCA 2002), 27 F.L.W. D756 (4/3/2002)

Answer 185

The court errs in failing to grant a JOA in a child neglect case where the evidence shows that the child had a severe diaper rash, but that the defendant had taken appropriate steps to care for the child. // Hyde v. S., 929 So. 2d 1183 (4th DCA 2006), 31 F.L.W. D1560 (6/7/2006)

Answer 186

Defendant is properly convicted of both aggravated child abuse and child neglect based on the same circumstances. No double jeopardy violation occurs with both convictions. // Moore v. S., 916 So. 2d 940 (4th DCA 2005), 30 F.L.W. D2682 (11/30/2005)

Answer 187

The court errs in failing to grant a JOA in a contributing to the delinquency of dependency of a child where the evidence does not show that the defendant knew that the child was consuming drugs or alcohol in his house. // Kito v. S., 888 So. 2d 114 (4th DCA 2004), 29 F.L.W. D2656 (11/24/2004)

Answer 188

Defendant left her child alone in a car from 6:00 p.m. until 7:20 while she drank in a bar. When the police were called, the child was asleep and in no discomfort. Held: In the absence of additional facts, the court does not err in granting a c(4) motion on a charge of child neglect under §827.03(3)(c). // S. v. Sammons, 889 So. 2d 857 (4th DCA 2004), 29 F.L.W. D2646 (11/24/2004)

Answer 189

The court errs in refusing to give simple child abuse as a lesser of aggravated child abuse. // Youmans v. S., 846 So. 2d 670 (4th DCA 2003), 28 F.L.W. D1327 (6/4/2003)

Answer 190

Mother is properly convicted of third degree felony child abuse under §827.03(1)(a) (1997) for spanking her child and leaving marks. // (See this case for discussion of parental privilege.) // Brown v. S., 802 So. 2d 434 (4th DCA 2001), 26 F.L.W. D2929 (12/12/2001)

Answer 191

(See Caban v. S., 892 So. 2d 1204 (5th DCA 2005), 30 F.L.W. D426 (2/11/2005) for discussion of the sufficiency of the circumstantial evidence sustaining a conviction in a shaken baby homicide.)

Answer 192

(See Pankow v. S., 895 So. 2d 1149 (5th DCA 2005), 30 F.L.W. D432 (2/11/2005) for discussion of the sufficiency of circumstantial evidence proving a hot water immersion burn child abuse case.)

Answer 193

Using the former definition of maliciously, “wrongfully, intentionally, without legal justification” is fundamental error is an aggravated child abuse case. // Gryphon v. S., 847 So. 2d 589 (5th DCA 2003), 28 F.L.W. D1457 (6/20/2003)

Answer 194

The change in the definition of “malice” in aggravated child abuse does not apply retroactively to convictions final prior to the date of Reed v. S., 27 F.L.W. S1045 (Fla. 12/19/02). // Jackson v. S., 838 So. 2d 594 (5th DCA 2003), 28 F.L.W. D295 (1/24/2003)

Answer 195

In a neglect of a child charge under §827.03(3), the fact that the defendant is the owner of the house where the victim and her father lived, and he directed some of the neglectful actions, is sufficient to show that he is a “care giver” under the statute. // Durand v. S., 820 So. 2d 381 (5th DCA 2002), 27 F.L.W. D1222 (5/24/2002)

Answer 196

Section 847.0138, relating to transmitting images, information, or data by electronic mail to a minor, is constitutional (but see dissent). // (See this case for extensive discussion of first amendment challenges to statutes, and commerce clause preemption issues.) // •Simmons v. S., 886 So. 2d 399 (1st DCA 2004), 29 F.L.W. D2565 (11/15/2004) // affirmed, Simmons v. S., ___ So. 2d ___, 31 F.L.W. S794 (Fla. 11/16/2006)

Answer 197

Court errs in refusing JOA in a charge of distribution of pornographic material to a child when the only evidence present to show that the material was obscene was the victim’s testimony. // Williams v. S., 846 So. 2d 1244 (1st DCA 2003), 28 F.L.W. D1358 (6/9/2003)

Answer 198

When a single act of child abuse (here, a single blow to the child) causes the child’s death, the act of child abuse is merged with the homicide. Because it merges with the homicide, it cannot serve as the predicate felony for felony murder. Thus, when defendant commits a single act of child abuse resulting in the death of a child, unless the state can prove premeditated murder the defendant cannot be convicted of first-degree murder (question certified). // (But see dissent for extensive discussion of the rule of Brooks v. S., 918 so. 2d 181 (Fla. 2005) and its application.) // •Sturdivant v. S., ___ So. 3d ___, 35 F.L.W. D1993 (1st DCA 9/7/2010) // see Brooks v. S., 918 So. 2d 181 (Fla. 2005); Lewis v. S., 34 So. 2d 183 (1st DCA 2010)

Answer 199

Aggravated child abuse is a predicate felony for first-degree felony murder. A single act can constitute both aggravated child abuse and felony murder under the statute (question certified). // Lewis v. S., 34 So. 3d 183 (1st DCA 2010), 35 F.L.W. D1014 (5/6/2010)

Answer 200

A parent can be convicted of child abuse for striking his child when the corporal punishment is reasonable or not excessive. // Defendant's act of punching his 15-year old son and then kicking him when he is on the floor does not constitute reasonable punishment, even in a case where significant injury is not caused. // (See this case for extensive discussion of the Raford standard relating to the parental privilege to engage in corporal punishment.) // •Czapla v. S., 957 So. 2d 676 (1st DCA 2007), 32 F.L.W. D1205 (4/30/2007)

Answer 201

In a corporal punishment case where the defendant is charged with aggravated child abuse for whipping his child,, before looking at the extent of the child’s injuries, the court must determine whether the actions at issue constituted reasonable corporal punishment. The act of repeatedly striking a child across his back and arms with a belt containing metal objects is not a typical spanking or other form of reasonable corporal punishment. Thus, where the beating resulting in welts and bruises and no other injury, the defendant is properly convicted of felony child abuse as a lesser of aggravated child abuse. // (See this case for discussion of corporal punishment child abuse cases.) // Chisolm v. S., ___ So. 3d ___, 36 F.L.W. D436 (1st DCA 2/28/2011)

Answer 202

Under §827.03(3)(b), a 17-year old baby-sitter can be liable for criminal neglect when the baby-sitter negligently allows the two-year old in her care to be mauled by a known dangerous dog. The fact that the defendant is a juvenile does not insulate her from a neglect charge. // Because §827.01(a) defines “caregiver” for neglect purposes, the court need not look at the definitions in chap. 39 for assistance in determining whether a juvenile can be a “caregiver” for neglect purposes. // (Bust see dissent, arguing that the definition is vague, and should not be interpreted o include a juvenile caregiver.) // S. v. Nowlin, 50 So. 3d 79 (1st DCA 2010), 35 F.L.W. D2771 (12/14/2010)

Answer 203

Defendant was giving her nine-month old baby a bath, and started talking with another person resulting in the baby drowning. She was acquitted of aggravated manslaughter and convicted of neglect causing great bodily harm. The judge granted a post-verdict judgment of acquittal, finding the evidence legally insufficient under rule 3.380(c). Held: The degree of negligence sufficient to allow a criminal conviction is at least as high as that needed to impose punitive damages in a civil action. It is consciously doing an act which a reasonable person would know is likely to result in death or great bodily harm even though done without any intent to injure anyone but with disregard for the safety of another. The court erred in granting the JOA. // S. v. Brooks, 17 So. 3d 1261 (2d DCA 2009), 34 F.L.W. D1919 (9/23/2009)

Answer 204

Contributing to a dependency of a minor is not a lesser of felony child abuse, and the court errs in adjudicating defendant delinquent on that offense. // A.D. v. S., 15 So. 3d 831 (2d DCA 2009), 34 F.L.W. D1498 (7/24/2009)

Answer 205

Although the law requires more than significant welts or bruises to sustain felony child abuse when the injuries are inflicted for discipline purposes, when bruising occurs as a result of acts that are not disciplinary, the court properly denies a JOA. // (See this case for discussion of the “significant welts or bruises” standard under King v. S., 903 So. 2d 954 (2d DCA 20025).) // Julius v. S., 953 So. 2d 33 (2d DCA 2007), 32 F.L.W. D794 (3/23/2007)

Answer 206

When death is caused by more than one hold around the victim’s neck and there were multiple applications of strangling force applied to the neck, more than one instance of abuse occurs and there is no merger between the aggravated child abuse and felony murder, and defendant may be convicted of both crimes. // Even where the murder is committed by a single act of abuse, defendant is properly convicted of both aggravated child abuse and murder. // Rosa v. S., ___ So. 3d ___, 36 F.L.W. D482 (2d DCA 3/2/2011)

Answer 207

During a visitation period with his children, the defendant called the victim, the children’s mother, and threatened her and her husband. The defendant told her he was going to kill her, and the mother testified that he told her he had a knife and was rubbing the knife on the child’s leg. Defendant was charged with aggravated child abuse by malicious punishment, torture or caging. Held: Because the acts involving the child were not intended as punishment, he could not be convicted based on the malicious punishment portion of the statute. The circumstances likewise do not constitute “torture” for aggravated child abuse purposes. // (See this case for discussion of “torture” for aggravated child abuse purposes.) // Cox v. S., 1 So. 3d 1220 (2d DCA 2009), 34 F.L.W. D292 (2/6/2009)

Answer 208

Because many of the terms in chapter 827 relating to child abuse are not defined, the courts use the definitions in chap. 39 for guidance. For purposes of criminal prosecution under §827.03(1), “physical injury” requires more than mild or passing discomfort. Defendant’s act of twisting a child’s arm, pressing the child against his knee, or holding him by the hair does not constitute an injury or harm under the statute. // Being scared or shaken by defendant’s actions does not constitute “mental injury” under the statute. // Burke v. S., 48 So. 3d 943 (2d DCA 2010), 35 F.L.W. D2610 (12/1/2010)

Answer 209

Defining “maliciously” as “wrongfully, intentionally, and without legal justification or cause” in an aggravated child abuse case is fundamental error, and defendant is entitled to a new trial. // Shelby v. S., 37 So. 3d 279 (2d DCA 2009), 34 F.L.W. D2434 (11/25/2009)

Answer 210

The term “caging” as used in §827.03(2)(b) relates to confining a child in a small restrictive enclosure. It does not include chaining or handcuffing a child. // Blow v. S., 993 So. 2d 540 (2d DCA 2007), 32 F.L.W. D2680 (11/14/2007)

Answer 211

Defendant cannot be convicted of both kidnapping of a child enhanced to a life felony by committing aggravated child abuse on the child, and aggravated child abuse for the same incident. // Davila v. S., 26 So. 3d 5 (3d DCA 2009), 34 F.L.W. D2174 (10/21/2009) // but see Muniz v. S., 764 So. 2d 729 (2d DCA 2000)

Answer 212

Defendant, a stranger to the child, approached the child at a party at the child’s grandmother’s house. The defendant picked him up and kissed him on the head and rubbed the child’s belly. The child was upset and trying to get away when the child’s father arrived and saw what was happening. Held: The court errs in failing to JOA a felony child abuse charge. The evidence failed to show that that child suffered any physical or mental injury. // (See this case for discussion of the “physical or mental injury” requirement of §827.03(1)(b).) // Baker v. S., 980 So. 2d 616 (4th DCA 2008), 33 F.L.W. D1264 (5/7/2008)

Answer 213

Defendant was charged with aggravated child abuse by willful torture, malicious punishment, or unlawfully caging. In arguments and under the jury instructions given, the court permitted conviction based on committing an aggravated battery with a deadly weapon on the child. No objection was made to the argument or instruction. Held: Giving the instruction without that form of aggravated child abuse being charged is fundamental error, and the conviction is reversed. // Brown v. S., 41 So. 3d 259 (4th DCA 2010), 35 F.L.W. D1172 (5/26/2010)

Answer 214

A teacher’s acts of stepping on a child’s foot without causing any injury does not constitute child abuse. // (See this case for discussion of what acts constitute child abuse under §827.03(1).) // S. v. Lanier, 979 So. 2d 365 (4th DCA 2008), 33 F.L.W. D1059 (4/16/2008)

Answer 215

Defendant was charged with felony child abuse under §827.03(1)(a) for intentionally inflicting physical or mental injury on a child. The court instructed the jury on both the provisions of subsection (a) and (b), doing an intentional act that could reasonably be expected to result in physical or mental injury to a child. The defense did not object to the instruction and the state did not argue the alternative method. Held: No fundamental error occurs under S. v. Weaver, 957 So. 2d 586 (Fla. 2007). The error did not concern a critical and disputed issue at trial. // Beasely v. S., 971 So. 2d 228 (4th DCA 2008), 33 F.L.W. D125 (1/2/2008)

Answer 216

The fact that a child abuse investigator reveals information to the suspected abuser sufficient to allow the suspect to figure out who made the report does not permit the court to dismiss a charge of falsely reporting child abuse based on a violation of §39.202(5). An abuse investigator must be permitted to reveal sufficient information to allow him to investigate the allegation, and if the suspect figures out who made the call, the caller can be prosecuted for making a false report. // (See this case for extensive discussion of the tension between the requirement of anonymity for abuse reporters, and the requirement that an investigator perform a thorough investigation.) // •S. v. Grayson, 965 So. 2d 334 (5th DCA 2007), 32 F.L.W. D2283 (9/21/2007)

Answer 217

The fact that the defendant is not related to the child does not prevent him from being charged with physical child abuse. // The fact that the state could have charged defendant with misdemeanor battery rather than child abuse is irrelevant, as the state has the authority to decide what crime to charge. // Pena v. S., 17 So. 3d 788 (5th DCA 2009), 34 F.L.W. D1655 (8/14/2009)

Answer 218

Where the state expert expresses the opinion that the child’s brain injury could not have been caused in the manner described by the defendant, the issue is for the jury and a JOA is properly denied. // The weighing of expert opinions is for the jury, and the court properly denies a JOA when the state and defense experts conflict regarding the manner of a child’s death. // Redding v. S., 958 So. 2d 481 (5th DCA 2007), 32 F.L.W. D1298 (5/18/2007)

Answer 219

The court does not err in giving a supplemental instruction in a child abuse case in which is used the definition of physical injury from §39.01(30)(a)4 to supplement the definition of child abuse in §827.03(1). // Garrett v. S., 978 So. 2d 214 (5th DCA 2008), 33 F.L.W. D891 (3/28/2008)

Answer 220

The court errs, when instructing the jury, in placing an “and/or” between the names of people involved in a conspiracy. // Zeno v. S., 910 So. 2d 394 (2d DCA 2005), 30 F.L.W. D2249 (9/21/2005)

Answer 221

The court errs in placing an “and/or” between the names of the people involved in a conspiracy. // To obtain a conviction for conspiracy, the state need only prove that the defendant engaged in a common and unlawful plan. The state need not show that that she entered into an agreement to commit a specific crime. // Pizzo v. S., 916 So. 2d 828 (2d DCA 2005), 30 F.L.W. D1772 (7/22/2005) // quashed on other grounds Pizzo v. S., ___ So. 2d ___, 31 F.L.W. S878 (Fla. 12/21/2006)

