Brown v. State, 32 Fla. L. Weekly D1068a (Fla. 2d DCA May 2, 2012) involved the revocation of probation based upon the violation of a curfew. The case sets forth an informative analysis of the law concerning revocation of probation and addresses the treatment by the Circuit Court of a minor violation.

The defendant was convicted of lewd and lascivious molestation on a 15 year old. He was sentenced to five years incarceration, followed by five years of probation. Upon release from prison, Mr. Brown entered probation. After two years, his probation. was revoked due to not being home as required by probation.

Other than this one event of violating his curfew, Mr. Brown had been completely successful in meeting all requirements of probation.

On the night when he was late and missed his curfew, the probation officer went to his house and as the officer was preparing to leave, he saw Mr. Brown driving home. Mr. Brown explained that he had gone to his brother's house to pick up job applications and that his brother was late. Mr. Brown waited for his brother, obtained the job applications and came home. His arrival home was 25 to 30 minutes beyond the curfew because his brother had been late in arriving home.

At the hearing on the probation violation, the judge found Mr. Brown guilty of violating probation and concluded that the state had "proven by competent substantial evidence that the defendant . . . has violated his conditions of probation, specifically his curfew." The Circuit Judge went on to state that it considers all terms of probation serious and curfew conditions extremely serious. The judge then sentenced Mr. Brown to 13 years incarceration.

The District Court of Appeal reviewed the applicable law. In order to revoke a defendant's probation the facts of the case must demonstrate a willful and substantial violation which the state had to prove by the greater weight of the evidence. Anthony v. State, 854 So. 2d 744, 747 (Fla. 2d DCA 2003). In reviewing a revocation of probation, the appropriate standard is abuse of discretion. Under such a standard the appellate court must determine whether the trial court acted in an arbitrary, fanciful, or unreasonable manner in determining whether the violation was willful and substantial. Smith v. Carter, 835 So. 2d 259, 262 (Fla. 2002). In Carter the Florida Supreme Court held that it is an abuse of discretion to apply a per se rule that certain single violations are not substantial as a matter of law. The Supreme Court went on to state that a trial court must consider each violation on a case by case basis to determine whether it is substantial.

The decision to revoke a defendant's probation should be made only when the probation violation is both willful and substantial so as to indicate that probation is not working for the particular defendant. State v. Carter at 262 and Ortiz v. State, 54 So. 2d 1020, 1022 (Fla. 2d DCA 2011).

At the probation violation hearing, the defendant admitted that he was late. The defendant, as well as the defendant's brother, testified that the information provided to the probation officer was correct. The defendant also put forth a letter from his sex therapist indicating he was an active participant in therapy and has made satisfactory progress and was capable of successfully completing the treatment. The probation officer testified that but for the curfew violation, the defendant had met all terms of probation.

Under those facts, the Second District Court of Appeal ruled that there was simply no basis to conclude that Brown was unfit for probation. It also held that revocation was "patently unfair" on these facts and that the trial court abused its discretion.

In discussing the trial court's errors, the appellate court noted that one error was the trial court's conclusion that the state had "proven by competent substantial evidence that the defendant . . . has violated his conditions of probation." The appellate court noted that this was incorrect and that the state's burden was actually to prove its case by a greater weight of the evidence. The appellate court went on to state that the trial court had failed to perceive the difference between the burden of proof on a party and the requirement that findings of fact be sustained if supported by competent substantial evidence. It is noted that the two are different concepts, although they are related.

The court also noted that in revoking the probation, the trial court appeared to have applied a prohibited per se rule for revocation. It also noted the trial court made no findings on willfulness or substantiality other than its blanket assertion that curfew violations are extremely serious.

Probation violations as noted by the court in Brown and the Supreme Court in Carter should be considered on a case-by-case basis rather than pursuant to some blanket rule that a type of violation in and of itself would justify probation revocation.

A search of the defendant's residence resulted in 8 bags containing a powdery substance and 8 bags containing cocaine rocks.

At trial, the police officer testified that the defendant purchases a quarter kilogram of cocaine every two weeks and cooks about half of it into crack cocaine.

