Thursday, September 15, 2016

Criminal Defense - Escape


Claudio J. Poillot was serving a 48-month prison sentence for a felony conviction.  While in state custody and being housed at the Kissimmee Community Center, Poillot began employment with a construction company, JS & Son Construction Services through the work release program.  The work release program permitted Poillot to work outside of the correctional facility from 6:00 a.m. to 6:00 p.m., Monday through Saturday.  On July 29, 2014, he left the Kissimmee Community Work Release Center and timely reported to work at JS & Son Construction.  Shortly thereafter, Poillot left his place of employment without permission and was unaccounted for until he timely returned to the work release center before 6:00 p.m.  Upon his return, Poillot was arrested and charged with escape pursuant to Florida Statute §944.40.  Subsequently, the trial court granted Poillot’s Motion to Dismiss and the State appealed.

The Fifth District Court of Appeals reversed the lower court’s decision, concluding the work release program was an extension of Poillot’s confinement, and his deviation from the program in the manner asserted by the State establishes a prima facie case for escape. The Florida Supreme Court concurred with the Fifth District Court of Appeals and held that an inmate is still confined when he is working as part of a work release program, and leaving without permission would subject the inmate to a charge of escape.  Poillot v. State, No. SC15-1691 (Fla. September 8, 2016).

Friday, September 2, 2016

DUI Video Saves the Day


A Florida DUI case was reversed following the Second District Court of Appeals conclusion that the circuit court had applied the wrong standard of review.



A Sarasota man was arrested and charged with DUI.  Law enforcement made the arrest for DUI based on their assessment of the man’s level of intoxication during the traffic stop.  The officer testified that the defendant smelled of alcohol, was slurring his words, and had bloodshot and glassy eyes.  The defendant admitted to have been drinking, but advised that he had only one beer and one shot.



A Motion to Suppress was filed on the basis that law enforcement did not have probable cause to make the arrest for DUI.  The key piece of evidence was a dash camera that recorded the encounter.  The county court judge agreed that the video contained no indication that the defendant had slurred speech or was impaired and granted the motion.  The State appealed to the circuit court which reversed the lower court’s order after re-reviewing the evidence.



The Second District Court of Appeal reversed concluding that the circuit court applied an erroneous standard of review as they went beyond determining whether the video on which the county court relied presented competent, substantial evidence to support their conclusions.  It was improper for the circuit court to reweigh the evidence and choose to believe a state witness which the county court chose not to believe. Malone v. State, Case No. 2D15-4460 (Fla. 2nd DCA July 8, 2016).

Saturday, June 25, 2016

DUI Laws to change following US Supreme Court case

DUI laws in the State of Florida and across the country were shaken upon following the United State’s Supreme Court’s ruling in Birchfield v. North Dakota.  The issue that was presented was whether in the absence of a warrant, may a state statute criminalize an individual’s refusal to submit to a blood alcohol test.

In the State of Florida, refusal to submit to a breath, urine or blood test can be considered a criminal misdemeanor according to Florida Statute §316.1939.  Pursuant to section 316.1939:
Any person who has refused to submit to a chemical or physical test of his or her breath, blood, or urine, as described in s. 316.1932, and whose driving privilege was previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, and:
(a) Who the arresting law enforcement officer had probable cause to believe was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages, chemical substances, or controlled substances;
(b) Who was placed under lawful arrest for a violation of s. 316.193 unless such test was requested pursuant to s. 316.1932(1)(c);
(c) Who was informed that, if he or she refused to submit to such test, his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months;
(d) Who was informed that a refusal to submit to a lawful test of his or her breath, urine, or blood, if his or her driving privilege has been previously suspended for a prior refusal to submit to a lawful test of his or her breath, urine, or blood, is a misdemeanor; and
(e) Who, after having been so informed, refused to submit to any such test when requested to do so by a law enforcement officer or correctional officer commits a misdemeanor of the first degree and is subject to punishment as provided in s. 775.082 or s. 775.083.


The United States Supreme Court, in a 7-1 decision, held that in DUI cases, warrantless breath tests are permissible under the search incident to arrest exception to the Fourth Amendment’s warrant requirement because they do not implicate significant privacy concerns. They involve minimal physical intrusion to capture something that is routinely exposed to the public, reveal a limited amount of information, and do not enhance any embarrassment beyond what the arrest itself causes. Blood tests, however, implicate privacy interests because they are much more physically invasive -- they require the piercing of the skin -- and they produce a sample that can be preserved and used to obtain further information beyond the subject’s blood alcohol level at the time of the test. The Court also determined that criminalizing refusal to submit to a breath test is designed to serve the government’s interest in preventing drunk driving, which is greater than merely keeping currently drunk drivers off the roads, and does so better than other alternatives. However, the same rationale did not apply to criminalizing refusal to submit to a blood test because of the greater degree of intrusion and the available alternative of the breath test.

