State of Florida
Office of Attorney General Pam Bondi
Criminal Law Alert

Date issued: 11/12/2013
Editor: Carolyn Snurkowski

Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.

United States Supreme Court

Stanton v. Sims, 12-1217. Decided November 4, 2013. Summary by Dan Schweitzer @ NAAG.

Through a unanimous per curiam opinion, the Court summarily reversed a Ninth Circuit decision that had denied qualified immunity to a police officer who injured respondent in her yard while in hot pursuit of a misdemeanor suspect. The Court had previously approved an officer’s entry into a home while in hot pursuit of a felony suspect. It held here that it has not yet addressed whether an officer may enter a home (or the curtilage of a home) while in hot pursuit of a misdemeanor suspect ─ and the circuits are divided on the issue. Therefore, held the Court, the officer’s action here did not violate clearly established law, thus entitling him to qualified immunity from respondent’s 1983 action.

Burt v. Titlow, 12-414. Decided November 5, 2013. Summary by Dan Schweitzer @ NAAG.

The Court unanimously reversed a Sixth Circuit decision that had granted habeas relief based on defense counsel’s purported ineffectiveness in advising rejection of a plea offer. The Court held that the Sixth Circuit erred by “refus[ing] to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent.” The Court found particularly “troubling” the “Sixth Circuit’s conclusion that [defense counsel] was ineffective because the ‘record in this case contains no evidence that’ he gave constitutionally adequate advice on whether to withdraw the guilty plea.” Stated the Court, “It should go without saying that the absence of evidence cannot overcome the strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance” (internal quotation marks omitted).

Certiorari Denied:

Unger v. Young, 13-95. Certiorari Denied November 12, 2013, with Justice Samuel A. Alito, Jr., dissenting in an opinion joined by Justice Antonin Scalia.

Issue: (1) Whether the state forfeits an argument that Stone v. Powell bars habeas relief if the state fails to raise Stone in the district court, or whether Stone announced a categorical rule that Fourth Amendment claims are not cognizable on habeas review absent a showing that the state prisoner was denied a full and fair opportunity to litigate the issue in state court; (2) whether the decision of the United States Court of Appeals for the Second Circuit, in relying on studies that were not part of the state court record, conflicts with this Court's decision in Cullen v. Pinholster, which held that habeas review is limited to the record that was before the state court; and (3) whether the decision of the Second Circuit affords the state court the deference required by 28 U.S.C 2254(d), as interpreted by this Court in Harrington v. Richter.

Dissenting opinion: USSC 13-95_22q3.pdf USSC 13-95_22q3.pdf

“Petitions We’re Watching.” Summaries @ SCOTUS.

The following three cases (Relists) have been moved for consideration at the Justices’ private conference on November 15, 2013.

Ryan v. Hurles – Capital Case (AZ)
Issue: Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

Rapelje v. McClellan
Issue: (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

Plumhoff v. Rickard
Issue: (1) Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.
Florida Supreme Court

30 year-old case sent back for new trial because of newly discovered evidence.

Swafford v. State, SC10-1772. Opinion filed November 7, 2013.

Swafford, convicted for first-degree murder and sexual battery, received a life sentence for the sexual battery and a death sentence “based on a theory of the case that the victim had been kidnapped, sexually battered, and then murdered.” Swafford is appealing the circuit court’s denial of postconviction relief where he sought “to have his convictions for first-degree murder and sexual battery vacated after newly discovered evidence revealed that there was no seminal fluid found in the victim.” Swafford alleged and subsequently proved:
      that at the time of trial in 1985, the Florida Department of Law Enforcement (FDLE) tested vaginal and anal swabs of the victim and got a positive result for acid phosphatase, a substance characteristically found in seminal fluid. Semen could not be conclusively identified because no spermatozoa were found. The State argued that this circumstantial evidence corroborated that Mr. Swafford had sexually assaulted and murdered the victim. . . . However, in 2005, FDLE’s testing indicates the opposite—that no acid phosphatase was found and no semen was identified.

