State of Florida
Office of Attorney General Ashley Moody

Criminal Law Alert

Date issued: 08/21/2012
Editor: Carolyn Snurkowski

Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.

United States Court of Appeal
Eleventh Circuit

Florida Supreme Court reasonably determined underlying facts and reasonably applied clearly established federal law in all issues raised.

Ponticelli v. Secretary, DOC, et al., 11-11966. Decided August 16, 2012.

Ponticelli, sentenced to death for the murder of two brothers, appealed the denial of his habeas petition. The first issue raised was that “the prosecution violated his right to due process when it allegedly suppressed evidence of and failed to correct false testimony about an agreement to provide immunity for a witness for the state and about Ponticelli’s use of cocaine shortly before the murders, see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); see Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972).” The second issue raised was that “his trial counsel provided ineffective assistance by failing to present evidence of Ponticelli’s incompetence to stand trial and by failing to present mitigating evidence of drug use and mental health problems during the penalty phase. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).”

On the first issue, Ponticelli contends that “the ruling of the Supreme Court of Florida—that the prosecution did not violate his due process rights and that, even if it did, he suffered no prejudice—is contrary to or an unreasonable application of clearly established federal law and an unreasonable determination of the facts. 28 U.S.C. 2254(d).” On the second issue, he contends that “the ruling of the Supreme Court of Florida—that trial counsel did not render deficient performance before and during the competency hearing, and that any deficiencies by counsel during the penalty phase did not prejudice Ponticelli—is contrary to or an unreasonable application of clearly established federal law. 28 U.S.C. 2254(d).”

Following a lengthy analysis, the 11th Circuit affirmed the denial of Ponticelli’s petition for writ of habeas corpus finding that “[t]he Supreme Court of Florida on the first issue, reasonably determined the underlying facts and, on both issues, neither contravened nor unreasonably applied clearly established federal law.”

Assistant Attorney General Kenneth Nunnelley represented the state.
[Ponticelli v. Sec’y DOC, 08/16/12]

Opinion: 11Cir201111966Ponticelli.pdf 11Cir201111966Ponticelli.pdf
First District Court of Appeal

Stand Your Ground – “A party claiming immunity whose motion to dismiss was denied ‘is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.’” Peterson v. State, 983 So. 2d 27, 29-30 (Fla. 1st DCA 2008).

Mederos v. State, 1D11-3383. Opinion filed August 10, 2012.

Mederos petitioned for a writ of prohibition “following the denial of his motion to dismiss an information charging him with aggravated battery with a deadly weapon (a knife).” Mederos argued “he is immune from prosecution under Florida’s so-called ‘Stand Your Ground Law.’ See 776.012, 776.031-.032, Fla. Stat. (2009).”

The record reveals that a pre-game altercation occurred between Derek Smith (the victim) and Javier Ribas, who happened to be a special agent with Bureau of Alcohol, Tobacco, and Firearms (ATF). Mederos, a senior special agent with Homeland Security, was with Ribas and when the verbal altercation escalated to a physical altercation, Mederos intervened “having drawn his service-issue knife,” and stabbed Smith in the palm of the hand. The campus police arrived, Mederos was arrested and charged, and all involved admitted to consuming alcoholic beverages prior to the altercation. At the evidentiary hearing several witnesses testified regarding the altercation. Following the evidentiary hearing, the trial court “entered a detailed order denying the motion to dismiss.” “While petitioner maintained that he was acting in self-defense as well as in defense of Ribas and that he was protecting himself against a forcible felony, the trial court found that petitioner had not proved by a preponderance of the evidence that his conduct warranted immunity as a matter of law.” The trial court’s order noted that the various witnesses testimony “describing what occurred on the day in question contradicts wildly.” “Once the forcible felony was terminated, for immunity to attach, Defendant's use of deadly force must have been based on a reasonable fear of death or great bodily harm to himself or Mr. Ribas. The Court finds that Defendant has not proved by a preponderance of the evidence that his fear of great bodily harm was reasonable.”

