Criminal law -- Aggravated manslaughter -- DUI manslaughter -- Vehicular homicide -- Child neglect -- Evidence -- Hearsay -- Blood test record admitted into evidence was non-testimonial in nature where blood test was performed only because defendant's emergency room doctor required the test in order to properly diagnose and treat defendant's injuries and was not ordered by law enforcement or performed in furtherance of criminal investigation -- No error in admitting beer can found at scene of accident -- Even if there was error, it was harmless given abundance of other evidence suggesting that defendant was intoxicated on evening of accident
Reported at 33 Fla. L. Weekly D93a

Criminal law -- Attempted sexual battery -- Sexual battery -- Lewd and lascivious molestation -- Evidence -- Trial court did not abuse discretion in finding child victim competent to testify where extensive questioning of victim by court revealed that child was capable of observing and recollecting facts and narrating those facts, and that child possessed moral sense of obligation to tell the truth -- Further, there was significant corroboration of victim's testimony -- Sentencing -- Imposition of separate sentences for sexual battery and lewd and lascivious molestation and for attempted sexual battery and lewd and lascivious molestation did not violate double jeopardy where there were multiple offenses that did not involve a single criminal episode -- Guidelines -- Court did not abuse discretion in assessing 40 victim injury points for attempted sexual battery
Reported at 33 Fla. L. Weekly D98a

Criminal law -- Burglary -- Sentencing -- Restitution -- Written estimate of cost of replacing damaged exterior door was inadmissible hearsay, and value of door could not be based solely on this evidence -- Although written estimates may qualify as business record exception to hearsay rule if proper foundation is laid, either by calling witness who can show that each of the foundational requirements set out in statute is present or by meeting the requirements of certification or declaration, state did not call witness to testify as to authenticity of estimate, and record does not establish that state attempted to meet certification requirements -- Defendant made timely hearsay objection to admissibility of written estimate -- Remainder of restitution was supported by competent, substantial evidence
Reported at 33 Fla. L. Weekly D102a

Criminal law -- First degree murder -- Evidence -- Statements of defendant -- Error to deny motion to suppress taped statement made to officer where defendant invoked right to counsel upon being arrested, state never rebutted defendant's testimony that he decided to speak to officer after being contacted by a correctional officer, and officer to whom statement was made merely testified that he confirmed that it was defendant's decision to speak to him -- Waiver of right to counsel cannot be established by showing that defendant responded to police-initiated contact -- Silence of defendant -- Error to deny motion for mistrial made following testimony by officer that defendant wanted an attorney after he was arrested -- Testimony was fairly susceptible of being interpreted by jury as a comment on defendant's right to remain silent and was not rendered harmless by fact that defendant testified at trial -- Error to deny motion for mistrial made after prosecutor questioned defendant about testimony he gave in a murder trial twenty years earlier where a man was charged with killing someone whose body was never found -- Defendant was being tried for first-degree murder where victim's body was never recovered, his character and credibility were main focus at trial, and question reflected poorly on defendant's character by implying that he was directly involved in a similar crime -- In light of cumulative effect of errors, court cannot say that they were harmless -- Remand for new trial
Reported at 33 Fla. L. Weekly D101a

Criminal law -- Probation -- Revocation -- Failing to undergo drug/alcohol evaluation -- New offense -- Trial court properly considered new offense for driving with suspended or revoked license -- Search and seizure -- Motion to suppress inculpatory evidence deriving from defendant's contact with police was properly denied -- Initial encounter between officers and defendant was nothing more than consensual police-citizen encounter where officers had investigated recent complaints of crime at certain address and were informed by landlord that tenant, a black male, would return to the address around 7:00 p.m.; officers returned to the address around 7:00 p.m. and, having heard a vehicle drive up, observed defendant, a black male, sitting in driver's seat of sports utility vehicle in front driveway with engine running; defendant opened door of vehicle, and officer introduced himself, stated that he was performing investigation, asked for defendant's name, and inquired as to whether defendant lived at that address -- Encounter remained consensual when officer asked for identification to verify defendant's identity after defendant orally stated his name -- Once defendant, the presumed driver of SUV, produced identification card rather than a driver's license, reasonable suspicion arose, justifying temporary detention to ascertain whether defendant had valid driver's license and to run a computer check -- When it was discovered that defendant's license was suspended as habitual traffic offender, officers properly arrested defendant, read his Miranda rights, and seized vehicle
Reported at 33 Fla. L. Weekly D91a   Courtesy of Florida Law Weekly       Subscriptions (800) 351-0917