The “linchpin of the State’s case” was that the acid phosphatase (AP) evidence proved a sexual battery occurred, “especially because the victim was found fully clothed and the medical examiner relied on the now-discredited FDLE testing that AP was present in order to conclude that the victim was sexually battered.”

The Court finds that this newly discovered evidence “significantly impacts the first degree murder conviction” because without the evidence that a sexual battery occurred “all that remains linking Swafford to the murder are two pieces of evidence: (1) that Swafford was seen with a gun at the location where the murder weapon was later discovered; and (2) that Swafford may have been driving by the location in Daytona Beach where the victim was abducted on the day of the Daytona 500 race, at a time when thousands of visitors had traveled to Daytona Beach for the event.” In addition, the Court also noted that the jury never knew “there was another viable suspect” who not only matched the description of the murderer but was also in the vicinity of the crime scene at the same time, had a vehicle matching the description of the vehicle at the abduction site, and who also possessed they same type of gun as the murder weapon.

The Court, considering the cumulative effect of all the evidence developed at Swafford’s postconviction proceedings, concluded “that the totality of the evidence is of ‘such nature that it would probably produce an acquittal on retrial’ because the newly discovered evidence ‘weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones v. State (Jones II), 709 So. 2d 512, 523, 526 (Fla. 1998) (quoting Jones v. State (Jones I), 678 So. 2d 309, 315 (Fla. 1996)).

The Court reversed “the circuit court’s denial of postconviction relief as to Swafford’s convictions for sexual battery and first-degree murder,” vacated the convictions and sentences, and remanded for a new trial “because the newly discovered evidence weakens the case against Swafford to such an extent that it gives rise to a reasonable doubt as to his culpability.”

NOTE: J. Canady dissented with a 20-page opinion in which C.J. Polston concurs.
      I would affirm the postconviction court’s order denying relief. The newly discovered evidence regarding the acid phosphatase testing does nothing to weaken the case against Swafford. There is no basis for vacating his convictions and sentences and ordering a new trial more than thirty years after the crimes occurred. Therefore, I dissent.

Former Assistant Attorney General Barbara Davis represented the state.
[Swafford v. State, 11/07/13]

Opinion: sc10-1772.pdf sc10-1772.pdf

Revised definition; defining addiction as a brain disorder, is not newly discovered evidence.

Henry v. State, SC12-2467. Opinion filed October 31, 2013.

Henry was convicted of the November 1987 first-degree murders of Phyliss Harris and Janet Thermindor and received two death sentences for the murders. Henry appealed the denial of his successive postconviction relief claim arguing “that the circuit court erred in summarily denying his successive postconviction claim that the American Society of Addiction Medicine (ASAM) 2011 Public Policy Statement defining addiction as a brain disorder is newly discovered evidence which, if presented to a jury, would probably result in a life sentence.”

The Court discussed how a defendant must establish two things when asserting a claim of newly discovered evidence: “First, the defendant must establish that the evidence was not known by the trial court, the party, or counsel at the time of trial and that the defendant or defense counsel could not have known of it by the use of diligence.” “Second, the newly discovered evidence must be of such nature that it would ‘probably produce an acquittal on retrial.’ See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (quoting Jones v. State, 591 So. 2d 911, 915 (Fla. 1991)).” The Court further noted that
      Newly discovered evidence satisfies the second prong of this test if it ‘weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.’” Heath v. State, 3 So. 3d 1017, 1023-24 (Fla. 2009) (quoting Jones, 709 So.2d at 526). Where, as here, the newly discovered evidence claim pertains to the penalty phase of trial, the evidence must be of such a nature that it would “probably yield a less severe sentence” on retrial. Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007) (citing Jones, 591 So. 2d at 915).