The 1st DCA denied the petition for writ of prohibition.
      As the trial court observed in the order denying the motion to dismiss, the testimony below “contradicts wildly.” While there was testimony supporting petitioner’s argument that he was acting in defense of Ribas and himself and that he was defending against a forcible felony, there was also competent, substantial evidence that he was not acting in self-defense or in defense of a forcible felony at the time of the stabbing.
The 1st DCA found that the record contained “competent substantial evidence to support the trial court’s findings that the facts here do not support the application of immunity under the Stand Your Ground Law.” However, “Mederos may raise as an affirmative defense at trial the claim that he cannot be convicted given the Stand Your Ground Law.”

Assistant Attorney General Jay Kubica represented the state.
[Mederos v. State, 08/10/12]

Opinion: 1D11-3383Mederos.pdf 1D11-3383Mederos.pdf

Remanded for resentencing; 60 year sentence for juvenile found to be de facto life sentence that is unconstitutional under Graham.

Adams v. State, 1D11-3225. Opinion filed August 8, 2012.

Adams, a juvenile at the time of the incident (16 years and 10 months old), appealed his conviction (attempted first-degree murder, armed burglary, and armed robbery) and sentence “to a total of 60 years in prison with an aggregate minimum mandatory term of 50 years.” Of the four issues he raised, the 1st DCA determined only one “merits discussion: whether his sentence is a ‘de facto life sentence’ that is unconstitutional based on Graham v. Florida, 130 S. Ct. 2011 (2011).”

While the defense attorney did not argue at the sentencing hearing that a “lengthy term-of-years sentence would be unconstitutional under Graham,” he did argue that Adams should be sentenced to “no more than 30 years so that he would ‘have some light at the end of the tunnel’ and . . . a chance to get his life back.” Defense counsel “explicitly raised the issue in a rule 3.800(b)(2) motion, which the trial court denied on the basis that Graham was not applicable because Appellant was not sentenced to life without parole or to such a lengthy sentence that it amounted to a de facto life sentence.”

The 1st DCA stated: “If we were writing on a clean slate, we would affirm Appellant’s sentence based on the reasoning in Henry v. State, 82 So. 3d 1084 (Fla. 5th DCA 2012). In that case, our sister court affirmed a juvenile’s aggregate 90-year prison sentence: . . .” But, the 1st DCA noted, “we are not writing on a clean slate.” “This court, in a series of recent decisions, has considered whether and how Graham applies to lengthy term-of-years sentences imposed on juveniles for non-homicide crimes.”
      The rule of law established by these cases is twofold: first, Graham applies not only to life without parole sentences, but also to lengthy term-of-years sentences that amount to de facto life sentences; and second, a de facto life sentence is one that exceeds the defendant’s life expectancy. Several of these cases are now pending at the Florida Supreme Court so that court will likely soon address whether the rule of law adopted by this court is correct. Until then, we are required to follow this rule of law.

The 1st DCA concluded that “[a]ppellant’s sentence will require him to serve at least 58.5 years in prison, which means he will not be released until he is nearly 76 years old.” “This exceeds his life expectancy. . . ” The 1st DCA held “Appellant’s sentence is a de facto life sentence that is unconstitutional under Graham.”
      Because this holding is based on a rule of law that directly conflicts with the rule of law adopted by the Fifth District in Henry, we certify conflict with that decision. Also, because the issue framed by this case is one of great public importance, we certify the following questions to the Florida Supreme Court:


AFFIRMED in part; REVERSED in part; REMANDED for resentencing.
Assistant Attorney General Therese Savona represented the state.
[Adams v. State, 08/08/12]

Opinion: 1D11-3225Adams.pdf 1D11-3225Adams.pdf
Second District Court of Appeal

“. . . the common law writ of certiorari is within the jurisdiction of the district courts of appeal and issuable in the appellate court’s discretion under certain circumstances when there is no right of appeal.” cautionary special concurrence by Chief Justice Boyd in Jones v. State 477 So. 2d 566, 568 (Fla. 1985).