Answer 222

A single conspiracy can have as its goal the commission of multiple crimes. Thus, to convict a defendant of more than one conspiracy, the state must show that the original conspiracy was consummated, abandoned, or otherwise terminated by some affirmative act. When defendant and others agree to import and sell cocaine multiple times, only one conspiracy is committed. // Durden v. S., 901 So. 2d 967 (2d DCA 2005), 30 F.L.W. D1197 (5/11/2005)

Answer 223

The court errs in a joint trial for trafficking and conspiracy to traffic by using the conjunction “and/or” between the co-defendants’ names. The instruction as read will allow defendant to be convicted based on the co-defendant’s actions. // Davis v. S., 895 So. 2d 1195 (2d DCA 2005), 30 F.L.W. D520 (2/23/2005)

Answer 224

Evidence that defendant was present at the scene of a drug deal does not establish the corpus of conspiracy to traffic. Thus, where the only evidence that defendant and codefendant engaged in a conspiracy was defendant’s statement that he and the codefendant were together, the evidence is not sufficient to admit the statement. // To establish the corpus of the crime of conspiracy, the state must present substantial competent evidence that the defendant and coconspirator agreed to commit a crime and that defendant intended to commit the crime. The corpus cannot be established solely by a confession. // Chaparro v. S., 873 So. 2d 631 (2d DCA 2004), 29 F.L.W. D1343 (6/4/2004)

Answer 225

The court errs in failing to instruct on the lesser of conspiracy to deliver cocaine when the defendant is charged with conspiracy to traffic in cocaine. Because there is no weight limit on a delivery of cocaine charge, The lesser must be given when the evidence could support it. the fact that the evidence shows that the amount involved exceeds 28 grams does not allow the court to refuse to give the lesser. // Corpstein v. S., 872 So. 2d 307 (2d DCA 2004), 29 F.L.W. D897 (4/14/2004)

Answer 226

Defendant can be convicted of only one count of conspiracy, even when the members of the conspiracy intended to commit multiple crime. If a single agreement exists to commit multiple offenses, only one crime of conspiracy is committed. // Campbell v. S., 935 So. 2d 614 (3d DCA 2006), 31 F.L.W. D2109 (8/9/2006)

Answer 227

When the evidence is sufficient to establish that defendant had conspired with his co-conspirators to commit RICO offenses, the court does not err in refusing to sever the defendant from codefendants. // (See this case, including dissent, for extensive discussion of a conspiracy to commit RICO violations and the required level of proof showing an agreement between defendant and his co-conspirators.) // •Mese v. S., 824 So. 2d 908 (3d DCA 2002), 27 F.L.W. D1406 (6/19/2002)

Answer 228

Where defendant’s alleged co-conspirator testifies that he never agreed with defendant to commit a robbery, although they talked about robbing a person, and no circumstantial evidence shows an agreement, the evidence is insufficient to sustain a verdict for conspiracy to commit robbery. // Corona v. S., 814 So. 2d 1184 (4th DCA 2002), 27 F.L.W. D883 (4/17/2002)

Answer 229

When defendant made agreements to purchase cocaine over an 11- month period, and no agreement included a purchase over 28 grams, the defendant cannot be convicted of conspiracy to traffic in cocaine. The defendant can be convicted of conspiracy to purchase or possess with intent to purchase. (See this case for discussion of when the evidence is sufficient to sustain a conspiracy to purchase drugs charge.) // Pallin v. S., 965 So. 2d 1226 (1st DCA 2007), 32 F.L.W. D2339 (9/28/2007)

Answer 230

Defendant was charged with conspiracy to commit home invasion robbery, by conspiring with a named person. During opening and during trial, the evidence showed that defendant conspired the named person and another unnamed person. The court instructed the jury that they could find defendant guilty if he conspired with the named person “and/or another black male.” Held: The instruction allowed the jury to convict on an uncharged crime, and the conviction is reversed. // Morant v. S., 27 So. 3d 197 (1st DCA 2010), 35 F.L.W. D339 (2/10/2010)

Answer 231

A claim that counsel was ineffective in failing to argue that multiple convictions violated double jeopardy rights is cognizable in an ineffective assistance of appellate counsel claim. // Defendant cannot be convicted of both conspiracy to commit RICO and conspiracy to traffic in heroin when the RICO charge encompassed the heroin trafficking. // (See this case for analysis of double jeopardy issues in a conspiracy charge.) // Rios v. S., 19 So. 3d 1004 (2d DCA 2009), 34 F.L.W. D1609 (8/7/2009)

Answer 232

(See De Rubio v. S., 987 So. 2d 217 (2d DCA 2008), 33 F.L.W. D1859 (7/25/2008) for the application of double jeopardy rules to multiple conspiracy convictions.)

Answer 233

The failure to raise a double jeopardy issue in the trial court does not prevent raising it on appeal, as the error is fundamental. // Defendant cannot be convicted of both conspiracy to traffic in cocaine and conspiracy to commit racketeering when the same evidence supports both convictions. // Rodriguez v. S., 36 So. 3d 177 (2d DCA 2010), 35 F.L.W. D1260 (6/4/2010)

Answer 234

Defendant can be convicted of only one conspiracy if there is one agreement, even if the agreement is to commit multiple crimes. Thus, the court errs in refusing to JOA two counts when defendant is charged with conspiracies to commit aggravated battery, aggravated assault, and armed burglary based on a single agreement. // Sanders v. S., 46 So. 3d 150 (2d DCA 2010), 35 F.L.W. D2342 (10/22/2010)

Answer 235

The court errs in giving a principal instruction in a conspiracy case. Evidence that a person aided another person in the commission of the offense is insufficient to convict of conspiracy. // Evans v. S., 985 So. 2d 1105 (3d DCA 2007), 32 F.L.W. D2476 (10/17/2007)

Answer 236

Conspiracy to commit murder is an “offense resulting in death” for statute of limitations purposes, and thus the 1996 amendment to §775.15 eliminating the statute of limitations for those offense applies. // (See this case for extensive discussion of conspiracy to commit murder and the application of §775.15(1).) // Calderon v. S., 52 So. 3d 813 (3d DCA 2011), 36 F.L.W. D146 (1/19/2011)

Answer 237

Defendant was charged with conspiracy to purchase cocaine and other drug counts as a result of his involvement in a drug ring. The evidence largely consisted of wiretaps of defendant attempting buy cocaine. Held: To commit conspiracy, defendant must agree to commit the same offense as the coconspirators. Thus, where defendant agrees to buy cocaine, and the coconspirator agrees to sell cocaine, there is no conspiracy because each person is committing a different crime. // Schlicher v. S., 13 So. 3d 515 (4th DCA 2009), 34 F.L.W. D1232 (6/17/2009)

Answer 238

(See Myshrall v. S., 29 So. 3d 466 (4th DCA 2010), 35 F.L.W. D616 (3/17/2010) for discussion of the corpus of conspiracy to commit bank robbery.)

Answer 239

The court errs in instructing the jury that defendant can be convicted of conspiracy by agreeing to deliver cocaine to a CI acting under the direction of the police. A person cannot commit conspiracy by making an agreement with an LEO, and the same rule applies to an agreement with an agent of the police. // Longley v. S., 32 So. 3d 736 (5th DCA 2010), 35 F.L.W. D855 (4/16/2010)

Answer 240

LEO arranged with defendant to buy cocaine and defendant and codefendant arrived at the agreed location after they traveled to Orlando from Pennsylvania. Defendant agreed to the sale price while codefendant stood nearby. Held: The facts are sufficient to sustain a conspiracy to purchase cocaine charge. There was sufficient evidence for the jury to conclude that defendant and codefendant had agreed to work together to make the purchase. // Green v. S., 999 So. 2d 1098 (5th DCA 2009), 34 F.L.W. D120 (1/9/2009)

Answer 241

(See •Garcia v. S., 901 So. 2d 788 (Fla. 2005), 30 F.L.W. S263 (4/21/2005) for extensive discussion of when knowledge of the illicit nature of a substance is an element of a possession crime. But see §893.101 (2002), effective after the date of this offense, reversing Chicone, and lack of knowledge an affirmative defense rather than an element of the crime.)

Answer 242

The fact that a person who is in actual possession of a substance is presumed to know of the presence of the substances is different than presuming that defendant knew the nature of the substance. While a person in actual possession is presumed to know of the presence of the item, the state still must prove that defendant knew that the item was contraband. // In Chicone, the Supreme Court did not recede from the rule of State v. Medlin. While a conviction can be sustained under Medlin based on the presumption that defendant knew of the presence of an item, that presumption can be negated by other evidence. Where evidence shows that the labeling of pills indicated they were Tylenol, with very small marking indicating they also contained codeine, the evidence negates the presumption of knowledge and the court errs in failing to give a Chicone instruction. // S. v. Williamson, 813 So. 2d 61 (Fla. 2002), 27 F.L.W. S181 (2/28/2002)

Answer 243

Defendant’s knowledge of the illicit nature of the controlled substance he possesses is an element of the crime of possession of contraband in a correctional facility, and the court must instruct the jury on that element. // Guilty knowledge of the illicit nature of the substance is an element of possession of a controlled substance. The state always has the burden of proving that defendant’s possession was knowing. // The argument that defendant did not possess the drugs encompasses the claim that he was unaware of the illicit nature of the substance. The fact that he claimed not to possess the drugs does not relieve the state of the burden of proving knowledge. // The presumption of knowledge contained in State v. Medlin, 273 So. 2d 394 (Fla. 1973) applies only to cases of actual possession. When a Medlin instruction is appropriate, the elements of possession, including knowledge of the illicit nature of the drug, must be given first. // •Scott v. S., 808 So. 2d 166 (Fla. 2002), 27 F.L.W. S31 (1/3/2002) // but see Session Law 2002-258, which overruled Chicone effective May 13, 2002

Answer 244

A lab report indicating that the substance possessed was cocaine cannot be introduced as a business record without an analyst’s testimony. The report is testimonial hearsay under Crawford (but see dissent). // Martin v. S., 936 So. 2d 1190 (1st DCA 2006), 31 F.L.W. D2252 (8/30/2006)

Answer 245

For crimes occurring before the effect date of section 893.101, the state must prove that defendant had knowledge of the nature of the substance possessed, and the court errs in refusing to give an instruction upon request. // McGahee v. S., 929 So. 2d 713 (1st DCA 2006), 31 F.L.W. D1461 (5/26/2006)

Answer 246

Where defendant is charged with possession with intent to sell, and defendant claims that he intended to buy the cocaine he possessed, not to sell it, the court errs in instructing on principal to the sale and allowing the state to argue that a person who bought cocaine aided and abetted the person who sold the cocaine. // Williams v. S., 908 So. 2d 1166 (1st DCA 2005), 30 F.L.W. D1976 (8/23/2005)

Answer 247

Defendant testified that he did not know that the pills he possessed contained hydrocodone. With the defense agreement, the court did not instruct the jury regarding knowledge of the nature of the substance possessed. Held: The failure to give a knowledge instruction is fundamental error requiring reversal. // Barnes v. S., 864 So. 2d 1200 (1st DCA 2004), 29 F.L.W. D238 (1/14/2004)

Answer 248

Failure to object to instructions or to request a special instruction regarding the wording of a sign identifying the location as a child care facility does not preserve an objection in a case alleging sale of cocaine near a child care facility. // Williams v. S., 845 So. 2d 987 (1st DCA 2003), 28 F.L.W. D1272 (5/23/2003)

Answer 249

(See Dortch v. S., 848 So. 2d 1159 (1st DCA 2003), 28 F.L.W. D771 (3/21/2003) for citations to cases addressing the sufficiency of evidence pertaining to the intent to sell controlled substances.)

Answer 250

Defendant was charged with possession with intent to sell cocaine based on his possession of 14 cocaine rocks. An LEO was qualified to testify as an expert on street-level narcotics, and he testified that the most rocks he had ever seen on a user was 3, and that typical sellers will have from 1 to 50 pieces. Held: The LEO’s testimony was properly admitted. The officer did not testify that in his opinion the defendant possessed cocaine with intent to sell, and his testimony properly allowed the jury to draw its own conclusions. // (See this case for discussion of the permissible scope of testimony from a drug sale expert.) // Melton v. S., 824 So. 2d 948 (1st DCA 2002), 27 F.L.W. D1736 (7/31/2002)

Answer 251

Defendant cannot be convicted of both possession of cocaine and trafficking in cocaine for a single act of possessing cocaine. When defendant is found in possession of an envelope containing more than 28 grams of cocaine, and various other smaller amounts of cocaine in different locations, he commits only one crime. // McAdory v. S., 933 So. 2d 692 (2d DCA 2006), 31 F.L.W. D1957 (7/21/2006)

Answer 252

A lab report is not admissible because it contains testimonial hearsay under Crawford, regardless of whether the state lays a predicate as a business record. // (See this case for discussion of what constitutes testimonial hearsay under Crawford.) // •Johnson v. S., 929 So. 2d 4 (2d DCA 2005), 31 F.L.W. D125 (12/30/2005)

Answer 253

Defendant may not be convicted of both possession of heroin and trafficking in heroin by possession of the same quantity of heroin. The double jeopardy issue can be raised on appeal because the error is fundamental. // Charneco v. S., 917 So. 2d 378 (2d DCA 2005), 31 F.L.W. D127 (12/30/2005)

Answer 254

When the state has the marijuana that defendant is charged with possessing, it must be introduced into evidence. Where the defense succeeds in keeping the marijuana from being admitted on a chain of custody objection, and then argues in closing that the marijuana was not admitted, and the state does not seek to reopen, the court errs in finding guilt. // D.R.S. v. S., 912 So. 2d 1280 (2d DCA 2005), 30 F.L.W. D2517 (11/2/2005)

Answer 255

Defendant does not have to intend to sell the cocaine he possesses within 1000 feet of a day care to commit the crime. So long as he possesses cocaine that he intends to sell, and he comes within 1000 feet of the day care while in possession, he commits the crime. // Spry v. S., 912 So. 2d 384 (2d DCA 2005), 30 F.L.W. D2432 (10/19/2005)

Answer 256

Defendant cannot be convicted of two counts of possession of cocaine for possessing a single quantity. Where defendant sells some cocaine to an undercover officer, and he is then arrested and found with more cocaine, he possesses only a single quantity of cocaine and cannot be convicted of one count of possessing the cocaine he sold and one count of possessing the cocaine he kept. // A double jeopardy violation is fundamental and can be raised for the first time on appeal. // McGlorthon v. S., 908 So. 2d 554 (2d DCA 2005), 30 F.L.W. D1900 (8/10/2005)

Answer 257

Defendant was charged with possessing gamma-hydroxybutyric acid (GHB), a schedule II drug in 2000. The lab report showed that the substance was gamma butyrolactone (GBL). Defendant moved to dismiss, and the court denied because GBL is an ester of GHB, and under §893.03(2)(b), esters of named drugs are included. In 2001, the legislature moved GHB to schedule I and named GBL as a schedule I drug. The court then granted the motion, ruling that since GBL was not named in 2000, it was not prohibited. Held: §893.03(2)(b) applies and GBL was a schedule II drug until it was moved to schedule I in 2001. // S. v. Quetglas, 901 So. 2d 360 (2d DCA 2005), 30 F.L.W. D1181 (5/6/2005)