The ASAM Public Policy Statement’s revised definition of addiction is a “result of a compilation of two decades of advancements in neurosciences.” The revised definition is based on “a compilation or analysis of previously existing data and scientific information.”

The Court, based on its precedent in Schwab, Rutherford, and Johnston, concluded that “the circuit court was correct in holding that the ASAM policy statement setting forth a revised definition of addiction, relating it to a brain disorder rather than a behavioral disorder, is not newly discovered evidence.” Schwab v. State, 969 So. 2d 318 (Fla. 2007), Rutherford v. State, 940 So. 2d 1112, (Fla. 2006), and Johnston v. State, 27 So. 3d 11 (Fla. 2010). The Court agreed with the circuit court’s finding that “even if the ASAM policy statement was considered to be newly discovered evidence, it would not meet the second prong of the newly discovered evidence test—that it would probably result in a life sentence.”

Assistant Attorney General Celia Terenzio represented the state.
[Henry v. State, 10/31/13]

Opinion: sc12-2467.pdf sc12-2467.pdf
Second District Court of Appeal

Trial court erred granting suppression motion; police had valid basis for stopping defendant.

State v. Garcia, 2D12-3359. Opinion filed November 8, 2013.

The State sought review of an order dismissing an affidavit of violation of probation entered after the trial court granted Garcia’s motion to suppress arguing the trial court “erred in granting the motion to suppress because Garcia's act of engaging in headlong flight in a high-crime area gave the police a valid basis for stopping him.”

The record reveals a probable cause pick-up order was issued for a man name Levens at an address located in a high-crime area. Before the Sheriff’s van arrived with the pick-up order, surveillance was being conducted by a deputy at that address. The deputy observed “Levens and Garcia approach a vehicle and exchange indiscernible objects in a hand-to-hand transaction.” When the Sheriff’s van arrived, Levens and Garcia were standing in the driveway talking with each other. The police exited the Sheriff’s van wearing “Sheriff” vests and yelled “Sheriff’s Office.” Levens surrendered immediately; Garcia “turned tail and ran.” The officers gave chase, commanding Garcia to stop, but Garcia would not stop and kept “running just as fast as he could.” An officer observed Garcia discard an object and when the officer tackled him, another object fell from Garcia’s pocket. Police “thereafter located several baggies containing cocaine in the immediate area.” The trial court granted Garcia’s motion to suppress concluding “the police did not have a valid basis for stopping Garcia.”

The 2nd DCA reversed and remanded after finding “the police were justified in stopping Garcia because his unprovoked, headlong flight in a high-crime area provided a reasonable suspicion of criminal activity.” See C.E.L. v. State, 24 So. 3d 1181, 1185 (Fla. 2009) (citing Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000)).
      In fact, the police had probable cause to arrest Garcia for resisting or obstructing an officer without violence based on his failure to cease his headlong flight in response to the officers' directions for him to do so. See C.E.L., 24 So. 3d at 1189 (holding that a defendant's "continued flight in knowing defiance of the officer's lawful order to stop constituted the offense of obstructing without violence").

Assistant Attorney General Elba Martin-Schomaker represented the state.
[State v. Garcia, 11/08/13]

Opinion: 2D12-3359.pdf 2D12-3359.pdf

Trial court abused its discretion denying motion for mistrial; evidence of guilt was “far from conclusive,” thus, error in permitting comments on postarrest silence was not harmless.

Parker v. State, 2D12-3813. Opinion filed November 6, 2013.

Parker appealed his judgment and sentence after a jury found him guilty of robbery with a firearm. Parker argued “the trial court abused its discretion by denying Mr. Parker's motions for a mistrial following inappropriate comments made by the State on Mr. Parker's postarrest silence.”

