SENTENCING - CONSECUTIVE SENTENCES - HABITUAL: Dawson v. State, 32 Fla. L. Weekly D590 (Fla. 4th DCA March 9, 2007). A court may not give consecutive sentences when one of the two counts is enhanced pursuant to the habitual statute. Specifically in this case, the defendant was convicted of possession of cocaine within 1000' of a church and simple possession. He got 40 years on the first degree felony and five years on the simple possession. It was error to consec these two sentences.

PROBATION VIOLATION - RESTITUTION: Taylor v. State, 32 Fla. L. Weekly D591 (Fla. 4th DCA March 9, 2007). Taylor was ordered to pay over 20K in restitution. At a hearing the court found that he did not have the ability to pay the minimum monthly payments of $2,690.07, but he did have the ability to pay more than he was paying, which amounted to about 100 dollars per month. Probation properly violated under these facts.

HEARSAY - NON-TESTIFYING WITNESS: Cedillo v. State, 32 Fla. L. Weekly D594 (Fla. 4th DCA March 9, 2007). Defendant is charged with a variety of crimes. The error came when the court allowed a detective to testify that based on a conversation with a non-testifying witness, he developed Cedillo as a suspect. "When the implication from in-court testimony is that a non-testifying witness made an out-of-court statement offered to prove the defendant’s guilt, the testimony is not admissible." This is true even if the actual hearsay statements are not admitted.

CROSS-EXAMINATION - USE OF DRUGS AT TIME OF CRIME: Felton v. State, 32 Fla. L. Weekly D602 (Fla. 4th DCA March 9, 2007). Backman case. The state charged Felton with robbery, false imprisonment, and attempted sexual battery. The alleged victim was on methadone when the crimes allegedly occurred. Backman would not allow cross into her methadone use because there was no expert testimony on how methadone would affect a person’s ability to perceive. The court held that expert testimony is not necessary when the person admits to using a drug at the time the crime allegedly took place. Backman exacerbated the error by allowing the state to mislead the jury during direct examination. On direct, the state elicited testimony that the victim and her boyfriend were two "innocent lovebirds" who came to Florida for a family vacation. The truth was that the victim and her boyfriend were heroin addicts who came to Florida to attend a methadone clinic. Reversed and remanded.

DOUBLE JEOPARDY - AGGRAVATED STALKING: Eichelberger v. State, 32 Fla. L. Weekly D609 (Fla 2d DCA March 9, 2007). State charged the Defendant with three counts of aggravated stalking for three contacts after an injunction had been issued. The information alleged that the Defendant called the victim, wrote the victim, and came within 500' of the victim’s home. This occurred over a three month period. The court found that aggravated stalking is defined as a "course of conduct," these three separate contacts comprise one course of conduct. Therefore, double jeopardy precludes multiple convictions.

SMELL OF RAW MARIJUANA - PROBABLE CAUSE TO SEARCH TRUNK: Kimball v. State, 32 Fla. L. Weekly D618 (Fla. 1st DCA March 9, 2007). In simplest terms, this case holds that if a cop notices the smell of pot coming from a car’s trunk, he has probable cause to search the trunk. (There was almost ½ pound of pot in the trunk.) And no it was not Judge Korda’s car.

CROSS-EXAMINATION - OBTAINING TRANSCRIPTS: Perez v. State, 32 Fla. L. Weekly D623 (Fla. 2d DCA March 9, 2007). Victim is shown a photo line-up; she fails to identify the defendant. Cop shows the victim a second photo line up and she picks Perez. Perez is the only person in both photo line-ups. At a suppression hearing, the victim testified that she asked the cop, "are you sure that is the one?" At trial, she denied making that statement. It was error to not recess and allow counsel time to get a copy of the suppression hearing transcript to impeach the victim.