Answer 258

Section 893.101 creates an affirmative defense in a drug possession case for the lack of knowledge of the illicit nature of a controlled substance. When the affirmative defense is raised, the jury shall be instructed on the permissive presumption as set out in §893.101(3). // Section 893.101 does not violate due process by shifting the burden of proof to the defendant to prove that he lacked knowledge of the nature of a substance. Because knowledge is not an element of the crime, making lack of knowledge a defense does not violate due process. // The failure to give an instruction that tells the jury that lack of knowledge is a defense to the crime is reversible error. // Burnette v. S., 901 So. 2d 925 (2d DCA 2005), 30 F.L.W. D1064 (4/27/2005)

Answer 259

Section 893.13(1)(c)(1) requires that a person who commits the crime of delivering cocaine within 1000 feet of a school receive a minimum 3-year imprisonment. The court may not suspend or defer any portion of that 3-year imprisonment, and the court errs in imposing 18 months followed by 18 months probation. // S. v. Crews, 884 So. 2d 1139 (2d DCA 2004), 29 F.L.W. D2386 (10/27/2004)

Answer 260

The failure to give a Chicone instruction is fundamental error when the issue is contested at trial for an offense committed before May 13, 2002, the effective date of §893.101(1). // Jones v. S., 857 So. 2d 969 (2d DCA 2003), 28 F.L.W. D2445 (10/24/2003)

Answer 261

Knowledge of contraband found in a vehicle is generally inferred of presumed from the driver’s exclusive possession of the vehicle unless proven otherwise. The constructive possession of drugs based on the exclusive possession of an automobile is sufficient to raise a presumption that the defendant had knowledge of the illicit nature of the drugs. // The fact that other persons had access to the vehicle prior to defendant does not necessarily negate the presumption that the defendant was aware of the presence and illicit nature of the drugs. // (See this case for extensive discussion of the necessity for giving an instruction regarding knowledge of the illicit nature of the item possessed, and the effect of failing to object to the failure to give the instruction.) // •Garcia v. S., 854 So. 2d 758 (2d DCA 2003), 28 F.L.W. D2084 (9/3/2003)

Answer 262

The court errs in failing to give a Chicone instruction upon defendant’s request. // The 2002 amendments to §893.101, overruling Chicone, became effective on May 13, 2002, and are not applicable to an offense occurring before that date. // Whitehurst v. S., 852 So. 2d 902 (2d DCA 2003), 28 F.L.W. D1856 (8/8/2003)

Answer 263

When the defendant pleads to cultivation of marijuana, the court errs in directing DHSMV to suspend his license under §322.055(1). // Huesca v. S., 841 So. 2d 585 (2d DCA 2003), 28 F.L.W. D835 (3/28/2003)

Answer 264

In a drug possession case, the state must introduce the drugs into evidence or explain their absence. The defendant must object to the failure to introduce the evidence to preserve the error. // Ortiz v. S., 843 So. 2d 313 (2d DCA 2003), 28 F.L.W. D833 (3/28/2003)

Answer 265

Possession of cocaine is a category I lesser of sale of cocaine within 1000 feet of a church. // Hill v. S., 820 So. 2d 1049 (2d DCA 2002), 27 F.L.W. D1576 (7/10/2002)

Answer 266

Sale of cannabis is a mandatory lesser of sale within 1000 feet of a convenience store. // S. v. Higdon, 814 So. 2d 1196 (2d DCA 2002), 27 F.L.W. D872 (4/19/2002)

Answer 267

When the only evidence of defendant’s intent to sell cocaine is the quantity and packaging of the drug, the evidence is sufficient only if it excludes every reasonable hypothesis of innocence. Where defendant possessed five grams of cocaine packaged in six baggies within a larger baggie, the amount possessed is not inconsistent with personal use and the conviction for possession with intent to sell is reversed. // (See this case for discussion of cases in which evidence of packaging and quantity is found sufficient to sustain intent to sell convictions.) // Jackson v. S., 818 So. 2d 539 (2d DCA 2002), 27 F.L.W. D213 (1/18/2002)

Answer 268

The crime of attempted trafficking in cocaine does not require that any cocaine actually exist. When defendant intends to traffic in cocaine, but there is no cocaine because the defendant is dealing with a CI, attempted trafficking is committed. // Campbell v. S., 935 So. 2d 614 (3d DCA 2006), 31 F.L.W. D2109 (8/9/2006)

Answer 269

The failure to give an instruction regarding the defendant’s knowledge of the nature of the substance he is charged with possessing is not error if the defendant’s knowledge is not an issue in the case. // (See this case for discussion of which “Drug Abuse - Possession on or Near School F.S. 893.13(1)(e)” instruction is properly given.) // Ozell v. S., 837 So. 2d 559 (3d DCA 2003), 28 F.L.W. D440 (2/12/2003)

Answer 270

Defendant cannot be convicted of both possession of cocaine and possession of cocaine within 1000 feet of a school for possessing multiple quantities of cocaine at the same time and place. // Graham v. S., 820 So. 2d 1092 (3d DCA 2002), 27 F.L.W. D1616 (7/17/2002)

Answer 271

Temporary possession of contraband for the purpose of lawful disposition is a defense to possession of drugs under Florida law. Where defendant takes temporary possession of drug to dispose of them, he does not commit a crime. However, when defendant retains possession for a substantial period of time, the defense is not made out and the court does not err in refusing to instruct on his defense. // (See this case for discussion of the circumstances under which a person who take possession of drugs so as to dispose of them is not guilty of possession.) // •Ramsubhag v. S., 937 So. 2d 1192 (4th DCA 2006), 31 F.L.W. D2371 (9/13/2006)

Answer 272

(See Stankiewicz v. S., 921 So. 2d 863 (4th DCA 2006), 31 F.L.W. D748 (3/8/2006) for discussion of when two cocaine sales constitute a single crime due to temporal proximity.)

Answer 273

Defendant sold some marijuana to a CI, then asked for some more, which he received for some additional money. Held: The acts constitute two separate sales, and defendant is properly convicted of both. There was a sufficient separation between the two acts to allow the defendant time to reflect and develop a new criminal intent for the second sale. // Davey v. S., 914 So. 2d 529 (4th DCA 2005), 30 F.L.W. D2657 (11/23/2005)

Answer 274

Section 893.101, which overruled Chicone, does not remove mens rea as an element of the crime. It makes possession of controlled substances a general intent crime to which lack of specific knowledge is a defense. // (See this case for discussion of the constitutionality of §893.101.) // Wright v. S., 920 So. 2d 21 (4th DCA 2005), 30 F.L.W. D1495 (6/15/2005)

Answer 275

Defendant cannot be convicted of possession of cocaine as a lesser of trafficking in cocaine, and possession of cocaine in a different count for possessing the same cocaine. // Robinson v. S., 901 So. 2d 1027 (4th DCA 2005), 30 F.L.W. D1341 (5/25/2005)

Answer 276

(See Higgins v. S., 899 So. 2d 1251 (4th DCA 2005), 30 F.L.W. D1031 (4/20/2005) for discussion of the admissibility of testimony regarding a Valtox test in a possession of marijuana charge when no chemical analysis of the marijuana is presented and the officer testifies he is familiar with the appearance of marijuana.)

Answer 277

LEO saw defendant walking across a field, and when defendant saw the officer, he ran. The officer chased him, and while running he saw defendant discard white rocks. After stopping him, the officer went back to where the items were dropped and found cocaine. Held: There is insufficient circumstantial evidence of possession with intent to sell. The only evidence of intent to sell was the amount of cocaine and the fact that defendant had no smoking device with him, which is insufficient circumstantial evidence of intent to sustain a conviction. // Lesane v. S., 895 So. 2d 1231 (4th DCA 2005), 30 F.L.W. D608 (3/2/2005)

Answer 278

Introducing drug paraphernalia into a jail is not a crime, because drug paraphernalia is not contraband under §951.22(1). // Dorsey v. S., 893 So. 2d 659 (4th DCA 2005), 30 F.L.W. D468 (2/16/2005)

Answer 279

Court properly denies JOA in a possession of cocaine with intent to sell within 1000 feet of a convenience store when defendant's car was stopped across the street from a convenience store, at a hotel from which he was selling cocaine. // Howard v. S., 866 So. 2d 1265 (4th DCA 2004), 29 F.L.W. D477 (2/25/2004)

Answer 280

Possession of more than 20 grams of cannabis is not a lesser of possession of cannabis with intent to sell, although possession of less than 20 grams is a lesser. Defense counsel’s request to give possession of more than 20 grams as a lesser is not ineffective assistance that can be raised on direct appeal. // Grant v. S., 864 So. 2d 503 (4th DCA 2004), 29 F.L.W. D169 (1/7/2004)

Answer 281

Where defendant was found in possession of 12.9 grams of cocaine rocks, and 29 plastic bags containing marijuana, but no evidence is presented regarding his sale or attempts to sell the drugs, the court errs in denying JOA from possession with intent to sell to simple possession of the items. // Sampson v. S., 863 So. 2d 404 (4th DCA 2003), 29 F.L.W. D110 (12/31/2003)

Answer 282

Court errs in refusing to give a Chicone instruction upon request. // Section 893.101, overruling Chicone, is effective May 13, 2002, and cannot be applied retroactively to offenses occurring prior to that date. // Sandifer v. S., 851 So. 2d 788 (4th DCA 2003), 28 F.L.W. D1693 (7/23/2003)

Answer 283

In a drug case, the state must introduce the drugs into evidence unless they were necessarily destroyed during testing. The failure to introduce the drugs requires a JOA where there is no explanation for the failure. // R.R. v. S., 846 So. 2d 608 (4th DCA 2003), 28 F.L.W. D1251 (5/21/2003)

Answer 284

Defendant was charged with possession of cocaine, based on a residue of cocaine found in a pipe. The pipe was introduced into evidence. Held: The rule requiring the introduction of the drugs into evidence is met by introducing the pipe itself. // The quantity of drugs possessed is immaterial for a possession charge. // Peterson v. S., 841 So. 2d 661 (4th DCA 2003), 28 F.L.W. D912 (4/9/2003)

Answer 285

Where defendant is the sole occupant of a car, and marijuana is found in the car following his arrest, those facts are sufficient to make a prima facie case of possession. // An inference of knowledge is created by exclusive constructive possession of an item. // The failure to give a Chicone instruction is not fundamental error and will not get reversal when there is no request for the instruction. // Lee v. S., 835 So. 2d 1177 (4th DCA 2002), 28 F.L.W. D109 (12/26/2002)

Answer 286

Defendant may not be convicted of both possession of cocaine and introduction or possession of contraband in a jail for possessing the same cocaine. // (See this case for discussion of how the state can properly charge both crimes so as to allow conviction of both offenses.) // Desire v. S., 829 So. 2d 948 (4th DCA 2002), 27 F.L.W. D2370 (10/30/2002)

Answer 287

(See Glenn v. S., 824 So. 2d 1046, 27 F.L.W. D1995 (4th DCA 9/4/2002) for discussion of the sufficiency of circumstantial evidence to show that defendant possessed cocaine with the intent to sell, rather than merely for personal use.)

Answer 288

Where LEO testifies that the item defendant possessed was used to smoke crack, but no testing indicated drug residue, and no testimony showed that it had been used to smoke crack, the evidence is insufficient to sustain a paraphernalia conviction. // Goodroe v. S., 812 So. 2d 586 (4th DCA 2002), 27 F.L.W. D772 (4/3/2002)

Answer 289

An officer whose training and experience qualifies him as an expert can testify regarding his opinion that the quantity and packaging of drugs indicate that it was intended for sale. // Siprien v. S., 812 So. 2d 536 (4th DCA 2002), 27 F.L.W. D714 (3/27/2002)

Answer 290

Defendant is entitled to a Chicone instruction in both a possession and a delivery charge. // The fact that defendant denied any possession at all does not mean that the court can deny giving a Chicone instruction. The instruction must be given regardless of defendant’s denial of possession. // Gary v. S., 806 So. 2d 582 (4th DCA 2002), 27 F.L.W. D304 (1/30/2002)

Answer 291

Before May 13, 2002, the state was required to prove beyond a reasonable doubt in drug cases that defendant had knowledge of the illicit nature of the substance possessed. The statute cannot be applied retroactively to offenses occurring before that date. // When defense counsel fails to request a Chicone instruction, the court errs in summarily denying a 3.850 motion alleging that counsel was ineffective that that regard. // Pigford v. S., 935 So. 2d 93 (5th DCA 2006), 31 F.L.W. D2054 (8/4/2006)

Answer 292

(See Ashley v. S., 925 So. 2d 1117 (5th DCA 2006), 31 F.L.W. D1061 (4/13/2006) for discussion of the elements of maintaining a drug dwelling under §893.23(7)(a)5.)

Answer 293

When defendant is charged with possessing a controlled substance, the state must introduce the substance at trial if it is available. If the defense does not object to the failure to introduce, the issue is not preserved for review. // When a sale is not completed and the cocaine is not taken into possession by the police, the state is not obligated to introduce it at trial. // (See this case for a discussion of the sufficiency of evidence use to show that the cocaine sale took place within 1000 feet of a church.) // McHolder v. S., 917 So. 2d 1043 (5th DCA 2006), 31 F.L.W. D185 (1/13/2006)

Answer 294

The court errs in allowing the state to introduce a lab report as a business record to prove that the item possessed was cocaine. // Rivera v. S., 917 So. 2d 210 (5th DCA 2005), 30 F.L.W. D2144 (9/9/2005)

Answer 295

The court cannot depart downward and impose drug offender probation for a violation of §893.13(1)(a)(1), delivery of cocaine and possession with intent to deliver. Drug offender probation applies only to violations of §§893.13(2)(a) or (6)(a). // S. v. Roper, 915 So. 2d 622 (5th DCA 2005), 30 F.L.W. D1923 (8/12/2005)

Answer 296

The court errs in failing to grant a JOA in a possession of counterfeit controlled substance case when defendant possesses an item packaged like cocaine that is not cocaine. Merely packaging the fake cocaine does not constitute “falsely identify[ing]” the substance under §831.31(2). // J.L.F. v. S., 887 So. 2d 432 (5th DCA 2004), 29 F.L.W. D2640 (11/19/2004)

Answer 297

Defendant is properly convicted of possession with intent to sell and sale of the same cocaine. // McMullen v. S., 876 So. 2d 589 (5th DCA 2004), 29 F.L.W. D1349 (6/4/2004)

Answer 298

Section 893.101, making the lack of knowledge of the nature of an illicit substance an affirmative defense, became effective on May 13, 2002. The statute does not apply to offenses committed prior to that date. // For offenses prior to May 13, 2002, the failure to give a Chicone instruction upon request is reversible error. Where defendant objected to the failure to give a Chicone instruction prior to the jury retiring to deliberate, the issue is preserved. // Glasgow v. S., 857 So. 2d 356 (5th DCA 2003), 28 F.L.W. D2440 (10/24/2003)