The facts revealed that Mr. Galvan reported to police that he was robbed at gunpoint by two men. Galvan provided descriptions of the men, along with a description of the vehicle they fled in. Later that night police located Parker and Brandon Smith based on the descriptions provided. Terrance Keesee was also identified as a possible suspect. A “show-up identification” was conducted where Galvan was brought to a location and the police showed up with each of the individuals. Galvan “was confident of his identification of Mr. Keesee . . . the one who had carried the gun—but was not positive about his identification of Mr. Parker.” At trial, Deputy Rials, the deputy who conducted Galvan’s show-up identification, “reinforced that Mr. Galvan was uncertain regarding his identification of Mr. Parker.” Detective Spradley testified “that Parker provided some information to law enforcement about his activities on the night in question” after being arrested. Example: Parker admitted he and Smith picked up Keesee on the evening in question, but “he didn’t give an answer as to where they went or what they did.”

The State, during closing argued:
      And what Detective Spradley says is, okay great, so you and Smith are in the car the whole time and you pick up Keesee, now you have three of you here with the vehicle, a robbery occurred in the meantime, right after you picked up Keesee what did you do, and he can't answer the detective. Okay. After you picked up Keesee where did you go, and he won't answer.
      . . .
      [H]e tells the officer it was me, Smith[,] and Keesee in the car, but when asked what they did or where they went he couldn't answer the detective that question.

(Emphasis added). Defense moved for mistrial after each of these comments, “but the trial court denied both motions.”

The 2nd DCA found that both comments, emphasized above, “constitutes either a direct comment or a comment fairly susceptible of being construed as a comment on Mr. Parker’s postarrest silence.” Following a harmless error test, the 2nd DCA concluded “we cannot say there is no reasonable possibility the State’s comments on Mr. Parker’s postarrest silence contributed to his conviction because the evidence against Mr. Parker is far from conclusive.” The 2nd DCA reversed and remanded.

Assistant Attorney General Susan Shanahan represented the state.
[Parker v. State, 11/06/13]

Opinion: 2D12-3813.pdf 2D12-3813.pdf
Third District Court of Appeal

“‘Sexual Intercourse’ applies to behavior other than contact between the genitals of a man and a woman, including that between two men.”

State v. Debaun, 3D11-3094. Opinion filed October 30, 2013.

The State appealed an order “interpreting the term ‘sexual intercourse’ as used in section 384.24(2) of the Florida Statutes (2011) as meaning only contact between the genitals of a man and a woman and dismissing the charges against the appellee, Gary G. Debaun, for having uninformed HIV1 infected sexual intercourse with another man.”

The record reveals that C.M. entered into a sexual relationship with Debaun. Before entering into that relationship, C.M. asked Debaun to provide him with a laboratory report to confirm what Debaun’s HIV status was. Debaun provided a report stating he was HIV negative, however, Debaun was in fact HIV positive. Debaun was later charged with violating section 384.24(2). Debaun moved to dismiss the charges against him. The lower court, “while reasoning that the meaning of the term “sexual intercourse” as used in this provision was intended to apply to ‘any form of sexual activity,’ nonetheless dismissed the charges against Debaun because of our sister court’s decision in L.A.P. v. State, 62 So. 3d 693 (Fla. 2d DCA 2011).” In L.A.P., the 2nd DCA held that, “for purposes of section 384.24(2), ‘sexual intercourse’ is an act where a male’s penis is placed inside a female’s vagina and therefore section 384.24(2) did not apply to the activities (oral sex and digital penetration between two women) involved there.”

After a lengthy analysis, the 3rd DCA concluded that “[t]he issue here is whether the term ‘sexual intercourse’ used in the context of a statutory scheme enacted to prevent the spread of sexually transmissible diseases—a number of which may be spread by means other than vaginal/penile penetration—encompasses conduct beyond vaginal/penile penetration to include the conduct at issue here.” “We find that it does.”
      because we conclude that the plain and ordinary meaning of the term “sexual intercourse” as used in section 384.24(2) includes more than an act where a male’s penis is placed inside a female’s vagina, and encompasses the oral and anal sexual activity involved here, we reverse the order on review and remand for reinstatement of the charges against Debaun. In doing so we certify conflict with the decision in L.A.P. v. State, 62 So. 3d 693 (Fla. 2d DCA 2011).

