Criminal Law Alert

Time granted to prepare pretrial motions is not automatically excluded from the 70-day limit under the Speedy Trial Act of 1974.

Bloate v. United States, 08-728. Decided March 8, 2010. Summary by Dan Schweitzer at NAAG.

The federal Speedy Trial Act requires that a criminal defendant be tried within 70 days of indictment or the defendant’s first appearance in court (whichever is later). It excludes from the 70-day period delays resulting “from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.” 18 U.S.C. §3161(h)(1). By a 7-2 vote, the Court held that the time granted to a party to prepare pretrial motions is not automatically excludable under subsection (h)(1), and therefore may be excluded only when a district court grants a continuance based on appropriate findings under subsection (h)(7).

Decision: USSC08-728Bloate.pdf

Violent force required for violent felony. Summary by Anna Christensen @ SCOTUS.

Johnson v. U.S., 08-6925. Decided March 2, 2010.

The Court held that Florida’s felony battery statute, which requires the “actual and intentional touching” of another person, does not have the use of “physical force” as an element and thus does not constitute a “violent felony” for purposes of the federal Armed Career Criminal Act (“ACCA”).

Decision: USSC08-6925Johnson.pdf

Johnston execution stayed; remanded for evidentiary hearing.

Johnston v. State, SC10-356. Order filed March 4, 2010.

The Court, following oral argument on March 4, 2010, placed a stay on Johnston’s March 9, 2010, execution.

we reverse the summary denial of Johnston's newly discovered evidence claim relating to mental retardation and temporarily relinquish jurisdiction to the circuit court for thirty days for an evidentiary hearing to be held on the issue of whether newly discovered evidence indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), section 921.137, Florida Statutes (2009), and Cherry v. State, 959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this appeal until jurisdiction returns to this Court after the relinquishment.

Assistant Attorney General Kenneth Nunnelley represented the state.

NOTE: Judge Perry, Jr., of the Ninth Judicial Circuit/Orange County, Florida, issued an Order on Status Conference, dated March 5, 2010, where doctors have been court appointed to evaluate Mr. Johnson and an evidentiary hearing has been scheduled for March 26, 2010. Order on Status Conference is attached.

FSC Order: 10-356_030410_Stay-Relinq Ord_ada.pdf Order on Status Conference: Johnston Order on Status Conf dated030510.pdf


B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 35, Number 9, March 5, 2010.

Dennis v. State, 17 So. 3d 305 (Fla. 4DCA 2009). Supreme Court Case No. SC09-941 (Dennis v. State). Order dated March 1, 2010. Oral argument set for May 3, 2010. Criminal law – Felony battery – Self Defense – No error in denying motion to dismiss on claim of statutory immunity brought under section 776.032.


Trial court properly granted motion to suppress; defendant was handcuffed, separated from his vehicle, and under the supervision of other officers at the time of the search.

State v. K.S., 2D09-2790. Opinion filed March 5, 2010.

The State appealed the order “granting K.S.’s motion to suppress a firearm seized during a search of K.S.’s vehicle and K.S.’s statements to law enforcement relating to his ownership or use of the firearm.”

At the suppression hearing, the officer testified to the events leading up to his arrest of K.S., for fleeing and eluding. The officer also testified that when he pulled his patrol vehicle up behind K.S.’s vehicle, he “observed K.S. reaching towards the dashboard on the passenger side and order K.S. to show his hands and step out of the car.” K.S. exited his car; he was handcuffed, and arrested for fleeing and eluding. Backup officers arrived and no weapons were found on K.S. The officer took K.S.’s car keys; unlocked and opened the glove box in K.S.’s vehicle; and found a semiautomatic firearm. K.S. testified at the hearing that he had not agreed to or consented to a search of the vehicle. The trial court, relying on Arizona v. Gant, 129 S. Ct. 1710 (2009), granted the suppression motion.

The 2^nd DCA noted that the Gant court held that “the search of Gant’s vehicle was unreasonable where Gant ‘clearly was not within reaching distance of his car,’ because he was handcuffed in a patrol car at the time of the search.” The Gant court also held that “the police could not reasonably have believed they would find evidence relevant to Gant’s crime of driving with a suspended license.” In the instant case, while the State argued that K.S.’s “furtive movements towards the glove compartment justified the search based on officer safety concerns,” the 2^nd DCA rejected that argument. Similar to Gant, K.S. was in handcuffs, separated from his car, and “under the supervision of additional backup officers,” at the time of the search. “Further, the officer could not reasonably have believed he would find evidence of K.S.’s crime of fleeing and eluding.” Thus, the 2^nd DCA affirmed the trial court’s order granting K.S.’s motion to suppress.

Assistant Attorney General Ha Thu Dao represented the state.

Opinion: 2D09-2790KS.pdf

Stop was justified; circumstances before stop gave rise to “a founded or reasonable suspicion” defendant was involved in drug transaction.

State v. Lopez, 3D09-1504. Opinion filed March 3, 2010.

The State appealed an order “in a prosecution for cocaine trafficking and conspiracy which suppressed self-incriminating statements obtained after a Terry stop the lower court found was unsupported by founded suspicion of the defendant’s involvement in criminal activity.”