State v. LaFave, 2D11-5209. Opinion filed August 15, 2012.

The State sought “certiorari review of the circuit court's order granting Debra LaFave's motion for early termination of probation which was entered in direct violation of the negotiated plea agreement she entered into with the State for a downward departure, nonprison sentence.” The State, in this instance, “has no statutory right of appeal.”

LaFave was the school teacher “charged in Hillsborough County with two counts of lewd or lascivious battery, see 800.04(4)(a), Fla. Stat. (2003), for committing sexual battery on a fourteen-year-old middle school boy. She was also charged in Marion County for committing additional incidents of sexual battery against the same child in that county. Both charges were second-degree felonies (punishable by up to fifteen years in prison), however, “under the Criminal Punishment Code, her lowest permissible sentence was 15.1875 years in prison.” See 921.0024(2), .00265(1), Fla. Stat. (2003). LaFave entered into a negotiated plea agreement where she pled “guilty in 2005 to the Hillsborough County charges in exchange for a nonprison sentence of supervision, which was a downward department from the prison requirements of the Criminal Punishment Code.” Her plea was accepted and she was sentenced to “three years of community control to be followed by seven years of sex offender probation.” “As an express condition of her plea agreement, LaFave agreed to serve her entire sentence and to not seek early termination of probation.” The “agreement was ratified and confirmed by the circuit court by virtue of its acceptance of her negotiated plea.” The Marion Country charges were dropped. LaFave sought early termination of her probation in 2011, “in direct violation of her plea agreement,” and asked “the circuit court to terminate her sex offender probation four years early.” The circuit court granted her motion and that order was filed on October 5, 2011. The State filed its writ for certiorari review on October 21, 2011.

The 2nd DCA noted that the “State has no right of appeal in this case.” That “[n]either the statute nor the rule specifically provides the State with a right to appeal a circuit court order granting early termination of probation.” While reviewing the Jones decision, the 2nd DCA noted Chief Justice Boyd’s “special concurring opinion” where he noted that while "certiorari review may not be made into a substitute [for appellate review], . . . the common law writ of certiorari is within the jurisdiction of the district courts of appeal and issuable in the appellate court's discretion under certain circumstances when there is no right of appeal." Id. at 568. “. . . certiorari review is very limited, is not available to review mere legal error, and should only be exercised where there has been a departure from the essential requirements of the law resulting in a gross miscarriage of justice.” Id. at 569. The 2nd DCA held that “in this rare instance, the State may seek certiorari review of the circuit court order terminating LaFave’s probation” and certified the following question of great public importance:


The 2nd DCA also found “the circuit court was required to honor the negotiated plea agreement which it had previously accepted,” “the State was not prohibited from using the ‘no early termination’ provision in the negotiated plea agreement,” “LaFave is bound by the ‘no early termination’ provision of her negotiated plea agreement,” and that “the ‘no early termination’ provision does not violate the doctrine of separation of powers.”

The 2nd DCA granted the State’s petition for writ of certiorari, quashed the order of the circuit court, and remanded “with instructions that LaFave's probation be reinstated pursuant to the terms and conditions of her negotiated plea agreement and original sentence in this case.”

Bureau Chief Robert Krauss and Assistant Attorney General Cerese Crawford represented the state.
[State v. LaFave, 08/15/12]

Opinion: 2D11-5209LaFave.pdf 2D11-5209LaFave.pdf
Third District Court of Appeal

Judgment of dismissal reversed on charge of resisting officer without violence; elements for resisting an officer without violence not met.

J.W., a juvenile, v. State, 3D10-2880. Opinion filed August 1, 2012.