The state chemist who conducted the testing of the substance testified that each of the bags were packaged the same way and with the same type of material inside.

The chemist also testified that the 8 bags of powder weighed a total of 182.7 grams and that the 2 bags that contained cocaine rocks weighed 22.9 grams and 6.6 grams.

The chemist testified that only one of the bags of powder was examined for cocaine. The sentence was reversed because the state did not prove that the weight was greater than 200 grams.

In this regard, the court noted that each of the bags had to be tested rather than simply assuming that because they were similar in appearance and contained a white substance, that the other 7 bags containing a white substance were in fact, cocaine.

The court cited to Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1998), the defendant's conviction for trafficking in cocaine was reversed because the state failed to prove that the weight of the cocaine was in excess of 28 grams. In that case only 2 of the 92 separate packages were tested. The 2 packages that were tested weighed less than 28 grams. The court also cited to similar results in the case of Safford v. State, 708 So. 2d 676, 677 (Fla. 2d DCA 1998).

Likewise, the case of Pama v. State, 552 So. 2d 309 (Fla. 2d DCA 1989) was cited for the proposition that proof of a controlled substance by circumstantial evidence including such things as appearance, packaging, odor, circumstances of seizure, the manner in which the substance was being transported, as well as comments as to the identity of the substance by a person at the scene. While admittedly circumstantial evidence concerning the sale, such evidence is not sufficient to prove weight. What is necessary for the state to prove is that the substance in each bag test positive for cocaine.

The State charged Sanchez with racketeering in violation of Fla. State. §895.03(3) and conspiracy to commit racketeering, Fla. Stat. §895.03(4).

The Information as amended charged Sanchez with committing racketeering and conspiracy to commit racketeering by engaging in a pattern of racketeering activity evidenced by two predicate acts. The Information charged that the predicate acts included: (1) possession of a concealed weapon, (2) aiding the escape of another person named in the Information as a defendant, (3) robbery, (4) murder, and (5) aggravated assault. These predicate acts are found in Fla. Stat. §895.02(1)(a)(38)(21)(22)(28).

The jury was provided a verdict form which required it to identify those predicate acts the defendant was to have committed. Out of the five predicate acts listed above, the jury found that the defendant had committed the predicate act of possession of a concealed weapon and aiding the escape of one of the co-defendants.

The court then examined the evidence as to the two predicate acts and found that there was insufficient evidence to make a finding that the defendant aided in the escape the named co-defendant.

The appellate court then analyzed the charge of aiding another in an escape. Fla. Stat. §843.12 (2006) contains the crime of escape which is designated as a predicate act under the racketeering statute. The statute provides that a person who knowingly aids or assists a person in escaping, attempting to escape or who has escaped from an officer or person who has or is entitled to the lawful custody of such person commits the crime. The court noted the Florida Supreme Court decision in King v. State, 28 So. 206 (Fla. 1900) as well as Dupree v. State, 416 So. 2d 1228, 1230 (Fla. 1st DCA 1982) in analyzing this issue.

The First District Court of Appeal noted that the accused must know that the police had lawful custody of the escapee. It also noted that the statute would also apply to a police officer serving an arrest warrant because the officer is entitled to the lawful custody of the arrestee.

The issue that the court found to be lacking involved the element of the crime which requires that the defendant know his actions are helping the escape of an arrested person or a person whom the officer is seeking to arrest. It stated, "the state had to demonstrate both that Sanchez knew the police were attempting to serve an arrest warrant and that he knew Garcia was attempting an escape." The evidence on this regard was then analyzed. A police car approached the neighborhood of the person to be arrested. Outside the home of the person to be arrested, was Sanchez, together with the person whom the police were seeking to arrest. Police saw both men enter the home. The police then went to the residence, one officer went to the front door and a second officer went around to the backside of the house.

The police officer at the front door was met by Mr. Sanchez and asked to speak to Mr. Garcia (the person to be arrested). The officer stated to Sanchez that he needed to speak with Garcia and said nothing about an arrest warrant. Sanchez lied to the officer by saying that he had not seen Garcia and Garcia was not there.