The record revealed that undercover Detective Valdez arranged to purchase two kilograms of powder cocaine from Marcos Lopez (Marcos). During surveillance of Marcos, defendant Elvis Lopez (Lopez) was seen leaving a residence with Marcos and then followed Marcos, in his own vehicle, to the prearranged drug buy. Lopez parked in a different location from where Marcos and Detective Valdez met. Following the transaction between Marcos and Detective Valdez, a “takedown unit moved in and arrested Marcos.” Lopez immediately tried to leave, however, Detective Oliva used his car to block and detain Lopez. Lopez told the officer he was there “to collect the debt from the proceeds of the sale he knew was going to take place.” Lopez agreed to go to the police station, he waived his Miranda rights, and then “gave the recorded interview primarily at issue on appeal, in which he specifically admitted his involvement in the unlawful transaction.” Lopez filed a motion to suppress challenging “the validity of the initial investigatory stop.” At the evidentiary hearing Detective Valdez testified that, “based on his broad experience, a second vehicle follows a vehicle involved in a drug transaction to insure that there are no law enforcement officials at the transaction site.” Detective Oliva testified that “the defendant’s behavior gave rise to the suspicion that he was in communication with Lopez during the drug sale.” The lower court “suppressed the admissions, ruling that the stop of which the statements were products was unjustified.”

The 3^rd DCA ruled that the trial court’s “conclusion is unacceptable.” “The contrary conclusion, which seems to have been indulged by the trial judge, amounts to a finding not only that the defendant’s actions in accompanying, following, and waiting for Marcos and then attempting to flee when he was apprehended were completely innocent and the connections to the drug deal completely coincidental, but that the police were unreasonable as a matter of law in thinking otherwise.” The 3^rd DCA concluded that “we think it clear that the circumstances apparent before the stop gave rise to a founded or reasonable suspicion, as required by the Constitution, that the defendant was a principal or accomplice in the ongoing drug transaction.” See Terry v. Ohio, 392 U.S. 1 (1968).

As observed in State v. Maya, 529 So. 2d 1282, 1287 n.7 (Fla. 3d DCA 1988), these determinations do not “turn on whether an innocent explanation can possibly be conjured up from what are obviously incriminating circumstances. Rather, [they are] dependent on what a realistic view of the facts justifies or requires.” Not only can we not fault the police for stopping Elvis, but, as Terry itself says, “[i]t would have been poor police work indeed for [the] officer . . . to have failed to investigate[] [his] behavior.” Terry, 392 U.S. at 23. See Terry1; U.S. v. Canela, 144 Fed. Appx. 17 (11th Cir. 2005)2, and Brown v. State, 719 So. 2d 1243 (Fla. 5^th DCA 1998).

The 3^rd DCA reversed and remanded. “Applying these principles, the stop was justified, Terry; § 901.151(2), and the order under review cannot stand.”

Assistant Attorney General Forrest Andrews, Jr., represented the state.

Opinion: 3D09-1504Lopez.pdf

Sentence and conviction affirmed without prejudice to seek postconviction relief; trial court unaware defendant may lack competency.

Blackmon v. State, 4D08-2880. Opinion filed March 3, 2010.

Blackmon appealed his conviction of unlawful sexual activity with a minor claiming “the trial court committed fundamental error in proceeding to trial without finding him competent to proceed.”

The record reveals that on July 27, 2007, in another case, Blackmon was charged with two counts of burglary of a conveyance and “was found incompetent to proceed to trial.” This case was transferred to a second judge “who ordered the Department of Children and Families to provide the defendant with competency restoration and treatment.” In May of 2008, Blackmon went before a third judge for the plea and sentencing hearing in the burglary case. Before the proceedings began, the third judge was never apprised of “the order adjudicating the defendant incompetent.” Neither a hearing was held to restore competency nor was an order written to that effect. Blackmon entered his negotiated plea and was sentenced. He appealed and the 4^th DCA reversed his conviction and sentence holding that “the defendant remained incompetent to enter guilty pleas until the trial court held a hearing and adjudicated him competent to proceed.” See Blackmon v. State, 23 So. 3d 239 (Fla. 4^th DCA 2009).

In the instant case, approximately three weeks after the May 14, 2008, plea hearing in the burglary case, Blackmon began his trial for his new charges of armed sexual battery, kidnapping, and unlawful activity with a minor. “Blackmon went to trial before the same judge, with the same prosecutor and defense attorney.” The record in the instant case does not reflect the defendant moved for a competency hearing nor “that an order adjudicating him incompetent was ever entered.”

The 4^th DCA noted that “the trial court has no independent obligation to hold a competency hearing if there is nothing to alert the court that the defendant may lack competency.” See Cushnie v. State, 993 So. 2d 590 (Fla. 4^th DCA 2008). In the instant case, “where no motion had been filed and no order adjudicating the defendant incompetent had ever been entered, the trial court was presumably unaware that the defendant may have been incompetent to proceed to trial.” The issue was not raised and the record does not reflect “the defendant’s conduct during the course of the proceeding was such as to alert the trial court to any competency concerns.” The 4^th DCA concluded that the trial court “could not properly be charged with knowledge of the contents of the file and competency proceeding in the separate burglary case” and affirmed Blackmon’s conviction and sentence “without prejudice to seek postconviction relief.”

Assistant Attorney General James Carney represented the state.

Opinion: 4D08-2880Blackmon.op.pdf