Answer 299

Session law 2002-258, which overruled Chicone and states that illicit knowledge of the nature of a substance is not an element of possession of cocaine, cannot be applied to offense committed prior to the May 13, 2002, effective date of the statute. // Thomas v. S., 844 So. 2d 723 (5th DCA 2003), 28 F.L.W. D1157 (5/9/2003)

Answer 300

Defendant sold cocaine to an officer, and another officer tried to arrest him. He ran and dropped other cocaine. Defendant was charged with one count of sale and one count of possession. The lab analyst commingled the cocaine, and the court granted a JOA on the sale count. Held: The court properly denied the JOA on the possession count. Whether the cocaine tested came from the sale incident or the possession incident, defendant still possessed the cocaine. // Black v. S., 842 So. 2d 972 (5th DCA 2003), 28 F.L.W. D915 (4/11/2003)

Answer 301

LEO smelled marijuana coming from defendant’s car, and saw him place a baggie with plant matter into a cigar box. A search revealed ten individually wrapped baggies of marijuana and several thousand dollars in cash. Held: The evidence is sufficient to go to the jury on the issue whether defendant possessed the marijuana with the intent to sell. The packaging of the drugs along with the large amount of cash supports the inference that defendant intended to sell the drugs. // Barnes v. S., 838 So. 2d 641 (5th DCA 2003), 28 F.L.W. D593 (2/28/2003)

Answer 302

The state must show, in a case alleging sale of cocaine within 1000 feet of a church, that the church conducts regularly scheduled religious services. Where the LEO testifies that he had never been to the church for services, the evidence is insufficient to sustain conviction. // Hill v. S., 830 So. 2d 876 (5th DCA 2002), 27 F.L.W. D2291 (10/18/2002)

Answer 303

LEO’s testimony that he was aware in some fashion that services went on in a particular church building is insufficient to establish that there are regularly conducted religious services in the church. // Wallace v. S., 814 So. 2d 1255 (5th DCA 2002), 27 F.L.W. D1015 (5/3/2002)

Answer 304

Identification of illegal drugs can be made by persons experienced in dealing with the substances. chemical or scientific is not necessary for the state to prove that a particular substance is an illegal drug. An LEO with sufficient experience can identify marijuana by its appearance and color. // (See this case, fn 1, for discussion of the use of drug dealers or police officers as experts to identify drugs.) // Robinson v. S., 818 So. 2d 588 (5th DCA 2002), 27 F.L.W. D968 (4/26/2002)

Answer 305

The fact that the state need not prove that defendant knew of the illicit nature of the substance possessed does not make a trafficking by possession or possession with intent to sell charge into a strict liability crime. Neither the conviction nor sentence violate due process. // Williams v. S., 45 So. 3d 14 (1st DCA 2010), 35 F.L.W. D1546 (7/13/2010)

Answer 306

Section 893.101 makes it clear that knowledge of the illicit nature of a controlled substance is not an element of the offense of possession of a controlled substances, but is an affirmative defense. Eliminating knowledge as an element does not violate due process. // Johnson v. S., 37 So. 3d 975 (1st DCA 2010), 35 F.L.W. D1391 (6/22/2010)

Answer 307

Defendant is properly convicted of selling cocaine within 1000 feet of a school and possession of cocaine with intent to sell within 1000 feet of a school for possessing and selling the same quantity of cocaine. // Thomas v. S., ___ So. 3d ___, 36 F.L.W. D786 (1st DCA 4/14/2011)

Answer 308

Section 893.147(4), possession of drug paraphernalia to transport cocaine, is not unconstitutionally overbroad or vague. The statute applies to a vial containing cocaine in defendant’s pocket. // S. v. Bryant, 953 So. 2d 585 (1st DCA 2007), 32 F.L.W. D635 (3/7/2007)

Answer 309

Defendant had a prescription for hydrocodone, and she was accused of selling some to an undercover officer. She was charged with trafficking by possession or sale, and the court did not give a prescription defense instruction. Held: Despite the lack of request for the instruction, the failure to give a prescription defense instruction is fundamental error,and the conviction is reversed. // Glovacz v. S., ___ So. 3d ___, 36 F.L.W. D472 (1st DCA 3/2/2011)

Answer 310

(See Teague v. S., 26 So. 3d 616 (1st DCA 2009), 34 F.L.W. D2612 (12/22/2009), including dissent, for discussion of whether two cocaine sales made to the same person at the same location separated in time by 14 minutes constitute separate crimes for double jeopardy purposes.)

Answer 311

The prescription defense contained in §893.13(6)(a) applies to a person who is innocently holding pills prescribed for another person. Where defendant wife is charged with trafficking based on her possession of Lorcet pills, and her explanation was corroborated by her husband that he has a valid prescription and she was holding the pills for him, the court errs in failing to give the prescription defense instruction. // McCoy v. S., ___ So. 3d ___, 35 F.L.W. D2876 (1st DCA 12/21/2010)

Answer 312

Defendant cannot be convicted of both possession of over twenty grams of marijuana with intent to sell and possession of over twenty grams for possessing a single quantity of marijuana. The fact that he was found in possession of two separate bags does not permit conviction of both crimes. // Gracey v. S., 23 So. 3d 855 (1st DCA 2009), 34 F.L.W. D2562 (12/15/2009)

Answer 313

The fact that cocaine is found on the ground near defendant is insufficient, standing alone, to convict him of possession. The fact that he had a crack pipe in his pocket does not provide sufficient evidence to show that defendant knew of or controlled the cocaine on the ground. // Foster v. S., 969 So. 2d 1202 (1st DCA 2007), 32 F.L.W. D2916 (12/12/2007)

Answer 314

A CI approached defendant with a undercover LEO and asked to buy drugs. Defendant sold cocaine, and then the LEO asked to buy. After the second sale, defendant was arrested. He was convicted to two counts of possession and two counts of sale. Held: While two sales occurred, only one possession happened. // The two sales were separate crimes, even though they happened within seconds and were both sales to the same entity. Defendant had a chance to form a second criminal intent and is properly convicted of both sales. // Richardson v. S., 969 So. 2d 535 (1st DCA 2007), 32 F.L.W. D2799 (11/26/2007)

Answer 315

When defendant has a single quantity of cocaine, and he removes part of it to sell, he cannot be convicted of both sale of cocaine and possession of cocaine. // Wiggins v. S., 967 So. 2d 417 (1st DCA 2007), 32 F.L.W. D2567 (10/30/2007)

Answer 316

Defendant cannot get drug offender probation for sale of cocaine or possession with intent to sell. // Haynes v. S., 962 So. 2d 384 (2d DCA 2007), 32 F.L.W. D1893 (8/8/2007)

Answer 317

When the evidence of intent to sell is solely the fact that defendant possessed marijuana in ten smaller plastic bags, and the amount (26.6 grams) is consistent with personal use, the court errs in denying JOA on possession with intent to sell charge. // Phillips v. S., 961 So. 2d 1137 (2d DCA 2007), 32 F.L.W. D1948 (8/15/2007)

Answer 318

(See Nicholas v. S., 47 So. 3d 297 (2d DCA 2010), 35 F.L.W. D1668 (7/28/2010) for discussion of the sufficiency of circumstantial evidence used to establish possession of a trafficking amount of cocaine.)

Answer 319

Defendant cannot be convicted of both possession of marijuana with intent to sell and possession of the same quantity of marijuana. // Rodriguez v. S., 958 So. 2d 469 (2d DCA 2007), 32 F.L.W. D1261 (5/11/2007)

Answer 320

The statute prohibiting the sale of marijuana within 1000 feet of a public housing facility set the proximity limit at 200 feet until July 1, 2003. The court errs in convicting defendant of possession with intent to sell within 1000 feet for a crime occurring before that date. // Henderson v. S., 952 So. 2d 1269 (2d DCA 2007), 32 F.L.W. D987 (4/13/2007)

Answer 321

Under §322.056(1), the court errs in refusing to enter a mandatory six-month driver's license suspension for a juvenile who pleads to possession of marijuana where adjudication is withheld. // S. v. S.S., 8 So. 3d 425 (2d DCA 2009), 34 F.L.W. D622 (3/20/2009)

Answer 322

Section 893.07(4) allows a police officer to obtain prescription records for controlled substances from a pharmacy upon request without a subpoena or warrant. // (See this case, Altenbernd, J., concurring and dissenting, for the argument that §893.07(4) is being read too broadly, because pharmacy records now can be obtained by the police based solely on an anonymous uncorroborated call to the police, giving those record less protection than a person has in a personal interaction with the police.) // S. v. Albritton, ___ So. 3d ___, 36 F.L.W. D487 (2d DCA 3/2/2011)

Answer 323

For offenses occurring after 5/13/02, knowledge of the illicit nature of a substance is not an element of a drug possession charge. The lack of knowledge is an affirmative defense. Thus, not instructing the jury that the state had to prove knowledge is not error. // The trafficking statute, however, specifically includes a knowledge element. Thus, for trafficking by possession, the state must prove knowledge and deleting that element from the instructions is error. // Barrientos v. S., 1 So. 3d 1209 (2d DCA 2009), 34 F.L.W. D304 (2/6/2009)

Answer 324

LEOs executed a search warrant at defendant’s house, and located cocaine in a ceramic container in the kitchen. The drugs were not in plain view, and defendant shared the residence with other people. Held: Court erred in refusing to JOA possession charge. The evidence failed to show knowledge of the presence of the drugs. // Robinson v. S., 975 So. 2d 593 (2d DCA 2008), 33 F.L.W. D636 (2/29/2008)

Answer 325

Possession of methamphetamine is a lesser of possession of methamphetamine with intent to sell, and the court errs in failing to give the instruction upon request. // Ewing v. S., ___ So. 3d ___, 36 F.L.W. D421 (2d DCA 2/25/2011)

Answer 326

When defendant assists another person in a cocaine sale by directing him to another person who consummates the sale, defendant is properly convicted of delivery of cocaine as an aider and abetter, but he is not properly convicted of possession of cocaine under a principal theory. // Sheppard v.S., 996 So. 2d 260 (2d DCA 2008), 34 F.L.W. D5 (12/24/2008)

Answer 327

LEOs were looking for defendant, and they saw him run into a cottage in back of a larger house. The officer saw defendant in the cottage, and arrested him. A search of the building revealed cocaine and evidence connecting defendant to the cottage. Held: The evidence was insufficient to sustain a conviction for trafficking by possession. // To prove constructive possession, the state must prove beyond a reasonable doubt that defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it. // To prove dominion and control, the state must prove a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession. The fact that contraband is in plain view does not show substantial possession unless the state connects the defendant to the place where the contraband is found. Where the evidence shows that defendant was a visitor to the cottage, the fact that the contraband is in plain view will not support a possession conviction. // Dominion and control can be inferred where the contraband is found in or around other personal property that is owned by the defendant // •Bennett v. S., 46 So. 3d 1181 (2d DCA 2010), 35 F.L.W. D2461 (11/5/2010)

Answer 328

Testimony from a police officer that he had seen people coming from a church building on Sunday morning, but he did not attend the church and had not seen people there in a year is insufficient to show that the building is a “church” for purposes of sale of cocaine within 1000 feet of a church. // Moore v. S., 18 So. 3d 715 (2d DCA 2009), 34 F.L.W. D2020 (10/2/2009)

Answer 329

The court errs in refusing to give a Chicone knowledge instruction in a trafficking in heroin case occurring in 2000. // Nedd v. S., 965 So. 2d 1287 (2d DCA 2007), 32 F.L.W. D2465 (10/17/2007)

Answer 330

The fact that defendant possessed four baggies of cocaine containing a total of 1.5 grams is consistent with possession with intent to sell, but is not conclusive. Possessing multiple packages of drugs is evidence of an intent to sell only if the possession in inconsistent with personal use. The court errs in summarily denying a 3.850 motion alleging ineffective assistance on the claim that counsel failed to tell defendant that the evidence was not sufficient to sustain a conviction. // Lee v. S., 51 So. 3d 600 (2d DCA 2011), 36 F.L.W. D92 (1/7/2011)

Answer 331

(See Spry v. S., 946 So. 2d 630 (2d DCA 2007), 32 F.L.W. D224 (1/17/2007) for discussion of when an officer’s testimony that an amount of cocaine possessed by defendant was evidence of an intent to sell, rather than personal use, exceeds the scope of expert testimony.)

Answer 332

A sufficiently experience law enforcement officer may testify that in his opinion the item seized from the defendant was crack cocaine. So long as the officer has had sufficient experience dealing with cocaine, he may testify that the item seized was cocaine. // •Sinclair v. S., 995 So. 2d 552 (3d DCA 2008), 33 F.L.W. D2091 (9/3/2008)

Answer 333

A lab report indicating that a substance is cocaine is inadmissible hearsay at a VOP hearing, and the court errs in admitting the report over objection. Where the LEO is unable to testify that the substance is cocaine, the court errs in finding a violation. // Forbes v. S., 38 So. 3d 232 (3d DCA 2010), 35 F.L.W. D1411 (6/23/2010)

Answer 334

Dual convictions for crimes involving the same kind of drug found in different locations in a house violates double jeopardy. // Fleurimond v. S., 10 So. 3d 1140 (3d DCA 2009), 34 F.L.W. D1063 (5/27/2009)

Answer 335

Defendant can be convicted of both possession of cocaine and trafficking in the same quantity of cocaine when she agrees to plead to both as part of a negotiated sentence. // Defendant can be convicted of both trafficking in cocaine and importation of cocaine, as the offense each contain different elements. // Laurore v. S., 3 So. 3d 1286 (3d DCA 2009), 34 F.L.W. D556 (3/11/2009)

Answer 336

Where an LEO observes what he thinks is a drug deal, but he does not see the substance transferred and drugs are not recovered, the court errs in refusing to JOA the case. The state must prove the nature of the substance possessed, and it is not sufficient for an experienced LEO to testify that he believed it was cocaine. // Jenkins v. S., 1 So. 3d 317 (3d DCA 2009), 34 F.L.W. D190 (1/21/2009)

Answer 337

When defendant is convicted of cocaine possession and paraphernalia possession, he is eligible for alternative sentencing under §948.20 for drug offender probation regardless of whether he has prior non-felony drug offenses. // Nelson v. S., 18 So. 3d 1190 (4th DCA 2009), 34 F.L.W. D1978 (9/30/2009)

Answer 338

Defendant was found in possession of 18 individually package baggies containing a total of less than 20 grams of marijuana, and a small amount of cash. Several LEOs testified that they believed the amount of marijuana was not for personal use. Held: The circumstantial evidence is insufficient to sustain a conviction of possession with intent to sell. // Alleyne v. S., 42 So. 3d 948 (4th DCA 2010), 35 F.L.W. D1971 (9/1/2010)

Answer 339

Defendant was found in possession of a coin purse with seven individual bag of cocaine containing different amounts. An LEO testified that the method of storage was inconsistent with personal use and was consistent with drug dealing. The state charged possession with intent to sell, and presented evidence that one bag was tested and contained cocaine, and the other bags appeared consistent with cocaine. The court denied a motion for JOA. Held: The evidence was sufficient to defeat a motion for JOA on possession with intent to sell. // (But see dissent, arguing that testing one bag alone is insufficient to show that the other bags contained cocaine, which results in a failure to show an intent to sell.) // Richards v. S., 37 So. 3d 925 (4th DCA 2010), 35 F.L.W. D1281 (6/9/2010)