Garcia had gone out the back and was still within the curtilage of the property and was told by the other officer to stop, which he did.

The state offered nothing to suggest that Garcia knew that warrant had been issued for his arrest or that Garcia was trying to escape from his residence. Likewise there was no evidence that Sanchez had any knowledge that Garcia was trying to avoid an arrest. In this regard the court noted that Garcia responded to the deputy's call by stepping forward rather than running away. The court noted that Garcia's conduct did not establish that he was attempting to escape.

Sanchez's lying to law enforcement was then analyzed. The court noted that by merely giving police false information generally will not support a criminal conviction, not even a misdemeanor conviction for resisting an officer without violence which is commonly referred to as obstruction under Fla. Stat. §843.02.

Specifically, the court found that had the police officer disclosed to Sanchez that the officer was seeking to serve an arrest warrant on Garcia, the evidence conceivably might have supported finding that Sanchez violated the obstruction statute.

In this regard the court cited to the case of State v. Legnosky, 27 So. 3d 794 (Fla. 2d DCA 2010) which noted three scenarios where words alone are sufficient to obstruct a police officer. These are: where the officer is serving process, legally detaining a person, or asking for assistance. The officer did none of those and furthermore obstruction was not charged as a predicate act in the Information.

The court pointed out that two predicate offenses are necessary to commit criminal racketeering and here the state only proved one predicate act. Therefore, the state failed to prove one of the elements because proof only sustained one predicate offense.

The court then considered the conspiracy to commit racketeering charge. It noted that one can be found guilty of conspiracy to commit racketeering if the state proves either of two methods charged in the statute. These are: (1) that the defendant agreed to the overall objective of the conspiracy or (2) that the defendant personally committed two predicate acts thereby participating in a single objective conspiracy.

In the conspiracy charge of the Information, the state alleged that Sanchez had participated in the racketeering conspiracy by committing the same five predicate acts listed in the substantive RICO charge. The jury's verdict form indicated that he was convicted of the conspiracy to commit racketeering based upon his personally committing two predicate acts. That is the possession of the concealed and aiding Garcia's escape. For the same reasons it discussed in relation to the racketeering charge, the court noted that the proof was insufficient on the predicate crime of aiding Garcia's escape.

The court reversed the convictions on both charges and remanded the case with directions to discharge the defendant.

It is also worth noting the court comments on the fact that the jury instructions included the lesser included offense of resisting an officer without violence as being included in the charge. The court cited to the case of United States v. Fowler, 535 F. 2d 408, 421 (6th Cir. 2008) for the proposition that a crime charge as a predicate act for purposes of a racketeering charge is not a charged crime and that lesser included offense instruction is not permissible when a defendant has not been charged with a separate crime. The jury instruction on Predicate Acts therefore may not include the lesser included offense

Specifically U.S.S.G. § 2G2.2(b)(3)(B) calls for a five level enhancement under the sentencing guidelines if it is established that the defendant distributed child pornography for the receipt or expectation of receipt of a thing of value.

The trial court imposed a five level enhancement under U.S.S.G. § 2G2.2(b)(3)(B). The court's rationale was that the use of a file sharing program which allows for the sharing of downloaded files justified the enhancement because it was done with the anticipation of receiving child pornography from other computers that utilized the same file sharing program.

The defendant contended that there was no evidence that he distributed child pornography for the receipt or expectation of receipt of a thing of value as is required under the sentencing guidelines.

The Eleventh Circuit found that while there was evidence that Spriggs had distributed illicit images, there was insufficient evidence to support the other elements of the five level enhancement.

The Eleventh Circuit discussed the case of United States v. Stults, 575 F. 2d 834, 849 (8th Cir. 2009) and disagreed with the ruling that file sharing programs enable users to swap files and therefore, no additional evidence was required to impose the five level enhancement.

The Eleventh Circuit noted that file sharing programs are designed to promote free access of information, not for a form of bartering. The exchange of information contained on various computers that utilize the file sharing program is free.

