Even more DCA cases…and GANT revisited

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MCCLOUD v. STATE, 36 Fla. L. Weekly D777 (Fla. 4th DCA Apr 13, 2011): Defense Appeal, Reversed – Trial court reversibly erred when it refused to instruct jury on lesser-included crime of trespass where all elements of offense were included in charging document, and evidence supported those elements. Failure to instruct on necessarily lesser included offense one step removed from offense of conviction constitutes per se reversible error.

CHARLES vs. STATE, 36 Fla. L. Weekly D779 (Fla. 3d DCA, Apr 13, 2011): Defense Appeal, Reversed – Double jeopardy violation resulted when trial court, at sua sponte re-sentencing hearing convened five days after original sentence was pronounced, increased original 9.2 year sentence to 10 years and imposed a fine for the first time. Prohibition against increasing a sentence once a sentence has been imposed and the defendant has begun to serve the sentence applies even if original sentence was illegal or otherwise erroneous.

THOMAS v. STATE, 36 Fla. L. Weekly D786 (Fla. 1st DCA, Apr 14, 2011): Defense Appeal, Affirmed – Convictions for sale of cocaine within 1000 feet of school and possession of cocaine with intent to sell within 1000 feet of school do not constitute double jeopardy.

JOHNSON v. STATE, 36 Fla. L. Weekly D790 (Fla. 1st DCA, Apr 14, 2011): Defense Appeal, Reversed – Trial court abused discretion in revoking probation based on discharge from drug treatment facility for writing inappropriate letter outside of facility. Evidence fails to establish that defendant’s dismissal from drug treatment program for sending the letter constitutes a willful violation of probation where defendant did not violate any specific rule by sending letter and was never told that he could be dismissed from program for sending letters.

STATE vs. HARRIS, 36 Fla. L. Weekly D794 (Fla. 1st DCA Apr 14, 2011): State Appeal, Reversed UPDATED!! (Originally cited at 36 Fla. L. Weekly D133) – Search of vehicle incident to arrest of driver under precedent established by U.S. Supreme Court in Arizona v. Gant, several weeks after search in question, the search of defendant’s vehicle incident to her arrest was unlawful where the search was conducted after defendant was handcuffed and in officers’ patrol car. Although trial court properly found that search was unlawful, it was error to grant motion to suppress where officers, in conducting search, relied in good faith on well-settled case law predating the decision in Arizona v. Gant in conducting the search. Question certified: Does the good-faith exception to the exclusionary rule apply to evidence seized by the police in contravention of Arizona v. Gant, 129 S.Ct. 1710 (2009)?

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