Answer 340

Defendant was charged with conspiracy to purchase cocaine and other drug counts as a result of his involvement in a drug ring. The evidence largely consisted of wiretaps of defendant attempting buy cocaine. Held: To commit conspiracy, defendant must agree to commit the same offense as the coconspirators. Thus, where defendant agrees to buy cocaine, and the coconspirator agrees to sell cocaine, there is no conspiracy because each person is committing a different crime. // Schlicher v. S., 13 So. 3d 515 (4th DCA 2009), 34 F.L.W. D1232 (6/17/2009)

Answer 341

Under §893.07(4), an LEO can obtain pharmacy records of controlled substance purchases without a warrant or subpoena, and obtaining the records by request does not violate constitution right to privacy. However, doctor’s records are protected by §456.07. // S. v. Wright, ___ So. 3d ___, 36 F.L.W. D725 (4th DCA 4/6/2011)

Answer 342

The court does not err in a case alleging possession of cannabis with intent to sell in refusing to JOA the case to simple possession when the evidence shows that defendant possessed 31 individual bags weighing 28.8 grams, and an expert LEO testified he had never seen possession of more than 5 bags for individual use. The evidence of intent to sell is sufficiently established by circumstantial evidence to allow the issue to be submitted to the jury. // Rawlings v. S., 979 So. 2d 1238 (4th DCA 2008), 33 F.L.W. D1211 (4/30/2008)

Answer 343

Temporary possession of drugs for the purpose of disposing of them does not constitute criminal possession of the drugs. // Where the police see defendant leave his house, approach a trash can, and place a large amount of marijuana in the can, the evidence is consistent with using the trash can as a hiding place or a drop-off location, and the court properly denies a JOA on the ground that defendant was disposing of the drugs. // Robinson v. S., ___ So. 3d ___, 36 F.L.W. D655 (4th DCA 3/30/2011)

Answer 344

LEO watched defendant ride a bike up and down a street for a while, and watch him conduct what the officer believed were two hand-to-hand sales to people in cars. The officer stopped him and found no drugs, but found $500 in cash. Defendant was charged with sale of cocaine and convicted. Held: The court errs in failing to grant a JOA. The evidence does not establish that any sales occurred. // Williams v. S., 976 So. 2d 1210 (4th DCA 2008), 33 F.L.W. D858 (3/26/2008)

Answer 345

When defendant is charged with simple possession of cocaine, evidence that he had a large amount of money with him when arrested is not relevant. Admission of the evidence gets reversal. // Buitrago v. S., 950 So. 2d 531 (4th DCA 2007), 32 F.L.W. D716 (3/14/2007)

Answer 346

Evidence that defendant possessed a bag containing seventeen smaller baggies containing cocaine, standing alone, is insufficient to sustain a conviction for possession with intent to sell. // Valentin v. S., 974 So. 2d 629 (4th DCA 2008), 33 F.L.W. D617 (2/27/2008)

Answer 347

Under §893.13(7)(a)8, the “doctor shopping” statute, when a person asks a doctor to prescribe a specific medication, the individual is required to tell the doctor that he obtained a similar prescription previously for the drug. The doctor is not required to ask whether the defendant had another prescription. // (See this case for discussion of the requirements of the doctor shopping statute.) // (See Farmer, J., concurring for the position that when a patient merely describes symptoms and the doctor give a prescription, the patient may not be obligated to say that he had a similar prescription.) // Knipp v. S., ___ So. 3d ___, 35 F.L.W. D2898 (4th DCA 12/22/2010)

Answer 348

Defendant was arrested for violation of a local ordinance, and a search revealed a pipe with a black residue in it, which was cocaine residue. Defendant denied that he possessed cocaine, stating that he had smoked all of it the day before. At trial, the defense asked for an instruction regarding knowledge, and the court denied the instruction. Held: Section 893.101(2) makes lack of knowledge of the illicit nature of the substance possessed an affirmative defense to a drug possession charge. To invoke the defense, the defendant must argue that he did not know the substance in his possession was cocaine. He does not need to argue that the substance was a legal substance. The court errs in failing to give the instruction. // Quick v.S., 46 So. 3d 1159 (4th DCA 2010), 35 F.L.W. D2451 (11/3/2010)

Answer 349

A sale is sufficiently complete when defendant delivers the money, the cocaine is placed on a table in front of defendant, and defendant samples the cocaine. // Leigh v. S., 967 So. 2d 1102 (4th DCA 2007), 32 F.L.W. D2687 (11/14/2007)

Answer 350

When defendant is charged only with possession of cocaine, and not possession with intent to sell, evidence that defendant had $200 in his pocket when arrested is prejudicial and gets reversal. // Mosely v. S., 1 So. 3d 261 (4th DCA 2009), 34 F.L.W. D104 (1/5/2009)

Answer 351

The court properly denies a motion for JOA in a sale of cocaine within 1000 feet of a park when the state introduces a photograph showing the park and a sign naming the park in honor of a person. The evidence was sufficient to show that the park existed at the time of the crime. // Smith v. S., 949 So. 2d 253 (4th DCA 2007), 32 F.L.W. D274 (1/24/2007)

Answer 352

Bringing both hydrocodone and oxycodone into a jail in a single container constitutes a single offense of introducing contraband. // Bryant v. S., 963 So. 2d 930 (5th DCA 2007), 32 F.L.W. D2088 (8/31/2007)

Answer 353

Defendant cannot be convicted of both possession of cannabis with intent to sell while armed, and possession of the same cannabis. // Crites v. S., 959 So. 2d 1265 (5th DCA 2007), 32 F.L.W. D1656 (7/6/2007)

Answer 354

Defendant cannot be convicted of both possession of cannabis and possession with intent to sell for the same incident. // Thompson v. S., 979 So. 2d 356 (5th DCA 2008), 33 F.L.W. D1009 (4/11/2008)

Answer 355

Defendant cannot be convicted of two counts of possession of cocaine when he possesses both crack and powder cocaine packaged separately. // Romain v. S., 973 So. 2d 1252 (5th DCA 2008), 33 F.L.W. D454 (2/8/2008)

Answer 356

Testimony from an informant that “a lot of folks knew” that defendant was a drug dealer is sufficiently prejudicial to require a mistrial. // Morton v. S., 972 So. 2d 1088 (5th DCA 2008), 33 F.L.W. D338 (1/25/2008)

Answer 357

A defendant cannot be convicted of both theft and dealing in stolen property in a case involving the same property. The rule applies in both cases where the jury is asked to decide defendant’s crime, or in the case of a plea. The defendant cannot agree to plead to both crimes. // Hall v. S., 826 So. 2d 268 (Fla. 2002), 27 F.L.W. S723 (9/5/2002) // reversing Hall v. S., 767 So. 2d 560 (4th DCA 2000)

Answer 358

The error in adjudicating defendant guilty of both grand theft and dealing in stolen property is fundamental error, and can be raised for the first time on appeal. // C.E.C. v. S., 884 So. 2d 421 (1st DCA 2004), 29 F.L.W. D2166 (9/29/2004)

Answer 359

Where a pawnshop repeatedly buys new in-the-box power tools from a customer for a fifth of the retail price, the evidence is sufficient to sustain a (c)4 motion in a dealing in stolen property charge. // The fact that a pawnbroker complied with the Florida Pawnbroking Act does not insulate him from criminal liability. // S. v. Selwach, 883 So. 2d 864 (1st DCA 2004), 29 F.L.W. D2009 (8/31/2004)

Answer 360

It is fundamental error to convict defendant of both grand theft and dealing is stolen property when the offense are both part of the same criminal transaction. Defendant’s plea to both offenses does not waive the violation when there is no evidence in the record that the waiver is knowing and voluntary. // Where defendant steals stamps and then sells them two days later, the offense are part of the same course of conduct and conviction of both offenses is error. // Kilmartin v. S., 848 So. 2d 1222 (1st DCA 2003), 28 F.L.W. D1594 (7/8/2003)

Answer 361

If the record shows that defendant was inappropriately sentenced for both grand theft and dealing in stolen property, appellate counsel should file a 3.800(b)(2) motion to challenge the sentence. The failure to file the motion makes appellate counsel ineffective. // Barber v. S., 918 So. 2d 1013 (2d DCA 2006), 31 F.L.W. D322 (1/27/2006)

Answer 362

Where defendant pawned property shortly after it was stolen, and his credibility was undermined by police testimony that the actual thief had not been apprehended based on defendant’s explanation for his possession, the circumstantial evidence used to convict defendant is sufficient to support a conviction for dealing in stolen property. // The court is required to enter a JOA in a case based on circumstantial evidence if the defendant’s explanation is “patently reasonable.” Where the explanation is only “arguably reasonable,” the court need not JOA. // Wilson v. S., 884 So. 2d 74 (2d DCA 2004), 29 F.L.W. D894 (4/14/2004)

Answer 363

To allow a possession of recently stolen property instruction in a dealing in stolen property case, the purchase of the property must be done by the defendant, not by another person on his behalf. Thus, where the police are setting up an employee of a pawn shop by pawning allegedly stolen items to that employee, the court errs in giving the instruction in the trial of the owner of the shop because the owner did not actually participate in the transactions. // (See this case for extensive discussion of the possession of recently stolen property instruction, and the constitutionality of the presumption created by the instruction.) // •Tatum v. S, 857 So. 2d 331 (2d DCA 2003), 28 F.L.W. D2380 (10/15/2003)

Answer 364

Defendant may not be convicted of both theft and dealing in stolen property when the conviction arise in connection with one scheme or course of conduct. When the theft and dealing involve the same property, both convictions cannot stand. // Corvo v. S., 916 So. 2d 44 (3d DCA 2005), 30 F.L.W. D2747 (12/7/2005)

Answer 365

Where defendant’s explanation for the possession of recently stolen property is “patently reasonable,” the circumstantial evidence of possession is insufficient to sustain a dealing charge. // Two saws were stolen from the victim. The same day, defendant stated that he saw his friend’s car broken down. The friend had no money but had the two saws which he asked defendant to pawn. Defendant did, and gave the money to his friend. Two days later, he returned to the pawn shop and retrieved the items. Held: The explanation for possession of the property was reasonable, and the court should have granted a JOA. // Bertone v. S., 870 So. 2d 923 (4th DCA 2004), 29 F.L.W. D992 (4/21/2004)

Answer 366

When defendant pleads to both grand theft and dealing in stolen property for offenses involving the same property, the error is fundamental and may be raised for the first time on appeal. The fact that defendant pled to both offenses does not preclude review. // Where defendant steals things with the intent to sell them to support a drug habit, the theft and dealing occur in a single course of conduct even though the offenses occur several days apart. // Toson v. S., 864 So. 2d 552 (4th DCA 2004), 29 F.L.W. D214 (1/14/2004)

Answer 367

While defendant is not barred from raising as error his convictions for both grand theft and dealing in stolen property when he does not object to the trial court, to obtain relief on appeal the record must show that the two counts were from the same transaction. The fact that the offense occurred on the same date will not result in reversal when the record does not show that the incidents were related. // Barfield v. S., 871 So. 2d 929 (5th DCA 2004), 29 F.L.W. D742 (3/26/2004)

Answer 368

Failing to object to convictions for grand theft and dealing in stolen property does not preclude review on appeal. // Hinestroza v. S., 867 So. 2d 1279 (5th DCA 2004), 29 F.L.W. D742 (3/26/2004)

Answer 369

Defendant was charged with burglary, petit theft and dealing is stolen property for stealing metal bars and selling them to a scrap yard the next day. He was acquitted of burglary and convicted of both theft and dealing in stolen property. There was no instruction that the jury could not convict of both offenses, and the defense did not ask for such an instruction. Held: Defendant can contest the dual convictions without raising the issue to the trial court. Being convicted of both theft and dealing in stolen property is analogous to being convicted of a nonexistent crime. // The proper procedure upon being convicted of both offenses is to vacate the theft offense. Defendant is not entitled to a new trial. // Blackmon v. S., ___ So. 3d ___, 36 F.L.W. D690 (1st DCA 3/31/2011)

Answer 370

Grand theft is not a lesser of dealing in stolen property unless the state alleges all the elements of theft. The court errs in finding the child guilty of grand theft based on a dealing petition. // J.O. v. S., 42 So. 3d 803 (3d DCA 2010), 35 F.L.W. D649 (3/24/2010)

Answer 371

The court fundamentally errs in allowing the jury to convict of both theft and dealing is stolen property. The court must instruct the jury to convict on one charge or neither, but not both. When the jury convicts on both, defendant is entitled to a new trial. // Allwine v. S., 42 So. 3d 291 (4th DCA 2010), 35 F.L.W. D1731 (8/4/2010)

Answer 372

Defendant cannot be convicted of both grand theft and dealing in stolen property when he enters an open plea to the court. Where the court accepted the plea, placed defendant on probation, and later sentenced him for violation of probation, the court errs in sentencing for both offenses where they occurred in a single transaction. // Pomaski v. S., 989 So. 2d 721 (4th DCA 2008), 33 F.L.W. D2061 (8/27/2008)

Answer 373

Grand theft and petit theft are category 2 lessers of dealing in stolen property, and the court does not err in refusing to instruct on them when the information does not allege all the elements of the offenses. // Gardner v. S., 987 So. 2d 202 (4th DCA 2008), 33 F.L.W. D1839 (7/23/2008)

Answer 374

Where the state cannot prove the date property was stolen, but can prove the date on which it was pawned, the defendant cannot be convicted of both theft and dealing in stolen property. // (See this case, (Klein, J., concurring) for the opinion that attorneys who allow their client to plead to both theft and dealing in stolen property are committing malpractice.) // Anderson v. S., 2 So. 3d 303 (4th DCA 2008), 33 F.L.W. D1313 (5/14/2008)

Answer 375

Defendant was charged with several counts of dealing in stolen property and related crimes for operating a chop shop. The evidence showed defendant present while several vehicles and motorcycles were dismantled. The court denied a motion for JOA on defendant’s claim that no evidence showed that he knew the vehicles were stolen. Held: Where the vehicle all had damage indicating that they had been stolen, there was sufficient evidence that defendant knew they were stolen. // (See this case for discussion of the sufficiency of evidence going to show that defendant was more than merely a laborer in a shop dismantling cars and was actually involved in operating a chop shop.) // Vargas v. S., 34 So. 3d 44 (4th DCA 2010), 35 F.L.W. D564 (3/10/2010)

Answer 376

LEO saw defendant pushing a trash can filled with fishing poles down the street in the middle of the night. The officer stopped him, and he admitted he had stolen the poles and intended to sell them. He was charged with dealing in stolen property. At trial the defense objected to admission of the statement, arguing that the corpus of dealing in stolen property was not established. Held: Evidence of theft standing alone is insufficient to show an intent to sell the property. However, when defendant possessed a large number of poles, an intent to sell could be inferred and the corpus is sufficiently established (but see dissent). // Brose v. S., 32 So. 3d 144 (4th DCA 2010), 35 F.L.W. D401 (2/17/2010)