Assistant Attorney General Joanne Diez represented the state.
[State v. Debaun, 10/30/13]

Opinion: 3D11-3094.pdf 3D11-3094.pdf
Fifth District Court of Appeal

Trial court erred suppressing statements and evidence seized from defendant after being detained by law enforcement on another’s property.

State v. Champers, 5D13-832. Opinion filed November 1, 2013.

The State appealed an order granting “Champers’ motion to suppress his statements and all physical evidence seized from his person after law enforcement detained him on another’s property.” “The trial court found that law enforcement’s temporary detention of Champers was illegal because it was based upon nothing more than a bare hunch that Champers was committing or about to commit a crime on the property.”

The uncontested facts are that Champers was charged by information with burglary of a dwelling. The information alleged Champers “entered or remained in a dwelling . . . without being licensed or invited to enter, and with the intent to commit an offense therein.” “Champers filed a motion to suppress all evidence against him--his statements, a pair of gloves, a screwdriver, and a knife--on grounds that he was detained without reasonable suspicion that a crime was being committed or was about to be committed.”

At the suppression hearing, Deputy Sturrup testified he was in the area to assist other units with an unrelated call when he observed “an adult male in a gray hooded sweatshirt near the front door of a residence on Hiawassee Road.” It was 1:00 p.m., and this particular “all-residential area” “had been experiencing a high number of daytime crimes, including burglaries and robberies.” Deputy Sturrup observed Champers on the front porch, and then he stepped off the front steps and started walking in the grass in the front of the house toward a gate in the side yard. The deputy stated “at that point ‘[i]t just didn’t seem like [Champers] belonged there,” so he turned his vehicle around and came back to see if he was still there. The deputy then “observed Champers opening and entering the side gate while pulling the hood of his sweatshirt onto his head and looking down, as if attempting to conceal his face from potential onlookers.” Champers headed towards the back of the residence and Deputy Sturrup called for back-up. Champers “re-emerged from the side gate and began walking back in front of the house toward Deputy Sturrup.” The deputy testified he told Champers to stop and asked him if he belonged at the residence. “Champers responded that he was there to see Eugene Wilder, who was hard of hearing and could not hear the doorbell.” The deputy testified that “Champers’ body language seemed suspicious” and that he noticed a pair of gloves hanging out of the sweatshirt pocket. The deputy investigated further and found out “the owner of the residence did not know Champers, the owner had not authorized Champers to enter the property, and no one named Eugene Wilder lived at the house.” Deputy Sturrup then arrested Champers and located the other physical evidence in his search incident to the arrest.

Champers testified at the suppression hearing that it was cold that day and he thought this was the residence of Eugene Wilder and that he went there to inquire about doing some odd jobs. He said he was told Wilder was hard of hearing so that is why he went to the back of the house, “he entered the property to attempt to rouse Wilder when no one answered his knock at the front door.”

The 5th DCA stated that “[a]n investigatory detention occurs when an officer makes “an official show of authority from which a reasonable person would conclude that he or she is not free to end the encounter and depart.’” Majors v. State, 70 So. 3d 655, 659 (Fla. 1st DCA 2011) (quoting Dees v. State, 564 So. 2d 1166, 1167 (FIa. 1st DCA 1990)).
      To justify an investigatory stop, police must possess specific, articulable facts that would warrant an officer of reasonable caution to believe that a person has committed, is committing, or is about to commit a crime. Popple v. State, 626 So. 2d 185, 186 (Fla. 1993). It is not sufficient that an officer have an "inchoate and unparticularized suspicion or 'hunch'" that the defendant had committed, was committing, or was about to commit a crime. Terry v. Ohio, 392 U.S. 1, 27 (1968).

