Florida Third District Court of Appeal – Criminal Headnotes – March 7, 2018
LAZARO PARRONDO V. STATE OF FLORIDA – DEFECTIVE JURY INSTRUCTION; EXPLOITATION OF ELDERLY OR DISABLED ADULT; ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF VICTIM’S LACK OF CAPACITY TO CONSENT; LESSER INCLUDED OFFENSE
Direct appeal from a conviction for exploitation of an elderly person or disabled adult.
The defendant argued the jury instruction omitted an element of the charged offense, which had been disputed at trial, and that although his lawyer did not object, the error was fundamental. The appeals court agreed, but rather than ordering a retrial, it remanded for resentencing for a lesser included offense of which the jury also properly found him guilty.
As in effect in 2008, when the defendant persuaded his elderly aunt to take out a reverse mortgage and place the proceeds into an account which he controlled, section 825.103 of the Florida statutes required that the state establish either that the defendant obtained the property by knowingly deceiving or intimidating the elderly or disabled adult, or that he knew or reasonably should have known that the victim lacked capacity to consent to the transaction.
The instruction here required neither of these findings. The appeals court agreed this was fundamental error, requiring a reversal of the conviction for exploitation.
However, the court determined that a retrial was not the appropriate remedy here, where the state had also submitted a lesser included offense, second-degree grand theft, which did not require either of those findings, and the jury had returned a guilty verdict on that charge.
The court did not find it necessary to reach the defendant’s alternative argument, that his lawyer’s failure to object to the defective instruction demonstrated ineffective assistance of counsel.
Remanded for sentencing for the lesser included offense.
EDELIO PEREZ V. STATE OF FLORIDA – MOTION TO SET ASIDE NOLO CONTENDERE PLEA; NEWLY DISCOVERED EVIDENCE; BURDEN ON DEFENDANT AFTER LONG V. STATE
Appeal from denial of motion for post-conviction relief from conviction and sentencing (to probation) on a plea of nolo contendere for committing lewd and lascivious acts on two minors, the defendant’s stepdaughters.
After the defendant had served out his probation, the two victims recanted their testimony against him. He moved to set aside the conviction and to withdraw his plea, based on newly discovered evidence.
The trial court denied the motion, applying the standard articulated in Holloway v. State, 160 So. 3d 149 (Fla. 3d DCA 2015), which required not only (1) that the evidence have been unknown to the defendant, his lawyer, and the trial court within the two-year Rule 3.850 window, and (2) that it could not have been discovered through due diligence — both which requirements the trial court found the defendant had met –, but also (3) that the withdrawal of the plea be “necessary to correct a manifest injustice.” Here, the trial court determined that the defendant “ha[d] not demonstrated a manifest injustice based on actual innocence.”
Several months prior to the hearing on the defendant’s motion, the Florida Supreme Court had ruled in Long v. State, 183 So. 3d 342 (Fla. 2016), that a defendant moving to withdraw a plea on the basis of newly discovered evidence was not required to show that he actually would have prevailed at trial, but whether the evidence sufficiently weakened the government’s case that there was a reasonable probability he would have chosen to go to trial rather than plead.
The appeals court reversed, but noted that because the evidentiary hearing on the motion had taken place months after Long had been decided, and the parties should have been aware of the decision, on remand the trial court should decide the motion on the evidence already adduced at that hearing, rather than give either party a “second bite of the evidentiary apple.”
I.B., A MINOR, V. STATE OF FLORIDA – DELIQUENCY; RESISTING AN OFFICER WITHOUT VIOLENCE; FOUNDED SUSPICION TO DETAIN; SUFFICIENCY OF EVIDENCE
Direct appeal from the denial of a motion for acquittal and the adjudication of delinquency for resisting an officer without violence.
The defendant argued that the officer did not have a founded suspicion to detain him. The appeals court determined that the officer did have a founded suspicion that the defendant had engaged in, was engaging in, or was about to engage in criminal activity, either directly (possession of marijuana) or as a principal (acting as lookout for other who were about to engage in vandalism of city property).