Answer 377

The court errs in adjudicating a juvenile guilty of both grand theft and dealing in stolen property when the child stole several guns and then sold one of them. // L.O.J. v. S., 974 So. 2d 491 (4th DCA 2008), 33 F.L.W. D363 (1/30/2008)

Answer 378

Where defendant agrees to plead to both grand theft and dealing in stolen property in return for a low sentence, and he then fails to appear for sentencing and receives an enhanced sentence, the convictions for both crimes does not constitute double jeopardy. // Reigelsperger v. S., 12 So. 3d 876 (5th DCA 2009), 34 F.L.W. D1186 (6/12/2009)

Answer 379

Section 812.019(1) is not unconstitutionally overbroad due to the fact that all dealing in stolen property is treated the same, regardless of the value of the property sold. // Gonzalez v. S., 948 So. 2d 892 (5th DCA 2007), 32 F.L.W. D436 (2/9/2007)

Answer 380

For a second DUI conviction, section 322.28(2)(a)(2) provides a mandatory minimum license suspension of 5 years, but does not prescribe a maximum. Thus, where defendant kills a person while driving drunk, and it was her second DUI, the court properly imposes a lifetime suspension. // Under §316.655(2), the court can impose a lifetime license suspension for a second DUI conviction. // Stoletz v. S., 875 So. 2d 572 (Fla. 2004), 29 F.L.W. S240 (5/20/2004)

Answer 381

Giving a jury instruction on the presumption of impairment in violation of Miles, when the state fails to comply with the quality assurance requirements of the implied consent statute, is not fundamental error. // Admitting blood alcohol evidence under the common law predicate does not trigger any presumption regarding impairment. The state can get the presumption of impairment only if the additional requirements of the implied consent law are complied with. // An instruction given contrary to Miles is not harmful per se, and the court must first determine if the error was preserved before determining whether giving the instruction was harmless. // Cardenas v. S., 867 So. 2d 384 (Fla. 2004), 29 F.L.W. S90 (2/26/2004)

Answer 382

Defendant called his father, an attorney, after an accident. The police terminated the call. The father testified that he would have told his son to request an independent test. Held: Because defendant did not ask for an independent test, the police did not violate the rule of Unruh v. S., 669 So. 2d 242 (Fla. 1996), which requires the police to assist a DUI arrestee in obtaining an independent test (but see dissent). // Smallridge v. S., 904 So. 2d 601 (1st DCA 2005), 30 F.L.W. D1540 (6/20/2005)

Answer 383

(See Embrey v. Dickenson, 906 So. 2d 316 (1st DCA 2005), 30 F.L.W. D1472 (6/13/2005) for discussion of when DMV can order the installation of an interlock device when the court does not order it as part of a sentence.)

Answer 384

While a jury’s finding that a death occurred as part of a DUI manslaughter is a sufficient finding under Apprendi to impose a sentence beyond the statutory maximum, the jury must make a finding of the extent of injury in a DUI causing injury case to permit the court to impose injury points that result in a sentence greater than the maximum. // Arrowood v. S., 843 So. 2d 940 (1st DCA 2003), 28 F.L.W. D887 (4/3/2003)

Answer 385

An allegation that counsel was ineffective for failing to learn that a prior DUI used to enhance a fourth DUI to a felony was uncounseled is sufficient to get a hearing. // Riggins v. S., 831 So. 2d 720 (1st DCA 2002), 27 F.L.W. D2360 (11/1/2002)

Answer 386

Defendant was involved in a hit and run accident, and later that day she was involved in another accident. The officer arrived at the scene of the second crash, saw that defendant was intoxicated, and asked her about the first crash. She confessed to the first accident and was charged with DUI causing serious injury. Held: The court errs in admitting her confession over a corpus delicti objection. There was no evidence to establish that she was intoxicated when she caused the first accident, and the only evidence of intoxication was her own statement. She is properly convicted of leaving the scene of the accident. // Esler v. S., 915 So. 2d 637 (2d DCA 2005), 30 F.L.W. D2379 (10/7/2005)

Answer 387

An officer may make an arrest for a DUI under three circumstances: (1) he observes each element of the incident, (2) the officer is investigating an accident and develops probable cause for an arrest, or (3) one officer calls another and the combined observations of the officers establish probable cause. When a citizen informant calls the police to report a person driving erratically, the officer is without probable cause to make an arrest if he does not observe the defendant driving. // The fellow officer rule does not apply to citizen informants. // Sawyer v. S., 905 So. 2d 232 (2d DCA 2005), 30 F.L.W. D1466 (6/10/2005)

Answer 388

Section 322.28(2)(a)(2) permits the court to revoke a driver’s license for not less than 5 years on a second DUI conviction. There is no upper limit under that section, and the court has the authority to impose a permanent revocation. // Section 316.655(2) likewise permits a permanent revocation. // Stoletz v. S., 842 So. 2d 866 (2d DCA 2003), 28 F.L.W. D234 (1/17/2003) // contra Whipple v. S., 789 So. 2d 1132 (4th DCA 2001)

Answer 389

When the car defendant was driving at the time of his DUI arrest was a lease car rented by his employer, and at the time of the conviction the lease had expired and the car returned, and defendant did not otherwise own a car, the impoundment statute does not apply. // S. v. Burdette, 826 So. 2d 1092 (2d DCA 2002), 27 F.L.W. D2159 (10/4/2002)

Answer 390

DUI causing serious bodily injury is not a lesser of DUI manslaughter unless the information charges all the elements of the lesser. Failure to object to giving the lesser waives the error. // Thomas v. S., 820 So. 2d 382 (2d DCA 2002), 27 F.L.W. D1251 (5/29/2002)

Answer 391

When an officer observed defendant speeding, he smelled and odor of alcohol and saw that defendant had bloodshot eyes, the officer properly detains him for ten minutes until a DUI task force officer arrives to do a full DUI investigation. // Origi v. S., 912 So. 2d 69 (4th DCA 2005), 30 F.L.W. D2302 (9/28/2005)

Answer 392

A breath test affidavit under §316.1934(5) is testimonial hearsay under Crawford, and the court errs in admitting it. The undisputed sole purpose of the affidavit generated by law enforcement is for use at a DUI trial, and thus is testimonial hearsay. // A discovery deposition is not a sufficient substitute for cross examination under Crawford (but see Blanton v. State, 880 So. 2d 798, 801 (Fla. 5th DCA 2004)). // •Belvin v. S., 922 So. 2d 1046 (4th DCA 2005), 30 F.L.W. D1421 (6/8/2005)

Answer 393

LEO observed defendant’s driving for a short time, and saw defendant make a left turn from the right lane without signaling. Held: The LEO lacked sufficient evidence of erratic driving to permit a stop for DUI. // Nicholas v. S., 857 So. 2d 980 (4th DCA 2003), 28 F.L.W. D2474 (10/29/2003)

Answer 394

DUI cannot be committed in an unsophisticated manner. // The DUI mandatory minimums in § 319.193(3) apply to a person convicted of DUI causing property damage. // McGhee v. S., 847 So. 2d 498 (4th DCA 2003), 28 F.L.W. D751 (3/19/2003)

Answer 395

When blood test results are admitted with a traditional predicate due to a violation of implied consent rule, it is not error to give the standard DUI jury instruction. The standard instruction does not have the same effect as the presumption instruction, which should not be given. // Since driving with a blood alcohol level over .08 is an alternate method of proving DUI, giving the standard instruction does not violate Miles rule regarding improper presumptions. // Where the victim is the only person injured in an accident, and she sustained two broken ankles from which she completely recovered, she did not suffer “serious bodily injury” such that an unconsented blood draw is proper. // S. v. Schreiber, 835 So. 2d 344 (4th DCA 2003), 28 F.L.W. D278 (1/22/2003)

Answer 396

A driving record, in the absence of an admission or certified copy of conviction, is not sufficient to sustain a finding of a prior conviction to elevate a DUI to a felony. However, where the court takes judicial notice of the court file of the prior DUI, which contained other evidence linking defendant to the conviction, the predicate is sufficient to sustain the state’s burden of showing the prior. // Ward v. S., 807 So. 2d 808 (4th DCA 2002), 27 F.L.W. D491 (2/27/2002)

Answer 397

When defendant has had some alcohol to drink, but is not impaired, he is not entitled to an attempted DUI instruction. Attempt does not apply to the impairment element of DUI. Such an instruction would result in punishing innocent conduct. // Mollenberg v. S., 907 So. 2d 554 (5th DCA 2005), 30 F.L.W. D1596 (6/24/2005)

Answer 398

A DUI defendant is entitled to discover the operating manuals, maintenance manuals, and schematics of the intoxilyzer used to test defendant's breath. The failure to produce the documents upon request is a discovery violation, and the court properly suppresses the results of the breath test. // •S. v. Muldowny, 871 So. 2d 911 (5th DCA 2004), 29 F.L.W. D510 (2/27/2004)

Answer 399

A police officer need not administer a breath test to have PC to arrest for DUI. The officer’s observations are sufficient to sustain a finding of probable cause. Seeing the defendant weave while driving, smelling alcohol, and defendant’s admission to drinking are circumstances that sustain a finding of probable cause. // A breath test must be administered incident to a lawful arrest. The arrest need not be for DUI; so long as defendant is lawfully arrested for some offense while driving under the influence, the breath test is lawful. // DHSMV v. Whitley, 846 So. 2d 1163 (5th DCA 2003), 28 F.L.W. D1090 (5/2/2003)

Answer 400

When defendant is charged with felony DUI, he is entitled to a bifurcated jury trial on the issues (1) whether he committed DUI, and (2) whether he has sufficient prior offenses. Defendant must validly waives his right to a jury trial on the second issue before the court can make the finding of sufficient prior convictions. The error, however, is harmless where defendant cannot produce any evidence to show that he did not have the requisite convictions. // (But see dissent, arguing that harmless error analysis does not apply in circumstances that infringe on defendant's right to a jury trial.) // Johnson v. S., 994 So. 2d 960 (Fla. 2008), 33 F.L.W. S651 (9/18/2008)

Answer 401

Under rule 3.111(b) (1992), a defendant is entitled to counsel in all case punishable by imprisonment except misdemeanor and ordinance violations where the judge certifies in writing that he will not face imprisonment. Where defendant signed a plea form that indicated he did not have a right to counsel unless the court was considering imprisonment, the form did not adequate inform defendant of his right to counsel. // An on-the-record plea colloquy that properly informs defendant of his right to counsel can cure a defect in the plea form. // Under S. v. Beach, 592 So. 2d 237 (Fla. 1992), to raise a claim in an enhanced DUI that a prior conviction was uncounseled, defendant must allege under oath (1) the offense was punishable by more than six month in jail, or he was actually subjected to a term of imprisonment, (2) defendant was entitled to court-appointed counsel; (3) counsel was not appointed, and (4) the right to counsel was not waived. Upon making that claim, the burden shifts to the state to show that counsel was appointed or was waived. // While search and seizure law in Florida must follow U.S. constitutional law, Florida is free to provide a greater right to counsel than that required under the federal constitution. Florida’s rule requires counsel when there is possible incarceration, unless the judge certifies otherwise. Florida’s constitution provides greater protection than the federal right to counsel. // In a felony DUI, the priors misdemeanors are an element in the felony charge. // The state cannot use a prior uncounseled misdemeanor to increase a misdemeanor DUI to a felony unless the defendant had counsel or validly waived his right to counsel. // (See this case for extensive discussion of the use of prior misdemeanor DUI to enhance a DUI to a felony.) // •S. v. Kelly, 999 So. 2d 1029 (Fla. 2008), 34 F.L.W. S15 (12/30/2008)

Answer 402

LEO saw defendant driving slowly down a residential street and stopping occasionally. Defendant made a U-turn that caused his wheels to go over the curb and onto the grass beside the road, but did not interfere with other cars. The officer suspected the defendant was selling drugs, and stopped him on the grounds that he might be DUI, a drug dog alerted and defendant was arrested on a drug charge. Held: The court err in failing to suppress. Under the circumstances, the defendant's driving pattern did not suggest he was DUI (but see dissent). // Beahan v. S., 41 So. 3d 1000 (1st DCA 2010), 35 F.L.W. D1760 (8/5/2010)

Answer 403

LEO responded to the scene of an accident, and found defendant and passenger standing outside the car. The officer investigated, and defendant admitted to being the driver. He was arrested and charged, and the county court denied a motion to suppress, which the circuit court upheld. Held: The state presented no non-privileged evidence that defendant was the driver of the car at the time of the accident. The admission by defendant that he was driving was covered by the accident report privilege, and no non-privileged evidence was obtained. // Skinner v. S., 31 So. 3d 940 (1st DCA 2010), 35 F.L.W. D798 (4/7/2010)

Answer 404

When a person is injured in a crash, and the driver of the automobile causing the crash exhibited signs of impairment, the corpus delicti of DUI causing serious injury is established, and the court errs in suppressing defendant's post-crash statement admitting that he was driving. // In some circumstances, showing who was driving is essential in establishing the corpus of DUI. Where the defendant and victim are in the same car at the time of the crash, proof of who was driving is needed because if the victim were driving, there would be no crime. However, when one car strikes a second, and there is evidence that the driver of the first car was intoxicated, there is no need to establish the identity of the driver before admitting evidence of a confession. // (See this case for extensive discussion of corpus delicti in DUI cases.) // •S. v. Walton, 42 So. 3d 902 (2d DCA 2010), 35 F.L.W. D1895 (8/20/2010)

Answer 405

Defendant was convicted of DUI with serious injury, driving without a license with serious injury, and leaving the scene of an accident for a single incident. Held: Convictions for DUI with injury and driving without a license causing injury are proper for a single incident, but defendant cannot be convicted of both DUI causing injury and driving without a license causing injury for a single accident. // Kelly v. S., 987 So. 2d 1237 (2d DCA 2008), 33 F.L.W. D1974 (8/13/2008)

Answer 406

A driver's license revocation is a collateral consequence of a plea, and neither counsel nor the court is obligated to tell defendant about a DL suspension for DUI. // Sayles v. S., 14 So. 3d 1269 (2d DCA 2009), 34 F.L.W. D1391 (7/8/2009)

Answer 407

LEO saw defendant speeding, and upon stopping him smelled alcohol and saw that defendant’s eyes were bloodshot. Upon doing an HGN test, he saw substantial movement in his eyes, and arrested for DUI. Held: The court erred in finding that the officer lacked probable cause to make an arrest. // S. v. Ameqrane, 39 So. 3d 339 (2d DCA 2010), 35 F.L.W. D1148 (5/21/2010)

Answer 408

To prove DUI involving property damage to another, the state must show that some property damaged was owned by a person other than the defendant. Where the state fails to show ownership, the court errs in denying a JOA. // Brown v. S., 32 So. 3d 779 (2d DCA 2010), 35 F.L.W. D984 (4/30/2010)

Answer 409

Defendant's act of testifying that he did not trust breath testing machines as part of his explanation for not taking a breath test does not open the door for the state to inquire about a prior DUI in which he did take the test. Defendant’s answer was not misleading or incomplete, and he only expressed his opinion or state of mind regarding the test’s reliability (but see dissent). // Prejudice from evidence of a prior DUI greatly outweighs the probative value. The reason for refusing the test is minimally relevant at best, and informing the jury that defendant had previously been convicted of the same offense is extremely prejudicial. // Hayward v. S., ___ So. 3d ___, 36 F.L.W. D829 (2d DCA 4/20/2011)

Answer 410

A prior uncounseled DUI can be used to enhance a subsequent DUI when the prior conviction resulted in a sentence of time served. Where defendant spent some time in jail upon arrest and received a time-served sentence, the sentence is not one of imprisonment such that, because defendant was uncounseled, the conviction could not be used to enhance a later crime. // S. v. Dunning, 995 So. 2d 1162 (2d DCA 2008), 33 F.L.W. D2801 (12/10/2008)

Answer 411

(See •Bennett v. S., 23 So. 3d 782 (2d DCA 2009), 34 F.L.W. D2428 (11/25/2009) for extensive discussion of the law relating to the sufficiency of an allegation that law enforcement failed to make or preserve a video of defendant's traffic stop and DUI roadside tests, and the different standards court have used in determining which party has the burden of proof and burden of going forward in determining whether defendant’s due process right were violated by failing to make or preserve a video.)