The 5th DCA has written a great deal “about the difference between reasonable suspicion and a bare hunch” and cited to several cases in its analysis. It also cited to Section 810.09(1)(a), Florida Statutes (2012), which defines a criminal trespasser. At issue in this case is “whether Deputy Sturrup had a reasonable suspicion that Champers was trespassing.” The 5th DCA discussed the facts found by the trial court which established that “Champers willfully entered and remained on the property.”

The only other disputed element is “whether Deputy Sturrup had reasonable suspicion that Champers’ entry was not ‘authorized, licensed, or invited.’” Deputy Sturrup, at the time of this incident, had been with the police force for twenty-three years. The 5th DCA concluded that the deputy had a reasonable suspicion to investigate Champers for trespassing. While a homeowner could be observed at the front door of their residence and then seen heading to a side gate and putting on their hood for warmth, “the stronger inference, more consistent with common sense and human behavior, as viewed through the lens of Deputy Sturrup's experience and knowledge of recent daytime burglaries in the area, is that an unauthorized person, having determined no one was coming to the front door, was attempting to conceal himself while entering the enclosed curtilage of the property.”
      If the totality of circumstances is ambiguous, involving conduct that can be interpreted as lawful or as criminal activity, police may detain an individual to resolve the ambiguity. Rhoden v. State, 941 So. 2d 5, 9 (Fla. 2d DCA 2006) (citing Wardlow, 528 U.S. at 125).

The 5th DCA reversed the suppression order and remanded for further proceedings. “Because Champers’ observed conduct was objectively suspicious, Deputy Sturrup did not violate Champers’ Fourth Amendment rights by briefly detaining him to investigate his presence on the property.”

Assistant Attorney General Robin Compton represented the state.
[State v. Champers, 11/01/13]

Opinion: 5D13-832.op.pdf 5D13-832.op.pdf

Double Jeopardy; trial court erred increasing restitution amount and imposing a new obligation not in original restitution order.

Fisher v. State, 5D12-3430. Opinion filed October 25, 2013.

Fisher appealed the restitution order against him “[b]ecause the order improperly awards restitution for items not included in the defendant’s original sentence.”

The record reveals that Fisher “attacked the victim causing injuries to her hands and wrists.” Fisher pled guilty to attempted first-degree murder with a deadly weapon and burglary of a dwelling while armed. Fisher agreed to the terms of the plea agreement whereby he would pay restitution to the victim for treatment and therapy. “Specifically, at the sentencing hearing (held in 1997), the court ordered the defendant to pay ‘on going’ restitution to the victim for ‘medical, physical, psychiatric and psychological care, including non-medical care and treatment given under any recognized method of healing.’”

In 2012, after Fisher was released from prison, another restitution hearing was held to determine the restitution amount owed to the victim. The State “requested the court to grant restitution to the victim in the amount of her student loans; the State did not request restitution for medical care and related services.” The trial court awarded the restitution amount requested by the State after “determining that the victim's severe hand injuries prevented her from doing manual labor and prompted her to seek a college education so she could gain employment.”

On appeal, the 5th DCA found the trial court erred (double jeopardy violation) because the trial court increased the amount of restitution Fisher was required to pay the victim. The trial court violated Fisher’s double jeopardy rights by imposing “an obligation to pay the victim’s student loans when the original restitution order required restitution for expenses related to the victim’s medical costs.

The 5th DCA reversed the restitution order and remanded for a new restitution hearing. “At such hearing, the State can seek the full amount of restitution due for the victim's ‘medical and related services and devices related to physical, psychiatric and psychological care, including non-medical care and treatment rendered in accordance with a recognized method of healing.’”

Assistant Attorney General Rebecca Wall represented the state.
[Fisher v. State, 10/25/13]

Opinion: 5D12-3430.op.pdf 5D12-3430.op.pdf