Criminal law -- Sentencing -- Habitual offender -- Resentencing -- Where defendant objects at sentencing to the sufficiency of the state's evidence supporting habitual offender sentence, and on appeal the district court reverses habitual offender sentence on that basis, on remand for resentencing the state may present new evidence that
the defendant is a habitual offender -- Resentencing is a de novo proceeding -- Allowing introduction of additional evidence at resentencing does not implicate double jeopardy concerns and does not violate due process
33 Fla. L. Weekly S373b

Criminal law -- Trafficking in marijuana greater than 25 but less than 2,000 pounds -- Search and seizure -- Package detention -- Trial court did not err in denying motion to suppress packages detained at a United Parcel Service facility to conduct a dog sniff -- Temporary detention of packages at UPS facility was not so unreasonable as to “interfere, in any meaningful way” with defendant's packages, and, therefore, temporary detention was not a seizure within meaning of Fourth Amendment -- Because there was no seizure of packages, state did not need to establish reasonable suspicion -- Since dog sniff of packages was also not a search, defendant's Fourth Amendment rights were not implicated     33 Fla. L. Weekly D1446a

Criminal law -- Speedy trial -- Waiver -- Defendant waived his right to speedy trial when he agreed to a joint continuance -- Error to dismiss charges for speedy trial violation     33 Fla. L. Weekly D1441b

Criminal law -- Search and seizure -- Consensual encounter -- Error to deny motion to suppress marijuana found on defendant where encounter was not consensual and there was no reasonable suspicion or probable cause to justify stop -- Defendant expressed clear desire not to engage in a consensual encounter when he walked away from officer who was hailing him -- Where defendant ignored one officer and walked away and another officer obstructed defendant's movement while the first officer continued to call him over, encounter was not consensual, as reasonable person would not feel free to leave     33 Fla. L. Weekly D1445a

Criminal law -- Competency of defendant -- Mental retardation -- No error in failing to appoint experts for a third time to evaluate defendant prior to dismissal of charges, as no further hearing is required under Rule 3.213(a)(2) prior to dismissal of charges when defendant's incompetency is due to mental retardation -- Because neither the statute nor rule require an additional hearing prior to dismissal of charges based on mental incompetency due to mental retardation, presumption of continued incompetency continues -- Absent offer of proof by state that defendant's mental status had changed, trial court did not abuse discretion in dismissing charges after expiration of more than two years     33 Fla. L. Weekly D1443c

Criminal law -- Driving under influence causing serious bodily injury -- Evidence -- Horizontal gaze nystagmus test results -- Error to allow arresting officer to give lay opinion testimony about significance of HGN test results -- Opinion testimony relating to HGN test results requires a qualified expert witness -- Error is not harmless where state not only elicited lay HGN testimony at trial, but also made this erroneously admitted evidence a feature of its
opening statement and closing argument -- Moreover, state did not prove defendant's blood alcohol level or offer any other scientific evidence that defendant was under influence of alcohol at time of accident to extent that his normal faculties were impaired     33 Fla. L. Weekly D1430a

Criminal law -- Search and seizure -- Consent -- Investigatory stop -- Officers did not have reasonable suspicion to justify detention of defendant for trespass investigation where defendant was sitting in his vehicle in area known for drug activity -- Where officer “lit up” defendant's vehicle, approached defendant in confined space between two vehicles while in uniform, and was joined by two other officers, defendant was seized when he was detained -- Seizure was not lawful where officers did not have reasonable suspicion the defendant had committed, was committing, or was about to commit a crime -- Fact that defendant was sitting in his vehicle in a high crime area, standing alone, was insufficient to establish reasonable suspicion -- Because defendant was illegally seized, defendant's consent to search was fruit of illegal police conduct, and was rendered involuntary   33 Fla. L. Weekly D1434a

Criminal law -- Statements of defendant -- Error to deny motion to suppress custodial statements where defendant said, at least three times during custodial questioning, “I have nothing to say,” but officers continued to question him until he confessed -- Defendant's statement was sufficient to invoke right to remain silent    33 Fla. L. Weekly D1429c                 Courtesy of Florida Law Weekly       Subscriptions (800) 351-0917