Friday, April 29, 2016

Violation of Probation

          On April 21, 2016, the Florida Supreme Court granted review of the Second District Court of Appeals decision in Queior v. State, 157 So.3d 370 (Fla. 2DCA 2015) on the issue of whether a Probation Officer’s testimony that a probationer has failed a drug test administered by the Probation Officer is competent, non-hearsay evidence for purposes of proving a violation of probation.   
          In Queior, the State sought to revoke the defendant’s probation of the basis of a positive drug test.  At the hearing on the violation of probation, the State offered testimony from the defendant’s probation officer that they personally administered the drug test and that the test read positive.  The defense objected to the testimony claiming that the State had failed to lay the proper predicate to establish the reliability of the field drug test.  The trial court revoked the defendant’s probation.
          The defendant appealed, and the Second District Court of Appeal reversed the trial court’s revocation on the grounds that the probation officer’s testimony was not competent, non-hearsay evidence.  The Florida Supreme Court held that a probation officer’s testimony that a probationer has failed a field drug test administered by the probation officer is competent, non-hearsay testimony and can be relied upon in a revocation hearing.

Criminal Sentencing

          On April 28, 2016, the Florida Supreme Court granted review of the Fourth District Court of Appeals decision in Norvil v. State, 162 So.3d 3 (Fla. 4DCA 2014) on the issue of whether a trial court can consider a subsequent arrest without conviction during sentencing for the primary offense.   
           In Norvil, the defendant was charged with one count of armed burglary of a dwelling.  The defendant entered an open plea to the bench, and during sentencing, the State filed a Sentencing Memorandum requesting that the court consider a subsequent charge of burglary of a vehicle that was still pending.  Over the defense’s objection, the trial court announced that it was going to consider the pending charge and declined to sentence defendant to a Youthful Offender sentence and instead sentenced him to twelve-years in prison.
          On appeal, the issue before the Court was whether the trial court violated the defendant’s due process rights by considering a subsequent arrest without conviction.  The Florida Supreme Court held that “a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.”

Tuesday, January 12, 2016

Florida Death Penalty Unconstitutional

This morning, the United States Supreme Court, in an 8 - 1 decision, has ruled that Florida's system for sentencing persons to death is unconstitutional.  The system is set up to where the same jury who found the accused guilty, will participate in the "penalty phase" of the trial.  During the penalty phase, both the State and Defense will put on testimony and offer evidence in an effort to sway a jury into deciding to rule in favor of death or life in prison.  The problem the Court found was that regardless of the jury's decision, the ultimate decision power rested in the hands of the trial Judge. 

Thursday, December 3, 2015

Double Jeopardy


Article I, § 9 of the Florida Constitution reads, “no person shall be twice put in jeopardy for the same offense.”  Similarly, the Fifth Amendment to the United States Constitution provides that “no person shall be subject for the same offence to be twice put in jeopardy of life or limb.”  But what happens when a jury returns a verdict finding a defendant guilty of two criminal offenses having the same elements, but one which carries a lesser sentence than the other?  As seen, neither the United States Constitution nor the Florida Constitution dictate which conviction should be vacated.

This issue was recently addressed by the Florida Supreme Court in State of Florida v. Tuttle, SC14-817 (Nov. 12, 2015).  In Tuttle, a jury returned a verdict finding the defendant guilty of attempted home invasion burglary and armed burglary.  Before the trial court entered the sentencing phase, the State of Florida advised the court of the double jeopardy issue and requested that the court dismiss the attempted home invasion count as it carried a lesser sentence.  The defendant objected and advised that the court was required to dismiss the count carrying the higher potential sentence. 

The Florida Supreme Court accepted review of this issue as there was conflict regarding this issue amongst the First, Fourth and Fifth District Courts of Appeal.  The Florida Legislature has codified the double jeopardy test that was annunciated in Blockburger v. United States, 284 U.S. 299 (1932) in Florida Statute § 775.021(4).  This section provides as follows:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

The Florida Supreme Court held, “that when a defendant is found guilty for two offenses and adjudication of the defendant as guilty for both offenses would violate double jeopardy and section 775.021(4)(b)3., the lesser offense as defined by Pizzo v. State, 945 So.2d 1203 (Fla. 2006) should be vacated.”