J.W. appealed an order “withholding adjudication of delinquency and placing him on probation for the delinquent offenses of possession with intent to distribute cocaine and resisting an officer without violence.” J.W. contended the trial court erred in “1) denying his motion to suppress the evidence discovered in a search where the State did not prove abandonment by clear, unequivocal and decisive evidence, and 2) denying his motions for judgment of dismissal on the charge of resisting an officer without violence, contending that the officer and J.W. were engaged in a consensual encounter and J.W. had the right to ignore the police officer’s order and to leave the scene.”

At the suppression hearing Officer Wing testified he was doing a “drive-by” at a location “where three young males were allegedly involved in narcotics sales.” Officer Wing witnessed J.W. walk into the front yard of a house and hand a black pouch to another individual who was later identified as Mr. Locke. Locke “placed the pouch underneath the platform-raised house.” Officer Wing exited his police vehicle and asked J.W. and Lock to “sit down on the porch.” The two complied, however, J.W. soon got up and “walked to the front door, opened it and attempted to go into the house.” While J.W. tried to get into the house, an occupant of the house was trying to deny him access and the officer finally “grabbed J.W. by the shirt,” “pulled him out of the house and handed him off to a second officer on the scene.” Officer Wing seized the pouch, searched it, and discovered the cocaine. Defense counsel argued “the warrantless search of the black pouch violated the Fourth Amendment, contending the pouch was deliberately placed under the house and J.W. had a reasonable expectation of privacy in its contents.” The State contended there was no such violation “because it was abandoned and the abandonment was not the product of police illegality.” The court denied the suppression motion “without providing a basis for its ruling.”

The 3rd DCA discussed the distinction between abandonment under property law concepts and abandonment for Fourth Amendment purposes (constitutional). The 3rd DCA noted that “the question is not whether J.W. abandoned the pouch and its contents, but whether by his actions and words, he abandoned his reasonable expectation of privacy in the pouch and its contents.” The 3rd DCA determined that J.W. “voluntarily gave the pouch to Mr. Locke.” Once he did that, J.W. “relinquished possession, custody and control over the object and its contents.” There was no evidence at the hearing to “establish J.W.’s standing to contest the search and seizure.” It was not established that J.W. “was the actual owner of the pouch and its contents.” The 3rd DCA determined that “J.W. failed to establish at the hearing that he had (or maintained) a reasonable expectation of privacy in the pouch once he voluntarily relinquished the pouch to Mr. Locke.” Trial court properly denied the suppression motion.

With regards to the motions for judgment of dismissal on the charge of resisting an officer without violence, the 3rd DCA noted that Officer Wing testified at the adjudicatory hearing that “when he approached J.W. it was a consensual encounter because he did not have reasonable suspicion to conduct an investigatory stop.” The 3rd DCA determined that “[b]ecause Wing did not have a well-founded suspicion of criminal activity, the State cannot establish the elements for resisting an officer without violence.” The 3rd DCA reversed the order denying J.W.’s motion for judgment of dismissal on the resisting an officer without violence charge and remanded for entry of a judgment of dismissal on that count.
      The State has cross-appealed this issue, contending that the trial court erred in excluding Wing’s testimony regarding his conversations with informants and that such excluded testimony would have established the necessary reasonable suspicion to justify the stop of J.W., and thus satisfied the “lawful execution of a legal duty” element of the resisting charge. While the State might well be correct in this argument, we need not reach this issue, because the State failed to properly preserve this issue at the trial court level, and thus cannot raise the issue on appeal. Harrell v. State, 894 So. 2d 935 (Fla. 2005).

Assistant Attorney General Lunar Alvey represented the state.
[J.W., v. State, 08/01/12]

Opinion: 3D10-2880JWchild.pdf 3D10-2880JWchild.pdf
Fourth District Court of Appeal

Sentencing enhancement vacated; State failed to prove defendant actually possessed a firearm during the robbery.

Cesar v. State, 4D11-928. Opinion filed August 15, 2012.