Answer 412

When DUI and related offense are originally filed as misdemeanors, but later are upgraded to felonies based on prior offense, the state must move to consolidate the misdemeanors with the felony, or nol pross the misdemeanors if it wishes to proceed with the felonies. Without a proper motion to consolidate under rule 3.151(b), the county court retains jurisdiction over misdemeanors, and should dismiss charges not tried within the speedy trial rules. // When the underlying misdemeanor DUI is dismissed for speedy trial violation, the underlying felony DUI also must be dismissed, because without the misdemeanor there is no crime to upgrade to a felony. // •Hernandez v. S., 985 So. 2d 1115 (3d DCA 2008), 33 F.L.W. D1292 (5/14/2008)

Answer 413

Evidence that defendant was driving with a suspended license at the time of his DUI is not admissible. The probative value of the evidence is outweighed by the prejudice. // The error is harmless where the evidence against defendant was overwhelming and defendant confessed. // Admission of erroneous collateral crime evidence is presumptively harmful. // Ochacher v. S., 987 So. 2d 1241 (4th DCA 2008), 33 F.L.W. D2197 (8/13/2008)

Answer 414

A certified copy of a driving record showing a prior DUI arrest and indicating a refusal to take a breath test, along with a non-certified copy of a booking record, is sufficient to prove a prior refusal to take a breath test. // Fender v. S., 980 So. 2d 516 (4th DCA 2007), 32 F.L.W. D1527 (6/20/2007)

Answer 415

Under §316.193(12), certified records of DHSMV showing a prior DUI conviction is sufficient to prove priors for felony DUI purposes. // Fender v. S., 980 So. 2d 516 (4th DCA 2007), 32 F.L.W. D1527 (6/20/2007)

Answer 416

When the state or police lose material exculpatory evidence, defendant’s due process rights are violated, and the state's good faith or bad faith are irrelevant. // LEO recorded defendant's performance on roadside sobriety tests, and the recording was lost. The court dismissed the cases as a sanction. Held: Dismissal is too harsh a sanction, and the dismissal is reversed. The court should consider other sanctions short of dismissal. // (See this case for discussion of the distinction between not recording a DUI stop, and recording and losing a recording.) // S. v. Davis, 14 So. 3d 1130 (4th DCA 2009), 34 F.L.W. D1215 (6/17/2009)

Answer 417

Under §322.28(4)(a), the court must revoke the DL of a defendant convicted of DUI with serious bodily injury for a period of not less than 3 years. That allows the court to impose a permanent revocation. // The revocation is properly done under §322.28(4), not §316.655(2). // Houle v. S., 33 So. 3d 822 (4th DCA 2010), 35 F.L.W. D938 (4/28/2010)

Answer 418

Defendant must validly waive his right to have a jury determine whether he has sufficient priors to increase simple DUI to a felony. The failure to obtain such a waiver gets reversal. // Davis v. S., 31 So. 3d 887 (4th DCA 2010), 35 F.L.W. D650 (3/24/2010)

Answer 419

Defendant was charged with DUI in 1988, and pled without counsel and received a fine, probation, and time served. The state attempted to use that conviction as a predicate for felony DUI, and the defense objected, claiming the conviction was uncounseled. Held: Because defendant was not subject to imprisonment of more than 180 days, he was not entitled to the appointment of counsel and the court erred in excluding the prior. // (See this case for discussion of when a prior uncounseled DUI can be used to enhance a subsequent DUI.) // S. v. Brown, 995 So. 2d 1034 (4th DCA 2008), 33 F.L.W. D2632 (11/12/2008)

Answer 420

(See Kirpalani v. DHSMV, 997 So. 2d 502 (4th DCA 2008), 33 F.L.W. D2366 (10/8/2008) for the ruling that misinformation about the effect of failing to take a breath test on an out-of-state license does not result in the suppression of the test results in a Florida administrative proceeding.)

Answer 421

A New York conviction for driving while ability impaired is a sufficient predicate for enhancing a Florida DUI conviction to a felony. // (See this case for discussion of the use of foreign judgments in enhancing Florida DUI convictions.) // DiPietro v. S., 992 So. 2d 880 (4th DCA 2008), 33 F.L.W. D2470 (10/22/2008)

Answer 422

While evidence of defendant's refusal to take a breath test is admissible, the state may not introduce evidence that defendant did not demand to take a test to prove he was not intoxicated. The state may not comment on the defendant’s right to remain silent under the guise of evidence pertaining to a refusal. // Concha v. S., 972 So. 2d 996 (4th DCA 2008), 33 F.L.W. D134 (1/2/2008)

Answer 423

Felony DUI is a different crime than DUI because it requires proof of an element that DUI does not. When felony DUI is filed more than three years after the crime, the case is barred by the statute of limitations. // Cicilian v. S., 945 So. 2d 654 (4th DCA 2007), 32 F.L.W. D201 (1/10/2007)

Answer 424

While the corpus of most crimes do not involve evidence of identity, the corpus for a DUI offense requires evidence indicating that the defendant was operating the vehicle while under the influence (see concurring opinion for criticism of this rule). // Eyewitness evidence that placed defendant at the scene of the accident, plus other circumstantial evidence (no other evidence of an occupant, car owned by defendant’s wife, accident scene located on defendant’s route home, etc.) is sufficient to allow admission of defendant’s confession over a corpus delicti objection. // Syverud v. S., 987 So. 2d 1250 (5th DCA 2008), 33 F.L.W. D1986 (8/15/2008)

Answer 425

While it is proper for the prosecutor to argue that a defendant’s refusal to perform field sobriety tests and submit to a breath test constituted consciousness of guilt, it is not proper to argue that “an innocent man if arrested would say ‘I haven’t been drinking, why are you arresting me?’” or to argue that an innocent man would volunteer to take a breath test. Such an argument violates the fifth amendment and shifts the burden of proof to the defendant. // Morris v. S., 988 So. 2d 120 (5th DCA 2008), 33 F.L.W. D1851 (7/25/2008)

Answer 426

Under Hlad v. S., 585 So. 2d 928 (Fla. 1991), an uncounseled DUI convicted can be used to enhance a subsequent DUI to a felony only if the uncounseled conviction did not result in incarceration. Where the court granted defendant one day of credit for time served at the time of her arrest as credit against her probationary sentence following her uncounseled conviction, the sentence is not converted into a jail sentence for subsequent enhancement purposes. // Comeaux v. S., 988 So. 2d 101 (5th DCA 2008), 33 F.L.W. D1807 (7/18/2008)

Answer 427

A juvenile charged with DUI can be prosecuted in county court, and need not be prosecuted in the juvenile division. // N.J.G. v. S., 987 So. 2d 101 (5th DCA 2008), 33 F.L.W. D1482 (6/6/2008)

Answer 428

(See DHSMV v. Rife, 950 So. 2d 1288 (5th DCA 2007), 32 F.L.W. D785 (3/23/2007) permitting forfeiture of a vehicle used in the commission of a felony DUI.)

Answer 429

The court errs in admitting an entire court file to show defendant's prior DUI conviction. A court file has much inadmissible evidence, and the prejudice clearly outweighs the probative value. // Section 316.193(12), which allows the state to introduce a certified copy of a driving record as a way to prove prior DUI convictions, is constitutional. The statue does not create a mandatory irrefutable presumption, which would violate due process. // (See this case for a discussion of evidentiary inferences and presumptions.) // Ibarrondo v. S., 1 So. 3d 226 (5th DCA 2008), 34 F.L.W. D71 (12/24/2008)

Answer 430

The implied consent law does not require FDLE to adopt rule regarding the collection and preservation of urine samples. // (See this case for extensive discussion of the implied consent statute (§316.1932(1)(a)(1)) // •S. v. Bodden, 877 So. 2d 680 (Fla. 2004), 29 F.L.W. S153 (4/15/2004) // reversing S. v. Bodden, 27 F.L.W. D2382 (2d DCA 2002) // approving S. v. Pierre, 854 So. 2d 231 (5th DCA 2003)

Answer 431

When the state violates section 395.3025(4) by failing to give notice to the defendant before issuing a subpoena for her medical records, the records should be suppressed. However, the state is not precluded from reissuing a subpoena after giving proper notice unless the initial subpoena was issued in bad faith. when the state in good faith fails to give proper notice, it should not be precluded from later complying with the statute. // (See this case for extensive discussion of the application of § 395.3025(4)). // S. v. Johnson, 814 So. 2d 390 (Fla. 2002), 27 F.L.W. S250 (3/21/2002)

Answer 432

Under Miles, it is clear that the statutory presumptions of impairment cannot be used when the admissibility of blood test evidence is based on the common law Bender test. Giving a jury instruction on presumption of impairment is fundamental error. // (See this case for extensive discussion of the Miles rule and fundamental error concept.) // •Leveritt v. S., 924 So. 2d 42 (1st DCA 2006), 31 F.L.W. D424 (2/9/2006)

Answer 433

The court errs in admitting, pursuant to section 316.1934(5), a “breath test affidavit” stating that the breathalyzer had been properly maintained. The affidavit was testimonial hearsay, and admission violated Crawford v. Washington. // •Shiver v. S., 900 So. 2d 615 (1st DCA 2005), 30 F.L.W. D653 (3/8/2005)

Answer 434

The approval for use of an alcohol testing solution, used by FDLE to certify the accuracy of the breathalyzer created by a single laboratory, did not constitute a violation of the Administrative Procedures Act. // The Certificate of Accuracy promulgated by FDLE for use in certifying the accuracy of breathlyzers did constitute an improper rule under the APA, but the remedy for the improper adoption of the form is not to suppress the results from the breathalyzer. // (See this case for discussion of the APA relating to adopting rules for breath analysis.) // •Jenkins v. S., 855 So. 2d 1219 (1st DCA 2003), 28 F.L.W. D2348 (10/13/2003)

Answer 435

Giving a presumption instruction that is erroneous under Miles is not fundamental error (but see dissent). // Cardenas v. S., 816 So. 2d 724 (1st DCA 2002), 27 F.L.W. D1038 (5/7/2002)

Answer 436

Giving impairment instructions in a case covered by Miles is not fundamental error when no objection is raised. The erroneous instructions neither omitted an element of the offense or misdefined an element. Giving the instruction does not deprive defendant of a fair trial. // Leveritt v. S., 817 So. 2d 891 (1st DCA 2002), 27 F.L.W. D1122 (5/7/2002)

Answer 437

The decision in Miles regarding the admission of blood alcohol samples is an evolutionary refinement in the law and cannot be applied retroactively. Defendant thus is not entitled to 3.850 relief on that ground once the 2-year time limit passes. // •Curtis v. S., 805 So. 2d 995 (1st DCA 2001), 26 F.L.W. D2874 (12/7/2001)

Answer 438

When an officer has reasonable cause to believe that defendant was driving under the influence of drugs or alcohol, and that while driving in that condition caused an accident that resulted in the death or serious bodily injury of a human being, blood is properly drawn under §316.1933(1). // (See this case for extensive discussion of the distinction between blood and urine draws under §316.1932 and §316.1933(1).) // •S. v. Serrago, 875 So. 2d 815 (2d DCA 2004), 29 F.L.W. D1571 (7/2/2004)

Answer 439

Defendant was charged with DUI manslaughter as the result of an auto accident. While the defendant was hospitalized, blood was drawn showing his BAL to be over the legal limit. The defense sought discovery, but the state’s response did not contain the medical records with the BAL result. The defense asked repeatedly for the results, and the state failed to provide them. The defense moved to suppress, and the court, applying Richardson standards, found the failure to provide the results to be a discovery violation, and suppressed the results. Held: The court erred in excluding the results without considering other possible sanctions. // The standard for determining whether to suppress is different than Richardson standards, and the court errs in using Richardson standards at a pretrial hearing. Under Richardson, it is difficult to find prejudice when defendant is out of custody and the court could continue the trial to remedy the violation. // S. v. Eaton, 868 So. 2d 650 (2d DCA 2004), 29 F.L.W. D686 (3/29/2004)

Answer 440

Where a child had to be airlifted from the scene following her ejection from the car in an accident, an LEO’s determination that the child suffered serious injury is sufficient to support a request for a blood draw. // S. v. Catt, 839 So. 2d 757 (2d DCA 2003), 28 F.L.W. D341 (1/31/2003)

Answer 441

Where an LEO gets a medical blood alcohol level from hospital personnel, and the state then complies with the notice requirement of section 395.3025(4)(d) to obtain the records, the court does not err in refusing to suppress the records. The officer would have been authorized to ask for legal blood, and even if the officer was not, the officer’s conduct will not result in the suppression of properly-obtain medical records. // Thomas v. S., 820 So. 2d 382 (2d DCA 2002), 27 F.L.W. D1251 (5/29/2002)

Answer 442

(See McBride v. S., 816 So. 2d 656 (2d DCA 2002), 27 F.L.W. D438 (2/20/2002) for determination that instructing the jury regarding statutory presumptions is harmless error when the evidence clearly shows impairment and defendant’s BAL was over .30.)