The Eleventh Circuit further noted that the transactions contemplated by the guidelines involve conduct for valuable consideration and therefore, the use of a program that enables free access to files does not in and of itself establish a transaction sufficient to support the five level enhancement in U.S.S.G. § 2G2.2(b)(3)(B).

The impact of file sharing programs in child pornography cases has resulted in the application of U.S.S.G. § 2G2.2(b)(3)(B) thereby greatly increasing the sentence. This Eleventh Circuit case provides a glimmer of hope to defense counsel in trying to mitigate the overly harsh sentences that are imposed by many judges confronted with computer child pornography.

Specifically U.S.S.G. § 2G2.2(b)(3)(B) calls for a five level enhancement under the sentencing guidelines if it is established that the defendant distributed child pornography for the receipt or expectation of receipt of a thing of value.

The trial court imposed a five level enhancement under U.S.S.G. § 2G2.2(b)(3)(B). The court's rationale was that the use of a file sharing program which allows for the sharing of downloaded files justified the enhancement because it was done with the anticipation of receiving child pornography from other computers that utilized the same file sharing program.

The defendant contended that there was no evidence that he distributed child pornography for the receipt or expectation of receipt of a thing of value as is required under the sentencing guidelines.

The Eleventh Circuit found that while there was evidence that Spriggs had distributed illicit images, there was insufficient evidence to support the other elements of the five level enhancement.

The Eleventh Circuit discussed the case of United States v. Stults, 575 F. 2d 834, 849 (8th Cir. 2009) and disagreed with the ruling that file sharing programs enable users to swap files and therefore, no additional evidence was required to impose the five level enhancement.

The Eleventh Circuit noted that file sharing programs are designed to promote free access of information, not for a form of bartering. The exchange of information contained on various computers that utilize the file sharing program is free.

The Eleventh Circuit further noted that the transactions contemplated by the guidelines involve conduct for valuable consideration and therefore, the use of a program that enables free access to files does not in and of itself establish a transaction sufficient to support the five level enhancement in U.S.S.G. § 2G2.2(b)(3)(B).

The impact of file sharing programs in child pornography cases has resulted in the application of U.S.S.G. § 2G2.2(b)(3)(B) thereby greatly increasing the sentence. This Eleventh Circuit case provides a glimmer of hope to defense counsel in trying to mitigate the overly harsh sentences that are imposed by many judges confronted with computer child pornography.

The defendant was convicted of attempting to obtain a mortgage loan by false representation, grand theft in the first degree and providing false information to defraud a financial institution. During the trial, the defense moved for judgment of acquittal. The court reduced one of the counts from obtaining a mortgage by false representation to an attempt to obtain said mortgage.

The appellate court found that the trial court committed error in not granting the motion for judgment of acquittal as to the grand theft charge and failing to grant the motion for judgment of acquittal as to the obtaining a mortgage by false representations.

At the trial, the state established that Barrios had obtained a $315,000 mortgage to purchase land and build a home. In the loan application, Barrios represented that his monthly income was $8,900. Throughout the course of the application for the loan, this false information was provided on three separate occasions. Twice on loan applications and once at the closing. The state was able to prove that the defendant earned significantly less than the $8,900 per month represented to the lender.

The court examined Fla. Stat. § 817.54 (2009). That statute provides that a person who, with intent to defraud, obtains a mortgage, promissory note or other instrument evidencing a debt by aid of fraudulent or false representations or pretenses, violates the statute.

The appellate court noted that to prove the crime there must be evidence of the victim's reliance on the defendant's misrepresentations. Citing to Adams v. State, 650 So. 2d 1039, 1041 (Fla. 3d DCA 1995). That case noted that Fla. Stat. § 817.54 criminalizes a specific form of false pretenses. It further held that the victim's reliance on the false or misrepresented information is an essential element of the offense.

In Barrios, the state could not establish that the lender relied upon the false statements concerning monthly income.

The appellate court held that the trial judge committed reversible error by failing to grant a judgment of acquittal on that account and by allowing that count to go to the jury under the charge of attempting to obtain the mortgage fraud by false representation. The court noted that because there was no proof of reliance and the loan was completed, the judgment of acquittal should have been entered without reducing the original charge to attempt.

