Criminal law -- Child abuse -- Jury instructions -- Claim that trial court erred in instructing jury on child abuse based on intentional act that could reasonably be expected to result in physical or mental injury to child, although information charged only child abuse based on the intentional infliction of physical or mental injury upon child, was not preserved for appellate review by contemporaneous objection -- Instructing jury on theory of child abuse that was not charged in information was not fundamental error, even though state repeated instruction in closing argument, where state did not prosecute on the alternative theory, evidence did not support alternative theory, and defense theory was that events did not occur -- Sentencing -- Claim that trial court erred at sentencing by closing courtroom to all but family during testimony by minor victims was not preserved for review where defendant made no objection to courtroom being cleared of spectators -- Exclusion of spectators during testimony by minors at sentencing, without objection, did not constitute a “sentencing error” that was preserved by filing of rule 3.800(b)(2) motion
Reported at 33 Fla. L. Weekly D125a

Criminal law -- Felony driving under influence -- Evidence -- Silence of defendant -- Prosecutor's questioning of officer regarding defendant's failure to demand tests and refusal to perform tests after being taken to alcohol testing center was fairly susceptible of being interpreted as comment on defendant's right to remain silent -- Error in admitting evidence was not harmless
Reported at 33 Fla. L. Weekly D134a

Criminal law -- Plea -- Withdrawal -- Counsel's failure to advise defendant that he could be indefinitely committed under Jimmy Ryce Act upon the commission of any future non-sexual offense constituted good cause to permit defendant to withdraw his guilty plea to charge of lewd and lascivious battery -- Error to deny pre-sentencing motion to vacate plea
Reported at 33 Fla. L. Weekly D114a

Criminal law -- Probation -- Revocation -- Error to revoke probation for possession of oxycodone and possession of oxycodone with intent to sell where material evidence adduced to prove criminal violations consisted almost exclusively of inadmissible hearsay -- Because of lack of non-hearsay evidence establishing essential elements of criminal offenses at issue, i.e., knowledge, custody and control of drug, and intent to sell, trial judge abused discretion in revoking probation -- Alternative argument that evidence sufficiently established that defendant violated probation by associating with person engaged in criminal activity fails, because that violation was not alleged or presented
Reported at 33 Fla. L. Weekly D132a

Criminal law -- Search and seizure -- Officer seeking to search shared residence is not required by Fourth Amendment to secure consent from a physically absent, but nearby, tenant after officer has already obtained valid consent from co-tenant who is on the premises -- Facts that defendant was in nearby patrol car and that officer in instant case actually returned to patrol car to speak with defendant prior to beginning search without advising defendant of impending search and securing his consent are not necessary considerations in light of bright-line rule established by Supreme Court precedent
Reported at 33 Fla. L. Weekly D124a

Criminal law -- Search and seizure -- Officer who observed defendant fail to yield to a stop sign while riding a bicycle had reasonable suspicion justifying stop of defendant for traffic infraction -- Fact that officer admitted that she stopped defendant because she had a hunch that a crime had been committed is immaterial, because proper test is whether officer could have stopped defendant for traffic infraction -- When defendant ran from officer after she ordered him to stop, officer had probable cause to arrest him for resisting officer without violence -- Search of defendant was lawful as search incident to arrest for resisting officer -- Error to grant defendant's motion to suppress
Reported at 33 Fla. L. Weekly D133b

Criminal law -- Second degree murder -- Evidence -- Trial court did not abuse discretion by denying defendant's request to admit certified copies of victim's prior criminal record where, by stipulation, jury was told of nature and date of victim's offenses -- Argument -- State's use of rhetorical questions during closing argument regarding defendant's state of mind in case where state was required to prove that defendant's action evinced a depraved mind regardless of human life was not a prohibited comment on defendant's failure to testify -- Argument was not inconsistent with decision not to introduce defendant's voluntary statement made the day after the offense -- Sentencing -- Trial court's preliminary articulation and balancing of alternatives did not render sentence ambiguous
Reported at 33 Fla. L. Weekly D104aCourtesy of Florida Law Weekly       Subscriptions (800) 351-0917