Answer 443

When the state is prohibited from using the presumptions of the implied consent law because of the inadequacy of FDLE rules regarding the collection and storage of blood samples, the court properly instructs the jury that defendant can be convicted of DUI manslaughter by showing defendant was impaired or “had a blood alcohol level of .08 percent or higher.” Instructing the jury in that manner does not make use of the presumptions because driving with a BAL over .08 is an alternative to proving impairment. // •Tyner v. S., 805 So. 2d 862 (2d DCA 2001), 26 F.L.W. D2203 (9/12/2001) // but see Dodge v. S., 26 F.L.W. D1550 (Fla. 4th DCA 6/20/01)

Answer 444

FDLE is not required to adopt rules under the APA concerning the collection, preservation, and analysis of urine samples obtained under §316.1932(1)(a). // S. v. Korth, 875 So. 2d 790 (3d DCA 2004), 29 F.L.W. D1482 (6/23/2004)

Answer 445

The circuit court properly reverses a county court ruling suppressing a breath test result when the evidence shows that the defendant had an orthodontic appliance in her mouth which resulted in the first breath test being invalid. By having the defendant wash her mouth out with water, the subsequent tests were valid and properly admitted. // Schofield v. S., 867 So. 2d 446 (3d DCA 2004), 29 F.L.W. D334 (2/4/2004)

Answer 446

LEO arrested defendant for DUI and asked her if she wanted to take a breath test, and she agreed. The defense sought to suppress the results, arguing that the failure to read the complete implied consent warning required suppression. Held: When the defendant consents to the test, the administrative penalties do not apply, and the failure to tell defendant of the penalties does not render consent invalid. The court errs in suppressing the test results. // •S. v. Iaco, 906 So. 2d 1151 (4th DCA 2005), 30 F.L.W. D1556 (6/22/2005)

Answer 447

Obtaining blood alcohol records from a hospital by means of a search warrant rather than a subpoena is lawful, and the state need not comply with the notice requirements when obtaining records by search warrant. // Farrall v. S., 902 So. 2d 820 (4th DCA 2004), 29 F.L.W. D2605 (11/17/2004)

Answer 448

A stronger showing is required to overturn an order granting a new trial than to overturn an order denying a new trial. // The court errs in granting a new trial based on a newly-rendered appellate decision (here, the decision in Miles v. State) when the defense during the trial did not object to the introduction of blood test results on the grounds decided in Miles. An unobjected-to non-fundamental error will not support the granting of a new trial. // S. v. Cameron, 837 So. 2d 1111 (4th DCA 2003), 28 F.L.W. D520 (2/19/2003)

Answer 449

When blood test results are admitted with a traditional predicate due to a violation of implied consent rule, it is not error to give the standard DUI jury instruction. The standard instruction does not have the same effect as the presumption instruction, which should not be given. // Since driving with a blood alcohol level over .08 is an alternate method of proving DUI, giving the standard instruction does not violate Miles rule regarding improper presumptions. // Where the victim is the only person injured in an accident, and she sustained two broken ankles from which she completely recovered, she did not suffer “serious bodily injury” such that an unconsented blood draw is proper. // S. v. Schreiber, 835 So. 2d 344 (4th DCA 2003), 28 F.L.W. D278 (1/22/2003)

Answer 450

Article I, section 12 of the Florida constitution, which requires that Florida’s search and seizure provision be construed in conformity with decisions of the U.S. Supreme Court, does not prevent the legislature from passing a statute that provides greater protection to Florida citizens than is provided by the U.S. Supreme Court. Thus, since Florida’s implied consent law requires both probable cause to believe defendant is DUI and that a serious injury or death has occurred before an officer can forcibly draw blood, the court does not err in suppressing blood drawn without consent when there is no serious injury. Although under federal search and seizure law, only PC to believe defendant is DUI is needed to draw blood without consent, the Florida statute provides greater protections. The legislature is permitted to provide additional protections. // S. v. Langsford, 816 So. 2d 136 (4th DCA 2002), 27 F.L.W. D713 (3/27/2002)

Answer 451

When the state meets the common law requirements for the introduction of blood testing results as required by Robertson, and does not rely on the implied consent provisions and the FDLE rules held improper in Miles, the blood test results are properly admitted. // When the court properly admits BAL test results under the common law rules, but gives the presumption instructions, the error is harmless because DUI can be proven either by having a BAL over .08 or by showing impairment. When the evidence shows the BAL was over .08, impairment is unnecessary and giving an instruction about the presumptions does not matter. // •Dodge v. S., 805 So. 2d 990 (4th DCA 2001), 26 F.L.W. D2875 (12/6/2001)

Answer 452

Under the boating implied consent statute, §327.352(3), the police may obtain a blood sample merely by asking hospital personnel for it so long as the request is in connection with the investigation of an alleged violation of §327.35. No notice is required of the police request because defendant has already consented to it. // While a blood sample may be drawn before the police ask for it, when the police do request it, it is properly admitted into evidence. The fact that the blood was drawn before the request does not preclude the police from using the blood to determine a BAL. // Statutory presumptions of impairment are not available when the state does not opt to adduce blood alcohol test results complying with the procedures in § 327.354(3). // •Cameron v. S., 804 So. 2d 338 (4th DCA 2001), 26 F.L.W. D1748 (7/18/2001)

Answer 453

Self-defense is a defense to disorderly conduct by brawling or fighting when the defendant does not provoke the fight. Where the only evidence presented regarding how the fight started shows that the defendant did not start it, the court errs in finding the child guilty of disorderly conduct. // S.D.G. v. S., 919 So. 2d 704 (5th DCA 2006), 31 F.L.W. D366 (2/3/2006)

Answer 454

Defendant was the driver in a fatal accident. The investigator had reason to believe alcohol was involved, and went to the hospital where defendant was being treated. The officer did not ask for a blood draw and he could not obtain records. The next day, he returned to the hospital with a police form requesting records, and he got a record showing defendant’s BAL on the night of the accident. Fourteen months later, the state subpoenaed the records, and the defense objected. Held: The police failed to comply with the subpoena process when they initially obtained the records, and a later subpoena will not cure the failure. The court properly suppressed the subpoena. // •S. v. Kutik, 914 So. 2d 484 (5th DCA 2005), 30 F.L.W. D2534 (11/4/2005)

Answer 455

LEO obtained defendant's medical BAL test results without seeking a subpoena. Held: The fact that the records were later obtained properly by subpoena does not cure the error. The failure to follow the procedure in §395.2035(4)(d) results in suppression, regardless of whether the records are later obtained legally. // Frank v. S., 912 So. 2d 329 (5th DCA 2005), 30 F.L.W. D2012 (8/26/2005)

Answer 456

The failure to inform defendant that it would be a crime to refuse a breath test if she previously had a refusal does not render evidence of the refusal inadmissible. The fact that she was informed that her license would be suspended is sufficient to get the refusal admitted. // Grzelka v. S., 881 So. 2d 633 (5th DCA 2004), 29 F.L.W. D1803 (8/6/2004)

Answer 457

An officer’s observation of the defendant’s bloodshot eyes, odor of alcohol, numerous beer bottles in the vehicle, the defendant’s incoherence, and the nature of the accident together provide sufficient cause to order a blood draw under § 316.1933. // Rodriguez v. S., 837 So. 2d 478 (5th DCA 2002), 28 F.L.W. D140 (12/27/2002)

Answer 458

When the state seeks to issue a subpoena for medical records under §395.3025(4), and the defendant objects, the state has the burden of showing that the records are relevant to the state’s investigation. The subpoena will not issue if the state does not make the showing of relevancy. // Cerroni v. S., 823 So. 2d 150 (5th DCA 2002), 27 F.L.W. D1392 (6/14/2002)

Answer 459

A medical record of a blood or urine test showing the presence of drugs is admissible as a business record so long as the predicate in §90.803(6)(a) is met. A hospital record of a blood test made for medical reasons which is maintained by the hospital as a medical or business record may be admitted in a criminal case pursuant to the business record exception. The fact that the record is labeled “for medical purposes only” does not preclude admission. // Nimmons v. S., 814 So. 2d 1153 (5th DCA 2002), 27 F.L.W. D851 (4/12/2002)

Answer 460

Defendant was charged with DUI manslaughter, and the information alleged alternatively that he was DUI to the extent his faculties were impaired, or that he had a BAL over .08. The court gave the statutory presumptions of impairment in violation of State v. Miles, 775 So. 2d 950 (Fla. 2000). Held: Although the evidence of guilt is overwhelming, the conviction is reversed. The jury could have based the conviction on the improper presumptions. // (See this case for extensive discussion of harmless error, and when reversal is required in a case where guilt is based on alternative theories.) // Bonine v. S., 811 So. 2d 863 (5th DCA 2002), 27 F.L.W. D738 (3/28/2002)

Answer 461

The rule of State v. Miles, regarding the admissibility of blood sample and the presumptions flowing from the test results, is not to be applied retroactively. // Wilson v. S., 812 So. 2d 452 (5th DCA 2002), 27 F.L.W. D506 (3/1/2002)

Answer 462

Under State v. Miles, the impairment presumptions are not available when blood is drawn pursuant to FAC 11D-8.012. Where the instructions allow the jury to find defendant guilty based on either impairment or BAL over .08, and the presumption instruction is erroneously given, it is impossible to determine whether the jury relied on the instruction, and the conviction is reversed. // Servis v. S., 802 So. 2d 359 (5th DCA 2001), 26 F.L.W. D2570 (10/26/2001)

Answer 463

The court errs in admitting lay witness opinion evidence regarding the results of a horizontal gaze nystagmus test. The failure to qualify the witness as an expert gets reversal. // Robinson v. S., 982 So. 2d 1260 (1st DCA 2008), 33 F.L.W. D1430 (6/2/2008)

Answer 464

A hearing officer in a formal review hearing pertaining to a license suspension following a DUI arrest is authorized to issue subpoenas for persons who performed inspections on the breath testing device. // Lee v. DHSMV, 4 So. 3d 754 (1st DCA 2009), 34 F.L.W. D520 (3/10/2009)

Answer 465

Drug or alcohol test results performed at a hospital for the purpose of diagnosing and treating injuries are properly admitted as business records, and are not testimonial hearsay because they are not created for the purpose of prosecuting the defendant. // Sellers v. S., 973 So. 2d 543 (1st DCA 2007), 33 F.L.W. D93 (12/31/2007)

Answer 466

Defendant’s high rate of speed, his violent behavior at the hospital, and the odor of alcohol provides sufficient probable cause to allow a forced blood draw under §316.1933(1)(a). // Palazzoto v. S., 988 So. 2d 123 (2d DCA 2008), 33 F.L.W. D1854 (7/25/2008)

Answer 467

Section 942-.01 - .06, the Uniform Law to Secure the Attendance of Witnesses from Within of Without the State in Criminal Proceedings, allows the testimony of material out-of-state witnesses who otherwise would be beyond the subpoena power of the forum court, and establishes uniformity in the procedure by which out-of-state witnesses are compelled to participate in criminal proceedings. Florida’s statute includes requests for testimony accompanied by a request for production of documents. // The Uniform Law does not apply to requests to the registered agent of out-of-state corporations registered to do business in the state. Thus, a request to produce Intoxilyzer source code documents is not required to comply with the uniform act. // CMI, Inc. v. Landrum and S., ___ So. 3d ___, 35 F.L.W. D1357 (2d DCA 6/18/2010)

Answer 468

A DHSMV hearing officer in a formal review hearing need not determine whether the officer legally stopped the defendant. // (See this case for discussion of procedural due process in procedures that can result in the revocation of a driver’s license.) // DHSMV v. Hofer, 5 So. 3d 766 (2d DCA 2009), 34 F.L.W. D583 (3/18/2009)

Answer 469

An implied consent form that requests the defendant to submit to a “breath, blood, or urine” test complies with section 316.1932(1)(a)(1)(a), and the circuit appellate court errs in finding that the warning is not in compliance. // DHSMV v. Nader, 4 So. 3d 705 (2d DCA 2009), 34 F.L.W. D414 (2/20/2009) // contra, DHSMV v. Clark, 974 So. 2d 416 (4th DCA 2007)

Answer 470

Section 322.2615(6)(b) does not prohibit a DHSMV hearing officer from issuing a subpoena to the agency inspector responsible for maintaining the breath testing equipment. // The hearing officer conducting a formal review is not required to address whether the arrest under §316.193 was lawful. Under the amendments to §322.2615 effective 10/1/06, the administrative review is limited to (1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of the vehicle while under the influence of alcoholic beverage, and (2) whether the person had an unlawful blood alcohol level. The state no longer permits the hearing officer to consider whether the person was lawfully placed under arrest for a violation of §316.193. // •DHSMV v. Escobio, 6 So. 3d 638 (2d DCA 2009), 34 F.L.W. D417 (2/20/2009) // contra, DHSMV v. Pelham, 979 So. 2d 304 (5th DCA 2008)

Answer 471

When a person requests a formal review of their license suspension under §322.2615(6), the hearing officer is authorized by §322.2615(1)(b)(3) to issue subpoenas for the officers and witnesses identified in the documents provided in subsection (1). Thus, the officer can issue subpoenas to any person identified in the documents, including the person responsible for maintenance of the breath testing machine. // (See this case for extensive discussion of the DL suspension hearing statutes.) // •Yankey v. DHSMV, 6 So. 3d 633 (2d DCA 2009), 34 F.L.W. D418 (2/2/2009)

Answer 472

The fact that a second refusal is now a crime does not overrule prior law that defendant is not entitled to a lawyer in deciding whether to take the breath test. // Defendant was arrested for DUI and asked whether he wanted to take the breath test. He refused, and was charged with a second refusal under §316.1939. He moved to suppress based on a Miranda violation, and the trial court suppressed. Held: Though defendant was in custody, he was not subject to interrogation for Miranda purposes for two reasons. First, the defendant had no right to refuse to take the test because he had legally consented as a condition of obtaining a driver’s license. Requesting a person to do an act they have no right to refuse does not involve coercion, and thus Miranda does not apply. Second, merely asking if defendant wanted to take a breath test is not a question that the officers should have known would elicit an incriminating response. // (See this case for extensive discussion of constitutional protections regarding the right to refuse to take a breath test.) // •S. v. Busciglio, 976 So. 2d 15 (2d DCA 2008), 33 F.L.W. D267 (1/23/2008)

Answer 473

Chapter 942, the Uniform Law to Secure the Attendance of Witnesses from Within and Without a State, can be used to obtain documents by use of a subpoena duces tecum. // The source code of the Intoxilyzer 5000 is not “material” under the Uniform Law, and the court improperly certifies a request for the issuance of a subpoena for that information. // •S. v. Bastos, 985 So. 2d 37 (3d DCA 2008), 33 F.L.W. D1541 (6/11/2008)

Answer 474

An implied consent warning that tells defendant that his license will be suspended if he refuses to submit to a “breath, blood, or urine test,” when only a breath test is authorized under the facts, is sufficient. // DHSMV v. Freeman, ___ So. 3d ___, 36 F.L.W. D834 (3d DCA 4/20/2011)

Answer 475

A defendant does not have the right to an attorney's advice before taking a breath test following a DUI arrest. // Under the implied consent statute, the police only have to tell a defendant of the consequences of refusal. They are not required to tell him that he does not have the right to an attorney's advice before deciding whether to take the test. Thus, when defendant asks for an attorney and then decides not to take the test due to confusion over his right to counsel, the refusal should not be suppressed. // The “confusion doctrine,” which can result in exclusion of evidence when defendant is confused about his rights, does not apply. Because evidence of a refusal can be argued by the state as evidence of consciousness of guilt, the defense likewise can argue properly that the refusal was the result of confusion over his rights, not consciousness of guilt. // •Kurecka v. S., ___ So. 3d ___, 35 F.L.W. D2162 (4th DCA 9/29/2010)

Answer 476

When defendant voluntarily consents to a blood draw, and the officer does not read the implied consent warning, the consent is lawful. The officer does not have to tell defendant of consequences for failing to consent when he in fact consents. // (See also S. v. Iaco, 906 So. 2d 1151 (4th DCA 2005), holding that the failure to read the implied consent warning does not make consent to take a breathalyzer involuntary.) // S. v. Dubiel, 958 So. 2d 486 (4th DCA 2007), 32 F.L.W. D1338 (5/23/2007)

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