Other district courts have ruled that reliance on misrepresentation by the victim is an essential element of mortgage fraud. See. Grant v. State, 43 So. 3d 864, 868-69 (Fla. 5th DCA 2010); Pizzo v. State, 910 So. 2d 287, 293 (Fla. 2d DCA 2005).

In analyzing the criminal attempt, the court noted that an attempt to commit a crime requires three elements. The first, the intent to commit a crime, second, an overt act towards its commission and third, failure to successfully complete the crime. Citing to, Bist v. State, 35 So. 3d 936, 941 (Fla. 5th DCA 2010). The court then noted that there was no evidence that the crime was not completed. The evidence established that the crime was completed because the mortgage was obtained. The problem confronted by the prosecution was that there was a lack of proof of reliance by the lender.

The grand theft conviction was also reversed because the state did not provide evidence that the appellant intended to deprive the victim of its property at the time of taking. The appellate court rejected the state's contention that by overstating his monthly income the defendant never intended to pay back the mortgage.

This case is significant due to the revelations of misconduct by many in the lending business during the real estate boom leading up to the recession. Many lenders were not interested in anything other than making the loans and took no action to review or even consider the amount of the stated income. This conduct resulted in certain lenders being subject to regulatory scrutiny and adverse actions. In a mortgage fraud case, the requirement of proving reliance by the lender on information in the application as to income, may be a viable defense.

In order for a drivers license to be suspended in a criminal court case, a person must either accept a plea that results in their drivers license being suspended or they must be found guilty after trial and the judge order that their drivers license be suspended.

When it comes to the administrative side, a person loses his or her driver's license as the result of either refusing to submit to a breath, urine or blood test or by blowing a .08 or higher. If a person wants to try to have the suspension invalidated, they must request a formal administrative hearing within ten days of being arrested.

Attorneys often subpoena the arresting officer to appear at the formal administrative hearing where they can be cross-examined and the hearing officer can decide whether or not to invalidate the suspension.

In the past, if the officer was subpoenaed and did not appear for the formal administrative hearing, the hearing officer would often invalidate the suspension. For the most part, hearing officers are now refusing to invalidate a suspension simply because the officer did not appear pursuant to the subpoena.

Now more than ever it is important to determine what advantage if any, there is to subpoena an officer in a particular case. If the officer does not appear at the formal administrative hearing, then he is bound by whatever information he provided in his reports, as well as any deficiency found in the required paperwork. Therefore, it is essential that those reports or documents be carefully reviewed to determine if they are sufficient to support the suspension. If the reports do not clearly establish that the person driving was the person that refused the breath test, if that refusal is not sworn or attested to or if the reports are deficient in some other way, then an attorney has grounds to ask the hearing officer to invalidate the suspension. If the officer does not appear at the formal administrative hearing, then the case lives and dies by the contents and omissions from the documents available to the hearing officer.

Ms. Perez was charged by information with committing grand theft between May 1, 2000 and August 31, 2000. The information was filed on November 27, 2002. The issue in the case was whether this specific statute of limitations found in Florida Statute § 812.035(10) applies or whether the general statute of limitations contained in Florida Statute § 775.15 controls so as to allow the prosecution.

The general statute of limitations contained in Florida Statute § 775.15(5)(b) provides that process must be executed without unreasonable delay. It further sets forth:

In determining what is reasonable, inability to locate the defendant after diligent search or the defendant's absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

The above statute was in effect on July 1, 1997.

Florida Statute § 775.15(6) further provides:

The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from the state or has not been extradited for prosecution from another state.

Florida Statute § 812.035(10) which specifically applies to the grand theft statute sets forth a five-year limitation period. That period can be extended for no more than 1 year should the defendant be continuously absent from the state.

The court noted that in the Perez case, the statute of limitations began to run on September 1, 2000. In support of this the court cited to Brown v. State, 674 So. 2d 738 at 741 (Fla. 2d DCA 1995). The court went onto note that the information was filed within the limitations period and that the capias was issued within the limitations period but was not executed until September 9, 2010, almost eight years after the state filed the information.