Cesar appealed his conviction and sentence for robbery with a firearm, arguing “(1) he was prejudiced by admission of a bloody jacket at trial; (2) the State failed to provide a genuine race-neutral reason for striking a juror; and (3) the State failed to prove that he possessed a firearm during the robbery.” Cesar received the 10-year mandatory minimum, “pursuant to section 775.087(2), Florida Statutes, (the ’10-20-life statute’) for his possession of a firearm during the robbery.”

Cesar and another man robbed a Subway store and the testimony from the employee was that “both men had guns,” however, the testimony was that it appeared that Cesar was using a toy gun. No other evidence was presented to contradict this testimony.

The 4th DCA found there were no errors in issues (1) and (2) and affirmed Cesar’s conviction. Regarding issue (3), the 4th DCA found that the evidence presented that Cesar’s accomplice had a gun was “sufficient to support the defendant’s robbery conviction under a principal theory.” See Demps v. State, 649 So. 2d 938, 939 (Fla. 5th DCA 1995). However, “it is not a sufficient basis to warrant the imposition of the [10-20-life] mandatory minimum sentence.” Freeny v. State, 621 So. 2d 505, 506 (Fla. 5th DCA 1993). The State must prove Cesar had actual possession of the firearm. The 4th DCA affirmed Cesar’s conviction but vacated the sentencing enhancement.
      A toy gun does not fit within the definition of firearm under the 10-20-life statute. See, e.g., Coley v. State, 801 So. 2d 205, 206–07 (Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under the 10-20-life statute).

Assistant Attorney General Joseph Tringali represented the state.
[Cesar v. State, 08/15/12]

Opinion: 4D11-928Cesar.op.pdf 4D11-928Cesar.op.pdf

Dog sniff case; reversed and remanded for new evidentiary hearing based on Harris.

Frost v. State, 4D09-3561. Opinion filed August 1, 2012.

Based on Harris v. State, 71 So. 3d 756 (Fla. 2011), cert. granted, 132 S. Ct. 1796 (2012), the 4th DCA reversed and remanded for a new evidentiary hearing on the motion to suppress, “where the State may offer additional evidence in compliance with the standards adopted by the Supreme Court in Harris.”
      If the court decides that the State has not demonstrated that there was a “reasonable basis for believing the dog to be reliable based on the totality of the circumstances” under the Harris guidelines, it should grant the motion to suppress. Id. at 758.

Assistant Attorney General Melanie Dale Surber represented the state.
[Frost v. State, 08/01/12]

Opinion: 4D09-3561Frost.Remand.pdf 4D09-3561Frost.Remand.pdf
Fifth District Court of Appeal

Case reversed and remanded for new trial; cumulative effect of the prosecutor's errors denied defendant a fair and impartial trial.

Broomfield, Jr., v. State, 5D10-3060. Opinion filed August 17, 2012.

Broomfield, found guilty by a jury of trafficking in cannabis and cultivation of cannabis, challenged his judgment and sentence arguing “the State’s improper questioning of investigating deputies and improper arguments during closing argument constitute fundamental error.”

The 5th DCA agreed with Broomfield and reversed and remanded for a new trial.
      While the prosecutor's questions and comments, standing alone, may not rise to the level of fundamental error, the cumulative effect of the prosecutor's errors denied Broomfield a fair and impartial trial. See Slagle v. State, 58 So. 3d 427 (Fla. 1st DCA 2011) (cumulative effect of the prosecutor's errors denied Slagle a fair trial); Freeman v. State, 717 So. 2d 105 (Fla. 5th DCA 1998) (finding that the cumulative effect of prosecutor's errors, which included improper bolstering of police witnesses, impermissible burden shifting, and improper references to facts not in evidence, required a new trial).

      We decline to address the other issues raised by Broomfield.

Assistant Attorney General Pamela Koller represented the state.
[Broomfield, Jr., v. State, 08/17/12]

Opinion: 5D10-3060Broomfield.op.pdf 5D10-3060Broomfield.op.pdf

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