The state argued that it was entitled to rely upon § 775.15 and therefore, prosecution was permissible due to the defendant's continuous absence from the state.

The appellate court was then called upon to decide whether § 775.15 supersedes or adds to the specific limitation provisions for grand theft provided in § 812.035(10).

In deciding the statutory construction issue, the court recognized that a more specific statute controls over the more general statute. In particular it noted that the wording of § 812.035(10) includes "notwithstanding any other provision of law." Therefore, it held that § 775.15(5) and (6) had to yield to the specific statute of limitations contained in the theft statute, § 812.035(10). It also noted that the trial court considered the state's delay in executing the capias.

The ruling is therefore clear that in a prosecution for theft, the state is limited to a maximum limitation period of six years as provided in § 812.035(10).

Gray had been convicted of robbery with a firearm and resisting arrest without violence. Following trial, counsel for the defendant filed a motion to interview jurors and for a new trial based upon a conversation defense counsel had with the alternate juror after deliberations began.

The motion set forth that an alternate juror, after being released, approached the attorney in the courthouse as he walking to the elevator. The alternate juror explained that several jurors felt "extremely strongly" that the defendant was guilty. The alternate juror also related that one of the other jurors stated, "[W]hat was the defendant doing walking with a gun at one o'clock in the morning?"

The district court recognized that a trial court's decision on a motion to interview jurors is reviewed under an abuse of discretion standard. Anderson v. State, 18 So. 3d 501, 518 (Fla. 2009). Furthermore, Fla. R. Crim. P. 3.575 provides that a party who has reason to believe that the verdict may be subject to legal challenge may move the court for an order permitting the interview of a juror or jurors. The court goes on to set forth that upon a finding that the verdict may be subject to challenge, the trial judge shall enter an order permitting the interview. Furthermore, Fla. R. Crim. P. 3.575 does not require the filing of a sworn affidavit in order to interview a the jurors. See Pozo v. State, 963 So. 2d 831, 835 (Fla. 4th DCA 2007).

The well recognized law is that juror interviews are not permitted relative to any matter that inheres to the verdict itself and relates to the jury's deliberation See Reaves v. State, 826 So. 2d 932, 945 (Fla. 2002). Jury inquiries are limited to allegations which involve an overt prejudicial act or external influence, such as a juror receiving prejudicial nonrecord evidence or an actual express agreement between two or more jurors to disregard their oaths and instructions.

In the case of Williams v. State, 793 So. 2d 1104, 1106 (Fla. 1st DCA 2001), the court ruled that the issue of whether deliberations were undertaken prematurely is an appropriate subject matter for judicial inquiry. In the Williams case, two jurors discussed the case during trial and expressed opinions as to the guilt before the close of evidence. Such an allegation was held to be sufficient to set forth a prima face case of premature deliberations by two members of the jury.

In Ramirez v. State, 922 So. 2d 386 (Fla. 1st DCA 2006), the appellate court followed the holding in Williams ruling that juror interviews should be allowed following an allegation that an alternate juror told the bailiff that the jury was split as to the defendant's guilt until after the juror heard the defendant's testimony.

In Ramirez, the court explained that deciding a case before hearing all the evidence is antithetical to a fair trial.

The appellate court in Gray held that the trial court abused its discretion in denying the motion for juror interviews because the defendant's allegation gave rise to a prima facie case of premature jury deliberation. The appellate court therefore remanded the case so that juror interviews could be obtained. It went on to note that after an opportunity for juror interviews, the defense bears the burden of either to show that prejudice resulted or that a premature deliberation or conversations were of such a character as to raise a presumption of prejudice.

The court then stated that, "If the defense proves that deliberations or conversations took place among jurors about the case before the case was submitted, the burden will shift to the State to rebut the resulting presumption or prejudice."

Citing to Ramirez, 922 So. at 390.

The court also then noted that if the trial court determines that premature deliberations took place, a new trial must be ordered, unless the state proves that the defendant was not prejudiced by the juror misconduct.